Worse than Scalia

Update, February 23, 2016: Please see the update to my follow-up to this post. In short, the price that Republicans may pay for obstruction may be higher than I anticipate here. Whatever that price, it is now apparent that they have decided to risk paying it.[1]


Reacting to news of Supreme Court Justice Antonin Scalia’s death,[2] a Facebook friend wrote,

Excuse me while I celebrate. If you have an difficulty understanding why, read this BBC article. For my entire lifetime, this repulsive toad of a man, the sniveling minion of Nixon and Reagan, lorded his psychotic theology of hate over this country. Over my uterus, over my ability to choose to marry a man or a woman of my choosing. Over people of color, over my working poor brothers and sisters. His nomination was Reagan’s response to the uprising of LGBT activism during the early years of the AIDS epidemic. The exit of vile, spiteful human beings from the planet is something that should make the whole country one big jubilant party today. That is all.[3]

The BBC reported,

Throughout his career, the outspoken justice has been a vocal opponent of abortion and gay rights, often writing scathing dissenting opinions.

In the majority, he supported business interests and was a strong advocate for the death penalty, but he often parted with his conservative colleagues on issues of free speech.

He was known for his sense of humour and colourful language, calling efforts to defend President Obama’s healthcare reform law “jiggery-pokery” and “pure applesauce”.[4]

I have rather more mixed feelings.

First, I agree completely with my Facebook friend, quoted at the beginning of this posting. Scalia’s alleged intelligence—Senate Majority Leader Mitch McConnell[5] and former president George W. Bush[6] have praised it—seems to me to have amounted more to artful rhetoric in defense of social and functionalist conservative positions.

But I’m not so sure that Scalia’s demise is reason for hope. First, as I noted in 2011,

as it stands, progressives are taken for granted [by the Democratic Party].[7] And as this dynamic plays out, we face a choice not between whether, for instance, conservative or liberal Supreme Court justices are appointed, but rather in how much more conservative each succeeding Justice is than his or her predecessor; we face a choice not in whether Roe v. Wade is upheld or overturned, but in the timing with which it will most certainly sooner or later be overturned; we face a choice not between whether the rich are made richer at the expense of the poor or the tax system is adjusted to effect some necessary redistribution of wealth, but how much richer the rich will be made and how many fewer regulations they will subject to; we face a choice not between war and peace, but in the number of wars we will fight simultaneously; we face a choice not between environmental protection and degradation, but the speed with which environmental protections are rolled back or set aside entirely to advance the interests of capitalism; we face a choice not between civil liberties and a police state, but in the degree to which we celebrate that police state; and, to summarize all the ways in which the range of acceptable political discourse has shifted beyond progressives’ grasp, we face a choice not between Republicans and Democrats, but between wannabe-Republicans and Fascists.[8]

That hasn’t changed—at least not much—and progressives are reduced to cheering, albeit less enthusiastically now that they’ve been burned so many times,[9] when neoconservative President Barack Obama[10] and other establishment Democrats pander to the progressive vote.

Republicans control the Senate, where Supreme Court nominees must be confirmed. They generally want the next nomination to be made by the next (presumably Republican) president,[11] which couldn’t happen for nearly a year.[12] It is really, really hard to imagine even a faux liberal nominee of the Obama mold getting a vote.[13] Obama would have to nominate what Senator Lindsay Graham calls “a consensus choice.”[14] Which is to say that Obama’s nominee would likely have to be somewhat or very conservative. And even then, based on what I’ve seen of the incredible conservative antipathy toward Obama,[15] I’m not sure such a nominee would get a vote.

Graham, on the other hand, believes that Donald Trump or Ted Cruz would lose in the general election. And, “[i]f we [Republicans] lose the election, Hillary Clinton’s going to pick somebody who I wouldn’t pick. I’m telling every conservative now: don’t expect to lose the election and still get your way.”[16] If indeed “there is a real chance the GOP could lose control of the Senate,”[17] then conservatives are taking a real chance.

I’m somewhat less optimistic about Democratic prospects. After a near-draw in the Iowa caucuses[18] and an overwhelming victory[19] in the New Hampshire primary, Bernie Sanders must be taken somewhat more seriously as a contender for the nomination. But he still has a steep mountain to climb for the nomination.

Sanders might make that climb. A lot besides lost or nearly lost elections has been going wrong for Clinton’s campaign lately.[20] Some of this stuff seems like it is already biting, well before the Democratic Convention, which makes it less likely that Clinton can even win the nomination. Even if she prevails in the contest for the nomination, these issues will surely haunt—and I believe defeat—her in the general election.[21]

But while I think that Sanders’ chances in the general election are better than Clinton’s, it’s not at all clear that Sanders will be able to overcome a perception that he is a “tax and spend” “socialist” or manage to portray that in a sufficiently positive light for enough voters.[22] Which is to say that Republicans have every reason to refuse Obama’s nomination to replace Scalia. They can probably get an even worse Justice by waiting until next year.

  1. [1]Alexander Bolton, “GOP Judiciary: No hearing on Obama court nominee,” Hill, February 23, 2016, http://thehill.com/homenews/senate/270423-gop-judiciary-no-hearing-on-obama-courtinee; Alexander Bolton, “Senate GOP opens new chapter in judicial nomination wars,” Hill, February 23, 2016, http://thehill.com/homenews/senate/270509-senate-gop-opens-new-chapter-in-court-wars
  2. [2]British Broadcasting Corporation, “Antonin Scalia, conservative US Supreme Court justice, dies,” February 13, 2016, http://www.bbc.co.uk/news/world-us-canada-35571868
  3. [3]Celeste Gurevich, [Facebook post], February 13, 2016, https://www.facebook.com/CelesteDesmaraisGurevich/posts/10208371052733845
  4. [4]British Broadcasting Corporation, “Antonin Scalia, conservative US Supreme Court justice, dies,” February 13, 2016, http://www.bbc.co.uk/news/world-us-canada-35571868
  5. [5]Harper Neidig, “McConnell: Don’t replace Scalia until after election,” Hill, February 13, 2016, http://thehill.com/homenews/senate/269389-mcconnell-dont-replace-scalia-until-after-election
  6. [6]British Broadcasting Corporation, “Antonin Scalia, conservative US Supreme Court justice, dies,” February 13, 2016, http://www.bbc.co.uk/news/world-us-canada-35571868
  7. [7]Glenn Greenwald, “Democratic politics in a nutshell,” Salon, July 31, 2011, http://www.salon.com/news/opinion/glenn_greenwald/2011/07/31/democrats
  8. [8]David Benfell, “Why Obama’s compromise is doomed,” Not Housebroken, August 17, 2011, https://disunitedstates.org/?p=4385
  9. [9]Maria Bustillos, “You don’t have to be a bro to support Bernie Sanders,” Los Angeles Times, February 10, 2016, http://www.latimes.com/opinion/op-ed/la-oe-0210-bustillos-female-bernie-voter-20160210-story.html
  10. [10]David Benfell, “Oy Vey: Paleoconservatives, Neoconservatives, and Alleged Anti-Semitism,” April 1, 2014, https://parts-unknown.org/drupal7/journal/2014/04/01/oy-vey-paleoconservatives-neoconservatives-and-alleged-anti-semitism
  11. [11]Harper Neidig, “McConnell: Don’t replace Scalia until after election,” Hill, February 13, 2016, http://thehill.com/homenews/senate/269389-mcconnell-dont-replace-scalia-until-after-election; Matthew Yglesias, “Ted Cruz and other conservatives are arguing Obama shouldn’t get to replace Justice Scalia,” Vox, February 13, 2016, http://www.vox.com/2016/2/13/10987012/should-obama-replace-scalia;
  12. [12]Stephen Collinson, “Justice Antonin Scalia’s death quickly sparks political battle,” CNN, February 13, 2016, http://www.cnn.com/2016/02/13/politics/antonin-scalia-supreme-court-replacement/index.html; Lauren Fox, “Harry Reid To Republicans: You Better Not Block Us From Replacing Scalia,” Talking Points Memo, February 13, 2016, http://talkingpointsmemo.com/livewire/harry-reid-dont-block-scalia-successor
  13. [13]Rick Hasen, “Justice Scalia’s Death And Implications For The 2016 Election, The Supreme Court And The Nation,” Talking Points Memo, February 13, 2016, http://talkingpointsmemo.com/cafe/scalia-death-2016-implications
  14. [14]Eli Stokols, “Sen. Graham: Obama’s Supreme Court pick needs to be a ‘consensus’ choice,” Politico, February 13, 2016, http://www.politico.com/blogs/south-carolina-primary-2016-live-updates-and-results/2016/02/supreme-court-justice-appointment-lindsey-graham-219249
  15. [15]David Benfell, “Conservative Views on Undocumented Migration” (doctoral dissertation, Saybrook, 2015), doi: 10.13140/RG.2.1.4776.2001
  16. [16]Eli Stokols, “Sen. Graham: Obama’s Supreme Court pick needs to be a ‘consensus’ choice,” Politico, February 13, 2016, http://www.politico.com/blogs/south-carolina-primary-2016-live-updates-and-results/2016/02/supreme-court-justice-appointment-lindsey-graham-219249
  17. [17]Stephen Collinson, “Justice Antonin Scalia’s death quickly sparks political battle,” CNN, February 13, 2016, http://www.cnn.com/2016/02/13/politics/antonin-scalia-supreme-court-replacement/index.html
  18. [18]Bradford Richardson, “Clinton hangs on in revised Iowa caucus results,” Hill, February 7, 2016, http://thehill.com/blogs/ballot-box/presidential-races/bernie-sanders-iowa-results-gain-error-recount-hillary-clinton
  19. [19]Patrick Healy and Jonathan Martin, “Donald Trump and Bernie Sanders Win the New Hampshire Primaries,” New York Times, February 9, 2016, http://www.nytimes.com/2016/02/10/us/politics/new-hampshire-primary.html
  20. [20]Chris Cillizza, “Hillary Clinton’s week just went from bad to worse,” Washington Post, February 11, 2016, https://www.washingtonpost.com/news/the-fix/wp/2016/02/11/hillary-clintons-week-just-went-from-bad-to-worse/; Nicole Gaouette, “Former Obama intel official: Hillary Clinton should drop out,” CNN, February 13, 2016, http://www.cnn.com/2016/02/12/politics/hillary-clinton-michael-flynn-email-fbi-investigation/index.html; Josh Gerstein, “State Dept. marks three more Clinton emails at ‘secret’ level,” Politico, February 13, 2016, http://www.politico.com/story/2016/02/hillary-clinton-emails-secret-level-219241; Greg Grandin, “Henry Kissinger, Hillary Clinton’s Tutor in War and Peace,” Nation, February 5, 2016, http://www.thenation.com/article/henry-kissinger-hillary-clintons-tutor-in-war-and-peace; Michelle Hackman, “Sanders won all demographic groups that were supposed to be easy wins for Clinton,” Vox, February 10, 2016, http://www.vox.com/2016/2/10/10958218/new-hampshire-exit-polls-bernie-sanders; Alan Rappeport, “Gloria Steinem and Madeleine Albright Scold Young Women Backing Bernie Sanders,” New York Times, February 7, 2016, http://www.nytimes.com/2016/02/08/us/politics/gloria-steinem-madeleine-albright-hillary-clinton-bernie-sanders.html; Michelle Hackman, “Sanders won all demographic groups that were supposed to be easy wins for Clinton,” Vox, February 10, 2016, http://www.vox.com/2016/2/10/10958218/new-hampshire-exit-polls-bernie-sanders; Stephen Zunes, “Hillary the Hawk,” Cairo Review of Global Affairs, Winter, 2016, http://www.thecairoreview.com/essays/hillary-the-hawk/
  21. [21]David Benfell, “Updated: Damnation by faint praise: Sanders claims to be more electable than Clinton,” Not Housebroken, January 29, 2016, https://disunitedstates.org/?p=8529
  22. [22]David Benfell, “Bernie Sanders is doomed,” Not Housebroken, September 15, 2015, https://disunitedstates.org/?p=8108

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