Justice Antonin Scalia was found dead at a resort in Texas this morning. I assume it was a heart attack. He was 79 and he never looked particularly healthy to me. It’s obviously a personal tragedy for those who knew and loved him. I’m not one of them. To me, he was just a really powerful man who did great damage to our country. Not that he was always wrong, but his ideology affected his rulings in a more grand way than most recent judges. And the last several years he wasn’t making a lot of sense — on or off the bench.
My concern is his replacement. Because other than raising Scalia from the dead and nominating that zombie to the Supreme Court, I don’t see the Republican controlled Senate allowing Obama to appoint anyone at all. And you know Obama: he’s never been one to nominate liberals to the Court. As I’ve noted many times, the Court used to have 5 conservatives, 3 moderates, and 1 liberal. Now it has only 4 conservatives. The Republicans will try to stop any replacement, hoping that they control the White House starting next year.
Think about the history here. Obama got to replace two liberalish justices with two moderate ones. And even that was treated by the Republicans as though he were staging a violent coup. The idea that Obama will get to replace a conservative firebrand like Scalia will be seen as totally unacceptable. And so they will try to avoid doing anything at all.
Republican’s Dangerous Moment Regarding Scalia
But here’s the interesting thing: this is a very dangerous game for them. If they allow Obama to put another moderate on the bench, they might be lucky. If Clinton is the next president, she will almost certainly have a majority in the Senate. And if necessary, the Democrats will be able to abolish the filibuster altogether, and allow Clinton to put the first truly liberal judge on the bench since her husband was in office. Do they really want to take that chance?
Well, the answer is clear: yes. They will definitely take that chance, because the Republicans are the “all or nothing” party. I look back with great glee to when, after winning re-election, Obama told Boehner, “You should have taken the deal I offered you back then.” That was the deal where Boehner claimed to get 98% of what he wanted and still turned it down. But this does make it all the more important that the Democrats win the presidency this year.
Think about this: with another moderate on the bench, the Court could hear another case that would allow it to reverse Citizens United. We would back away from the coming reverse on Roe v Wade. Scalia’s death could hearken much better times for millions of people in the United States. On the other hand, what is the worse case scenario? The Republicans don’t allow Obama appoint a new judge, and we get someone just as bad as Scalia. So this is a very hopeful day for liberals and a terrible day for conservatives.