Saturday is supposed to be a slow news day. CNN shifts to its pop-documentaries – six hours of the Sixties, six hours of the Seventies, produced by Tom Hanks – or Anthony Bourdain sarcastically dining in far-off places. MSNBC runs endless hours of their gritty prisons shows, for those who want to know what it’s really like being locked up for life – there seems to be an audience for that. Even Fox News lightens up a bit – and then everyone watches Saturday Night Live, but not this past weekend. Antonin Scalia, the conservative Bad Boy of the Supreme Court, didn’t wake up Saturday morning at that Texas ranch where he and Dick Cheney used to hunt quail – domestically raised for only that purpose – to make it easier for rich old men to shoot them out of the sky en masse.
No, Dick Cheney didn’t shoot Scalia. He wasn’t there. Scalia died in his sleep of a heart attack, peacefully. He just never woke up – although by Saturday evening the word on the far right websites was that Obama had Scalia killed, or Hillary Clinton did – she did murder Vince Foster after all. That’s because this is a big deal. The court has four conservatives, three liberals, and Anthony Kennedy, who is wildly unpredictable. With Scalia dead and gone, everything is even, so something must be going on. Even if not, this is a big deal. Conservative should be worried. Obama will nominate someone to replace Scalia – as he is supposed to do – and it won’t be a brilliantly nasty conservative who chops up those who argue for tolerance and voting rights and workers’ rights and the rights of women and minorities and gays. Obama will probably nominate some superbly qualified middle-of-the-road sort – he’d never get this Senate to confirm anyone even vaguely liberal – but that would be bad enough. The conservatives on the court would still be outnumbered – but the saddest part is that the formidable caustic voice of their cause will never be heard again. The dazzling intimidator is gone. There’ll never be another like him.
The immediate problem, however, was the implied shift in ideology. It was time for damage control. Mitch McConnell announced that Obama could do whatever Obama wanted to do, his Republican senate would not even consider a confirmation hearing, much less a floor vote. They wouldn’t take it up. He seemed to be saying that Obama could nominate Jesus Christ carrying an AR-15 and vowing to slit the throat of any woman who even thought about an abortion and watch her bleed out and die at his feet and it wouldn’t make a difference. Let the next president make the nomination. Let the people decide – the court would be just fine with eight justices until the middle of 2017 or so – a new president sworn in on January 20 next year and then all the hearings and whatnot. That court might deadlock on everything, but life will go on. Obama is a lame duck after all – he no longer matters in the great scheme of things.
That “lame duck” thing is interesting. A lame duck session of Congress is a Congress that sits from the first Tuesday in November, Election Day, until the next Congress is sworn in the following January. Many members have been voted out of office and are just hanging around – anything that Congress passes is a bit bogus. A lame duck president is one who has been voted out of office in November, or whose second term is up, and is also just hanging around until January – he too no longer matters. Mitch McConnell simply expanded the date-range. Obama will be gone in January, by law, so his whole last year is lame. He’s not really our president in any meaningful sense, if he ever was. Donald Trump, with his own special Birther stuff that he started in 2007 – he was going to send that special team to Hawaii to dig up the truth, that Obama was born in Kenya or something – has been saying that all along. Obama may not be our president after all. This is just more of the same, with Mitch McConnell saying “let the people speak” on the next person on the Supreme Court. Hillary Clinton and others are saying the people have spoken – they elected Obama for four years, damn it – he is our president. There’s no way to resolve this. This has been going on for many years.
The Republicans took this up at their Saturday night debate in South Carolina. It was an episode of Saturday Night Dead. After a moment of silence for the departed, they all said what Mitch McConnell said – let the next president nominate the next justice – and Scalia was the best Supreme Court Justice their ever was. Then they attacked each other. Trump repeatedly screamed that Ted Cruz was a liar. Cruz screamed back, and he said Marco Rubio was saying one thing on the Spanish-language stations – amnesty – and another to the rest of us. Rubio shot back. What do you know, you don’t even speak Spanish. Cruz then laid into him in perfect Spanish, challenging him to a one-on-one debate, right there, in Spanish – and somewhere in there Donald Trump told Jeb Bush that his useless brother didn’t keep us safe – because 9/11 happened on his brother’s watch, and his brother lied about those weapons of mass destruction, and knew he was lying, and then gave us this Iraq mess that cost two trillion dollars and thousands of our troops’ lives and did no good at all. The audience booed Trump, he called them all establishment (“donor”) shills, and Jeb came off as okay in that exchange. He was less of a nebbish that night, but John Kasich piped in saying this was crazy – the America people are watching us call each other liars and fools – they may decide we are – we’re saying so. Ben Carson stared off in the distance, silent, lost in his pleasant private world. Rubio kept saying, over and over, that one of them would pick the next Supreme Court justice. That was a scary thought.
That’s also understandable. Republicans have the power to delay things, in hopes of electing a Republican in November, and that’s what they’re going to do. No one can stop them from stopping things, but Kevin Drum notes an interesting idea:
President Obama should take seriously the advise part of advise and consent and give the Senate an informal list of nominees to choose from to replace Antonin Scalia. Maybe they’ll pick two or three off the list, maybe just one. Then Obama transmits his final choice for confirmation hearings.
The basic idea is that this puts Republicans in a pickle. If they flatly reject the entire list, it makes their obstructionism a little too barefaced for an election year where they need votes from more than just their base. But if they give tentative approval beforehand, then it’s harder to pretend afterward that Obama has sent them an obviously radical and unacceptable choice.
The best Republican response isn’t quite as obvious as it seems. If someone on the list is genuinely moderate, what do they do? They can bet the ranch on winning the presidency and then abolishing the filibuster, which would allow them to confirm a hardcore conservative in 2017. But if they lose – or if they don’t have guts to abolish the filibuster next January – they’ll almost certainly end up being forced to confirm a more liberal justice nominated by President Sanders or President Clinton.
Drum also admits that’s an unlikely scenario, and Linda Hirshman – the author of Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World – suggests the Republicans have a more immediate problem:
The GOP might soon reconsider if they see the implications of refusing to allow Obama to replace Scalia: A divided court leaves lower court rulings in place. And the lower courts are blue. Nine of the 13 U.S. Courts of Appeals have a majority of Democratic appointees. That means liberal rulings conservatives were hoping the Supreme Court would overturn remain law. So if Scalia had cast the deciding vote on a case before he died, but the court rehears it and divides 4 to 4, that would leave the lower court decision in place.
Slate’s Jordan Weissmann has a list:
Case: Friedrichs v. California Teachers Association
Issue: Public sector union rights
Outcome in a split: The liberals win.
Not to be too blunt, but presenting this case before a post-Scalia court is an enormous break for American labor unions. In Friedrichs v. California Teachers Association, the court is considering whether public servants can be forced under “fair share” laws to pay fees to unions in order to cover the cost of collective bargaining on their behalf, even if they’re not members. A ruling against the teachers’ unions would effectively extend right-to-work laws to government employees across the nation and significantly cut into public-sector union revenue. And as of oral arguments, it looked as if that was about to happen. But with Scalia no longer on the court, the decision by the U.S. Court of Appeals for the 9th Circuit, which upheld fair share rules, may still stand.
Case: Evenwel v. Abbott
Issue: One-person, one-vote
Outcome in a split: Liberals win.
This case had the potential to drastically change the way that states draw legislative maps. Now, not so much. Under the principle of one-person, one-vote, states have traditionally tried to create legislative districts that have roughly equal total populations. In Evenwel, the plaintiffs argued that districts should be based on the total number of potential voters. That would exclude minors, un-naturalized immigrants, and felons who had been stripped of their voting rights from the calculation, likely tilting the process in favor of conservatives. The lower court, however, said it was fine for states to continue using total population. In the event of a 4-4 split, that decision will stand.
Case: U.S. v. Texas
Issue: Whether states can challenge federal immigration policy
Outcome in a split: Conservatives win.
In November 2014, President Obama issued a controversial executive action allowing certain undocumented immigrants to apply for temporary legal status if they had children who were citizens or green-card holders. However, 26 states including Texas sued to block the action, and a federal appeals court put the policy on hold while the litigation unfolded. The Supremes have been asked to decide whether states even have the right to sue over the issue, and so a 4-4 non-decision would mean that the lower court decision stands.
Case: Whole Woman’s Health v. Hellerstedt
Outcome in a split: Conservatives win.
The plaintiffs in this blockbuster reproductive rights case are challenging a Texas law that, as Sarah Kliff of Vox notes, has forced half the state’s abortion clinics to close since 2013 by requiring them to get admitting privileges at local hospitals. Were it to stand, additional providers would likely shutter and a legal blueprint would be left in place for more anti-abortion state legislatures to limit access. Scalia was a staunch abortion foe. But in the event of a tie, the case would still turn into a conservative win, at least in the states covered by the 5th Circuit, as the U.S. Court of Appeals for the 5th Circuit had previously upheld the Texas law. Thus, this case still comes down to Kennedy’s vote.
There are more, and this:
Case: Zubik v. Burwell
Issue: Obamacare’s contraception mandate
Outcome in a split: The law will be different depending where you live in the country.
If this case ends in a split, things are going to get a bit weird for Obamacare’s contraception mandate. You probably remember the Hobby Lobby case from 2014, in which the court ruled that private businesses could exempt themselves from the Affordable Care Act’s rules requiring employer-based health plans to cover birth control, so long as their owners had deep religious convictions. After that decision, the Obama administration came up with an “accommodation,” which essentially let those companies off the hook while making sure their workers got their free contraception. However, a number of religiously affiliated nonprofits have sued once again, basically saying the accommodation isn’t good enough. Most courts have ruled against them, except for the U.S. Court of Appeals for the 8th Circuit. So, if this one ends in a tie, nothing will be settled, and the law will still differ, judicial district to judicial district. Just one good reason among many we might want to get a new justice on the Supreme Court soon.
We will have chaos, and Jonathan Chait notes the wider implications:
Last week, the Supreme Court issued a stay delaying the implementation of Obama’s Clean Power Plan. The stay indicated that a majority of the justices foresee a reasonably high likelihood that they would ultimately strike down Obama’s plan, which could jeopardize the Paris climate agreement and leave greenhouse gasses unchecked. Without Scalia on the Court the odds of this drop to virtually zero. The challenge is set to be decided by a D.C. Circuit panel composed of a majority of Democratic appointees, which will almost certainly uphold the regulations. If the plan is upheld, it would require a majority of the Court to strike it down. With the Court now tied 4-4, such a ruling now seems nearly impossible.
The Paris climate deal is safe now. The Republicans haven’t thought this through, as shown in their debate, which amazed Josh Marshall:
I find it hard to know quite what to say about this debate. It was chaotic and disordered. Lots of candidates called each other liars. Donald Trump used variations of the actual word numerous times. Our initial count from the rough transcript has Trump saying “single biggest liar” twice, “this guy lied” twice and “why do you lie” no less than three times. Rubes said Cruz “lies” a handful of times. And that was just the start of it. I don’t think there’s ever been a presidential debate where so many of the candidates have called each other liars so many times. At some moments the trash talking and chest-puffing and general drama got so intense I thought this might be a fair approximation of West Side Story if you’d written it about two battling country clubs, the plutocrats versus the plutocrat flunkies.
Everyone was in the mud:
At one level, this was the debate where Donald Trump finally succeeded in bringing the whole party down to his level. You could see how Jeb Bush has finally recovered his senses after the initial fusillades Trump sent his way months ago, and also how he could be in a different place if he’d not let Trump dominate and humiliate him so easily in the early debates. Jeb clearly got Trump’s number on the bankruptcy issue. He finally found out how to get in his face and under his skin. He got Trump mad. It was classic Trump that he kept coming back to Bush spending so much more money than he did in New Hampshire and losing. That’s the biggest dig in Trump’s moral universe: You’re a loser, you’re pathetic and I won.
See Jeb Slams Trump over Multiple Bankruptcies for the minor details, or see Marshall for the overall picture:
When you step back from who got in what punch, it was simply a grand and fairly ridiculous spectacle. When you come down to Trump’s level, you’re still playing a game that I think he’s a master of. He’s going to come out well. And he basically did. Perhaps too it wasn’t just Trump’s game. This debate captured some of the essence of the very blue blood South Carolina GOP (and in some ways the state itself), strong concern for proper behavior, decorum, respect for people like the Bushes from quality families – and all this being an outer shell of an inner reality of violence and brutality.
But there was news here:
One thing that did somewhat surprise me is how much Trump has doubled down on his attacks on the Bush 43 presidency. Saying the Iraq War was a mistake is one thing. The majority of Republicans get that invading Iraq was an epic error. Trump’s just the only one up there willing to say it. But when you get down to blaming George W. Bush for 9/11 and saying we were lied into the Iraq War, you’re coming up against things most Republican partisans have invested a huge amount in not believing.
Weeding out the also-runs has squared us away to what a few weeks ago I identified as an almost historic, transcendent battle between two avatars of assholery: Donald Trump and Ted Cruz. The only surprise is that Jeb Bush has joined up too. The other big reveal is that with the partial exception of Ted Cruz, no one really bothered to attack Marco Rubio. Not terribly surprising. I think he’s done.
I still don’t think John Kasich has the temperament to get this nomination. Anger and resentment is the coin of this realm. And he’s a pauper in that economy. But he was the only one to stand out in this exchange from the general scrum.
This was a strange Saturday night in America, as America gets stranger, as Paul Krugman notes:
Once upon a time, the death of a Supreme Court justice wouldn’t have brought America to the edge of constitutional crisis. But that was a different country, with a very different Republican Party. In today’s America, with today’s GOP, the passing of Antonin Scalia has opened the doors to chaos.
That puzzles him:
How did we get into this mess?
At one level the answer is the ever-widening partisan divide. Polarization has measurably increased in every aspect of American politics, from congressional voting to public opinion, with an especially dramatic rise in “negative partisanship” – distrust of and disdain for the other side. And the Supreme Court is no different. As recently as the 1970s the court had several “swing” members, whose votes weren’t always predictable from partisan positions, but that center now consists only of Mr. Kennedy, and only some of the time.
But simply pointing to rising partisanship as the source of our crisis, while not exactly wrong, can be deeply misleading. First, decrying partisanship can make it seem as if we’re just talking about bad manners, when we’re really looking at huge differences on substance. Second, it’s really important not to engage in false symmetry: only one of our two major political parties has gone off the deep end. …
I still encounter people on the left (although never on the right) who claim that there’s no big difference between Republicans and Democrats, or at any rate “establishment” Democrats. But that’s nonsense. Even if you’re disappointed in what President Obama accomplished, he substantially raised taxes on the rich and dramatically expanded the social safety net; significantly tightened financial regulation; encouraged and oversaw a surge in renewable energy; moved forward on diplomacy with Iran.
Any Republican would undo all of that, and move sharply in the opposite direction. If anything, the consensus among the presidential candidates seems to be that George W. Bush didn’t cut taxes on the rich nearly enough, and should have made more use of torture.
When we talk about partisanship, then, we’re not talking about arbitrary teams, we’re talking about a deep divide on values and policy. … And it’s up to you to decide which version you prefer. So why do I say that only one party has gone off the deep end?
One answer is, compare last week’s Democratic debate with Saturday’s Republican debate. Need I say more?
And there are tactics and attitudes:
Democrats never tried to extort concessions by threatening to cut off U.S. borrowing and create a financial crisis; Republicans did. Democrats don’t routinely deny the legitimacy of presidents from the other party; Republicans did it to both Bill Clinton and Mr. Obama. The GOP’s new Supreme Court blockade is, fundamentally, in a direct line of descent from the days when Republicans used to call Mr. Clinton “your president.”
It is more of the same, and will be from here on out:
So how does this get resolved? One answer could be a Republican sweep – although you have to ask, did the men on that stage Saturday convey the impression of a party that’s ready to govern? Or maybe you believe – based on no evidence I’m aware of – that a populist rising from the left is ready to happen any day now. But if divided government persists, it’s really hard to see how we avoid growing chaos.
Is America governable? Krugman asks the question. A Supreme Court justice dies unexpectedly and the Republicans refuse to consider filling his seat, even if they lose everything they worked so hard to accomplish on big issues, because the president, who is required to quickly nominate a replacement, isn’t really their president, or ours. Who is? No one knows. Then they hold a debate where they call each other liars and fools, and then tell us to vote Republican. The question answers itself. It was just another Saturday night in America – Saturday Night Dead.