It It Too Early to Fight About Justice Scalia's Replacement?


In case you're already bored by the prospects of Solicitor General Elena Kagan or some other play-it-safe nominee replacing Justice John Paul Stevens on the Supreme Court, how about imagining the confirmation battle to replace conservative firebrand Justice Antonin Scalia. Pretty exciting, right? Over at Slate, Loyola law professor Richard L. Sasen maps it out:

Kennedy and the Court's four stalwart conservatives—Alito, Roberts, Scalia, and Thomas—will almost certainly remain through Obama's first term. But things get much more uncertain after 2012. By 2016, Justice Scalia will turn 80 and Justice Kennedy will turn 78. It is certainly possible that they will stay past the 2016 elections—after all, Justice Stevens is pushing 90—but who knows?

President Obama's political task, three years from now, will be to convince the country that he, not a Republican president, should make that potential appointment. The point isn't to show that he would move the Court leftward if re-elected in 2012—he'd probably be better off sending more moderate signals, which is another reason not to expect him to choose a strong liberal to fill Stevens' seat. Obama should instead stress that if a Republican wins in 2012, Scalia and Kennedy will probably retire. That would give the new Republican president the chance to entrench the five-justice Republican majority for decades—and to cement it, by replacing Kennedy with a wholly reliable right-wing vote. That's the Supreme Court script for the Democrats in 2012.


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  1. No matter how you view him, Scalia will be hard to replace.

  2. Imagine if Bork hadn’t gotten, ummm, Borked, and we had gotten him instead of Kennedy.

    Whooee, things would be different.

    1. Imagine if Douglas Ginsburg hadn’t gotten… whatever he got, and we had gotten him instead.

  3. Meanwhile, Dana Milbank is outraged by the White House’s treatemnt of the press.

    Reporters, even those on the White House beat for two decades, said it was the most restrictive set of meetings they had ever seen in Washington. They complained to both the administration and White House Correspondents’ Association, which will discuss the matter Wednesday with White House press secretary Robert Gibbs.

    The restrictions have become a common practice for the Obama White House. When Israeli Prime Minister Benjamin Netanyahu came to the White House a couple of weeks ago, reporters were kept away. Soon after that, Obama signed an executive order on abortion, again without any coverage.

    Over the weekend, Obama broke with years of protocol and slipped off to a soccer game without the “protective” pool that is always in the vicinity of the president in case the unthinkable occurs. Obama joked about it later to Pakistan’s prime minister, saying reporters “were very upset.”

  4. umm, isn’t that the politics of fear? and we all know only republicans practice that kind of politics.

  5. Obama should instead stress that if a Republican wins in 2012, Scalia and Kennedy will probably retire.

    I’m not sure this argument means anything to anybody. Liberals would be horrified, Conservatives rejoicing and moderates would ask “which republican”. You might as well say you should vote against Obama because it would mean 4 more years of a democrats. Yes…that is a true statement, but where’s the argument.

  6. If I’m elected in 2012, I promise to replace Scalia with a Don Rickles record, and Kennedy with the beauty contest episode of Fish Police.

  7. Scalia has Steve Smith sized hands. Is it possible he is the first bigfoot supreme court justice? If he retires will the president fill obligated to appoint another sasquatch?

    1. Sasquatch, no. A Neanderthal, maybe. Hey, blame affirmative action; cavemen are woefully under-represented.

      1. What is this, a GEICO commercial?

        1. In that case Obama should appoint that talking gecko that Geico uses in their commercials as well. He would be infinitely better than his last appointment to the court.

        2. Actually, if all it takes is reading the actual words in the Constitution and comparing that to the matter at hand, it probably is easy enough to be the subject of said commercial.

          It’s when the smart ones come in and start twisting things to meet an agenda that the process becomes considerably more difficult.

          Seriously, this is part of the reason that so many people dislike Thomas and put him down so much for being “underqualified”… he’s not nuanced enough and just reads the words instead of adhering to the agenda, you see.


  8. So what am I supposed to do? Vote for the Democrat whose appointee is going to blast me in the ass? Or the Republican whose appointees are blasting my ass?

    1. Admit it! You just like getting blasted in the ass.

    2. Vote Republican, then try to trick them into thinking a libertarian candidate is actually a Republican?

  9. It’s never too soon to think about replacing Scalia. Now, if we had a more libertarian judge…one with an activist bent. In the main, I want a more activist judiciary across the board. The court system is supposed to judge the law. Enforcing it is the Executive’s job. The conservative push for a passive judiciary has led to excessive power being concentrated in Congress and the White House.

    1. You want Alex Kozinski. An excellent choice too.

      1. I looked him up. He’s an excellent choice. Consistently libertarian, and a great sense of humor to boot. Let’s petition Obama to nominate him!

          1. Ridiculous. What America needs is to arrange a m?nage a trois with Judge Jim Gray & Andrew Napolitano (who is actually the same person as Nick Gillespie) AND Janice Rogers Brown.

            The offspring of this holy union will, upon birth, ascend to the position of Chief Justice and rule over us with a firm, benevolent hand and a diaper which is perpetually full but never malodorous.

  10. No difference, they are all tyrants.

  11. Nobody — I mean nobody — votes for president because of possible Supreme Court selections.

    1. I voted for him. You must be one of those “white males”. My “wise Latina” intuition prevailed!

    2. Oh, sure a few people do, probably about the same number who vote for the Libertarian candidate for President.

    3. I factor it in

  12. That would give the new Republican president the chance to entrench the five-justice Republican majority for decades?and to cement it, by replacing Kennedy with a wholly reliable right-wing vote.

    Except that the liberals on the court are often appointed by Republicans.

    Democratic presidents have a much more efficient record of getting their ideological kin on the court.

    1. Odd how it works. Life long Republicans will become flaming liberals once on the court. But no liberal ever changes to the conservative side. And no justice from either side ever gets more libertarian.

      1. Seeing how many people are unjustly prosecuted does that to you.

      2. Not really odd John. A Justice is a unique position; appointed for life, not really accountable to anyone except possibly the other justices, and you get to interpret the constitutional validity of legislation at will.

        The court,IMO, has been bastardized into another arm of partisan politics.

        More than any other President, I thank FDR for this.

        1. It’s been that way for a long time. Read Plessy v. Ferguson, and then read the dissent. Pretty interesting stuff.

  13. I’m sure Scalia would much prefer to die in his chair than retire while a Democrat is in the White House. Slate, like a number of online publications, has a habit of recycling pieces they find particularly relevant. They’ll be running this one for a decade and more.

    1. Irony in it’s finest presentation, sir. Self-fulfill prognosticate much? And a word please, if you don’t mind.

  14. really how can you take anyone seriously who paints Obama as a “moderate”

    1. Anyone who doesn’t get all political.

    2. “Moderate” in the establishment-speak always refers to balancing reduction in civil and personal liberties (right wing) with reduction in economic liberties (left wing). See? Moderate. Balanced. Centrist. The fact that Obama abandoned his promises to reign in the Bush security state cancels out his support for massive economic intervention.

      It’s like the “neutral” in “neutral evil”.

  15. It It Too Early to Fight About Justice Scalia’s Replacement?

    It it too early to go to lunch?

    It it too late to change the title?

  16. Obama will appoint a right-wing conservative Christian prosecutor to the bench regardless. It will just be a minority or a woman. So unless you really hate minorities and/or women, I don’t see how it possibly matters.

    The Republicans will vigorously oppose whoever Obama picks, no matter how much they actually like the nominee, because that’s the only way to ensure liberals blindly support Obama’s right-wing nomination. It’s the same thing that happened with Sotomayor (the pro-life, Catholic, Republican, Republican-appointed former prosecutor who sides with the prosecution 99% of the time and still considers herself a career prosecutor). If the Republicans didn’t put up a huge fight against Sotomayor, liberals would have figured out that she is not one of them. As long as liberals were distracted by republican opposition and the vagina of an ethnic minority, there was absolutely no chance they’d take the time to look at her record and realize she’s a horrible choice for the SCOTUS. The same thing will happen with Stevens, and any additional appointments Obama may get to make.

    Obama is too weak to appoint a real liberal, and since being liked by white Republicans is the one thing he cares about more than anything else, anyone who really expects him to appoint a Brennan or Marshall to the Court is severely misguided.

    And this is why I absoultely HATE Obama. I’m still pissed off over Sotomayor… who has and will rule against criminal defendants time and again just waiting for her chance to overturn Roe v. Wade so as to please her Lord on Earth the Nazipope, protector of child molesters.

    1. Wow! I don’t know what you have been smoking but it definitively sounds like it must be some gnarly shit.

  17. Is it too early to fight about Scalia’s replacement?


  18. Is it too early to fight about Scalia’s hip replacement?

    No! A hip is a terrible thing to waste.

  19. Judge Naplitono (sp) seenms like he would make a fine choice as a replacment

    1. He’s a good call too. Let’s have the following ideological distribution:

      3 conservatives

      3 liberals

      3 libertarians

      All of them activist judges. That would keep things interesting

    2. Made the same suggestion up thread, before I got down here.

  20. NEW HAVEN, Ct. (AP) — Madison Woznicki has just completed her first semester at Yale Law School, and already there is speculation as who her replacement will be when she retires from the Supreme Court. Woznicki, 22, has been quiet thus far on when she will retire from the Supreme Court seat she will eventually be appointed to, but all signs…

  21. In a 2012 campaign it will be an issue that is brought up. Do you want a right leaning SCOTUS or a left leaning one? Personally I would rather they just pay some attention to the Constitutionality of the cases they here but such is life.

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