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Replacing Justice Scalia

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Let me admit from the getgo that my title is misleading.  There will be no replacing Justice Scalia.  His intellect was a once-in-a-lifetime thing, as was his command of the written word.

A smaller intellect and an inferior writer will at some point sit in his seat, yes.  A discussion of this has already begun, with a major assist from Kent, here.

Justice Scalia was a friend of this family, so I am not entirely at ease discussing the replacement process at this point. Nonetheless, I'll say a little something.  I'll start with the absurd political pretense the Left has already got going.
Let's be clear about what's actually going on.  The question is posed in terms of process, but is actually about substance:  Will the Court remain precariously centrist (with a 4-1-4 makeup), or will Obama push it decisively to the left (with a 5-1-3 makeup)?

That is the real subject.  Anyone who tells you different is lying, period.

The pretend subject is whether Obama's nominee will or will not get the much-fabled "up-or-down vote" before the country selects a new President.  This is said to be the Senate's rightful obligation.

Someone should have told that to a prominent Illinois Senator when he supported denying an up-or-down vote to then-appellate judge Sam Alito.  The story is here. You probably won't have seen it recently, since it, like the Wendell Callahan murder spree-cum-sentencing reform, is being deep-sixed by the mainstream media.  But, yes, that was Senator Barack Obama.  And then-Judge Alito had won confirmation to the Third Circuit with a unanimous vote, if a point be made of it.

Another prominent Democratic Senator, and a bright one, likewise wanted to block all President Bush's nominees when Bush had more time remaining in his term than Obama does now.  As reported here:

When George W. Bush was still president, [Sen. Chuck] Schumer [the next Democratic leader in the Senate] advocated almost the exact same approach McConnell is planning to pursue [i.e., no up-or-down vote]. During a speech at a convention of the American Constitution Society in July 2007, Schumer said if any new Supreme Court vacancies opened up, Democrats should not allow Bush the chance to fill it "except in extraordinary circumstances."

"We should reverse the presumption of confirmation," Schumer said, according to Politico. "The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito." During the same speech, Schumer lamented that he hadn't managed to block Bush's prior Supreme Court nominations.

Notably, when he made his remarks in 2007, Bush had about seven more months remaining in his presidential term than Obama has remaining in his.

Yes, well, so much for that.

As Kent has suggested, replacing Justice Scalia is about the direction of the law for perhaps the next 30 years.  It is about whether the Constitution reigns or whether the policy preferences of judges reign.  

Obama is going to try to tempt Republicans with either a politically clever nominee (e.g., Loretta Lynch) or a stealth nominee who got a great deal (or unanimous) Republican support for a much less important job, but would be a train-wreck-waiting-to-happen on the Supreme Court (e.g., long time criminal defense lawyer, more recently Judge, Jane Kelly).

Republicans shouldn't be fooled.  Nor should they be bullied by Obama and the press.

The President said, and rightly so, that elections have consequences.  When he and the Democrats won the 2012 election, the consequence was that Mr. Obama secured the right to send to the Senate whomever he selects as a nominee for the Court. When Mitch McConnell and the Republicans won the 2014 election, and with it control of the Senate, that too has consequences. The consequence was that the Senate may, as it sees fit, consent or decline to consent to Mr. Obama's nominee.  

A declination may properly take the form of simply not bringing it to the floor.  As Justice Scalia would be the first to observe, the Constitution has nothing to say about the particular method the Senate may employ.





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