November 19, 2016

Did Justice Scalia win the election?

Ted Cruz says so, but only in the weak sense:
"President-elect Trump assured the American people that if elected, he would nominate a constitutionalist in the mold of Justice Scalia. So in a very real respect, Justice Scalia was on the ballot as well. And thanks to the historic victory we saw last week, it gives me immense pleasure to say the people have spoken and Justice Scalia has won as well."
Consider whether Justice Scalia won the election in the strong sense of winning the election.

How would the election have played out if Justice Scalia had not died and left a seat — the seat that tips the Court left or right — to be filled by the new President? How many voters decided based on that factor, and of the voters within that set, did they vote more for Trump or for Hillary? If Scalia had remained alive, perhaps conservatives would have felt more complacent that the balance of the Court would remain the same, but I think that people on both sides would have thought about the Supreme Court less. Yet even with that empty seat staring us in the face, we didn't make that much out of the power to tip the Court in the direction we prefer.

So I'd say for 2 reasons Scalia did not — in the strong sense — win the election: 1. Not many votes were determined by the vacancy on the Supreme Court, and 2. Of the votes that were determined by concern about which way to tip the Court, Hillary probably got as many as Trump — perhaps a lot more.

Did Justice Scalia win the election?
 
pollcode.com free polls

Subsidiary poll to help think about the question:

Which is the more powerful political plea?
 
pollcode.com free polls

58 comments:

MaxedOutMama said...

I can only perceive Ted Cruz as something of a dork. Don't like him, don't trust him, don't see him as well-balanced.

I hope he is not appointed to the court.

sinz52 said...

Millions of Americans voted for either Hillary or Trump based entirely on the future of the Supreme Court. It really was a top issue for many.

Liberal columnists were salivating at the prospect of President Hillary creating the first liberal Supreme Court since Earl Warren.

And conservatives were, of course, wanting the exact opposite.

Triangle Man said...

Just as genetic cloning fails to produce clones with the same behaviors as the original, attempting to clone Scalia's ideas in a new appointee will also fail.

Mary Beth said...

If Scalia helped Trump win by his absence, RBG helped Hillary lose it by her comments on Trump.

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wendybar said...

I don't really care about Roe vs Wade.....I am conservative. If you want an abortion....YOU pay for it, not the taxpayers.......Keep GOVERNMENT out of it...AND....stop giving our money to Planned Parenthood. I heard liberals are donating in Mike Pences name...GOOD...that's the way they should be funded!!

Freder Frederson said...

I don't really care about Roe vs Wade.....I am conservative. If you want an abortion....YOU pay for it, not the taxpayers.......Keep GOVERNMENT out of it...AND....stop giving our money to Planned Parenthood.

The government does not pay for abortions. Saying otherwise is a lie.

Bad Lieutenant said...

I beg your pardon: kindly define this "strong sense" "weak sense" bushwah.

Curious George said...

As usual terrible poll questions. In this case twice.

Mark said...

While it is true that progressives lusted like never before at the prospect of taking the "Scalia seat" and thus seizing a lockhold on judicial power for the next 20 years, it might have been less of an issue for them.

Meanwhile, preventing the prospect of an evisceration of constitutional law and the rule of law generally -- whether there was Scalia's seat, an open seat otherwise, or no open seat -- was the number one priority for a vast number of conservatives who otherwise would have stayed home.

DrSquid said...

So Fred, the federal dollars to planned parenthood are all for mammograms and pap smears, is that it?

BrianE said...

Evangelical Christians voted 88% for Trump. The SC was the reason.

Chuck said...

I think that the poll tells us much more about Althouse the person, than Althouse the blog readership.

For Althouse, there seems to be a vast difference between the anti-Obergefell and anti-Roe v. Wade Ted Cruz, and the "pro-gay but being cagey about it" (and long-time pro-choice) Donald Trump.

And I don't think that Althouse is wrong, in that perception. But Attorney General Jeff Sessions, and an equally conservative Solicitor General, and conservative majorities in the House and Senate might have different ideas from President Trump.

AprilApple said...

You need a 3rd "miffed" option on the second set.

AprilApple said...

Or - Evil bigoted racist conservatives are going to force me to have a rape-baby.

Tregonsee said...

The SC was often given as the only valid reason to vote for Trump. I do recall at least two Never Trumpers making what I thought rather weak arguments against this. Along with about 70% of voters, I was holding my nose despite all the arguments.

Mark said...

[conservatives] might have different ideas from President Trump

Conservatives did not go into the election with illusions about Trump. Most conservatives do not fully trust Trump, they think him a question mark. But they voted for him because they know for certain that the only other alternative -- as conservatives repeatedly stated before the election if anyone had bothered to listen -- the only other alternative was Hillary and the certainty that she would destroy the Court and thus the rule of law for the next generation and more.

rhhardin said...

A random think piece says

...the basic principle endorsed by the framers, that ours is a government of laws, not men (or women).

Larry J said...

The thought of Hillary getting to fill the current and future supreme court vacancies was the number one reason why I voted for Trump.

Sydney said...

I suspect a lot of Trump voters were motivated by fears of losing second amendment rights under a liberal Supreme Court than expanding abortion rights.

Abdul Abulbul Amir said...

Interesting question. The abortion industry is quite politically powerful.

Dust Bunny Queen said...

The Supreme Court was a top issue for me. Although I was already a Trump supporter, I felt that the future of the Country was more intricately connected to the composition of the Supreme Court. Decisions made by the Court would affect us for decades, possibly generations.

The Second Amendment, protecting the right to bear arms, is a top issue as well as State's rights as well as the integrity of our voting system. Without conservative voices on the Court we would (and still may) be swamped and destroyed with ultra liberal decisions, penumbras and other happy horsehockey. It would take us generations to reverse the course that the Court would have set us on and perhaps never be able to reverse it. The Constitution would be gutted and America would cease to exist.

So, yes. The vacancy and possibility of Hillary appointing corrupt, venal, uber liberal judges to put their thumbs on the scales of justice....was horrific to me. Trump's list of potential replacements gave me hope that we can be saved.

traditionalguy said...

Scalia seemed relatively healthy. RBG was on her last legs, and is now getting closer to Hospice Life. Go figure. The next appointment after the Scalia replacement is the Big League one.

Sebastian said...

Pro-Scalia voter here. Not sure if we made the difference, but SC issue kept many GOPers on the reservation. Scalia may not have won the election but he won thanks to the election.

Steve Uhr said...

Scalia did not die and leave his seat to be filled by the new president. He died nine months ago and left his seat to be filled by the President, who happened to be Obama. The right stole the nomination and ignored the constitution when they failed to even hold hearings on Garland. So much for strict construction.

JAORE said...

I voted Trump.

He scares me. But not as much as Hillary. I figured one or both of the House or Senate would remain Republican. So, legislatively there would be at least a token resistance to her. Obama grossly over reached his executive powers but the courts often reeled him in.

But the court under President Hillary? One pick right away, a couple of others during 4 to 8 years????

The court was THE factor for me.

JAORE said...

Steve Uhr,
Strict construction? Please show me that part of the Constitution where the timeline for advise and consent is listed.

Mark said...

Obama did not and does not own judicial seats as his personal property. If the American people had any problem with the Republicans not taking any action on his nominee, they could have done something about it.

And before you say "popular vote," let's be clear that in 49 states collectively, Trump won a large majority of the popular vote. It was only in a single one-party state -- and even there in a handful of counties -- where Republicans have little incentive to bother voting, that Hillary could raise a claim to a popular majority.

madAsHell said...

I loved it when Trump announced his candidates for the Supreme Court, and truly took the choice away from Obama. Genius!!

Steve Uhr said...

JAORE- No timeline in Constitution. So I guess it would be okay with you if a democratic Senate refused to hold hearings on all of Trump's cabinet and SCOTUS choices?

D.D. Driver said...

I know a number of voters that went Trump solely because of the Supreme Court. Some of them detest Trump or think he is a giant boob. The big issue was *not* abortion. It was the Second Amendment. Hillary, after all, gave a full-throated call for the overturning of Heller.

This election was all about turnout, as the both candidates were disliked by a majority of voters. The hold-your-nose-and-vote-Hillary crowd stayed home. The hold-your-nose-and-vote-Trump crowd voted. Her Heller comments guaranteed that a huge coalition will definitely show up and vote against her.

D.D. Driver said...

Steve U.: If *filling the seat* was the important thing, President Obama *could* have picked someone he knew a majority of Republicans would love. He he would have himself nominate Diane Sykes or someone from the right, the Senate would have confirmed her. Both sides could have claimed victory.

It was not about *filling a seat* it was about filling the seat with someone of the "correct" judicial philosophy.

Obama wasn't some damsel in distress getting bullied by those mean Republicans. They were playing political football. He just got his ass kicked. End of story.

Gahrie said...

The right stole the nomination and ignored the constitution when they failed to even hold hearings on Garland.

Bullshit. There has been at least 11 other times when the Senate failed to act/ignored a Supreme Court nomination.

Steve Uhr said...

Mark -- It has nothing to do with the popular vote in 2016, a meaningless number. It has everything to do with the electoral vote in 2012.

Boxty said...

"Among the subset of that 70 percent who said the Court was the most important factor in their vote, Trump won by 15 points (56 to 41 percent). The more people cared about the Court, the more apt they were to vote for Trump."

http://www.unz.com/isteve/trump-won-on-the-issues/?utm_source=feedly&utm_medium=rss&utm_campaign=trump-won-on-the-issues

Steve Uhr said...

Gahrie -- So the proper interpretation of the Constitution depends on what the Senate has done after the Constitution was drafted? I thought we are supposed to focus on original intent, not politics.

khesanh0802 said...

From day one I said this election was about the Supreme Court first and everything else came after. Yes, I agreed with many of Trump's policy positions, but the decision swung on the Court. Am I ecstatic that his nominees are not from the Harvard/Yale group? You betcha!

Jim Gust said...

Roe v. Wade will never be overturned. For different reasons, it is too important to the left and right. It could only be circumscribed.

buwaya puti said...

Boxty is right, this is the best semi-objective data on the matter.
Subjectively, on the liberal side this was an issue limited to a subset of the intellectual elite and the scribblers. I think these make much more noise than is warranted by their public influence.
On the right it is a problem for the volk, as it is critical to the vast numbers that are concerned about the 2nd Amendment.

Gahrie said...

Gahrie -- So the proper interpretation of the Constitution depends on what the Senate has done after the Constitution was drafted?

No...Your interpretation of the Constitution is faulty.

He shall have Power, ...and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court,...

Failure to act on a nomination is simply a means of withholding consent. Surely Obama's failure to seek the advice of the Senate is at least as big a problem as the Senate's failure to consent?

amr said...

Replace that abortion question with a Gun question. Roe v Wade is a generation old, but those gun decisions are from this decade and I think even RBG has talked about overturning them.

The Supreme Court was a big thing in getting me to vote for Trump instead of throwing my vote away on Johnson.

Fritz said...

Only "yes" means yes.

amr said...

I'm suspicious of issues-importance exit polling like Boxty cites.
I think issues are often an after-the-fact rationalization of one's decision who to vote for.

Danno said...

I agree with the commenters who have said that the second amendment issue is more relevant than the abortion issue when thinking about the last election. Not all of us are abortion purists that pin our votes on this issue as some evangelicals might. In fact, the abortionists i.e. (Planned Parenthood) might be doing favors for the conservative electorate. Any way, the SCOTUS was my reason for voting Trump without reservation.

Mark said...

the abortionists i.e. (Planned Parenthood) might be doing favors for the conservative electorate

Care to explain that Danno? Is it because the abortionists might kill off babies of a certain demographic which traditionally votes Democrat? Is that what you mean?

The Cracker Emcee said...

Yes and no. Abortion and gun rights were no doubt a motivator for the very and somewhat engaged, but zillions of people voted for Trump or Hillary who don't know the Supreme Court from the Food Court.

The notion that this or that issue provided the margin of victory is always suspect, but in a nation without gun rights conservatives would never win an election. In a nation without heapin' helpin's of Free Stuff liberals would never win an election.

JAORE said...

"JAORE- No timeline in Constitution. So I guess it would be okay with you if a democratic Senate refused to hold hearings on all of Trump's cabinet and SCOTUS choices?"

I wouldn't like it, no. But it would be legal. Of course you are trying to equate apples and and anvils. A single nominee at the brink of the election versus "all" cabinet and SCOTUS choices.

Refusing to hold hearings from day one in a presidential term? Go ahead. And let the political heat (although filtered through the hooray-for-our-side media) fall where it may. Even the NYT might find that one a bit over the top.

"Elections have consequences"
- President Obama

Dust Bunny Queen said...

The President doesn't "have" to have a Cabinet. It does of course make things easier to have Cabinet officers, heads of departments officially confirmed by Congress to whom you can delegate the important tasks within each Cabinet member's department. However, the lack of confirmed Cabinet heads would not stop the government from proceeding.

So if the Democrats want to play that game and think that they are going to stop everything in its tracks, they are playing with fire. What a bunch of whiny babies.

There is no explicit definition of the term "Cabinet" in the United States Constitution, the United States Code, or the Code of Federal Regulations. The name comes from a 17th-century usage for a private room where advisors would meet, which developed into the modern sense of a council of advisors.[1]

The term "principal Officer in each of the executive Departments" is mentioned in Article II, Section 2, Clause 1, and the term "Heads of Departments" is mentioned in Article II, Section 2, Clause 2. The term "principal officers of the executive departments" is also mentioned in the Twenty-fifth Amendment, Section 4. The executive departments are listed in 5 U.S.C. § 101. Although there are occasional references to "Cabinet-level officers," which when viewed in their context do refer to these "principal officers" and "heads of departments," the terms "principal officers" and "heads of departments" are not necessarily synonymous with "Cabinet" members.

In 3 U.S.C. § 302 with regard to delegation of authority by the President, it is provided that "nothing herein shall be deemed to require express authorization in any case in which such an official would be presumed in law to have acted by authority or direction of the President." This pertains directly to the heads of the executive departments as each of their offices is created and specified by statutory law (hence the presumption) and thus gives them the authority to act for the President within their areas of responsibility without any specific delegation.

n.n said...

Elective abortions. The Pro-Choice quasi-religion denies individual dignity and intrinsic value, and evolution of human life from conception. The institutional Left's interest is taxable revenue, democratic leverage, and a ordered environment. They always offer the same solution.

Captain Drano said...

I'd say it was a draw.

For those motivated solely by the SCOTUS argument on either side, it did have an impact on voter turnout.

Pro free abortions for all and beyond viability/up to due date voters that normally would have ignored voting did not based on the hype from PP-ish org's causing hysteria.

The restrictions put forth by Clinton on Second Amendment rights brought out many otherwise apathetic voters.

But it seems for most, it was a constellation of issues (with SCOTUS high on the list) that ultimately swayed them towards one candidate or the other.

Marc Puckett said...

The principal reason I would have voted for Mr Trump, had I voted for him, was to prevent HRC from being able to appoint SC justices. He's seemed relatively well committed to William Pryor sorts of nominees. Time will tell.

Captain Drano said...

"Blogger Steve Uhr said...
Scalia did not die and leave his seat to be filled by the new president. He died nine months ago and left his seat to be filled by the President, who happened to be Obama. The right stole the nomination and ignored the constitution when they failed to even hold hearings on Garland. So much for strict construction."

LMAO. Rehired by CTR were you?

Unknown said...

Pennsylvania was won by about 60,000 votes. Lancaster county alone was +50k for Trump. The Amish saw Hobby Lobby and didn't like what it meant for their future.

Anecdotally, Clinton's infantile analysis of DC v. Heller combined with her authoritarian instincts on gun confiscation were a major reason I voted for Trump. She promised war with Russia and civil unrest at home.

protestmanager said...

The exit polls disagree with you, Ann:

http://abcnews.go.com/Politics/election-2016-national-exit-poll-results-analysis/story?id=43368675

Supreme Court

Nationally, 21 percent of voters call appointments to the U.S. Supreme Court “the most important factor” in their decision, preliminary exit polls indicate. (Though President Obama did put forth a nominee, the Supreme Court seat vacated when Justice Antonin Scalia passed away in Feburary, remains open.) These voters overwhelmingly favor Trump, 57 to 40 percent.

21% x 17% = 3.57% (call it 4%) net support for Trump

protestmanager said...

Steve Uhr said...
Scalia did not die and leave his seat to be filled by the new president. He died nine months ago and left his seat to be filled by the President, who happened to be Obama. The right stole the nomination and ignored the constitution when they failed to even hold hearings on Garland. So much for strict construction.

Oh Steve, you're so cute!

"The Senate has to hold votes on a President's nominees!" Really? Tell it to Judge Miguel Estrada. Oh wait, you can't, because when the Democrats didn't have a majority, they6 filibustered his nomination or years.

"That was Obama's seat to fill!" Tell it to VP Biden: http://dailycaller.com/2016/03/28/joe-biden-doesnt-want-senate-gop-to-follow-biden-rule/

Then Senator Obama voted to filibuster the nomination of Justice Alito. If the Democrats had the majority, they most certainly WOULD have blocked his nomination. There is no President in history MORE deserving of having his nominees filibustered than Barack Obama.

You Democrats changed the rules, repeatedly, when you thought it was in your best interest to do so. now you get to live with those same rules hurting you. It's called "precedent", and it's called "Justice".

Suck on it.

Chuck said...

I just want to point out again as I have before, that there may be a mismatch on how many SCOTUS nominations that a President Hillary Clinton might have had, and how many nominations that a President Trump might have in the next four years.

You heard much talk about how the next president could get to appoint three or more justices. A third (or more) of the entire court. And that, combined with the two younger liberals (Kagan and Sotomayor), it could (if Clinton were elected) cement a solid liberal majority for the next quarter-century.

It might have happened if Clinton had been elected, but it won't likely happen in reverse with Trump.

You see, if Clinton had been elected, she would first have filled the Scalia seat. Then, it would have been foreseeable that Ruth Bader Ginsburg would have voluntarily retired, giving Clinton a second seat to fill. After that, Stephen Breyer (approaching age 80) would have been the next to retire, giving Clinton her third selection. And, before the end of a Hillary Clinton presidency, Anthony Kennedy would turn age 85; and if his health failed during that time or say if Kennedy (the judge who made gay marriage national law) made a personal deal with Clinton on how he'd be replaced, he might also depart and provide Clinton a fourth pick for the Court.

Contrast Trump, about whom it might be presumed that Breyer, Ginsburg and Kennedy regard with loathing. They might all grimly hang on until the four years of Trump is done. And Trump might only get to replace the Scalia seat.

It is of course possible that one or more of the justices could die or become incapacitated during four years of Trump. Just as happened so unexpectedly with Scalia. Stuff happens. But the real likelihoods of what might have happened with a Clinton versus a Trump electoral win are as different as the two groups of justices themselves.

Mu guess -- I can only wish that I knew -- is that as the nine members of the United States Supreme Court voted on November 8, only two of them voted for Trump.


Bad Lieutenant said...

Oh Chuck, don't be such a pessimist. There are always plenty of pillows to go around. Tell me, why do you think RBG held on through Obama's term? Not because she didn't want to be replaced by the choice of a leftist President?

Bad Lieutenant said...

80, 83, 78 are Kennedy, Ginsberg and Better. They're smarter than you, Chuck, and will not assume that he won't get reelected. Breyer would be 86 and the others older. RBG is already obviously failing. No, I daresay Trump will get at least one more bite at the apple. Sorry to disappoint you.