RIP Justice Scalia

antoninscaliaI couldn’t have disagreed more with Mr. Originalism, but our thoughts go to his family and friends, who are mourning the passing of the Supreme Court justice who died this weekend while on a trip to Texas.

The speculation about his possible replacement started immediately. Could Pres. Obama, a Democrat, make an emergency appointment? Well, there’s this:

12743667_10154612046328957_6922469954257104630_nBut then, in June 2014, the Supreme Court struck down the option for recess appointments, though that decision seemed to be focused on the National Labor Relations Board. According to the SCOTUS blog:

…the Court upheld his power to make other recess appointments – as long as they are made during recesses that last at least ten days.

Also from that blog:

…the Court said that any recess that is shorter than three days is not long enough to make a recess appointment necessary.  And a recess that is longer than three days but shorter than ten days will, in the normal case, also be too short to necessitate a recess appointment.  (The Court added that there may be “very unusual” cases – such as a “national catastrophe . . . that renders the Senate unavailable but calls for an urgent response” – in which recess appointments would be permitted even though the recess was still shorter than ten days.)

Could Obama, himself, serve once his term is up? Candidate Hillary Clinton “loves” the idea. Her Democratic opponent, Sen. Bernie Sanders, chastised Republican Senators for dragging their feet on an appointment. Pres. Obama, himself, has let it be known he’ll suggest a successorin due time.”

Then again:


No one is asking me, but I’d love to see Anita Hill on the bench, and not just because of this:

And thanks, Cynical, for your contribution on this.

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  1. I’m going to miss Scalia. He was obsessively pugnacious, a brilliant jurist, and despite what comes out most about him in the media, his brand of Originalism…textualism…was not unassailable…set in stone…within his own logic. DC v. Heller is a good example. Scalia helped expand The High Court’s power over Congress, which is not entirely a bad thing. He made opposition to his legal philosophy better suited to challenge textualist interpretation of the Constitution. Something acknowledged by RBG in her remembrance of him on Sunday. Scalia even gave her an advance copy of his dissent in one case so she could polish her majority opinion.

    His influence on American jurisprudence and (principled) American conservatism will not soon diminish.

    I don’t think a recess appointment is going to come into play. Lyle Denniston discusses it here. There’s a possibility that Obama may feel some pressure to force a temporary replacement onto the Court in order to get a particular case or two resolved. But I don’t think that’s how he wants to do business on this issue. He wants a permanent replacement or have the GOP pay a high political price for not playing along.

    There’s plenty of time to get a replacement through the Senate if the GOP does its job. There’s a number of potential replacements that the GOP has approved of in past appointments to lower courts. Like Sri Srinivasin, unanimously confirmed to The DC Court of Appeals in 2013. Or Jane Louise Kelly, unanimously confirmed to the 8th Circuit in 2013.

    It’s unclear at this time whether Mitch McConnell’s obstructionist approach will play with the entire Senate majority. The GOP has 24 Senate seats at risk this year. Holding up a nomination might not play well in swing States. Some vulnerable Senators could bolt. Speaker Ryan’s silence on the issue…so far…is significant in my view. (And the whole “people should have a say” argument is just silly. The American people have never had a say in who sits on The High Court.) And it’s safe to say Americans in general are fed up with obstructionism. So while the rhetoric might play well with GOP extremists and opportunists, the vanguard and the Deep Pockets might promote a different tack. Because….

    There’s The Ruthie Factor to consider. Now might be the last time GOP Senators might have a chance to put a potentially friendly nominee on the Court. Unless they’re utterly convinced one of their boys will sit in The Big Chair next year. And equally convinced said boy will toe the Party Line. And equally convinced their Party will sustain a majority in the Senate next year. Unless they feel they can count on Clinton…or Sanders… to stand a suitable nomination if RBG vacates for some reason, now would be the time to act on the current vacancy.

    An Obama nomination, while not completely out of the question, is a long shot.

        1. The fact that he never clerked doesn’t bother me. The fact that he’s called the life of a SCOTUS justice “monastic” and not to his liking leads me to believe this is all conjecture.

          1. I wouldn’t characterize Scalia as monastic. Or Ruthie. Or Kagan, (a hunting partner of Scalia).
            But yeah…I think it’s conjecture. I would think Obama would want to enjoy the perks of being a former President before going right back to work…hard work and he knows it…as a jurist. He’s got a pretty cush lifestyle in his pocket right now.

            1. I don’t blame him. I find the law fascinating, but I’m not sure I’d have the fortitude to figure out precedent — though that never seemed to bother Scalia much.

              1. The research and analysis was always my favorite part.

                I disagree with your assumption about Scalia not bothering to figure out precedent. It’s a necessary part of his job. Even if he, like every other Justice, delegates much or most of that process to clerks and assistants, he would still be responsible for “figuring out” which precedent applied…relevance…not only to his argument, but to opposition arguments. Just because you disagreed with a decision doesn’t mean Scalia didn’t do his job.

                Just look at the Table of Authorities, (cases, statutes, and secondary sources), Scalia employed in Heller [PDF]. The same format was used by petitioners, respondents and friends of the court when making their arguments. Precedent can be discounted, marginalized, rejected, but it is never ignored. Except by the media.

                Law cannot be practiced on any level without due diligence being applied to precedent. It’s simply necessary to jurisprudence.

                1. I believe that, that precedent rules, but I also believe that many of Scalia’s decisions skipped that part as he tried to parse the bones of what he called the dead Constitution.

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