Tag: Antonin Scalia

Oh, for a little straight talk now that spring is in the air

The political reaction to the death of Supreme Court Justice Antonin Scalia is the clearest evidence I’ve seen lately of the sclerotic thinking that passes for wisdom and strategy in American politics.  Not saying I’m surprised, mind you, just saying.

Don’t get me wrong: every vacancy on the Supreme Court of the the United States, ever, has been the occasion for political plotting and pontificating…that’s the nature of the beast.  Maybe there was more lip service paid in the past to observing “a decent interval” before going public, but we know that one reason the successful professional political players are successful is that they don’t let an opportunity to gain advantage go to waste.  In this case, Scalia’s body hadn’t made it home to Virginia before Senate Majority Leader Mitch McConnell announced his intention to block anyone nominated by President Obama in the hope that a Republican wins the presidency this November.

Why?  Because “The American people should have a voice in the selection of the next Supreme Court justice”?  Excuse me, Mr. Majority Leader and avowed Obstructionist-of-Obama-in-Chief, but that’s not the way it’s done and we all know it.

There isn’t—or shouldn’t be—any disagreement on the facts: the Constitution gives this president the responsibility to nominate a new justice in this case, not the next president; many of the same Republican senators now insisting that the process must be put on hold for the good of the nation had very different opinions when the question came up during the last few months of George W. Bush’s presidency.  (Yes, plenty of Democrats have more than a passing acquaintance with hypocrisy as a political tool, too, starting with Chuck Schumer on this same topic eight years ago; I’m sure some of you have more examples.)  Also true is that the Constitution gives responsibility to the Senate to approve or reject that nominee, with no timetable or deadline for doing so.

There’s no question that McConnell and the Republican majority have no legal requirement to approve President Obama’s nominee, or even to put the nomination to a vote.  They may make the political calculation that stonewalling for a year is the better path: bet on winning the White House and holding the Senate so they can have their pick of ultraconservative judges, versus running the risk of losing both and allowing the Democrats to choose another Douglas or Brennan (if one can be found).  I wish they would just say so, instead of going to the well for another round of the Obama Apocalypse that (inexplicably) plays so well with a certain portion of the electorate.  Andrew Prokop at Vox.com wrote them a first draft of such a speech:

Justice Scalia was a strong, solid conservative. And whoever Barack Obama nominates to replace him is certain to be well to his left — and will likely be very, very, very far to his left.

This would upset a balance of power in the Court that has existed for decades. Instead of a five-vote majority that is generally conservative, a Scalia replacement appointed by President Obama would allow a new majority bloc of five solid liberals to form. On issues affecting free enterprise, the sanctity of human life, and federal power, sweeping new liberal rulings could reshape law and precedent across America.

I believe this would be a disaster for the country. Most members of my party believe this would be a disaster for the country. And most of my party’s voters believe it would be a disaster for the country.

So I’m going to do my best to stop it from happening.

(snip)

…in suggesting that President Obama shouldn’t appoint any replacement for Scalia, and that he should just leave it to the next president, I am rhetorically going further than others have in the past.

But really I’ve just hit the fast-forward button. We would have ended up opposing whomever Obama nominated, because that person would, of course, have had liberal views. And my party’s senators would never have approved any other Obama Supreme Court nominee anyway, because they’re terrified of losing their seats in primaries.

So maybe my “no nominees in the final year” position hasn’t explicitly been taken by anyone before, but it hardly means the death of our constitutional democracy. The near-term upshot is that one Supreme Court seat stays vacant for a year. Some closely divided cases will effectively remain unresolved for a bit. Big deal.

I agree with Scalia—I know, it surprised me, too!

Doe v. Reed was the last case the Supreme Court of the United States heard oral arguments on before the end of the term: should your signature on a ballot petition be allowed to be kept secret.  In her report on the oral arguments legal analyst Dahlia Lithwick noted that Justice Antonin Scalia appeared to believe it should not be when he argued

…you can’t run a democracy this way, with everybody being afraid of having his political positions known.

I agree, and this week the court ruled 8-to-1 against the plaintiffs; Justice Clarence Thomas was the man Choire Sicha identifies as the only person “brave enough to protect bigots from angry gays.”

I was thinking that it seemed cowardly for people concerned enough about the all-but-marriage law in Washington to sign the petition to overturn it but then seek to hide their involvement.  If people want to take the job of writing laws into their own hands, well, OK…we do have elected representatives to do that for us, so initiative or referendum already smells a little like “sore loser at work,” but OK.

But then, having undertaken that effort, to then say that you shouldn’t be publicly identified as having supported the effort—to keep from being harassed because of your beliefs—just seems cowardly.

You want to participate?  Great!  Just remember, don’t bring a pocketknife to a gunfight, and if you want to win the pot, you’ve got to show your hand when it’s called.

Yes, some people will say bad things about you…offer mean opinions of your cognitive skills…sling epithets.  Get over it.  Hiding from confrontation, or even discussion, about differing opinions just reinforces the poisonous political atmosphere.

But consider, it apparently is a First Amendment protection to have your political participation kept anonymous in some instances, like a secret ballot.  The Supremes left open the opportunity for the plaintiffs in Doe to get what they want from a lower court.

Here’s what’s more concerning: in a report on the growing fear of intimidation for voicing unpopular positions, Lithwick discusses the possible application of this idea to political participation in the form of financial contributions to campaigns.  Yep: hiding from public view the identities of people who give campaign money to our representatives.  Imagine that, on top of the Citizens United v. FEC decision that has given corporations the same right to donate money as is already enjoyed by actual real human people.

So, are you OK with letting companies make unlimited campaign contributions, in secret?  I’m waiting for my buddy Scalia to jump on that one.