Could this impending battle over the Supreme Court tear our nation apart?


I was thinking today about the little events that influence global politics, and all of our lives. Had Archduke Franz Ferdinand’s car not taken a wrong turn at the junction of Appel quay and Franzjosefstrasse in Serbia on that day in 1914, passing in front of a loitering 19-year-old Gavrila Principe, who just happened to have a gun, the first World War may not have happened. And, had there not been a World War I, the Nazi party may not have risen to power in Germany, leading to a second world war. And, had there not been a second world war, I don’t know that my teenage grandfather would have asked my grandmother to marry him before shipping off from his small town in Illinois to fight in Europe. And, if that hadn’t happened, I likely wouldn’t have been born. And, if I hadn’t been born, no one would have broken the Cakegate story… It’s a game I play often, wondering what little event, like a missed turn at a Serbian street corner 100 years ago, could change the course of history. And I’m wondering if we might be witnessing such a moment right now. I’m wondering if, the death of Supreme Court Justice Antonin Scalia could be such a moment, a moment that dictates the course of everything for the next century.

I don’t want exaggerate the threat, but this feels big to me, like this could be the point that things have been building toward since things started happened back in 2000, like this is the beginning of the final act. Hopefully I’m wrong about this, but I think, when Scalia died in his sleep yesterday, a bunch of things started happening that could lead us to a very bad place. I’m not suggesting that civil war is on the horizon, but I do think that, if Obama doesn’t navigate this exactly right, things could get incredibly messy.

Here, for those of you who don’t read the news, is a brief overview of where we find ourselves today.

For me, the presidential election has always been primarily about the Supreme Court. I know some people feel as though it doesn’t really matter who holds the office of President. “They’re all essentially the same,” they say. And, to some extent, I agree, as our system is biased toward candidates that can win the financial support of the rich and powerful. But there’s a huge difference between, say, Justice Ruth Bader Ginsberg and Justice Antonin Scalia, and it’s the President of the United States who decides what kind of person ascends to the high court to make decisions about assault weapons, campaign finance, reproductive rights, and any number of other incredibly important issues facing our nation. The Supreme Court is where a President really leaves his, or her, mark. It’s an incredible responsibility, and an enormous opportunity to guide the nation in a particular direction. And, it’s because of this, that we’re going to see an all out war over Obama’s nomination of a justice to replace the court’s most conservative member, Antonin Scalia, who just yesterday passed away in his sleep in Texas at the age of 79.

Given all of the close 5:4 decisions favoring conservatives over the past several years, like the decision to stop counting ballots in Florida and put Bush in the White House instead of Gore, or the decision in the Citizens United case that allowed for virtually limitless corporate spending on American elections, there’s just too much riding on this appointment for there not to be a fight of epic proportions. To flip that seat from someone who, like Scalia, was adamantly against organized labor, women’s rights and civil rights, to someone who values such things, could be transformative for America, and everyone knows it. It could call all of those recent 5:4 decisions back into question. [I say, “could be,” because you never know how things are going play out when the composition of the high court changes. The judicial philosophies of individual justices have been known to evolve in unforeseen ways. For instance, when conservative Justice Harry Blackmun found himself on a court growing more right wing under Justices Burger and Rehnquist, he responded by moving decidedly to the left.]

And, I should add, Scalaia wasn’t just “a” conservative justice. He was our most conservative justice. He was unabashed in his disdain for many of the things that progressives hold dear. Scalia, for instance, as you might recall, once famously said that the separation of church and state, which is a cornerstone of our democracy, was responsible for the rise of Hitler’s Nazi party in Germany. And, more importantly, he was behind the Supreme Court’s 5-4 decision in 2013 to strike down Section 4 of the Voting Rights Act of 1965, stating that the provision, which, for almost 50 years, had required that certain areas of the country with dismal civil rights records obtain approval from the Justice Department or a special federal court before changing their voting laws, was unconstitutional. [Justice Scalia had described the Voting Rights Act in the past as, “the perpetuation of a racial entitlement.”] At the time, Congressman John Lewis, an African American who had fought for equal rights alongside Martin Luther King, called the decision “a dagger in the heart of the Voting Rights Act,” and he was absolutely right. And, speaking of his thoughts on race, who can forget what he said just this past December in his amicus brief in response to a Supreme Court case about race-based admissions at the University of Texas? “There are those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well,” he said.

[note: Just to give you a sense of how fast Supreme Court decisions can make things happen, shortly after Scalia and company struck down Section 4 of the Voting Rights Act of 1965, it was announced that 31 Department of Motor Vehicle (DMV) locations in predominately black areas of Alabama would be closing, making it more difficult for people of color to acquire the identification required to vote.]

So, you could say there’s a lot riding on this nomination. And, as you might expect, conservatives are already coming out and saying that it shouldn’t be up to Obama to name Scalia’s replacement, even though he still has almost one full year left to serve as President. [Obama will leave office on January 20, 2017, so he still has 11 months in office.] Just minutes after the announcement of Scalia’s death became known, congressional staffers started taking to social media, promising to block any move by Obama to fulfill his Constitutional obligation to submit a candidate for confirmation. And, later that same evening, during the Republican debate, Texas Senator Ted Cruz said the following. “We have 80 years of precedent of not confirming Supreme Court Justices in an election year,” he said. This, of course, was a lie.

As the folks as SCOTUS Blog pointed out soon afterward, not only is there a precedent when it comes to Presidents naming candidates for the high court in an election year, there’s no evidence of any modern President having delayed his duty in this regard. According to their post, “The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election.” Among those making such appointments were Taft, Wilson, Hoover, FDR, Eisenhower and Reagan.

Even in the best of times, this would be a battle. Now, though, as we contemplate hugely important things like limiting corporate money in politics, the future of so-called “entitlement” programs, gay marriage, and any number of other things, it’s going to be war. Even in 2014, at the beginning of Obama’s second term, only five Republican Senators voted to confirm Justice Elena Kagan to the Supreme Court and three of those Senators no longer hold office [Judd Gregg, Richard Lugar and Olympia Snowe].

And the Senate, since Kagan was confirmed, has grown even more poison. Saying, “ The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,” Senate Majority Leader Mitch McConnell vowed not to give anyone a hearing, breaking with Senate precedent. And he wasn’t alone. Senate Judiciary Committee Chairman Chuck Grassley, also a Republican, said that he had not plans to take up the confirmation process on his panel. “This president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda,” Grassley said. “It only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”

For people who claim to care a great deal about the “rule of law” in theory, they don’t really seem to much respect it in practice, as it’s very clear that the sitting President is not only allowed to, but required to nominate a justice and have that person considered for confirmation by the Senate.

Assuming the Senate did agree to consider Obama’s candidate, though, there’s no promise that things would go well. According to the rules as they now exist, Obama’s candidate would need to get 50 votes. [At 50 votes, Vice President Biden could step in and break the tie.] And, if the Republicans wanted, they could filibuster, which would raise the bar to 60 votes. [While legal, no Supreme Court nominee has ever been filibustered.] Given that the Democrats currently only have 46 votes in the Senate (there are 44 Democrats and 2 Independents that caucus with the Democrats), they would need 4 Republicans to join them, and for there not to be a filibuster, in order to get Obama’s nominee on the bench… The following analysis is from Benjamin Studebaker.

…Barack Obama’s past court nominees have each received a few Republican Senate votes. Elena Kagan got the support of 5 Republicans, while Sonia Sotomayor got the support of 9. However, only three of those Republicans remain in the Senate today. They are:

Lindsey Graham (R-SC), who recently withdrew from the presidential race and voted to confirm both Sotomayor and Kagan.

Susan Collins (R-ME), who voted to confirm both Sotomayor and Kagan.

Lamar Alexander (R-TN), who voted to confirm Sotomayor but opposed Kagan.

All three of these Republicans were re-elected in 2014 and do not have to fear challenges from the right in primaries until 2020. Collins is said to be considering a run for governor of Maine in 2018. Maine has been a blue state in presidential elections since 1988 and Collins has a reputation for being a moderate. In 2014 she was re-elected with 68% of the vote. It is reasonably likely that Obama could potentially get the support of these three. If so, that would bring his vote total up to 49. He would need one more Republican…

But if the Republicans are willing to violate hundreds of years of precedent and obstruct a nominee with a filibuster, or if Senate Republicans are much less willing to cooperate with the President than they were in 2010, things could remain unresolved for some time. That said, it would be a risky move for Senate Republicans, because a protracted fight could be used by the Democratic nominee in the 2016 presidential race to highlight Republican obstructionism. In the meantime, any Supreme Court decisions that are 4-4 result in no ruling being issued – the lower court’s rulings are instead upheld…

Fox News suggested earlier today that there may be a small window of opportunity, however, during which Obama could make a recess appointment. [As I understand it, the justice would then need to be voted on at a later date.] Still, though, it might be the only option left available to him, seeing as how the Senate Republicans have already come out and said that they have no intention of giving his nominee, whomever it might be, a hearing. Here with more on the possibility of handling this by way of a recess appointment, is a clip from Fox News.

…Senate Majority Leader Mitch McConnell, R-Ky., has indicated that he thinks that the nomination of a new justice should wait until the election of the next president.

But if the White House does take that to heart — and knows there would be an unprecedented attempt of filibuster a Supreme Court nominee until next year — Obama has a rare opportunity to make a Recess appointment in the coming days.

This window is open next week and this week only.

In short: Both bodies of Congress are operating in the perfect parliamentary status in which a recess appointment would be applicable. The last such appointment to the high court came by President Eisenhower in 1956 when he appointed William Brennan.

Article II, Section 2 of the Constitution states that “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.”

This could be the window of time in which Obama has his chance to maneuver a recess appointment to the high court.

Article I, Section 5 of the Constitution states “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.”

That means that so long as both the House and Senate haven’t jointly agreed to “adjourn” for a stretch longer than three days, then there appears to be no way the president could make a recess appointment.

But the House and Senate are not operating under those circumstances right now. Both bodies of have adjourned until later this month for the President’s Day recess…

So, if the Republicans don’t allow President Obama to fulfill his duties as outlined in the Constitution, and name a justice… if they stall for 11 months, as they’ve said that they intend to… so that the next Republican appointee can determine the course of our nation… will that be enough to get the American people off their asses and into the streets? I don’t know. Maybe the concept of the Supreme Court is too abstract for some people. Maybe they don’t think about things like their ability to have an abortion, should they need one, or work in a safe workplace, as something that’s dictated by the Supreme Court. And maybe they don’t know just how incredibly significant this fight is. This is enormously important, though. We have a party that has essentially declared their intention to commit treason. If this doesn’t motivate people to get out and fight, I don’t know what will.

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  1. Posted February 15, 2016 at 12:00 am | Permalink


    I didn’t use it in the post, but I found this quote of Scalia’s from 2010 interesting.

    After saying, “I am not happy about the intrusion of politics into the judicial appointment process,” he went on to say that, considering the Supreme Court’s propensity for “deciding the nation’s morals,” Americans better get used to it. “As long as [the Constitution] is subject to revision,” he said, “you should get used to controversial and absurd political theater when a person is nominated.”

  2. Posted February 15, 2016 at 1:07 am | Permalink

    According to ABC News, the White House says they won’t be pursuing a recess appointment:

    As speculation swirls over whom President Obama could nominate to succeed Justice Antonin Scalia on the Supreme Court, the White House is ruling out the possibility of an appointment while the Senate is out of town.

    “Given that the Senate is currently in recess, we don’t expect the President to rush this through this week, but instead will do so in due time once the Senate returns from their recess,” White House Principal Deputy Press Secretary Eric Schultz told ABC News. “At that point, we expect the Senate to consider that nominee, consistent with their responsibilities laid out in the United States Constitution”…

  3. anonymous
    Posted February 15, 2016 at 1:13 am | Permalink

    There’s a “Nominate Anita Hill” campaign that I’m finding fascinating.

  4. anonymous
    Posted February 15, 2016 at 1:18 am | Permalink

    Also, Alex Jones is calling for civil war. He’s also telling anyone who will listen that Scalia was assassinated.

    This is from Right Wing Watch:

    “You just get used to this, ‘Scalia found, it’s natural, nothing going on here, he just died naturally,’” Jones said. “And you’re like, ‘Whoa. Red flag.’ Then you realize, Obama is one vote away from being able to ban guns, open the borders and actually have the court engage in its agenda and now Scalia dies. I mean, this is hard core.”

    “I wonder if Clarence Thomas will die of a heart attack next week,” he continued, adding: “If this is an assassination, it signifies that they’re dropping the hammer, that’s the canary in the coal mine.”

    He once again posited that his fan Donald Trump may be next: “Are they going to kill Clarence Thomas? Maybe they’ll kill Ron Paul. Maybe they’ll kill Donald Trump next. They all had heart attacks. How many more of these are we going to sit here and put up with? Or maybe their airplane blows up.”

    “My gut tells me they killed him and all the intellectual evidence lays it out,” he said, insisting that his gut feeling “is already right.”

    Jones then said a civil war is coming if the Senate confirms Obama’s choice to replace Scalia. “The Republicans better block this nomination,” he said, “because if they get one more Supreme Court person in there, they’re going to trump every piece of Bill of Rights and Constitution and they’re going to get that physical civil war they want.”

  5. Robert Reich by proxy
    Posted February 15, 2016 at 1:30 am | Permalink

    My mole in the White House tells me Obama will nominate 46-year-old Judge Sri Srinivasan, an Indian-American jurist who Obama nominated in 2013 to the U.S. Court of Appeals for the D.C. Circuit — and the Senate confirmed unanimously. Having confirmed him unanimously just three years ago, it would be difficult (but hardly impossible) for Republicans to oppose him now. (Twelve former Solicitors General, including Republican notables as Paul Clement and Kenneth Starr had endorsed his confirmation. Moreover, the D.C. Circuit has long been a Supreme Court farm team – Scalia himself, along with John Roberts, Clarence Thomas, and Ruth Bader Ginsburg were judges there before ascending to the Supreme Court.)

    But is Srinivasan progressive? He had been Obama’s principal Deputy Solicitor General before the nomination, arguing Supreme Court cases in support of affirmative action and against Indiana’s restrictive voter ID law, for example. But this record doesn’t prove much. (Having once worked as an assistant Solicitor General, I know the inhabitants of that office will argue whatever halfway respectable arguments the Justice Department and, indirectly, the President, wants made.)

    Before the Obama administration, Srinivasan worked for five years in George W. Bush’s Justice Department. Prior to that, as an attorney in the private firm of O’Melveny & Myers, he defended Exxon Mobil in a lawsuit brought by Indonesians who accused the company’s security forces of torture, murder, and other violations against their people; successfully represented a newspaper that fired its employees for unionizing; and defended Enron’s former CEO, Jeffrey Skilling, later convicted for financial fraud. But in these instances, too, it could be argued he was just representing clients. Another clue: After graduating Stanford Law School in 1995, Srinivasan clerked for two Republican-appointed jurists – Judge J. Harvie Wilkinson III, and Supreme Court Justice Sandra Day O’Connor – both of whom were considered moderate.

    Since he became a judge on the D.C. Circuit, he hasn’t tipped his hand. But I discovered one morsel of information that might interest you: In 2000, he worked on Al Gore’s legal team in the infamous Supreme Court case of “Bush v. Gore.”

    My suspicion is Obama couldn’t do better than Srinivasan. No other nominee with get a majority of Senate votes.

  6. Elizabeth Warren by proxy
    Posted February 15, 2016 at 1:32 am | Permalink

    The sudden death of Justice Scalia creates an immediate vacancy on the most important court in the United States.

    Senator McConnell is right that the American people should have a voice in the selection of the next Supreme Court justice. In fact, they did — when President Obama won the 2012 election by five million votes.

    Article II Section 2 of the Constitution says the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate. I can’t find a clause that says “…except when there’s a year left in the term of a Democratic President.”

    Senate Republicans took an oath just like Senate Democrats did. Abandoning the duties they swore to uphold would threaten both the Constitution and our democracy itself. It would also prove that all the Republican talk about loving the Constitution is just that — empty talk.

  7. EOS
    Posted February 15, 2016 at 7:58 am | Permalink

    Obama can nominate whomever he wants. Doubt he’ll get 60 votes for any nominee. If the Senate takes a recess of more than 10 days, the Republican Party is history. Game over – there will be no war. The next President will fill the vacancy.

  8. Demetrius
    Posted February 15, 2016 at 8:06 am | Permalink

    I keep saying we’re headed into a new Civil War, and people scoff because there aren’t armies lining up in blue & grey uniforms, etc.,

    Still, I think there is no question our society is headed into a “cold” civil war … where the normal rules regarding political compromise, and the orderly trading of power back and forth among groups in our society is breaking down. From the standoff in Oregon, to open-carry groups marching around threatening their fellow citizens, to the Donald Trump phenonomena, to majorities in Congress flat-out refusing to act on any SC nominee who doesn’t meet their purity test, etc., we are clearly headed into new territory.

    There are groups in this country that believe their cause is so righteous (because of the bible, guns, abortion, “traditional” values, capitalism, etc.) that bending or breaking these rules is acceptable because their cause(s) is more important than democracy, the Constitution, etc.

    The new civil war is going to be messier and much more complicated than last time … since rather than north vs. south, it will be community vs. community, urban vs. rural, the educated vs. those who “believe,” etc. – fought house-by-house, neighborhood-by-neighborhood, on the Internet, etc.

  9. Demetrius
    Posted February 15, 2016 at 9:01 am | Permalink

  10. Jean Henry
    Posted February 15, 2016 at 9:13 am | Permalink

    People on either end of the political spectrum tend to inflate their influence over the beliefs of the rest of America. The truth is well documented: the hyperbolic 10% on either side tend to put the other 80% off of engagement in political causes. For a civil war to take place, either side would need to gain a larger share of public support. In the end, I believe this presidential election will show that America is largely moderate progressive (a position Bernie doesn’t believe exists) and moderate conservative (a position Cruz doesn’t believe exists)– not neo-liberal, not revolutionary, nor christian conservative. That is assuming the hyperbolic BS good/evil paradigm that is our contemporary political culture doesn’t put the majority off voting entirely. America wants change, just not radical ill-defined change. Either end of the spectrum dominates public discourse, because they are the only one’s left talking. They shut out any nuance in conversation, yelling talking points and covering their ears at the first note of informed questioning. Radical progressives and conservatives may even dominate the election if the vast majority of Americans stay home. But there will be no civil war– nothing close to it– except maybe MTV style staged “battles’ between pundits and our elected representatives. It’s all show, no substance. The more either end gets invested in their cause, the dumber they become in their discourse. Revolution is usually a disappointment.

  11. Me
    Posted February 15, 2016 at 9:25 am | Permalink

    I can’t speak to whether or not this could be the straw that breaks the camel’s back. All I can say is that, if Obama doesn’t get a nominee through, I will likely become radicalized. I sat on my hands when Bush was put into the White House by the Supreme Court, and when we were lied to about weapons of mass destruction. Everyone has their breaking point. And I can see mine fast approaching on the horizon.

  12. Jean Henry
    Posted February 15, 2016 at 9:41 am | Permalink

    For every you that is radicalized, there are 8 people pushed towards moderation. Revolution requires impetus and desperation adequate to overcome the risks. I can only imagine what White liberal radicalism looks like these days. Lots of cheering and placards. Concerts for change. Self congratulatory back slaps. Marching and parties, like 90% of the 60’s radical movement as perpetrated by privileged white people. Oh, we’re seeing that already. It’s a far cry from civil rights era protests. The revolution happens when the truly oppressed stand their ground. Everyone else should step back until that happens. If Sanders pulls a majority of Black, Latino and poor female voters, then maybe you’re getting somewhere. Waiting to see…

  13. Demetrius
    Posted February 15, 2016 at 10:32 am | Permalink

    @ Jean

    I agree with you that most people are moderate, reasonable, willing to compromise, etc. The problem is – the people we are dealing with are not.

    As pointed out above, they are willing to tell bald-faced lies to drag America into an illegal war; and willing to twist the law (via the Supreme Court) to install a losing candidate as president. They are bullies who rely on people’s moderation, manners, and fear of “rocking the boat” to get their way. If they continue … say, by refusing to appoint a SC nominee until after the next election,” I think a lot more people than “Me” are going to become radicalized.

  14. Andy LaBarre
    Posted February 15, 2016 at 10:34 am | Permalink

    To be honest, I doubt folks would ever take to the streets over the appointment of a SCOTUS justice. I think they’d only do so with a ruling. The prevalence of Judge Judy watchers is too high:

    “10% of participants thought that Judith Sheindlin — “Judge Judy” — is on the Supreme Court.”

  15. Mr. X
    Posted February 15, 2016 at 10:53 am | Permalink

    While I’d rather see him be ambitious and name someone great, he’ll go with Srinivasan, and he’ll get his 50 votes, and he’ll make the Republicans filibuster, which will show them to be obstructionists. Obama doesn’t want war. He wants what’s best for the country.

  16. Demetrius
    Posted February 15, 2016 at 10:55 am | Permalink

    Re: “Everyone else should stand back until that happens.”

    Isn’t that what most people have been doing for the past 30-40 years? Has it worked so far?

    I disagree with the idea that when it comes to social change, there are “legitimate” or “illegitimate” groups. The civil rights movement of the 60’s was primarily on the backs of (and a risk for) African Americans – but it would not have been as successful if white liberals, and “privileged whites” (for instance, on college campuses) hadn’t supported it, and helped to demand attention and stoke national conversation.

    I think everybody who is tired of the rich and powerful running roughshod over our democracy needs to figure out we all have more in common that not, and begin to work together. That includes including poor, working-class, and “privileged” whites.

  17. Jcp2
    Posted February 15, 2016 at 11:04 am | Permalink

    So it’s great if Scalia leaves office, except when he actually does. Got it. 90% of desiring something is in the wanting, not the having. This is starting to sound like the dog that actually catches the mail truck.

  18. EOS
    Posted February 15, 2016 at 11:12 am | Permalink

    Of those currently on SCOTUS, the moderate, reasonable, and those willing to compromise (the swing votes) have all been appointed by Republicans. It’s the Democrats who have appointed only extreme ideologists. It’s not going to happen this time with a Republican majority in the Senate.

  19. Jean Henry
    Posted February 15, 2016 at 11:18 am | Permalink

    The Scalia thing is great for the Dems in terms of the election, not fodder for revolution though. They win either way. If he appoints a judge, and the GOP filibuster or if the nominee is left to after the election, more Dems will be motivated with this immediate concern to go to the polls. Low voter turn out is a Dem problem not a GOP base issue. Anything that turns out voters is good for the Dems. If Obama nominates a judge (will have to be moderate) and the judge is appointed, the whole country wins. That’s probably the best case scenario for the GOP, but they are likely too divided to take advantage. Of course resolving this thing electorially kind of takes the wind out of your revolution doesn’t it?

  20. EOS
    Posted February 15, 2016 at 11:26 am | Permalink

    In terms of the election, this will allow Cruz to overtake Trump. Watch and see.

  21. Demetrius
    Posted February 15, 2016 at 11:30 am | Permalink

    @ Jean

    This goes way beyond the old “zero sum game” of what’s good for the Dems is bad for the Reps, and vice versa.

    The two-party “system” (that has been the dominant paradigm since after the last Civil War) is dying. What I’m talking about is what’s going to replace it.

  22. Lynne
    Posted February 15, 2016 at 11:39 am | Permalink

    I don’t see a revolution but it would be nice if this motivated liberal people into the voting booth.

  23. Anonymous
    Posted February 15, 2016 at 12:47 pm | Permalink

    The winner in all of this is Cruz. People might like Trump, but no one trusts him to appoint a Supreme Court justice. The conservatives want Cruz to make that call, and they’re willing to pay whatever it takes.

  24. Jean Henry
    Posted February 15, 2016 at 12:50 pm | Permalink

    Dylan– The idea of privileged white people engaged in direct action revolution is somewhat amusing to me. I come from a long line of activists on one side of my family (the other– not nuts– side was apolitical). They funded and organized a lot of progressive action– feminist and labor issues. They didn’t march. They knew better. One of them, my grandfather’s brother, a union organizer, was killed suspiciously in the 1930’s. But even he didn’t march or strike– because he wasn’t a worker, he was an organizer. I understand the role of the wealthy in social movements. They did not throw bricks however. And even those movements were mostly poor and working class and the very rich. The professional classes did not engage much. The professional class vote; they don’t rebel– except maybe some political theater in college.
    This thread is silly to me.

  25. Jean Henry
    Posted February 15, 2016 at 12:52 pm | Permalink

    Demetrius–not Dylan. Mixed threads in my muddled head. Apologies.

  26. Anonymous
    Posted February 15, 2016 at 1:02 pm | Permalink

    Why is it silly, Jean, to wonder if this might be the thing that motivates people to make a stand?

  27. Meta
    Posted February 15, 2016 at 1:04 pm | Permalink

    From MSNBC.

    Imagine the dynamic that could have existed, but didn’t. Imagine if, upon learning about Supreme Court Justice Antonin Scalia’s passing, Senate Republicans focused exclusively on the jurist’s family and legacy. “Today isn’t a day for political posturing,” they could have said. “This is a day to celebrate the life and times of an iconic jurist.”

    In the weeks that followed, in this hypothetical, GOP senators would be pressed to comment on their partisan plans, especially as President Obama moved forward with the process of filing the high court vacancy, but they’d demur. “We intend to do take our duties seriously,” they could have said. “Republicans will act in good faith, and in a careful and deliberate way.”

    When Obama’s nominee reached the Senate for consideration, the Republican majority could at least maintain the pretense that they were working through a constitutional process in a mature way, honoring the legitimacy of the American political system.

    At a certain point, however, in this imaginary situation, the GOP majority would announce that the president’s choice simply wasn’t acceptable. “We tried to work with the White House,” Republicans would say, “but Obama decided to play politics by nominating a liberal judicial activist. We’re disappointed the president wasn’t more responsible.”

    All of this, of course, would take quite a bit of time, running out the clock on the final year of the Obama presidency. It would have been a classic example of corrosive Republican obstructionism, but GOP senators could have given the appearance of seriousness.

    This imaginary dynamic, we now know, does not exist. On the contrary, Republicans, in their knee-jerk zeal, immediately ran in the opposite direction…

    Read more:

  28. Demetrius
    Posted February 15, 2016 at 1:45 pm | Permalink

    SCOTUS appointments are important not just because of symbolism or politics, but because they can have enormous influence over a wide range of issues that matter (in everyday life) to millions people – individual rights, civil rights, women’s rights, labor rights, the environment, health, privacy, etc.

    Although it is far from perfect, there is a long-established process for filling vacancies, and now some politicians are saying they will no longer stand by that process. There is some speculation about whether this represents a further breakdown of democracy, and if so, whether that will cause more people to become upset and/or question the validity of the system.

    It is hard for me to understand why this discussion/thread is “silly.”

  29. Jean Henry
    Posted February 15, 2016 at 2:17 pm | Permalink

    I think the idea of revolution in the streets is silly. I spent years working on enacting change within a liberal organization with a reputation for being good at it. And it was almost impossible. People like the idea of change, but the second it comes close to impacting their day-to-day lives they resist hard. Even very basic changes.

    I think this thread is silly, but SCOTUS is incredibly important. Demetrius, when you say this: “there is a long-established process for filling vacancies, and now some politicians are saying they will no longer stand by that process. There is some speculation about whether this represents a further breakdown of democracy, and if so, whether that will cause more people to become upset and/or question the validity of the system.” can I assume you also oppose Bernie’s proposal to litmus test SCOTUS nominees on Citizen’s United? And Hillary’s light version of the same promise? Or does your concern for the integrity of the process to select an impartial judiciary only extend to the GOP? Please don’t stand on principle if you won’t extend it across the board.

  30. Demetrius
    Posted February 15, 2016 at 2:47 pm | Permalink

    If “President Sanders” proposed a SCOTUS nominee (who passed his litmus test of being against Citizens United), and the Senate failed to confirm that person, that would be their right. I might disagree with the outcome, but at least it would be following the Constitution.

    What some Republicans are saying is that they will refuse to even consider a nominee – let alone allow a vote – until after a Presidential election in which they *might* get a president who would nominate someone more to their liking. Basically, they are saying they want to delay the process until they they are likely to have a more favorable outcome. Not only is this a totally different idea, it is blatantly unconstitutional.

  31. Henry Edward Hardy
    Posted February 15, 2016 at 4:13 pm | Permalink

    To go out in the streets, first people would have to turn off their televisions.

  32. EOS
    Posted February 15, 2016 at 5:23 pm | Permalink

    Anyone remember Bork? All your high flautin talk of Democrats is bullshit.

  33. Jean Henry
    Posted February 15, 2016 at 5:40 pm | Permalink

    EOS is right.
    Thank goodness no more was said, or I would no doubt have been unable to grant that.

  34. Jean Henry
    Posted February 15, 2016 at 5:51 pm | Permalink

  35. Demetrius
    Posted February 15, 2016 at 6:22 pm | Permalink

    @ EOS and Jean

    Nice try.

    The most important line in the whole story: “In the end, Bork was defeated by a vote of 58 to 42, the largest margin in history.”

    Long story short: The president nominated someone and (amid personal and professional attacks) that nominee was voted down. The Senate didn’t refuse to consider (or vote on) his nomination, as Republican leaders are now threatening to do to ANY candidate President Obama puts forth.

    Some people are still smarting from Judge Bork’s failure to ascend to the high court, but this is not the same thing … by any stretch of the imagination.

    If Republican leaders dig in and refuse to consider any nominee President Obama proposes, it will not be an exaggeration to say they will have provoked a true Constitutional crisis.

  36. Matt Roush
    Posted February 15, 2016 at 6:40 pm | Permalink

    The only thing that will ever put Americans in the streets is a depression. If millions are threatened with abject poverty, homelessness, hunger, the TV and computer being repossessed, etc. Then they’d riot. Otherwise, ssshhh. The Kardashians are on.

  37. Jean Henry
    Posted February 15, 2016 at 6:43 pm | Permalink

    The standard formulas meant to describe the conditions necessary for change usually include 3 elements: dissatisfaction with the current state of affairs + compelling vision of the future + first steps, which together must overcome resistance to change. Often stated as D x V x FS > R. I know formulas are often BS. On the other hand, they are often developed to explain common circumstances that appear counterintuitive. At any rate, I think dissatisfaction is high enough to encourage change. Just not high enough for revolution in most people. I’m not even sure it’s high enough at all for Bernie’s revolution, especially since he is lacking viable first steps.

  38. EOS
    Posted February 15, 2016 at 7:05 pm | Permalink

    I think we should reduce the size of the court to 7. Let Ginsberg resign and call it even.

  39. Demetrius
    Posted February 15, 2016 at 7:09 pm | Permalink

    If by “revolution” you mean bloody turmoil resulting in guillotines, heads-on-pikes, general chaos, and a reign of terror … I agree it will be difficult to get people off their couches, and out from in front of their TVs. I also don’t think I’d be interested in being a part of that.

    If, on the other hand, by “revolution,” you mean a fundamental re-ordering of our economic and political structures in favor of poor, working, and middle-class people instead of the wealthy and major corporations, I think that could still totally happen … but I think that window is shrinking day-by-day.

  40. Eel
    Posted February 15, 2016 at 7:24 pm | Permalink

    Why not reduce it to one? Think of the money we’d save!

  41. Peter Larson
    Posted February 15, 2016 at 11:56 pm | Permalink

    We should all just die.

  42. manfromwithout
    Posted February 16, 2016 at 1:13 am | Permalink

    Gavrilo Princip, Nedeljko Čabrinović, Trifko Grabež and The Black Hand are offended by your historic revisionism.

  43. Peter Larson
    Posted February 16, 2016 at 2:40 am | Permalink

    I don’t know why you people care about this stuff. One day, you’ll all be dead anyway.

    One day, everything will be dead. It doesn’t matter who is on the Supreme Court or who is the President. Things will be just as bad either way.

    All the fighting and worrying in pointless. Even people in totalitarian countries can be happy and there’s no evidence that “free” countries are any happier than others, except Denmark, where no one has to pay for anything, because Bernie Sanders.

  44. Peter Larson
    Posted February 16, 2016 at 2:46 am | Permalink

    Revolutions haven’t worked out all that well in the 20th and 21st centuries. It often ends up just becoming a power grab for a few people, and leftists get hoodwinked.

    But it doesn’t matter anyway. Everyone will burn, even those who eat Jesus.

  45. Meta
    Posted February 16, 2016 at 11:45 am | Permalink

    The New York Times has a good new infographic showing just how long it has historically taken for nominees to have their confirmation hearings.

    Since 1900, the Senate has voted on eight Supreme Court nominees during an election year. Six were confirmed. But several of those were for seats that had become vacant in the previous year.

    The Senate has never taken more than 125 days to vote on a successor from the time of nomination; on average, a nominee has been confirmed, rejected or withdrawn within 25 days. When Justice Antonin Scalia died, 342 days remained in President Obama’s term.

    See the infographic:

  46. EOS
    Posted February 16, 2016 at 8:24 pm | Permalink

    When Obama was in the Senate, he tried to filibuster Alito’s appointment. He thought it was a good tactic then, just couldn’t pull it off.

  47. Meta
    Posted February 17, 2016 at 12:41 pm | Permalink

    “Scalia’s Hunting Trip Was a Gift From a ‘Friend’ Who Had Business Before the Supreme Court Last Year”

    Justice Antonin Scalia was taking a free vacation at the exclusive Cibolo Creek Ranch in western Texas when he was found dead inside a guest room Saturday. The trip, the Washington Post reports, was a gift from the ranch’s owner, who just last year obtained a favorable result from the Supreme Court.

    The 30,000-acre hunting ranch, located around 30 miles from the Mexican border in the West Texas town of Shafter, is also the home of owner John B. Poindexter, who owns the Houston-based manufacturing firm J.B. Poindexter & Co.

    The two men already had a tenuous connection outside of the ranch. Last year, an age discrimination suit filed against the Mic Group, a subsidiary of J.B. Poindexter & Co., reached the Supreme Court, which declined to hear the case.

    In an email to the Post, Poindexter said Scalia, who was invited to the ranch as a personal guest, was not charged for his stay. A person “familiar with the ranch’s operations” tells the paper Poindexter typically hosts these free events two to three times a year.

    Read more:

  48. Rat
    Posted February 17, 2016 at 11:24 pm | Permalink

    Ted Cruz is now saying that it would be a “presidential abuse of power” for Obama to nominate a Supreme Court justice. Has he read the Constitution?

  49. Kim
    Posted February 23, 2016 at 1:27 pm | Permalink

    In case you missed it.

    “Breaking: In Closed Door Meeting, Senate GOP Decides No Hearing For Obama SCOTUS Nominee”

  50. Demetrius
    Posted February 24, 2016 at 5:47 am | Permalink

    Breaking: We are sliding into a full-scale Constitutional crisis.

    If Senate leaders don’t like a Presidential nominee, there are plenty of legal ways for them to try to stop it: Fail to pass the nominee out of committee, filibuster, or simply vote them down (as was the case with Bork).

    But for them to refuse to even consider a nominee gives them a “veto” without having to actually vote, or go on record about – or even defend – their opinion. This is clearly illegal (unconstitutional).

    Also –think of the precedent. If a Republican president is elected this fall, can 51/52/53 Democratic Senators decide to block confirmation simply by refusing to support any candidate until they (potentially) get a president more to their liking in 2020?

  51. Meta
    Posted February 24, 2016 at 12:17 pm | Permalink

    Obama has posted his thoughts on naming a successor to the SCOTUS Blog.

    A Responsibility I Take Seriously

    The Constitution vests in the President the power to appoint judges to the Supreme Court. It’s a duty that I take seriously, and one that I will fulfill in the weeks ahead.

    It’s also one of the most important decisions that a President will make. Rulings handed down by the Supreme Court directly affect our economy, our security, our rights, and our daily lives.

    Needless to say, this isn’t something I take lightly. It’s a decision to which I devote considerable time, deep reflection, careful deliberation, and serious consultation with legal experts, members of both political parties, and people across the political spectrum. And with thanks to SCOTUSblog for allowing me to guest post today, I thought I’d share some spoiler-free insights into what I think about before appointing the person who will be our next Supreme Court Justice.

    First and foremost, the person I appoint will be eminently qualified. He or she will have an independent mind, rigorous intellect, impeccable credentials, and a record of excellence and integrity. I’m looking for a mastery of the law, with an ability to hone in on the key issues before the Court, and provide clear answers to complex legal questions.

    Second, the person I appoint will be someone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law. I seek judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand.

    But I’m also mindful that there will be cases that reach the Supreme Court in which the law is not clear. There will be cases in which a judge’s analysis necessarily will be shaped by his or her own perspective, ethics, and judgment. That’s why the third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times. That, I believe, is an essential element for arriving at just decisions and fair outcomes.

    A sterling record. A deep respect for the judiciary’s role. An understanding of the way the world really works. That’s what I’m considering as I fulfill my constitutional duty to appoint a judge to our highest court. And as Senators prepare to fulfill their constitutional responsibility to consider the person I appoint, I hope they’ll move quickly to debate and then confirm this nominee so that the Court can continue to serve the American people at full strength.

    Read more:

  52. EOS
    Posted February 25, 2016 at 6:48 am | Permalink

    More likely, he’ll nominate political ideologues with characteristics similar to his previous two nominees, who both have no difficulty legislating from the bench. His track record does not remotely resemble his current rhetoric.

  53. Demetrius
    Posted February 25, 2016 at 8:00 am | Permalink

    As I mentioned above, if Senators do no agree with a Presidential nominee, there are plenty of (legal) ways to stop him/her.

    I don’t recall seeing anything in the Constitution or historical precedent that allows Senators to simply put their fingers in their ears, and yell “la la la la.”

    There have always been friction, grandstanding, and maneuvering between the White House and both houses of Congress, but I never before recall such vitriol and dysfunction – which some might say is becoming a crisis. The U.S. has hundreds of pressing issues that need and deserve legislators time and attention, but in this atmosphere, it is hard to believe anything of substance will get done until after the Presidential election – and depending on the outcome, for some time after.

  54. EOS
    Posted February 25, 2016 at 8:35 am | Permalink

    Constitutional crisis? Not in the least. The Senate Judiciary Committee will meet and decide whether the nominee should go forward. That’s the rule of law. It is supposed to ensure that judges will be impartial. Checks and balances work for the good. If Obama wants to nominate the next Supreme Court Justice, all he has to do is nominate a person who will interpret the Constitution as written or require an amendment if change is desired.

  55. Demetrius
    Posted February 25, 2016 at 10:01 am | Permalink

    ” If Obama wants to nominate the next Supreme Court Justice, all he has to do is nominate a person who will interpret the Constitution as written or require an amendment if change is desired.”

    In other words …

    If Obama wants to nominate the next Supreme Court Justice, all he has to do is nominate person who will adhere to a right-wing, fringe, orthodoxy that in no way represents the viewpoints of the vast majority of Americans, contemporary society, or technological advances, etc.

    Got it.

  56. stupid hick
    Posted February 25, 2016 at 11:14 am | Permalink

    EOS: “The Senate Judiciary Committee will meet and decide whether the nominee should go forward. That’s the rule of law.”

    Exactly, that’s the rule of law. It’s what the Constitution says is the Senate’s responsibility to do. That’s why it’s outrageous that Senate majority leader Mitch McConnell is posturing that there would be no confirmation hearings, no vote, not even a courtesy meeting.

    I hope it’s just bluster and posturing. The Republicans have gone so far off the rail I really don’t see what they can do to right their sinking ship before November. EOS, have you not noticed that ALL of their presidential candidates are unelectable extremists? Unless something changes drastically, and I don’t see how it will, I will NOT be donating to Republican candidates and NOT be voting Republican.

  57. EOS
    Posted February 25, 2016 at 12:40 pm | Permalink

    Stupid Hick,

    So you think that the committee must forward every candidate? I don’t think so. Confirmation hearings are only for those that the committee approves.

    The problem historically is that Republican presidents nominate people who they think can get the approval of the Democrats, and the majority of recent nominees of the Republicans have turned out to be consistent liberals. Democrats also nominate liberal leaning judges and the Republicans vote to approve. Republicans are merely going to adopt the same standards that the Democrats have used for the past 40 years.

    Have you not noticed that ALL of the Democratic presidential candidates are unelectable extremists as well? How do you choose between an avowed socialist and a congenital liar? I’m not voting for any of them.

    I’ve never been a Republican – I’m a conservative. Huge difference.

  58. Peter Larson
    Posted February 25, 2016 at 9:28 pm | Permalink

    Obama should nominate a gay Muslim liberal atheist judge.

  59. Demetrius
    Posted April 6, 2017 at 4:11 pm | Permalink

    Yes, apparently.

  60. Demetrius
    Posted June 27, 2018 at 1:34 pm | Permalink

    Justice Anthony Kennedy – who in recent years often cast the key “swing” vote in many major 5-4 decisions –has announced that he is retiring.

    President Trump has already announced that he plans to nominate a successor, and hopes to have him/her confirmed before the mid-term elections.

    My friends, we are now well and truly fucked.

  61. Iron Lung
    Posted June 27, 2018 at 1:35 pm | Permalink

    “Clinton and Trump are the same”

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