The Death of Justice Scalia Puts Presidential Race in a New Perspective

[CajunBlazer]

When I wrote the blog post last July on the affect the Presidential election would have on the path forward of the Supreme Court (The Supreme Court after the Upcoming Elections – An Analysis), I had no idea that the issue would become prevalent before the general election. I believed at the time that we would be dealing with retirements and/or deaths of the Supreme Court Justices during the next President’s first term, or more certainly during his/her second term if reelected.

However the sudden death of Justice Antonin Scalia has added a new perspective to this election cycle. Of course, one would normally assume that President Obama’s nominee to replace Scalia would take office before the November elections. However, I find it almost impossible to believe that the Republican controlled Senate will confirm President Obama’s nominee if that person even if that person is not a true progressive. Already I am hearing the new Republican refrain: “It is traditional not to confirm a Supreme Court Justice during a Presidential Election. That choice should be deferred to will of the people”. Several Republican Senators were singing variations of this tune including Mitch McConnell. They obviously will do their level best to delay confirmation of any nominee until after the next President takes office. I think that it is entirely likely that the first task of the next President of the United States will be to choose Justice Scalia’s replacement.

Even if President Obama is successful in having his nominee confirmed, that is unlikely to be the end of the Supreme Court drama. Scalia, who was almost 80 when he died, was only the second oldest Justice on the Court. Ruth Bader Ginsburg will be 83 when the next President takes office and will be 91 if she remains on the court for the next eight years. Anthony Kennedy will be 80 in July of this year and Stephen Breyer will be 78 by the time the next President takes the oath of office. Ginsburg and Kennedy have had health issues in the past; in Ginsburg case they were very serious health issues. It is entirely possible that one or more of the remaining Justices will no longer be on the bench four years from now. That is even more likely to be the case in the next eight years if the President we elect in November wins a second term.

The untimely death of Anton Scalia will call attention to the role the Presidential election will have on setting the direction of the Supreme Court for the next 20 years. Surely it will reemphasize the need by both the Republican and Democratic Parties to nominate “electable” candidates. Those candidates also need to have “long coattails” because the fight for control of the Senate in the November will also take center stage in the battle to control the nation’s highest court.

Until now the fringes of both parties have been dominating the nomination cycles with their anger and disenchantment. .......

Rest of article here: The Death of Justice Scalia Puts Presidential Race in a New Perspective

[Cha]

1. Thank you for this, Cajun. So if the repub Senate doesn't confirm President Obama's

Last edited Sun Feb 14, 2016, 08:44 PM - Edit history (1)

nominee.. there won't be any decisions from our Supreme Court until there is a SCOTUS confirmed?

We'll see what happens.. I know President Obama will chose whomever he thinks is best and the gop can show obstruction all they want just as they have been for the last 7 years and counting.

[CajunBlazer]

4. That's not my understanding Cha......

It appears that the court will continue to decide cases as usual, but for now with only eight justices, until Scalia's replacement is confirmed. The following article confirms this:

Washington (CNN)This Supreme Court term was already set to be a blockbuster and consequential. Justices are considering a major challenge to public sector unions, a race-conscious admissions plan at the University of Texas, the first big abortion case since 2007, challenges to voting rights, the Affordable Care Act's contraceptive mandate and a challenge to President Barack Obama's immigration actions.

Although in some of the cases, the late Justice Antonin Scalia probably indicated to his colleagues in conference which way he was going to vote, those preliminary votes aren't binding and are now void.

Scalia's sudden death over the weekend at a Texas desert resort means the court is facing a new challenge: the loss of its main conservative voice.

"The entire tenor of this term has now changed," said Stephen Vladeck a CNN contributor and a law professor at American University Washington College of Law. "The court can try to go ahead, but on cases where they are split 4-4 , their only options are to leave the lower court decision intact or to hold the case over until Justice Scalia's replacement is confirmed."

Rest of article here: What happens to Supreme Court cases this year?

[Cha]

6. Right.. I should have worded it better.. If there's a tie.. it will go to the lower court

Last edited Mon Feb 15, 2016, 02:30 AM - Edit history (1)

Sunny Hundal ?@sunny_hundal
In death, Justice Scalia saves a planet http://nymag.com/daily/intelligencer/2016/02/how-scalias-death-will-change-everything.html …
2:38 PM - 13 Feb 2016 1,185 1,185 Retweets
1,085 1,085 likes

http://www.democraticunderground.com/110747119

Thank you!

[CajunBlazer]

13. Yep, exactly....

On a 4-4 vote by the Supreme Court, the decision of the Appellate Court ruling would be allow to stand, but the Supreme Court would not be setting a precedent that other courts must follow. So it will depend on the case and what the Appellate Court which heard the case ruled.

Sometimes, like the climate change case, the progressive side would prevail. However, in others, like in the case of Texas' very tough anti-abortion law which was upheld by the lower courts, conservative opinions would be allow to stand with a 4-4 Supreme Court vote.

However, since a 4-4 Supreme Court vote on the Texas case wouldn't set a precedent, it would only apply for the case heard by the Appellate Court in the 5th Circuit which includes Texas. An identical anti-abortion law in say Arkansas might be struck down totally or in part by the Appellate Court in the 8th Circuit. So at least theoretically Appellate Courts in each of the 11 Circuits could issue completely different rulings in very similar cases and all of those cases would stand until the Supreme Court issues a definitive ruling on the matter.

When there are dissimilar rulings on the same issue of law in the lower courts, the Supreme Court almost always chooses to hear one of the case in order to settle the matter. but a 4 to 4 decision in the Supreme Court wouldn't do that - it would only settle that particular case. So in such situations, the highest court would most likely "kick the can down the road", waiting until a 9th Justice takes his/her place on the Court before taking up the issue.

There is usually consensus among the majority of Supreme Court Justices on most cases they hear so even with eight Justices, those cases will be decided with finality. It the highly ideological cases which have the most chance of being stalemated, but there are at least five major cases of that variety already on the docket for the upcoming session.

Until that ninth Supreme Court Justice takes his/her place on the highest bench and the Supreme Court is no longer powerless in deciding the most important case in the country, it is going to be a very interesting year.

[Cha]

14. Wow, you sure know a lot about it.. study much? And, yes very interesting!

Mahalo, Cajun~

[CajunBlazer]

22. Well I am a bit of a politics wonk, and when you write a blog...

...as I do which is usually about political matters, I need to keep up. Besides, Google makes research so easy compared to the days when I had to go through microfiche files in a library to get references I could use during high school debate tournaments.

[Maru Kitteh]

12. Why is RBG just hanging out, why not retire

Under Obama, while she is assured of being replaced by Dem president? I don't get it.

[BlueCaliDem]

17. For the same reason President Obama won't get his nominee to replace Scalia now:

Republicans control the Senate.

If RBG wanted to retire, she should have done that in the first two years when President Obama had a majority in the Senate since McChin had all but vowed to obstruct him in every which way possible.

[Maru Kitteh]

20. Those seem like very long dice to throw

So basically what I''m picking up here is, RBG wants to be replaced by a philosophical and ideological equal. After the senate was lost, the best we can hope for are moderates, and so she resigned to wait.

Again. I guess to me, those seem like they were very long dice to throw. How remarkable that it seems her gamble may yet pay off. I'm not sure I'd have had the guts for that.

[CajunBlazer]

21. All things being equal, the Democrats are in an excellent position to retake the Senate

Of course the big unknown is whether they will be able to ride the coattails of a Democratic victory in the Presidential election. That, of course, in turn depends on whether a relatively moderate Democrat wins the party's nomination.

I guess that Ginsberg likes the odds that both the White House and the Senate are likely to be controlled by Democrats. And given that she has already beaten back colon cancer (15 years ago) and deadly pancreatic cancer (5 years ago), she figures she can last at least another year or two.

Not such a long shot after all.

That, plus the fact that she obviously loves her job - why else would she still want to do it at 83.

[Thinkingabout]

2. I have been reading about some great possibilities for a replacement

For Scalia and of course the rectum spasms experienced by Republicans is causing their mouths to rely on the spasms doing the talking instead of using their mouth which is closer to their brains. Attempting to wait out the election and with the great possibility of the Senate going back on the Democratic side it may be a gamble not worth their effort.

[mgmaggiemg]

3. agree ;)

if they obstruct ...more dems will come out to vote...it's a win win for the dems...

[CajunBlazer]

5. If we get the right Democratic candidate (n/t)

[UtahLib]

7. So true. nt

[Tarheel_Dem]

8. Well, here's an opportunity for one sitting Senator, running for the "Democratic" nomination to...

show us how he wins friends, and influences his Senate colleagues. It would be testament to his ability to do what he says Obama & Hillary can't do.

[CajunBlazer]

9. I'm not going to hold my breath

[fleabiscuit]

10. 10-4 that. eom

[Tarheel_Dem]

11. Well, I won't hold mine either since he tends to work against the president as much as the Repukes.

[Cha]

15. That's right.. let's see that "revolution" in action.

Tarheel

[Tarheel_Dem]

19. Now that would be "revolutionary".

[BlueCaliDem]

16. Let us not forget that Republicans must defend 24 Senate seats, of which 18 are highly

likely to go Democratic. And then let us not forget that there is still about 2 1/2 weeks between when the new Senate begins in January 2017 and January 20th when the new president will take office. So if the Republicans want to stall in the hope to get a Republican president, they can play that game up until the new (and I'll argue, Democratically controlled) Senate begins.

If President Obama plays his cards correctly, and he puts forward and fights for his choice for a new justice now, his nominee will get a quick approval by the time he leaves office and then we've successfully neutered the Roberts Court's RW-bent.

[pandr32]

18. Already, Republicans are trying to convince people of a lie

...and of course are in lock step with each other. A presidential election year does not shelve nominations--the President still has most of a whole year to actually do his job. Let's hope we can shame some Republicans into doing theirs.

[gemlake]

23. Scouts blog predicts Loretta Lynch

She would be a good choice for Hillary.

http://www.scotusblog.com/2016/02/how-the-politics-of-the-next-nomination-will-pay-out/