Scalia– take 1

Wow.  This is a big deal.  Okay, a man died, so for that, I do like Ross Douthat’s take:

Seriously, that is so the way to go.  Doing what you love for your whole life.  Many grandchildren.  And dying at a ripe old age with no lingering illness.

And, always a good chance to mention again that his son Paul, a Catholic priest, baptized my firstborn son.

Okay, now with that out of the way.  I do want to mention that in his later years, especially, Scalia had just turned into a belligerent a$$hole.  You always hear what a great legal mind he had, but there really was no evidence of this in his references to “argle bargle” and what not.  I’ve read many a Supreme Court opinion in my day, and for the most part, I just don’t see this “genius.”  To me, genius is often self-evident, “oh my God, of course, how could I not have seen that” or “of course, I had not considered that perspective, but when you put the issue that way…” etc.  And I cannot say I had many of these moments reading anything Scalia wrote.  But enough of that, I’m just a smart guy with a good education, not a legal scholar, anyway, on to the most interesting things I’ve read so far…

1) Easily the best is Linda Hirshman’s on why this vacancy favors liberals no matter what.  Basically, after 8 years of Obama, most of the country is under liberal appellate courts and the Supreme Court now lacks the votes to overturn their decisions.  When faced with a 4-4 ruling, the Circuit Court decisions stands.  And since in many ways the conservatives are very much activist judges looking to overturn rulings, losing the ability to overturn things 5-4 really matters.

2) Ian Millihiser goes issue by issue to look at the impact, considering whether the Appeals Court needs to be upheld or overturned for a liberal outcome.  It’s not all great for liberals, but definitely better than with Scalia.  He concludes it’s most important for the fate of the planet:

The Fate of the Earth

As a final note, it’s worth nothing that Scalia’s last act as a Supreme Court justice may have been to supply the fifth vote in a series of orders handed down on Tuesday halting President Obama’smost ambitious effort to fight climate change. If the Court remains evenly divided in this case, it could matter a great deal that the two judges assigned to this case in the court below are Democratic appointees. If they vote to uphold the administration’s policies, that order will stand unless there is a fifth justice who votes to reverse that decision.

3) Chait on how damn difficult the political struggle over the replacement will be (I promise much more to come on this topic):

What happens next — or, what would have happened under the old rules of American politics —is that the president names a successor. Senate Republicans might object to a particular successor on the merits, arguing that an individual candidate is too extreme, or scandal-plagued, or otherwise unqualified. But the old rules no longer apply, because they are not rules at all, they are mere social norms. The consistent pattern in Washington over the last two decades is that any social norms that stand between one of the parties and power inevitably falls by the wayside…

What’s more, it cannot even be taken for granted that, if Democrats win in November, Republicans will allow a Democratic justice to replace Scalia in 2017, either. Senators used to furnish what were viewed as qualified mainstream appointees with wide, bipartisan support. Increasingly, Senators vote against any justice nominated by a president of the opposing party. The notion that the Senate needs to let the president appoint somebody to a vacant Supreme Court seat is nothing but a social norm, and social norms in modern politics have a short lifespan.

I.e., we could be looking at 4-4 for a long time.

4) Jeffrery Toobin on the president’s roster of likely nominees.  These people sounds great.  Hard to imagine any of them getting through.

About Steve Greene
Professor of Political Science at NC State

12 Responses to Scalia– take 1

  1. R. Jenrette says:

    Is there a Latino male federal judge who was voted in by a big majority and is highly respected or a Latino male who is otherwise highly qualified and respected? If so, that’s who President Obama should nominate for the Supreme Court vacancy.
    It would be very difficult for the Republicans to reject him and, even if they did, their reasons would be interesting.

  2. Jon K says:

    Couldn’t Obama really make conservatives look like jerks if he nominated a moderate eg Souter, O’Conner, or anyone who is well respected yet not clearly conservative or liberal? He obviously isn’t going to get a very liberal nominee to replace Scalia as long as there is a GOP majority in the Senate (or at least enough Senators for a GOP filibuster). If he tried to nominate a centrist the GOP would have a much harder time justifying their opposition.

    Also, if Trump is the GOP nominee and HRC is the Democratic choice it may become clear fairly early in the campaign that HRC is going to be elected. Wouldn’t that make it more likely that a compromise would be in everyone’s best interests?

    Finally, when the founders adopted the Constitution the idea of a Justice serving into their 80’s wasn’t a situation that they could have conceived. After all, most people died in what we would consider middle age. They couldn’t have dreamed of a time that people could live into their 80’s on a regular basis. Having worked in a nursing home – and having been around others who are elderly – I question why we don’t have a mandatory retirement age for lifetime appointments. It would prevent situations like we currently have now. In addition as humans age after about 75 the body and mind noticeably deteriorate. I’ve yet to meet someone in their 80’s with the same mental and physical capabilities that they had just a few years earlier. It is a sad, but real phenomenon that human bodies start to noticeably decline at that age. I realize it would take an amendment to deal with the problem, but I really do think it would serve the country well if we instituted a mandatory retirement age for lifetime appointments.

    • Steve Greene says:

      1) Had an interesting class discussion today of how evolving election and polls could reflect Republican strategy.
      2) Totally love the idea of staggered 18 year terms for Supreme Court. Far too many great judges are now not even considered because they are mid-50’s or over and presidents want 30+ year influence, like Scalia.

    • rgbact says:

      75? Careful, thats the Democrat field you’re talking about. Anyway I actually agree on age limits. Maybe just term limts. Now its just a game of nominating really young people.

      As for your compromise….yes, it makes total sense ….if Obama wasn’t a raging partisan unable to negotiate. But prior history shows he;ll run to his partisan corner and will spend the next few weeks insulting Republicans rather than trying to nominate a moderate that could get confirmed..

      • R. Jenrette says:

        No to age limits. People vary too much in how they age mentally.
        Yes, to staggered long terms. The way it is, they get way too comfortable with each other and out of touch with the country outside their bubble.

      • Steve Greene says:

        I don’t like age limits, either. Too much variance indeed. Interestingly, the Catholic Church limits the role for Cardinals over 80.

      • Jon K says:

        As I said before, I have met many elderly people and every single one has experienced significant mental declines that start around 75 and are more than noticeable by 80. The human body inevitably begins to fall apart around that age. Are there exceptions? I’m sure, but that is the exception and not the norm. It is a sad but inevitable truth that faces anyone who lives that long.

        I really strongly favor mandatory retirement. It would make transition on the court much more orderly. There is precedent for it in the business community as well as other arenas. In addition it would be the least radical change to the Constitution possible.

  3. R. Jenrette says:

    Citizens deserve the best possible person in every government job. Why put limits on that choice
    when there’s no problem? Long terms would help alleviate any future problem.
    Besides, some people’s decline might still leave genius status for some people….say:RBG.

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