The passing of Justice Antonin Scalia of the US Supreme Court, on Saturday, Feb. 13, 2016. Here’s the in-depth obituary in the NY Times, by Adam Liptak.
Check out the link to NPR’s Nina Totenberg’s remembrance of J. Scalia. I liked how Totenberg explained some questions of concern – the work of the US Supreme will still continue (that’s a given), but if there’s a 4-4 tie on some cases, there won’t be precedential value for some cases beyond the circuits of the cases’ origins.
Slate’s Jordan Weissmann has some analysis on what might occur with some cases, including the affirmative action case (which is back at the US Supreme Court again). (I’ll also link Weissmann’s article on how the phrases “jiggery-pokery” and “pure applesauce” became part of the mythos of Scalia).
Slate’s Dahlia Lithwick on how J. Scalia captivated us, even when a whole lot of us may have vehemently disagreed with him. There really won’t be a US S.Ct. justice like him anymore (probably, anyway). Lithwick’s remembrance of Scalia is also worth a read.
Personally, I wish we didn’t have to be so partisan right away about who will replace Scalia, since his passing was so sudden and shocking.
But, of course, the debating went into high gear, with the Republicans already decrying the idea of any confirmation of a prospective nominee. President Obama is still president, and he has a job to do – pick a nominee for the Court. If the Senate won’t do its job… well, I guess it’s on them.
See here in the NY Times by Carl Hulse and Mark Landler about how the battle lines are drawn. And, as Lithwick noted, Obama has a lot of prospective nominees; it’s not like there isn’t a whole load of choices, even possibly moderate ones.
The Republicans might very well hit new level of ludicrousness here. We might want to revisit how this country handled, say, the failed nomination of Abe Fortas under the Lyndon B. Johnson administration, or the confirmed nomination of Anthony Kennedy under Ronald Reagan’s administration (under the final year of that administration, at that). But, we really haven’t had anything like this at all in modern history, at least nothing that might last a full year of a vacancy.
(NPR has an overview on the time frames and nominations of yore).
PBS NewsHour also has a nice review on how ugly this could get, without a hope of compromise (at least, nothing on the horizon, anyway).
It’s easy for me to blame the Republicans, from the armchair quarterback position. It’s not like I’m the one making appointments or confirming them. I did a search of Scalia in past posts on the triscribe blog, and as I said here in the post on Jeffrey Toobin’s book, The Oath, about how things could get messy (and that was my commentary about the nomination of Srikanth “Sri” Srinivasan to the U.S. Court of Appeals for the D.C. Circuit (later confirmed)): realistically and in a fair-minded way, I think it might even get hard to figure out who to blame in the long run (if, say, the President doesn’t pick a perfectly good candidate to make the Republicans look foolish here).
But, maybe it’s not about blaming anyone; maybe it’s about making sure that things get done and we don’t get stupid? Or is that wishful thinking on my part?
At least there isn’t total ugliness: let’s remember that J. Scalia and J. Ginsburg had a warm friendship, despite the political and jurisprudential differences. (I thought this article at vox.com by Dara Lind was interesting about that, in light of how uncivil our world is these days). People are people and maybe we could look to our better angels and how we can be good to each other.
Oh, well, on a ice cold Valentine’s Day, there is a lot of food for thought. Stay warm!