The immediate impact of the death of Justice Scalia [correction appended]
Dan Crawford emailed me shortly after the news broke about Justice Scalia’s death, asking whether I have any random thoughts about it. Here’s what I wrote back:
I posted a comment to Bill’s post on the announcement, saying that I think everyone should take a deep breath before saying much of anything. It’s absolutely huge, but I think those of us on the polar opposite of the ideological spectrum should cool it for a day, as a small courtesy.
But it will have a huge immediate effect: There are several cases on the court’s docket this term–cases that would have profound impact, on unions, on affirmative action, on environmental law regulation and the Paris climate-change accord, on the extent to which the executive branch can regulate anything, on the permissible reach of executive orders, including of course on immigration issues–that would have been decided 5-4, some of them altering really broad areas of law and politics.
By “on the docket,” I mean cases already argued this term, cases scheduled for argument by the end of April, and cases that the court is currently considering whether or not to hear but that very likely the court would have agreed to hear in order to upend some major area of law. Expect a slew of dismissals of cases in the first and second of those categories, and a very few cert. grants the rest of this term (cases granted going forward will be heard next term, not this term).
I think I’ll repost this email as a post.
Done.
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CORRECTION: Scotusblog’s Tom Goldstein has a thorough account of what will happen in the closely divided cases: If 4-4, the court will issue an order saying that the lower court’s decision is “affirmed by an equally divided Court.” It’s tantamount to a dismissal, but technically it is not a dismissal. Goldstein says “we should expect to see a number of such cases.”
Also, I knew there was one case of existential (for the Democratic Party) importance, but I couldn’t think of what that case is. It’s Evenwel v. Abbott, on the meaning of the “one person, one vote” guarantee. (Thanks, Tom Goldstein!) And Goldstein notes something I forgot about the big affirmative action case, Fisher v. University of Texas, Austin: Elena Kagan has recused herself in the case, because when the case was heard at the court on its first go-around there (this is its second one) Kagan was involved in it as U.S. Solicitor General, representing the federal government as an amicus. So Fisher will be decided 4-3.*
Added 2/13 at 8:51 p.m.
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*Ooops. Reader C0Rev wrote in the Comments thread: “I think this: ‘So Fisher will be decided 5-3’ was meant to mean ‘So Fisher will be decided by 7 Justices.’”
Yup; that sentence really did originally say “So Fisher will be decided 5-3.” Well, no one has ever accused me of being a mathematician.
Seriously, thanks, CoRev.
Added 2/14 at 10:00 a.m.
My comment Beverly is that Obama absolutely has to nominate somebody even if the GOP controlled Senate refuse to confirm. I will shed no tears for Scalia one of the most intellectually dishonest human beings I have had the displeasure of knowing. That being said I think Obama can nominate an old moderate and if the GOP balks he should call them out on it. I have spent my entire professional life with either Rhenquist or Scalia or both on SCOTUS and the fact that Scalia died 10 months before an election should not deprive Obams from appointing z successor and if the Senate blocks a moderate successor the Republic is doomed
I agree, Terry. But my fervent hope is that the nominee will be Jeffrey Fisher, head of Stanford Law School’s Supreme Court Clinic and a very, very successful veteran of Supreme Court cases in which he argued on behalf of criminal defendants. His major victories included votes in his client’s favor by none other than Antonin Scalia. The cases established important constitutional principles.
Clinton wouldn’t be caught dead nominating him. He’s male, white, and represents criminal defendants. Clinton is all about demography. Especially gender. And would fear Republican attacks if she nominated a non-white-collar-criminal-defense lawyer. She claims she’s tough, but she’s actually gutless.
Fisher would be worth waiting for. And Sanders might well consider nominating him. Obama? Yeah, right.
If Fisher is worth waiting for, but only Sanders would nominate him, and the other options are Clinton, Trump, or Bloomberg choices, you might want to cut your losses.
I have no horse in the race but Obama has to nominate somebody and the Senate has to confirm or I might give up on this country. If the GOP wins the White Zhouse in Novembet there is a really good chance that Ginsburg and Breyer will be replaced by a Republican. To deny Obama a chance to replace Scalia is to deny the Constitution and any semblance of us being a democracy
J.Goodwin, if Obama nominates someone, it will be an Asian, I’m betting. My hope would be Goodwin Liu, a former Stanford or UC-Berkley (I can’t remember which) law prof. whom Obama nominated to the 9th Circuit Court of Appeals early in his first term. But the nomination was blocked by winger senators because Liu had testified against Alito at Alito’s confirmation hearing. So Jerry Brown appointed Liu to the California Supreme Court.
Liu would be my second choice, after Fisher. But no Obama nominee will even receive a Judiciary Committee hearing. A nomination would have the effect of giving the nominee a leg up in being chosen by Clinton. That would be true probably for Lui if Sanders is elected, but not for someone like Elena Kagan.
Terry, Clinton or Sanders will be the next president. Who among the clown crowd do you really think could win the general election? I mean, really.
Clown crowd……..W won in 2000……
What Mencken said!
I think this: ” So Fisher will be decided 5-3″ was meant to mean ” So Fisher will be decided by 7 Justices.”
“She claims she’s tough, but she’s actually gutless.”
I find this appalling and well beyond counter-productive.
Meanwhile, Obama will of course nominate someone, and then the fun starts. The GOP has a huge problem here. Common sense says that they will of course never allow any candidate will even get out of Committee, but there is another factor in play.
The GOP would then have to run an entire election based on obstruction, both at the Presidential and Congressional level. Of course for their base that does not matter, but it could actually lead to increased turnout for Dems.
Not as easy a choice for the GOP as people think.
EM:
Agreed. It would be too logical for libs/prog. to consolidate and push for a good candidate. Bev named two, I would add Chemerinsky who would be a good and scholarly addition, someone who has been to SCOTUS numerous times, lectures to Federal Justices on the law, and has also testified in Congress.
Good point EMichael. The GOP will show off it’s craziest, obstruction for the sake of obstruction side on this: should be good for at least 5% extra for the Democratic pres race.
Good news for me: the GOP will block O’s slip-past-the-Republicans more moderate (couldn’t care less about labor) type nominee — assuring us that Sanders will name the next (truly) progressive justice.
And a number of those Senators face difficult elections themselves and obstruction is not going to help them. Further if the Democrats hold onto the White House and retake the Senate– both at least reasonable outcomes then the replacement for Scalia is likely to be a 30 year old transgender woman of black and Hispanic descent who belongs to the Communist Party, is an atheist and is in excellent health with grandparents who are still living and active in their 90’s.
Another advantage of Republican obstructionism on O’s nominee as pointed out over at Naked Capitalism is increased voter turnout which NC says is usually less reliable for Dems than Repubs — the more so because Dems will want to insure against it being a Repub nominee next year.
It is incumbent upon the president to appoint a successor. However, the Constitution requires him to do so “by and with the advice and consent” of the Senate. (Article II, Section 2)
So if the Senate produces a list of a dozen acceptable candidates, do you think he would nominate one of those? I doubt it.
There is no obligation on the Senate to confirm, or even to vote on, a nominee against whom they advised the president.
Thanks, CoRev. I just corrected the sentence and noted the correction at the end of the post.
This unexpected Scalia thing has me all frazzled. I’m sure you understand.
“So if the Senate produces a list of a dozen acceptable candidates, do you think he would nominate one of those? I doubt it.”
I think he would be as likely to do that as Reagan would have in 1986 when instead he nominated Scalia.
Hmm, EMichael. The New York Times editorial board disagrees with you about Clinton: http://www.nytimes.com/2016/02/13/opinion/mrs-clintons-mixed-immigration-message.html?partner=rssnyt&emc=rss&_r=0
I plan to post about what that editorial from yesterday discusses, especially because I actually remember the Clinton statement that the editorial links to and had been wondering why it had not surfaced yet. I’m sure that that was what Sanders had in mind when he said during Thursday’s debate what the editorial quotes him as saying.
What I also remember is that on the very day that Clinton made that comment during her book tour in 2014, Sam Brownback—SAM BROWNBACK—made a comment that indicated empathy, and his facial expression and soft tone of voice did, too. He said he thought most of the children will have to be sent back, but there was a very big difference between his tone and Clinton’s. I haven’t forgotten that video clip of Clinton because the tone of voice as well as the words were so jarring.
Do read that editorial. And watch that video clip. Appalling? Yeah.
But, oh, you were talking about what I said about her, not what she said, weren’t you?
Denis, I couldn’t agree more that this will make getting out the Dem vote much easier. And is likely to be the deciding factor for a good number of independants.
Citizens United and a few other 5-4 decisions that are appalling but that the public doesn’t know about, but will by election day, I think and hope, will play a very big role, I’m betting.
The effect on the election is the very first thing I thought of yesterday.
“But, oh, you were talking about what I said about her”
Yes, yes I was.
This continual assault can come to no good end for whatever nominee wins.
I am a Sanders supporter, but this rhetoric is so negative to the chances of a Dem Pres in 2017 it is very scary to me. Report what was said and/or done, report contribution sources, and of course report the votes. But leave the “gutless” comments out of this.
Sanders will need Clinton supporters and vice versa. No need to ignite sentiments that may hurt the turnout in November.
I haven’t seen much of such language from Clinton’s side, but let’s imagine what would be the result if it existed.
What if Sanders was called “gutless” for his vote for the CFMA? Obviously a pro Wall Street action. Are there contributions that we do not know about? How is it possible that someone that railed against getting rid of Glass Steagal, then voted to help Wall Street? What changed for Sanders’ views? Or what if Sanders was called too stupid to control Wall Street, as his vote for the CFMA came because he was outsmarted by Gramm and not bright enough to read the changes?
Of course that is worthless crap, but it is what many Sanders supporters are doing.
What pitiful pearl clutching. I only hope the fainting couch is nearby you poor dear.
This isn’t softball babe.
AS:
Then join the Trump team, you can get all of your denouncing, name-calling, and whatever over there and feel proud about it even if it lacks intellect or merit. It is so easy to toss mud without a thought process in place.
No, it isn’t softball. But it is a team game.
the general election is going to be hard enough without the unnecessary bs being spread by bernie bros.
Dahlia Lithwick in a Supreme Court Shortlist has provided the very, very best suggestion: Robert Wilkins. Here’s what she says:
“Robert L. Wilkins (D.C. Circuit Court of Appeals): Age: 53. Wilkins, a black American who was raised by a single mom, has a law degree from Harvard Law School and served as special litigation chief for the D.C. Public Defender Service. Wilkins gained attention for civil rights battles he has waged, including a precedent-setting fight against police racial profiling in Maryland, and for his work on the National Museum of African American History and Culture.”
Most of the Shortlist articles, including the one in the NYT, as well as Lithwick’s, mostly list usual-suspect people whose demographic or moderate-federal-judge status make them, well, usual suspects. There are—surprise!—the usual complement of former prosecutors. But Lithwick’s actually names a former special litigation chief for a large Public Defender office. Who ALSO has a fancy law school pedigree.
Let me just say this: In the age of Ferguson, Eric Garner, Sandra Bland, Walter Scott, etc., etc., and (as Ferguson is a poster town for) inappropriate bail requirements and the funding of local government via traffic fines, petty (trumped-up) ordinance-violation fees, and metastasizing court fees, and routine prosecutor misconduct, it would be deeply offensive for Obama to nominate another Elena Kagan—or ANYONE who has no background in representing non-white-collar criminal defendants, especially in state courts.
I would kill to see Jeffrey Fisher on the Supreme Court, but I also would be thrilled to see Wilkins on the Court. Preferably, both, eventually. Either one should be confirmed easily to fill the current open seat. And I sooo would love it if Bernie Sanders named them on his (I hope, very, very) shortlist.
Lithwick also lists Goodwin Liu, and says this about him:
“Goodwin Liu (California Supreme Court): Age: 45. The son of Taiwanese immigrants, Liu was an Obama pick for a seat on the 9th Circuit in 2010 but was blocked by Republicans. He has distinguished himself as a left-leaning moderate on California’s high court. Given his prior confirmation battles, this would be an especially heavy lift.”
It reminded me that I had read that Liu is fairly moderate on that court, presumably in the hope of nomination again to the 9th Circuit or to the U.S. Supreme Court. But I don’t know the specifics of his judicial record.
Love Chemerinksy, Bill, but he’s almost 63, and anyway his nomination would provoke all manner of wingy craziness.
You know what, EMichael? It surprised me as much as anyone that Sanders voted for the CFMA, a law that Bill Clinton and his Treasury Dept. folks and apparently some of his economics advisors pushed hard for. Who knows what they said to Sanders and other liberals in Congress that persuaded some of them? I have no idea. But the sales pitch generally was that it would be good for the economy and increase access to homeownership. I think both Bill Clinton and Sanders bought the pit.
But here’s another thing: About a week ago I read a pretty detailed article—I can’t remember where, or who wrote it; I wish I could—that showed that the big banks (Citibank, especially, but several others, too, including BoA) played a large role in the subprime-mortgage securities game, and at the time of Lehman’s collapse held a substantial percentage of those securities. Which, with the exception of Citibank, is very different than what Krugman and some others have been saying.
But … whoa. You’re supporting SANDERS? Seriously? That’s great. But if you don’t think Hillary Clinton is an inherently weak candidate, you’re dreaming. Here’s what Maureen Dowd writes today:
“Hillary started, both last time and this, from a place of entitlement, as though if she reads her résumé long enough people will surrender. And now she’s even angrier that she has been shown up by someone she considers even less qualified than Obama was when he usurped her place.
“Bernie has a clear, concise ‘we’ message, even if it’s pie-in-the-sky: The game is rigged and we have to take the country back from the privileged few and make it work for everyone. Hillary has an ‘I’ message: I have been abused and misunderstood and it’s my turn.
“It’s a victim mind-set that is exhausting, especially because the Clintons’ messes are of their own making.”
And if you don’t think that video clip from 2014 won’t be played in Republican ads, juxtaposed with her current position on the issue, you’re in for a surprise if she’s the nominee.
The Democrats have a much better chance to win the presidency and win back the Senate if Sanders rather than Clinton is the nominee. And pointing out the things I and other progressives point out about Clinton increases the chance that Sanders rather than Clinton will be the nominee.
Dowd’s column is at http://www.nytimes.com/2016/02/14/opinion/sunday/when-hillary-clinton-killed-feminism.html?ref=opinion.
Terry, I am curious why you say that Scalia was, “one of the most intellectually dishonest human beings I have had the displeasure of knowing.”
I’d like to know whether you can find anything like Robert’s “It’s not a tax, so we can rule on it, but it is a tax so it’s constitutional”, or his ruling that the Federally Facilitated Marketplace (set up under one section of the ACA) can be included as being one of those “established by the States under 1311.”
I really do not see how it is possible for Scalia to top Robert’s overturning a prior decision in the same decision.
“I think he would be as likely to do that as Reagan would have in 1986 when instead he nominated Scalia.”
Perhaps, but Scalia was approved 98-0, so he could not have been that objectionable to the Democrats.
Bev,
I am not defending HRC. I am attacking the mindless methods of attacks by certain Sanders supporters.
And in terms of the attacks on HRC in the general election, you are doubtlessly right about the GOP’s tactics. Of course, the GOP’s tactics against Sanders will be the same and even more vicious. What happens when the electorate are besieged by constant ads calling Sanders a Red? A dirty commie?
Despite the facts, it is going to happen. I seriously doubt the ability of Sanders to win a general election because of that fact.
Warren, Everyone always talks about Scalia’s towering intellect and his literal reading of both the Constitution and legislation. Points he shamelessly self promoted except when it did not fit with his politics– reading a well regulated militia out of the Second Amendment for example and some how finding the government nevertheless could ban private ownership of certain firearms but not others, none of which existed in 1789. At other times he would just be lazy and I think last term dissented and mis cited the holding in a Supreme Court case he had participated in. I certainly disagreed with his politics but it was his attempt to cloak that with an intellectual rigor which made him s fraud. And of course he had the ethics of everyone’s worst lawyer jokes playing cards with people interested in cases he was deciding and going on hunting trips with litigants before the court.
Where did Scalia read “a well regulated militia” out of the Second Amendment? It’s that part that was used in the 1939 Miller decision to say that, with no evidence to show that a shotgun with a barrel length less than 14″ had any relationship to militia use, it could be banned. I assume that’s what Scalia was referring to. (That those firearms did not exist when the Second Amendment was ratified is, of course, a completely spurious argument.)
Of course, we agree that no jurist should socialize with any litigants in a case before his court.
EMichael, I don’t think many people give a damn today about the Reds and the Commies. It’s ancient history.
Bev, you live in a most different world than me. How many times has Obama been called a socialist? It is going to happen, and I fear it will unite GOP voters regardless of which of the “clowns” win.
In regards to Scalia passing, I am happy to see many far more respectful than I. My thoughts of the man are best shown by a quote attributed to Mark Twain:
“I Did Not Attend the Funeral, But I Sent a Nice Letter Saying I Approved of It.”
As harsh as that may seem, this man’s ideology and power resulted in the deaths of many Americans before their times. If I just ignore all of the people harmed, and not killed, by his actions the list is incredibly long.
I approve of this funeral.
Ditto. A glass of Sambuca to be raised perhaps?
Bev,
The polling shows that the label that most turns off Americans is “socialist”. It doesn’t matter that most people don’t know what it means or that “Bernie can explain it.” As the Gospel according to Seinfeld put it, “it is what it is.”
Ah. Jack. It turns out from a recent poll that millennials like socialism more than they like capitalism. I’ve read about this a few times in the last few weeks. It’s a poll from, I think, Pew, and has a large sampling.
Oh, gosh, Bill; I couldn’t agree more with you on Scalia. And with Mark Twain, who probably had Scalia in mind when he wrote that.
My grandmother had a cool Yiddish saying that she’d use for, well, certain people when she knew it was their birthday. It was (ph.), “Nischt elter.” Which translated literally as “No older.” You get the picture.
Until his death, that’s how I felt about Scalia. For EXACTLY the reasons you cite.
PS: We should send a nice letter, Bill, borrowing Mark Twain’s words.
Attributed to Twain, yes. Like lots of witty things said by others. Or else Churchill.
In reality? Not so clear: