Welcome to my nightmare, America

March 8, 2016


Lawrance Bernabo
The Sneezing Opossum

First, let me say that if Barack Obama had Antonin Scalia murdered, he should be impeached. For several years, I have been warning my students that if they thought American politics were bad now, wait until the death of a Supreme Court Justice who was not appointed by the party controlling the White House.

The worst-case scenario—as I said on more than one occasion—would be if Scalia died while Obama was president, at which point Republicans would shut down the government rather than let Democrats regain control of the Supreme Court. Welcome to my nightmare, America.

Within minutes of Scalia’s death, Republican Senate Majority Leader Mitch McConnell said, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”  

At least McConnell is consistent. He has never believed any votes cast for Obama have ever counted.

The fact that no justice has been confirmed in an election year for 76 years is largely because, since 1953, the only two justices to die in office were Scalia and William Rehnquist. Fifteen retired and three resigned.

Since 1900, six presidents appointed justices in the final year of a term. Five of those were confirmed. But if there is one thing we know this election year, it is that you cannot fight political rhetoric with mere facts.

Republican presidential candidate Marco Rubio declared, “In the last year of a president’s term, in his second term especially, there should not be Supreme Court nominees put into lifetime positions for a president that you’re not going to hold accountable at the ballot box.”

I do not understand why that logic only applies to the final year of Obama’s presidency. As soon as he was re-elected he was no longer accountable at the ballot box. You do not even have to wait for the president to be sworn in again for him to be a lame duck. Even if you think off-year elections are referendums on the president, that would still apply to the final 26 months of their term.  
Joe Biden made a similar argument way back when, and Republicans have finally decided he was right. But if Biden was right about that, there must be a bunch of other things he is also right about, right? Biden filling the intellectual vacuum left by Scalia is an interesting twist.

Jeb Bush says Obama would pick somebody outside the mainstream. True. Obama nominated two female justices, and women are obviously outside the mainstream. But the greatness of Scalia was that he was outside the mainstream. Nobody is ever going to find anybody to the right of him.

Remember when abortion was a litmus test for both parties? Well, forget those simple days. Cruz and Rubio have a long list of litmus tests, even though no nominee is ever going to say how they would vote on an issue.
Potential Obama nominee D.C. Circuit Judge Sri Srinivasan was confirmed unanimously in 2013, but Rubio says such numbers are meaningless because the Supreme Court is a different standard. Why?  

When a presidential candidate picks a running mate, aren’t they supposed to pick someone qualified for the top spot? Obviously, Geraldine Ferraro, Dan Quayle, and Sarah Palin proved that does not always happen, but at least such unqualified people have only been a heartbeat away from the Oval Office once in the last three decades. Why wouldn’t you do the same thing for the high courts?

What Republicans are forgetting is that, of the 13 District Courts of Appeal, nine are dominated by Democratic appointees, which means as of right now every “liberal” decision that is heard by the Supreme Court and gets a 4-4 vote stands. Obama and the Democrats basically have 9/13 of the fifth liberal justice right now.

So there is no motivation for Democrats to ever allow a Republican president to have a conservative majority on the Court if they win the election. You need 60 votes in the Senate to confirm a Supreme Court Justice, and that is not happening for years, maybe decades. What is a crock for the goose is a crock for the gander.  

What would Scalia think about all this nonsense?  Probably that it is not what the framers intended, but that it is permitted by a strict reading of the Constitution. 

It was not a mistake for Obama to skip Scalia’s funeral because the killer always shows up to the funeral. I would say that was a smart move, but waiting until the final year of his presidency to bump off Scalia was pretty stupid.

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