February 13, 2016

How will the death of Antonin Scalia affect the presidential election?

I am absorbing the shock of the loss of Justice Scalia, who has been such an important figure in American constitutional law throughout the years. He was the first new Justice to come onto the Court in the time that I've been teaching. (I began in 1984, and he was nominated, by President Reagan, in 1986.) I've been reading his work for 30 years, and now there will be no more of his writings.

What will happen? I assume that it will be almost impossible for President Obama to get a nomination through the Senate. Is some compromise possible? Perhaps some old and widely respected, neutral-seeming judge or law professor? Do such beasts still roam Earth?

Is it unseemly to talk about the election? No, it is necessary. An old man has died. And he is a man who said, quite recently: "For the believing Christian, death is no big deal." The examinations of his life's work will need to be made, but I feel compelled to talk about what we are always talking about: the next election.

Both conservatives and liberals are launching furious thoughts and plans, including the plan to peg the other side as politicizing the Court and for showing its fighting spirit too soon, while the news of death is so fresh.

There's a GOP debate tonight. We'll get a first taste of how the new focus on the Supreme Court will work. Both parties' candidates are going to say their party needs to have the nomination, lest terrible things happen. Which party has the better argument that things will go awry without their person holding what must be seen as slot number 5 in what will make majority — a majority that will be either liberals or conservatives, depending on whether we get a liberal or conservative President?

The liberals have a great hunger after all these years with only 4, always needing to win over a swing vote. Imagine if they get it: No more of the endless puzzling over what Anthony Kennedy might think about this or that issue. The liberals will be 5, and all the arguments and opinions will be different.

If the conservatives get the nomination, we'll have more of the same, including the susceptibility that Justices appointed by a GOP President have to the lure of the liberal side of the Court, where a Justice can feel the love of the legal elite (as Justice Scalia loved to point out).

Will liberals overreach and show too much of a raging desire to control the Court and make it solidly liberal at long last, touching off a reaction among conservatives? Or will conservatives flare up with hostility to women's rights and gay rights and affirmative action and all the many issues that make them look too mean and ugly?

ADDED: Obama needs to figure out how to present a nominee in a way that would make the Republicans look as bad as possible if they oppose and obstruct. Even if the nominee is rejected, political progress will have been made.

I predict that candidates and their supporters in both parties will overplay their hand and get into trouble. There's no way everyone can show restraint and act neutral and dignified about the Court. It's more a matter of who self-inflicts the most harm.

157 comments:

Michael K said...

It will be a blow to Trump but I expect it will have less effect than hoped for.

Skookum John said...

It's going to have a big effect on some appeals that are coming up for review this term. A 4-4 tie means the (mostly left-wing) lower court decisions will stand.

Chuck said...

The old saying -- "a game changer" -- was never so true.

Cruz is clearly the candidate best-suited to discuss the Court, and Justice Scalia, and to articulate legal conservatism and the ideas of the Federalist Society. I say that as someone who is sort of neutral on all of the Republican candidates. (That excludes Trump, whom I regard as some sort of strange third-party thing.)

The Godfather said...

McConnel should privately advise the President that the Senate will not confirm a new justice until the new President sends up a nomination in 2017, and request that Obama honor that decision. If Obama sends up a nominee anyway, McConnel should state publicly that the Senate will not act on the nomination, out of deference to the next President.

Chuck said...

I think back to the wicked irony of President Gerald Ford nominating the replacement of Justice Warren O. Douglas.

As a hot-blooded young Grand Rapids congressman, Ford led Congressional noisemakers who were calling for the impeachment of Justice Douglas. Years later, still on the bench, Douglas died (he hung on long past his time, determined not to let a Republican replace him) and it fell to Ford to nominate his replacement. (Ford chose the moderate University of Chicago law prof John Paul Stevens. Stevens, as is the case with too many Republican nominees in the 20th century, soon tilted toward the social liberals. The Greenhouse Effect.)

robother said...

Obama will nominate an African-American, the more unconfirmable the better (think Eric Holder), in order to give Hillary an issue with which to enrage and turn out the Black vote.

Will the Republican establishment (particularly as embodied by Mitch McConnell) have the guts to stand up to the playing of a blatant race card, with MSM and the Democrat candidate calling them out as racists every day?

Will the Republican Presidential Candidate? (I'm pretty sure Trump would; the others, not so sure.)

Clyde said...

No, compromise is not possible. It's not in Obama's nature, for one thing. The odds of him nominating someone that the Republicans would find reasonable are about the same as winning the lottery and getting struck by lighting on the same day.

rcocean said...

Can we really trust McCain, McConnell, and Grahmnesty, not to cave and let Obama the 5th Justice?

I don't think so. I hope people are putting some real pressure on them otherwise they will just satisfy their base: the Billionaire Donors and the New York Times.

David Begley said...

Obama appoints himself.

Think about it, Other than the loss of opportunity to run a scam like the Clinton Foundation, he would love that job. Life time tenure. Power.

readering said...

Obama should follow the Cardozo precedent and simply pick the jurist with the most stellar reputation. That would be elderly heterodox Republican Richard Posner.

Gahrie said...

McConnell has already announced that the senate will not vote on an Obama nominee. Which means Kamala Harriss or Anita Hill will take her seat on the Court this summer.

rwnutjob said...

RIP Justice Scalia
"For the believing Christian, death is no big deal."
~Antonin Gregory Scalia

Gahrie said...

he would love that job. Life time tenure. Power.

His interns doing all of the actual work....

cyrus83 said...

The easiest place for the GOP to make a stand is on Heller and the 2nd Amendment. The public is with them on that issue, so if they were smart, they would make their refusal based solely on defending the 2nd Amendment from Obama. That would also presumably drive up turnout from 2nd Amendment supporters this November.

Gahrie said...

However I believe Obama would have to resign, and have Biden appoint him to the Court.

rcocean said...

"As a hot-blooded young Grand Rapids congressman, Ford led Congressional noisemakers who were calling for the impeachment of Justice Douglas'

Actually Ford was quite middle-aged Minority Leader when he did this in the 1960s. And it was all an act. Ford, as he proved with Stevens, was socially liberal and refused to appoint a conservative to replace Douglas.

Ford was always a blockhead and thought he could get Liberal votes. The Dummy.

buwaya puti said...

What I understood from a little appreciated book, Anthony Beevors "The Battle for Spain" on the Spanish Civil War (Hugh Thomas is the standard work even in Spanish, but its all about facts, which explain only so much), is that these disasters aren't a matter of sides as such but of the emotional climate.
That's what matters here, more so than side A vs side B.
When one side is desperate, backs against the wall, especially if they have much to lose, and the other is in a killing mood, tasting total victory, human feeling disappears, as does reason.
Scalia was, in the eyes of one side, a backstop against obliteration, all else having failed.
The public has been trained already to imagine the other as inhuman or subhuman, as happened in Spain over decades of development of political radicalism.
The US now really isn't much different.
What touched off the Spanish Civil War was the murder of a backstop, Calvo Sotelo, the leader of the parliamentary opposition. After that it was clear there was no constitutional protection for the interests the opposition represented.
The inutility of American democracy after the failure of Congress to restrict the executive agencies is in the same category.
Some precipitating event, a constitutional crisis or massively unpopular regulatory initiative, is very likely to prove the last straw.
Imagine Bush vs Gore in today's vicious climate.

Bob Ellison said...

He could nominate Michelle.

Howard said...

Scalia will be forgotten by November.

gadfly said...

@Michael K said...
It will be a blow to Trump but I expect it will have less effect than hoped for.

You are giving Trump far more credit than he deserves considering his obvious "stream of consciousness" living that is focused on today and his mirror. He likes crony capitalists so expect his view to be one of "whats in it for me" should he (shudder) get elected and the GOP refuses to approve Obama's choices to replace Scalia. Remember that the presidency has made the Clintons and the Obamas into multi-millionaires so little Donnie is likely turning his imaginations to even more riches.

I look forward to the SC debate just to see how orange the man's face will be this time (with white around the eyes). There must be some Vegas odds on expected color tone.

Anthony said...

Regardless of who does the appointing, were not likely to get a replacement as good as Scalia.

buwaya puti said...

Ribother is correct, Obama will appoint a minority, probably a black person, to create a racial issue. It's the obvious move.
This won't help the political climate which will continue to deteriorate.

David Ragsdale said...

Immigration 4/4 is a win against Obama.

And Oh Ann! There you go again, nothing meaner and uglier than Kermit Gosnell.

Or ramming down social legislation you can't win at the ballot box or in actual legislatures through fairly corrupt and rigged processes via the Courts (ie- when no lawyer who wants to have a future in law is allowed to argue for a certain side that just happened to be the side of the same electorate in California that gave the state to Obama by 20+%).

Oh Ann! Bye felicia.

Mark said...

No appointment by Obama means both this year and next will have a deadlocked court for many things.

Depending on what's up before the court, that could be a big deal too.

Leigh said...

This is incredibly sad. He'd just spent some time at SMU a few weeks ago and he caught a local barber off guard when he strolled in for a haircut.

We will sorely miss his kindness, wisdom and wit.

http://www.nbcdfw.com/news/local/Supreme-Court-Justice-Catches-University-Park-Barber-by-Surprise-368232141.html

Howard said...

buwaya puti: You need to remember that the US is still dominated by cool-headed north men, not the weak, hot-headed machismo Muslim caliphate spawn who occupy Spain.

Adamsunderground said...

Dr. Peter Venkman: Human sacrifice, dogs and cats living together... mass hysteria!

buwaya puti said...

Howard - you are joking, right ?

Chuck said...

So here is the thing. With the current Republican majority in the Senate, there is no way that Obama can get another Sotomayor, Kagan, Ginsberg or Breyer confirmed.

Obama can try to get a true moderate confirmed; that is the best he can hope for.

BUT if the Republicans want to stall things until the next president is in office, we risk the makeup of the Senate! We could easily see, if Trump won the Republican nomination, the anti-Trump vote in a number of purple states swing the Senate back to Democrat control. We could (I hope not!) have, in 2017, a President Trump, with a Senate that is 52-48 for the Democrats. (And the Democratic Socialists.)

Birkel said...

The words that Althouse forgot to publish are "to me" at the very end.

Birkel said...

Chuck,

We appreciate your concern trolling.
Really, we do.

buwaya puti said...

Ann is wrong about the significance of the politicians and their reactions. What counts is the mood of the people.
The true effect of what happens at the court is not political in an electoral sense, but whether the people end up hating each other more.

Bob Ellison said...

This might be the moment in which the American electorate finally discovers that the Supreme Court is a political body.

Limited blogger said...

Trump is the only nominee who will be able to stand up to the the BS barrage Obama, Clinton, Reid and the MSM will be barfing out everyday from now until election day. I'm even more happy we have Trump now in this time of grief. And Cruz would be the perfect replacement for Scalia.

Quayle said...
This comment has been removed by the author.
Howard said...

buwaya: no, I'm not. That's why no one cared about the patriot occupiers in Oregon defending their right to free grazing on gov't cheese land.

Quayle said...

Maybe both parties would support a judge who brings a staunch cruel neutrality.

Except MSNBC would harp endlessly about the cruel.

And given your chosen stomping grounds, and your voting record in 2008, Fox News would scoff at the notion of neutrality.

Besides, I'm waiting for loving partiality.

Most people are, they just don't know how to articulate it, or if they do, they struggle to believe such a being will ever come.

Howard said...

Recess appointment. Obumbles isn't done making teabagging chickenhawks his bitches

Lem said...

If Harry Reid was wearing the other shoe, there would be No more endless puzzling over what was going to happen.

Delay maneuver after delay maneuver, ala Miguel Estrada, until the next president assumed office.

Chuck said...

I dare say, as of today, Antonin Scalia was the most consequential person in public life in the United States, short of Barack Obama.

About Professor Althouse's "Added" comment and a few others in this thread; assuredly, Obama WILL nominate someone. And whoever he nominates is unlikely to get a confirmation. Maybe not even a hearing. So with that hand already dealt, what does Obama do?

I think he nominates an African-American. So that, when the nomination is stalled, it can be used by Obama/Clinton/the left wing media to scream "Racism!" and turn out the black vote in November. Turning out the black vote is what got Obama elected, and then re-elected.

steve uhr said...

How sad. Whether you agree with him or not, his opinions are a pleasure to read.

dbp said...

The best way for the Republicans to lose their Senate majority would be to wave through an Obama nominee. The only way they can credibly approve is in the highly unlikely case that Obama nominates a true moderate.

Even in this last scenario, the best move for McConnell is to say that this is a good nomination and he fully expects him or her to be approved when they vote in 2017.

Amanda said...

The best way for Democrats to win the election and gain the majority in the Senate would be for Republicans to thwart the Senate confirmation process. I suspect that would create a huge backlash for Republicans, so be it.

n.n said...

The issues of our times are indeed abortion rites, clinical cannibalism, female chauvinism, selective exclusion, class diversity, and anti-native policies.

That said, Scalia RIP.

Chuck said...

I've posted parts of it probably a dozen different times on Professor Althouse's comments pages; but if you have never read it, you absolutely must read his dissent in the 2003 case of Lawrence v Texas.

Here's a link:
https://www.law.cornell.edu/supct/html/02-102.ZD.html

Amanda said...

"Senate Majority Leader Mitch McConnell (R-Ky.) said Supreme Court Justice Antonin Scalia should not be replaced until after the presidential election.

Because McConnell sets the Senate schedule, and the upper chamber confirms Supreme Court nominations, his remarks signal the GOP's intent to not confirm any nominee offered by President Obama.

“The American people‎ should have a voice in the selection of their next Supreme Court Justice," he said in a statement. "Therefore, this vacancy should not be filled until we have a new President.”"

http://thehill.com/homenews/senate/269389-mcconnell-dont-replace-scalia-until-after-election

Big mistake, but not a surprise. What a way to fire up the Democratic base, good job McConnell. This last insult to President Obama will bite them in the ass.

Birkel said...

Amanda:
"...huge backlash for Republicans..."

Amanda accidentally brings some truth.

Beach Brutus said...

I predict when Trump is asked he will reply that his Supreme Court nominees will be "awesome" or "teriffic".

gadfly said...

@Limited blogger said...
Trump is the only nominee who will be able to stand up to the the BS barrage Obama, Clinton, Reid and the MSM will be barfing out everyday from now until election day. I'm even more happy we have Trump now in this time of grief. And Cruz would be the perfect replacement for Scalia.

Trump is the only nominee who will be unable to stand up to the the BS barrage Obama, Clinton, Reid and the MSM will be barfing out everyday from now until election day. I'm even more concerned that we have to deal with the Trump idiocy in this time of grief. And Cruz would be the perfect replacement for Obama. Fixed it for you.

eric said...

If the Republicans even hint at allowing a nominee through, expect Trump to rise exponentially.

If they don't hold the line until 2017, then we lose our 2nd amendment.

narciso said...

oh amanda, how resolute you are,

http://obamaspeeches.com/048-Supreme-Court-Nomination-of-Samuel-Alito-Obama-Podcast.htm

yes, Scalia, was practically Cassandra in that dissent,

Birkel said...

Also insulting the president, facts and economics and numbers.

buwaya puti said...

Howard, the problem in the Oregon case is the protesters represented a tiny minority of the people. Righteously aggrieved as they were its a limited cause. Proper approach here is to gain public sympathy by provoking unambiguously unjust response from the authorities, and link it to greater matters.
Using guns was the biggest mistake. Guns are for the Revolution, should it come, not for politics.

eric said...

BTW, for those who are hating on Trump, he told Sean Hannity that he would appoint justices like Scalia and Thomas. He gets a chance to reiterate that tonight.

Luke Lea said...

Trump, the only non-ideological candidate, is, or should be, in a good position going forward. Let's see how he plays his cards.

Amanda said...

What should president Obama do? What President Eisenhower did. A recess appointment.

"New Jersey judge William J. Brennan was appointed to the Supreme Court by President Dwight D. Eisenhower in 1956 through a recess appointment."

https://en.m.wikipedia.org/wiki/Recess_appointment

Freder Frederson said...

Can we really trust McCain, McConnell, and Grahmnesty, not to cave and let Obama the 5th Justice?

Apparently, a bunch of people here don't really like the constitution. Only Republicans should be allowed to appoint Supreme Court justices.

You are really advocating for at least a term and a half, we are supposed to be without a full Supreme Court? You are fascists.

eric said...


Apparently, a bunch of people here don't really like the constitution. Only Republicans should be allowed to appoint Supreme Court justices.


Huh. Who knew the Senate had nothing to do with the constitution.

Ever heard of precedent?

narciso said...

the answer to Eisenhower, when he was asked which mistakes he had made in office,

'two, and they happen to be on the court'

buwaya puti said...

A recess appointment would become a constitutional crisis.
The first of many.
Each case decided will become another.

buwaya puti said...

Freder, the problem here is the matter of checks and balances.
Congress is no longer a check on the executive because so much power has been transferred to it. The last check was the court.
It is trivial to call people names, address the substance.

Amanda said...

It wasn't a Constitutional crisis when President Eisenhower did it. Why would it be a Constitutional crisis if President Obama did it? Elaborated on the distinction.

Rusty said...

Freder Frederson said...
Can we really trust McCain, McConnell, and Grahmnesty, not to cave and let Obama the 5th Justice?

Apparently, a bunch of people here don't really like the constitution. Only Republicans should be allowed to appoint Supreme Court justices.

You are really advocating for at least a term and a half, we are supposed to be without a full Supreme Court? You are fascists.


You have a problem with the process? Because the process is part our constitution. What is not part of the constitution is just blindingly approving anything that comes out of the White House.
Fascist indeed.

SukieTawdry said...

Dream on, Amanda. The people who put a Republican majority in the Senate in the first place are not about to countenance a Barack Obama-chosen replacement for Antonin Scalia.

Chuck said...

Regarding Trump:

Let's remember that just a few weeks ago, Donald Trump was sticking his foot in his mouth -- as only Trump can do -- on the subject of Justice Scalia.

The case was Fisher v. University of Texas, and in the course of oral argument of the case, Justice Scalia questioned the lawyer representing the University of Texas who was of course appearing in the effective role of being a proponent for UT's affirmative action program. Scalia asked the attorney about what has been called in academic studies of affirmative action as "Mismatch Theory." It was a theory that had been raised in the briefs of several amici curiae. (The theory posits that a significant number of minority students are hurt by affirmative action insofar as they are placed in competitive academic environments where they are less-equipped to compete; they would do better, long term, at less-competitive places.) UCLA professor Richard Sander wrote a book on it:

http://www.amazon.com/Mismatch-Affirmative-Students-%C2%92s-Universities/dp/0465029965/ref=sr_1_6?s=books&ie=UTF8&qid=1455411483&sr=1-6

So anyway, Scalia asked about it in argument. The left-wing media jumped on it, proclaiming Scalia a racist for somehow suggesting the theory. The Federalist did a superb takedown on the story, here:

http://thefederalist.com/2015/12/10/this-dumb-dishonest-attack-on-justice-scalia-takes-the-cake/

Then, with obviously no understanding of Scalia's thinking and armed with apparently nothing more than his own warped watching of the news, Trump weighed in, criticizing Justice Scalia:

http://dailycaller.com/2015/12/13/donald-trump-hits-scalia-over-affirmative-action-remarks-video/

Trump is just so indescribably stupid. I am going to watch how Trump handles this, just a matter of days, really, after his booting of that Scalia-centered issue.

buwaya puti said...

Because Eisenhower appointed a Democrat and the Senate had a Democratic majority.
Who was sufficiently supported by the Senate, of course, that they subsequently confirmed him.
Today - it is vicious hate on both sides.

readering said...

The Senate will not go into recess any more when the president is from the other party. The Supreme Court provided the road map on that.

Eisenhower-Brennan an interesting precedent. An Irish Catholic Democrat picked by a German protestant Republican for help in the '56 election.

Skeptical Voter said...

Obozo will overplay his hand? I'm shocked! Absolutely shocked.

Amanda said...


"Thomas Johnson Washington August 5, 1791 October 31, 1791 November 7, 1791 Confirmed
John Rutledge
(as Chief Justice) Washington July 1, 1795 December 10, 1795 December 15, 1795 Rejected
Smith Thompson Monroe September 1, 1823 December 5, 1823 December 9, 1823 Confirmed
Levi Woodbury Polk September 20, 1845 December 23, 1845 January 3, 1846 Confirmed
Benjamin Robbins Curtis Fillmore September 22, 1851 December 11, 1851 December 20, 1851 Confirmed
David Davis Lincoln October 17, 1862 December 1, 1862 December 8, 1862 Confirmed
Oliver Wendell Holmes, Jr. T. Roosevelt August 11, 1902 December 2, 1902 December 4, 1902 Confirmed
Earl Warren
(as Chief Justice) Eisenhower October 2, 1953 March 1, 1954 March 1, 1954 Confirmed
William J. Brennan, Jr. Eisenhower October 15, 1956 January 14, 1957 March 19, 1957 Confirmed
Potter Stewart Eisenhower October 14, 1958"

https://en.m.wikipedia.org/wiki/Appointment_and_confirmation_to_the_Supreme_Court_of_the_United_States


Chuck said...

I love this comment from Amanda:

What should president Obama do? What President Eisenhower did. A recess appointment.

"New Jersey judge William J. Brennan was appointed to the Supreme Court by President Dwight D. Eisenhower in 1956 through a recess appointment."

https://en.m.wikipedia.org/wiki/Recess_appointment


Amanda isn't wrong; at least not historically. But as Chris Wallace noted on Fox tonight, the game of recess appointments has changed, since the decision in NLRB v Canning, issued in June of 2014 where a UNANIMOUS Supreme Court rejected Obama's recess appointments to the Board when Obama unilaterally declared the Senate to be in recess, when the Senate disagreed.

(Chris Wallace pointed to the odd mismatch in which the term of Congress ends on January 3, 2017, but Obama's term as president doesn't end until a couple of weeks later on Inauguration Day... so what if a recess appointment were made then?!?)

traditionalguy said...

The Donald's Big Sister would be the best choice. Then we get to watch a real war on a woman.

Are Canadians eligible?

Swede said...

There won't be any Senate recess, at least not this year.

Bob Ellison said...

Obama will probably overplay every hand he has from her on out. He can be expected to nominate someone pretty quickly. Even in that incompetent White House, someone's got a short list.

Sebastian said...

"It's more a matter of who self-inflicts the most harm" No. It's more a matter of who will be publicly framed as "self-inflicting" the most harm. Let's all try to guess who that might be. But because it doesn't matter what the GOP does, since "blame" only goes one way anyway, stiff resistance to O is best. But of course McConnell is in charge and Grassley plays nice with Dems: the real civility bullshit.

Gahrie said...

What's Valerie Jarrett doing for the next twenty years?

(I know I know...it should be hard time, but it won't)

gadfly said...

@Freder Frederson said...
Apparently, a bunch of people here don't really like the constitution. Only Republicans should be allowed to appoint Supreme Court justices.

I guess we cannot call Ted Kennedy, Joe Biden, Howard Metzenbaum, Robert Byrd,et al fascists, (so we will settle for Marxists) for the incredibly ugly changes they made to the Supreme Court appointment process. Do you remember what these radicals did to Robert Bork and Clarence Thomas? Bork's name became a verb meaning "to attack a candidate systematically, especially in the media."

Gahrie said...

so what if a recess appointment were made then?!

Well in that case, the first act of the new Congress should be an impeachment, which would probably occur if the parties were reversed.

With the current republican leadership...nothing would happen except the issuance of thousands of fund raising letters.

Amanda said...

Readering, thanks for bringing up that SC ruling from 2014.

Speaking of Constitutionla crisis, it was the Supreme Court itself that set up one.

http://www.newsweek.com/did-supreme-court-just-set-constitutional-crisis-256461

Down the line, it’s not inconceivable that this ruling could set up a constitutional crisis in which a president is kept from making appointments because either house of Congress is controlled by the other party. Could Republicans, for example, really render an agency like the NLRB effectively dead by blocking any appointments? What will happen in 2018 when the five-year terms of the current members expire?

"A future president could, in theory, adjourn Congress in order to create a recess—a power the president has but one that no president has ever used. “Maybe what the court has done here is set up the mother of all constitutional problems,” Williams said.

The opinion is vague enough that lawyers are still trying to figure out when a recess appointment might be possible. Legal scholars have begun to dig into what may be a loophole in the court’s ruling, which reads, “The Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business.”"

Simon said...

It's this simple: Any Republican Senator who votes to even vote on giving Obama's nominee a vote loses their job.

Period.

Anyone who votes for a recess, loses their job. Period.

This is a go-to-the-mats issue: Barack Obama cannot pick Justice Scalia's successor, and any Senator who wavers on this proves right every terrible thing that has been said about the establishment. Give no quarter, and not one inch of ground.

The court may as well DIG all thoses cases right now, because they're going to have eight members for at least a year.

Simon said...

robother said...
"Will the Republican establishment (particularly as embodied by Mitch McConnell) have the guts to stand up to the playing of a blatant race card, with MSM and the Democrat candidate calling them out as racists every day?"

Stalin ordered that anyone who retreated be shot. It wasn't his worst idea.

Freder Frederson said...

You have a problem with the process?

The Senates job is "advice and consent", not "delay until someone we like better is elected president".

George W. was able to appoint, with the advice and consent of the Senate (and promote one of them to Chief Justice), two very conservative justices. Obama has the right and duty to appoint a replacement for Scalia. Sucks for you that he or she will certainly be more liberal than Scalia.

And really, are you willing to gamble that President Sanders will appoint Scalia's replacement? I bet, come November, Cruz will be begging Obama to appoint a replacement if Sanders wins.

Matt said...

RIP. A great conservative thinker and justice. I don't see how Obama should be expected not to appoint a nominee. The president has that right. I'm not sure the Senate can keep the seat vacant for 11 months.

Amanda said...

"Williams added, “The Framers are rolling in their graves,” because they never intended the House to be involved in the appointments process. Alexander Hamilton, for example, wrote in the Federalist Papers that the House should have no role in that process, to avoid “infinite delays and embarrassments.”"

http://www.newsweek.com/did-supreme-court-just-set-constitutional-crisis-256461

tim maguire said...

The president has the right and the duty to fill the vacancy. Republicans have nothing but parlamentary maneuvering. To win, they will need the public on their side. Otherwise, it's just more Republican obstructionism. Like another government shut down.

Freder Frederson said...

Stalin ordered that anyone who retreated be shot. It wasn't his worst idea.

I know you are in deep grief. But really? You are making favorable comparisons to Stalin's tactics during World War II?

Barack Obama cannot pick Justice Scalia's successor, and any Senator who wavers on this proves right every terrible thing that has been said about the establishment.

You're really not a big fan of either the Constitution or democracy, are you? Still haven't gotten over the Representation of the People Act of 1918, have you? Fucking proles!

Chuck said...

Freder Frederson said...
You have a problem with the process?

The Senates job is "advice and consent", not "delay until someone we like better is elected president".


The Senate's job is to vote. Like, uh, with the nomination of Judge Bork. Or Miguel Estrada.

I fully expect Mitch McConnell to effectively say to the President, "Go ahead; make my day." If ever there were a time when I wished that Jeff Sessions were heading the Judiciary Committee, it would be now. But it's Chuck Grassley. Still, Ted Cruz and Mike Lee are on the Committee.

Can you imagine if this summer results in the nominations of Ted Cruz for president by Republicans, and also Eric Holder for Supreme Court by Obama? And they meet each other head-on in a confirmation hearing? Wow.

Guildofcannonballs said...

From Wm. Frank Buckley Jr.:

The Effort to Intimidate Reagan
June 30, 1987

...

"The sad aspect of all the sophistry being used is that it strengthens the point many Americans have been fretting over with increasing anxiety for more than a generation. It is that the Supreme Court has become the supreme legislative chamber, and that although the Constitution gives only to Congress the right to enact legislation, and only to the people and their legislators the right to amend the Constitution, the Supreme Court has been busy doing all of these things with abandon since the days of the Warren Court and even before. The intensity of the current fight has to do with whether President Reagan will appoint someone to the court whose vote might reverse one-man majorities on such questions as abortion, school prayer, affirmative action, and the rights of defendants."

...

*Did Buckley error in using the term "appoint" when he meant nominate?

**No.

Freder Frederson said...

Do you remember what these radicals did to Robert Bork and Clarence Thomas? Bork's name became a verb meaning "to attack a candidate systematically, especially in the media."

Bork was way too extreme and deserved to be rejected by the Senate. And if I recall correctly, Thomas was ultimately confirmed.

Chuck said...

tim maguire said...
The president has the right and the duty to fill the vacancy. Republicans have nothing but parlamentary maneuvering. To win, they will need the public on their side. Otherwise, it's just more Republican obstructionism. Like another government shut down.

Bullshit! You're thoroughly mistaken. The president doesn't get an "appointment," as you seem to think. ("[F]ill the vacancy," you wrote.)

The president gets to nominate. The Senate gets to advise and consent. They get to vote on anybody the president nominates. After hearings on the nomination.

Take your "shutdown" claptrap and shove it. The only reason for a government "shutdown" (which isn't much of a shutdown in any case) in the Obama era is... Obama.

Simon said...

Freder Frederson said...
"I know you are in deep grief. But really? You are making favorable comparisons to Stalin's tactics during World War II?"

Justice Scalia dedicated his entire life to saving that which President Obama wants to burn to the ground; he dedicated his entire life to the law, and President Obama has made absolutely clear that his sole and consuming focus is the complete destruction thereof. He cannot be allowed to appoint a controlling vote. Replacing Justice Souter with a minnow—contemptible, but okay. Replacing Justice Stevens with a justice who's very good, just wrong, well, okay. But this is different. We stand on the precipice of the end of the Republic if this President is allowed to do what he intends to do—we have lost one of the great men who stood firm against him and his compatriots, and they must now be resisted at all costs. This is worth losing votes and even seats over.

This cannot be allowed to happen.

Freder Frederson said...

The Senate gets to advise and consent.

Consent and approve are not the same. Consent is a much lower standard. Consent means, "I don't approve of your choice, but you have the right to choose this course of action, so go ahead and do it, but I think it is a big mistake".

Hammond X. Gritzkofe said...

I assume that it will be almost impossible for President Obama to get a nomination through the Senate.

We fervently hope it will be so. Lord keep safe our precious Constitution.

Roadkill711 said...

Watching the POTUS remarks on Scalia's passing, which interrupted his golf game, noticed that he apparently did' t have a tie in his bag.

garage mahal said...

You're really not a big fan of either the Constitution or democracy, are you?

Is there a legal impediment to Obama from putting someone on the bench, tonight?

It's absurd that one party puts the other party's pick on the court. Why would you do that?

Guildofcannonballs said...

"The president has the right and the duty to fill the vacancy."

So like Trump you blame McCain's affirmative action ass for being shot down, like you blame Reagan for not doing his duty and filling the vacancy until the third try?

If it takes you three times to fulfill your duty, what kind of American are you?

Or was Reagan, for that matter?

Freder Frederson said...

This cannot be allowed to happen.

So Stalin wasn't so bad after all. I always took you for an authoritarian who really has no interest in representative democracy or the Republic. You only care that people agree with you.

A word of advice. If you pretend to care about the Republic, don't make favorable comparisons to Stalin.

Simon said...

Matt said...
"I don't see how Obama should be expected not to appoint a nominee. The president has that right. I'm not sure the Senate can keep the seat vacant for 11 months."

He can do whatever he frakking likes, but any GOP Senator who votes to give that nominee a vote loses their job and should be taken out back and beaten within an inch of their life. The Senate can and will keep the seat vacant until the next President willing to appoint a justice who believes in law. Doesn't even have to be a conservative—just someone who isn't dedicated to subverting it.

This is a predicament of the Democrats' own making. If they could be trusted to nominate judges who believe in law, if the argument was between Democrats who want liberal textualists and Republicans who want conservative textualists, I'd have no objection. Give me a sincere liberal textualist and I'll be happy enough. But that isn't the situation we find ourselves in, and it's on people like Barack Obama and Roscoe Pound. You want someone to blame, blame them that it was even necessary for Scalia to do all that he did for us. He shouldn't have had to fight a counterrevolution. He should have been able to have a perfectly happy, quiet life as a lawprof. They're the ones who forced us to put on a uniform and take up bayonets.

There's too much death this year. Too much loss. Too many of us are leaving too soon.

Freder Frederson said...

So like Trump you blame McCain's affirmative action ass for being shot down, like you blame Reagan for not doing his duty and filling the vacancy until the third try?

If it takes you three times to fulfill your duty, what kind of American are you?

Or was Reagan, for that matter?


I don't know how to respond to this. It is completely incoherent.

buwaya puti said...

The problem here, in every respect, is that the roles of all three branches have mutated. This is entirely because of the increase in executive power and the independence of the "fourth branch", the unconstrained bureaucracy.
The effect is that there is no longer a democratic restraint on the executive, nor is there a timely way for the people to exercise their will, nor is there effective protection of minority interests.
In a situation like this a parliamentary system of cabinet government has important advantages. There is a more immediate democratic feedback through loss of confidence and elections as required, the executive is as vulnerable, minorities can organize in coalitions, and bureaucracies have more to worry about due to uncertainty of cabinet change. There are problems the other way, but this system would prevent much of the present crisis.
The constitutional form seems obsolete.

Guildofcannonballs said...

https://www.youtube.com/watch?v=oNaasFvvFlE

Simon said...

Freder Frederson said...
"So Stalin wasn't so bad after all. I always took you for an authoritarian who really has no interest in representative democracy or the Republic. You only care that people agree with you."

When have I ever made any claim to fondness for representative democracy? I have been very clear for at least a decade that this is not a democracy, it's a Republic. We are a nation governed by a Constitution and laws. That Constitution and those lawws provide that the President will now nominate a successor—to whom the Senate may or may not consent. That's the law. And the politics are that the Senate may not, no way no how, consent to anyone that this President is likely to appoint.

Now, if President Obama wants to compromise and nominate Frank Easterbrook as a short-term justice, fine. I'll be over here not holding my breath.

Freder Frederson said...

He can do whatever he frakking likes, but any GOP Senator who votes to give that nominee a vote loses their job and should be taken out back and beaten within an inch of their life.

Okay, so now Simon is advocating physical violence against those who disagree with him.

Simon, you really need to get yourself a bottle of vodka, turn off the computer, and drink until you are incoherent. You will feel better tomorrow afternoon.

Amanda said...

Our Constitution should not be thwarted, because some disagree with a President who happens to be in office at the time. President Obama will nominate and IF the Senate makes the huge error of delaying/ denying hearings, the Republlcan Party will rightfully pay the ultimate price. We may not see a Republican President for decades and the Senate will once again be a Democratic majority. So be it.

Chuck said...

garage mahal said...
...

Is there a legal impediment to Obama from putting someone on the bench, tonight?


Some of the most frightening questions ever come from our friend garage. Yes, garage, there's a little "impediment" to that. And yeah, it's a legal impediment. Thanks for asking.

cubanbob said...

If Trump wants to win the nomination he should declare tonight when asked about Scalia during the debate that he would nominate Ted Cruz to the court if he were elected president.

Freder Frederson said...

When have I ever made any claim to fondness for representative democracy? I have been very clear for at least a decade that this is not a democracy, it's a Republic.

That's right, just ignore what I wrote.

Fabi said...

Freder went from declaring that the Senate could only provide advice and consent to agreeing that it was right for the Senate to block the Bork nomination because he was too radical. Weapons-grade stupid.

Chuck said...

Amanda they don't need to deny a hearing. Obama can have his goddamned hearing. Then, 54 Republican Senators vote.

garage mahal said...

"Yes, garage, there's a little "impediment" to that. And yeah, it's a legal impediment. Thanks for asking."

Okay. Have a link to that legal document?

Freder Frederson said...

Freder went from declaring that the Senate could only provide advice and consent to agreeing that it was right for the Senate to block the Bork nomination because he was too radical. Weapons-grade stupid.

Consent is a lower standard, but it is still a standard.

Gahrie said...

Is there a legal impediment to Obama from putting someone on the bench, tonight?

Yes.

It is this little thing called the Constitution.

It was an honest mistake on your part, after all the Left and President Obama have been ignoring the Constitution for years.

Big Mike said...

I predict that candidates and their supporters in both parties will overplay their hand and get into trouble.

Barack Obama will overplay his hand because he won't realize he's overplaying it.

Hillary Clinton will overplay her hand because she's not particularly bright, has a weak cadre of advisors, and generally doesn't pay attention to the advice she does get.

Donald Trump will overplay his hand because "overplay" has been working wonders for him until now.

Jeb Bush will say all the right words, then say a couple extra words and overplay his hand.

Sanders might not overplay his hand, but I predict that he will let Hillary be front and center on the issue, expecting her to screw it up.

I predict that Ted Cruz and Marco Rubio will be circumspect. Progs being Progs, it won't matter because no matter what they say the Progs will pounce on it. But that will work out to their respective advantages.

I don't have a read on John Kasich.

pm317 said...

Liberals were trying to oust poor Ginsberg. Now Obama has a chance to appoint someone even without Ginsberg gone. Don't like the fact the that Obama got this chance.

garage mahal said...

"It was an honest mistake on your part, after all the Left and President Obama have been ignoring the Constitution for years."

Link? Since you opined.

Chuck said...

garage, have a look at the Judiciary Act of 1789. And take your freaking time about it.

Fabi said...

Quit digging, Freder.

cubanbob said...

The president has every constitutional right to nominate whoever he wants and the senate has every right to reject any nominee it wants to.

Amanda if Sanders the communist doesn't really fire up the Democrat base any nomination Obama picks to replace Scalia won't make a difference but on the Republican side it is a huge deal. Fear not, the criminal, traitor and grifter isn't going to get elected president. And as for the communist, please go for it! Nothing is more likely to guarantee a republican president and congress and the downstream elections.

Gahrie said...

Link? Since you opined.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish

http://www.archives.gov/exhibits/charters/constitution_transcript.html

Simon said...

Freder Frederson said...
"Simon, you really need to get yourself a bottle of vodka"

Way ahead of you.

Amanda said...
"President Obama will nominate and IF the Senate makes the huge error of delaying/ denying hearings, the Republlcan Party will rightfully pay the ultimate price."

No Republican Senator should be under any illusion: If they oppose Obama, they may lose their job. If they surrender, they will lose their job and risk being literally tarred and feathered. It's up to them, but I'm warming the tar. It's their call.

Chuck said...
"Amanda they don't need to deny a hearing. Obama can have his goddamned hearing. Then, 54 Republican Senators vote."

No. If McConnell brings the nomination to the floor, he's dead, at very least politically. If Grassley as much as schedules a hearing, he should be fired.

james conrad said...

Perhaps some old and widely respected, neutral-seeming judge or law professor? Do such beasts still roam Earth?

NO

Guildofcannonballs said...

Fact is the Justice was a great man that liked a great time with good people everywhere.

garage mahal said...

"garage, have a look at the Judiciary Act of 1789. And take your freaking time about it."

What's stopping Obama from making a recess appointment?

cyrus83 said...

The Senate refusing to confirm someone is not thwarting the Constitution. The Framers wouldn't have put Senate confirmation in as part of the process unless they anticipated the President would in time nominate people the legislative body didn't like. Granted, they may not have thought that the Senate and President would be so at odds that the former would refuse to consider anybody nominated by the latter, but the Court has been politicized for a number of years now.

If the Democrats wanted to ensure they could push through Obama nominees, they should not have lost the Senate and the power that goes along with it in 2014. Does anybody doubt that the Democratic Senate of 2007-08 would have denied a Bush appointment had a vacancy come open in 2008, particularly if the seat vacated was from one of the more left-leaning justices?

Ultimately, the President is constrained to appoint someone acceptable to the Senate, and if the Senate decides nobody from him is acceptable, the matter ends there until the Senate reconsiders or the people elect a new Senate and/or President. Legislative supremacy can be a pain that way. Obama has done much throughout his tenure to marginalize the Republicans in Congress and otherwise try to get around the Congress when it wouldn't give him his way. Now, when he suddenly and unexpectedly has a potential legacy appointment that could flip the Court's alignment, he finds himself needing the Senate and the Republicans who run it to give him what he wants. Forgive me if I don't feel too badly for him if the Senate opts to work around a President who has so often tried to work around it.

Gahrie said...

What's stopping Obama from making a recess appointment?

The Senate isn't in recess.

Gahrie said...

...and before you go there...the president has already lost that case once.

garage mahal said...

I read a few blurbs on conservative twitter that legally Obama could still appoint somebody. (I don't know)

Amanda said...

Find the loophole to the SC 2014 decision regarding when the Senate can be in recess. Let the Senate deny a hearing to nominate a SC Justice. Then use the recess appointment. If the Senate insists on thwarting the Consitution, the Constitution gave the Executive this option.

Guildofcannonballs said...

Mike Ludwig.

Mike Ludig.

Guildofcannonballs said...

"where Justices Antonin Scalia, David Souter, and Clarence Thomas recused themselves because of past associations with Luttig. Scalia recused himself because Luttig had clerked for him, and Justices David Souter and Clarence Thomas recused themselves because Luttig led the George H. W. Bush Administration's efforts to gain the Senate's confirmation for them."

https://en.wikipedia.org/wiki/J._Michael_Luttig

Is that real?

ron st.amant said...

To say that President Obama would be overplaying his hand by nominating someone is ludicrous. It's his Constitutional duty to do so. The GOP Senate will obstruct as long as they can, which is their Constitutional right to do. I have long believed the Supreme Court nominations are the single biggest issue in this election because the next President would likely be nominating several, and this one nomination may unfortunately carry forward because the GOP will, in Trump's words 'delay, delay, delay'. But they can't delay forever and as a Democrat I'm hoping their obstruction will cost them. I agree with you Ann, that who and how President Obama nominates will go a long way into how much on the defensive the GOP is forced to be. The GOP will claim the nominee is too liberal no matter who is nominated, but if the person in question is highly qualified, highly respected in the legal community, it makes the GOP obstruction look even more partisan that normal.

Guildofcannonballs said...

I judge the man way beyond me being able to grade him.

Guildofcannonballs said...

Ted Cruz is Reagan without the sundry 10th Amendment violations, willful abortion ignorance, and both mongoose/snake reflections never seen before, save National Geographic.

If you don't vote Cruz, then "us" "you" capiche?

This is a link toward a snake your consideration thereof fails you.

Guildofcannonballs said...

You've got to understand, the opposition is self-disarming literally and they don't even know what that means but think they do.

It's perfect.

I hope Obama gets 3 more picks by the end of the year.

chillblaine said...

"I hope Obama gets 3 more picks by the end of the year."

Wow.

cyrus83 said...

Oddly, there isn't much actual value to a recess appointment for Democrats given where we are in the cycle of both the Court's term, the election cycle, and the prior balance of the Court. A recess appointment would only be good until the new Congress is seated Jan 3, 2017. Looking at SCOTUSblog's list of cases argued this term, only 3 were decided prior to Jan 3, and it seems votes only count when the decision is made public - it's not like Obama's nominee could vote on all of this fall's cases since the vote wouldn't count in the vast majority of them, and I suspect John Roberts would arrange the calendar so that any controversial decisions would be scheduled for after such an appointee's term ends.

And as far as the current term's cases go, the only way in which a recess appointment helps decide the outcome is where the Court was expected to go 5-4 for a conservative position and the lower court decision favored the conservative position - otherwise the extra vote isn't needed since ties leave in place lower court decisions. I don't think there are too many cases that fit that description this term.

On balance, Obama and the Democrats probably come out ahead if Republicans refuse to consider a nomination and Obama leaves the vacancy in place (the moreso if the nominee isn't considered particularly polarizing). Republicans probably come out ahead if a justice is installed via recess appointment, particularly if the appointee in any way suggests even an implied threat to gun rights.

Original Mike said...

Wow, very bad news.

Who in their right mind would trust Trump to appoint a Supreme Court Justice?

The Cracker Emcee said...

Both sides are kidding themselves if they think a SC nomination hoo-ha is going to mobilize voters who otherwise would not have participated. The abortion-rights and the gun-rights folks were going to vote anyway. The great mass of voters don't know John Roberts from Diana Ross.

Ironclad said...

The most logical deal (which will not happen) would be for Ginsburg to retire and allow a conservative and liberal judge to be put onto the court - then the balance does not shift. The gain from it would be that if the next President is a Republican, the liberals get to keep her seat in their camp.

That would bring the court back to 9 for the next term and moot 2 of the seats that were expected to change in the next 4 years.

Original Mike said...

cyrus83 said ..."Obama has done much throughout his tenure to marginalize the Republicans in Congress and otherwise try to get around the Congress when it wouldn't give him his way. Now, when he suddenly and unexpectedly has a potential legacy appointment that could flip the Court's alignment, he finds himself needing the Senate and the Republicans who run it to give him what he wants. Forgive me if I don't feel too badly for him if the Senate opts to work around a President who has so often tried to work around it."

Karma's a bitch.

David said...

Scalia was a very popular teacher at Virginia Law School when I was there. He was engaging, funny, challenging, aggressively skeptical, decent and friendly. In personality he was a lunch bucket guy in a place that still had a bit of a patrician air. He was a tough grader who ran a tight class. You didn't want to go to a Scalia class unprepared. He was young of course, no older than some of us students. He made himself available and we all liked and appreciated him. There was no sense that this guy could ever be a lightening rod for the hatred and contempt he has generated. People who hated his ideas figured they might as well hate him too. How pathetic and ungenerous a response to an essentially generous man.

Original Mike said...

@Ironclad - I was thinking the same thing. One of the liberal justices can retire and then President Uniter can nominate a liberal and (real) conservative.

readering said...

Republicans have been spoiled. From May 1970, when Blackmun was confirmed, until this weekend, there has been a majority of justices on the Court appointed by Republican presidents. That's almost 46 years. Yet folks are going crazy at the idea of a Democratic majority, perhaps for a couple of years, if a Republican is elected in November and Breyer retires in a couple of years.

Theranter said...

"Blogger Original Mike said...
Wow, very bad news.

Who in their right mind would trust Trump to appoint a Supreme Court Justice?"

He mentioned Sykes tonight. She's great.

Original Mike said...

@Theranter - Fine, but he's so mercurial I don't trust him to follow through.

Theranter said...

I think he's just annoyed or fed up with not be able to get on with things and get things accomplished, I do not get the sense that he would be mercurial if/once elected. Never know, but that's just my take.

jr565 said...
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jr565 said...
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Paul said...

The next SCOTUS will be picked by the next president. If necessary the Senate will declare itself in session till AFTER Obama is GONE. They will not allow him to pick an 'interm' justice.

Yes you run the risk of a Hillary pick, but that is preferable to one by Obama.

I will say, this election just got a lot more serious (and I bet a few more SCOTUS seats might open in the next four years.

tim maguire said...

Blogger Chuck said...
tim maguire said...
The president has the right and the duty to fill the vacancy. Republicans have nothing but parlamentary maneuvering. To win, they will need the public on their side. Otherwise, it's just more Republican obstructionism. Like another government shut down.

Bullshit! You're thoroughly mistaken. The president doesn't get an "appointment," as you seem to think. ("[F]ill the vacancy," you


So...not content to merely quibble over words, you're going to quibble over words that weren't even used.

And about that. Shut down, I have two questions for you:

1) who got blamed for it?
2) Who benefitted?

All the wailing and gnashing of teeth on this thread is one of the reasons I come to Althouse. There are a lot of disgusting trends in political partisanship, and half or more of the commenters here remind me that it's not all on the left side. There's plenty of "positions before principles" and turning blind eye to dirty tricks on the right as well.

JoyD said...

I know this seems trivial, but: couldn't Obama put on a tie to talk on camera about the death of a Supreme Court Justice? I don't care if he's on a golfing vacation. Somebody hand the man a tie. What's lost is just...graciousness, respect, civility, just plain good manners.

JHapp said...

"No rest for the wicked", Scalia will be more powerful in heaven.

MayBee said...

OMG.

I am just trying to imagine George W Bush nominating a Supreme Court Justice in February of 2008 and getting it through the Democratic Senate.
It is hilarious to even imagine the Democrats doing that.

Everyone knows this cannot be done. You can try to argue it should be done because you want it done, but in your heart you know there is no SCOTUS confirmation until at least November. If Hillary or Bernie wins POTUS, Obama can have his nominee.

MayBee said...

Add the idea of it being GWB nominating a judge in Feb 2008 to fill Ginsberg's seat.

There is not a Democrat here who would have supported that.

Freder Frederson said...

I know this seems trivial, but: couldn't Obama put on a tie to talk on camera about the death of a Supreme Court Justice? I don't care if he's on a golfing vacation. Somebody hand the man a tie. What's lost is just...graciousness, respect, civility, just plain good manners.

That ship sailed long ago .

jr565 said...

Anthony Kennedy was Reagan's third choice. Anyone remember Robert Bork?

Dems had no problem rejecting him. So, why must a democratic nominee be forced through? Its the president job to nominate, but congress can sit on nomination or reject him/her outright.

Mark Caplan said...

Antonin Scalia: "For the believing Christian, death is no big deal."

So why was he so vehemently against abortion?

Saint Croix said...

I assume that it will be almost impossible for President Obama to get a nomination through the Senate. Is some compromise possible? Perhaps some old and widely respected, neutral-seeming judge or law professor? Do such beasts still roam Earth?

I think Akhil Reed Amar would be an excellent appointment to the Supreme Court. He's a textualist from the liberal side, and very, very good. He's another Hugo Black, in my opinion. Very calm, very smart, you will be amazed at how good he is. Amar actually has a jurisprudence. If Amar is the nominee, the Senate should confirm.

It may be that Obama does not want a Senate confirmation. It is entirely possible that he will nominate a woman, and another woman, and another woman. Any woman! I would not put it past the man, to play identity politics with the nomination process. That is exactly like him.

What would be mind-boggling is if Obama nominates the wrong woman, and we find out during the confirmation process that she thinks an unborn baby is a person with a right to life. Ooh, boy, would that be a shit storm!

If Obama nominates Althouse, that would be so much fun. Would it not?