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[flagged] U.S. Supreme Court Justice Antonin Scalia has died (nytimes.com)
327 points by cgtyoder on Feb 13, 2016 | hide | past | web | favorite | 359 comments

I usually disagreed with Scalia, but I have tons of respect for the man. He's always struck me as one of the best examples of the idea that two intelligent, educated people with reasonable minds may legitimately come to different conclusions about the same set of facts.

I also found when reading transcripts of oral arguments that Scalia was really terrifically funny pretty often.

Once, I was doing some computer repair work for an attorney who was interviewing Scalia extensively for a book about Supreme Court oral arguments. It was late in the day, and all the other staff were gone.

The phone rang, and the attorney asked me if I would answer it since I was close, and tell whoever it was that he was busy. I picked it up and the voice on the other end said, "let me speak to x." I said he wasn't in. The voice says, "I know he's in. Let me speak to him please." I tried to deflect again, and he finally says, "This is Justice Scalia. I guarantee you your boss wants to talk to me."

Without thinking I piped up and said, "Oh, Justice Scalia! You won't believe who just walked in the door! Just a second."

Apparently Scalia thought that was hilarious and told the guy to pay me extra for popping off to a Supreme Court justice like that.

Edit: as a quick sidenote, I'd encourage everyone to actually read the oral arguments and the full opinions for important cases as they come up. The media is absolutely terrible about over simplifying or just straight up not getting the issues correct.

You will find that there is a hell of a lot of thought that goes into opinions, and there is much less predetermined ideology than the way these things often get painted.

>>> I usually disagreed with Scalia, but I have tons of respect for the man. He's always struck me as one of the best examples of the idea that two intelligent, educated people with reasonable minds may legitimately come to different conclusions about the same set of facts.

I didn't have much respect for the man or the justice. As a justice, his interpretations were always based on a selectively warped view of history. As a man, he issued a steady stream of insults against all sorts of people. Specifically, he said of lawyers like me (the not-harvard crowd) "You cannot make a purse out of a sow's ear". And he regularly talked down to anyone he though not ivy enough to share the room. That sort of disrespect isn't forgotten. Nobody should ever take joy in the death of another, but I will not miss his voice on the court.

I won't comment as to Scalia's version of history, but I will provide more context for the "sow's ear" comment:


This comment referred specifically to getting a clerkship, and he also admits one of his favorite clerks went to Ohio State.

In general it seems, he had a lot of bark, but no real malice, otherwise why would he be good friends with other justices, including of all people Breyer and Ginsburg?

>>but no real malice

Watch his many interviews re torture. The guy was no humanitarian.

> Specifically, he said of lawyers like me (the not-harvard crowd) "You cannot make a purse out of a sow's ear".

According to the NYT source, he actually said, "you can’t make a sow’s ear out of a silk purse", referring to the Harvard crowd as silk purses but not to non-Harvard lawyers as sow's ears. He seems to be referring to his disdain for the quality of the education at the most selective law schools while complementing their qualifications of their students.

It's an expression he has used more than once. I first heard it when a law student asked him whether she should bother applying for a clerkship given she hadn't gone to harvard. In that instance the sows ear was the asking law student.

> I first heard it when a law student asked him whether she should bother applying for a clerkship given she hadn't gone to harvard. In that instance the sows ear was the asking law student.

That's a very mean thing to have said about her and her whole class. I'm sorry you experienced that.

Maybe it's time to let it go.

Did you deliberately reverse the quote?

No. I heard it in person during my first year of law school, which would have been long before 2009. The guy talked constantly, which isn't surprising given the job. Not every word appeared in NYT articles shortly thereafter.

Oh, I see. I thought I was missing something. That was lame of him.

I used to feel like that - that Justice Scalia was an thoughtful, intellectually honest justice that I profoundly disagreed with simply because I found his foundational principles alien and wrong.

Then came Eldred v. Ashcroft. Larry Lessig, argued the case before the Supreme Court. In his retrospective on the case [1], Lessig describes how he built his argument on the Lopez/Morrison line of decisions which said that Congress's enumerated powers had to be interpeted so that they are structurally limited. In Lopez/Morrison, Scalia agreed with the argument that Congress can't regulate whatever they want simply by declaring it to be related to interstate commerce. Lessig's argument in Eldred was that a similar structural limit should apply to the copyright power: Congress shouldn't be able to establish effectively unlimited copyright "on the installment plan".

I want to be clear what I am claiming here. I'm not saying Scalia was intellectually dishonest because Lessig lost. I'm claiming it because (as described in the retrospective) the Court didn't even address his core argument. Even if Ginsburg didn't want to include it in her majority opinion (perhaps because she didn't agree with the Lopez/Morrison decisions), Scalia could have explained why Eldred was different in a concurrence, but he didn't. That's where I see the intellectual dishonesty.

[1] http://www.legalaffairs.org/issues/March-April-2004/story_le...

This isn't really directed at you, but it seems like a good place to address the crowd.

I didn't say the man was a saint or that he was always perfectly intellectually honest all the time. No one is.

But I think was a lot more of those things than he often got credit for. Some of you seem to forget that people who have different opinions than you are also people. And as such, they have the right to try to get those opinions represented. Scalia's attitude towards torture was repulsive in my opinion. But he represents the attitudes of a very large number of real people.

It's not like he's some kind of singular monster or something.

As for saying crass things, giving people shit when maybe he shouldn't have, well, we've all done that too.

I figure if there's one day you can cut a guy a little slack, it's the day he dies. Sheesh, if you can't find one tiny little positive thing to say about the man, I suggest that you aren't even trying. It's not like the man was pure evil.

I further suggest that you say nothing at all if you honestly can't think of anything good about him.

The vitriol in much of this thread is utterly tasteless and shameful.

Glenn Greenwald:

“This demand for respectful silence in the wake of a public figure's death is not just misguided but dangerous. That one should not speak ill of the dead is arguably appropriate when a private person dies, but it is wildly inappropriate for the death of a controversial public figure, particularly one who wielded significant influence and political power.”

“...the key point is this: those who admire the deceased public figure (and their politics) aren't silent at all. They are aggressively exploiting the emotions generated by the person's death to create hagiography. [...] Those gushing depictions can be quite consequential, as it was for the week-long tidal wave of unbroken reverence that was heaped on Ronald Reagan upon his death, an episode that to this day shapes how Americans view him and the political ideas he symbolized. Demanding that no criticisms be voiced to counter that hagiography is to enable false history and a propagandistic whitewashing of bad acts, distortions that become quickly ossified and then endure by virtue of no opposition and the powerful emotions created by death.”

Source: http://www.theguardian.com/commentisfree/2013/apr/08/margare...

If you want to attack a person based on his professional life, you are free to do that. But I don't think that's appropriate here. Maybe take it to Reddit or Facebook or Twitter or something?

I'm not demanding that people shut up for all eternity and never criticize the opinions Scalia wrote. In this context, I think the Greenwald quote is a strawman. I've already made it clear that I disagreed with Scalia on many points.

But attacking a person on the day that he died is tasteless no matter what you think of him or her.

And I don't think there's really much to attack Justice Scalia on in terms of his personal life anyway. He was a close personal friend of the Notorious RBG, a devoted husband to one wife, Maureen, and father of 9 children.

Is that propagandistic whitewashing? No. It is not. Some people value it when politicians and judges live the life they assert publicly is the best possible life.

I don't want that life and don't agree that it's the best. But the man put his life where his mouth was.

The idea that a judge, or any Justice is just the sum of their soundbites regarding only the most highly media-ized opinions is truly preposterous.

Yes, I think Scalia came down on the wrong side of Citizens United, and also Obergefell. And there are others that I could cite where I disagree with him.

But there are many I could agree with, like Smith, where he strongly opined that the law needed a clearer use of plain language, and in fact, Scalia was one of the first on the Court to advocate plain English in legislation, contracts, and Court briefs.

I've edited hundreds of hours of video interviews with the Court on the topic of plain English in the realms, and it is clear to me that Scalia was the driving force that literally changed the Court's opinions on acceptable prose.

His influence on the language of the Court alone should win him a medal of some sort. Because this is good for everyone, not just partisans who happened to appeal to his politics.

Legal scholars and attorneys all over the country will be parsing and analyzing his jurisprudence for decades to come. There is no danger that people are going to stop thinking about the ways in which he was right or wrong.

Suggesting that people who ask to give it a day, or parse the decisions instead of the man is not misguided or dangerous. Greenwald is way off base here.

What I'm suggesting is that, like many of us, Justice Scalia was a man acting in good faith, serving his country at one of the highest levels. Regardless of how much you agree or disagree with his decisions, he was a human being and deserves a little respect.

And this is coming from someone who disagreed with him often.

The man was a human being. Perhaps wrong sometimes. Perhaps right sometimes. He does not deserve personal vitriol on the day of his death. Unless he turns out to be Hitler in disguise, I'm not sure he deserves personal attacks at all.

That is rich, considering the source.

With respect, this appears to me a content-free reply. Greenwald is making a serious argument in the article I quoted from. Are you being dismissive of the argument or (as it would appear) the source, the author. If the latter, maybe you can more fully explain why and also why dismissing the source dismisses the argument.

I'm suggesting that Greenwald has no problems with hagiography when the subjects are politically useful to him.

I'd love to see these people dealing with their every action criticized through their whole life. Now when he dies they can't stop piling on.

It's one thing to not speak ill of the dead, but you're complaining about a judge having their judgements judged.

The key distinction is between criticizing Scalia's judgements, which many if not most of us would, and denouncing him a human being. The latter is a problem on HN because it rapidly degrades the discourse below the level we hope for.

I also think that a little self-observation is enough to reveal (a) the rather ugly motives behind that mechanism, and (b) how we would each consider it unfair in our own case.

> And as such, they have the right to try to get those opinions represented.

At best, Scalia represented the opinions of an opinionated and influential but not truly representative minority of the population.

Now - there's nothing in the constitution that says explicitly that the Supreme Court should be a representative body.

But the political reality is that judges aren't picked for the SC because they're the best legal minds of their generation - they're chosen for their legal minds and for their politics.

IMO, in a representative democracy, the political values of the judiciary and especially of the SC should be broadly similar to those of the population.

Did Scalia bring the SC closer to the values of the median population, or did he move it away from the median?

This seems to make sense but it is the Supreme Court's responsibility to drag society forward when society's inertia is at odds with the Constitution. For example, 90% of people didn't support interracial marriage when the Supreme Court legalised it. If the bench's political values were the same as the general population, that would never have happened.

It was closer to 80%, and on a question of disapproval of[1], not illegality. I may disapprove of your misquoting stats, but that doesn't mean I want you to go to jail for it. Also the majority of population lived in a state where interracial marriage was legal since before 1940, and by 1967 the only states that have miscegenation laws were the ones apt to fly Dixie. It was not so much about dragging against inertia, unless by inertia you mean stalemate—the South would never have repealed those laws.

[1] http://www.gallup.com/poll/163697/approve-marriage-blacks-wh...

My apologies, I misread the the Gallup graph because the one I saw didn't have 1968 marked. Anyhow, my point stands. It would not have been legalised if the bench voted like the general population did.

No, that doesn't follow at all. Loving was a criminal case. The poll is about "disapproval". Again, I disapprove of your lack of logic at this small hour, but I would never want you to go to jail over it ;-)

> This seems to make sense but it is the Supreme Court's responsibility to drag society forward when society's inertia is at odds with the Constitution.

I don't see where it says that in Article III of the Constitution. Can you point it out to me?

I didn't say the court has a need or obligation to representative. I said that there are real people who believe the same things Scalia did.

Those people, minority or not, have as much of a right to try to elect people who are like them and and gain support for what they think is right as you do.

>Some of you seem to forget that people who have different opinions than you are also people."

I think you have something in common with the people who don't like Scalia.

Many of the most important people in my life have been those I profoundly disagree with on major issues, but who are able to articulate their positions honestly and clearly, and who are able to address criticisms and alternative opinions well. It's not always enjoyable to face strong and well-argued criticism, but it's what helps me make my own ideas stronger.

Scalia was one of those who, whether I agreed or disagreed, I always learned from when I read his arguments.

> You will find that there is a hell of a lot of thought that goes into opinions, and there is much less predetermined ideology than the way these things often get painted.

Yeah, retconning to twist everything that seeks to disturb one's bigoted and repressive worldview does take an extraordinary amount of thought, credit where it is due. I encourage everyone to not just read the opinions, but to be vigilant of this when doing so.

The true crime of this is that it leads reasonable people like yourself to the belief that his deplorable behavior is merely a case of "reasonable people can disagree intelligently".

Make no mistake, the outcome is predetermined based on his ideology. Reading individual opinions in isolation may tempt you to believe otherwise, but consulting his record over the long term will make it pretty clear.

> I encourage everyone to not just read the opinions, but to be vigilante of this when doing so.

Vigilantism, particularly against judges and justices for written opinions, is not the way to deal with laws and interpretations you find unjust. We must not fight the unjust with injustice.

I think it was meant "vigilant" in the Latin sense, ie.: watchful, attentive. Otherwise, the statement ("vigilant of") doesn't seem to make much sense.

Ahh, I see. I live in a non-English speaking country, and I'm very used to correspondence where the author has copy-pasted a correctly spelled word from a dictionary, but has used very non-standard grammar in constructing the sentence. I guess that's why I read it as a grammatical mistake rather than a spelling mistake.

Oops, fixed. I'm not sure if that was a typo or a freudian slip.


...kind of.

Going on a tangent here, that's an interesting claim, and I think I disagree. I posit that vigilantism is merely an alternative vehicle to the legal system, and only outcomes can be just or unjust.

Let us not fool ourselves into thinking that the legal outcome is necessarily the just outcome.

I full heartedly agree that the courts are courts of law, not courts of justice or morality. However, mob justice isn't justice, either.

That's funny considering he argued the exact opposite, that mere moral disagreement was sufficient reason to justify a community criminalizing said deviant behavior.

Calling the man names and suggesting it's a good thing that he's dead, is far more charitable than his worldview on morality.

> there is much less predetermined ideology

The outcomes are pre-determined. Then they have to work backwards to justify them. It is extremely obvious when you read e.g. the Dred Scott or Korematsu decisions that were decided a long time ago, but it is still very obvious when you read recent decisions like Obergefell or Citizens United.

What did you think of him hunting and killing moose with Vice President Cheney days before he voted on a case suing him?

You are allowed not to respect him even if you don't think he was an idiot.

There are plenty of evil non-idiots.

Scalia was foremost an advocate of judicial restraint, who believed that the further the Courts stretched interpreting law, the more vulnerable the Courts become to the animosities of the Executive and Legislative branches. The Judiciary, Scalia understood, was the least powerful and most vulnerable of the three branches of government, and its strength and influence rests in its artful and judicious use of its very, very limited authority. A few Scalia quotes that illustrate this:

>There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.

>If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility.

>“This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct.

>“Perhaps sensing the dismal failure of its efforts to show that ‘established by the State’ means “established by the State or the Federal Government,’ the Court tries to palm off the pertinent statutory phrase as ‘inartful drafting.’ … This Court, however, has no free-floating power ‘to rescue Congress from its drafting errors.’”

Scalia was foremost an advocate of judicial restraint, who believed that the further the Courts stretched interpreting law, the more vulnerable the Courts become to the animosities of the Executive and Legislative branches.

I don't think that's accurate. There is a position, albeit more in the academy than on the bench, that holds that judges should only in the rarest of circumstances hold that the actions of the other branches are unconstitutional. Scalia can't fairly be described as being an adherent of that school.

Rather Scalia was foremost an originalist, it's a school of legal thought that he helped pioneer as a law professor. Today judges and legal scholars needs to grapple with originalism -- agree or disagree you need to speak to it. And with Balkin and Amir's spin on it, to borrow a quote, we are increasingly all originalists now. It's can be hard to believe it now but it wasn't always like this. When Scalia was going to law school no one was poring over the diaries of the founders or the records of the reconstruction congress looking for clues.

Scalia was by no means the sole person responsible for the rise of originalism, nor the purest advocate for it, but he was certainly a major major contributor to it. That's what he will ultimately be remembered for, I think.

A restrained judiciary is easily confused with judicial restraint. Consider mandatory sentencing guidelines, knee jerk reactive handcuffs placed on wrists of Judges vilified for using judicial descretion. I think, but will never know, Scalia recognized how easily the legislative branch could sideline the Courts and he advocated for adoption of the Founder's intent as a means to protect the Courts foremost.

> I don't think that's accurate. There is a position, albeit more in the academy than on the bench, that holds that judges should only in the rarest of circumstances hold that the actions of the other branches are unconstitutional. Scalia can't fairly be described as being an adherent of that school.

My understanding was that Scalia himself explicitly claimed to be following this philosophy. What makes you say otherwise?

The evidence says otherwise. Scalia voted to strike down laws or held executive actions unconstitutional many times over the course of his career. At some point "the rarest of circumstances" has to have some bite. I'm sure he would have argued that he was compelled to do so by the text of the constitution and by the flagrant unconstitutionality of those laws/actions, but I don't think that's a good answer. He may have wished that circumstances would have allowed him to be an avatar of judicial restraint but regardless that's not what happened.

While he was somewhat of an originalist, Scalia was foremost a textualist - much more than an originalist (the latter term better describes Thomas).

>Scalia was foremost an advocate of judicial restraint

When convenient.

Totally agree.

The stay he supported on the Florida recount was rampant federal interference in a state matter:


Indirectly, he gave us eight years of incompetence and Iraq, a horrible farce of a war.

I wish Gore had won, and I don't know enough about law to have an opinion on the specifics of the case. But I am at peace with it for a simple reason: that election was within the margin of error. We can put a lot of stake into details of state law, but in reality it was a draw. Frankly I think the fairest thing would be a coin flip. In absence of that, I think "play it where it lies" is a fine proxy. I don't think a recount would've been any more or less fair.

I think our energies are better served changing the widespread voter disenfranchisement which does in fact distort the ability of our electoral system, as enacted in law, from representing the will of the people.

If you consider the recount abstracted from all other phenomena, then this may be a reasonable point of view.

But voter suppression by Republicans in the South is well-known and widespread, because the GOP wins more elections when the turnout, particularly black turnout, decreases. Florida has a long history of voter suppression, which has been documented on numerous occasions: http://campaignstops.blogs.nytimes.com/2012/04/05/florida-ho...

So, in the Supreme Court vote, we have a majority conservative court that includes Scalia, a Reagan/Bush era appointee, who happens to favor the side of the coin that puts another Bush in the White House.

Scalia admitted that a recount was potentially prejudicial to Bush, and decided it was best to quash it. His action takes place in a sequence of many actions designed to bolster the GOP. Coincidentally, Scalia helped roll back the Voting Rights Act, once a milestone for Civil Rights.


Every single one of his positions may be impeccably argued, but it's a striking coincidence that he toed a clear ideological line on abortion, gun control, affirmative action and gay marriage, among many other issues.

I do not believe his stance on Bush v. Gore was neutral. He had a horse in the race; his horse won; and America was the worse for it. Good riddance.

> But voter suppression by Republicans in the South is well-known and widespread, because the GOP wins more elections when the turnout, particularly black turnout, decreases.

The party that tips the scales for its establishment candidate with the superdelegate system can't complain about voter suppression. Clinton ended up with the same number of NH delegates even though Sanders won handily in that primary.

Florida was not within the margin of error in 2000. The number of people who were denied their right to vote would have made it a clear win for Gore. From the Rights Commission's report:

> The Commission's hearings spotlighted and this report highlights the harsh reality that despite the closeness of the election, it was widespread voter disenfranchisement and not the dead-heat contest that was the extraordinary feature of the Florida election.

Yeah, that's pretty close to what I think about the 2000 election as well. If you're going to blame one person for what happened, well, none of them were on the Supreme Court.

I believe a privately run recount was conducted afterwards and Bush still won.

Depends on your standard and which recount you look at. From https://en.wikipedia.org/wiki/Florida_election_recount#Post-... :

> under the strictest standard, where only a cleanly punched ballot with a fully removed chad was counted, Gore won by three votes.[38] Under all other standards, Bush won, with Bush's margin increasing as looser standards were used. ... because of the possibility of mistakes, it is difficult to conclude that Gore was surely the winner under the strict standard ...

While in another analysis "Bush won under stricter standards and Gore won under looser standards"

And there are also the "spoiled ballots" where "people had punched and written in a candidate’s name", eg, for people who would "check Gore and write Gore". These were rejected, even though the voter's intent was clear. "The Washington Post found that Gore’s name was punched on 46,000 of the over-vote ballots it, while Bush’s name was marked on only 17,000"

But with all the attention on hanging chad, we didn't hear about that last issue. (I didn't until I read it just now!)

Very interesting. My own thoughts on this are that we should not be trying to determine intent on improperly filled ballots. In the same way that I'm responsible for getting myself to the voting booth, I am responsible for filling out my ballot properly. If I fail at that, my vote won't be registered. Where ballots aren't sufficiently clear to voters, they should be made so.

Where ballots aren't sufficiently clear to voters, they should be made so.

Well there's the problem. What do you do when you have ballots that are objectively unclear, like the infamous butterfly ballot? You can't invalidate the election and have a new one--apart from the logistical problems, the turnout is going to differ significantly based on the media attention and the knowledge that the cancelled ballots were so close.

The best option you have is to mandate judicial review of ballots well before the election. But even that doesn't save you in the situation Florida actually found itself in.

"objectively unclear, like the infamous butterfly ballot"

I saw a reproduction of this ballot in the newspaper at the time and I remember wondering what the problem was supposed to be. It seemed perfectly clear, but journalists were jumping on the bandwagon of calling it confusing.

Analysts believe a minimum of 4,000 people accidentally voted for Pat Robertson (in a heavily Jewish, not heavily conservative area, the anti-Semite Robertson got far more votes than polls or expectations). 10,000 ballots were invalidated from double-punching Gore and Robertson. It was a major UI failure.

There's nothing that you can do about the butterfly ballots after the fact short of re-running the election, which is out of the question as you state.

There are plenty of elections re-run every year, it is a possibility.

The parent mentioned that, although the ballots were not properly filled, intent was clear.

Well, at oral argument, Scalia made it clear that only legal votes should be counted. To be honest, since the question was "what is a legal vote?" that seemed like circular reasoning. The underlying idea, though, is that if I walk into a polling place, and proudly yell my vote, and walk out, my vote isn't counted regardless of how clear the intent was.

Scalia's suggestion was that if a vote couldn't be read by a machine, it wasn't a legitimate vote regardless of any extenuating details. That may have been influenced by the fact that Florida law only mentioned recounts that were performed by running the ballots through the machines a second time.

I'd say a legal vote is one that is filled out in accordance with the instructions on a legal ballot. From what you're saying, I suspect that's what Scalia meant. If the machine misreads such properly filled-out ballots, that is certainly a problem and a recount would be justified.

No: a legal vote is as defined by Florida election law. As I remember (quite possibly fallaciously) that law held that a vote was to be counted if the intent was clear.

And, contrary to what reporters said, that standard actually wasn't from the section dealing with recounts. It was the standard to be used if a bunch of ballots were damaged before they could be counted by machine; say, in a car accident.

Florida law at the time only mentioned recounts in the context an automatic recount that involved putting the ballots back through the same machines a second time.

Gore's legal team asked for hand recounts, and suggested the "clear intent of the voter" standard. Scalia asked whether the standard should be "can be read by a machine," given that Florida statutes only mentioned recounts that involved machines.

If you still disagree, how would you answer my earlier question: I walk into a polling place, announce my name, clearly yell who I want to vote for, and leave. My intent is clear, should my vote count?

What if I were to mail in a ballot, that wasn't postmarked? My intent was clear, but Gore requested that such ballots not be counted. What does the postmark have to do with intent? Or is intent a necessary, but not sufficient, element?

For the record, the last time I filled out a paper ballot (Calinornia, late '90s), they handed me a special marker and told me to use it, or my vote would not count (they also told me not to mark two spots for the same office, or my vote would not count).

I agree that there should be strict, well-defined standards for which votes count, and the examples you mention shouldn't count.

However, "is readable by a machine" is not a well-defined standard, and is IMO way too strict; it's more than likely that a panel of human readers would all agree on which name is written on a ballot, without it being readable by a machine.

I'm not saying it's a good standard. I am saying that it's a standard that Scalia proposed, and I will concede that it sidesteps a few complications.

But it's also not as rigorous as it should be. Two machines may disagree on how readable a particular ballot is, even if both machines are operating within specified tolerances.

This comment needs to be better supported. It is intuitive that votes for POTUS would be a federal matter, and Wikipedia does not mention a jurisdictional issue for that case, nor any other federal interference conflict whatsoever.

Also, singling out Scalia when four other justices voted with him is biased. It is also an incredible stretch to cast responsibility for an incompetence in handling an unanticipated war on any individual (especially in the judiciary!).

You are not voting for POTUS. You are voting for your candidates chance to chose your states representative to the electoral collage. it's a state election. not a federal election.

States administer their own elections.

You can't possibly put the result of Bush being elected on a Supreme Court Justice. Any more than you can put it on a single person who voted for him.

Yes, they all share some responsibility, but the amount is so miniscule given future actions and how many people were fooled and lied to so as to be almost completely disconnected.

Actually one can. Just like the cause of a hanged man's death is the knot the hangman tied. There's a great big sequence of events preceding it for sure.

That's not really an apt analogy; if a hangman refuses to tie a knot, they'll find another hangman. The Supreme Court Justice specifically gets to choose one way or the other.

No, he or she doesn't. Because if they did so arbitrarily then they have likely long since been thrown off the lower benches.

A judge doesn't decide: a judge weighs evidence and then states which interpretation of the law they believe is correct.

If we had a judicial system arbitrated over by people who could simply say "I want this outcome" and make it so, then the country would and should crumble.

... if?

No, voting is protected by the Ewual Protection Clause. Here's the argument: http://www.law.gmu.edu/assets/files/publications/working_pap...

Sort of. Discrimination from voting practices are protected by the equal protection clause, but otherwise, less well known, there is no affirmative right to voting in the Constitution.

A county or municipality could, for example, decide not to participate in a particular vote, which could have discriminatory effect, but without being overtly discriminatory.

Ignoring the fact that every recount had Bush winning and at some point a winner had to be declared since we needed a president.

Nope. What should have happened, if we weren't such a litigious society, is it would have been considered a political question, not a judicial one. Florida's legislature could have decided its Electors alone. And then if Congress considered that decision questionable, the president would have been decided in the House, and the vice president by the Senate. George W Bush would have been president in that case. And Joe Lieberman would have been Vice President.

"What should have happened, if we weren't such a litigious society," Ironic given it was Gore, not Bush, who filed the suits. Bush demanded the initial recount, it swung his way, Gore started filing suits. Many many recounts happened afterwards, I think NBC or CBS (hardly bush allies) had the most famous one for objectivity, and it came back for Bush.

>>> When convenient.

I'd say more "when useful". Many of his opinions were too convoluted to be considered convenient. He often went on and on without saying much of anything.

> Scalia was foremost an advocate of judicial restraint

He believed in judicial restraint when it came to interfering with conservative political causes; but when it came to furthering those causes, he was an activist. The court should not protect LGBT Americans due to "judicial restraint". But when it comes to a healthcare law passed by Congress and signed by the President, the court should overturn it.

I could predict Scalia's rulings reliably by knowing only the politics of the case, not the law or the facts.

This is plainly untrue; Scalia was one of the most consistent and strong advocates for defendants' rights, and often decided cases which went against his personal morality. He was often quoted saying that the side he liked got no preferential consideration when it came to deciding a case, and if you look at the way he wrote his opinions, you will see this is true. He would often decide in favor of people who he personally disliked and believed to be guilty of horrible things because their arguments were correct.[1][2]

[1] https://en.wikipedia.org/wiki/Kyllo_v._United_States

[2] https://en.wikipedia.org/wiki/Florida_v._Jardines

> Scalia was one of the most consistent and strong advocates for defendants' rights

That's not my impression and I quickly found the following, but I can't say the examples are representative of the overall trend or if the analyses are accurate (and I can't say the same of your examples). However, they are hard to reconcile with your claim:

1) Scalia is known for taking a hard stance against criminal defendants, and has long advocated striking down Miranda v. Arizona and upholding the constitutionality of the death penalty


2) Defendants in criminal cases have a constitutional right to a competent lawyer's advice when deciding whether to accept a plea bargain, the Supreme Court ruled ... The ruling drew a sharply worded dissent from Justice Antonin Scalia, ... He angrily called the court's rulings a "judicially invented right to effective plea bargaining." The article notes, 97% of federal convictions and 94% of state convictions result from guilty pleas.


3) Ring v Arizona: holding that the Sixth Amendment requires a jury [i.e., not merely a judge] to find the aggravating factors necessary for imposing the death penalty. Scalia dissented: He voted to deny defendants the right to a jury for those purposes.


4) Lawrence v Texas: The Court struck down the sodomy law in Texas and, by extension, invalidated sodomy laws in 13 other states, making same-sex sexual activity legal in every U.S. state and territory. - in 2003! Scalia dissented, which if successful (and IIUC) would have sent defendant Lawrence to prison for having sex. Again, in 2003!



If the above is correct and I understand correctly: He opposed Miranda, the minimal requirement to inform defendants of their rights; opposed the right to an attorney for plea bargains, from which result >94% of criminal convictions; opposed the right to a jury for a essential aspect of death sentences; and voted to allow the state to imprison a defendant for having consensual sex with an adult.

I'm sure there are some grey areas, but I have a hard time seeing him as a ally of criminal defendants.

Judges are not deciding whether they believe these rights should or should not exist. They are deciding whether these rights do exist in the law at the time the case is litigated.

If you believe you should have a right you don't have, or that you should or shouldn't be sent to jail for a particular activity, the right people to contact and hold accountable are your representatives in the appropriate legislative body. Judges are only supposed to interpret the law, even if they personally do not agree with the most accurate interpretation. Changing law or creating new law is the province of the legislature.

> Judges are not deciding whether they believe these rights should or should not exist. They are deciding whether these rights do exist in the law at the time the case is litigated.

I agree that's the ideal but we are talking about what happens in the real world, where clearly many judges' political and ideological views have significant influence. If not, why would the GOP care if Obama chooses the next Justice? Why is Scalia's passing considered a blow to partisan Republicans and ideological conservatives? A prominent attorney once said to me: Judges put on their pants one leg at a time, just like everybody else.

The point of my original comment (several levels up) and the person who responded is that Scalia indeed used his seat to advocate his beliefs.

Personally, while I've always preferred liberal legislatures, I do actually prefer conservative Justices. I want the Supreme Court to set a high Constitutional bar for a law to pass muster.

I can't say I've agreed with everything Scalia has ever said, but there's plenty I did agree with as well. I'm definitely a bit concerned at where we could end up if a far more liberal Justice is selected to replace him.

> Personally, while I've always preferred liberal legislatures, I do actually prefer conservative Justices. I want the Supreme Court to set a high Constitutional bar for a law to pass muster.

Let's clarify the meaning of "conservative". It could mean a judge who interprets the law strictly, or it could mean a judge who uses his position for partisan conservative purposes.

I think Scalia was the latter.

He absolutely was not. He was an advocate of interpreting original intent to align with his bigoted social and religious views, voting accordingly, and averting responsibility by acting as though he was merely honoring the intent. When that play wasn't available, he was a fan of playing the "states rights" card.

Truly remarkable were his mental gymnastics allowing him to justify his activism as one of the above. Perhaps his strongest performance was his conclusion that money is speech, corporations are people, and therefore corporations are not to be limited in using their cash for political influence. But he helped the Koch brothers with fundraising, who were the biggest beneficiaries of that decision, so clearly he had to convince himself that what he decided made sense somehow.

Unsurprisingly, he can barely maintain that position with a straight face when confronted head on:


Anonymous money via a corporate entity isn't a problem because "the reporters can find out" and the amount of money spent to influence politics is insignificant because "we probably spend more on cosmetics anyway". People really look up to this guy?


RIP Justice Scalia. Didn't agree with him on * many things but he seemed like a relatively principled judge, as far as they go.

(edit: Actually, can't think of too "many" things off the top of my head where I fully disagreed with him. I did enjoy reading his written rulings)

In the coming days, it'll be interesting to see retrospectives on how Justice Scalia ruled on such issues as tech privacy and censorship. For example, in Brown vs. Entertainment Merchants Association (2011), Justice Scalia wrote the majority opinion which said that "video games qualify for First Amendment protection"


edit: More context on the ruling if you don't feel like clicking through: The 7-2 opinion struck down a California law that banned the sales of video games to minors, which had been signed into law by (of all the ironies), Republican Governor Arnold Schwarzenegger.

Basically, the court saw video games as art:

> Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection.

As described by Wikipedia:

> Scalia's decision also stated that the current self-moderated industry standards like the ESRB are operated effectively to regulate the sale of more mature games to minors, and that "filling the remaining modest gap in concerned-parents' control can hardly be a compelling state interest" requiring a law to enforce.

The two dissents were Justice Breyer (considered a liberal justice) and Justice Thomas, who is seen just as much of the conservative base as Scalia is. According to Wikipedia:

> Justices Clarence Thomas and Stephen Breyer dissented, each authoring a separate dissent. Justice Thomas, in his dissent, considered that historically, the Founding Fathers "believed parents to have complete authority over their minor children and expected parents to direct the development of those children," and that the intent of the First Amendment "does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians."

Justice Alito and Roberts, the 2 other conservative members of the court, concurred with Scalia's opinion, but had reservations about being too lax in regulating the content of video games:

> "There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show," referencing the book Infinite Reality which highlights the psychological effects of virtual reality, and argued that the decision "would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem.

In 1992, I saw Scalia in person preside over a three-judge panel (including two other federal district judges) at Harvard - at the Ames Moot Court, the famous moot (fake) court for the very best two teams of third-year law students.

He did an excellent job over the two day proceedings. It was fascinating to watch in person.

In a parallel event in the evening, I watched Scalia take questions in an open air pavilion lawn (with no security whatsoever, just an open event on campus). At one point an audience member asked him, "What's the most difficult area of law for you personally to judge?"

After seriously furrowing his brow and mind, he finally and sincerely proffered up ... "Indian (Native American) law".

My take on his answer - he found that area of law truly difficult as a strict constructionist.

This will likely result in a major political shift of the court. Even if Obama places a staunch centrist, it will be a net left swing, as Scalia was perhaps the second most conservative justice beside Thomas.

There have been a great deal of 5-4 decisions since Sotomayor's nomination that in the future could easily fall the other way.

It would be interesting of Obama did nominate a staunch centrist right out of the gate, as a gambit to get in a new justice confirmed before the likes of Donald Trump gets to make a nomination.

There's a precedent to replace 'like with like', so knowing that Scalia was very right-leaning, (if he gets the chance) Obama will very likely nominate a centrist, if not a right-leaning one. At least that seemed to previously be the case... In this new world of scorched earth politics, who knows..


My guess for nomination:


He's a Stanford guy, Indian, already sailed through the Senate for a DC Court of Appeals position, disliked by Unions, and by all accounts a brilliant legal mind. He's successfully represented corporate clients (e.g. Skilling in Skilling vs. USA) and had a successful career in the private world.

This somewhat contradicts my first paragraph, but he's definitely to the right of Kagan or Sotamayor.

While there is a tendency to replace like with like, that's because Supreme Court justices usually time their retirements to coincide with presidencies that share their views.

In this case, I doubt it applies. In theory Obama could pick a nominee closer to the center to avoid a tiresome confirmation battle, but I suspect there's a bigger bang for the buck in nominating fairly left-wing candidates and making the Republican Senate choose between looking obstructionist to the general public or looking weak to their base.

> looking obstructionist to the general public

Could you explain why this might cost the Republicans votes? Their core voters would absolutely love them standing up to the "tyranny" of Obama. Even independent/undecided voters would understand that its reasonable enough to postpone considering how close the Presidential election is.

To be clear, I think it would be best to have it completed within 3 months, like the previous 10 nominations to the court but I don't think it will cost the Republicans at all to postpone it till next year.

You might very well be right, and I agree that the Republican base would prefer that the Senate just doesn't bother to consider a nominee until after the election.

However, my impression is that independent voters prefer action to inaction and typical behavior to atypical, and will be susceptible to 'the Senate is refusing to do its job' arguments from the President and the Democratic presidential nominee, as well as 'Supreme Court appointments are usually approved in XX days' arguments from the press.

We shall see.

It can be a good call to arms for the Democrats though. If the nomination is withheld long enough, lobbies like EMILY's list will get more donations and will raise more noise. and rightly so because more is at stake.

To my knowledge, the precedent is to replace "whoever left the bench" with "whoever is likely to agree with the current President's party".

Are there any examples where a liberal president nominated a conservative or vice-versa?

(I'm not talking about situations where someone was appointed as a conservative and moved gradually left, which actually happens to all justices.)

A liberal would never elect a conservative and vice versa, but there's an expectation to maintain the court's approximate balance (which is why Scalia's death is such a big deal). So if a very right-leaning justice stepped down under a liberal president, he'd elect a center / center-left justice. If the most left-wing justice in the world stepped down, then a left-wing president could elect the most left-leaning person.

By no means a rule, but a tradition at least.

Can you provide an example of when this has happened?

The West Wing... That counts right?

Do you think Scalia moved gradually left? I've always considered him to be insanely consistent.

Make of this what you will: https://upload.wikimedia.org/wikipedia/commons/c/c6/Graph_of...

As tptacek said, political labels aren't necessarily objective, so this graph would differ depending on the methodology. It's also a little harder to measure justices' leanings because there are so few data points.

Sometimes "left" and "right" are useful labels, and sometimes not.


He was intensely conservative.

Alito was nominated by Bush to replace O'Connor https://en.wikipedia.org/wiki/Samuel_Alito_Supreme_Court_nom...

Bush had cover since Rehnquist (pretty far right) had just been replaced Roberts (a much more moderate candidate). Even then, it was controversial for that exact reason.

So between the two justices, Alito + Roberts is definitely to the right of Rehnquist + O'Connor, but pretty moderate considering the possibility of two far-right justices.

> There's a precedent to replace 'like with like'

I've never heard of that and have reason to think otherwise: Presidents see the Supreme Court appointments as a chance to leave their mark on the judiciary. Could you provide some evidence?

That's not possible, since a senate confirmation this close to elections is likely to just be punted on for a year.

Well, consider: You're a Senate Republican. Obama nominates a guy who is certainly no Scalia but legitimately isn't the worst. You can hold out and hope that a Republican gets elected, but there's a good chance that'll be Donald Trump, and what kind of a judge is that weirdo going to nominate? You hate that guy and think he's a blemish to the name of the Republican party. Also, there's still a real risk Hilary/Sanders will win instead. AND you can expect to face more than half the media harassing you over any delay. In fact, the harassment has already begun today, Feb 13.

So a real compromise candidate might be possible. It'd likely depend on Obama and the senate Democrats as well, though.

> "there's a good chance that'll be Donald Trump"

it's actually pretty unlikely. Fivethirtyeight has a bunch of good articles about this, but the simplest piece of information pointing to it: Trump is intensely disliked by about 60% of the voting public. He's got a vocal and enthusiastic following, but once you go outside that bubble, he simply doesn't have room to grow.

I voted for Bush twice, McCain, and Romney, and I'll vote for either Hillary or Bernie (two candidates I can't stand) over Trump, and I'm far from alone.

Which Republican candidate would you vote for rather than Hillary/Bernie?

Kasich and Rubio are in my "preferred" tier.

Bush and Cruz are in my "hold my nose and vote" tier.

Carson isn't presidential material IMO.

Trump said he'd nominate his sister. I doubt he'll get the nod, and I doubt we'll see anything until after the election since it will energize both sides. It's too good a fund raising tool for red and blue to pass up.

I hope you're right. And really, a "compromise candidate" is more or less what representative democracy ought to look like in practice anyway.

Obama barely got the ACA through the Court, and that was by a breath. He would not give up the opportunity to make sure it's never that hard again.

I don't follow. It doesn't matter how much Obama wants to replace Scalia (I'm sure: a lot). He can't. The Senate must consent to his nomination, and is entitled to advise it. And advise it they have: they've decided it should be an issue for the election this year, and the voters should decide.

Which is really a shame. With the entire lot of candidates on both sides ranging from bad to awful, it seems likely to me that this will be one of, if not the, deciding issue in the election.

That's bad, because it will perpetuate party politics. No matter how much people dislike the candidate nominated by their party, they'll think they've got no recourse but to vote for him/her lest they lose the Court.

All the Republicans I know who say they'll vote for Clinton before they'd vote for Trump - and there are plenty of those - won't follow through. The chance we might have had for an olive branch, reaching out of the viper pit of party politics, is now gone.

It was always going to be, now it's just become apparent to those who don't pay attention. Next POTUS will nominate a replacement for Notorious RBG as well. This is probably the most important Presidential election in a long time.

Maybe, because Kennedy is getting old (and Kennedy is probably the most important justice on the current court), and so the next President might get 3 seats to fill. But if it's just RBG and Scalia, that'll be the same number Obama, Bush 2, and Clinton got.

McConnell already said that Obama should wait for the next POTUS: http://thehill.com/homenews/senate/269389-mcconnell-dont-rep...

Which, I'm sure, McConnell himself would do if he were a sitting President.


This is how you get hellbanned.

He really does need to back up that second assertion.

Doesn't support progressive politics != Racist. Such a tired meme. Whenever a lefty plays that card in discussions, I know I've won the argument.

Are you responding to the right person?

Senator McConnell has announced that the Senate won't take up a Supreme Court nomination this year. https://pbs.twimg.com/media/CbIYaMiW4AIU4ZB.jpg

That's not a "won't", it's a "Mitch McConnell thinks we shouldn't."

Those two sets intersect rather less than the Honorable Gentleman from Kentucky would like.

That's not really what that quote says. It sounds more like he is expressing an opinion about what should happen.

He's the Senate Majority Leader and the official spokesperson for Republicans in the Senate. The fact that he said it right away, after two GOP Senators who are also viable Presidential candidates said it as well, is a pretty strong indication of what's going to happen.

McConnell is a blow-hard, and is looking for a rally-point for the party. I'm sure he believes this is what Scalia would have wanted.

But the idea that the "American People" wouldn't have a say with an Obama appointment is absurd. He was elected with a clear majority and Presidents are elected for four years, not four years minus whenever the next presidential race gets going.

I know you've expressed elsewhere (edit: in this thread) that Republicans have already made it clear that they won't do an appointment this presidency (and you're probably right that they're trying to set themselves firm in this as quickly as possible), but I can't imagine a scenario where Obama doesn't put forth a nomination post-haste. I also cannot imagine 11 months of blocking a SCOTUS nomination and leaving the court with 8 members.

<I also cannot imagine 11 months of blocking a SCOTUS nomination and leaving the court with 8 members.>

But that's exactly what the Democrat-controlled Senate did after Justice Abe Fortas resigned in disgrace in 1969. They knocked down Nixon's first two nominees, and Fortas wasn't ultimately replaced by Blackmun until a year later[0][1][2].

[0] - Several Wikipedia pages say May 12, but:

[1] - this one says May 17: https://en.wikipedia.org/wiki/Unsuccessful_nominations_to_th...

[2] - this page says June 9: http://supremecourthistory.org/timeline_blackmun.html

He will nominate quickly and, because the Senate is allowed to, they will slow roll and then block the nomination.

This isn't the first time this has happened. The Supreme Court will function just fine with 8 justices.

Blame John Adams!

Point of Inquiry, Is there a parliamentarian in the house? There may be one or more ways to force McConnell's hand.

The president can use a recess appointment. It would probably end up looking worse than blocking a nomination for 11 months so it seems unlikely, if technically possible.

What's Obama got to lose?

A recess appointment would make it an ironclad certainty that a Republican would be elected president. It would make enough voters, including moderates, angry enough that a Democrat would stand no chance.

I don't know. I used to think I was a moderate, and I'd vote for almost any Democrat to keep Republicans from getting two SCOTUS appointments. It's an excellent point though, it would give Republicans a huge issue propaganda win.

The Senate can prevent recess appointments by not recessing.

Sure, and, of course, that itself was subject of a recent Supreme Court decision. But it's piling a hypothetical on my already silly hypothetical. He'll just make an appointment as he's already said and reasonably argues is his duty, the Senate will just stall him out, as the majority leadership has already said.

I like to imagine he and the Democrats in general might actually end up looking better if that's how it plays out.

And not recessing means sitting Senators cannot campaign. Which party likely benefits from that?

No, they have been using a pro forma procedural motion for years that effectively means they are never in recess, but there are untested ways that the President can force a formal recess.

He would have like 8 or 9 days to do this. Senate will be back from recess on 22 Feb.

I mean they do have to vote on a recess appointment. IIRC

Senators leave Washington, there are time limits on debate, they may not be able to return in time. Or, if a potential recess appointment is suspected, the Republicans will be spending their holidays in DC.

Good luck with that with 1/3 of Senate going for re-election. Summer is the best time to campaign but if they choose to stay in D.C., that's up to them.

The parliamentarian is an advisor to the presiding officer of the senate, which is either the vice president or in his absence the president pro tempore (by tradition the senior member in years of service of the majority party) or his designee.

In any event any parliamentary ruling is appealable to the floor where it is subject to a majority vote. The is the basis of the so-called nuclear option.

McConnell's hand can be forced if there is a majority willing to do what it takes to force it. If he has the procedural support of his caucus (even if they disagree on the ultimate question) he can prevent a vote from coming to the floor.

Edit: I misread the first sentence. Mea culpa.

Thanks. I know what a parliamentarian is and in any case could've found the dictionary definition. I was hoping for suggestions as to what kind of sneaky tricks and shenanigans we could expect if the opportunity presented itself.

I would hazard the explanation was to the benefit of the less educated readers, such as is yours truly.

At least wait until the man is buried.

The right-winged politicians are posturing to make this a presidential election issue, maybe even a big one.

Electing a president who will in turn appoint a SCOTUS Justice may sway more people to vote. Perhaps the the politicians believe that they can use the normal wedge issues (abortion, death penalty, guns, etc.) to have a strong showing on election day.

I would tend to agree that an open SCOTUS seat would motivate more conservatives to vote. But, these things have a way of back firing for politicians and a lot can happen between now and November.

> Senator McConnell has announced that the Senate won't take up a Supreme Court nomination this year.

Of course. The question is, why do the Democrats let the GOP get ahead of and frame every debate? Will they roll over this time or draw every bit of blood they can and make this position cost the GOP more and more politically until they give in.

Unfortunately, I would not be surprised if they roll over. You'll know they did if they don't respond soon to McConnell, or not with an effective message, and Obama nominates someone as far to the right as he can stand.

I doubt they roll over on this one. Reid had already said as much. Plus, the Republicans play dangerous game if they want to delay. They may not retain control of the Senate, and most consider them unlikely to win the presidency. At least right now, they're guaranteed a strong say in the process.

I hope you're right, but notice that all the headlines on the issue present the GOP side; the Dem side is included only in responses in the body of the article. Again, the GOP is ahead of the debate and frames it.


A quick look over http://politicalgraveyard.com/offices/pdio3.html says nobody has died in office in a presidential election year in the last century, so the circumstance is itself unprecedented in modern times.

Anthony Kennedy was nominated in November 1987, and confirmed in February 1988 (he replaced Lewis Powell, who retired in 1987). So a couple months earlier, but still very much in an election year. If Saint Reagan did it, it'll be difficult for the GOP to make an argument that this president can't (even if you ignore that the constitution says he can).

The constitution also says they can block it. No need to blame anyone.

It will be interesting to see whether the Republicans will be as obstructionist to an Obama SCOTUS appointment as they have been to almost everthing else he proposes.

Why, it's almost as if they are a different political party altogether!

What the fuck ever happened to good old-fashioned bipartisan horse-trading?

Went out the door with Tip O'Neill, apparently. :(

A judge quoted in the article said, "my educated guess is nothing will happen before the next president is elected."

Presumably he's talking about selecting a replacement to the supreme court. Is this accurate? How long does this process typically take?

The math here is interesting for the republicans. A candidate has to confirmed by the senate judiciary committee (11/9 republican) then the whole senate (54/46 if the independents go dem as usual).

The general consensus, however, is that the democrats have a good chance at winning back the senate.

So the question for republicans is, do they accept a moderate candidate now, or stall until the election and risk having a democratic senate (and president, but that race is far too early to have a sense of, unlike the senate), and take the heat for taking 3-4 times as long as usual to confirm a justice, and have any cases under review potentially go 4 to 4 on the court, which means the lower court rulings in those cases stand, or the justices can request that they be re-argued.

For the democrats, you've got the current situation vs a chance to get someone more liberal in during 20 days of obama + the next senate (although pushing a nominee through in jan 2017 would have terrible optics), or waiting. Your risk is that the republicans win the senate and the president.

My sense is that the democrats will put forth someone fairly moderate, but it's hard to tell if the senate will stall it out or not. It likely depends on the nominee.

The Republicans hold all the cards, but the dems are probably in a slightly stronger position, because they only need two republican senators on the judiciary to decide that they'd rather not risk it, and two more in the full senate.

The Republicans have more or less already announced that they will refuse to consent to a replacement this term. That could change if Hillary wins (she will likely take the Senate with her if she does), but, the odds-on outcome is: Obama nominates someone, but no Obama nomination is confirmed.

It's not just that it's an election year, but that it's a closely divided Senate with a liberal President replacing the most reliable and influential conservative on the Court.

They're obviously going to say that now (keep in mind so far the people who've said that are Cruz who is on judiciary but will never approve any Dem candidate and McConnell who doesn't matter.)

The ones who matter most are probably Flake and Tillis since they're the least conservative among the judiciary members not up for reelection.

I think we'll see an initial stall for sure, and then in a few months it will depend on how polls are going, both in the senate and national races. Hillary + dem senate is the nightmare scenario for republicans, so they're likely to make a deal if that's still a strong possibility in July.

I agree that the 2016 election becoming a foregone conclusion is a circumstance in which a nomination might happen, but it's the only one. Equally importantly, by the time the election becomes reasonably predictable, Obama will be butting up against the limits of the window in which he can get a nomination through even in favorable conditions.

Obama will not replace Scalia. I like the Dem's chances this cycle and so am not despondent about this.

The longest confirmation in history was apparently Brandeis at 125 days. Assuming Obama takes about a month to get a nomination together that leaves just over 300+ days left in this administration. That said, would not surprise me to see the Senate serially find reasons to reject say 3-4 candidates or screw precedent and just take forever to run out the clock on purpose.

They will likely also have pro forma sessions to deny a recess appointment as well [1].

[1] https://en.wikipedia.org/wiki/NLRB_v._Noel_Canning

One option Obama would have that might fill the seat before his term is up is to go back to providing a real list of a number of candidates instead of the "list of one". The chance of this happening is near zero of course; I guess he'll nominate someone a bit closer to the center and let them be stonewalled, something which may help the democrats in the election.

I imagine a lot of good candidates, knowing the nomination is destined for limbo, might opt out of the media circus and decline it.

Of course if the Dems win the election the incentive to stall fades considerably.

Abe Fortas resigned May 15, 1969 and Harry Blackmun wasn't confirmed until May 12, 1970 (362 days) after the failed nominations of Haynsworth and Carswell. Likewise, Lewis Powell died June 26, 1987 but Anthony Kennedy wasn't confirmed until February 3, 1988 (222 days) after the failed nominations of Robert Bork and Douglas Ginsburg.

There may be other similar situations but those are the ones that came to mind.

Perhaps it would have better been described as 'The longest single confirmation process in history'. In terms of the whole replacement process, where it included candidates that were rejected, there have been times over 125 days ( as you mentioned ).

Raw data is available at http://www.senate.gov/pagelayout/reference/nominations/Nomin...

Do you think candidates who turn the job down will be expecting another chance later?

Well the simplest game theory is (100% chance to be nominated now but near 0% chance to be confirmed) vs (??% chance to be nominated later but 90%+ chance to be confirmed) which seems fairly straightforward. Given current outlook for POTUS election I would decline in their shoes. An older nominee or one that expected 8+ years of GOP presidents might reasonably say this is their only chance and take it though.

I guess an interesting question is whether being nominated now and not approved or stonewalled until withdrawn disqualifies you from being nominated again. I think the default answer is 'yes' (disqualified) although various circumstances could allow it to happen.

> near 0% chance to be confirmed

This seems like very unreasonable estimate. Being election season, the Republicans will be sensitive to public opinion and stalling for 9+ months could cement the perception of being obstructionists. If Obama nominates a somewhat moderate candidate, they may decide to live with it.

Yeah, this is an opportunity for Obama to get airtime for a jurist that is too far left to ever get confirmed.

Unlikely to be correct re: nomination, though it's difficult to know how the election will effect the confirmation process, and vice versa. Kagan was nominated May 2010 and confirmed August 2010; Sotomayor was nominated May 2009 and confirmed August 2009. I'm inclined to expect a nomination sooner rather than later, potentially of a candidate with very strong Democratic support. If Republicans oppose the nomination, that could be used as political leverage against them during the election.

Edit for some further thoughts: I could see this play out several different ways. Dems could potentially stall on the nomination, to maximize the "gamesmanship" rhetoric leverage of any Republican opposition to the nomination. But if the nominee were confirmed by June, the whole thing might be largely forgotten by the election in November. So potentially, we could see a very quick confirmation. This definitely is a massive boon to the Democratic party; they've just been handed a wildcard and have every ability to choose exactly how to play it.

I'm no fan of dehumanizing death, but Scalia's death will have enormous ramifications. Keep in mind:

1. Burwell v Hobby Lobby (private corporate responsibility for birth control re: Obamacare) was 5-4

2. Legal pragmatism arguments against criminal justice matters under equal protections grounds have already been very close to succeeding (or actually have). Could mean the end of the death penalty in the US.

3. Scalia opposed Guantanamo inmates' ability to challenge their detention in US Courts in the Boumediene v Bush decision

4. Scalia consistently opposed expansion of national healthcare

5. Citizens United was 5-4 with Scalia supporting the decision (this is what created superPACs), so potentially this could result in a limitation of corporate personhood

6. Potential liberalization and modernization of intellectual property rules, particularly in context of software (see: denial of certiorari of https://en.wikipedia.org/wiki/Oracle_America,_Inc._v._Google...)

Further edit: SCOTUSblog analysis on the political situation: http://www.scotusblog.com/2016/02/first-reactions-on-the-pas...

>5. Citizens United was 5-4 with Scalia supporting the decision (this is what created superPACs), so potentially this could result in a limitation of corporate personhood

I think that phrasing is deceptive. The question isn't whether corporations are people with rights, but whether people retain their rights when they coordinate the exercise thereof through a corporation, which includes non-profit groups. It should be a red flag that abolishing that right would abolish the free press without some special exemption. That requires the government to start defining who is press and who is not, which if anything is a quickly fading distinction. The distinction between MSNBC/Fox News and a SuperPAC is not so clear. (Thankfully, we have such an exemption because the first amendment particularly protects the freedom of the press, in addition to the general freedom of speech. There's a lot of examples of redundant provisions in the Constitution, and I think this is one of them. The freedom of the press flows naturally from all of the other freedoms in the Constitution.)

The particular case was actually about a political group that made a film criticizing Hillary back in 2008 during the primary season. The government wanted to ban them from promoting it during the two months leading up to the election. How can anyone think that's proper?

Let's say that you and I shared a passion for a political idea. We want to convince people of it and effect change through the political process. What would we do? We'd set up a non-profit (a corporation), convince donors of our cause, spend their money on pamphlets, broadcast ads, internet ads, discussion forums, etc. We'd support candidates that back our idea, and oppose those who oppose it. That is freedom at work and it's exactly what the Citizens United decision protects.

> whether people retain their rights when they coordinate as a corporation.

You are incorrect. Citizens United was decided based on the notion of corporate personhood -- the notion that corporations themselves have rights as if they are a person. There are very succinct and upheld limitations on individual monetary contribution to campaigns.

However CU broke that by giving people the ability to launder political money through a corporation.

Also, most non-profits (those 501c3s that want tax exemption) can not do any sort of campaigning. Those that do are subject to taxes.

CU said specifically that corporations are people that can "say" (aka spend) whatever they want to get their message across. People can make individual donations to support this effort essentially getting around existing campaign restrictions.

Money does not equal speech and there was a good reason monetary donations were restricted. By removing the restrictions they have reduced the ability of the average person to be heard because they now have to buy a bigger megaphone than the billionaires.

You really do need to read up on corporate personhood and election law. Let me guess... FOX News fan?

GP is correct, you are incorrect.

It's right there in the SCOTUS decision itself, spelled out clearly and unambiguously.

It's also fairly consistent with past SCOTUS decisions, like the 1957 decision United States vs Auto Workers:

"The principle at stake is not peculiar to unions. It is applicable as well to associations of manufacturers, retail and wholesale trade groups, consumers' leagues, farmers' unions, religious groups, and every other association representing a segment of American life and taking an active part in our political campaigns and discussions .... It is therefore important -- vitally important -- that all channels of communication be open to [all of the above types of associations] during every election, that no point of view be restrained or barred, and that the people have access to the views of every group in the community."

Scalia's comment in CU itself is relevant here:

"The [First] Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speaker"

In this case, he's referring to the "category" of a corporation, which is referenced in the 1886 decision Pembina Consolidated Silver Mining Co. v. Pennsylvania:

"corporations are merely associations of individuals united for a special purpose"

which parallels the 1830 statement in Providence bank vs Billings by Chief Justice Marshall:

"The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men."

and even further back, to the 1790 case The Rev John Bracken v. The Visitors of Wm & Mary College, which was in essence about the question of whether those running the college were bound by the decisions of its original founders or whether they had the right to, collectively, make changes according to their assessment of how to best carry out the common purpose for which the college existed.

While not directly about speech, the 1819 case Dartmouth College v. Woodward establishes limits on the legislature's ability to modify private contracts, such as the charter that established Dartmouth, and a series of later decisions specified that any modification must not harm shareholders, founders, members, etc.

And Santa Clara County v Southern Pacific Railroad Company (1886) establishes (indirectly) that corporations are entitled to the same type of 14th amendment due-process and equal-protection rights as individuals. Basically, just because people have organized into a group doesn't mean the government can treat them worse than it would if they were not corporately organized.

Of course, the fear that democrats may take both the presidency and the senate might motivate senate republicans to make a deal now, since there's a nonzero chance an immediate deal comes with maximal leverage.

I just don't see republicans as that cautious.

Nor do I in general, but Mitch McConnell is. He strongly prefers a nominee constrained by Grassley rather than by Manchin.

For the immediate future, even a 4-4 court is a marked improvement from the pov of democrats.

OK, but if they do not oppose, their supporters will not support them in the election. They have a duty and obligation to oppose.

An _incentive_ to oppose I can see. But I see no duty or obligation to not do your job for 11 months just because you don't like it. Brinksmanship may be a common part of the job, but it's not in the job description.

While I believe the immediate announcements are token and positioning (the more obstinate they appear, the better the odds of a more moderate candidate) it doesn't make me LIKE it any better.

> They have a duty and obligation to oppose

Which is why they are likely to put up token opposition - enough to placate their supporters. Everyone panders to the center when election time comes, because that's where most of the voters are. This is why the rhetoric is extreme during the primaries, but is significantly toned afterwards.

They have a majority of Senate. They don't need token opposition. They can just decide, as Mitch McConnell has already said, that this is a rare opportunity for the people to vote directly on the direction they want to take the court, and that's that.

This isn't unprecedented. Obama is a lame-duck President facing a majority opposition party in both Houses of Congress. His influence is close to its nadir. Scalia is a lion of the GOP. It would have been hard to replace him in 2015. It's probably impossible in 2016.

Obama is not a lame duck president until his replacement is nominated and then elected. That happens in November.

That depends on whose definition you use, but this discussion is mostly about precedent; look up the "Thurmond Rule" to see why technical strictness about the term "lame duck" isn't really an issue here.

The Thurmond Rule, which is amorphous and inconsistently applied, only applies when an incumbent has "six months or so" remaining in his term. We are still several months away from that excuse being valid.

Will the central-mass of the voting public be amused by yet another "obstructionist move" by Republicans? That is how it will be spun by the Democrats: the ads will basically write themselves ("instead of working, the GOP is shutting down government. Again")

Refusing to confirm a nominee isn't "shutting down the government", and speaking as a liberal and moreover a supporter of the Democratic coalition, I don't think our side does itself any favors by pretending like the GOP's entirely predictable refusal to allow Obama to appoint a Supreme Court justice on his way out the door is unprecedented or harmful.

The GOP is making Scalia's replacement a campaign issue. So be it! If the Democrats win, they'll have earned a mandate to replace a lion of the Republican Party with a committed liberal.

They may find themselves between a rock and a hard place.

> If Republicans oppose the nomination, that could be used as political leverage against them during the election.

"Them" being Republicans, or Democrats? Trying to understand.

It will be interpreted as Republicans shutting down the government... again. Moderates and Independents, and Centrists on both sides tend to strongly dislike that, and it could swing the election to a Democrat victory.

No it won't. The Supreme Court will function just fine with one open seat. Ties affirm whatever the lower court decided. Whole Supreme Court terms have elapsed, within the last 50 years, with empty seats.

I think it's far easier to sell the argument that the voters should decide on who gets to nominate a replacement for Scalia, than that we should shut down national parks or whatever. These aren't remotely the same type of "shutdown".

wait didnt the voters decide when obama got reelected? he's still the president right?

They also decided when they gave Republicans control of the senate.

That might be the case, but stalling a justice nomination isn't as severe or visible as a government shutdown and might not get the same level of attention.

Conn Carroll, spokesman for Mike Lee (R, Utah, on the Senate Judiciary Committee) concurs, inquiring: "What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?" and proposes that "If anything this will put a full stop to all Obama judicial nominees going forward."

https://twitter.com/conncarroll/status/698626902160838656 https://twitter.com/conncarroll/status/698627015159644160

Ted Cruz has already called for the process to get delayed for the next president. (Which seems ridiculous to me, since that's not in line with either Cruz's or Scalia's commitment to constitutionalism and the rule of law, but hey.)


The Senate had been (apparently) filibustering presidential appointments quite a bit more of late, both Democrats against Bush and Republicans against Obama, concluding in the Republican-devised "nuclear option" being used by the Democrats in 2013. Nominations by the president now only require a simple majority, not a supermajority, with the specific exception of Supreme Court nominees.


It would not be surprising at all to see the same sort of filibustering that was previously applied to both Obama and Bush's nominations be applied to whomever Obama nominates to the Supreme Court.

<the Republican-devised "nuclear option" being used by the Democrats>

How's that again?


The "nuclear option" was named by Trent Lott (R-Miss.) in 2003 and first seriously threatened by majority leader Bill Frist (R-Tenn.) in 2005. It got actually invoked by the Democrats in 2013, in the reverse situation: the Democrats had a majority but not a supermajority of the Senate, and a Democratic president.

That struck me as premature and unlikely. There's 11 months left in Obama's term, after all. That seems like enough to get a replacement in there.

The longest Supreme Court confirmation took ~4.5 months.

But that's the process for one candidate. The whole process of replacing a candidate will take longer.

Seems like it usually takes a month or two for presidents to appoint someone new, and this might be affected by the supreme court's schedule, too.

The game theory of this is interesting, for instance, what if Obama nominates someone that is seen as more moderate than someone that Hillary or Sanders would nominate?

I will be shocked if Hillary nomination is more liberal than Obama's. Hillary is a conservative in Democrats clothing currently she is spouting liberal agenda to get the nomination once elected whe will go for conservative options under the umbrella of getting things done.

Warning: Rhetoric and opinion

Hillary, in my opinion, is whatever she needs to be to get her way. My biggest concern with Hillary is that in order to win the high office, she'll have to embrace the progressive mantle. If so, her first appointment would likely be one that leans progressive, if only to ensure that she keeps the peace enough to be re-elected to a second term.

Well, considering that the Presidential election is this year... (the Republican) Congress will not confirm any nomination from President Obama before the election is over. So, I imagine that the appointment won't happen until after the election cycle. This makes the Congressional races a bit more interesting.

edit/ Some words.

Won't they be under an awful lot of pressure considering it will be obvious they are obstructing normal business?

No. Look what happened when Bush was president, and the democrats stalled the election of supreme court justices. The republicans control 53 senate seats, and can refuse to confirm any justice till they know the outcome of the presidential election. If Trump wins, they'll stall until he takes office. If Sanders or Clinton wins, then they will grudgingly confirm who Obama chooses with some limits.

uhhhh... might want to check your facts on that one.

Both Roberts and Alito went through on timelines similar to judges nominated by Reagan, H.W., and Clinton.

The only nomination from Bush that faced extreme opposition was that of Harriet Miers, and that was from conservatives, not the democrats.

Does the name Robert Bork mean anything to you?

Reagan nominated Bork, not GHWB.

To be fair, one of those was Harriet Miers, who was eminently unqualified for the position, and 100% deserved to be blocked.

Another key point: the Democrats didn't say going into the nomination that no matter who Bush nominates they will reject. They were prepared to debate and decide on the nomination based on the merits of the nominee, not a blanket statement saying "we will not agree to anything, ever" - which is how the GOP has behaved during the Obama administration.

I said this above, but I'll repeat: if they do not reject, their Republican base will revolt and not vote in the upcoming election. They will absolutely be expected to reject and oppose until Obama is out of office. There are 2 sides in the political game, remember. And since supreme court nominations are so important, and this changes the balance, voters will demand they reject his nominees.

I don't know. Given the timetable and the fact that neither the Republican Party or voters can say who will win the presidential election, it seems like there would be room for a qualified, centrist candidate.

Especially if Sanders and Trump stay in the race.

Better the devil candidate you know, etc etc

> if they do not reject, their Republican base will revolt and not vote in the upcoming election.

The upcoming election is a general election; they need to appeal to more than their base. In the past year the Republicans in Congress have been trying to shed their obstructionist, irresponsible reputation as the party that shuts down government, holds the solvency of the U.S. hostage, etc.

I wish them good luck with that, considering that the reputation of the GOP as uniquely obstructive in comparison with previous Congresses is purely a construction of media propaganda and is therefore not going to be overturned merely by their good behavior.

(A Democratic Senate slow-rolled or blocked innumerable Bush judicial nominees, some for several years, and the Democratic Congress shut down the government several times under Reagan. Both sides have the power to do these things, and have exercised them freely in the past, and somehow the world continued to turn.)

> the reputation of the GOP as uniquely obstructive in comparison with previous Congresses is purely a construction of media propaganda

I'm pretty sure that's not the case. For example, I know the recent GOP Senators used dramatically more fillibusters than anyone before. Also, I'm pretty that some basic fiscal issues like raising the debt limit weren't politicized before recently.

> somehow the world continued to turn

I think this is a dangerous belief. Actions, especially by the U.S. Senate, have serious consequences for millions to billions of people. The world merely continuing to turn is not a standard; there are serious problems in the world that need to be addressed well, or human welfare in the U.S. and elsewhere will suffer greatly.

> I think this is a dangerous belief. Actions, especially by the U.S. Senate, have serious consequences for millions to billions of people. The world merely continuing to turn is not a standard; there are serious problems in the world that need to be addressed well, or human welfare in the U.S. and elsewhere will suffer greatly.

Was this also the case when Democrats blocked George W. Bush's judicial nominees for years, or shut down the government half a dozen time under Reagan? You can't have it both ways.

I didn't ask for it both ways. However, as I said, I don't believe the earlier events rise to the level of what the GOP has done recently. If they block a Supreme Court appointment for 11 months it certainly will be unprecendented.

I'm merely speculating as to why the Judge who was quoted said what he said. But, yes, of course. 10 months is a long time to stall a nomination. I don't know of any precedent in this situation.

Did you forget the /s tag at the end there?

Hah, good point. But I guess the idea is that this is a major issue that will be in the spotlight. Tons of scrutiny and no way to cover what might be their obvious motives to avoid an appointment. The circumstances are extra-ordinary.

This has been one of the most obstructionist congresses in recent history, far from being under pressure, I would call it business as usual for them.

Typical is irrelevant, its a political process and the Republican majority in the Senate will be under strong pressure from within their own party's base to block any Obama nomination, both on ideological grounds and for strategic reasons (to preserve the nomination for their Presidential candidate, should they win.)

I wouldn't be surprised if there is no action until after the election (if a Democrat is elected), or the inauguration (if a Republican is elected.)

There's some merit to the argument that the voters should decide, too. It's not like this is a year where the outcome of the election is predictable; in fact, if anything, the GOP is on balance disfavored: call it a 50/50 shot at the Presidency, and a less than 50/50 shot at keeping the Senate, due to the 2016 map.

Any senator can put an anonymous hold on any nomination.

It's never been used for a supreme court judge.

This will most likely be the first time and it will be a new low.

Justice Antonin Scalia reads Heller(2008)[1] for the majority: https://s3.amazonaws.com/oyez.case-media.ogg/case_data/2007/...

[1] https://www.oyez.org/cases/2007/07-290

A dumb hypothetical because this will never happen, but: could Obama nominate himself to replace Scalia? And if the Senate somehow approved him, would he have to resign the presidency to take his spot on the bench? I don't see anything in the eligibility requirements to be President or a judge of the Supreme Court that would suggest an incompatibility. Is there relevant case law?

Well, there is the Ineligibility Clause in the Constitution (Article I, Section 6, Clause 2). But that only concerns the ineligibility of cross-serving in the legislative and executive/judicial branches, iirc.

There's nothing I can think of in the Constitution that prevents serving under the executive and judicial branches simultaneously. In fact, John Marshall did exactly that (Chief Justice & Sec. of State, iirc).

Huh, yup: John Marshall served jointly as Secretary of State and Chief Justice, for a few months at the end of the Adams administration.

source: the sidebar here https://en.wikipedia.org/wiki/John_Marshall

IIRC from a West Wing episode (where spoiler, the Speaker of the House becomes president due to an invocation of the 25th Amendment) one cannot serve two branches of the government at the same time. I'll try to find the law that backs that up.

Edit: I think the rule in question is the Ineligibility Clause: https://en.wikipedia.org/wiki/Ineligibility_Clause. Contrary to how it was phrased in the WW, this seems to only affect serving in the Legislative branch and the Judicial or Executive branch at the same time. I don't think it in itself puts limit on serving in the Executive and Judicial branches simultaneously.

* Contrary to how it was phrased in the WW, this seems to only affect serving in the Legislative branch and the Judicial or Executive branch at the same time. I don't think it in itself puts limit on serving in the Executive and Judicial branches simultaneously.

It doesn't - John Marshall served as the Secretary of State and Chief Justice of SCOTUS at the same time under John Adams.

You're suggesting that he appoint to SCOTUS someone who has never been a judge at any level, even municipal court?

That has happened once at the state level. It didn't end well.

I'm not suggesting that, merely asking if a ridiculous hypothetical situation would be legal. And contrary to your implication, there have been 40 SCOTUS justices who had no prior judicial experience, including several Chief Justices.

source: http://supreme.findlaw.com/supreme_court/justices/nopriorexp...

Things are going to get very interesting with the pending court decisions coming at the end of June.

Right? But worst case, they can probably deduce how Scalia would have voted (which certainly wouldn't be allowed even though it's likely to be pretty accurate in this case).

Split decisions affirm the lower court's rulings.. So the initial Appellate Court decisions are probably a good barometer to see where things will land. The ever-helpful SCOTUSBlog with a bit more background:


So far, the only story that has been posted that has any significant information about Scalia's career has been this one, from the Chicago Tribune:


There's no working link now.

The Tribune link works for me.

Question for those familiar with how the Judicial system works: If Congress prevents any new appointments until after the election cycle, does that mean that the Supreme Court is effectively halted on making any rulings? What happens to the cases currently being taken on and those that are queued up? Would they all potentially be delayed an entire year+?

No. There are eight justices left. The quorum is six.

Source: 28 U.S. Code § 1 https://www.law.cornell.edu/uscode/text/28/1

Ok, thanks.

Do you also know how split decisions are handled now?

Split decision means the lower court decision is affirmed. Simple majority is required for a reversal, or any change to status quo.

Think about the Supreme Court as a very small Senate. The individual justices do not make decisions. The whole body does. They do operate a lot like a legislative body procedurally.

Ah ok, thanks for explaining it.

Tangential, but if you're sat there going "Marfa, that rings a bell" (he died in Marfa) - this is probably why. Temperature inversion that reflects headlamps, apparently. https://en.m.wikipedia.org/wiki/Marfa_lights

My only knowledge of Marfa is the Prada Marfa: https://en.m.wikipedia.org/wiki/Prada_Marfa

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