On Scalia and Naming His Replacement

On Scalia and his legacy, I wrote this.

The issue of replacing Scalia, Kagro and I did this. Starting at the 40 minute mark, I think David and I discuss this in a manner that, imnsho, you won't find anywhere else. Take a listen.

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    I just read a searing rip on Scalia (5.00 / 1) (#46)
    by Towanda on Mon Feb 15, 2016 at 10:22:51 PM EST
    (on Facebook, in a private group, so I can't just embed a url here) as a law prof at U of Chicago, about his treatment of African American students in 1978-79. The post is by one of them, detailing the insider help that they had -- a clerical staffer -- to put together evidence of grading bias, taken to the dean. Then, it was quietly covered up, as campuses do.  But the details are sufficient, and then some, to suggest this is a credible account.

    (And it also indicates previous, similar problems at U of V.)

    Yep-Scalia had a wonderful life (none / 0) (#50)
    by ruffian on Tue Feb 16, 2016 at 05:48:59 AM EST
    It is too bad he did so much to prevent others from having the same shot he did. Why? that is the question historians should be asking.

    They will (none / 0) (#54)
    by Towanda on Tue Feb 16, 2016 at 09:49:47 AM EST
    but they don't do so on FB or blogs, and in only days.

    Sandra Day O'Conner: (5.00 / 1) (#97)
    by Mr Natural on Thu Feb 18, 2016 at 04:46:51 AM EST
    "Let's get on with it"

    "You just have to pick the best person you can under the circumstances, as the appointing authority must do," she said. "It's an important position and one that we care about as a nation and as a people. And I wish the president will as he makes choices and goes down that line. It's hard."

    Don't have time to listen, but ... (none / 0) (#1)
    by Robot Porter on Mon Feb 15, 2016 at 11:49:26 AM EST
    do you mention the recess appointment option?

    It seems like something the Obama administration must consider.

    Yes, there's a Senate resolution against such an action. But it's not legally binding. And allows for them in "unusual circumstances".

    And this might be seen as an "unusual circumstance".

    We did (5.00 / 1) (#2)
    by Big Tent Democrat on Mon Feb 15, 2016 at 11:52:14 AM EST
    we reject it on 2 counts - (1) we dont think judges can be recess appointed.

    (2) Noel Canning means GOP can avoid recesses for Recess Appointment purposes anyway.


    I considered that second point ... (none / 0) (#3)
    by Robot Porter on Mon Feb 15, 2016 at 12:15:47 PM EST
    and I bet their staffs would revolt if that happened.

    I'll try to listen later.


    All of their staff do not have to be (none / 0) (#11)
    by jimakaPPJ on Mon Feb 15, 2016 at 02:47:55 PM EST
    there. Or any for that matter.

    I'm was being .. (none / 0) (#12)
    by Robot Porter on Mon Feb 15, 2016 at 02:50:43 PM EST
    a bit facetious; because it's an amusing notion.

    But, still, the staffs would bear a heavy burden.


    Actually I don't think the average Senator could (5.00 / 1) (#14)
    by jimakaPPJ on Mon Feb 15, 2016 at 02:56:57 PM EST
    survive without staff.



    Me neither. (none / 0) (#18)
    by Robot Porter on Mon Feb 15, 2016 at 04:02:09 PM EST
    I share your concern, BTD (none / 0) (#4)
    by Peter G on Mon Feb 15, 2016 at 01:04:26 PM EST
    about the logical incompatibility between the Recess Appointments Clause power (under which a Presidential appointment to a high federal office that ordinary requires Senate confirmation can be made when the Senate is in "recess," but is then only good to the end of that Senate Term) and the guarantee of Article III, section 1, that a federal judge, once taking office, cannot be removed except for lack of "good Behaviour" (that is, s/he serves for life unless impeached).

    You should read (none / 0) (#7)
    by jbindc on Mon Feb 15, 2016 at 01:23:36 PM EST
    Lyle Denniston's take at SCOTUSblog.  He discusses Noel Canning, but disagrees with your conclusion and says that the president can nominate a justice during a recess.

    His first paragraph (Post from 2/14)

    "The Constitution not only assigns to the president the task of making nominations to the Supreme Court, setting off Senate review that may or may not result in approval, but it also gives the Chief Executive the opportunity to fill a vacancy on the Court temporarily, bypassing the Senate initially, if a nominee languishes in the Senate without final action."


    I did read Lyle D's comment (none / 0) (#8)
    by Peter G on Mon Feb 15, 2016 at 01:31:54 PM EST
    I hold him in the highest regard. Despite being a journalist and not a lawyer or constitutional historian, he knows as much about the Supreme Court and the Constitution as almost anyone I can think of, and his opinions (though showing an admirable liberal sensibility) are straight down the middle in terms of intellectual honesty. However, he does not address the logical incompatibility with Article III, section 1. There may be a satisfactory answer to that problem, but so far I have not seen or heard what it would be.

    Some more thoughts (5.00 / 1) (#9)
    by jbindc on Mon Feb 15, 2016 at 02:24:06 PM EST
    Edward A. Hartnett's article in the Cardozo Law Review titled: "RECESS APPOINTMENTS OF ARTICLE III JUDGES:
    THREE CONSTITUTIONAL QUESTIONS" [article starts on p. 384] (2005 - pre Noel Canning).  Sorry, I can't link from my phone.  I didn't get to read it all very thoroughly, but he points out that (as of 2005), all but 6 presidents had made recess appointments to Article III courts, and there was never a question until Earl Warren's appointment.

    He compared the recess appountment to filling vacancies of elected officials,  which obviously are different in many respects, namely term limits and the ability to be voted out, but interesting nonetheless.

    He addresses the "life tenure" by saying:

    "It is true, of course, that a recess appointee lacks life tenure. But a recess appointee does not serve at the pleasure of the President, as Judge Norris claimed, but instead holds the office, subject only to impeachment, until the end of the next session of the Senate.:

    He also argues:

    "Of course, there is no basis in the constitutional text to treat the appointment of Supreme Court justices as subject to different constitutional rules than the judges of the inferior federal courts. Indeed, for many years, Supreme Court justices were the judges of the
    inferior federal courts, and to this day remain empowered to sit in that capacity."

    Anyway, it's surely not definitive,  but an intersting perspective.


    Since Article III does not explicitly guarantee (none / 0) (#44)
    by Peter G on Mon Feb 15, 2016 at 10:01:21 PM EST
    "life tenure," but only the right to serve "during good Behaviour," I suppose you could reconcile the two (as you should, if you can) by saying that the Recess Appts Clause is an explicit exception to the "life tenure" inference in Article III. The two are compatible if you read Article III to guarantee a judge (including a Justice) who takes office due to a recess appointment as being guaranteed security of office (during good behavior, that is) until the end of the Senate session and no longer.  

    On October 15, 1956, even though ... (none / 0) (#78)
    by Donald from Hawaii on Tue Feb 16, 2016 at 07:01:57 PM EST
    BTD: "We did[.] We reject it on 2 counts - (1) we don't think judges can be recess appointed."

    ... he was then seeking re-election and facing the voters in only three weeks, President Dwight Eisenhower seated William Brennan, Jr. on the U.S. Supreme Court by recess appointment, as authorized by the Constitution's Article II, Sec. 3, to replace the just-retired Associate Justice Sherman Minton. Should senators have declined to subsequently confirm Eisenhower's choice, Brennan's appointment would have expired at the close of the next session of Congress.

    Congress was not in session, and its members were back home campaigning. Brennan immediately began participating in the Court's decision making, since the Court's term had only just commenced the week prior.

    And if we're talking politics, well, Brennan's recess appointment was a nakedly political play, to be sure. Caught in a somewhat tighter-than-expected rematch with Democrat Adlai Stevenson, Eisenhower was trying to cajol Democratic voters to cross over for him, and his advisors thought that the appointment of  a liberal Catholic Democrat from New Jersey to the High Court might cinch the deal for him. It might very well have, at that.

    Brennan, who served until his retirement in 1990, arguably turned out to be the most consequential liberal justice of our generation. To be sure, he faced Senate confirmation hearings in January 1957 when the new Congress formally convened, but by that time he had already held the seat and been hearing cases for three months. The only senator to vote against his confirmation was Joseph McCarthy (R-WI).

    So, there is clearly precedent for a president to place someone on the Supreme Court through recess appointment, and that's Justice Brennan. He's one of our country's liberal icons and ironically, he was appointed by a Republican.



    I don't think BTD was unaware there was (none / 0) (#83)
    by Peter G on Tue Feb 16, 2016 at 07:40:48 PM EST
    precedent. He was suggesting that Brennan's initial appointment may have been unconstitutional, objectively considered. I opined above that I see merit in that analysis, and then I suggested an alternate reading of the two Clauses that arguably reconciles them.

    I agree with your take. (none / 0) (#87)
    by Donald from Hawaii on Wed Feb 17, 2016 at 12:03:54 AM EST
    Further, since nobody really argued against Brennan at all save for the odious Mr. McCarthy, his precedent-setting appointment as an Associate Justice stands.

    That's why people in government really need to be much more careful about setting potential precedents in important decisions like that, and give due consideration to how future policy makers might interpret their decisions as well as other potential factors, rather than simply succumb to the expediency of the moment.

    I can understand BTD's case about recess appointments from an intellectual standpoint. But as a practical matter, I'd think it's rather difficult at this juncture to argue against the constitutional legality of Brennan's appointment, 60 years ex post facto.



    To the contrary, I find it easy to argue (5.00 / 1) (#90)
    by Peter G on Wed Feb 17, 2016 at 11:15:57 AM EST
    against the constitutionality of the great Justice Brennan's recess appointment, since doing so can have no adverse real-world consequences! (Besides, it retroactively places none of his decisions under any cloud, since he was reappointed and confirmed by the Senate just months later, and I don't believe any of the opinions he voted on in the interim were 5-4 with him in the majority to reverse (which would be the only cases rendered even theoretically "invalid").)

    Also, let's not intentionally or unintentionally (5.00 / 1) (#91)
    by Peter G on Wed Feb 17, 2016 at 11:21:43 AM EST
    confuse the difference between a historical precedent and a legal precedent.

    If, say from a legal standpoint, it's retroactively determined that Brennan had no standing as an Associate Justice between October 1956 and February 1957, what happens to the disposition of cases in which he was an integral part of the decision making during that period? Are those decisions then retroactively rendered null and void, 60 years after the fact?

    I would argue that this is opening up a real Pandora's Box, not unlike what one would do if one decided to revisit the questions surrounding the U.S. annexation of the Hawaiian Islands in August 1898, an act which many a legal scholar would then likely have to admit was blatantly unconstitutional, since:

    • President Grover Cleveland had earlier declared the January 1893 overthrow of Queen Liliuokalani's government to be an "illegal act of war" perpetrated by American citizens -- further assisted by the U.S. ambassador and elements of the U.S. Navy -- against a sovereign and friendly power;

    • The white American leaders of the so-called "Republic of Hawaii" had no legal standing or authority to subsequently offer the islands to the United States;

    • The proposed treaty between the U.S. and Hawaii allowing for our country's annexation of that independent and sovereign power was never re-submitted by President William to the U.S. Senate for ratification by a requisite two-thirds majority of its members, after having first been formally withdrawn in March 1893 by his predecessor President Cleveland upon the latters ascension to office; and

    • A joint resolution proclaiming the annexation of the Hawaiian Islands was instead affirmed by a mere simple majority of members of the U.S. Congress in the aggregate, an act which violated both the U.S. Constitution and U.S. law!

    Do you see what I'm saying here? When you allow a questionable legal act to stand unchallenged for a rather lengthy period of time -- in these two particular instances, 60 and 120 years respectively -- the historical precedent often becomes a de facto legal precedent by virtue of subsequent and compounding events. And thus, the country selectively revisits such issues in court at its own peril.

    And that's the problem when one allows political expediency to drive the legal decision making process. We end up with inconvenient de facto precedents, which can run directly counter to an otherwise entirely logical legal case which we may later seek to build on an entirely different matter, and under entirely different circumstances.

    Therefore, when arguing against President Obama's authority to temporarily fill a vacancy to the U.S. Supreme Court via recess appointment, how can one so conveniently sidestep such a precedent as Justice Brennan's recess appointment by President Eisenhower? If you really think about it, would not such an argument also rest upon an act of political expediency on one's own part?

    Further, how can the law itself withstand the deliberate allowance of such consequential exceptions to the general rule, in which we will allow one president's decision to stand because we subsequently approved of the ultimate results, while we expressly prohibit another's similar decision because of whatever our reason or rationale might be at the time?

    Food for thought. Aloha.


    I see what you're saying, and I totally disagree (5.00 / 1) (#93)
    by Peter G on Wed Feb 17, 2016 at 02:57:41 PM EST
    A historical precedent is not a legal precedent. No court ruled upon any challenge to Justice Brennan's appointment during the time the cases at issue were under consideration, nor during the time the judgments in those case were open to question under the rules of the court. The judgments accordingly became final and cannot now be legally challenged. The end. A historian or a legal scholar can question them, perhaps even convincingly, but that still cannot and does not have any effect on the binding and permanent nature of those dispositions. Finality and laches (inequitable delay) are principles of law at least as powerful as correctness and legality. No court is going to reverse the political history of Hawaii (or any other imperialist misadventure) no matter how good the legal argument against the original seizure or annexation of the territory. See City of Sherrill v. Oneida Indian Nation of NY.

    Exactly. (none / 0) (#94)
    by Donald from Hawaii on Wed Feb 17, 2016 at 06:04:17 PM EST
    The recess appointment of Justice Brennan thus becomes legal by default, because we're accepting the subsequent results of his appointment to that position as legally binding and no longer subject to challenge. Ergo, from the standpoint of legality, Brennan's status as a recess appointment is both accepted and moot.

    Therefore, why would any prospective and temporary recess appointment of an Associate Justice by President Obama be considered illegal or unconstitutional, given that the recess appointment of Justice Brennan by President Eisenhower per Article II, Sec. 3 of the U.S. Constitution is an accomplished and established fact? How is that particular precedent not legally relevant or even binding to the present?

    Further, what has changed during the 60 years since Brennan's appointment was first made, save for the clearly hyper-elevated levels of political partisanship and division? How is the notion of "that was then and this is now" to be presented as an acceptable legal construct?

    Given your obvious breadth of knowledge on such matters, Peter, I very much appreciate and value your opinions, and I'm not challenging you on those grounds. I so happen to agree with both you and BTD that recess appointments of federal judges at any level is likely a dubious proposition at best, both legally and politically.

    Rather, I'm simply posing some very hard questions that opponents of the president's authority for to make such appointments better be able to answer in the court of public opinion, should events fostered by the GOP's present obstructionism reach the point where President Obama has to consider that tool as a viable and valid option in order to fill the current High Court vacancy.

    So in that regard, I would note that legal arguments can be held as controversial by the general public even if they're perfectly valid in their construct, because said arguments aren't necessarily offered in a political vacuum.

    One can hold fast to a legal position that's entirely cogent and legitimate, yet still incur some very significant political, professional and personal costs in the process, should he or she choose to remain steadfast and adamant to an inevitable and often obvious conclusion.

    Our country's history is replete with examples of individuals who've fallen upon their own swords and paid a serious price personally for the sake of principle, and many of them are to be admired for that, even if such admiration is all too often accorded by us in retrospect. (See Korematsu v. United States, or President Truman's decision to relieve Gen. MacArthur of his command during the Korean War, et al.)

    But for every one of those selfless individuals, I'd offer that there are three to four political opportunists who'd gladly accede to the expediency of the given moment. And in this day and age of an increasingly politicized state and federal judiciary, there are likely any number of judges out there who would uphold such political conveniences as legally sound and binding, if it ever comes to that.

    And I'd think that's something which any rational person has to consider, while deciding whether or not to draw the proverbial line in the sand on a given issue. Personally speaking, I certainly don't relish the idea of becoming political roadkill, no matter how right, high-minded or noble I feel the cause might be. It can be a painfully long wait before events and even history itself might eventually vindicate one's principled stand as indeed being the correct one.

    In Fred Korematsu's case, 67 years had passed before acting Solicitor General Neal Katyal formally acknowledged in a 2011 court filing -- six years after Korematsu's death in 2005 -- what had already been established 28 years prior in federal appellate court, that in 1944 then-Solicitor Gen. Charles H. Fahy had deliberately suppressed critical and exonerating evidence during his arguments before the Supreme Court, pursuant to the government's stated rationale for the plaintiff's arrest and incarceration under Executive Order No. 9066. Why did the Dept. of Justice wait so long to finally concede the obvious? Two words -- political expediency.

    Opponents of President Obama may indeed have sufficient legal standing for challenging any recess appointment to the Supreme Court which he might make, but I would offer that they're doing so for reasons which are entirely removed from any sense of legal principle. Rather, their arguments reek of political expediency.

    And you can rest assured that as Democrats, we'll do everything we can to tie them to that obstructionist position, like an anvil to someone who's treading water. All we can do at this point is warn others to stay out of the splash zone and not get their feet tangled in the rope.

    I freely concede that we may be entirely in the wrong on this particular issue of recess appointments, legally speaking. And I sincerely hope that events don't reach a point where this ever comes into play, and that Republicans will reconsider and step back from the brink of a mindless confrontation.

    But there are other and greater principles at stake here, and I'm not necessarily willing to risk that our country should have to endure another prolonged period of gross Republican mismanagement and incompetence, simply for the sake of accommodating my own intellectual adherence to some legal principle. That, to quote a recent op-ed by Dr. Paul Krugman, would amount to a destructive self-indulgence.



    No. Not "exactly." (5.00 / 2) (#95)
    by Peter G on Wed Feb 17, 2016 at 06:11:07 PM EST
    The outcomes of those cases became final. The legality of the recess appointment, having never been addressed legally, was not affected by that and did not become a precedent in the legal sense.

    Not sure why Obama would have to consider (5.00 / 2) (#5)
    by ruffian on Mon Feb 15, 2016 at 01:19:30 PM EST
    a recess appointment. He does his job by putting forth a nominee. If the person is not confirmed, we sit at a 8 person court, with one fewer conservative than we used to have. A 4-4 tie would be a decision Dem/liberal leaners would have lost a week ago - now the decision of the appeals court would stand, and there could be another try at the same issue later.

    If we lose 3 more justices in the next few months and there is no longer a quorum so the court can't function, then that would be my threshold for an 'unusual' circumstance.


    Big assumption in my thinking (none / 0) (#6)
    by ruffian on Mon Feb 15, 2016 at 01:22:04 PM EST
    is that the Dems are going to retain the presidency. If that does not happen and you are suggesting he make a recess appointment as a true lame duck...well I think that would be wrong.

    IMO you're correct about the assumptions (none / 0) (#10)
    by Mr Natural on Mon Feb 15, 2016 at 02:27:36 PM EST
    The conservatives are gonna go apenuts over this and the possibility of replacing Ginsburg and the other elders.

    Gun rights for blastocysts will be all they'll talk about for the next nine months.

    A stupid way to steer a country.


    What Scalia stood against, (none / 0) (#13)
    by KeysDan on Mon Feb 15, 2016 at 02:55:53 PM EST
    will be the subject of legal scholars for decades.  It may be considered by some to be unseemly, if not macabre, to comment on Scalia's works so soon after permanently hanging up his spurs as a complimentary guest at Cibolo Creek Ranch.

     But, as I see it, with a life-time appointment, nature's course equates with retirement.  (not that I an in Ben Carson's corner on ending life-time appointments). And, of course, Republicans lost no time in moving away from condolences.

    My additions to BTD's listing would include Herrerra v Collins: a claim that the eighth amendment's ban on cruel and unusual punishment prohibits the execution of one who is actually innocent, is not grounds for federal habeas corpus.  (it would be too hard to have a re-trial based on new evidence, even in a capital case).

    And, Romer v Evans, Colorado's Amendment 2 did not violate Equal Protection Clause, just denied special rights for gays.  His concurring opinion, or screed, starts with "The Court has mistaken a Kulturkampt for a fit of spite, Tolerant Coloradans are preserving traditional sexual mores against a politically powerful minority."

    Scalia was ethically questioned , when in 2004 he went on a duck-hunting trip with Cheney, when a case involving the vice president was before the Court (whether Cheney had to reveal who appeared before his secret energy task force). Scalia refused to recuse himself and went on to join the majority in declining to force Cheney to disclose secret documents from the energy task force.


    Towanda (none / 0) (#15)
    by Ga6thDem on Mon Feb 15, 2016 at 03:08:48 PM EST
    if you're around I see that Trump thinks Diane Sykes would be a good choice for the supreme court. It seems she was nominated by George W. Bush so it's likely that she's some kind of wacko. What's your take on her being from WI?

    She is . . . not nice (5.00 / 2) (#27)
    by Towanda on Mon Feb 15, 2016 at 06:36:50 PM EST
    and that is from folks who know her well, worked with her for years (when she was a journalist), etc.

    She also is not that bright, say the lawyers here.

    But she parlayed being married (before divorce) to the worst of the absolutely awful shock radio jocks (also a former journalist) here and thus being part of the group that put Scott Walker in power.

    So: Think of Scott Walker on the Supreme Court.

    Need I say more?


    Okay. (5.00 / 1) (#38)
    by Ga6thDem on Mon Feb 15, 2016 at 07:38:06 PM EST
    Thanks for the info. It's not like I thought that she would be someone that should be on the court.

    A year without a justice (none / 0) (#16)
    by Militarytracy on Mon Feb 15, 2016 at 03:38:07 PM EST
    In my Independent spouses opinion will serve to reveal to Indy voters that Conservatives have doubled down on being unable and unwilling to govern.

    Just hope it's not a close election (5.00 / 1) (#29)
    by Towanda on Mon Feb 15, 2016 at 06:39:17 PM EST
    like 2000, tossing the decision to the Supreme Court . . . where it all came down to one vote.

    Hmmm, if that happened again, and this time it was a tie vote. . . .


    In 2000 if there had been a tie it would (5.00 / 2) (#34)
    by ruffian on Mon Feb 15, 2016 at 07:21:59 PM EST
    have gone back to the Fl Supreme Court decision for a recount. I think one of the newspapers did that recount after the fact and determined Gore would have won it.  But the legal battles would have continued.

    Yeah, what happens then? (none / 0) (#35)
    by Militarytracy on Mon Feb 15, 2016 at 07:22:05 PM EST
    Where's Peter when we need him? No lower court ruling.

    Didn't the lower court rule recount in Florida? (5.00 / 2) (#36)
    by Militarytracy on Mon Feb 15, 2016 at 07:23:17 PM EST
    Yes, the case of Bush v Gore (none / 0) (#45)
    by Peter G on Mon Feb 15, 2016 at 10:03:49 PM EST
    reached the Supreme Court on appeal from the state appellate courts of Florida.

    So, it's going to be two very interesting (none / 0) (#51)
    by Militarytracy on Tue Feb 16, 2016 at 08:43:17 AM EST
    Supreme court sessions.

    Orrin Hatch was on the tube this morning and said more controversial rulings would probably be "put off"  This doesn't sound "put off" to me though. Sounds to me like some rulings in lower courts that Conservatives may not like will STAND. And by doing so create new argument and be harder to overturn.


    What Hatch was saying, by "put off" (5.00 / 3) (#53)
    by Peter G on Tue Feb 16, 2016 at 09:24:06 AM EST
    was the option the Supreme Court itself has, to designate an argued but undecided case for "reargument." Reargument can occur, for example, when an issue emerges during the deliberations or opinion-drafting process (after briefing and argument) on which the Court wants to hear further from the parties.  This happened last year, for example, when a case about the interpretation of a certain federal sentencing statute apparently led a majority of the Justices (led by Scalia, it is generally believed) to the tentative conclusion that the statute was so confusingly written that it might be unconstitutional. They "re-heard" the case after inviting further briefing and argument on the constitutional issue (and then held the law invalid, overturning many sentences).

    Here, on the other hand, the "reargument" option could be invoked to avoid a 4-4 tie. A case can be re-argued just to allow a newly constituted bench to hear and decide it. (Remember, however, that most cases that have been argued and submitted for decision, but not yet decided, on which Scalia's vote now cannot count, would not have been headed for 5-4 decisions. There will be no problem issuing a 5-3 or 7-1 (or whatever) decision.) It is only tradition, not binding, that all cases accepted for decision in a given "Term" (their working year, July to July) are decided by June 30. At the discretion of the Court, a case can be held over and re-argued, either in the same Term or in the next Term, particularly to allow a newly appointed Justice to participate. I think this is what Hatch was referring to.


    Thank you Peter (5.00 / 2) (#88)
    by Militarytracy on Wed Feb 17, 2016 at 12:37:28 AM EST
    For taking so much time and care to allow me to be informed. I really appreciate it.

    how many cases (none / 0) (#77)
    by ding7777 on Tue Feb 16, 2016 at 06:26:02 PM EST
    do you think have been decided (with Scalia's vote)
    that have not yet been made public?

    The total number of cases argued (none / 0) (#82)
    by Peter G on Tue Feb 16, 2016 at 07:35:36 PM EST
    so far this Term, but not yet officially decided (which is the answer to your question), is 34. Only 13 have been decided or otherwise disposed of. Between 15 and 20 remain to be argued. There is no way of knowing in how many of the 34 Scalia's vote may have been decisive.

    But What About Cruz's Legibility... (none / 0) (#56)
    by ScottW714 on Tue Feb 16, 2016 at 10:30:56 AM EST
    ...which would need a quick decision, what happens if it would go 4-4 ?

    I would like to think -- but who can say -- (none / 0) (#63)
    by Peter G on Tue Feb 16, 2016 at 11:42:41 AM EST
    that if the question of Cruz's eligibility for the Presidency were so doubtful under Article II that it would split the Supreme Court 4 to 4, then he would withdraw and not run. Oh, ok, never mind ....

    Yup, me too (none / 0) (#17)
    by ruffian on Mon Feb 15, 2016 at 03:52:10 PM EST
    Even to some GOPers. This is such a basic function - it is not like passing laws that may or may not be needed. This is nearly bare minimum government in our system.

    It would surely be politcal malpractice for Dems not to gain ground. Of course we know they are capable of that.


    I hope we do (none / 0) (#22)
    by Militarytracy on Mon Feb 15, 2016 at 04:50:02 PM EST
    I hope are done throwing away or ignoring such opportunities.

    I fear this Dem. battle re nominating (5.00 / 1) (#23)
    by oculus on Mon Feb 15, 2016 at 04:54:39 PM EST
    our candidate for U. S. President is throwing away sime opportunites.  

    If you still think that way after (none / 0) (#24)
    by CoralGables on Mon Feb 15, 2016 at 05:29:22 PM EST
    March 1, we'll talk.

    I hope that's true. (none / 0) (#19)
    by Robot Porter on Mon Feb 15, 2016 at 04:05:32 PM EST
    But I don't think it will be.

    It will be a big yawn to the vast majority of independents.  Only partisans will care.

    And, after it's clear that Republicans won't move on the nomination, it will rapidly drop from the headlines.


    It will certainly be (5.00 / 2) (#20)
    by CST on Mon Feb 15, 2016 at 04:16:37 PM EST
    A topic in senate elections in close states.

    Like New Hampshire, for example.

    Also, the supreme court isn't really something that drops from the headlines long-term.  Anytime there is a major case with only 8 justices it will be brought back into the news.


    Right... (none / 0) (#57)
    by ScottW714 on Tue Feb 16, 2016 at 10:40:03 AM EST
    ...plus Dems will beat them over the head with them putting politics above their duties.

    Let's say they manage to do it, then what happens if R's get the presidency and D's get the Senate, will they do the same thing, refuse to vote 'yes' ?

    The oddest thing about is, I would think, it would be one of those decisions that would fall the SCOTUS that could vote 4-4, but I doubt it.

    Also as mentioned above, there seems like a good chance Cruz's legibility might need deciding real quick and a tie would be insane.


    Cruz is illegible? (none / 0) (#58)
    by oculus on Tue Feb 16, 2016 at 10:45:22 AM EST
    I think Scott meant (none / 0) (#59)
    by Peter G on Tue Feb 16, 2016 at 10:52:17 AM EST

    I think it's eligibility (none / 0) (#60)
    by Towanda on Tue Feb 16, 2016 at 11:01:10 AM EST
    but Scott has posted at least three times with concern about the candidate's penmanship. . . .

    Never Been Accused... (none / 0) (#61)
    by ScottW714 on Tue Feb 16, 2016 at 11:06:05 AM EST
    ...or won any stars for spelling and grammar, and it not like everyone didn't know what I meant.  But thanks for taking up 3 posts without discussing the topic, much appreciated.

    Chill, man (5.00 / 2) (#62)
    by Peter G on Tue Feb 16, 2016 at 11:38:17 AM EST
    We were both (I thought obviously) joking.  At Cruz's expense, not yours!

    There really was nothing (none / 0) (#89)
    by Towanda on Wed Feb 17, 2016 at 11:01:44 AM EST
    to add, to the content of your three posts -- not mine.

    Like I said (none / 0) (#21)
    by Militarytracy on Mon Feb 15, 2016 at 04:34:48 PM EST
    My husband is an independent. I think Indies are odd. Some issues he's quite Liberal on, sometimes more Liberal than I am. Others he is Conservative on. But governance is probably one of THE most important issue for him. He wants solutions that work. He isn't led by philosophies, functional results are what he's looking for. He's getting nada, zero from Republicans.

    It's been years since he's had anything positive to say about a Republican currently holding office. He has positive things to say about some past Conservative legislators, but nothing about anyone current. And the fact that the existing Republcan party refuses to legislate makes him furious. If he pays for one more repeal Obamacare vote to take place I think his head will explode.


    Has anyone quantified the cost of those votes? (none / 0) (#25)
    by Mr Natural on Mon Feb 15, 2016 at 05:30:22 PM EST
    I think BTD has done some writing on (none / 0) (#30)
    by Militarytracy on Mon Feb 15, 2016 at 07:07:24 PM EST
    The Indy swing, and the Indy vote deciding elections. Seems like BTD consulted for Specter or something along those lines to garner the Indy vote. That was a long time ago so not very fresh in my memory. Kos has written that Indy voters have a Conservative or Liberal pre-bias. I can't really detect one in my husband though. He is on some issues more Liberal than I am. Sometimes a little shockingly so. Inability to actually govern really chaps him though.

    Understood, but my work ... (none / 0) (#55)
    by Robot Porter on Tue Feb 16, 2016 at 10:03:43 AM EST
    in marketing has taught me to discount second hand opinions.  Especially ones that begin "my husband/wife".

    People think their spouses are better barometers than they are.


    It will actually (none / 0) (#37)
    by CaptHowdy on Mon Feb 15, 2016 at 07:37:36 PM EST
    Be two, or most of two, court terms.  If the really delay till the next president.   The most important part of this one and a big part of the next one.

    Krugman: How America was Lost (none / 0) (#26)
    by Mr Natural on Mon Feb 15, 2016 at 06:21:09 PM EST
    Once upon a time, the death of a Supreme Court justice wouldn't have brought America to the edge of constitutional crisis. But that was a different country, with a very different Republican Party. In today's America, with today's G.O.P., the passing of Antonin Scalia has opened the doors to chaos.

    I think chaos overstates it (5.00 / 4) (#28)
    by ruffian on Mon Feb 15, 2016 at 06:37:25 PM EST
    There will be actions (Obama nominates someone), reactions (the Senate either decides to have a vote, or not), and consequences, none of which involve chaos.

    What there will be is a lot of bloviating...but there was going to be that anyway in an election year.


    I pointed out (5.00 / 1) (#31)
    by Ga6thDem on Mon Feb 15, 2016 at 07:13:23 PM EST
    to a Republican friend of mine that I don't see where it does the GOP any good to delay a vote on a justice or delay nominating one simply because the lower court decisions are going to stand. So the GOP could be a LOT worse off without a justice.

    In the podcast and on Twitter (none / 0) (#41)
    by ruffian on Mon Feb 15, 2016 at 08:06:27 PM EST
    BTD opines that for the Dems, getting this fifth vote is THE most important thing, more important than winning the election. So I can see the GOP wanting to prevent that.

    Sri Srinivasan: (none / 0) (#64)
    by NYShooter on Tue Feb 16, 2016 at 03:38:08 PM EST
    The 48-year-old federal appeals court judge was confirmed unanimously in 2013 for a seat on the U.S. Court of Appeals for the D.C. Circuit -- a traditional steppingstone to the Supreme Court. He would be the court's first Indian-American justice.

    Nice article
    from Politico

    I'm worried he'll be like David Souter.... (5.00 / 1) (#84)
    by magster on Tue Feb 16, 2016 at 08:17:37 PM EST
    ... in reverse. How much do we really know about how this guy will rule on key issues?

    Well, if (none / 0) (#85)
    by Ga6thDem on Tue Feb 16, 2016 at 08:29:47 PM EST
    it's someone with a history then you'll know. If not much history then yeah, you probably have a valid concern.

    Since demographics seem to be the only thing (none / 0) (#66)
    by Mr Natural on Tue Feb 16, 2016 at 03:58:51 PM EST
    anyone cares about, how about equalizing the representation of women on the Supreme Court?

    Last I heard they comprised 51% of the population.


    What percentage of lawyers (none / 0) (#68)
    by Peter G on Tue Feb 16, 2016 at 04:03:37 PM EST
    between the ages of 45 and 54 are women? More than 33% (3/9)? Isn't that the relevant comparison? (I am assuming here that the percentage of well-qualified women within that group is the same as the percentage of well-qualified men, so it's not necessary to add that factor.)

    assumption? (5.00 / 2) (#86)
    by womanwarrior on Tue Feb 16, 2016 at 10:50:45 PM EST
    Ha, baseless.  Many would beg to differ that the same percentage of women as men is well-qualified.  Remember the Charlotte Whitton quote, often attributed to Golda Meir:  "For a woman to get half as much credit as a man, she has to work twice as hard, and be twice as smart. Fortunately, that isn't difficult."

    Ahhh... (none / 0) (#69)
    by jbindc on Tue Feb 16, 2016 at 04:06:54 PM EST
    but technically, one doesn't have to be a lawyer to sit on the Supreme Court, so you could compare demographics against the whole population.  (Yes, yes, I know, impossible nowadays, but technically)



    Neither do you have to be between (none / 0) (#71)
    by Peter G on Tue Feb 16, 2016 at 04:17:21 PM EST
    45 and 54 years old, jb. I was actually attempting a serious answer about the demographic this is actually being considered.

    lol. I should have known you didn't pull that (none / 0) (#73)
    by Mr Natural on Tue Feb 16, 2016 at 04:45:45 PM EST
    (33%) out of thin air.  The 2013 ABA report on Women in the Law.

    Just a bit of cognitive dissonance confronting those who advocate male replacement Justices so that the next affirmative action case falls their way.


    I actually had no idea that the percentage (none / 0) (#75)
    by Peter G on Tue Feb 16, 2016 at 05:36:05 PM EST
    of women lawyers nationally was now 33%. I was referring to the fact that there are presently 3 women on the Supreme Court (hence, my "3/9"). I was wondering whether that was proportional to the number of legitimately available candidates. Obviously, men have been grossly over-represented on the Supreme Court for most of its existence, as have been whites; I would have no problem with women being somewhat "over-represented" as a result of the next appointment, if that happens. And speaking of over-represented, so are Jews and Catholics presently (even with the loss of one Catholic). And Harvard and Yale grads. And New Yorkers. And Northerners.

    The "Notorious RBG" speaks (5.00 / 1) (#96)
    by Mr Natural on Thu Feb 18, 2016 at 04:12:28 AM EST
    "So now the perception is, yes, women are here to stay. And when I'm sometimes asked when will there be enough [women on the supreme court]? And I say when there are nine, people are shocked. But there'd been nine men, and nobody's ever raised a question about that."

    It would be nice (none / 0) (#76)
    by jbindc on Tue Feb 16, 2016 at 06:03:02 PM EST
    To see someone from say, the Midwest, who went to U of M law school,  or the University of Texas law school, or pretty much any law school other than Yale, Harvard, or Stanford - people who didn6t run in the same circles or have the da5me professors.  Diversity of thought, and such.

    I don't see why you think (none / 0) (#72)
    by NYShooter on Tue Feb 16, 2016 at 04:43:58 PM EST
    potential "chaos" is an overstatement.

    Rachel Maddow named one possible situation that calling it "chaos" would prove to be a gross understatement:

    For instance, election 2016 ends in an electoral tie. What better word than "chaos" for what would ensue would you consider more appropriate? An outlier, perhaps. But, aren't most cases ending up at the Supreme Court, by definition, outliers?


    And an asteroid could hit too (5.00 / 2) (#79)
    by ruffian on Tue Feb 16, 2016 at 07:29:12 PM EST
    And wipe out all the justices.

    I admit I did not consider the possibility of an electoral tie. Seems like Maddow is really reaching for the chaos there.


    The media (none / 0) (#81)
    by Ga6thDem on Tue Feb 16, 2016 at 07:34:35 PM EST
    in their desire for chaos to reign on the D side since it's reigning on the R side is tiresome. I'll be glad when we have more states down and can actually discuss something more worthwhile.

    In an electoral college tie, the winner (5.00 / 2) (#80)
    by ruffian on Tue Feb 16, 2016 at 07:34:32 PM EST
    is chosen by the House.

    An outcome we would not prefer is not chaos. Chaos is when things are out of control with no process,  IMO.


    "Liberal Love for Antonin Scalia" (none / 0) (#32)
    by Mr Natural on Mon Feb 15, 2016 at 07:15:01 PM EST
    Liberals, meanwhile, have struggled to rally around a coherent alternative language in which to talk about the Constitution. We have been Hillary Clinton to Justice Scalia's Bernie Sanders. Some of us promoted something called popular constitutionalism. (What's that, you say?) Others settled on "minimalism." Others simply gave up and have tried to argue that originalism actually supports progressive outcomes. Trying to coopt Justice Scalia's message is the highest compliment we have paid him.

    Justice Scalia lost some panache in his later years. The elegies you will read over the coming days and weeks may not mention that, perhaps appropriately, but it was well known to close watchers of the court. His dissents were rarely witty, his jokes too many and not funny. More than occasionally, his questions at oral argument reflected inattention to the details of the record.

    In other words, as we know too well now, he was a mere mortal. But he will live on in as many liberal echo chambers as conservative ones. We will study his opinions, yes, but we will also study his speeches, his sound bites, his turns of phrase and his travel schedule. And often, when our colleagues aren't listening, we will say to ourselves, "The guy was good." May he rest in peace.

    - Jamal Greene, The New York Times, February 14, 2016

    My very pro-choice 85-year-old aunt, ... (5.00 / 1) (#47)
    by Donald from Hawaii on Mon Feb 15, 2016 at 10:43:21 PM EST
    ... had the funniest comment about Scalia. "I'll mourn the man's passing, may he rest in peace, in my own way," she said, "preferably with some champagne and the company of good friends." I'm sure there are more than a few who feel the same way.



    My mom is 95 (5.00 / 1) (#52)
    by Repack Rider on Tue Feb 16, 2016 at 09:01:24 AM EST
    She hadn't been following any media, so I brought her the news along with dinner.

    She celebrated outliving another one, similar to the celebration she had over Nixon's death.


    Very interesting discussion (none / 0) (#33)
    by CaptHowdy on Mon Feb 15, 2016 at 07:19:13 PM EST
    Thanks for linking.

    It seems to me the republicans are taking an absolutely massive risk.  It would be one thing to reject a nominee or even just drag their feet forever.  But to come right out and say we won't even consider it no matter who you send up......

    That pretty incredible.   I can't imagine, in a country so sick of a disfunctional government, that this will go well for them.

    I understand what they seem to expect.  That their base will be massively motivated by scare tactics around the 2nd amendment and religious freedom, I just think they underestimate the extent to which the democratic base will be motivated by all the things they care about PLUS indies will be very unsympathetic to the obvious obstruction.

    I suppose they are counting on voter obstruction.

    The problem (none / 0) (#39)
    by Ga6thDem on Mon Feb 15, 2016 at 07:41:12 PM EST
    is their base is only 39% of the country. If they excite that 39% that's great for them but it also means that the other 61% is going to be voting against them. They've put themselves in a lose/lose situation but the thing is not approving anyone works for their rabid base. And I guess they have to take that chance since the only thing they have going for them is their base right now 'cause the rest of the country detests them.

    It was interesting, lots to think about (none / 0) (#40)
    by ruffian on Mon Feb 15, 2016 at 07:52:13 PM EST
    I like the esoterica!

    I don't know why the GOP was not more subtle about the obstructionism...I guess they think it is a winning issue for them in the Senate races. We'll find out.


    BTD, a question (none / 0) (#42)
    by ruffian on Mon Feb 15, 2016 at 08:09:52 PM EST
    If the Dems win the election they will almost certainly have more chances to nominate justices. Can you explain more why you think getting this appointment secured is more important than winning the election!

    Wondering also what you think about the various 'nominate someone who will excite the base to  gotv' ideas.

    I would agree with you (none / 0) (#43)
    by CoralGables on Mon Feb 15, 2016 at 09:09:39 PM EST
    and disagree with BTD on this (somewhat). At the same time I think a nominee that pressures the Senate to take a vote would be an excellent move. Anyone nominated by Obama will be to the left of Kennedy. It doesn't have to be someone to the left of RBG. Someone recently confirmed overwhelmingly by the Senate would put pressure on them to vote that way again.

    But as you suggest, winning the presidency will likely get at least one nomination and, if you include this one, maybe two or more.

    Although the Senate voting on a new Justice may be political, it's still better to at least try to keep politics out of it when it comes to making "the" choice. From that perspective I don't care about "exciting the base".


    "What Would Scalia Want in His Successor? (none / 0) (#48)
    by Mr Natural on Tue Feb 16, 2016 at 04:00:02 AM EST
    Tom Ashbrook, OnPoint, (none / 0) (#49)
    by Mr Natural on Tue Feb 16, 2016 at 05:10:11 AM EST
    "Filling Scalia's Seat" with Lawrence Tribe and some reporters.  46 minutes, no transcription available.

    I Have Read... (none / 0) (#65)
    by ScottW714 on Tue Feb 16, 2016 at 03:53:58 PM EST
    ...numerous places that Loretta Lynch seems like the most likely choice.



    Since she was recently confirmed seems like it would be hard for R's to validate not confirming her for a different position.

    I don't think anyone has a really good basis (5.00 / 2) (#70)
    by Peter G on Tue Feb 16, 2016 at 04:07:06 PM EST
    to guess who might be the "most likely" for Obama to select. There are so many outstanding possibilities out there. As for AG Lynch, imho, the last thing we need on the Court is a career prosecutor. Ok, not the last thing - the last thing is another reactionary. But close to last.

    The president (none / 0) (#67)
    by CaptHowdy on Tue Feb 16, 2016 at 03:59:30 PM EST
    Is about to speak on the court from Asia.

    Um (none / 0) (#74)
    by CaptHowdy on Tue Feb 16, 2016 at 04:47:24 PM EST
    Actually from "sunny lands" in Rancho Mirage.

    Almost the same.