Monday, February 15, 2016

RIP El Nino

As regular readers know, I've both lauded and mocked, marveled and openly disdained, Antonin Scalia's supreme court opinions/dissents over the years. So it was shocking to hear over the weekend of his passing, and the immediate tectonic effect it had on the 2016 election.

An epic Washington political battle took shape on Sunday after the death of Justice Antonin Scalia as Senate Republicans dug in and said they would refuse to act on any Supreme Court nomination by President Obama. But the White House vowed to select a nominee within weeks.

Multiple Republican senators said they strongly supported the position of Senator Mitch McConnell of Kentucky, the majority leader, that the vacancy should not be filled until after the presidential election, denying Mr. Obama a chance to reconfigure the ideological makeup of the court in the last year of his second term.
Of course, he doesn't need their approval. With the Senate in recess until February 22nd, Obama could simply appoint a new justice, who would serve until the next session of congress, i.e. January 2017, at which time their appointment would have to be taken up or they would be replaced. 

Frankly, if Obama had the guts, I'd love to see this happen. While some people think it foolish, he wouldn't be the first president to do it. Just reading the history of recess appointments to the court, it's fascinating to learn that Eisenhower put William Brennan, Potter Stewart and Earl Warren on the court, all by recess appointment. Brennan's even came in the fall of 1956 while Eisenhower was running for re-election. So this notion that you can't put someone on the court in an election year, or when the president is a lame duck (Anthony Kennedy was nominated and confirmed in Reagan's last year, 1988) is absurd.

Even better, put a "liberal version of Scalia" on there, a real firebrand, bleeding heart, Earl Warren progressive, and say either he/she will step down when a new, more moderate appointee is confirmed, or force their hand at removing this person when January 2017 rolls around. It would be epic.

But Obama would have to move quickly. Under the new recess guidelines sent down by the Court just two years ago in the National Labor Relations Board case, the Senate has to be in recess more than three days, and the Senate can decide not to go into recess for the rest of the year if it chooses (which btw, does not mean they'd have to work the whole year...don't worry, their 133 days a year workload would remain intact). So Obama has about another week to go nuclear, which would be refreshing given all the silly, macho, brain-dead posturing going on in the campaign.

Frankly, having watched both parties, their caucuses, primaries and debates so far, and the way they pounced on Scalia's carcass before it had even cooled to make political points, I have a better constitutional question to ask: how fast can the 22nd amendment be repealed? Any one? Bueller? 

So, Antonin Scalia. His legacy will be written and re-written again, over and over, for decades to come. And while I have to say I agreed with him maybe a quarter of the time, I will definitely give him major props for being a distinguished, lucid and extremely entertaining writer.

He was a snoot, and even befriended David Foster Wallace (one of my favorite authors) at one point in their love of language and the linked Harper's essay. And that love of language is on display in the opinions and dissents he crafted for nearly 30 years on the high court. I may not have agreed with what he was saying, but he was always entertaining to read.

So jiggery-pokery, pure applesauce, argle-bargle, and of course my favorite ironic phrase, "Mere factual innocence is no reason not to carry out a death sentence properly reached." Here's hoping you're having a cigar and glass of wine at the nearest poker table.

RIP Nino.

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