Scalia’s Death and the Next Member of SCOTUS

Supreme Court Justice Antonin Scalia died on Saturday of a heart attack while on a West Texas hunting trip. Now, I would never write a tribute to the man who said torture was Constitutionally okay because it wasn’t punishment per se or black people were maybe better off in lesser schools (which is another way of saying blacks are maybe not genetically as good as white folks on average) and OMG a litany of crap about gay/transgender civil rights. However, even I was disgusted by the way some politicians and pundits acted before Scalia’s body was room temperature.

You see, the election of the next SCOTUS member is important.

If Justice Scalia is replaced with a liberal, that would tilt the Supreme Court to a 5-4 liberal majority (broadly speaking). Everyone in Washington knows this, meaning the stakes are even higher than they would be if a seat on the Court currently filled by a liberal were to open. The Democrats are salivating over this possibility; for Republicans, it’s their greatest nightmare. They will fight President Obama’s nominee tooth and nail, which means the seat could stay open for a long time.

The prominent politicians in the GOP, whom had always had a staunch ally in Scalia, should have at LEAST given him lip service for a day or so before screaming hysterically that they would block anyone President Obama nominated for the SCOTUS. While this is better than the conspiracy theorists claiming the POTUS had Scalia murdered (because a nearly-octogenarian man who smoked is so very unlikely to have died of a heart attack), it still ignores the Constitutional mandate.

constitutional appointment of SCOTUS

Regardless of what the Constitution says, the GOP is standing firm on their threat of obstructionism.

What about the fact Regan made an appoint to SOCTUS that was confirmed in 1988 just a few months prior to the end of Regan’s second term? Well, that doesn’t count because that dude was nominated by Regan in the last months of 1987

The GOP and their supporters have another arrow in their quiver as well. In 1960, the Senate passed a sense of the Senate resolution, introduced by Senator Philip A. Hart (D), which stated that recess appointments should not be made to the Supreme Court ‘except under unusual circumstances and for the purpose of preventing or ending a demonstrable breakdown in the administration of the Court’s business.’ ” So HAH, take that Democrats; you guys blocked the recess appointment of SCOTUS and we are totally playing by your rules!

(It is worth noting that Ronald Kessler lauded Senator Hart in his book Inside Congress “as one of the few truly honorable men who served in the Senate. He pointed out an incident where the Senator refused even a box of chocolates as a gift from a lobbyist.”)

The trouble is, the resolution isn’t 1) the Constitution of the USA and 2) it was done in regards to retirement of a SCOTUS Justice, not the death of one.

At the time, Eisenhower had appointed several Supreme Court Justices, some of whom were last minute recess appointments, including the appointment of liberal Justice William J. Brennan in order to make voters in the NE happy before the 1956 election. The  Senate Democrats at the time were afraid that a conservative justice or two would retire and allow Eisenhower to fill those slots before the 1960 election, which looked to be a nail biter (and it was indeed as close as a whisker) between John F. Kennedy and Richard Nixon. BUT the Senate resolution included the phrase about the”breakdown in administration” just in case of a death where an appointment would NEED to happen.

In fairness, a retirement from a Supreme Court justice at this time could allow the GOP to call dirty pool on the Democrats under the 1960 resolution, but Scalia’s death moots it.

History and context are readily available to even the most casual researcher. Sadly, history and context cannot fit in sound bites so no one bothers.

If you want more history and context, I recommend:




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