Today in Supreme Court History: February 13, 2016

2/13/16: Justice Antonin Scalia died.

Justice Antonin Scalia

Comments

[Krychek_2]

And if he’d known what a disruption it would be to the political process he’d have waited until after the election. Poor planning. Very poor planning.

[Kazinski]

Maybe not. One of the factors of Trump winning is a lot of people would rather take a chance on Trump than take a chance on Hillary's supreme court pick. It certainly factored into my decision.

[Krychek_2]

I disagree with your premise. I think Trump was elected because of the Comey letter.

But even if I did agree that it was the Supreme Court, even if you like the outcome, you also have to ask if getting what you wanted was worth the massive damage to the Senate, to our other institutions, to civility, to the increase in political division. It left a lot of damage in its wake that won’t soon be repaired. This is a classic example of destroying the village in order to save it.

[Dilan Esper]

I disagree with your premise. I think Trump was elected because of the Comey letter.

So the Comey letter was uniquely persuasive among swing voters in a handful of Rust Belt states?

No, he didn't win because of the Comey letter.

[Krychek_2]

What the Comey letter did was to reawaken Clinton scandal fatigue. If you look at polling data both before and after the Comey letter, she had pretty much gotten the voters to move past the email issue. The Comey letter convinced people that there would be four years of scandals if she was elected. (Which is pretty funny given that nonstop scandal is pretty much what we’ve gotten from Trump). So it wasn’t uniquely persuasive so much as it was the last straw.

And yes, I think if Comey hadn’t written that letter she would now be president.

[Kazinski]

Well what were Hillary's top secret emails doing on the laptop of a child sex predator? McCabe did try to run out the clock for her, but couldn't quite get her to the finish line.

Excellent work done by all: Hillary, Abedien, Wiener, Comey, and McCabe.

But it had nothing to do with my vote, I already knew she was guilty, but even so the only reason I voted for Trump was i lived in a deep Blue state Hillary was going to carry no matter what.

[Krychek_2]

I don't entirely agree with your recitation of the facts, but assume you're right. My original point was that the Supreme Court wasn't the reason Trump was elected. The thing that killed Hillary Clinton's campaign once and for all was the Comey letter. Without that, I think the election would have gone the other way.

And I think Trump had one very big thing going for him in 2016 that he won't have this November, which is that nobody thought he would win. I think there were a lot of voters who weren't wild about Hillary who either voted third party, stayed home, or even voted for Trump as a protest, who would not have done so if they had known he might actually pull it off. I'm married to one of them, and my boss is another. We'll see how that plays out come this November.

[bernard11]

Why did it have to be "uniquely persuasive among swing voters in a handful of Rust Belt states?"

Why couldn't it have been persuasive to many swing voters everywhere?

[Kazinski]

"This is a classic example of destroying the village in order to save it."

If ever a village needed to be napalmed to fix a pothole, the Senate is that village. The damage started with Bork, got worse with Thomas and was already rotting the Senate to the core long before Garland.

But the Senate by heroically throwing itself upon the hand grenade saved the Supreme Court.

[apedad]

In Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), Justice Scalia, writing for a unanimous Court, declared that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

[Alan Vanneman]

Have the Volokh Folks ever heard of Roger Stone? William Barr? Donald Trump? Guess not.

[bernard11]

There was high praise of the Barr appointment, as I recall.

[Rev. Arthur L. Kirkland]

Cowardly silence is seen as a virtue by some these days. Especially among those angling obsequiously for Pres. Trump's favor.

[bernard11]

Well, there was that book about Trump's unprecedented power grabs....

Oh. Wait.

[Armchair Lawyer]

What, you want a Stone post or something?

[Rev. Arthur L. Kirkland]

No, I do not want a Stone post -- or a Barr post, or a unitary executive post (to the extent that one survives Barr's performance), or an Alex Vindman post, or a Yevgeny Vindman post, or a Ukraine post, or anything similar. I enjoy observing the Conspirators grovel conspicuously and obsequiously at Trump's feet, especially when those feet are at the base of a golden toilet.

#ConservativeCourage
#ConspiratorCourage

[Reshufflex]

I happened to watch a Scalia interview on YouTube the other night. He was addressing an audience of academic, legal types, unsurprisingly, and the setting was informal.

It was the first time I heard the man, or maybe the second. Apart from his obvious intellect, I was impressed by something else, a rather minor thing that to most people would’ve easily escaped notice.

He made a point-a steady, emphatic point-of identifying his ( just-in-release ?) book’s co-author, whose name eludes me. He made it a point of elaborating on his co-author’s esoteric skills and contributions to his book, to the extent that the audience and the polite fellow interviewing him began to chuckle about it.

Scalia set aside his ego rather easily during that exchange, and I got the impression he did so characteristically. I don’t know, of course, but applaud his doing so on that occasion.

[Reshufflex]

Btw, it was also mentioned that he was confirmed 98-0. Yikes! That’s up there with DiMaggio’s hit streak.

[arch1]

If you really believe this, I think you're pretty clueless about the context around DiMaggio's hit streak.

[Reshufflex]

What context would that be?

[bernard11]

The improbability of it.

Second best is Wee Willie Keeler, at 45, in 1896-1897.

Pete Rose managed 44 in 1978.

OTOH, Anthony Kennedy also got a unanimous confirmation. Prior to the 1970's voice vote confirmations were common.

[Reshufflex]

Granted, but what are the chances of 98-0 henceforth? About the same as the hit streak? That was the metaphor, if I wasn’t clear.

[Dan Schiavetta]

“Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a life style that they believe to be immoral and destructive.”

Go ahead, VC'ers, defend that.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Are you going to deny that Democrats are the party of slavery and Jim Crow?

[bernard11]

I will deny it.

They certainly were that party. They are not that party today, and haven't been for a long time.

And what does it matter? Your comment is pretty lame, even as whatbouttery.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

So you can go back as far as you want, but no one else can go back as far as they want. Gotcha. Some slavers are more equal than others. Gotcha.

[Alpheus W Drinkwater]

Was that question intended as your defense of the quote? Hilarious!

[awildseaking]

Why is defense needed? Is he incorrect that many Americans feel that way?

I don't think the best way to educate someone against the ills of LGBT+ ideology and gender theory is hiding. Frankly, the best educator against their ideology is the ideology itself. Want to make someone a conservative overnight? Tell them to google dilation.

[Darth Chocolate]

Why does anyone have to defend "feelings". Or a stated fact?

If a poll finds those statements to be the case, it is reporting of a simple fact. You may not personally like it or agree with it. But guess what? The qualifying word in the statement which is "most", not "all"

Nothing to defend.

[bernard11]

What needs defense is Scalia's making decisions on that basis, or his own dislike of homosexuals.

[Kazinski]

I hope you aren't saying people don't have the right to free association, and can't pick their business partners, their children's schools, or their housemates by any criteria they wish?

I am sure many of the commentators here would consider someone that routinely wears a MAGA hat unqualified for all of those roles.

[Sarcastr0]

Civil Rights Acts have something to say about that.

As to your MAGA hat scenario, come on - race != ideology.

[Kazinski]

Not in any of those specific cases, none of those situations come under employment, fair housing or other civil rights laws. Just as a gay man can specify he's looking for a gay roommate, shared housing isn't covered by discrimination laws. Same pulling your kid out of a class and finding another school, or starting a business with anyone you think is suitable for any reason.

[Sarcastr0]

Your previous comment is a lot more general than that.

[Sarcastr0]

In other words, if you're going to make such a sweeping argument about rights, you need to explain why we have so many exceptions, or accept what people will think you believe about said exceptions.

Similar to the deal with Scalia's statement above.

[Bob from Ohio]

The tolerant "liberals" here using a death anniversary post to re-litigate old grievances.

I can't wait to dance on Ginsburg's grave. Thanks for the inspiration.

[Rev. Arthur L. Kirkland]

The best part about winning the culture war is the chance to celebrate conservatives' failure while the casualties get to experience it. Your resentment toward the victors will continue until your final indignity, when you take your bigoted, stale thinking to the grave and are replaced by a better person who will ensure your legacy is continuing failure.

[TwelveInchPianist]

I gotta admit, it's pretty clever the way the "betters" are getting women out of sports. If I were a reactionary, I'd be very pleased.

[Sarcastr0]

re-litigate old grievances

Pretty rich coming from you, Bob.

[apedad]

Apparently there are no high roads in Ohio.

Or Bob doesn't know where they are.

[Alpheus W Drinkwater]

It turns out, today (2/14) is the death anniversary of William Blackstone. I wouldn't mind re-litigating some old grievances I have with that guy, if Bob wouldn't mind.

[Krychek_2]

Bork got a hearing and a vote, so the two are not the same. But I was thinking more of the scorched earth politics in which destroying your opponent is considered more important than working together for the good of the country. Or having a president who openly meddles in criminal prosecutions, which would have been unthinkable before Trump. Or in which abuse of power is acceptable so long as it’s your side that’s doing it.

[bernard11]

Bork lost on the merits.

Garland was a nominee who had been highly praised, including by some Republicans. Here's Orrin Hatch, shortly after Scalia's death.

"The President told me several times he’s going to name a moderate [to fill the court vacancy], but I don’t believe him," Hatch told us.

"[Obama] could easily name Merrick Garland, who is a fine man," he told us, referring to the more centrist chief judge of the U.S. Court of Appeals of the District of Columbia who was considered and passed over for the two previous high court vacancies.

But, Hatch quickly added, "He probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the [liberal Democratic base] wants.">

What an asshole.

[Rev. Arthur L. Kirkland]

Bork lost a bipartisan vote, and deserved to.

[bernard11]

All things considered, Garland never getting a vote was no worse than Bork, or Kavanaugh, or the Thomas nominations.

That's nothing but a nonsensical assertion. Bork was voted down in the usual, expected, process.

The fact is that the Republicans were, for whatever reason, too cowardly to allow a vote on Garland. Instead, they cowered behind McConnell's skirts.

[Dan Schiavetta]

Hear, hear.

[Krychek_2]

I think Bork lost because a majority of the Senate disagreed with his judicial philosophy, which is a legitimate basis to refuse to confirm. It wasn’t a situation in which they wouldn’t even entertain a nomination from that particular president; they did confirm when Reagan sent them someone a little more moderate. Bork would be relevant if the Democrats had said they wouldn’t hold a hearing on any name the president submitted. It that’s not what happened.

Please note that Scalia and Ginsburg were both confirmed nearly unanimously so it’s not that long ago that both parties were willing to not be partisan. I miss those days.

[bernard11]

Yes.

I doubt Kennedy's speech swayed many votes. Probably it didn't sway any, though it may have motivated opposition to Bork.

But Bork's record was pretty bad. His views on the First Amendment alone should have been enough to disqualify him.

It's interesting that there are those who go ballistic over some foolish speech restriction on a college campus nonetheless think Bork was mistreated badly by not being confirmed.

[Dan Schiavetta]

There was no character assassination with Bork. Nobody questioned his integrity, honesty and nobody got into his private life or made up any kind of scandal. They simply argued that he was extreme. (And of course they turned out to be right. Check out "Slouching Toward Gomorrah".)

[Bob from Ohio]

"(which just went big for Bernie)"

Not quite

Delegates Percent Vote CountCount
Sanders
9 25.7% 76,324
Pete Buttigieg
9 24.4% 72,457

[bernard11]

My point. The swing in voter sentiment just happened to make the difference in a few states.

[bernard11]

mk,

It was one speech.

There were plenty of objections to Bork, on the 1A issue, on civil rights, etc.

OK, there was some overheated rhetoric. Gee, that never happens in politics. The problem is that the right can't get past that one speech - in part probably because it was Kennedy - and see that, in the end, whatever the rhetoric, Bork got a hearing and a vote, and was rightly rejected.

He is a thoroughly manufactured martyr. Like other martyrs, his story, accurate or not, serves a purpose for some. If it's polarizing, it's because the right has chosen to make a polarizing myth about the man.

[Sarcastr0]

How weak-minded does m_k think the Senate was back then?

[Rev. Arthur L. Kirkland]

People who voted for vainglorious, lying, cheating, reckless bigots are in no position to criticize their betters with respect to votes.

Carry on, clingers. Until replacement, that is.

(Your Bork argument collapses against the point that many of those who voted against him -- including Republicans -- voted to confirm Scalia.)

[Commenter_XY]

The key was Bork's exchange with Senator Byrd regarding Congressional intent. That exchange sealed it.

Senator Kennedy's actions were reprehensible.

[bernard11]

Yet, it was only one speech by at Gettyburg, and only one speech by Cicero revealing the Catiline Conspiracy.

That's nice, m_k. I like that.

Still, the North would have won the war without the Gettysburg Address, and I suspect Cicero would have succeeded by other means as well.

Kennedy butchered what Bork’s positions actually were, badly enough, that need I re-iterate, that we got the verb “Bork” to this very day from.

A word invented by William Safire, and pushed by the right to help create the martyr.

Some of Bork's positions, besides the idea that free speech applies only to political speech, were that he thought the CRA was unconstitutional, had no problem with a poll tax (as long as it was small), saw no right of privacy (no condoms for you), and took a highly limited view of equal protection.

The attacks on him mostly were substantive.

[bernard11]

Let me add one thing.

Leaving all else aside, I think that Bork's views of the First Amendment should have been enough to disqualify him from any judicial appointment, never mind the Supreme Court.

[bernard11]

speeches mean something big at times, you agree.

Not sure what you are saying there.

When I said I liked the comment about Lincoln and Cicero, I meant I just liked the phrase, not that they had big effects on the relevant events.

If Lincoln had caught cold on the way to Gettysburg and chosen not to speak, would the war have come out differently? Was it the butterfly wingflap that led to the Union victory? I doubt it.

[bernard11]

My point is that Dilan's argument is wrong.

He says,

"So the Comey letter was uniquely persuasive among swing voters in a handful of Rust Belt states?"

As if someone were claiming that the letter had no effect elsewhere. No one is. It changed votes in NH, as you say, but not enough to give Trump the state.

[Rev. Arthur L. Kirkland]

Republican votes doomed Robert Bork. Not one of the Republicans and Democrats who voted against Bork voted against Antonin Scalia. Most of them voted for Scalia.

If your objection is that most senators -- including some Republicans -- objected to Bork after observing him and considering his record, that's a paltry objection. If your objection is that Bork was treated unfairly to the point that it hoodwinked Republicans (and dozens of Democrats who voted for Scalia), that's a strange contention. Did anyone who voted against Bork later claim to have reconsidered on the basis that Bork had been treated unfairly -- or, seemingly more likely, did senators indicate over time that Bork's testimony and record killed the nomination?

[Rev. Arthur L. Kirkland]

Bork gave people on both sides of the aisle the willies. The more he spoke, the worse it got for him. An objection 'it's too bad that people paid attention to this nomination and his record, and asked questions (that he answered, which answers injured his prospects), and made arguments against him' seems unpersuasive.

I do not know why Scalia sailed and Bork foundered, that point should not be ignored and my hunch is that Bork was extreme, belligerent, and a jerk -- I had some cursory, tangential interaction with Bork years earlier as a journalist, in connection with a desegregation dispute (guess which side he was on), and he seemed disagreeable and coarse -- while Scalia was a person who could (and would) charm a liberal lion.

[bernard11]

So judges don’t, or shouldn’t make decisions as influenced by popularly held beliefs?

Depends on the beliefs, of course.

If the belief in question is, say, that African-Americans are inferior in some way, then no, judges shouldn't.

If it's that the earth is round then it's fine.

[Pettifogger]

Or too smart

[Sarcastr0]

Do you think a speech without any evidence would sway anyone today? They why are you buying the narrative that the same thing was the but-for cause of Bork failing back in the day?

Moreover, as has been pointed out, he was a First Amendment horrorshow.

[Commenter_XY]

mad_kalak....Touching on your arrogance point with Bork. That is true. The acrimonious exchange with Senator Byrd on the issue of Congressional intent sealed his fate. I actually remember that moment quite vividly. I remember thinking to myself, "You just lost the seat with the 'tude"

[bernard11]

But did it swing the election to Hillary…that’s hard to say with certainty. Hillary likes the idea, because it takes the onus of her for running a shitty campaign where she took WI and OH for granted.

Assume you meant "Trump," not "Hillary" in the first sentence. Give us previews, or edits, please.

Anyway, FWIW, I don't think it takes the onus off Hillary. To claim that it excuses the lousy, overconfident, campaign is silly monocausalism.

OTOH, I've always thought a lot of analysis of 2016 overlooks the part that randomness played. The votes in those states were very close. Bad weather in one part of a state or another, meaningful local races, who knows what else, clearly could have played a part in making it go one way or another.

[Alpheus W Drinkwater]

Senator Ted Kennedy had the stones to look Judge Bork in the face and tell him publicly that he was voting against his nomination, and why. How said is it that today's Republican senators don't even measure up to Ted Kennedy?

[Alpheus W Drinkwater]

A hundred years? Wasn't that quote from Lawrence v Texas? That's 2003!