RIP, Antonin Scalia, and heaven help us as we deal with the aftermath

Scalia

Enormous news today. From the San Antonio Express-News:

“Associate Justice Antonin Scalia was found dead of apparent natural causes Saturday on a luxury resort in West Texas, federal officials said.

“Scalia, 79, was a guest at the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa.

“According to a report, Scalia arrived at the ranch on Friday and attended a private party with about 40 people. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body. …

“U.S. District Judge Fred Biery said he was among those notified about Scalia’s death.”

Scalia was a legal hero to conservatives, a brilliant legal mind who stuck as surely as any justice to the original intentions of the Framers of the Constitution. Amid a series of appointments by Republican presidents who ended up being disappointments to conservatives, Scalia stood out as one who delivered. He was not only philosophically sound and solid, but his opinions frequently drew attention for their pithy, even biting, quality. Consider his dissent in last summer’s ruling in King v. Burwell, in which a 6-3 majority upheld Obamacare subsidies in states that don’t operate their own exchanges. He branded the majority’s contortions “jiggery-pokery” and at one point offered a succinct, one-sentence rebuttal of an argument: “Pure applesauce.” The entire case, he wrote, meant the law should be called “SCOTUScare” because of the court’s role in salvaging the poorly constructed legislation. Scalia has long been held up as the kind of judge presidents, especially Republican presidents, should aspire to nominate.

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That brings us to the obvious question in everyone’s minds — it’s unfortunate that it comes before the great jurist is even buried, but this is the world we live in. That question was also on Biery’s mind, and he addressed it in a statement to the Express-News:

“‘I was told it was this morning,’ Biery said of Scalia’s death. ‘It happened on a ranch out near Marfa. As far as the details, I think it’s pretty vague right now as to how,’ he said. ‘My reaction is it’s very unfortunate. It’s unfortunate with any death, and politically in the presidential cycle we’re in, my educated guess is nothing will happen before the next president is elected.‘”(emphasis added)

That educated guess will surely be put to the test. The fact is that this situation has arisen very rarely in recent decades: Before Chief Justice William Rehnquist in 2005, no justice had died in office since 1954. Too, there is precedent for a court opening in an election year waiting until after the new president takes office. It happened in 1968, although one significant difference is that the opening came in June of that year (with Earl Warren’s announced retirement), not February.

Relations between President Obama and this Congress have been frosty for years, but he has not had a Supreme Court vacancy since before Republicans took control of the House, much less the Senate. In fact, when he appointed Elena Kagan to the bench in 2010, he still had 59 senators who either were Democrats or caucused with the party.

Obama finds himself in a rather different position now, with Republicans holding a 54-seat majority, but he is far from being without options. The Supreme Court is roughly halfway through its current term, which begins each October, although it has only a couple of months longer to hear cases. Practically speaking, no nominee would be confirmed and seated in time to participate in this current term. However, the same timeframe means a nomination that doesn’t come until Obama’s successor takes office would also be too late for the next term. That would effectively mean the court would go two terms with only eight justices.

Expect Obama to use that to make the argument that he should in fact nominate Scalia’s replacement. But with Republican candidates already coming out with statements indicating the nomination should wait until after Jan. 20, 2017, if the GOP-led Senate can’t run out the clock until then, it is at least in position to demand an ideologically neutral appointment. Would Obama be willing to do that? Could senators ever feel certain they were getting a truly centrist jurist and not buying a liberal in a poke? One thing is certain: Any agreement would have to come before summer, when each party has its nominee and the odds of a Democrat vs. a Republican winning the presidency came into sharper focus.

UPDATE: No sooner had I published this post than the following was reported by Politico:

That sounds like quite a line in the sand. From the other side, Democrat Sen. Patrick Leahy, past chairman of the Judiciary Committee, we get this:

So this is not going to be resolved easily, it seems.

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Feel free to speculate about the future in the comments thread below, but I would ask everyone to be respectful of the departed. Dancing on the grave of a man who served the American people, whether you agreed with his opinions or not, will not be permitted.

Reader Comments 0

120 comments
Rebecca McFeeters Haney
Rebecca McFeeters Haney

I may not have shared his points of view, but I take no personal pleasure in his passing...he has a family that is grieving..we can all relate to that on a personal level....please be dignified and consider what his loved ones are going through...in other words, don't be a politician...be a human being xo

Antoine Averill
Antoine Averill

Man your never to old to learn something new . I did not know that.

Torraine Walker
Torraine Walker

Republicans invented double standards and hypocrisy.

lvg
lvg

Bigger issue out there is Ginsberg who probably would have stepped down and expected Obama to replace her before he left office. Are Cons going to block that nomination too?

LilBarryBailout
LilBarryBailout

Democrats said its OK to block nominees, more than a year before an election, so relax.

Joel Shipp
Joel Shipp

John, explain how this was their loss. I'm curious how it was the brothers' loss.

John M. Bentley II
John M. Bentley II

Remember when McConnell approved a SCOTUS nominee in "W"'s last year in office? History never forgets.

John M. Bentley II
John M. Bentley II

Scalia was no shining example of humanity. The man was filth, why would anyone defend him.....unless they're filth themselves?

Drew Token Robin
Drew Token Robin

It's funny how you said that in advance, knowing there are many who are happy he's gone. Maybe he shouldn't have been so cold when he was still alive. Now he'll be cold for eternity, and the big wheel keeps on turning. I'm over here doing the Watusi by the way

LilBarryBailout
LilBarryBailout

Which freedoms would a liberal court infringe upon first? Leftists are already working on limiting speech, religious expression, and the right to keep and bear arms. What else is high on the to-do list, liberal fascists?

lvg
lvg

@LilBarryBailout How about states rights to determine their own election procedures? Of course if one of the two candidates is represented by your son, states rights don't matter under the originalist view of the 

Constitution especially if your son is elected by the winning candidate you have chosen,  for a plum solicitor's job.

Rhon Lee
Rhon Lee

Marc Mac Nonia is crushing you clowns.

Stephen Scruggs
Stephen Scruggs

Block the lame duck, Trump will pick next judge. Period.

lvg
lvg

One of his lawyers?

bu22
bu22

Looks like you will need to delete about half the comments on Monday Kyle.  They didn't respect your wish about disrespectful comments.

Justin Spancake
Justin Spancake

These comments are sickening. Liberals and your double standards and hypocrisy. Unbelievable.

Starik
Starik

Well, Fisher v.Texas will get decided (the big affirmative action case) - Justice Kagan recused herself, which means a 4-3 decision is likely.

Tim Scott
Tim Scott

And I shall dance all night.

lvg
lvg

I guess Cruz can't count anymore on the Supreme Court  to rule that a Canadian can be a natural born citizen. He won't get anointed  like W was.



Ivy Oxendine
Ivy Oxendine

Preach. Agree or disagree - a great American

Kevin Kitchen
Kevin Kitchen

I'm not dancing but I'm not at all unhappy to see him gone. He was a bigoted racist and hateful homophobe. Hopefully Thomas will be next.

Hedley_Lammar
Hedley_Lammar

Obama nominates a qualified candidate that cant get confirmed.


HC wins the WH against Trump and Democrats take back the Senate in a landslide.


Obama is nominated by HC and confirmed.


Seriously though lets let the mans family grieve and bury him. Obama has plenty of time to nominate someone and Republicans will have their say as well.

Joe Warner
Joe Warner

Robert Landrum dying doesn't suddenly make you a good person

Pat Smith
Pat Smith

AJC, you mean the Republicans and other Racist independents right? Well listen here, Scalia is well now; as death has no Affirmative Action.

Mike Williams
Mike Williams

Some of these comments are downright low-rent trash. You people ought to go live in Eastern Europe then see how you like all this progressive socialism. Feuerbach, Hegel and Marx were wrong; you have built your life on a mudhole in a swamp!

Shelton Hall
Shelton Hall

The decision was the lower court is upheld.

Matthew Thome
Matthew Thome

Lionel Jefferson Griffith Obama's the President, he was duly elected, thus he gets to fill Judicial Branch vacancies. That's the way the cookie crumbles. If you don't like that, work harder to get someone you agree with elected President next time.

Starik
Starik

I'm certain the Republicans will delay until the election in November... a very important election indeed.

Adam Long
Adam Long

President Obama would not be the deciding vote. He has no power beyond nominating the Supreme Court Justice. This is outlined in the separation of powers in the Constitution.

David L Cain
David L Cain

you are absolutely correct Scott. the man was almost as bigoted as Donald the Trumpster.

Derek Baker
Derek Baker

R.I.P. Pretty sick to discuss dancing on a Supreme Court Justice's grave.

Ralph Johnson
Ralph Johnson

Jay Barton I have not suffer so what you talking about.

Abdul Nur
Abdul Nur

Dancing the night away \U0001f60a

Michael Gilmore
Michael Gilmore

Robert Landrum ....Harsh Yes !!!! But In Real Life...You're Are What You Fight and Stand For.....I've Never Felt Sorry for Famous Racist When They Pass Away. ..Not Saying Scalia Was a Racist By Any Means Here...I Haven't Studied His Legacy Well Enough to Judge His Character

Benson Reese
Benson Reese

we'll be taking the Court now. good day. ❤️

David A Dawson
David A Dawson

I stopped dancing to read this article. Now back to the dance!

Charles Mitchell
Charles Mitchell

Remember Obama is still president. William J. Brennan was a recess appointment to the Supreme Court by Eisenhower. LOL! Eat it conservatives/republicans!