Sunday, February 14, 2016

Between a Rock and a Hard Place

I've never been one to hold back and mince words. I'm not going to wax poetically or pine over the death of Justice Antonin Scalia. Legal scholars will trip over themselves heaping praise on him, and they'll be quick to point out how brilliant a jurist he was. So what? He was a Supreme Court justice. One would think he was smart enough to sit on the bench. After all, he was no Harriet Myers.

It wasn't his intelligence that was the issue, but his reading of the Constitution, which was inventive to say the least. He's responsible for the term conservative activism, which as it turns out isn't an oxymoron. I've always said that the difference between a judicial activist and a strict constructionist depends on who's wearing the robe. For Scalia, the matter was moot. When it suited him he could be either one. For instance, it was his majority opinion in Heller that forever changed the interpretation of the Second Amendment. You don't get much more activist than that.

Scalia was a lightning rod for a Supreme Court that was among the most politically divisive in the history of the country. From Bush v. Gore to Citizens United, Scalia was the straw that stirred the drink. When his critics would call him out on the Court's contradictory decisions, as happened often, especially with respect to the Bush decision, he would simply tell them to "get over it." When he wasn't putting his critics in their place, he would go after the liberal justices on the Court. His comment that some black students belong at "slower-track" universities remains one of the most ignorant and repugnant things ever uttered by a judge.

And now he's gone. There are eight justices remaining on the Court, only two of which are far right. That means that John Roberts and Anthony Kennedy are no longer the swing votes; they're the last chance that conservatives have for a tie and, based on recent decisions, that doesn't bode well for them. Scalia's death is a major blow to whatever hope they had of rolling back most of the jurisprudence of the last fifty years.

So what happens next? Well, for starters it means Barack Obama gets one more crack at appointing a Supreme Court justice before his term expires next year. Talk about stepping into it. Yes, I know he's got a snowball's chance in hell of getting his nominee through; that's not important. The point is that in an election year, fate has intervened and given progressives yet another reason to show up at the polls this November. Whoever wins the presidency will get to fill Scalia's spot, along with at least one or two more. The stakes couldn't be higher.

And the GOP? They're stuck between a rock and a hard place. On the one hand, they can't afford to let Obama appoint another justice to the Court, especially Scalia's successor; on the other, they can't take the chance that either Donald Trump, Ted Cruz or Marco Rubio will win the election. If they role the dice and lose, they're screwed. Hillary or Bernie will get their pick on the Court. Mitch McConnell can huff and puff all he wants, it's his funeral if he guesses wrong. Oh, and regarding the argument that presidents don't get to choose Supreme Court nominees in their last year in office, tell that to Ronald Reagan and Woodrow Wilson, both of whom had their nominees confirmed in the last year of their administrations. Knock it off.

If I'm Obama, I say damn the torpedoes and go for full speed ahead. Screw going middle of the road. Hell, I'd even call up Hillary and Bernie and invite them over for brunch. Let them have some input into his choice. Then throw it into McConnell's lap. If he stonewalls, the Dems will have the issue of a lifetime to run on. It's a win/win for him and the Party.

What Obama should not do is capitulate to his "better angels" like he has done so many times during his tenure in office. Being the reasonable man in the room didn't serve him very well over the first six years of his administration and it resulted in an epic 2014 midterm election loss. This would be a good time to make amends with the progressives in the party who have been disappointed with him. It's also a good way to hedge his bets in the event that Bernie Sanders ends up winning the nomination.

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