RIP, Antonin Scalia, and heaven help us as we deal with the aftermath

Enormous news today. From the San Antonio Express-News :

"Scalia, 79, was a guest at the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa.

"According to a report, Scalia arrived at the ranch on Friday and attended a private party with about 40 people. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body. ...

"U.S. District Judge Fred Biery said he was among those notified about Scalia's death."

Scalia was a legal hero to conservatives, a brilliant legal mind who stuck as surely as any justice to the original intentions of the Framers of the Constitution. Amid a series of appointments by Republican presidents who ended up being disappointments to conservatives, Scalia stood out as one who delivered. He was not only philosophically sound and solid, but his opinions frequently drew attention for their pithy, even biting, quality. Consider his dissent in last summer's ruling in King v. Burwell, in which a 6-3 majority upheld Obamacare subsidies in states that don't operate their own exchanges. He branded the majority's contortions "jiggery-pokery" and at one point offered a succinct, one-sentence rebuttal of an argument: "Pure applesauce." The entire case, he wrote, meant the law should be called "SCOTUScare" because of the court's role in salvaging the poorly constructed legislation. Scalia has long been held up as the kind of judge presidents, especially Republican presidents, should aspire to nominate.


That brings us to the obvious question in everyone's minds -- it's unfortunate that it comes before the great jurist is even buried, but this is the world we live in. That question was also on Biery's mind, and he addressed it in a statement to the Express-News:

"'I was told it was this morning,' Biery said of Scalia's death. 'It happened on a ranch out near Marfa. As far as the details, I think it's pretty vague right now as to how,' he said. 'My reaction is it's very unfortunate. It's unfortunate with any death, and politically in the presidential cycle we're in, my educated guess is nothing will happen before the next president is elected.'"(emphasis added)

That educated guess will surely be put to the test. The fact is that this situation has arisen very rarely in recent decades : Before Chief Justice William Rehnquist in 2005, no justice had died in office since 1954. Too, there is precedent for a court opening in an election year waiting until after the new president takes office. It happened in 1968 , although one significant difference is that the opening came in June of that year (with Earl Warren's announced retirement), not February.

Relations between President Obama and this Congress have been frosty for years, but he has not had a Supreme Court vacancy since before Republicans took control of the House, much less the Senate. In fact, when he appointed Elena Kagan to the bench in 2010, he still had 59 senators who either were Democrats or caucused with the party.

Obama finds himself in a rather different position now, with Republicans holding a 54-seat majority, but he is far from being without options. The Supreme Court is roughly halfway through its current term, which begins each October, although it has only a couple of months longer to hear cases. Practically speaking, no nominee would be confirmed and seated in time to participate in this current term. However, the same timeframe means a nomination that doesn't come until Obama's successor takes office would also be too late for the next term. That would effectively mean the court would go two terms with only eight justices.

Expect Obama to use that to make the argument that he should in fact nominate Scalia's replacement. But with Republican candidates already coming out with statements indicating the nomination should wait until after Jan. 20, 2017, if the GOP-led Senate can't run out the clock until then, it is at least in position to demand an ideologically neutral appointment. Would Obama be willing to do that? Could senators ever feel certain they were getting a truly centrist jurist and not buying a liberal in a poke? One thing is certain: Any agreement would have to come before summer, when each party has its nominee and the odds of a Democrat vs. a Republican winning the presidency came into sharper focus.

UPDATE: No sooner had I published this post than the following was reported by Politico:

That sounds like quite a line in the sand. From the other side, Democrat Sen. Patrick Leahy, past chairman of the Judiciary Committee, we get this:

So this is not going to be resolved easily, it seems.


Feel free to speculate about the future in the comments thread below, but I would ask everyone to be respectful of the departed. Dancing on the grave of a man who served the American people, whether you agreed with his opinions or not, will not be permitted.