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Why conservatives are freaking out over Obama picking Scalia replacement

by Eric Ferguson on March 31, 2016 · 1 comment

scotusSure, there’s the obvious. Republicans hate Obama, oppose everything he does as SOP, and would oppose any nomination he might make for the US Supreme Court even under different circumstances. They would likely oppose any nomination made by a Democratic president, though given the disrespect they’ve shown this president, they probably feel the awful irony that the most blatant racist to sit on the court in recent decades will be replaced by someone chosen by the first black president.

 

But that’s not all.

 

Think back a few decades. Republicans held the presidency, and made all the supreme court nominations, for 20 of 24 years from Richard Nixon’s inauguration until Bill Clinton’s. The other four years were Jimmy Carter’s term, when he got zero picks. Zero. Presidents aren’t guaranteed any picks. Consequently, when Clinton started his first term, the court was 8-1 Republican. It may have been only 6-3 conservatives to moderates/liberals, but the point is this: the conservative lean of the supreme court is not recent. Going back to roughly the early 1980’s, for over 30 years, the court has been conservative. It didn’t start with George Bush Jr.; it couldn’t have, considering that the most infamous of the court’s 5-4 conservative decisions, Bush v. Gore, was a necessary precondition of Bush being placed in the presidency.
 
In other words, for all or most of the adult lives of those now living, and for the entire lives of anyone under age 35, the supreme court has been conservative, and been an eroding force for civil rights, voting rights, women’s rights, and restraints on corporate power. Liberals haven’t always lost, but winning has always been against the odds, hoping a conservative or two could see the light on one particular case. Conservatives have been aware of this, putting far more attention on judicial appointments than liberals in general. There is no liberal equivalent of the Federalist Society frmo which John Roberts came.
 
So the death of Antonin Scalia means not merely that the favorite justice of the right has died, not merely that he’ll be replaced by a Democrat, and not merely that he’ll be replaced by THAT Democrat; it means the first liberal supreme court most of us have ever seen.
 
If the importance of that still doesn’t sink in, imagine no Bush v. Gore, and all that has flowed from that horrific decision; or at least, had Bush gone to the court as he did, he wouldn’t have been able to count on a partisan decision. Who knows, maybe a liberal court would have made a radical decision like telling Florida to actually count the ballots. Imagine no Citizens United or any decisions blowing apart our campaign finance laws. Imagine no Medicaid gap being written in the ACA. Imagine no Heller decision making law out of fringe doctrines of the gun obsessives. This is the court that is on the verge of flipping thanks to President Obama getting to select Scalia’s replacement.
 

It might be news to any conservatives reading this that the court hasn’t been a liberal institution except for the last decade, perhaps thinking the era of conservative judicial activism goes back only to the confirmation of Bush Jr’s picks, Roberts and Samuel Alito. When Clinton became president, the court already included Scalia, along with Anthony Kennedy and Clarence Thomas, and Chief Justice William Rehnquist was as conservative as any of them. Maybe conservatives are thinking about the Warren and Burger courts that produced Brown, Miranda, and Roe v. Wade, but that was actually an unusual period for the court that lasted only roughly 20 years. Otherwise the court has leaned right, sometimes imposing conservative ideology with little legal basis. A liberal court is very much the exception, so no wonder conservatives were so anxious to impeach Earl Warren. So absolutely, this replacement of Scalia by a liberal president is potentially a judicial earthquake.
 
And yes, liberals/Democrats, if you’re one of those who won’t support the Democratic nominee unless you get your nominee, this is the historic opportunity you’re throwing away. Maybe somehow Obama’s nominee, Merrick Garland, will get confirmed, but probably the next president will still have this opening to fill. The next president will likely also replace Ruth Bader Ginsburg and Anthony Kennedy. Are you so stuck on having your candidate that you’re willing to let President Cruz or President Trump fill those seats and decide the court’s direction for the next generation?
 
Ironically, Republicans would actually be wise to confirm Garland. Obama has offered them a moderate white male who, at 63, isn’t much younger than Thomas, who already has been a justice for a quarter century. They won’t get better from any Democrat. They don’t know for sure the Republican candidate will win the presidency, so who do they think President Sanders or the next President Clinton will nominate? Maybe they’ll just resubmit Garland since he’s already vetted by Obama and clearly qualified for the job, but maybe they’ll pick some liberal Scalia, some ideologue who twists the law to fit his own doctrine, who consciously limits his information to a few ideologically correct sources, who thinks his biases should be law. I doubt either would pick an ideologue like that, but no guarantee. And if Republicans lose the Senate, as they might, they probably can’t stop a liberal Scalia from getting confirmed and sitting on the court for the next 30 years. Meanwhile, and this I do guarantee, on the Democratic side, we’re going to use the refusal to to even consider Garland as an issue in the this campaign.

 
Meanwhile, Republicans might lose more than they win by keeping the seat open. There are going to be a bunch of 4-4 ties, and in such cases, the lower court’s decision stands. A terrific example from two days ago, in the Friedrichs case, which was expected to mean the end of the ability of public sector unions to collect dues, the court split 4-4. Since the unions won at the appeals court, they get an utterly unexpected win. Anyone doubt that public sector unions would be struggling just to survive if Scalia was still there? Or if he were replaced by anyone would could be nominated by a Republican president? Now consider that Democratic appointees make up a slight majority of federal judges. More of those lower court decisions will favor us. So go ahead GOP, keep the seat open.

 
Another irony: Obama’s first term predilection for pre-compromising has actually served him well here, and I’m guessing he did this on purpose. By “pre-compromising”, I refer to how Obama offered a water-down version of the stimulus and health care reform, and offered Republicans much of what they wanted early in the debt ceiling crisis in 2011. He offered the sort of policies that might be expected if Republicans and Democrats had already negotiated and split differences, except he did these as a first offer. You can’t offer the least you can live with unless you’re willing and able to walk away from the table if your offer is rejected, and Obama was not so willing and able, so that strategy didn’t work with people determined to obstruct any way they could and damn the consequences. It works this time. It seems obvious that Obama is willing to walk away if Republicans say no to Garland because Democrats then get a terrific campaign issue. I doubt, in fact, that Obama has any real belief Garland will be confirmed. He set up a campaign issue, provided Republicans are foolish enough to keep following their ticked-off guts. So Obama gets a nominee he can live with, or an issue that makes it more likely he’ll be succeeded by another Democrat, and it becomes more likely that Democrats flip the Senate. Some on the left side are dissatisfied with the Garland nomination, but count me among those endorsing him. That’s actually the strategy I was hoping Obama would follow.
 
Maybe Republicans will be annoyed that I’m advising them to cut their losses and reduce their risk by giving in to a superior strategist, but come on Republicans. Obama has strategized circles around you often enough that you should be used to it by now. But go on, hold out in hopes you’ll still have a majority next year, and that you’ll be able to tolerate whomever Trump or Cruz nominates.
 
Comments
 
From Mac Hall: The freakout is because they will have to face voters … well, actually, one group of voters that seem to have veto power over nominees … the NRA. Did you hear last week that Mitch McConnell said that Garland was unacceptable to the NRA as well as the small business lobby group ? Well, this week on Meet the Press, Ron Johnson said he could not support Garland because of the NRA protest.
 
Johnson isn’t only objecting to Garland … but others … take the case of confirmation of Donald K. Schott to the 7th Circuit Court of Appeals in Chicago. On Jan. 12, President Obama nominated Schott, of Madison WI, to fill the longstanding vacancy on the court, which handles federal appeals cases from Wisconsin, Illinois and Indiana. Because the appointment is from Wisconsin, Senate procedure effectively gives Johnson and U.S. Sen. Tammy Baldwin veto power to block any nominee. 48 professors from Marquette University and the University of Wisconsin law schools urged Johnson to allow the appointment to move forward (read their letter … he says no … wanna bet that the NRA has put a hold on Schott.
 
I wish it was just Garland … but the Senate is failing America.
 

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