I spent this weekend playing in the annual chess extravaganza known as the US Amateur Team East (epic blog post to follow). On Saturday night, I was having dinner at an excellent Japanese restaurant with some of my teammates. One of them, who happens to be a lawyer, had his phone out and said, “Hey, you know who just died?”
Since he knows the kinds of things I’m interested in, I was afraid he was going to say Richard Dawkins, who recently had a minor stroke. But then he said, “Scalia.” Now, this particular friend is supporting Bernie Sanders in the primary, so that at least suggests he wasn’t Scalia’s biggest fan.
The first thought to go through my mind was that there was no way the Republicans would allow Obama to appoint the successor. And McConnell did not wait for the body to get cold before saying precisely that. They’ve even made up a theory about why their complete obstructionism is justified. Here’s Senator Chuck Grassley, chair of the Senate Judiciary Committee:
“The fact of the matter is that it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year,” Grassley said.
“Given the huge divide in the country, and the fact that this president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”
Grassley is lying, of course. Since 1912 there have been six instances where a Supreme Court vacancy occurred in the final year of a Presidential administration. All six times the President nominated someone and the Congress confirmed the nominee. As for the rest of it, it’s the Republicans who have been pushing one frivolous suit after another to overturn their losses in the legislature, most notably with regard to Obamacare. And Obama’s very tepid executive actions, well in line with what past Presidents have done, hardly constitute circumventing Congress to push through his own agenda. Again, it is the Republicans who are running to the courts to achieve what they could not get done at the ballot box.
It is a very big deal to just leave a Supreme Court vacancy open for more than a year. Those controversial 5-4 decisions on cultural issues that get all the attention are actually a tiny fraction of the cases the Court hears. The main function of the Court is to bring clarity to situations in which the lower courts have presented different decisions. Most of their decisions are not 5-4, and most deal with difficult, technical issues that do not make for good television. But without this role, you have a situation where the laws simply change from state to state. This creates chaos.
But Republican politicians don’t care about that. They fundamentally don’t take governing seriously. For them, the role of government is to ensure that rich people don’t have to pay taxes, and to ensure that corporations don’t have to abide by even the simplest, most common-sensical regulations. Anything beyond that they care about only to the extent that it is relevant in an election year. Then they come down from on high with their usual platitudes and catchphrases, and since morons comprise a large voting bloc Republicans often do well in elections. By “moron” I mean someone who complains that Washington is broken, but does not understand that it is broken only because the Republicans deliberately set out to break it.
Some have expressed surprise that the Republicans have taken such a strong line. After all, most people understand that the government should continue to function even when the other side wins the election, and they don’t like mindless obstructionism. The Republicans could have played this more subtly, talking about how the Constitution gives the President and the Congress distinct roles to play and saying that they will respect the process and so on, all the while knowing they could just drag out the proceedings and eventually just vote down whomever Obama nominates. But there is no mystery to why they did not do that.
The Republicans understand that their base is barking mad. The base already thinks that the establishment is just a bunch of sell-outs and compromisers, which is why Donald Trump and Ted Cruz are the current frontrunners for the nomination. They would never trust the Republicans to go through the process and then pull away the football at the last minute. Nothing less than full, contemptuous, obsctructionism will satisfy them.
As for Scalia himself, the hagiography has already begun. He was a giant of conservative thought. Love him or hate him, he was a brilliant jurist whose philosophical defenses of originalism fundamentally changed the Court. And he was sooooo funny.
Please. Apparently it was just a coincidence that nearly always the “original intent” of the Constitution was perfectly aligned with what his own brand of right-wing extremism would recommend. Scalia was perfectly happy to ditch originalism when it conflicted with what he wanted to do. For example, in the recent case over the Voting Rights Act, it carried no weight with him that the Congress had reaffirmed the law unanimously. It is hard to imagine a case where the intent of the legislature was any more clear than that. But Scalia talked patronizingly of “the perpetuation of racial entitlement,” decided that the Congress had acted under political pressure, and gutted the act anyway.
Incidentally, the racial entitlement in question was voting.
This was hardly a unique occurrence. Bush v. Gore was ludicrous on originalist grounds. The original intent was that each state carries out its own election governed by the laws of that state. Moreover, it is hard to see how the interests of justice are harmed by striving to get an accurate count of the vote. But Scalia, along with everyone else, knew that a recount would show that Al Gore had won the Florida election (which, indeed, is precisely what happened). So originalism was set aside so that five corrupt justices on the Court could pick the President. The same justices, mind you, who constantly give lectures on the evils of judicial activism.
Let’s wrap this up, however, by identifying the real villains of the piece. I’m referring to the worthless, empty-headed, asshole Democratic voters who just cannot be bothered to show up for anything other than a Presidential election. We are in this mess today mostly because of those horrible people. These are the ones who whine that the system is rigged, but sat idly by while the ones who rigged it got elected. The Republicans are not in control of the Senate because their ideas are more popular. When specific policy questions are polled the Democrats win almost every time. And it is not as though there are insufficient Democratic votes out there to win elections. Obama won by enormous margins twice, after all.
The Republican base might be barking mad, but at least it votes. The Democratic base suffers from a different pathology. They seem to think a President can just wave a magic wand, and then they get discouraged when it turns out that he can’t.
This particular pathology helps explain the groan-worthy, face-palming, popularity of Bernie Sanders among the Democratic base, but that’s a different post.