# This election has just changed, Justice Scalia has died **URL:** \ **Category:** Politics & Elections\ **Created:** [February 13, 2016, 10:12pm UTC](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052 "2016-02-13T22:12:00Z")\ **Posts on this page:** 20\ **Page:** 11
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [February 15, 2016, 1:30pm UTC](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052/201 "2016-02-15T13:30:26Z")
> [@adaher](#): > > Scalia wasn’t an activist, he had an actual judicial philosophy which was so compelling that it’s now accepted doctrine among even many liberal jurists. > > An activist judge is one who decides where they want to come out and work backwards from there to justify the decision. To Scalia, the process mattered. Let me hand the mic to [Scott Lemieux](http://www.theguardian.com/commentisfree/2016/feb/14/antonin-scalia-supreme-court-legacy-opinions-partisan-america): > [@](#): > > Scalia had a way of ignoring his self-described legal principles if they conflicted with cherished policy goals. To take one particularly critical example, the joint dissent to the 2012 US supreme court opinion largely upholding the Affordable Care Act co-authored by Scalia was so flagrantly inconsistent with Scalia’s previous jurisprudence that Justice Ruth Bader Ginsburg was able to quote his previous opinions at length in [her concurrence](http://www.law.cornell.edu/supremecourt/text/11-393#writing-11-393_CONCUR_4). > [@adaher](#): > > To William Brennan, the outcome was what mattered. Do you have any substantiation whatsoever for that? ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [February 15, 2016, 2:32pm UTC](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052/202 "2016-02-15T14:32:47Z")
> [@Derleth](#): > > My point is, Birtherism is enough. > … > It’s a stupid, sordid, tail-eating little worldview which is rather cynically run as a profit-making enterprise by the right-wing media outlets, and which has now produced a Republican base which gives nontrivial support to Donald Trump and Ted Cruz and which cannot even countenance anyone as pragmatic as Jeb Bush, let alone Kasich, and which would burn Nixon alive for being a Socialist, which is ironic because Nixon set the whole thing in motion. This. And “Usurper” is just name-calling. It really doesn’t get any deeper than that. By denying the subject any name except a false name, you continuously reinforce the apparent “truth” of what the epithet says. It’s hard to call someone the usurper for 8 years and not have come to believe it completely. As with so much else of magical thinking, the name given to something gives it actual attributes. It’s more than simply an ID tag. If you call it an X, it turns into an X. Good thing there’s only about 125 million of these people in the US. If there were any more we’d have a real problem :eek: :smack: ---
**Author:** ![wonky](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wonky/32/393_2.png) [@wonky](https://boards.straightdope.com/u/wonky)\ **Post date:** [February 15, 2016, 3:29pm UTC](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052/203 "2016-02-15T15:29:48Z")
Blocking Obama’s nominees is a dangerous strategy for the GOP, I think. They risk being primaried if they vote for a nominee, and the primary winners would likely be less electable, so that’s a risk of losing the senate. But they increase the risk of losing the senate AND the presidency if they don’t. It’s a real pickle. ---
**Author:** ![TheSeaOtter](https://avatars.discourse-cdn.com/v4/letter/t/ed655f/32.png) [@TheSeaOtter](https://boards.straightdope.com/u/TheSeaOtter)\ **Post date:** [February 15, 2016, 3:31pm UTC](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052/204 "2016-02-15T15:31:58Z")
> [@adaher](#): > > Scalia wasn’t an activist, he had an actual judicial philosophy which was so compelling that it’s now accepted doctrine among even many liberal jurists. > > An activist judge is one who decides where they want to come out and work backwards from there to justify the decision. To Scalia, the process mattered. To William Brennan, the outcome was what mattered. If that’s your definition of an ‘activist judge’, no one was more of one than Scalia. What Scalia had was not a philosophy, but a rationalization framework. “Deciding where they want to come out” is **exactly** what he did. He was, for all his faults, a very, very smart man. Which made it easy (most of the time) to claim that he was simply following his philosophy of ‘the plain meaning’ of the law, and yet to always come out on the side his ideology demanded. ---
**Author:** ![Dinsdale](https://avatars.discourse-cdn.com/v4/letter/d/97f17d/32.png) [@Dinsdale](https://boards.straightdope.com/u/Dinsdale)\ **Post date:** [February 15, 2016, 3:41pm UTC](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052/205 "2016-02-15T15:41:10Z")
> [@SlackerInc](#): > > He wasn’t technically nominated in an election year AFAIK. What is “an election year”? Kennedy was nominated in November - less than a year before the next election. Or is the the calendar year in which an election is held (which would make it an election 10+ months?" Or is it the final year before inauguration? No, I’m not pushing any interpretation. The entire premise for inaction is ridiculous. I just offer this to suggest even the terms used are ridiculous. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [February 15, 2016, 3:46pm UTC](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052/206 "2016-02-15T15:46:18Z")
> [@SlackerInc](#): > > He wasn’t technically nominated in an election year AFAIK. How many supreme court confirmations have been delayed until the next administration? ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [February 15, 2016, 4:01pm UTC](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052/207 "2016-02-15T16:01:24Z")
[Amanda Marcotte writes](http://www.salon.com/2016/02/15/the_republican_supreme_court_tantrum_is_a_gift_to_democrats_especially_to_hillary_clinton/) that this situation is a boon for Democrats, but especially for Clinton. > [@](#): > > The next few weeks, possibly months (possibly 11 months!) are going to suck for whatever sacrificial lamb (or lambs) Obama throws up for the Republicans to reject in an impotent attempt to register their continuing anger that he just keeps sitting in the White House like the duly elected President he is. But for the rest of the Democrats, this is going to be a political boon. > > This goes double for Hillary Clinton, who will be able to use the ongoing fight over the Supreme Court to push her argument that her brand of liberal politics is the best fit for our current political climate, better both than the idealism offered by Bernie Sanders and than the politics of obstruction and resentment that define all her Republican opponents. > > It says a lot about our current political situation that the best outcome for the Democrats is almost surely what the Republicans are threatening to do, which is to stonewall anyone Obama nominates, just because he’s Obama and they have a superstitious belief that everything he touches is unclean. While it’s going to be a policy disaster to have a court that is set up to tie so many important decisions, having the Republicans loudly proclaim that they prioritize impotent insults aimed at the President over actual governance is a political boon of the sort that you can’t buy even with Citizens United money. Every day this drags out, the news will be a glorious reminder to the voters that the Republicans are such babies that they shouldn’t be trusted to run a small town McDonald’s franchise, much less be given so much power in the U.S. government. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [February 15, 2016, 4:18pm UTC](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052/208 "2016-02-15T16:18:59Z")
> [@adaher](#): > > Scalia wasn’t an activist, he had an actual judicial philosophy which was so compelling that it’s now accepted doctrine among even many liberal jurists. Legislative intent is firmly accepted. Originalism is treated as insanity. The “Dead Constitution” is a horror confined to the right on a par with gays as the devil’s spawn. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [February 15, 2016, 4:28pm UTC](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052/209 "2016-02-15T16:28:56Z")
> [@Frank](#): > > He was on a hunting trip. According to CNN, he didn’t show up for breakfast and the other hunters left without him. What is it with Republicans and hunting? A Vice-President shoots someone, and this group is with a Supreme Court justice who said when he went to bed that he wasn’t feeling well and they don’t check on him? My first thought when I heard that he had died on a hunting trip was “If he died on a hunting trip, then the demands of story structure requires that he was shot in the face by Dick Cheney.” ---
**Author:** ![Sherrerd](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sherrerd/32/8_2.png) [@Sherrerd](https://boards.straightdope.com/u/Sherrerd)\ **Post date:** [February 15, 2016, 9:19pm UTC](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052/210 "2016-02-15T21:19:00Z")
> [@Dinsdale](#): > > … The entire premise for inaction is ridiculous. I just offer this to suggest even the terms used are ridiculous. Note how quick the GOP was to re-define ‘lame duck President’ as, apparently, ‘any President during the last quarter of his elected term.’ Somehow we all missed that clause in the Constitution that says Presidents are elected to three-year terms (with the fourth year to consist of nothing but ribbon-cuttings and other ceremonial functions). We might have guessed that the Republican play-book contains some very Orwellian re-definitions, but this incident surely confirms it. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [February 16, 2016, 12:38pm UTC](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052/211 "2016-02-16T12:38:20Z")
Going back to the thread title, I think the _election_ has probably changed a good bit, but the _nomination_ contests probably haven’t. On the GOP side, they all, of course, agree that the Senate shouldn’t even consider any Obama nominee, and Scalia’s replacement should be as ideologically identical to Scalia as humanly possible. So it’s clearly a wash on that side. And on the Dem side, even taking Marcotte’s words into consideration, this issue may help highlight the necessity of having a President who knows in her bones what sort of war the GOP is fighting, but I don’t think it’ll make a crucial difference on the Dem side. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [February 16, 2016, 12:40pm UTC](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052/212 "2016-02-16T12:40:52Z")
> [@RTFirefly](#): > > Going back to the thread title, I think the _election_ has probably changed a good bit, but the _nomination_ contests probably haven’t. > > On the GOP side, they all, of course, agree that the Senate shouldn’t even consider any Obama nominee, and Scalia’s replacement should be as ideologically identical to Scalia as humanly possible. So it’s clearly a wash on that side. > > And on the Dem side, even taking Marcotte’s words into consideration, this issue may help highlight the necessity of having a President who knows in her bones what sort of war the GOP is fighting, but I don’t think it’ll make a crucial difference on the Dem side. Things might change once a nomination is put forward, and if/when the Senate holds confirmation hearings. I don’t know how, but that will be the political focus at the time, if/when it happens. ---
**Author:** ![actualliberalnotoneofthose](https://avatars.discourse-cdn.com/v4/letter/a/e79b87/32.png) [@actualliberalnotoneofthose](https://boards.straightdope.com/u/actualliberalnotoneofthose)\ **Post date:** [February 16, 2016, 1:29pm UTC](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052/213 "2016-02-16T13:29:20Z")
> [@Biggirl](#): > > Another thing to consider: How will Thomas know how to vote now? I know they did vote the same around 90% of the time, but I recall a few cases when Thomas was the lone dissenter or was the only one (or only conservative) to take the side of individual rights (the LIBERAL perspective IMHO). Scalia was more conservative and consistently pro-government, pro-state authority. I am a fan of Thomas, in a limited sense. Because sometimes he can be counted on to be the only one who doesn’t defer completely to state power. So it does bother me when he’s portrayed as some brainless guy who follows Scalia. Most of the justices serve government authority in the way Roger Goodell serves the NFL. They work for ownership. ---
**Author:** ![actualliberalnotoneofthose](https://avatars.discourse-cdn.com/v4/letter/a/e79b87/32.png) [@actualliberalnotoneofthose](https://boards.straightdope.com/u/actualliberalnotoneofthose)\ **Post date:** [February 16, 2016, 1:35pm UTC](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052/214 "2016-02-16T13:35:34Z")
> [@jasg](#): > > Andrew Napolitano? He’s either too libertarian or conservative and Trump is neither. I bet Souter was Trump’s favorite recent justice. Of course, Trump’s hypothetical pick probably wouldn’t be based on his own actual beliefs. Which would even more eliminate anyone with libertarian leanings and no real political benefit. I guess you’d you have to find someone who loves eminent domain, protectionism, etc. Probably some moderate Dems fit the bill, actually. ---
**Author:** ![actualliberalnotoneofthose](https://avatars.discourse-cdn.com/v4/letter/a/e79b87/32.png) [@actualliberalnotoneofthose](https://boards.straightdope.com/u/actualliberalnotoneofthose)\ **Post date:** [February 16, 2016, 1:37pm UTC](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052/215 "2016-02-16T13:37:28Z")
> [@Martin\_Hyde](#): > > If I was Obama’s political adviser I’d probably grab a Hispanic judge who is liberal, but a moderate liberal, someone who will vote reliably how Obama would want but not a firebrand who has taken lots of controversial far left positions. Make sure he is personally unimpeachable, and has the strongest resume you can imagine, serious clerkship in his early days, distinguished legal career, respected writer of opinions at the lower court. Get him out there in a couple weeks. How about this? Did Scalia have any moderate clerks who fit the above criteria? ---
**Author:** ![2ManyTacos](https://avatars.discourse-cdn.com/v4/letter/2/3da27b/32.png) [@2ManyTacos](https://boards.straightdope.com/u/2ManyTacos)\ **Post date:** [February 16, 2016, 2:14pm UTC](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052/216 "2016-02-16T14:14:49Z")
Color me as somebody who thinks that the Republicans will cave and Obama will have his nominee confirmed. Seriously, this is just WAY too dangerous a precedent to set. If the senators start mandating that the ideological makeup of the Court has to hew to 5-4 GOP/Dem nominations, then the Court will just systematically dwindle in number until Sotomayor decides all of the cases herself. Don’t think for a second that the Dems wouldn’t follow suit during the next nomination fight under a GOP president. Oh, we’re sorry, President Trump, but the election is only four years away; we need to allow the American people to have a say in who will be the next Supreme Court justice. That isn’t to say that the impending obstruction will somehow subsist. The senators from safely red states will be seen as doing God’s work by their constituents; however, folks like Portman, Ayotte, and Collins - who are already in serious trouble this year - will have no way of spinning this to their benefit. Obama’s nominee will of course have to be impeccably credentialed, but let’s be real here: the person who Obama nominates will be left of center, because, y’know, _Obama_ is nominating him. That means the ideological makeup of the Court **is going to** shift. Full stop. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [February 16, 2016, 2:20pm UTC](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052/217 "2016-02-16T14:20:55Z")
> [@2ManyTacos](#): > > Color me as somebody who thinks that the Republicans will cave and Obama will have his nominee confirmed. Seriously, this is just WAY too dangerous a precedent to set. If the senators start mandating that the ideological makeup of the Court has to hew to 5-4 GOP/Dem nominations, then the Court will just systematically dwindle in number until Sotomayor decides all of the cases herself. Then you agree with adaher. Reassess! I think it’s all talk myself. It’s red meat for the base, and who knows, maybe Obama will play along and nominate someone unconfirmable, thus justifying the Republicans’ stance. You lose nothing by just saying you’ll do it, then if Obama presents a good choice, Republicans can gloat about how Obama caved and confirm the nominee. ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [February 16, 2016, 2:22pm UTC](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052/218 "2016-02-16T14:22:43Z")
IMO the smart choice for Obama is a white guy. A moderately liberal white guy. The R base agrees almost unanimously that all non-white non-men are unqualified to any government position. And they can make enough noise to prevent the senate from being able to think beyond the baying of the horde. Obama takes that issue off the table with a white guy. And the benefits of tokenism can go too far. Picking Sri Srinivasan, though one heck of a jurist, would simply reconfirm the R story that Obama is a foreigner intent on handing all the levers of state power over to foreigners of one sort or another. To be sure, Obama playing to the right’s lunatic fringe isn’t a winning game for Obama nor for the country. But there are plenty of what passes for mainstream Rs, and Rs well left of the R’s current center that put some gut credence in the idea that the world and the US is changing faster than they’re comfortable with. They may not want a wild-eyed swerve into fascism as the Trumpistas do, but the definitely want somebody to tap the brakes. Take that way from them and a lot of the middle has one less reason to fall for the simplistic seductive roar on the right. TLDR: mild nativism runs very deep in all humans. Play to it. This is an emotional age, not an intellectual one. Which is a large part of while Obama has been remarkably effective given the circumstances, he’s not viewed all that sympathetically even by his own side. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [February 16, 2016, 2:24pm UTC](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052/219 "2016-02-16T14:24:32Z")
> [@](#): > > Picking Sri Srinivasan, though one heck of a jurist, would simply reconfirm the R story that Obama is a foreigner intent on handing all the levers of state power over to foreigners of one sort or another. Except we like that guy and want the Asian vote, so I think he’ll be confirmed. ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [February 16, 2016, 2:26pm UTC](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052/220 "2016-02-16T14:26:41Z")
An interesting perspective. I don’t know the specifics well enough to comment further. I’ll look into it. Thanks for the heads up. [Previous page](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052.md?page=10) [Next page](https://boards.straightdope.com/t/this-election-has-just-changed-justice-scalia-has-died/746052.md?page=12)