President_Ronald_Reagan_and_Judge_Antonin_Scalia_confer_in_the_Oval_Office,_July_7,_1986Not very many people will ever get to be as consequential, politically or legally, as Associate Justice Antonin Scalia.  There are diverse opinions on his opinions, as there ought to be.  Yet for all of that his vote as one of the nine Justices on the Supreme Court mattered.  His will bore weight on various causes.

Justice Scalia was, in many respects, a sort of bulwark against unsound and/or unconstitutional policy reeking damage to our country.  That is one of many respects in which he will be missed.  So rather than wait for the body to be cold, President Obama in front of Justice Scalia’s nine children and many grandchildren, talked about his ability and his “duty” to replace him.   I sense that taking the whole of his eight years as President into account it might not that be difficult to be more classy.  That’s not partisanship.

What is partisanship is Senator Mitch McConnell speaking out to the effect that the US Senate under his leadership will not let the President appoint a new Justice until we have a new President.   Former Senate Majority Leader Harry Reid said that the best course of action is for swiftly and mindlessly approving whichever selection the President makes, even and especially if that choice radically shifts the ideological and philosophical balance of the highest court in the land.  The day after that Senator Cruz promised to launch a filibuster to stop the President, regardless of others’ efforts and coordinations, because the promise of a filibuster is what would glorify himself and that helps a Presidential candidate in a primary.

I have no doubt that if the Republicans stop this appointment it will not be due to showmanship of a single United States jr Senator from the state of Texas.

Now many leftists insist that the (conveniently Democrat) President has a right to have his selection for the Supreme Court just become a Justice in the Supreme Court.  Some even call it a right (which it is not).  There is no Constitutional requirement for the Senate to approve any given appointee.  In point of fact there is no Constitutional requirement for there to be nine Justices on the United States Supreme Court, let alone any specific number. Given the expectation that the Republicans will simply accede that the President will select the next Justice, many angst-beholden skittish Republicans and ideologues posing as conservatives have quickly declared the end of the world.  Yet the longest SCOTUS vacancy in American history lasted for 27 months.  The Senate could simply let it sit. The Republicans can let the matter sit, or use any excuse or justification to grant the power to the next United States President, even if that be Hillary Clinton.  They hope not of course.

We could assume it’s all a stall tactic hoping for a Republican to win and therefore have the opportunity to replace a conservative Justice with a conservative Justice of similar views, if having similar depths of wisdom and intelligence is too much to ask for.  The fact is that it’s not exactly an unheard of notion to disallow a President in his final year to have an appointment to the Supreme Court but it’s rare enough to not automatically let the POTUS have his way.  Barack Obama has no real entitlement.

The real matter in that end is specifically how the Senate chooses to advise the President regarding the appointment or what mechanism they will choose to delay the final selection.  Whatever they choose may actually affect the Presidential election this year.

more later….

I even have charts.  And an anecdote about court-packing and statutes.


Hopefully I’ll have enough presence of mind to continue with the entry “Scalia versus Ginsburg” although the contents, I am sure, will be highly predictable by now.

This should be obvious that I started writing this Saturday evening before the debates and took a break, finishing it after Senator Cruz made his performance on the Sunday morning shows the morning after.


This is retroactively part of my series on the Supreme Court.