February 13, 2016

Nino Scalia is dead: Please, no unseemly faux mourning

Note: That header applies to Bernie Sanders, too — see below.

For those not living in the US political subdivision of Planet Earth, Supreme Court Associate Justice Antonin Scalia, as of earlier today, is dead.

My thoughts?

First, Scalia, with the possible exception of his junior clone, Samuel Alito, was probably the meanest judge on the Supreme Court.

Second, don't try to lighten up his personal life by saying, "But he went to the opera with Ginsberg." For everybody spouting that, Doug Henwood's got your number.
And, beyond that? Herman Göhring was an art lover.

Vox writes up her "moving tribute" to Scalia.

Scalia hated gays and lesbians, period. He pushed hardest the line of "civic religion" on many occasions on about any church-state separation issue, and it often wasn't just "civic religion" but explicit endorsement of Christianity on the state dime, as well as supporting public, corporate school prayers, per the Santa Fe ISD case. As a secularist with a number of gay and lesbian friends, I have reason to loathe and despise him, with no faux mourning needed nor desired. If I didn't cut Chris Hitchens slack on his death, Nino's sure not getting it.

And, as a secularist who feels confident there is no heaven, nor hell, and that an eye for an eye doesn't work in this life, I also have no reason to mourn his demise. He lived a full life, at or beyond his life expectancy. He wasn't black, hispanic or female, so had little discrimination against him. He wasn't physically or mentally disabled.

So, no, there's no need to mourn him. The Onion gets it right in a politer, humorous way.

So, on to speculating about his replacement.

As for this:
I don't know if that's simple aspirational musings by GG, or ahistorical lack of grounding.

Those were Democrats, and that's not the first or last time they've engaged in kowtowing. The GOP Senate of today may well dig in on an Obama nominee less to the left than Kennedy was to the right.

A counterexample for Greenwald?

Back in 1968, even before he ethically self-imploded, the Dixiecrat/GOP working majority in the Senate was doing all it could to obstruct the appointment of LBJ's "payoff" appointee, Abe Fortas. (I've blogged before that LBJ was an idiot in this sense. Fortas was already an associate justice, the GOP and Dixiecrats both were leery of him, knowing his "Landslide Lyndon" lawyering past, and knew that LBJ was a semi-lame duck. I noted that LBJ had a better option: Thurgood Marshall. Dixiecrats would oppose him, but northern GOP Senators couldn't take that risk, especially those up for re-election in 1968, and it would have made for good alternative history, too.) That said, Fortas' nomination didn't happen until June 1968.

And Chuck Grassley, chair of Senate Judiciary, has already said, in his opinion, no nomination now. He's obviously not alone. And that's why Democrats aren't Republicans.

As for who the replacement might be? Cass Sunsein reportedly is already making sniffing noises.

And Jeff Toobin already had a "Democratic farm system" piece. About all on there had at least one of three strikes against them, if not two — appellate court judges, Ivy Leaguers, Obama Administration past or present staffers.

Given that all nine of the current justices have the first two issues, appointing another of similar ilk smacks of establishmentarianism. We'll get someone who will be reliably liberal on the two hot-button issues of abortion and gay rights and that's it. We could well get a tech-neoliberal who's deferential to the Deep State (like Kagan), a squish at times on the free speech portion of the First (like Sotomayor), deferential to unduly broad interpretations of unduly broad tech laws like the DMCA (Breyer and somewhat Ginsberg).

That said, if the wingnuts stall the game out, a President Clinton would nominate similar. A President Sanders would get a chance to live up to his Citizens United pledge.

And, the wingnuts are out in force at the GOP debate. John Dickerson caught Ted Cruz lying about Tony Kennedy's appointment, but didn't push it. If Kennedy was actually nominated in 1987, that's Jesuitical hair-splitting. Besides, it's Reagan's fault for nominating Bork first, then Bork's fault for not pulling his name from consideration, then the national fault of being afraid of a pot-smoking history of Douglas Ginsberg.

As for what happens with cases now in the pipeline, SCOTUSblog answers that.

Meanwhile, back to the faux mourning, or calls not to do it.

Sadly, and maybe because he's gotten his hands slapped by the establishment over his incarceration ideas at Thursday's Dem debate, Bernie Sanders has also jumped the shark in calling Scalia "brilliant" as part of his civic mourning.

Oh, Scalia was very, very smart compared to the average American. But, brilliant as a Supreme Court justice? No.

And, Sanders isn't alone.  Some liberals, or 'liberals," will point to him being at an ACLU dinner. But, that was with ACLU president Nadine Strossen, who along with Executive Director Anthony Romero, first tried to gag board members then purge them.

He showed his "originalism" to be nothing but JellO on recess appointments, on a host of other issues, and above all, on Bush v Gore.

Yes, he did vote to restrict executive powers somewhat in Hamdan. But even that was spoiled by his earlier opposing giving Gitmo detainees access to federal courts. And, contra some allegedly liberal lawyer on Facebook, his concerns about jury trials didn't extend to right to competent legal counsel, death penalty appeals or other things related to the death penalty — in Atkins, he supported executing the mentally handicapped, and he said racial profiling by officers of the law passed constitutional muster.

He also tried to roll back Miranda whenever possible.

The Morning News is trying to portray him as a great civil libertarian on criminal law. He was OK at times. Great? No. See all of the above. Criminals just got lucky in some cases because Scalia's civil libertarianism extended into criminal law. (Except for states that had still criminalized sodomy.)

Beyond that, this plays into Democrats-right-or-wrong whipping out the "But the SCOTUS" arguments against third-party voters like me. Jacobin has their number.

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