Sunday, February 14, 2016

The Court—and the Country—After Scalia

Justice Antonin Scalia (1936-2016)

Antonin Scalia has died. I disagreed with almost every decision Justice Scalia ever made on the Supreme Court, I objected to the kinds of inflammatory language he used in his decisions, and I found his originalist Constitutional philosophy absurd. But Justice Ruth Bader Ginsburg, other court members, and almost everyone else liked him a lot as a private person, and that’s good enough for me to feel bad that he has died and to admire his life. I am glad, however, that the Court has one less ultraconservative justice.

I have said all along that the most important issue for me in the coming Presidential campaign is who will replace the elderly and/or ailing Justices Ginsburg, Breyer, and Kennedy on the Supreme Court in the next few years. Now we have four justices who will soon be replaced. That’s going to determine the direction of the country for the next 20 or more years.  

Justice Ruth Bader Ginsburg

Justice Anthony Kennedy

Justice Stephen Breyer
The Republican Senate will do everything it can to prevent Obama’s nominating someone to replace Scalia. Such obstructionism is reprehensible, but inevitable. For precedent, the Republicans should look to February of 1988, also a presidential election year, when a Democrat-controlled Senate confirmed Justice Anthony Kennedy, who had been nominated by Ronald Reagan. Unlike those Democrats, the Republicans of today will, as usual, simply say no.

If a Republican becomes president next year, it is likely we will soon have seven strict conservatives on the Supreme Court. If a Democrat is elected, it is likely we will have six moderates/liberals on the court. 

Any Republican-nominated Supreme Court justices will oppose women's choice, affirmative action, worker protections, consumer protections, corporate regulation, financial regulation, election-spending limits, LGBT rights, defendant rights, immigrant rights, the teaching of evolution, climate-change laws, other environmental regulations, science-based policies, and even the mildest gun-control laws. They will support the death penalty, evangelism in government and the schools, the teaching of creationism, and NSA/CIA spying on citizens. In other words, Republican justices will help us become the nation that Ted Cruz craves—a nation I would leave.
For us liberals, that means it is more important than ever that Hillary Clinton or Bernie Sanders be elected. 

Judge Sri Srinivasan
It’s most likely that Obama, hoping against hope that the Republicans act ethically, will nominate Sri Srinivasan for the Supreme Court vacancy left by Scalia. Here’s Srinivasan’s bio: . Note, especially, that he has argued more than 25 cases before the Supreme Court and was clerk for a moderate Republican-appointed justice, Sandra Day O’Connor. The Senate unanimously approved his appointment to the D.C. court of appeals just three years ago. It would be difficult for the Republicans to say now that he is not qualified. He’s only 48 years old, so he could have 30 or more years on the court. The fact that he was born in India and is brown-skinned should make him even more attractive—except to the Tea Party.

Judge Richard Posner
If Obama wants to put even more pressure on the Republicans, he might want to nominate Richard Posner, a judge on the 7th Circuit Court of Appeals. Posner ( has a long history as a conservative, having always tended to emphasize the economic consequences of judicial positions, and is more or less pro-business. But he has also supported abortion rights and gay marriage. He is probably the most literate and scholarly of all the judges at any level in the U.S.; he has written scores of books, on a wide range of subjects. 

Posner may be the smartest and best-read judge in the world. I know him through the book Law and Literature, which I used in a "Literature and the Law" class I taught at Virginia Tech. It’s a fascinating book that taught me much about works I thought I knew well, like The Merchant of Venice, Camus' The Stranger, Kafka's The Trial, and Melville's Billy Budd. Posner's main appeal for Republicans, besides the fact that he is sort of conservative on economic issues, is that he is 77 years old, meaning that if he turns out to be too liberal for Republicans, at least they’ll know he won’t be around for long.

Will someone please send this suggestion on to President Obama?

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