Antonin Scalia and the Conservative Desire for Constant Do-Overs

Antonin Scalia - Nazi OfficerThe other day, I was working for a hate radio fan and I got to listen to hours of conservative pundits go on and on and on about how it was totally unacceptable for Obama to nominate a replacement of Antonin Scalia. It’s amazing to listen to these guys, because they are amazingly angry — 100% of the time. I can see why Rush Limbaugh is such a star. Compared to these freaks, he is nuanced and smart. But all of them think that the next president should nominate a replacement and their reasons are all the same: there must always be conservative do-overs.

It isn’t a surprise. This is the way it is among the power elite. Look at George W Bush. He was useless at business. But given enough chances, he eventually made his fortune — just as anyone else would. I’ve always found it hilarious to hear conservatives talk about how people should be rewarded for “taking risks.” These people don’t take risks. There is no risk of failure if you will simply be given another chance. And so now it is just accepted among conservatives that they too should get do-overs.

Think back to George W Bush’s second turn. The only reason Sandra Day O’Connor retired from the bench was because she got assurance from William Rehnquist that he wouldn’t retire. And then he died. So Bush got the opportunity to replace two judges, when he would have only gotten one, had Rehnquist just died a few months earlier. But the Democrats didn’t demand that they get another bit of the apple — hoping they would win the next election. It doesn’t matter if Rehnquist had died at the end of his term. And it wouldn’t have mattered if it had been the liberal Ruth Bader Ginsburg who died.

Scalia Did the Same Thing!

This isn’t new at all. Last year, I wrote an article, Conservatives Want Obamacare Do-Over. In that I discussed how Scalia and Alito were making points about King v Burwell that were effectively asking for a do-over. They were saying, in effect, “There are problems in the law and Congress can fix them.” So what they were really saying is that the Democrats should have to pass Obamacare twice. That the Republicans should get a do-over. But it wasn’t just any do-over. It was a do-over in an environment where Obamacare was doomed. It’s like half a team badly injuring itself to score a final goal, and giving the opposite team the opportunity to play the game over against the half a team.

I know that if things were reversed — a liberal had died and a Republican was in the White House, then conservatives would be making exactly the opposite argument.

The same reasoning has gone on with regards to the Voting Rights Act. In that case, the Supreme Court noted that all Congress had to do was effectively re-litigate the Voting Rights Act. This is because it is always right and proper that liberal policy should have to be defended again and again and again. Conservatives should get endless chances to stop any kind of legislation they don’t like. It just wouldn’t be fair not to give them a do-over. And another. And another.

When I write about procedural politics, I try not to be like Charles Krauthammer. As you may remember, he was totally in favor of getting rid of the filibuster when the Republicans were in the majority. But later when filibuster abuse was much worse and the Democrats were in the majority, then he was totally against it.

I know that if things were reversed — a liberal had died and a Republican was in the White House — then conservatives would be making exactly the opposite argument. I believe if things were reversed like this, Democrats would be in despair, but they wouldn’t be arguing that there was some kind of historical precedent. It’s just ridiculous. These people don’t even try to make sense. They just know that the Republicans should be given another bite at the apple — a do over. We should all just pretend that Scalia didn’t die.

At the same time, let’s assume that Clinton is the next president of the United States. Well, these people will have been given their do-over. But they will want another. They know they can’t argue that Clinton shouldn’t be allowed to replace Scalia. So they will argue two different things. First, some will argue that the Justice must be conservative, even though they had no problem when the moderate (by today’s standards) Sandra Day O’Connor was replaced by a radical. Second, others will argue that 8 members of the Supreme Court is just great. After all, it was 6 when it first started.

The main thing is that nothing will satisfy them. It was fine for Obama to replace liberal justices with moderates. But there is just no way that they will accept Scalia being replaced with another moderate. They want do-overs until they get another George W Bush in the White House to replace Scalia with someone even worse.

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About Frank Moraes

Frank Moraes is a freelance writer and editor online and in print. He is educated as a scientist with a PhD in Atmospheric Physics. He has worked in climate science, remote sensing, throughout the computer industry, and as a college physics instructor. Find out more at About Frank Moraes.

17 thoughts on “Antonin Scalia and the Conservative Desire for Constant Do-Overs

  1. Be less ill. Ill sucks.

    For your amusement, here’s the author of “Injustices” on how completely f***ed up the Court will be with eight judges for the foreseeable future:

    http://thinkprogress.org/justice/2016/02/13/3749464/the-simply-breathtaking-consequences-of-justice-scalias-death/

    I’d never thought in any depth about all the things the Court does every session, but this made it clear. There are very different types of Court rulings:

    1) Challenges to local laws which, if upheld, will invalidate those laws nationwide.
    2) Challenges to local laws which, if rejected, will allow those local laws to stay on the books — meaning other localities may pass similar laws if they choose.
    3) Challenges to federal laws. This is the mind-blowing one. If lower court “A” rules this federal law is unconstitutional and lower court “B” rules it is, then what happens? Is that federal law only enforceable in the jurisdiction of court “B” but not “A”? This is why we must have a Supreme Court with an odd number of justices in such cases.

    That last brings up another matter — recusal. Clearly a judge with conflicts of interest must recuse themselves. Yet if the case is one which involves a national law, and a judge recuses, then you can have a split decision. Then which lower court’s ruling stands?

    Maybe we should have some tiebreaker, like with Senate votes. But that’s probably not constitutional. It’s all quite confusing. And Republicans don’t care, because making government work in any kind of democratically accountable fashion is not exactly a priority for them.

    • Yeah, I read it. As soon as anything happens on the court, I go to see what Ian Millhiser has to say. But it wasn’t all bad news. But it does do something that conservatives really want: turn us into a confederacy. But I don’t think that will last.

  2. There are times that yes, there should be a do over either in court cases (Plessy v Ferguson comes to mind) or laws that should have not passed in the first place (all of Jim Crow.) But those situations are fairly rare. Generally speaking if a law like the VRA passes in overwhelming numbers with the extensive history showing that there is a problem that needs to be fixed, there is no reason to relegislate something.

    Not that the right wing in this country agrees with it-they always think they have to be opposition to the left regardless of how insane it makes them.

    • They don’t want a do-over in court. They want the court (or anything else) to provide them a do-over. They want the Democrats to get their laws past 2-3-4 however many times it takes to block them. Because they are truly horrible people.

      • They really do think that it is their country only and we are just interlopers instead of fellow citizens who have the same rights they do.

        It goes back to that Daily Show piece that John Oliver did at a tea party rally and the view that “I don’t have representation unless my rep. agrees with me 100%.”

    • Not to butt in — but that’s kind of the problem of empire, isn’t it? Your thoughts? You are far more skilled at addressing this sort of contradiction between “large centralized organization is more efficient at addressing overarching problems” versus “large centralized organization is more remote and therefore even when it deals with problems it has less legitimacy to the gal/guy on the street” than most of us are!

    • It’s possible states like Mississippi would liberalize faster without the big bad federal government as a foil. I’d have to read the article. Too tired now. I’ll try to get to it tomorrow. No promises.

  3. There are many people with whom I disagree strongly, but whose points of view I can at least understand. Not these.

    How can people maintain any self-respect with such an unprincipled attitude? See, I just can’t imagine myself pushing for rule enforcement when the rules are favorable to me, then saying that the rules are tyrannical when they are opposed to my interests. And if I did, and it was pointed out to me, then I would withdraw one or the other, immediately and without argument. Otherwise I would be a Bad Person. I and others deserve better.

    Probably everyone is a little hypocritical some of the time, but rarely so publicly and obviously. This is intractable; we are dealing with defence of the indefensible. I used to believe that eventually principled conservatives would say ‘enough is enough’ if this clearly-unprincipled behaviour continued. It has happened in Canada. But very few of these principled conservatives have emerged in the States, and the contemporary Republican Party, at least the Federal, is surely a mass of pure tribalism. Scary.

    • I will again recommend John Dean’s Conservatives without Conscience. I think that is a lot of it.

      But what you are describing is just a liberal mentality. Sometimes it is helpful to just know that you are right. But as a liberal, my natural tendency is to be constantly on the lookout for cracks my my intellectual edifice. I even try on conservative ideas and try to make them work. In the old days, it was easier. Today, they fall apart so quickly it is not really worth trying.

      I do think in Scalia’s case, he was more consistent in his 50s. But as he got older, he became nothing but a partisan. I can’t imagine that any liberals on the Supreme Court listen to liberal radio hosts. But we know that at least a couple of conservatives on the court listen to conservative radio hosts. What does that say about their intellectual maturity? We all know that judges have ideologies that guide their decisions. But when Rush Limbaugh is guiding your decisions, it’s a much bigger problem. Also, it shows that you don’t think about the issues of the day in a deep way. Rush Limbaugh doesn’t provide a deep analysis. He provides talking points from The Wal Street Journal editorial page. And Scalia’s favorite TV show used to be 24. What a simplistic view of the world!

      “I did not mean that conservatives are generally stupid; I meant that stupid persons are generally conservative. I believe that to be so obvious and undeniable a fact that I hardly think any honorable gentleman will question it.” –John Stuart Mill

      • Forgetting Mr. Election-Rigger, what about the younger conservatives moving up (in smaller numbers than before apparently). How can a life of constant hypocrisy, of constant soul-soiling, have any attractiveness to a moderately intelligent young person who is not a sociopath?

        I’ve read The Authoritarians and obviously this group forms the core of contemporary ‘conservativism’. But it can’t be the majority, and most conservatives, surely, have consciences. So how can we understand the presumed majority who are not psychopaths or authoritarians? Social pressure? I’m not comfortable believing that any particular group of people is fucked up in some specifiable way.

        I guess Orcinus had a series on this. How can we invite these people to be human?

        • I think the best way to think about these people is to look back at Arnold Schwarzenegger’s speech at the 2004 RNC. There are a lot of people who are deeply naive about what America is. They still believe what they were taught in grammar school. And so they see liberals as these people who are just trying to tear down what is a source of good in the world. And let’s be honest, Democrat or Republican, our government does everything it can to hide the reality of what we do from our people. The secret bombing of Cambodia was not secret to the Cambodians; it was secret to the Americans. And that goes for domestic policy too. Most people don’t know just how much the system is rigged for the rich. And they don’t know at all how it is rigged for the whites.

          As for those young people, I really don’t know. When I was an undergraduate, I had occasion to interact with the business majors. I was a physics major and it was all part of my plan to save the world. But these guys just cared about making money. Now if they had been kids who grew up in poverty, I could understand that. But they weren’t. They were generally upper-middle class kids who wanted to be rich because that was the game of life. Whoever dies with the most toys wins and all that. I don’t think they were psychopaths. They were people responding to the prevailing notion of what civilized people do. Ayn Rand used to say that we needed a revolution of thought. Well, we got it. Now we need a counter-revolution. Because what we think is all screwed up.

          • Thing is, I don’t see consistency as a specifically liberal virtue.

            ‘Back in the day’ I’d hear the profs talking about the old-school guy (always a guy). “He’s conservative, but he’s got integrity.” In fact I witnessed conservative profs being fair to staff and students when they could have played the petty hardball game. Dr. ‘women belong in the home’ – never actually discriminated against women. Dr. ‘white Europeans are the best’ – never discriminated. They obeyed the norms of the University, over their personal beliefs (and they complained to me privately, me being the only far-left student).

            So what I’m on about here – not so much the soul-crushing quest for profit, not the selfishness, nor even the ambiguous inconsistency – no, it’s the naked, indefensible, unambiguous inconsistency. Just incompatible with a grown-up, defensible personal integrity. Politicians usually can’t get away with it in the civilized parts of Canada but it’s de rigueur in the States.

            • Exactly what I think changes day to day. The truth is that conservatives are a diverse bunch. But at their best, conservatives are naive. But in my experience, these conservatives tend to become liberals after they grow up.

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