Scalia

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.

Comments

  1. #1 James Downard
    Spokane WA
    February 18, 2016

    Though by all accounts Scalia had a sharp sense of humor and got along personally with even the liberal justices, his rulings had effects beyond even his ideological originalism, such as his dissent from the Edwards v Aguillard case whose tropes have continued to ripple in antievolution apologetics http://www.tortucan.com/chapter1/riding-off-the-rails-antonin-scalias-edwards-v-aguillard-dissent.html

  2. #2 JimV
    February 18, 2016

    Bush v. Gore destroyed my faith in the USA justice system. During my lifetime, prior to that, there had been a few cases (such as Muhammad Ali’s appeal of his draft-dodging conviction) in which conservative justices had made judgments based on law which went against their personal feelings. Bush v. Gore seemed like a blatant case of making a decision based on partisan politics and then justifying it with ridiculous rationalizations.

    Historically partisanship was probably closer to the rule than the exception. I think World War II had a long hangover in which the feeling of being all in this together gradually faded.

  3. #3 sean samis
    February 18, 2016

    I am no fan of Scalia; original intent is a sham. But the man made his mark. That’s for sure.

    That the bed he died in was part of a corrupt gift will quickly be forgotten.

    sean s.

  4. #4 Deepak Shetty
    February 18, 2016

    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

    +1
    I will also add the 3rd party candidates who show up for Presidential elections but will not do the ground work necessary (fight for and elect candidates at the local level , then the state , then think about presidency

  5. #5 G
    February 18, 2016

    Prediction: if the Republicans try to run out the clock on this nomination, they will guarantee a Democratic landslide the likes of which we haven’t seen before.

    What they will most likely do is make a lot of noise & stink to get points with their base, and then acquiesce to accept a compromise nominee.

    As for their asinine rationalizations, President Obama should go on national TV and tear them to shreds most thoroughly, something that he could do in about five minutes but he should take ten minutes to be sure it sinks in.

    Another substantial shortcoming among Democratic voters is in not becoming active in their local party organizations, where local office candidates are chosen, and there is substantial input to state and national candidacies. Failure to show up for mid-terms is also a known issue as you said.

    Ad-homs directed at Bernie supporters are not only bad debating tactics (ad-homs lose) but guaranteed to backfire. A substantial number of us who are supporting Bernie in the primary will also equally support Hillary in the general if she is the nominee.

    But if all you have to say is an ad-hom attack, one FU typically elicits another in return (empirical finding, multiple replications), so congratulations on shooting yourself in the foot. I expected something better coming from an advocate of reason.

  6. #6 Wesley Dodson
    February 18, 2016

    I agree with you that Democrats need to vote more. Like the Republican base, most of us want to see change in Washington. Bernie Sanders would try to change things, magic wand or no. Hillary would not. She is not a progressive…she has no ideological consistency…she is a politician and a tool.

  7. #7 Michael Fugate
    February 18, 2016

    I wonder how Scalia would have felt about originalism were he magically transported back to 1800? Lots of love for Italian Catholics, no doubt? Harvard, sure? Would he have lived to 79 and die in sleep digging ditches without healthcare? I doubt it.

  8. #8 eric
    February 19, 2016

    If the 2014 electorate had resembled the 2012 electorate in terms of race, the Republican vote share would shrink by just 1.97 percentage points. In other words, in a 2012 electorate, Republicans would have won the popular vote for the House by 4.5 points, rather than 6.5 points. That’s not nothing, as they say, but it still only explains a relatively small share of the difference between the 2012 and 2014 results. Put differently, if Obama had put up the same vote shares among racial groups in 2012 as Democrats ultimately did in 2014, he’d have lost.

    Mid-term turnout and demographics really weren’t a major issue. IMO the much bigger factor is gerrymandering; the Dems have lost any possibility of House control in several states because the electoral maps have been redrawn to lock in GOP victories. For at least a decade or two, until normal population shifts within those districts render the gerrymandering ineffective. But that’s a very slow process and as of right now, the Dem have pretty much no hope at all of regaining the House.
    Which has not much to do with SCOTUS since that’s a Senate issue. But I mention this because identifying the wrong problem can lead to adoption of the wrong fix strategy which can lead to failure to achieve the desired result, and IMO that’s what you’re doing here Jason. If dems and rebs showed up to vote in the midterms in the same percentages and numbers they show up in the presidential election years, the dems will not regain the House. That’s teh wrong problem, and solving it won’t actully fix the problem you really want to fix, which is that House district maps do not reflect national, state, nor sometimes even local population voting preferences.

  9. #9 colnago80
    February 19, 2016

    Re Eric

    Your analysis is absolutely correct and accurate. In 2012, Democratic candidates for House seats got more then a million more votes then did Rethuglican candidates and still did not come close to winning the House.

  10. #10 Jason Rosenhouse
    February 19, 2016

    Eric, the issue was the Senate, not the House, where voter turnout was the major issue in 2014.

    Wes, what Bernie Sanders will try to do if elected is irrelevant. He is a socialist, and an atheist, either one of which is fatal in a Presidential race.

  11. #11 JimV
    February 19, 2016

    Bernie Sanders is an atheist? I had never heard that, so I googled. Number 1 hit:

    http://www.religionnews.com/2016/02/04/bernie-sanders-disappoints-atheists-strong-religious-feelings/

    “Presidential hopeful Bernie Sanders dashed the hopes of some atheists when he declared he had “very strong religious and spiritual feelings” at a Democratic town hall.”

    As for being a Democratic Socialist, I expect most of the people who will not vote for him on that ground will not vote for Hillary Clinton either.

    I’ll vote for him if he is nominated, but I expect HRC’s huge lead in the “super delegate” votes will overcome his popular support.

  12. #12 Pedr
    Omphalos
    February 19, 2016

    “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.”

    ! I thought I was the only one who blogged after a few drinks…

    BTW – Our founders ‘knew’ that swarthy Mediterranean types were all stupid and inferior.

  13. #13 Jason Rosenhouse
    February 19, 2016

    “Very strong religious and spiritual feelings” is a political euphemism for atheist. If he identified with any conventional religious beliefs he would have said that.

    Elsewhere, Sanders has described himself as not particularly religious, and declined to say bluntly that he believes in God:

  14. #14 Narad
    February 19, 2016

    Wes, what Bernie Sanders will try to do if elected is irrelevant. He is a socialist, and an atheist, either one of which is fatal in a Presidential race.

    Having previously failed to gain the nomination isn’t a particularly promising trait, either.

  15. #15 JimV
    February 20, 2016

    ““Very strong religious and spiritual feelings” is a political euphemism for atheist.”

    I guess the Pope and the Dalai Lama are atheists then.

    You may question his sincerity, or call him a liar, but he does not self-identify as an atheist. He does self-identify as a Democratic Socialist. It seems to me that any principled attack on his candidacy should involve facts, not innuendo. Of course there will be unprincipled attacks on every candidate, but such attacks are easy to dismiss in the absence of facts. Indeed, unprincipled attacks on a candidate may convince the candidate’s supporters that they have chosen the right side.

  16. #16 Narad
    February 20, 2016

    I guess the Pope and the Dalai Lama are atheists then.

    Lamaism is syncretic, but you might want to brush up on your Mahayana before tossing Tenzin Gyatso into such statements.

  17. #17 Jason Rosenhouse
    February 21, 2016

    Richard Dawkins describes himself as having strong religious feelings. And the Pope does not run from opportunities to affirm that he believes in God.

    You’re trying to deny the obvious. Sanders is an atheist.

  18. #18 Narad
    February 25, 2016

    You’re trying to deny the obvious. Sanders is an atheist the only current candidate with a positive “favorable” rating among general-election voters.

    FTFY. Blame the DNC, not the “groan-worthy” “Democratic base,” whomever they’re supposed to be in this construction. Or proportional allocation, whatever.

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