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Monday, February 15, 2016

Antonin Scalia

For a presidential race that is already a raging bonfire, the death of Associate Justice Antonin Scalia is like throwing on a bunch of firecrackers. His replacement will dominate the news for the next few months.

More on that in a minute. First, the man himself. For those who knew him, he seemed like a gregarious and good egg. From the other side of the political spectrum, no less than Ruth Bader Ginsburg counted him as a close personal friend. He was witty and a great writer and, supposedly, a great legal mind. All that beings said, I am sorry he's dead, but I am glad he is not on the court anymore. Some say he was the most towering Supreme Court justice of the last generation. They are right--he sought to keep this country in the dark ages.

Scalia, who was an afterthought when confirmed in 1986 (the Democrats' ire was then focused on William Rehnquist, appointed to replace Chief Justice Warren Burger, Scalia was to replace Rehnquist) with no opposition, quickly became the voice of conservatism on the court. As liberal lions like William Brennan and Thurgood Marshall left, Scalia's cranky dissents became majority opinions, and it was clear that his dogmatic Catholicism had sway over him. He called himself an "originalist," one who sought to understand what the framers had in mind, and to hell with what has happened in the 200 years since then. But he played his card only when it suited him. His decision in District of Columbia v. Heller is surely not what the framers had in mind for guns--they were dealing with single-shot muskets and militias, not gangs with automatic weapons.

Originalism, it seems to me, is the legal version of religious fundamentalism which, when forced down the throats of others, whether by Christian, Jewish, or Muslim zealots, is always a bad thing. The Amish, for example, decide not to use anything that is not in the Bible. But at least the Amish don't go around telling everybody else to think the same way. Scalia, as one of nine on the Supreme Court, was a kook with amazing power, made greater by his larger-than-life persona.

It is my opinion that Scalia was the worst kind of judge--he made a snap decision on a case, and then wrote a dazzling opinion working backwards. This often included contradicting himself. He was anti-abortion, anti-LGBT rights (he gave us the phrase "gay agenda"). He was pro death penalty, pro torture, and anti-affirmative action. One of his last "did he say that?" moments was during oral arguments: “One of – one of the briefs pointed out that – that most of the – most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re – that they’re being pushed ahead in – in classes that are too too fast for them.” I'm glad we have these lesser schools so the dumb blacks can get college educations.

Scalia was the delight of the far right because he was charming and a good writer, but they say Hitler wasn't a bad painter, either. I don't know if Scalia personally killed anybody (I doubt it) but he may have contributed to a suicide or too when he confronted a gay student at Princeton, and equated anti-sodomy laws with those outlawing bestiality and murder. He used clever, folksy phrases like "jiggery-pokery" and "argle-bargle" to criticize others' opinions, and maybe he was right--maybe he was the smartest guy in the room. But he was also the coldest heart in the room. They say he died of a heart attack. He had one?

Now, as to his replacement. The Constitution says that the President, with the advice and consent of the Senate, shall appoint Supreme Court justices. It doesn't say except for in the last year of a term, or in an election year. However, the Senate Republicans, before Scalia was even put in the ground, decided that they would block any nominee coming from Obama. Mitch McConnell, the turtlelike Majority Leader, said, with all apparent seriousness, that the "American people should have some say" in the next Supreme Court justice, and it the choice should be made by the next president. He seems to forget that the American people did have their say, back in November 2012, when Obama won an easy victory. Elections have consequences.

Presidential candidates Ted Cruz and Marco Rubio, who presume they will be the ones to b the next president, have echoed this. More Republicans are falling in line. Obama has announced he will do his Constitutional duty and put forth a nomination in due time. This is all making for a fascinating and frustrating example of our broken democracy.

In the long run, Democrats, don't be disheartened. As long is Scalia is not replaced, any four-four ties will revert to the lower court decision. The case involving public sector unions, which looked dead as the dodo, is now likely to be a tie. The district courts are a majority of Democratic-appointed justices (that's what happens when the sixteen of the last twenty-four years have had a Democrat in the White House). Any ties will likely be liberal victories.

Also, this is a public relations disaster for Republicans. Of course, they don't care, and already are blaming the media for hyperbolic language. But Obama can take one of two courses. First is the compromise candidate, the one that Republicans, by refusing to even consider, are made to look foolish. A couple of these are Sri Srinivisan, who was only two years ago approved 97-0 to be on the D.C. Court. Another is Jane Louise Kelly, approved 96-0, and a favorite of Republican Judiciary Chairman Charles Grassley's. I'd love to see Grassley explain why he won't vote for her.

Obama's other option is the zero-fucks-to-give one. He can appoint someone the Republicans would never approve, like Attorney General Loretta Lynch, then sit back and let a perfectly-qualified black woman get disrespected during the election, angering both blacks and women and making her a campaign issue. Hillary Clinton or Bernie Sanders can make ads about whomever the Republican nominee is: Trump, Cruz, Rubio, with the words, "Do you want this man picking the next Supreme Court justice?"

McConnell really screwed the pooch on this thing. Before Obama even mentioned a replacement he put up the big stop sign, furthering the view that Republicans are obstructionists who create rules out of nothing (what is this "time-honored tradition" of not appointing justices during election years? Time honored since Saturday). They could have accepted an Obama appointment, held hearings, cast a vote, and rejected it, taking up the summer, so Obama couldn't replace anyone. Instead they look like big babies, and risk it backfiring on them. The next president is most likely to be named Hillary or Bernie, and there's a good chance that the senate will be Democratic, which means that the next justice, provided Obama does not get his choice, will be an extreme liberal, like Goodwin Liu, or even Barack Obama himself.

Antonin Scalia, good bye and good riddance.

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