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Scalia, The Supreme Court, And The Future – OpEd


For those of us who’ve lived long enough to endure decades of a majority GOP Supreme Court, the death of Antonin Scalia is a monumental event.  It is a watershed not just for Republicans who desperately wish to hang on to that majority and protect the role the Court has played in frustrating important planks in the liberal agenda; but also for Democrats who’ve chafed for what seems like eons at the rubber-stamp the Court has issued to the right-wing political agenda.  Remember the outrage of Bush v. Gore, anyone?  How long have Democrats waited to avenge that bit of judicial jiggery-pokery, to quote the late Justice Scalia himself.

Scalia’s death has taken a presidential race that was the height of silly season and suddenly turned it very sober, very fast.  If the next president is a Democrat (perhaps even serving eight years in office) and nominates the next two or three justices, it may guarantee a liberal majority on the court for a decade or more into the future.

Think of the issues that the Court either has ruled on in the past or that it may/will rule on in future: abortion, immigration, health reform, campaign financing, environmental regulation, gun rights, employment rights, voting rights, human rights, Guantanamo, NSA spying, targeted killing.  In many of these cases, the Court over the past few decades has ruled against a liberal agenda.  If a Democratic president names Scalia’s replacement, much of that opposition may either evaporate entirely, or dissipate significantly.

Of course, given the Republican majority in Congress and the nature of this president, any nominee put forward will have to be a centrist, perhaps even a moderate Republican in the mode of Anthony Kennedy.  But given how tenuous the logjam Obama faces with this Congress, replacing Scalia with even a moderate would be a vast improvement.

The Republicans are so distraught that Mitch McConnell even pre-empted the President’s own statement on the Justice’s death.  He laid down the gauntlet and said no-way, no-how would Obama get to nominate a justice.  Given how obstructionist the Republicans have been, I wouldn’t have expected anything different.  But this gives Obama a huge political opening.  He can nominate a moderate to whose candidacy the Republicans should at least offer a hearing, while at the same time beating them over the head with their refusal to do their constitutional duty.

McConnell’s lame argument is now that the American people know of the Court opening, they should have an opportunity to vote for the presidential candidate of the Party they wish to replace Scalia.  But that’s not how the Constitution works.  In fact, the last President who filled a Supreme Court seat in his final year in office was Ronald Reagan in 1988.  So indeed, even lame duck president’s have seated new justices.

There is so little going for the current crop of GOP candidates, that the Party’s refusal to hold hearings on a new justice in Obama’s term will make things even worse for them.  For Democrats, this political development is a golden opportunity if it’s played correctly (and Obama has shown himself a master at outmaneuvering his Congressional opponents).

However, there are some landmines.  Michael Bloomberg waits in the wings.  He will surely join the race if Bernie Sanders wins the Democratic nomination and Trump wins the Republican, seeing himself as the only moderate in the race.  If Clinton wins, I see much less reason for him to join.  With a Sanders-Trump-Bloomberg race, depending on the sort of race Sanders and Bloomberg run, the latter could be a formidable opponent.  If the former New York mayor runs an energetic, well-articulated campaign and Bernie doesn’t succeed in expanding his current liberal-left base, either Bloomberg could win or Trump could win (if the moderate vote is split between Bloomberg and Sanders).

That empty Supreme Court seat (if the GOP succeeds in stopping a nomination from proceeding) could add gravitas to the Bloomberg campaign.

This article was published by Tikun Olam.

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Richard Silverstein

Richard Silverstein is an author, journalist and blogger, with articles appearing in Haaretz, the Jewish Forward, Los Angeles Times, the Guardian’s Comment Is Free, Al Jazeera English, and Alternet. His work has also been in the Seattle Times, American Conservative Magazine, Beliefnet and Tikkun Magazine, where he is on the advisory board. Check out Silverstein's blog at Tikun Olam, one of the earliest liberal Jewish blogs, which he has maintained since February, 2003.

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