© Josh Sager – February 2016
On Saturday, February 13, 2016, Supreme Court Justice Antonin Scalia died of a heart attack while visiting a popular ranch retreat in Texas. His death creates a tectonic shift in the composition of the most powerful court in the land, rebalancing it from 5-4 conservative leaning to evenly split between conservative and liberal voting blocks. This shift puts the court up for grabs for the first time in decades and dramatically raises the stakes for the 2016 election season.
Over the next several months, there is going to be a significant nomination fight, where Obama squares off against the GOP leadership in the Senate. In all likelihood, it will be politically impossible for Obama to get anybody past the Senate Republicans’ obstructionism and the winner of the 2016 presidential election will inherit the power to make this appointment. This situation makes it basically impossible for the Republicans to simply cede the presidency to the Democrats while focusing on state and legislative races (a likely choice if Trump or Cruz were the nominee), and will escalate the fights in the primary.
Scalia was one of the most conservative justices to ever serve on the Supreme Court and a vital member of the right wing block in the court. While many will try to claim that he was simply a “strict constructionist,” the sad fact is that he was a right wing hack who played a significant role in several extremely damaging SCOTUS decisions in recent years.
Among other things, Scalia voted to install George Bush as president in 2001, despite the fact that Bush lost the election (Bush v. Gore); to legalize corruption and allow big-money donors to flood the American political system with billions of campaign “contributions” (Citizens United v. FEC and McCutcheon v. FEC); to redefine the 2nd Amendment to make it far harder to regulate guns (D.C. v. Heller); to eviscerate the Voting Rights Act, making it easier for right wing states to disenfranchise millions of minority voters (Shelby County v. Holder); and, most recently, he voted to stay environmental regulations which would prevent thousands of deaths a year.
Scalia was extreme even when compared with the other right wingers on the court. He held positions that even other right wing justices rejected, including that gay sex should be criminally punishable, that protections against racist voter laws represented “racial entitlement,” that there was no legal reason why an execution should be halted based upon the “actual innocence” of the accused (if they manage to prove their innocence after all appeals are exhausted), and that torture wasn’t unconstitutional.
While it is unseemly to attack the dead before they are even buried, Scalia clearly deserves such derision based upon his terrible record. He will be deified by the right wing extreme, but every rational American should breathe a little easier knowing that this reprehensible man is no longer one of the 9 most powerful jurists in our nation.
Scalia’s Death Adrenalizes 2016 Campaign
It will be virtually impossible for president Obama to get any prospective appointee through the Senate confirmation process, thus it is very likely that the next president will be given the ability to determine the balance of the Supreme Court.
If a Republican is elected, he will be able to restore the right wing control over the court and ensure that the SCOTUS remains a pro-corporate, pro-religious, entity for the foreseeable future. Under this scenario, the court will continue eroding the peoples’ power to challenge corporate power (e.g. making it harder to file a class action lawsuit or sustain environmental regulations) and the individual rights of minorities (e.g. voting rights), while expanding big money influence over politics.
Scotus Justices on a left-right political spectrum (NYTimes estimates)
If a Democrat is elected, he/she will appoint a moderate/liberal justice. Hillary would likely appoint a fairly pro-corporate justice who is liberal on a host of social issues while Bernie would likely appoint an anti-corporate and socially liberal justice. Under both scenarios, many right wing precedents would be open to reconsideration, including the maiming of the voting rights act, expansion of abortion restrictions, judicial union busting, and attacks on regulator power. Both Bernie and Hillary have indicated a litmus test for SCOTUS appointees where they must support reversing Citizens United and protecting womens’ rights (although Hillary has, in recent weeks, tried to argue that money in politics does not actually corrupt, which throws doubt on this pledge).
Needless to say, the power to completely shift the balance of power on the highest court for several decades (particularly when we consider the liberal justices who are likely to retire in the coming years) is an EXTREMELY enticing political incentive. In effect, the next president will not only control the Executive branch, but will also be able to ensure that the top of the Judicial branch is likely to support their objectives.
From a purely political perspective, this situation creates a clear hierarchy of goals for advocates of progressive change.
- In an ideal situation, Bernie Sanders wins the primary and appoints an extremely liberal justice who joins Ruth Bader Ginsberg as a strong advocate for progress on the court. His candidate will be strong on money in politics, exceptional on protecting worker rights, and a reliable advocate for personal liberty.
- If Bernie loses the primary to Hillary Clinton, every Bernie supporter must back her, if only to ensure that the court is not lost to the GOP. Hillary will likely appoint a social liberal who is somewhat more friendly to corporate interests than a Bernie appointee—similar to Breyer (who was appointed by Bill Clinton)—but still a reliable vote for sanity. A write in campaign to support Bernie and split the vote would simply be irresponsible given the stakes of this situation and there is no rational argument to justify the risk of giving the court back to the conservatives (if you can think of one, email me or comment on the blog).
- In a nightmare situation, the GOP wins the election and is able to pack the court with extremists. I can’t even imagine what a Donald Trump or Ted Cruz nominee for the Supreme Court would look like (maybe they can dig up and reanimate Joseph McCarthy) and I will do anything in my power to prevent such a situation from manifesting.
Within the party primaries, the death of Scalia has huge ramifications.
The 2016 Democratic primary has been a very heated contest between Hillary—the establishment pick—and Bernie—the populist firebrand. The increased stakes for the Supreme Court only throws gasoline on this fire and could lead to far more popular mobilization. This could break in favor of either candidate and I hesitate to speculate about who will benefit at this early stage.
On one hand, the establishment will be driven into overdrive in favor of Hillary and throw everything they have behind her to win the election (primary and general). Many Democratic voters may default to the “safe” choice of Hillary as the nominee because, while they agree more with Bernie on the issues, they are worried that he is less suited for the general election.
On the other hand, the promise of real change on the Supreme Court could lead to a massive mobilization of young liberals and individuals who want to get money out of politics, both of which are demographics that dramatically favor Bernie. The death of Scalia opens the door to the rapid and systemic change championed by Bernie Sanders (e.g. getting money out of politics) and many idealistic liberals could see this as their only window for real change for decades.
From a tactical perspective, the Sanders and Clinton campaigns may be able use their strong positions relative to the GOP field to force the GOP into a deal before the election. If Bernie floats a strong progressive or anti-corruption nominee (e.g. Larry Lessig) and Hillary floats Obama as their nominee of choice if they win the election, the Senate GOP may be incentivized to deal with Obama before the election. If faced with the nightmare of a Bernie-style liberal or even the dreaded Barack Obama in a lifetime-tenured position of power, they may find their pragmatism and allow a few members of their caucus to vote with the Democrats to approve a late-term Obama nominee. Unfortunately, I think that this is an extremely unlikely possibility and only becomes a real possibility if the GOP thinks that its chances in the 2016 general approach nill.
The 2016 Republican primary has been, to be blunt, an exercise in political mud-wrestling between lunatics, theocrats, fascists, and fools. Trump has absolutely dominated the primary race and a series of not-Trump establishment challengers has largely fallen by the wayside. At this point, the race is largely between Trump, Cruz, and Rubio, with Jeb barely hanging on by the pinkie nails (he is using his mother and the Shrub as campaign proxies—if this isn’t a sign of desperation, I don’t know what is).
The death of Scalia and threat to the conservative majority on the SCOTUS creates a new urgency in the establishment to either find a viable non-Trump candidate or make peace with Trump and align everybody behind him for the general. There is a very real concern that the voters who support Trump will defect or not vote in the general if they perceive that the primary was stolen from their favored candidate. This fear gives Donald Trump significant power, particularly if he has a strong showing in the South Carolina caucus.
Regardless of what the GOP establishment chooses to do, expect a significant winnowing of the field after South Carolina. Either the GOP elite will align behind Trump and signal to the non-Trumps that it is time to fall in line and present a unified front against the Democrats, or they will align behind one of the non-Trumps (almost certainly Marco Rubio) and try to turn this into a 2-candidate primary.
I predict that this primary season will be even more interesting now that the SCOTUS majority is up for grabs. The Democrats will be mobilized with the hope that they can retake the court’s majority while the Republicans will do anything to prevent the Democrats from gaining the means to unravel their judicial victories in recent years.