So there I was, in Gainesville for Swamp Con for the day, and then driving out to the cineplex to see Deadpool (my comic-con nemesis has a new movie out) in one of the places where I went as a college student (Go GATORS), only to find all the afternoon shows until 8 pm were SOLD OUT, and there was no way I was gonna hang around that late to see it, so I go to a place for dinner and there's a TGIFriday's restaurant around the corner on Archer Rd and so I go in and sit down and get my tablet going while I wait for dinner and I get on my Twitter and I see breaking news right then and there that Supreme Court Justice Antonin Scalia had just died while on weekend vacation in Texas.
Lemme just go NSFW at the moment - this clip from Animal House is pretty much the first thing that came to mind (the S-Word gets dropped about three times):
This is earth-shattering type of news, folks, major huge Brobdingnagian DEFCON 1 type of news. It was the kind of news where EVERYBODY on Twitter for the first ten minutes were "Is this real? Is this an Onion skit or something? No, seriously, he's dead?!" Because it's the kind of news that twists the entire universe into a different direction than we thought it was going.
Once we get over the fact a major political figure and prominent source of jurisprudence has passed on, we need to step back and take a look at the political landscape right now.
There's a Democrat in the White House name of Barack Obama, who's been the focal point of a lot of conservative anger and outrage simply for being who he is: a Black American with Progressive political philosophy, and someone who is still relatively popular (hovering between 45 to 50 percent favorability) with most of the American public.
The Congress is currently controlled by Republicans, who have since Day One of Obama's administration conducted an open campaign of obstruction to prevent Obama from any lasting success so that his historical legacy will be one of failure.
The Supreme Court had nine sitting Justices, with four Center-Left members and four Center-Right (if not full Right Wing) members with one mostly Center (but still erred to the Right). It was basically a Court that was counted on being 5 to 4 for Republican conservatives if push ever came to shove.
That is no longer the case. With Scalia's death, the Supreme Court now has a vacancy where a Center-Left President can nominate a Center-Left if not outright Left Liberal, a replacement Justice that would take a full Right Conservative seat and flip it - and the Court's direction - for the next 20 years.
It won't be enough that the Republicans have just lost one of their most vocal defenders of their conservative judicial philosophy: they are facing the real possibility of losing control of a Supreme Court that's sided with them since Renquist's Chief Justice tenure (late 1980s). They're already coping with the loss of one of the more vocal Associate Justices in Court history with a long record of influential legal decisions that - for good and for ill - redefined our laws for the last 25 years.
So don't be at all surprised if the Far Right is throwing an epic conniption tonight and for the rest of the month/year.
The Republican-controlled Senate has already given statements from various leaders on the topic, which all boil down to what Majority Leader Mitch McConnell says:
"The American people should have a voice in the selection of their next Supreme Court Justice," the conservative leader said in a statement following the news of Scalia's death. "Therefore, this vacancy should not be filled until we have a new president."
He's essentially arguing that President Obama no longer has any political authority to fill a Supreme Court vacancy. Even though - by law - Obama is still President of the United States until January 2017 when his successor gets sworn in.
Dear Mitch McConnell, let this amateur historian of the American Constitution explain a little thing: The American people ALREADY HAVE A VOICE in the selection of the next SCOTUS Justice. THEY VOTED BARACK OBAMA TO DO THE JOB BACK IN 2008 AND AGAIN IN 2012 TO DO THIS VERY THING. Nothing in the Constitution says the President should be prevented from doing his job the last year of his tenure. There. Done. Explained to you, you obstructionist bastard.
This excuse is what the Republicans are going by because this is an election year, and because they are hoping that a Republican wins the Presidency (and in turn, the Republicans retain control of the Senate because in that type of election it means most voters weren't favoring Democrats). This is what Senators Ted Cruz and Marco Rubio are clearly arguing for.
Never mind the odds currently favor the Democratic nominee winning in November (as long as the 2012 demographics and turnouts repeat themselves). They just simply want to ruin Obama's chance of an incredible legacy of putting THREE Left-Center Justices on the Court and turning it Progressive for the next decade or more. As an example, Reagan's biggest legacy has been the number of Justices - three, plus promoting conservative Renquist to the Chief Justice seat - he put on the bench (Scalia was one of them). A SCOTUS Justice can argue and defend a President's ideological bent for decades due to it being a lifetime appointment.
Ergo, the power to nominate a judge is pretty big. For the highest Court in the land responsible for the Judicial Review of the Constitution itself, it's a pretty f-cking big deal.
This is why the Republicans are probably thinking/hoping that this can be an issue to drive up voter turnout for them: Dear God, fellow Republicans! Those damned socialist hippie Democrats are going to RUIN forever YOUR Supreme Court!
Never mind that argument is a two-edged sword: The Democrats can make the same argument about how vital voter turnout for the Presidency is to GAIN control of the Supreme Court... along with control of the Senate, especially if this Republican Senate does NOTHING to approve a nominee from Obama.
Remember this: One-third of the Senate is up for vote, and there are 24 Republican seats up for vote compared to 10 Democrat. The Republicans have more at stake, and some of those seats are in solid Blue (Dem) or Purple (Toss-Up) states that can go full Democrat if they blatantly obstruct a President who is 30 percent more popular than they are. Even "Leans Republican" states may come into play if they act too partisan on something Moderate and Centrist voters think should have a bipartisan resolution.
In a sane world, the Republican Senate will make a show of brow-beating whomever Obama nominates, and if Obama does go with someone full-out Liberal that candidate is going to get "Borked" out of contention. Let's be fair: when the Democratic Senate did this to Robert Bork back in the day, they had the legal power to block him but did so in such a partisan way it gave Republicans fuel for hatred for decades afterward. We're likely going to watch the sequel "Bork II: The Quickening" in the next few months.
However, repeated Borkings of Obama's nominees are gonna get old real fast. The Republican Senators in Blue / Purple states may well play this out until their own Primaries (In August I believe) are done and they've survived any Further Right challenges, at which point they'll negotiate with Obama over a clear Moderate judicial nominee that will pass with one vote (likely a Biden tie-breaker fulfilling one-third of his Constitutional duty as Vice President). That way, they'll survive the General Election this November when their Democratic challengers would shred them in public for failing to serve their Progressive-leaning states.
That - again - would be in a sane world.
The Republicans do not live in a sane world.
We are likely going to witness one of the greatest acts of political warfare between the White House and Congress since the days of Woodrow Wilson (over the fight regarding the League of Nations), and maybe the greatest Constitutional crisis since Watergate.
The Republicans both in Congress and on the campaign trail are going to hit Obama with every insult and accusation they've got multiplied by a hundred. They are going to vilify and delegitimize him in ways they haven't done yet because before now they would have crossed the wrong line. With their sanctimonious hold on the Supreme Court now at stake - that one thing their party controlled that could stop the coming national shift to the Far Left that basic demographics is telling us is going to happen - that line will no longer exist. That constant fear I have of the GOP Congress going into Impeach mode just for the hell of it? That's back up to Likely Odds right now.
We're about to see the political equivalent of a scorched earth campaign that is going to leave few survivors.
Look. We should have known something like this was going to happen. Time flies, people age, Justices leave their lifetime appointments either in retirement or in death. A lot had been made before now that three of our Justices - Scalia, Ginsburg, and Kennedy - were over 79 years old (well past the point for mandatory retirement for everyone else) and also over the average lifespan of Americans (meaning they are/were facing what Scalia just suffered) with a fourth - Breyer - at 77. The likelihood of the next President after 2017 replacing all of them was great: well, now it may be three of them, but that's still a major impact on our judicial system dictating the political and philosophical bent of our Constitutional reviewers for 20-plus years (some Presidents never got to nominate one, very few got to nominate more than two).
What was going to be a massive political battle in the future is right here right now. The Republicans are going to insist on a direct copy of Scalia filling that seat, actually someone far worse: someone absolutist an anti-abortionist, absolutist against unions, absolutist on states rights, absolutist on guns, absolutist on God, absolutist against civil rights and voting rights. They won't even care if their preferred choice is an actual legal scholar at Scalia's level: all they want is the partisan bent.
There is no way Obama is going to acquiesce to such demands.
We're going to get a war. This is not going to end well.