Scalia and political possibilities, by Phillip Larsen [Guest Post]

Today I welcome back Phillip Larsen with some political observations. His opinions may or may not reflect those of the management.

The management will never tell.

Phill does a great job hosting debate on Facebook, always making thoughtful and factual comments. Be looking for his soon upcoming podcast–it’ll be mentioned here.

Larsen Scalia Analysis:

On my personal Facebook page, and Twitter, I’ve shared a couple of stories quick posts and stories about Justice Scalia over the weekend, but I wanted to wait until today to give a full breakdown…because I’m a human being.

First: There is no replacing Justice Scalia, because there will not be another justice within the same stratosphere of Justice Scalia.  Personally, I didn’t agree with some of the views that Scalia held, but I always respected his opinions of being based both in logic and the constitution.  There is a story from David Axelrod (former Obama Communications Director) that Scalia lobbied for Kagan to be the next Supreme Court Justice, because she was smart.  If you are a fan of intellectual honesty and exposure to a thought out, but opposing viewpoint, then you are sad that Scalia has passed away.  Scalia was not intimidating by thought out opposing viewpoints.  He welcomed them.  In a room full of smart people, he was one of the smartest.

Second: For the comedic and entertainment value alone, his dissents are worth reading.  “Pure Applesauce” and “Jiggery Pokery” are now a part of the permanent judicial record.

Third: (and probably the most important).  Justice Ginsburg is as liberal as Scalia was conservative.  They had knock down drag out disagreements, and that was born out of their opinions from the bench.  I can imagine that one rolled their eyes at the other as they read each other’s writings.  Yet, they were the best of friends, spending New Year’s Eve together, going to the opera together, and being a part of each other’s lives. Oh, to be a fly on the wall at those dinner conversations.

There are countless other stories from their relationship, and the greater relationship of the court.  There is another interview from when Stephen Colbert interviewed Justice Breyer about the relationship the justices have with each other, and that interview contains similar sentiment.

Long story short, we’d all be wise to learn from SCOTUS on how to disagree…and disagree passionately…without being disagreeable.  We would be wise to recognize who is in the opposition, and who is an enemy.  The difference between opposition and enemy is equal to the difference between enemy and friend.  Ginsburg and Scalia have definitively proven that.

Political implications: 

The most intriguing cycle of my lifetime has just been turned up to 11.  With this one event, the compositions of all three branches of government are affected.

For each individual candidate, it is unclear on what this means.  Generally speaking, I would think that it would hurt Trump and Bernie more than the others.  Trump is on record saying that he thought his sister would make a “wonderful” justice, but in the last 36 hours, that has been walked back.  Supreme Court nominations trend the conversation away from insurgents and radicals.  People (generally) want the court filled with the least crazy people they can find, especially SCOTUS.  Insurgents and radicals don’t trend toward nominees that are measured and reasoned.

Ted Cruz seems like the most volatile of the candidates, in the sense that it has the broadest range of outcomes.  Cruz clerked under Chief Justice Rehnquist, so there is already a connection to SCOTUS.  Cruz is also on the Senate Judiciary Committee.  If Cruz is still in the game when this process starts, it could pull him off the trail, or risk the focus of the country on his empty committee seat.  Rubio could be helped or hurt by virtue of the fact that he is a Senator.  That is dependent on a number of factors both known and unknown.  Rubio is not on the Judiciary Committee.  This will marginally impact the remaining governors and Dr. Carson.

Most of the implications though lie outside of the presidential race.  Scalia’s death has more effect on the future makeup of the Senate, and Obama’s legacy.  The current Senate has 54 Senators who are Republicans, and 46 Senators who are either Democrats, or vote most often with the Democrats (2 independents caucus with the Democrats).

2016 will see Republicans defend 24 seats in the Senate, and Democrats defend 10.  To flip the Senate, it would require a net gain of 5 seats.  The Democrats have 2 seats that are being considered “endangered”.  Summarizing: this means that the road for the GOP to hold the Senate was already tough by virtue of the cycle and the fact that this is a presidential year.

If Obama nominates a candidate that got either overwhelming or unanimous consent from the Senate on a lower court appointment, this would put pressure on the GOP.  Majority Leader McConnell and Senate Judiciary Chairman Grassley are already on record of saying that they are opposed the premise of a nomination (What the candidates have said in regards to whether or not Obama should send a nominee isn’t much of a consideration, of course they are going to say they want to nominate a Supreme Court Justice).  This will further the narrative that the Senate GOP are just a bunch of obstructionists.  It will be painted that the GOP senate has a personal vendetta against the president, thus creating him as a more sympathetic character.  Obama’s current job approval is ~46%.  Compare that to W. Bush’s approval in 2008 where he didn’t get above 35%.  Playing this game could get Obama over 50%, which would be bad news for the GOP in November.

If Obama goes for the gusto and nominates Ruth Bader Ginsburg’s ideological replacement, it will give the GOP enough cover to delay the process until after next January, give a body blow to the chances for the Democrats to keep the White House and flip the Senate.  Obama’s legacy will be a healthcare law that never got over a 50% approval rating, being at the helm at one of the most divided times in the country since the Civil War, and capping it off with an exercise of inflating his ego, political expense be damned.

This is the very definition of “big boy” high stakes politics, which could only be surpassed by a high profile resignation or impeachment.  The butterfly effect of the next 4 months between Obama and McConnell has a high probability of reverberating over the next decade.

Facts that may only interest me:

  • Nominating a Supreme Court Justice in an election year is not unprecedented. Kennedy was nominated in late November of ’87, and confirmed in ’88.  FDR nominated Murphy in ’40, and Hoover nominated Cardozo in ’32.  All three of which were confirmed by the Senate.
  • Playing the shoe on the other foot game: If Ginsburg would have died in 2008, Republicans would have tripped over themselves to have W. Bush nominate her replacement, and Democrats would have cried foul.  I know this, because Senate Democrats vocally opposed any appointment of Reagan’s in ’87 (before Bork was nominated), and that was a year and half before the elections.  There is “no holier than thou” in this drama, so drop the moral indignation.
  • Nominating district or appellate judges in the 8th year of a two term president has been done by W. Bush, Clinton, and Reagan…so all the time. The statement that presidents nominate Senate confirmable judges in an election year (said by multiple GOP candidates) is factually inaccurate.
  • The longest vacancy for a justice has been 391 days in 1970 after Nixon’s first two nominees were denied. There are roughly 340 days left in Obama’s term.
  • Whatever decisions that were pending, where Scalia was an influential character (either casting the 5th vote, or writing minority/majority opinion) they are no longer valid, and will potentially have to be re-heard during the next session.
  • If Scalia’s vacancy isn’t filled by the next court session, any 4-4 SCOTUS decision reverts back to a lower court decision.

Thanks for reading!


Marty Duren

Just a guy writing some things.