The death of Justice Antonin Scalia has triggered a political battle between conservatives who want another constitutional originalist to replace him and Democrats who want President Obama to nominate a liberal in order to change the balance of the Supreme Court.
Death of an Original A-Hole
Ted Rall
Ted Rall is a syndicated political cartoonist for Andrews McMeel Syndication and WhoWhatWhy.org and Counterpoint. He is a contributor to Centerclip and co-host of "The Final Countdown" talk show on Radio Sputnik. He is a graphic novelist and author of many books of art and prose, and an occasional war correspondent. He is, recently, the author of the graphic novel "2024: Revisited."
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Time for “Obama 2: Conservative Appeasement Boogaloo” to begin. In this installment, The Big O will – eager for another legacy – l nominate the furthest-right jurist he can find in the name of bi-partisan cooperation. It’s great having an adversary who surrenders at the first sign of trouble.
Perhaps – except that the wrong wing has already tipped its hand by publicly stating they’ll oppose anyone O’bummer nominates. A lame duck with nothing to lose might take the opportunity to nominate a true liberal.
Once again, the wrong wing has shown how little they care about governing the country in favor of playing political power games. Once again that will hurt them come November.
Obama giving up another mention in the history books? Not a chance. Everyone in congress is well practiced in using the memory hole for their agendas. If the meat’s red enough they’ll jump for it.
And, let’s face it, Obama wouldn’t touch a “true” liberal for the very good reason that he isn’t one. Credit where credit’s due, “true liberals” actually care enough to fight for what they believe whereas today’s progressives think anyone worth less that $100k a year is a bum just waiting for a welfare handout and can’t tie their shoes without an Ivy League “City Year” volunteer hanging over them.
Start from the two possible outcomes: Democratic President in 2017 or Republican President in 2017. Play the worst-case scenario for the Republicans: they lose.
They will threaten delaying tactics and so forth. None of it will work because there is simply not one damned way possible that they can stall it out for 300+ days. It’s right in the Constitution: the president selects the nominee and the Senate confirms or denies. They can shoot down candidate after candidate, but it will destroy their chances in the general election. So they stall and, grudgingly, accept a moderate with right-leaning tendencies. (Half a loaf.) The court ends up 4-4 with an either-or.
Now, say the Republicans win. Okay, they didn’t get a rapid fanatic in during the last year of Obama. Instead, they got a hem-hawer. Kennedy is a swing vote, and 79 years old. Ginsberg is a leftie, and 82.
The likelihood that BOTH Kennedy and Ginsberg will live another five years (or nine years if the Republicans get a two-termer), is practically zero. If both leave, the court will be stacked 6-2 with conservative appointees and that wishy-washy Obama grudge-appointee will be irrelevant. Even if only Kennedy OR Ginsberg leaves, it will be 5 to 3 with Obama’s grudge-appointee, and again, irrelevant. It will be a whole lot of majority-by-political-leanings decisions.
Now, look at what happens if Clinton wins the election. The likelihood that she will retake the Senate is almost zero. The likelihood of the SuperPAC-backed Clinton Revolution overturning the composition of the House is even lower. She will face a fight all the way for every nominee she makes. Want a sample of what kind of question will be asked of her nominee? Here’s my guess: “Mr. Nominee. Do you think a president who has a private server and brings this country to the edge of destruction by willfully committing treason by putting our brave warriors at risk should be nominating anyone for anything, Comrade?” (And that will be the nicer of the questions.)
Good points, but why couldn’t McConnell just keep from having the nominee hearings?
“Originalist” – like “Constructionist” is merely an excuse it insist that words on paper (parchment) mean the exact opposite of what they say.
Scalia’s brand of “originalism” holds that it doesn’t matter what the authors intended, but rather how the man on the street in 1787 would misinterpret their written word. That gives you a hell of a lot of wiggle room. For instance, I’m sure that many of the men on the street thought that “free exercise of religion” meant that they were free to impose their beliefs on other people. Many conservatives still believe that to be true today,
Oh, hey – does anyone here know the precedent? The constitution doesn’t say how many justices there needs to be, nor does it say that all seats must be filled.
Can the court continue to hear cases while one member short? We’re still paying them, for crying out loud. All the time the GOPranos are stalling, the court could be hearing cases with a 50/50 split instead of our recent 44/56 …
FDR tried to stack the Supreme Court back in 1937 (I think). He didn’t get away with it. Congress had a fit.
In cases where the court deadlocks, the prior (lower) court’s ruling HOLDS but does not set precedent in the case law.
The Constitution does say that the “president shall” make nominations for the Supreme Court that will be confirmed or denied by the Senate. So the preznit is obligated by oath to start nominating.
The constitution says the president “shall nominate,” and then there is “advice and consent,” and then the prez “shall appoint,” in that order. The word “confirm” does not appear. It could be argued that if the senate refuses to consider a nomination at all, it is consenting by default, and the president has the textual authority to appoint after waiting some reasonable period.
Hard to disagree with the chap in frame 2, who holds that the US Supreme Court seat lately vacated by Antonin Gregory Scalia should be «preserved as a bastion of original A-holism». After all, original arseholes make up at the very least a large minority of the US political class (witness the current campaigns for presidential nominee of the two so-called «major» political parties), and it would be unfair were they not to be represented on the nation’s highest court….
On another matter touching on the Court and how the US Constitution is to be construed, I note the following under Article III :
« The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.»
Whatever did those framers of the US Constitution have in mind when they wrote «good Behaviour» ?…
Henri