Replacing Scalia

I confess it was with no great sadness that I heard of the passing of Supreme Court Justice Antonin Scalia this past weekend. Known as the intellectual linchpin of the tribunal's conservative wing, Justice Scalia took great pains to protect the rights of corporations as if they were people but paid scant attention to protecting the rights of actual people. President Obama has announced he will fulfill his constitutional duty under Article II to nominate a successor. Now we will find out whether the Republican majority in the Senate will go through with its threats to refuse to exercise its constitutional mandate to vote to confirm or deny the president's choice. If so, their political flackery will have reached unprecedented heights, even for them. Such a course would likely hurt them in this November's election.

Scalia voted with the 5-4 majority to stop the 2000 Florida recount, awarding the presidency to George W. Bush without the inconvenience of an accurate vote tabulation. He was the similarly deciding vote in cases that overturned forty years of precedents and gave corporations the same rights as human beings, the Citizens United and McCutcheon rulings. He voted to gut the enforcement provisions of the Voting Rights Act, another 5-4 ruling that has been used, through GOP gerrymandering, to once again disenfranchise black voting strength across the South. In his opinion the Fourteenth Amendment ("No state shall...deny to any person within its jurisdiction the equal protection of the laws.") does not guarantee equal rights for women and LGBT Americans. He stated "In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both? Yes, yes. Sorry to tell you that." (Source of Scalia quote.) It does not sadden me that such a jurist is no longer on the bench of the nation's highest court.

Within hours of news of Scalia's death, Senate Majority Leader Mitch McConnell announced that no vote would be taken on any successor until after the November election, that a new president should make the selection. McConnell's gambit would deny President Obama the opportunity to name a progressive jurist, hoping for a Republican victory to allow conservatives to maintain their majority on the tribunal. Obama, however, in his own statement, promised to exercise his constitutional responsibility to fill the vacancy, and called on the Senate to follow theirs, to vet the nominee and have a vote. Here are the political considerations. If the Republicans dig in their heels and refuse action they will succeed in ginning up their own base. Committed conservatives would be more motivated to come out and vote for President to prevent a liberal Supreme Court majority. But the converse is also true. Democrats would make this a major issue, firing up their own base to show up and ensure a new Court more friendly to consumers and minorities than corporations and bigots. The deciding factor would be with independents. I feel the maneuver would push most independents in the Democrats' direction. If Obama were to nominate someone who has been already unanimously confirmed by the whole Senate for a lower Court position, independents would see the Republican tactic for the partisan political power play it is, hurting them with the undecideds and helping Democrats in close congressional elections and in battleground states if the presidential election is close. That's why we are already starting to see some GOP senators back away from the scorched earth approach. Look for the next three weeks to tell the story. By then the President will make his nomination and the ball will be in McConnell's "court," so to speak.