Scalia DEAD

[Carrie Mathison]

Scalia was never my favorite justice, but he was pretty obviously the best writer on the Court. The difference in his intellect, and say, for example, Sotomayor, is so breathtakingly jarring, that it's almost cringe-worthy to see. Listening to the difference between those two in oral argument is like hearing Chopin and then a 3 year old banging his hands on a Fisher Price toy piano.

 

The other thing that was great about Scalia is that he generally had a method. Unlike Thomas, he wasn't always consistent (for example, states' rights seemed to suddenly not matter when the question was marijuana laws, something that Thomas was more principled on). But he generally had a method (originalism). And whether you agree with the method or not, it certainly beats someone like Kennedy, who pretty much has no method other than "I do what makes me feel happy." Now, to be fair, Kennedy has been OK with me, since the end result of his decisions are more in line with my political stances than Scalia's would be (and in fact, I suspect Kennedy's politics and mine are the closest of anyone on the bench). But as an attorney, Kennedy would be extremely frustrating to practice in front of. Even Ginsburg would be better in some sense, since at least she's predictable and has a method too (i.e., liberal activism). As an attorney, you'd know what you have to do to win. With Kennedy, who knows. A bench of 9 Kennedys would be pure chaos, might as well flip a coin every case.

 

Losing Scalia means the Court is likely to become at least a little more liberal. It was 4-4 with Kennedy as the "who knows" vote, but now 3-4 in favor of the liberals, with Kennedy still at least as likely to vote for the liberals as the conservatives. Ultimately this means we'll get a 3-5 court with Kennedy still only giving the conservatives 4, when he votes in favor.

 

The biggest immediate impact will probably be gun control. DC v Heller was a 5-4, and you can bet the Dems aren't nominating someone that isn't pro gun control. That'll be the first thing that they try and push through the Courts, mark my words. So we'll probably see handgun bans come back in around 3-5 years or so.

 

As far as the politics go, I can't believe the amount of sheer butt hurt from Dems about the GOP's reaction. The Dems did the same damn thing in Reagan's administration.. it's politics, grow up and get the f-ck over it. Sure, the GOP is being obstinate, but so were Dems in 1987 when they more or less said they'd reject anyone Reagan nominated. After Bork (where by the way, it must be mentioned that Ted Kennedy went on a famously long rant on the Senate floor, basically saying Bork was Hitler), Kennedy (the justice that is), eventually had an easy vote, but this was almost 8 months after Powell resigned.. so to claim that a break in a full bench is some sort of weird, unheard of, unprecedented thing is complete horsesh-t. Also let's not forget that Obama himself opposed Roberts' nomination, which is ironic given that it was Roberts that ultimately saved Obamacare.

 

The gamesmanship will go on until it's no longer politically expedient, plain and simple. I think stalling tactics by the GOP really help neither side and ends up being a tie of sorts- the Dems can paint it as obstructionism, but the GOP can make up those votes by using the nomination as a lightning rod for their base and driving up turnout. Probably ends up even.

 

More interesting to me is the legal implications. Lots of important cases were heard this term, and it'll be interesting to see how these (inevitably) 4-4 cases impact the law. On one hand, they don't set precedent, but on the other, it sort of ends the debate in favor of the lower court's decision until a new case makes its way through the pipeline. Could end up really messy and chaotic.

[Guest El Chalupacabra]

 

 

Losing Scalia means the Court is likely to become at least a little more liberal. It was 4-4 with Kennedy as the "who knows" vote, but now 3-4 in favor of the liberals, with Kennedy still at least as likely to vote for the liberals as the conservatives. Ultimately this means we'll get a 3-5 court with Kennedy still only giving the conservatives 4, when he votes in favor.

I agree, but I think it is far more than "at least a little more liberal." I think it is a certainty. Whomever Obama nominates will be very far to the left. He's a lame duck, so he has nothing to lose. If the republicans shoot down the nomination, they look obstructionist. If they don't, Obama gets what he wants. The GOP is already walking back the stance of not even taking a vote. But let's say Obama doesn't get his nominee confirmed. So what? I think the next president will be a democrat, anyway, and whomever that president (probably Hillary) nominates, will be the same type as Obama's ideal candidate.

 

The biggest difference between Reagan/Bork and now is this: the country is more liberal that it was back then. Pick any hot button issue and the majority are going to come down more on a liberal side than they would have 30 years ago. This means that if the GOP blocks a liberal nominee, the GOP will be blocking a nominee that most people would actually support, and the GOP will come off as looking like they are blocking said nominee not because of a good reason, but simply because it isn't their nominee. People will hate that. The GOP has become a losing party, as well, and when it comes to social issues, and when your party's champions are Cruz or Trump who only speak to the fringe right, then you are talking about a lost cause. So, ultimately, any filibustering the GOP does do will be futile, and the dems will get their way sooner or later. The result will be repubicans will end up looking like the asshat obstructionists they are.

 

 

 

The biggest immediate impact will probably be gun control. DC v Heller was a 5-4, and you can bet the Dems aren't nominating someone that isn't pro gun control. That'll be the first thing that they try and push through the Courts, mark my words. So we'll probably see handgun bans come back in around 3-5 years or so.

 

Agreed, but that is also a given. I also see further magazine and rifle style restrictions enacted, and then upheld if challenged, too. But I think the topic of immigration and civil rights, will certainly be as likely if not more than likely to be impacted as gun control. Ginsberg is basically going to be the one guiding the Supreme Court now, and I think it can be said if she has a pet cause, it would be that of being more inclusive, and anti-discriminatory. This will have a direct impact on anything from being more liberal on immigration policies (good bye state anti immigration policies, hello drivers licenses for undocumented migrants), to more aggressive support for any civil rights related topic. Finally, I think the topic of abortion will certainly come up, as well. In fact, I see abortion becoming painted as more of a civil rights issue for women than a right to life issue.