Various and Sundry, 2/16/16

In which I catch up, briefly, on all the things:

* Hey, did you hear that Antonin Scalia died? Well, he did. I heard about just before I did my book signing session at ConDFW (which was lovely, more on that in a second), and roughly every fourth person in the signing line took it on themselves to let me know he’d died! In Texas! While I was in the same state! Isn’t that odd!

(It’s not odd. Texas is a big damn state, and Scalia was 79. These things happen.)

I wasn’t a fan of Scalia’s interpretation of the Constitution most of the time, and oh yes, Scalia interpreted the Constitution as much as any “activist judge” could be accused of; “Originalism” in general is a bunch of happy horseshit, since it pretty much boils down to “I’m going to rule however I want and blame it on James Madison.” Nice try, Scalia (and others), but no. That said, he and I have a few points in common, typically as they related to free speech — See Texas v. Johnson, United States v. Eichman and so on — so I can’t say there haven’t been moments where I didn’t appreciate him being on the bench, even if on balance I saw him being on the wrong side of history rather more often than not.

Now that Scalia’s dead, Mitch McConnell and other Republicans are trying to float the idea that Obama shouldn’t be allowed to name Scalia’s successor because “the people should have their say,” as if a) presidents have not nominated (and the Senate approved) judges in election years numerous times before, b) presidential terms somehow magically end more than eleven months before the new president takes up the gig. Speaking as one of “the people,” and specifically one of the people who voted for Obama in 2012 and will vote in the election of 2016, I know I didn’t and don’t vote for a president to have three quarters of a term; I voted for them to have a whole one.

Also, you know, the Constitution, of which Scalia was reportedly fond of, does not say “The president shall nominate Justices to the Supreme Court, unless it’s, like, less than a year before he’s out of office, or Mitch McConnell doesn’t like him, in which case screw that dude.” In this situation, what would Scalia do? The answer, as noted above, is “whatever he wanted, then he would blame Madison,” but in this specific case, the Constitution is pretty non-ambiguous about what needs to happen.

Bear in mind that if the Senate really is going to try to block Obama from making an appointment, no matter who he nominates, what they are doing is giving him a bludgeon, with which to pummel the entire Republican party, during an election year. I think Obama, who since the 2014 election is definitely in the “no fucks to give” phase of his presidency, will be delighted to pummel the GOP all the merry day long. So, you know. Go ahead, Mitch! You did a bang up job of limiting Obama to a single term. I’m sure this spectacular new plan of yours could in no way fail.

* On the subject of Republicans, a friend wrote me to complain that I had not written on the Saturday GOP debate. My excuse is that I was at a science fiction convention so my brain was busy elsewhere, and also that evening given the choice of watching the GOP debate or not, I went with not and watched Bridge of Spies instead. Hey, my pal Tom is in that movie! And I suspected it was going to be more coherent than anything that could come out of that debate. And wouldn’t you know, having seen the “highlights” of that debate, I was entirely correct!

At this point I can’t even image what it’s like to be a potential GOP voter here in 2016, and knowing that your top three choices for the job of Most Powerful Human Being on the Planet are a racist buffoon, a fumbling empty suit, and The Most Disliked Man in Politics, Ever. I’m not saying the GOP doesn’t deserve this; this is the bed it’s been making for itself since 1994 at least. But the rest of the country doesn’t deserve it. We’re getting it anyway.

(Oh, and the spectacle of Trump threatening to sue Cruz unless he stops being mean and lying all the time? It’s perfect, in the sense of “perfect” which means “Bless both their hearts.”)

* Moving away from politics, I spent last weekend at ConDFW, a very nice convention in Dallas, where I was on a bunch of panels, did a reading, and played the spaceship simulator Artemis, acting as the captain of the USS Scamperbeast. The game had a 20-minute time limit, and before we started I was asked if I wanted the game to go longer. I said “no, 20 minutes is perfect.” And then we played the game, and literally as the USS Scamperbeast was out of weapons, energy and shields, and two enemy spaceships were literally seconds away from blowing us out of the sky — our 20 minutes were up. That counts as a win, people. Also I’ve learned that I am a competent starship captain for exactly 20 minutes. After that: doooooooooom. But until then, I’m your man.

* Traveling to a convention and back again meant I was scarce here the last several days. Well, guess what? I’m soon to get on a boat, and will not be going online at all unless absolutely necessary, for about a week. So enjoy me while you have me, people!

64 thoughts on “Various and Sundry, 2/16/16

  1. It struck me today that the various Republican leaders and their presidential candidates remind me of the city leaders of Terry Pratchett’s Ankh-Morpork, all of them furiously conniving and plotting to get control of the city, with all the competence of a group of puppies trying to reverse the download of Windows 10. (All to the complete amusement of the uber-competent Lord Veterinari, of course.)

  2. If you’re in a ship called USS SCAMPERBEAST, and you’re out of weapons, energy, and shields, clearly your next step should be… naptime.

  3. You know, it’s getting to the point where the only political commentary I can stand to read is that produced by a science fiction writer. That juxtaposition of genres seems vaguely disconcerting, to be honest, but it does keep me coming back to Whatever regularly for another fix.

    Nice to hear that you had fun at the con, too. Bon voyage, and enjoy your cruise (not Cruz).

  4. “a racist buffoon, a fumbling empty suit, and The Most Disliked Man in Politics, Ever”

    I’m honestly not sure which of those is which.

  5. Funniest thing I’ve seen in a long time:
    http://cheezburger.com/8751295488/funny-twitter-image-justice-scalia-irony

    In case the image disappears, the text reads: “Antonin Scalia requested cremation in his will, but millions of women will meet tomorrow to discuss if that’s really best for his body.”

    Did I mention that you Americans are crazy* and scare the crap out of us Canucks?

    * Not you, John. So long as you’re not captaining my starship.

  6. One wonders what the Scamperbeasties feel about their flagship surviving only by the intervention of an updated sundial. Actually, I’m pretty sure that they are confident that anything involving sunshine is their’s anyway, so the updated sundial was merely playing its appointed role in the universe…

  7. Mr. Obama is just at work his moment giving almost the same exact reasons as you’ve outlined above as to why he’s going to select someone. Someone who will be a reasonable selection. As well as talking about the obstruction of the appointments judicial and other nominees in government, of recent for no good reasons whatsoever.

  8. I found out about Scalia at Capricon and my attitude was pretty much that America can wait until I get home to plunge itself into war over this.

    My attitude about this is that the President should nominate someone confirmable and the senate should honestly consider the candidate. I’m not confident that either will happen. Opposite party confirmations don’t have a great track record.

    Senator Barak Obama filibustered against a nominee. If he strongly believed that the man’s confirmation was that bad an idea, then I suppose that was his duty, but keep that in mind that other senators may have similar views.

  9. OK, I am a Republican (though most times I suspect that I’m The Last Rational Republican™). So, when the primary comes here to Ohio, do I vote for the least bad candidate just in case that perons somehow manages to go on to win the general election, or do I vote for the worst one on the theory that that person will then have much less of a chance of winning the general election?

  10. Justice Scalia was one of the most brilliant legal minds of his generation. His opinions were always well-reasoned and adhered to the conventions of the Court and precedent. I greatly enjoyed reading them even when I disagreed with him violently.

    In addition to all of John’s reasons for giving Mitch’s threats a big raspberry here are two more:
    1. Without an appointment before the election two terms of the Court will result in lower court decisions remaining untouched. The current composition of the Court will result in a 4-4 vote on any sufficiently conservative issue, which means the lower court ruling stands. As the lower circuit courts are weighted about 2-1 with Democrat appointees, it means that more liberal views will dominate the next two sessions.
    2. As a logical consequence of GOP stonewalling about 8 Republican senators in close races will have to face the voters on their failure to fill the empty seat.

    Put these 2 together and you may see SuperPAC supported ads targeting Republican senators in close races putting them on the hotseat for liberal court results. For example, the funding of Planned Parenthood as part of Obamacare is one of those cases the Court will be weighing in on. Without a moderate/conservative appointment the lower court decision will stand, and Planned Parenthood will be funded. Look for ads pointing out that “[Republican] Senator so-and-so is in favour of funding Planned Parenthood with your tax dollars” in races where the Democratic candidate is more conservative (or appears so due to the demographics of the electorate).

  11. My father had a brilliant idea that Obama could use to beat the GOP about the head with with: nominate Condi Rice for Scalia’s seat. Though I doubt she’d be willing, it’s perfect: like her politics or not, she is qualified, she’s a Republican (but probably reasonably moderate), plus, she’s a black woman. So, so many ways to make McConnell eat his words (and his tie, shoe, and hopefully seat).

  12. Didn’t you hear John that Scalia was MURDERED TO DEATH 11!!!!1eleventy

    WTF is wrong with Republicans? Is there nothing they won’t believe?

    Although they still believe in tinkle down economics (ht: someone else) so I guess they do believe six impossible things before breakfast on a regular basis….

  13. You should really be watching ‘Full Frontal’ with Samantha Bee. Her bit on Mitch McConnell “honoring” strict originalist Scalia by announcing they were going to refuse to let the President carry out his constitutionally-mandated duty was priceless.

  14. Well, John, despite the fact that right now, it’s the Republicans who say they’re going to block any Obama nominee, back in 2007, Senator Charles Schumer (D-NY) said the same thing about blocking any Bush nominee. Now the shoe’s on the other foot, and who’s whining?

  15. President Obama is clearly within his constitutional authority to nominate whomever he wishes. The Senate, however, is under no constitutional obligation to vote on President Obama’s nominee for the remainder of his final term in office.

    If Senate Majority Leader McConnell’s position holds, then the Senate Republicans will be turning the election into something of a referendum on Supreme Court appointments, which is probably not a bad thing . . .

    As for who gets to pummel whom, that’s a two-way political street–one that might well be a proverbial wash in terms of generating greater interest and enthusiasm among the party faithful on both sides.

    To date, Democratic turnout in the primaries has been below recent levels. Republican turnout is above said levels. It will be interesting to see if the Supreme Court vacancy has any effect on this emerging pattern. The reactions of Blue State Republican senators up for reelection will also be telling. . .

  16. Your political commentary is some of the most entertaining stuff I have ever read. I’d like to provide an opinion of my own on this matter but you have covered both Scalia’s replacement as well as the current state of the GOP in a much more elegant and humorous manner than I could. Brilliant stuff, definitely got a kick out of it!

  17. Didn’t you know a black president only gets 3/5 of a term? ;-)

    Best suggestion I’ve seen so far: put Sandra Day O’Connor back in as nightwatchman.

  18. “I’m not saying the GOP doesn’t deserve this; this is the bed it’s been making for itself since 1994 at least.”

    The GOP has been making that bed since the late ’60s when they welcomed all the Southern Democrats (or at least those pissed off about Johnson’s Civil Rights programs) into the fold with open arms. It’s just been accelerating more since 1994.

  19. I once was told that Democracy is where everyone gets what the majority deserves. I sincerely hope that isn’t true.

    Scared Canadians: We are so VERY, very sorry that things have gotten this bad. Some of us are trying to be less frightening. I swear.

    Also, if Trump is elected, can I come live with you? Cause that dude is seriously nuts!

  20. Bob Neinast noted: “OK, I am a Republican (though most times I suspect that I’m The Last Rational Republican™)”

    I don’t get this. The way I see many Americans talk about politics, it seems like you’re born a Republican or Democrat, and you have to vote that party line the rest of your life, no matter if the least awful candidate is still an embarrassment, not to say a clear and present danger. *cough*Trump*cough*

    Isn’t there some kind of public consensus that in a democracy, you should be voting for the best candidate, regardless of their party?

  21. Fuzznose, you might be interested in reading this article at former Scalzi classmate Josh Marshall’s site: http://talkingpointsmemo.com/edblog/lol-has-anyone-looked-at-what-schumer-actually-said

    Here’s the main quote: “Schumer quite explicitly never said that the Bush shouldn’t get any more nominations. He also didn’t say that any nominee should be rejected. He said they should insist on proof based on judicial history, rather than just promises that they were mainstream conservatives rather than conservative activists, which both have proven to be.”

    There’s a video as well. Would you care to take back your “whining” comment now?

  22. @Geoff – some states have “closed primaries” meaning that since you’re ostensibly picking the candidate your party should support, you can only vote for candidates in your party. In the actual election in November, people can vote for whichever candidate they think is least horrifying, regardless of party.

  23. @Fuzznose, re” back in 2007, Senator Charles Schumer (D-NY) said the same thing about blocking any Bush nominee. Now the shoe’s on the other foot, and who’s whining?”

    If Schuemer had been Senate Majority Leader at the time, and if the other Democrats had gone along with his proposal, you might be right. I don’t think criticism of McConnell (or Scheumer back in 2007) is the same thing as whining in any case. I suppose we’ll have to see how this plays out. Some Republicans may break ranks with McConnell, but a number have already they’ll vote to block consideration of any nominee:

    http://www.nytimes.com/2016/02/16/us/politics/more-republicans-say-theyll-block-supreme-court-nomination.html

  24. The notion that the new Supreme Court seat should be an election issue seems rather bizarre to me, since ideally the courts are one of the more apolitical government institutions.

    I mean, obviously it hasn’t worked out that way with the US Supreme Court, but that’s how it’s supposed to work. And I doubt that raising hell about it on the campaign trail will help in that regard.

  25. “[Scalia] died! In Texas! While I was in the same state!”
    Rabid Puppy post accusing Scalzi of murdering Scalia in 5,4,….

  26. Here’s the thing: Look at the senators who are up for re-election in 2016. 34 of them; about 13 of which are “toss up” seats (11 GOP + 2 Dem). Those 13 are mostly GOP senators who were elected from swing or blue states in the 2010 GOP wave. If the Dems manage to pull a win from only about half of those (6 wins out of 13), they net 4 seats and take back the Senate. After those new Senators are sworn in, Obama will still be President for another 2 weeks or so (in the lame duck period).

    The Dems won’t allow another Scalia onto the court (as Kagan and Sotomayor showed, we are no longer in the 90+ vote approval time of nominees Kennedy, Scalia, and Ginsburg).

    So, Let’s assume Obama nominates a clear moderate. Not a conservative firebreather, but a definitive moderate: Someone between Kennedy and Breyer, or maybe around Breyer ideologically. The GOP successfully delays. The GOP fails to maintain all 11 toss up seats (in a Presidential Election year, no less) and thus the Dems do win at least 50% of the tossup seats in the Senate, and take control of the Senate quickly into the new year. No matter who the next President will be, a strong progressive firebreather could then be approved to fill that vacant seat during the Lame Duck period before Jan 20 (the filibuster rule would be dispensed with, I suspect, when the new Senate took effect).

    Or, if Hillary wins, then she could simply appoint Obama to the seat once she takes office. Or whomever else she wants.

    On the other hand, if a conservative wins (keep in mind that the GOP has lost the popular vote for President in 5 out of the last 6 elections), the GOP has to know that the Dems will not allow anyone more conservative than Kennedy (or maybe Roberts) to be appointed.

    Meanwhile, until then, that conservative majority on the court is no more. No more 5-4 decisions along conservative/progressive lines.

    Thus, If I were a GOP senator (spoiler alert: I’m not), I would be putting together a list of 10ish moderates whom the GOP can support and whom they believe Obama would also feel comfortable nominating… and suggesting to President Obama that anyone on this list would easily be confirmed. The sooner the GOP realizes that their 5-4 conservative court died with Scalia, the more quickly they’ll realize that a moderate is going to be the best result they obtain in the near term.

    It is also the right thing to do.

  27. Geoff Hart wondered: “I don’t get this. The way I see many Americans talk about politics, it seems like you’re born a Republican or Democrat, and you have to vote that party line the rest of your life . . .”

    Well, I live in one of the gerrymandered districts that’s 60%/40% Republican/Democrat, so I decided to stay Republican to try to have a voice (okay, vote) in the Republican primaries (which cover a lot more than just presidential elections).

    And I also rather like David Brin’s party registering strategy.

  28. @Geoff Hart: Party registration isn’t the same thing as a declaration of which candidate you’re going to vote for in a general election. There isn’t a clear-cut notion of party membership in the US, but some (not all) states require registering one’s affiliation with a given party in order to vote in the primary election for that party’s candidates.

    Whether or not that’s necessary, sometimes there’s a significant amount of crossover voting, in which people will vote in the primary of the party they usually don’t vote for in order to select the least-bad candidate, especially when the presidential primary is seriously contested in one party but not the other. Sometimes, they’ll try deliberately voting for the worst candidate in order to sabotage the other party’s general-election chances, but in my experience that is a thing more talked about than actually done.

  29. The passing of a Supreme Court Justice provides an apt reminder that autoerotic asphyxiation remains an embarrassing entry in an obituary.

  30. @Geoff Hart: didn’t y’all just get rid of Harper after ten years?

    On Scalia:

    His opinions were always well-reasoned and adhered to the conventions of the Court and precedent.

    I read comments like this, and I have to wonder if I am reading SCOTUS opinions from Earth-Prime. Or perhaps, as has been pointed out by others smarter than myself, Justice Scalia reached a point in his career where he decided it was better for him personally to write opinions aimed not at legal scholars or judges, but at his political fans, who don’t care much about whether something is a good appellate opinion as whether it’s saucy and takes a plank to the other side. His opinion in Employment Division v. Smith was not “well-reasoned” and was something of a joke in the legal community; his dissent in Obergefell v. Hodges was a tantrum.

  31. “Texas is a big damn state”

    No it’s not. Texas is barely a quarter of the size of Western Australia. (268,581 square miles/696,241 square kilometres versus 1,021,478 square miles/2,645,615 square kilometres according to Wikipedia.)

    Texas isn’t even half the size of Alaska!

    I don’t know how Texans can stand the crowding even. Again, according to Wikipedia the population density of Texas is 40.8/km2/ 103.1/sq mi whereas here we have a much more comfortable 1.00 person per square kilometre. ;)

  32. we have a much more comfortable 1.00 person per square kilometre

    Which is horribly overcrowded by Antarctic standards. How do you folks stand it?

  33. His opinion in Employment Division v. Smith was not “well-reasoned” and was something of a joke in the legal community; his dissent in Obergefell v. Hodges was a tantrum.

    Scalia’s dissent in Lawrence v Texas was so well reasoned it was used to argue, successfully, in favor of gay marriage, so there’s that.

  34. Thanks for all the explications of the U.S. voting system: If I’ve got it right, you need to belong to a party to elect that party’s candidate, and can then vote for whoever in the actual election. (With the inevitable fine print leading to variation among states.) Makes good sense: if you’re not part of the team, why should you be allowed to elect its captain?

    mythago wondered: “didn’t y’all just get rid of Harper after ten years?”

    Indeed we did, but he wasn’t scary. More like offensive to reason, which is a very different thing: scary people offend reason, but not all of those who offend reason are scary. I used to refer to him as “Bus(c)h Lite”: nominally beer, but a pale shadow of the real thing.

    More importantly, that’s how democracy should work: the majority elects the person they think will do the best job, and after a few years, they can un-elect that person if they guessed wrong.

    An interesting Canada vs. U.S. difference is that our prime minister can be elected for as many terms as they can hold the public’s confidence. In theory, this could lead to dictatorship, but in practice, it’s never happened here or in the U.K., whence the custom originated. Limiting an American president to only 2 terms is rational in many ways (particularly if you look at the European history that motivated this choice), but the significant downside is that when you get a really good president, they don’t have much time to do what needs doing. It’s a check-and-balance principle that makes sense, but that may (on balance) be a negative.

  35. I agree with Mythago. Scalia, like William F. Buckley before him, is one of those guys who has a reputation for being smart, when they were mostly just clever at sniping at their opponents. His historical objections to condoning homosexuality, for an example, were a cherry picking festival wrapped up in a ribbon of confirmation bias.

  36. PrivateIron: Interesting point. William F. Buckley certainly could stick the rhetorical knife with ease. However, a strong case can be made that he did far more to change the course of American history (i.e., by articulating the conservative intellectual framework that defined the Reagan Years) than any of his literary/political detractors at the time. Check out Best of Enemies on Netflix if you get the chance. . .

  37. Glad you enjoyed Texas. I think it rubbed off on you a bit:
    “It’s perfect, in the sense of “perfect” which means “Bless both their hearts.”)”
    Come back soon!

  38. On the topic of “Originalism” there’s a charming anecdote in “The Age of Federalism” by Elkins & McKitrick of how when James Madison tried to torpedo the Jay Treaty in the House there was a backbencher who noted that since he wrote the Constitution he ought to know better!

  39. @Geoff Hart: There are arguments for and against term limits for heads of government. On the one hand, those who serve longer than about eight years tend to go somewhat crazy from the stress and isolation (eg. Thatcher and Blair in the UK). It can also result in popular leaders hanging on for years after their physical health has started to fail, and they’re no longer up to the job; FDR was already deathly ill during his 1944 re-election campaign.

    Contrariwise, good leaders are hard to find, and sometimes it’s worth letting them stay longer. AIUI, Chancellor Merkel of Germany is still widely respected after more than 10 years in the job. And if he’d been allowed to, Bill Clinton would almost certainly have run for and won a third term, and the post-9/11 history of the USA would have been very different…

  40. Well, boldly charging into this pointless political argument (given even the so-called “Smart Set” has no flipping idea who Obama will or should nominate) – SCAMPERBEASTS FOR THE SUPREME COURT!

    Hey, they can’t be any more of an out-of-touch, lying bigot than Scalia – and unlike him, they’re adorable when they’re destroying things.

  41. “racist buffoon, a fumbling empty suit, and The Most Disliked Man in Politics”

    Umm, as a poorly educated limey, abroad, could someone illuminate me as to which of the three these refer to, as they seem pretty intechangeable. Thx.

  42. @David Murdoch, “racist buffoon” is most likely Trump, but the other two entries I’m shaky on. (In my defense, my state has closed primaries and I’m registered Independent, so I can’t vote until November.)

  43. My mother is a diehard Republican because her dead parents were and it would be a betrayal of them to vote otherwise. (I don’t even waste my time trying to argue about politics with her, plus she works in a money field and is surrounded by Republicans and parrots what they say anyway.) I pointed out that she’ll probably have to vote for Trump and she was all, “I’ll vote independent!”

    Go figure.

  44. “Fumbling empty suit” is Rubio, who robotically repeated the same comment about Obama four times in the previous debate, including twice after Christie called him out for mouthing talking points. “Most hated …”is Cruz, who reputedly is disliked by the entire US Senate. The joke is that people dislike him immediately because it saves time.

    The two-term limitation for presidents is a consequence of Franklin Roosevelt’s four terms, which might have gone on longer had he not died prematurely. Republicans especially wanted to prevent such such occurrences in the future.

  45. Dear John,

    I am not paying much mind to senators vowing that they will not approve any nominee, because it doesn’t mean anything. It’s the political marketplace, which is a lot like an Indian one. You get to a stall and the vendor tells you he wants Rs.1000 for the vase. You tell him you think it’s worth half a rupee. He says you’re insane. You say the same. Now you’ve staked out your positions, which you both know are unrealistic, and you start haggling until you come up with an agreeable price.

    The political calculus on this one is horribly, horribly complicated. My analysis: both sides would dearly love to be able to wait until both nominating conventions were over with. Then they’d have an idea what their respective futures might be like. They can’t. The Court term ends in June and the nominating conventions are in July. If the Republicans hold things up until the nominating convention is over, then really they might as well hold it up for the whole rest of the year, because it won’t make much difference. This is a political loser for them, because it’s already been well established that the voting populace, on the whole, really does not like the obstructionist shtick. They tried it. Didn’t go well. Except with a fanatical 15%, and they’ve got those people in their pocket already. In an election, it ain’t about energizing the fanatical faithful (on any side).

    Republicans also have to consider the possibility that there’s about a 50% chance it’ll be Clinton vs. Trump. That is an all-around loss for them. If Clinton is elected, she won’t have a political position that’s markedly to the right of Obama’s, which just means they’ve stalled the game for a year and accomplished nothing but garnering ill will. Trump is the definition of wildcard; nobody has a clue what kind of people he’d nominate for the Supreme Court… or whether they would be any more palatable to Republicans than who Clinton (or Obama) would nominate. ‘Cept Trump’d be “their” guy and so they’d kinda have to go along with it.

    So, there’s not a big percentage for Republicans in stalling this. Plus, it’ll cost them a bunch of real stuff, not just voter good will. With an eight-person Court, the majority of the major decisions still to come down this term that would’ve turned on Scalia’s vote are going favor the “liberals” (a few “hung” cases swing the Repub’s way). In particular, there’s the EPA/coal industry suit, the one the conservative majority just issued a temporary stay on. Without Scalia, it splits 4-4, for certain, and then the suspended appeals court decision upholding the EPA regulations goes into effect.

    How do you think that will go over with Big Business in the major coal and mining-industry states? BB’ll be putting serious pressure on its senators to break with any effort to stonewall a nomination. They might lose the case with a new unknown judge, but they’re guaranteed to lose it if there is no new judge. Ditto on the one person/one vote vs. one citizen/one vote Texas case. Not clear how the full court would’ve voted, but again without Scalia it splits 4-4 and one person/one vote stands.

    In both of these high-stakes cases, for the Republicans it will definitely be a case of better the devil you don’t know than the one you do.

    The other thing stonewalling costs Republicans is a political advantage. Up to this point, there was nothing to negotiate about with the president because the Republicans had made it pretty clear they weren’t going to support any of Obama’s initiatives and Obama made it pretty clear that he would push the Imperial Presidency as far as he could without them. The Republicans had nothing to offer up (that they could afford to give, really) that Obama wanted. Now they do– a fair hearing for Supreme Court nominees. That’s a big bargaining chip. Unless both Obama and McConnell are both a lot stupider than I think they are, it is one that will get used. There’re going to be a lot of off-the-record backroom discussions in the next couple of weeks, ‘twould be my guess, and Obama will hand them some kind of legislative concession in turn for hearings.

    The sooner they come to a deal, the better it’ll be for the Republicans. But they definitely need to have someone in place by the end of May, because the coal industry suit is getting an expedited hearing on June 2.

    Anyway that’s my 2000 cents worth.

    This is sooooo much more fun than the interminable and tedious primary campaigns!

    pax / Ctein
    [ Please excuse any word-salad. MacSpeech in training! ]
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  46. Outer Space Guy at 9.24 pm makes a good point. The GOP ought to quietly suggest a moderate compromise candidate they can agree to gracefully. But these guys are, bluntly, not right in the head. They cannot bring themselves to treat Obama as a *real* president no matter how many elections he wins by how many million votes. And I’m biting my tongue hard not to make deductions about what category it is he belongs to, that has no rights that other categories need respect. (Speaking of Supremes.)

  47. The stated position of the senate majority and its leader is that they will not consider anyone Obama puts forth. That is the very definition of ‘bad faith’, and as such, he’s perfectly within his rights to make a recess appointment without even batting an eye. I hope he does, but I don’t want to be standing next to a teabagger who hears the news for the first time. Brain matter and bone are not things I look forward to washing out of my t-shirt.

    As far as the suggestion of Anita Hill, I enthusiastically concur. Clarence Thomas will go bug-fuck insane and get a one-way trip to the Rubber Room Hotel. Then Obama gets to nominate *two* SCOTUS candidates!

  48. Dear Ctein,

    I shared your analysis on the Supreme Court vacancy with our resident electricity market analyst. Here is her take FWIW (and with her permission):

    “A few thoughts . . . .

    The Clean Power Plan won’t make it to the Supreme Court until 2017 when a new president has assumed office. So there is a chance that the seat would still be vacant but much of the analysis I’ve seen expects the seat to be filled by then. (The lower court should rule late this year. Two of the three judges are Democratic appointees.)

    This case is unprecedented. The EPA has never regulated CO2 emissions from power plants. So it’s hard to know what will happen – will the court defer to the agency or say the EPA exceeded its authority. If the vote on the stay is any indication, then the split will be 4-4. However, if the liberals can pull Kennedy to their side, then the rule could survive even with an empty seat.

    From what I’ve read, the stay will remain in place. Perhaps the EPA could petition for the Supreme Court to revisit it, but there’s a strong chance that the Supreme Court would refuse to revisit their decision.

    Though the coal industry definitely opposes the CPP, I saw and interesting survey that the utility mostly supports it: “Most utilities would like to see the EPA’s Clean Power Plan go forward. Utility Dive’s sixth Annual State of the Electric Utility Survey, released yesterday and conducted before the Supreme Court stayed the rule, found that 70 percent of utility executives would like to see the rule’s targets left in place or increased and its timetable remain unchanged. The remaining 30 percent of respondents would like to see targets lessened or the rule scrapped entirely. Much of the opposition comes from cooperatives, a group that mostly serves customers in rural areas, and that has made its opposition to major EPA Clean Air rules no secret.”

    Finally, with regard to the balance of the Supreme Court, there is to consider that three of the remaining justices are older and will likely need to be replaced by the next president. It’s unlikely that the current balance of the court will remain throughout the next presidency regardless of Scalia’s successor.”

    Best,

    Pedro

  49. Dear Pedro,

    ACK! You’re right. Or, more accurately, your resident EMA is. I misread the schedule– the June 2 hearing is before the Court of Appeals, not the Supreme Court. Totally different scenario. Mea culpa.

    I largely agree with the rest of her analysis.

    This modifies any political calculations, of course. I still think the handicapping will favor the Republicans horse-trading with Obama over this rather than stonewalling, but it’s not quite the same.

    ‘Course it may turn out that everyone is a lot dumber than I think. It’s happened before…

    In any case, the Scalia Era is over and is not any more likely to be recapitulated than the Warren Era was. Up until the last half dozen years when he seemed to be losing it in several ways, Scalia was a giant– prodigiously smart and well-versed in the law, eloquent, personable, clever and funny, a serious wit and charming to deal with.

    That’s truly a terrifying combination in the Opposition. Well, my opposition– Scalia was my worst nightmare (except for those rare times when we agreed, and they did happen, as in Scalia’s Aveo dissent). That combination’s not going to be repeated. Thank god.

    pax / Ctein

  50. Dear Ctein,

    Good evening. Happy to contribute to the dialogue, at least in a small way. It also helps to work with super-sharp people, two doors down in this case, who monitor and analyze interesting issues outside my areas of expertise. I’ll be sure to pass your response along. . .

    I wholeheartedly agree that the SC opening makes for far more interesting politics than the ongoing primaries. However, I’m not convinced that this issue will be singularly decisive in shaping the November election as some currently speculate. Whatever pressing issues the electorate is fixated on today may not be the issues of overarching concern come October, when the undecideds start making up their minds.

    Who knows? Maybe an alien starship will be detected in the environs of Saturn or thereabouts and change the course of history!

    Best,

    Pedro

  51. I think that President Obama should nominate himself to the Supreme Court. Its probably such an unlikely event that there may not even be a rule forbidding it (or there may be I’m way too lazy to look it up…), he’ll need a new gig in about 300 odd days and “POTUS to SCOTUS” has a nice ring to it. Consider this my entry in “Fantasy Supreme Court Nominee’s” that seems to be all the rage at the moment.

  52. Dear Pedro,

    Hahaha!

    I agree– this doesn’t have a big effect on either the primaries or the election itself. Slightly raises the stakes, but only in that an-already likely hypothetical is more on people’s minds. Plus, eight months is forever in politics… as the event we’ve been discussing demonstrates.

    pax / Ctein

  53. Outer Space Guy hinted at it, but my favorite schadenfreude scenario is: (1) Obama nominates… anybody, really; (2) Senate Repubs refuse to consider said nominee; (3) in Nov, Hilary win POTUS and Repubs lose control of the Senate, in part because of (2); and (4) POTUS Hilary nominates and Dem-controlled Senate confirms Obama to SCOTUS. It will never happen, but it would be so very, very much fun to watch.

  54. Pedro@ 6:03AM
    That’s not a very smart rumor. It’s not written into the UN equivalent of the constitution, but there’s a tradition that the SecGen can’t come from any country with a permanent spot on the Security Council. It’s a pretty firm tradition – the Security Council has veto power over the choice of SecGen and does anyone really believe that Russia is going to accept a USian as the nominal leader of the UN?

  55. Think about it people! Scalzi goes to Texas and Scalia dies! Connect the dots! Obviously Scalzi and his cabal of Femina zi SJWs assassinated Scalia so that the Kenyan Usurper can appoint another supreme court justice, which will make the court decide the contested 2016 election in favor of Bernie Sanders, who will raise taxes in order to fund his seed AI, which will convert the very fabric of American space-time… to socialism!

    It ALL MAKES SENSE!

  56. Oh come now! Everyone knows black presidents only get 5/8 of a term.

    I get it. They were one vote away from overturning Roe v Wade, something they’ve been promising since Reagan, and they want to have a conservative. I encourage them to insist on one. Bring Ted Cruz back to shut down the government over it. That will make it more likely they’ll lose the Senate too.

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