Antonin Scalia has died

[JimL]

Lower court says X.
Opponents appeal to Supreme Court of the US, because they think X is wrong.

Supreme Court hears the case, and, by majority, rule that X is wrong. X is, therefore, no longer law.
Supreme Court hears the case, and, by majority, rule that X is correct. X is, therefore, upheld as the law of the land.
Supreme Court hears the case, and, comes to a tie vote on the decision. X is, therefore, unchanged, and remains the law of the land.

A tie in the supreme court does not set a constitutional precedent, the lower court ruling (in this case on abortion) stands, and so remains the law in Texas, not in the country.

[rogue06]

In a matter of hours of the announcement of his death the ghouls at the Democratic National Committee were sending out fundraising requests based upon it. Never let a crisis go to waste as they say.

They still haven't learned from their fiasco after turning the funeral of Paul Wellstone (the Minnesota Senator who died in a plane crash in 2002) into a political rally and fundraising event that repulsed much of the American electorate to the point that many pundits think it cost them several seats in the House and very possibly Wellstone's own Senate seat in the 2002 elections held 2 months later.

[Cow Poke]

A tie in the supreme court does not set a constitutional precedent,

It would be silly to think so.

the lower court ruling (in this case on abortion) stands, and so remains the law in Texas, not in the country.

I think you got your talking points mixed up.

[RumTumTugger]

isn't it a conflict of interest for Obama to nominate someone for supreme court this year with cases coming up he is directly involved in?

[KingsGambit]

isn't it a conflict of interest for Obama to nominate someone for supreme court this year with cases coming up he is directly involved in?

No. It's the President's job to nominate SC justices, constitutionally.

[seer]

A truly great Jurist and a genuinely gracious man. From those who often found themselves on opposite ends of the political spectrum:

Statement of Justice Ruth Bader Ginsburg:

Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a
duet: “We are different, we are one,” different in our interpretation of written texts, one in
our reverence for the Constitution and the institution we serve. From our years together at
the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for
the Court and received a Scalia dissent, the opinion ultimately released was notably better
than my initial circulation. Justice Scalia nailed all the weak spots—the “applesauce” and
“argle bargle”—and gave me just what I needed to strengthen the majority opinion. He
was a jurist of captivating brilliance and wit, with a rare talent to make even the most
sober judge laugh. The press referred to his “energetic fervor,” “astringent intellect,”
“peppery prose,” “acumen,” and “affability,” all apt descriptions. He was eminently
quotable, his pungent opinions so clearly stated that his words never slipped from the
reader’s grasp.

Justice Scalia once described as the peak of his days on the bench an evening at the
Opera Ball when he joined two Washington National Opera tenors at the piano for a
medley of songs. He called it the famous Three Tenors performance. He was, indeed, a
magnificent performer. It was my great good fortune to have known him as working
colleague and treasured friend.

Statement of Justice Stephen G. Breyer:

Nino Scalia was a legal titan. He used his great energy, fine mind, and stylistic genius to
further the rule of law as he saw it. He was man of integrity and wit. His interests were
wide ranging as was his knowledge about law, this Nation and its Constitution. He loved
his family. He also loved ideas, music, and the out of doors. He shared with us, his
colleagues, his enthusiasms, his humor, his mental agility, his seriousness of purpose.
We benefitted greatly. His contribution to the law was a major one. Our hearts go out to
Maureen and his family. We have lost a fine colleague and a very good friend. We shall
miss him hugely.

Statement of Justice Sonia Sotomayor:

My colleague Nino Scalia was devoted to his family, friends, our Court, and our country.
He left an indelible mark on our history. I will miss him and the dimming of his special
light is a great loss for me. My thoughts are with Maureen, his children, and his
grandchildren.

Statement of Justice Elena Kagan:

Nino Scalia will go down in history as one of the most transformational Supreme Court
Justices of our nation. His views on interpreting texts have changed the way all of us
think and talk about the law. I admired Nino for his brilliance and erudition, his
dedication and energy, and his peerless writing. And I treasured Nino’s friendship: I will
always remember, and greatly miss, his warmth, charm, and generosity. Maureen and the
whole Scalia family are in my thoughts and prayers.

http://www.supremecourt.gov/publicin...r_02-14-16.pdf

[Juvenal]

Ruth Bader Ginsburg.

And Elena Kagan.

[DesertBerean]

Lower court says X.
Opponents appeal to Supreme Court of the US, because they think X is wrong.

Supreme Court hears the case, and, by majority, rule that X is wrong. X is, therefore, no longer law.
Supreme Court hears the case, and, by majority, rule that X is correct. X is, therefore, upheld as the law of the land.
Supreme Court hears the case, and, comes to a tie vote on the decision. X is, therefore, unchanged, and remains the law of the land.

Hrm...I don't think I'm asking the question correctly. But I was responding to Jim who seemed to be saying that ALL rulings would be stayed. Not sure where he's coming from.

[DesertBerean]

http://abcnews.go.com/Politics/anton...ry?id=36933236

The beat will go on...and speculation is rife already about appointment despite it being an election year.

[Juvenal]

Mitch McConnell is already saying that nobody should be nominated until the next presidency. History buffs: is there any precedence for waiting that long?

Here's an article about the practice of appointments during election years:

http://thehill.com/regulation/court-...o-fill-scalias

Senate President Mitch McConnell, Judiciary Chairman Chuck Grassley, and a pair of senators currently running for the Republican presidential nomination to the contrary, holding up a nomination in this case goes beyond historical precedent.

Election-Year Supreme Court Nominations Are Rare

Going through a Supreme Court confirmation battle in the middle of a presidential election has happened just five times in the past 100 years. The last one occurred in 1988.

What little precedent exists runs toward a nomination and confirmation.

• Anthony M. Kennedy, nominated by Reagan on Nov 30, 1987, confirmed 97-0 on Feb 3, 1988.
• Justice Abe Fortas, nominated by Johnson for Chief Justice on Jun 26, 1968, withdrawn on Oct 4, 1968.
• Homer Thornberry, nominated by Johnson on Jun 26, 1968, withdrawn on Oct 4, 1968.
• Frank Murphy, nominated by Roosevelt on Jan 4, 1940, confirmed by voice vote on Jan 16, 1940.
• Benjamin Cardozo, nominated by Hoover on Feb 15, 1932, confirmed by voice vote on Feb 24, 1932.
• Louis Brandeis, nominated by Wilson on Jan 28, 1916, confirmed 47-22 on Jun 1, 1916.
• John Clarke, nominated by Wilson on Jul 14, 1916, confirmed by voice vote on Jul 24, 1916.

Five cases made it to a vote, all of which were confirmed, while two — the linked nominations to replace Chief Justice Warren by elevation of Justice Fortas, and Fortas' replacement by Thornberry — were withdrawn. Those nominations were in late June. This is mid-February. Moreover, it's clear the "80 years" being cited ignores the January nomination and confirmation of Murphy in 1940, and was clearly chosen to exclude Cardozo's February nomination and confirmation in 1932.

To the extent that excluding election year nominations could be considered standard practice, that practice actually began in 1968, and even then applies only to nominations, not confirmations, after June.


Of course, I can't finish a Jerk™ post without reveling in the irony that in this case denying a nomination, as currently supported by partisan Republicans, would be in direct contradiction to Scalia's originalist jurisprudence, currently supported by partisan Democrats.

You can't make this stuff up.

[Juvenal]

Happy Presidents Day, y'all.

[Cow Poke]

Hrm...I don't think I'm asking the question correctly.

Yeah, or I wasn't reading it correctly.

But I was responding to Jim who seemed to be saying that ALL rulings would be stayed. Not sure where he's coming from.

Are we ever?

[JimL]

Hrm...I don't think I'm asking the question correctly. But I was responding to Jim who seemed to be saying that ALL rulings would be stayed. Not sure where he's coming from.

No. If the supreme court has voted on a particular issue already, say a 5-4 decision, but have not actually issued a ruling, then Scalias vote, because of his death, no longer counts and so it would be a 4-4 tie. The reason for this is that until the ruling is made Justices can, and sometimes do change their minds, change their votes. In a tie, the lower courts ruling remains in effect. In other words if the Supreme court has already voted on a particular issue before them, lets say the Texas abortion law, which was approved of by the lower court, and the Supreme court agreed with the lower court by a 5-4 split, but did not yet hand down the ruling, then because of Scalias passing, his vote no longer counts and with the resulting 4-4 tie the lower courts ruling stands. The main point is that a 4-4 tie can not overule a lower courts decision and the court is liable not to take up any cases under those conditions which if republicans continue to block any attempt to replace Scalia could go on for a year and a half.

[One Bad Pig]

Senate President Mitch McConnell, Judiciary Chairman Chuck Grassley, and a pair of senators currently running for the Republican presidential nomination to the contrary, holding up a nomination in this case goes beyond historical precedent.

Election-Year Supreme Court Nominations Are Rare

Going through a Supreme Court confirmation battle in the middle of a presidential election has happened just five times in the past 100 years. The last one occurred in 1988.

What little precedent exists runs toward a nomination and confirmation.

• Anthony M. Kennedy, nominated by Reagan on Nov 30, 1987, confirmed 97-0 on Feb 3, 1988.
• Justice Abe Fortas, nominated by Johnson for Chief Justice on Jun 26, 1968, withdrawn on Oct 4, 1968.
• Homer Thornberry, nominated by Johnson on Jun 26, 1968, withdrawn on Oct 4, 1968.
• Frank Murphy, nominated by Roosevelt on Jan 4, 1940, confirmed by voice vote on Jan 16, 1940.
• Benjamin Cardozo, nominated by Hoover on Feb 15, 1932, confirmed by voice vote on Feb 24, 1932.
• Louis Brandeis, nominated by Wilson on Jan 28, 1916, confirmed 47-22 on Jun 1, 1916.
• John Clarke, nominated by Wilson on Jul 14, 1916, confirmed by voice vote on Jul 24, 1916.

Five cases made it to a vote, all of which were confirmed, while two — the linked nominations to replace Chief Justice Warren by elevation of Justice Fortas, and Fortas' replacement by Thornberry — were withdrawn. Those nominations were in late June. This is mid-February. Moreover, it's clear the "80 years" being cited ignores the January nomination and confirmation of Murphy in 1940, and was clearly chosen to exclude Cardozo's February nomination and confirmation in 1932.

To the extent that excluding election year nominations could be considered standard practice, that practice actually began in 1968, and even then applies only to nominations, not confirmations, after June.


Of course, I can't finish a Jerk™ post without reveling in the irony that in this case denying a nomination, as currently supported by partisan Republicans, would be in direct contradiction to Scalia's originalist jurisprudence, currently supported by partisan Democrats.

You can't make this stuff up.

Toasti,

Looking at those nominations in the last 100 years, two were withdrawn (presumably because they weren't likely to have the votes needed for confirmation) and one nearly 100 years ago which came down to a nailbiting 47-22 vote. The others look to have been rather uncontroversial nominations. Even ignoring the politicized nature of the court (which was much less of an issue, barring FDR's attempt to pack it, back then), I don't see President Obama proffering a candidate likely to draw much bipartisan support. That's not how he rolls. If he surprises me, great - but color me skeptical.

[Spartacus]

http://www.theonion.com/article/obam...bortion--52361