Sunday, February 14, 2016 at 9:47 AM

Antonin Scalia, Pugnacious Justice of the U.S. Supreme Court, Is Dead

Posted by Anthony L. Hall

Justice Antonin Scalia, whose transformative legal theories, vivid writing and outsize personality made him a leader of a conservative intellectual renaissance in his three decades on the Supreme Court, was found dead on Saturday at a resort in West Texas…

‘He was an extraordinary individual and jurist, admired and treasured by his colleagues,’ Chief Justice Roberts said.

(New York Times, February 13, 2016)

Orange County News - Aug 29, 2005Of course, chances are that over 80 percent of the American people have no clue who Antonin Scalia was. No doubt they know even less about the conservative jurisprudence that made him so controversial. On cases calling for racial equality, for example, he propounded opinions that made sense only to racist demagogues like Donald Trump.

Nonetheless, the politicization of the U.S. Supreme Court has become such that all anyone needs to know is that Scalia was to American jurisprudence what Ted Cruz is becoming to American politics; that is, a doctrinaire, dogmatic, and divisive force.

Mind you, conservatives rushing to eulogize him would have you believe he belongs in the pantheon of top-10 Supreme Court justices, alongside the like of John Marshall, Earl Warren, and Louis Brandeis. But this is every bit as specious and self-serving as musicians rushing recently to eulogize David Bowie as if he belongs in the pantheon of top-10 rock-and-roll stars, alongside the like of the Beatles, Elvis Presley, and Jimi Hendrix. Neither Scalia nor Bowie even belongs in the top-20, respectively.

Granted, my allusion to Cruz assumes more people have a clue who he is. But this is a reasonable assumption — even if only because he has been playing a feature role in the TV spectacle that is the ongoing Republican presidential campaign. Now he’s leading the chorus of Republican leaders issuing condolences that convey more concern about Scalia’s replacement than his death.

It took only a few minutes after news broke of Supreme Court Justice Antonin Scalia’s death on Saturday for conservatives to demand that Senate Republicans block any replacement nominated by President Barack Obama.

It took just a little while more for Republican leadership to agree with them.

In a swift statement designed to warn Barack Obama against even nominating a replacement, Senate Majority Leader Mitch McConnell (R-Ky.) pledged to sit on his hands for the remaining 11 months of the president’s term.

(Huffington Post, February 13, 2016)

Screen Shot 2016-02-13 at 11.33.05 PM

This telegraphs why nothing will have become Scalia on the Court quite like leaving it. But I presaged years ago what his death now portends.

Partisan politics has so infected even the hallowed chambers of the Court (see Bush v. Gore 2000) that Republicans can be forgiven for thinking that it will declare Obamacare unconstitutional – with the five justices who were nominated by Republican presidents ruling to overturn it and the four nominated by Democratic presidents ruling to uphold it.

(“Supreme Court to Rule on Landmark Healthcare Reform Law,” The iPINIONS Journal, November 23, 2011)

In other words, it has become as daring as it is damnable for any Republican appointee to vote with Democratic appointees on any controversial political issue (like abortion and gay rights), and vice versa.

It is noteworthy that no appointee towed the Republican Party line more viscerally and pugnaciously than Scalia. This, notwithstanding that Justice Clarence Thomas became equally notorious for towing silently along, like the Court’s Penn and Teller. Perhaps now Thomas will find his voice — even if only in an injudicious attempt to fill Scalia’s shoes. In “Supreme Court Justice Clarence Thomas Speaks?” October 1, 20007, I bemoaned the deaf, dumb and mute role Thomas has played on the Court since his controversial appointment in 1991.

robertsBy the same token, it is instructive that, every time Republican presidential candidates vow to repeal Obamacare, they damn Chief Justice Roberts as traitor for voting with the Democratic appointees to uphold it. But imagine America’s fate if justice is rendered according to the political affiliation of the judge instead of the evidence in the case.

Yet  I have argued for years that conservatives and liberals on the Supreme Court have devolved into little more than glorified hired guns for the Republican Party and Democratic Party, respectively. This is why Republicans will consider it an article of faith to obstruct confirmation of any Obama nominee. After all, if appointed, this justice would tip the balance of the Court towards affirming Democratic (aka liberal) politics.

You might find it unthinkable that they would really hold the Court hostage for their political purposes. Except that these are the same Republicans who have spent the past seven years doing all they can to wreck the U.S. economy just to vindicate their propaganda about Obama being a failed president.

Their dark, ulterior motive is to see America become so dysfunctional and humiliated under Obama’s leadership that Americans would not even consider electing another Black person as president for at least another 100 years.

Senate Republican leader Mitch McConnell has declared repeatedly, and quite unabashedly, that, ‘The single most-important thing we want to achieve is for President Obama to be a one-term president.’ (National Journal, October 23, 2010)

That, folks, is what this is all about – not about creating jobs, or reducing the national debt, or maintaining America’s AAA credit rating, [or preventing Iran from developing nuclear weapons].

(“S&P Downgrades U.S. Credit Rating,” The iPINIONS Journal, August 8, 2011)

Unfortunately, as the majority party in the Senate, Republicans control the judicial confirmation process. They now have far more power to obstruct an Obama judicial nominee than they ever had to obstruct any economic policy.

USJudgeV5Oct32013-2Therefore, even if Obama nominates an appellate judge like Sri Srinivasan to replace Scalia, Republicans will fight to their political death to delay, until they effectively block, his appointment. This is noteworthy because, just three years ago, the Senate confirmed him 97-0 to serve on the U.S. Court of Appeals for the District of Columbia Circuit, which is arguably the most influential court in the country after the Supreme Court.

Not to mention the enabling fact that more justices were appointed directly from this Circuit Court to this Supreme Court than anywhere else. They include conservatives John Roberts, Clarence Thomas, and Scalia himself, as well as liberal Ruth Bader Ginsberg.

In other words, it behooves Obama to nominate an appellate judge who has won unanimous Senate confirmation in recent years.

Whatever the case, this is a fight Obama should not only welcome but relish. I’m encouraged that he has already declared his intent to nominate a replacement in due course. He cited his determination to execute his constitutional duties. But he also noted that doing so would ensure the proper functioning of the Court to which Scalia devoted his life.

Republicans would clearly compromise this functioning if they succeed in blocking Obama’s nominee. For this would require the Court to function for up to two years with only eight justices, evenly divided along ideological lines – with all of the burdens and foreseeable gridlock that would entail.

Never mind that enforcing this judicial gridlock would only ape the congressional gridlock Republicans have enforced from day one. In fact, this would finally throw into stark relief how determined they have been to undermine Obama’s presidency. Hell, Republicans have obstructed his policies even when that meant betraying their own voting record, the welfare of the country be damned.

On the other hand, blocking his nominee would enable Democrats to frame November’s general election as a referendum on Republican obstructionism as much as Obama’s accomplishments. In fact, never before in modern times have the American people had just cause to vote straight party line for Democrats.

Accordingly, I urge you to vote for the Democratic candidate for the House, the Senate, and the White House — whether that person ends up being Hillary or my choice, Bernie.


Voting for Republicans will only reward their rabid, if not racist, obstructionism. More to the point, it will give a Republican president the opportunity to nominate a replacement – not just for Scalia but possibly three others of advanced age – with a justice in each case who is even more doctrinaire, dogmatic, and divisive. And a Republican-controlled Senate will confirm each one in a heartbeat.

Incidentally, Republicans might be in for a rude awakening if they cap their unprecedented spree of obstructionism by blocking Obama’s nominee. Because the Court’s putative swing voter, Justice Anthony Kennedy, might take institutional umbrage by voting with the four Democratic appointees on politically contentious cases.

85What’s more, Republicans are basing their declared intent to block this nominee on the contention that it’s been over 80 years since the Senate confirmed a nominee in an election year.

Never mind that the leading Republicans making this contention actually voted in a Democratic-controlled Senate to confirm no less a Republican nominee than Kennedy himself in 1988. That was an election year, which also happened to be the final year in office for the Republican president who nominated him, Ronald Reagan.

These inconvenient truths would compel any Republican senator with an ounce of political principle to support a timely and fair hearing for Obama’s nominee. Unfortunately, most Republicans have become so brazen and shameless, they simply disregard facts that do not support their partisan objectives.

They are trying to distinguish Kennedy’s confirmation by arguing that Reagan actually nominated him in 1987. But this is so specious, arbitrary and capricious, it’s laughable.

Despite their  protestations, however, I suspect cooler heads will prevail and Republicans will cave — even if that means voting en bloc to oppose the nominee, no matter how supremely qualified. Because failure to even hold a hearing, as Senator Cruz and others are threatening to do, would be tantamount to mass political suicide.

In any event, beware people, and vote smart! I cannot overstate that, if a Republican succeeds Obama, it will only be a matter of time before he nominates justices hell-bent on overturning legislation on everything from abortion to healthcare, climate change, and civil rights (for blacks and gays). Not to mention the likelihood of him plunging the country back into stupid wars just to prove his manhood.

That said, my condolences to Justice Scalia’s loved ones.

He reportedly died of natural causes. He was 79.

Farewell, Antonin.

Related commentaries:
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* This commentary was originally published yesterday, Saturday, at 10:24 p.m.

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