Littwin: Why the GOP fears Obama filling Scalia’s SCOTUS seat

Why Republicans don't want Barack Obama to fill Antonin Scalia's Supreme Court seat

So let the jiggery-pokery — in the famous words of Justice Antonin Scalia — begin.

Actually, we’re a little late. The jiggery and the pokery are already both in full swing. As you surely know, Scalia died Saturday morning, and we’ve re-confirmed in the last few days that American democracy isn’t doing so great either.

This is where matters stand. With Scalia’s death, the Supreme Court is now deadlocked 4-4 between liberals and conservatives. And so, the successor to Scalia may, in fact, be the most consequential appointment in judicial memory. It was sufficiently important that Barack Obama made a pre-Republican-debate appearance Saturday night to convey his condolences and, more to the point, announce that he planned — because it’s his job — to send the Senate a nominee to replace Scalia.

He felt the need to do so because Republicans were lining up to say that Obama, as a lame-duck president, should step aside — as if he weren’t president for the next 11 months — and let the next president make the decision. In a pre-emptive attack, Mitch McConnell had already said he would block any Obama appointee, no matter who it was, presumably even if it were one of Scalia’s nine children.

In other words, the Republicans are prepared to emasculate the court for the next, say, 15 months or so — with all those expected 5-4 decisions turning into 4-4 ties, meaning nothing actually gets done —  so Obama can’t pick a third justice.

This is, let’s say, untenable. It’s also a likely Republican disaster.

By ensuring that this appointment process becomes a political brawl, it also ensures that this appointment becomes a focal point in the 2016 presidential election as well as in U.S. Senate elections.

This is a yuge problem for Republicans on a number of fronts.

First, although I don’t have any polling on this, I don’t think I’ll get much argument by saying that the state of the courts matters more to typical Republicans than to typical Democrats, even when Republicans have majorities. Just look at how the very conservative Chief Justice John Roberts has been vilified by the right for his two votes on Obamacare. With the vacancy becoming an open sore on the judiciary, no one will have to be reminded of the stakes — on both sides — in the coming election.

Second, Republicans have already announced that this is all about politics. We’re supposed to believe, as Roberts recently said, that the courts are above all that. And if no one actually believes that any more, we’re still supposed to aspire to it. And even if it’s probable that Democrats would do the same thing if positions were reversed, the fact is that they’re not reversed. And so, Republicans will have to defend against attacks like the one from Harvard law professor Sen. Elizabeth Warren who said that Republicans were showing they didn’t really care about the Constitution, except, you know, when it was convenient.

She put it this way:  “Article II Section 2 of the Constitution says the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate,” she wrote. “I can’t find a clause that says ‘…except when there’s a year left in the term of a Democratic President.’”

If you watched the unruly, and not in a good way, GOP debate, you saw that the jig — and the jiggery-pokery – was up. Ted Cruz and Marco Rubio, in a rare show of comity, both explained that it has been more than 80 years since a president nominated a Supreme Court justice as a lame duck (Rubio) or got one confirmed in an election year (Cruz). It so happened it was the same thing that Chuck Grassley, who’s chair of the Senate Judiciary Committee, had been saying. Grassley might have known better. In 1988, in very much an election year, Anthony Kennedy was unanimously confirmed — and one of the senators voting for him was, yes, Chuck Grassley.

The real rationale is that conservatives desperately want a conservative to succeed Scalia, a conservative icon for three decades. It’s not that you can blame them for that, it’s just that you can’t defend, constitutionally speaking, a Senate that would refuse to at least consider Obama’s nominee.

The politics are pretty clear. Obama will probably nominate an appellate judge who was unanimously approved by a Republican Senate (that gets to the obstructionist angle) or a Latino (one more reason for the Hispanic vote to go Democratic) or maybe even a pro-choice, pro-gay-rights, anti-Citizens United Republican (if one actually exists).

My guess is that Obama’s nominee — or nominees – will get a hearing because how could they not? And the hearings will be ugly — because that’s what they are these days — and the fight will drag on for months. And the voters won’t be able to miss either the ugliness or the fact that dysfunction is the Senate’s default position or that the next president could easily have as many as four of these battles to get though, with the stakes growing higher with each one.

Photo credit: Stephen Masker, Creative Commons, Flickr.


  1. Scalia was an outspoken conservative appointed by Ronald Reagan. Is it “normal” for people to die of natural causes WITH A PILLOW OVER THEIR HEAD ?

    “We discovered the judge in bed, a pillow over his head. His bed clothes were unwrinkled,” said ranch owner John Poindexter.

    Conveniently (and against the law by the way…) no autopsy will be performed.

  2. President Obama will not be a lame duck until November 8th, 2016. Just another attempt to cast a negative light where there is none.

  3. Right. Because in the real world, the killer (and his/her nefarious overlord) would be clever enough to conceal the crime … yet stupid enough to leave such evidence behind — that little detail of forgetting to remove the pillow from the face of the guy you just smothered with it.

    What a goddamn country we’ve become.

  4. The pillow over Scalia’s head… is a MESSAGE.

    A message to anyone else who might want to oppose or be outspoken against the establishment.

    Scalia’s family will cower in fear quietly accepting the insurance money. And what a wonderful opportunity for Leftists to fill Scalia’s seat and finish slitting America’s throat.

  5. “In other words, the Republicans are prepared to emasculate the court for the next, say, 15 months or so — with all those expected 5-4 decisions turning into 4-4 ties, meaning nothing actually gets done —  so Obama can’t pick a third justice.

    This is, let’s say, untenable. It’s also a likely Republican disaster.”

    Take that, Senator McConnell and you nasty Supreme Court emasculating Republicans!

    And New York Democrat Senator Charles Schumer echoes exactly Mr. Littwin’s views. This from Schumer’s Sunday appearance on ABC’s This Week

    “Well, the job, first and foremost, is for the president to nominate and for the Senate to hold hearings and go through the process. You know, the Constitution, Ted Cruz holds the Constitution, you know, when he walks through the halls of Congress. Let him show me the clause that says president’s only president for three years.

    Here, he doesn’t even know who the president’s going to propose and he said, no, we’re not having hearings; we’re not going to go forward to lead the Supreme Court vacant at 300 days in a divided time.”

    Wait, what? According to in July, 2007 Senator Schumer endorsed a McConnell-style “pre-emptive attack” against President Bush’s Supreme Court nominees?

    “We should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances,” Schumer said. “They must prove by actions not words that they are in the mainstream rather than we have to prove that they are not.”

    Well, in 2007 Mr. Littwin was writing an opinion column for the Denver Post and I’m sure if I search the Post’s 2007 archives I’ll find that Mr. Littwin—-who values integrity above politics—-wrote a column that ripped Senator Schumer a new one and called his plan a likely Democrat disaster!

    After all, Schumer’s untenable plan would have emasculated the court for, say, 20 months, or so.

    It appears I may have spoken too soon. Back in 2007 Mr. Littwin was so preoccupied with vilifying Newt Gingrich and Tom Tancredo he apparently missed Senator Schumer’s Supreme Court emasculating efforts.

    OK, but now that Mr. Littwin is aware of Senator Schumer’s hypocrisy he’ll rip him a new one in his next column.

    Or not.


    “So. Nevada. Clinton’s firewall? That’s what they say. It’s supposed to be the state where Clinton campaign manager Robby Mook will work his magic, as Mother Jones reported Wednesday. Mook ran Clinton’s effort there in 2008. She won then. But times are clearly different now. I don’t think for a minute that Nevada is a Clinton cakewalk, especially not after the shellacking she took Tuesday.” = Michael Tomasky Daily Beast

    “Hillary Clinton has an honesty problem.

    That point is driven home hard in the exit poll following Clinton’s 22-point drubbing at the hands of Vermont Sen. Bernie Sanders. More than one in three (34 percent) of all New Hampshire Democratic primary voters said that honesty was the most important trait in their decision on which candidate to support. Of that bloc, Sanders won 92 percent of their votes as compared to just 6 percent for Clinton.

    Ninety-two to six. That is absolutely unbelievable — even given the size of Sanders’s overall victory in the state. And it should be deeply concerning to a Clinton campaign that has been resistant to acknowledging the idea that the ongoing controversy over Clinton’s private email server while at the State Department is a problem for her.” – Washington Post

    “Yes, the hard truth is that Hillary Clinton is a terrible campaigner who is living in a different era.” – Bill Maher

    “And with her opponent, Senator Bernie Sanders of Vermont, outdrawing her in support among young women, Mrs. Clinton’s candidacy has turned into a generational clash, one that erupted this weekend when two feminist icons, Madeleine Albright and Gloria Steinem, called on young women who supported Mr. Sanders to essentially grow up and get with the program.” – New York Times

    “ There’s a special place in hell for women who don’t help each other!” – Madeleine Albright

    “Ms. (Gloria) Steinem, 81, one of the most famous spokeswomen of the feminist movement, took the sentiment a step further on Friday in an interview with the talk show host Bill Maher. Explaining that women tend to become more active in politics as they become older, she suggested that younger women were backing Mr. Sanders just so they could meet young men.

    “When you’re young, you’re thinking: ‘Where are the boys? The boys are with Bernie,’ ” Ms. Steinem said.” – New York Times

    “Vermont Senator Bernie Sanders has erased Secretary of State Hillary Clinton’s wide lead for the Democratic presidential nomination since the start of year, putting the two in a dead heat nationally, according to a Reuters/Ipsos poll.

    Clinton leads Sanders 48 percent to 45 percent among Democratic voters, according to the poll of 512 Americans, conducted Feb. 2-5 following the Iowa caucus. The poll has a credibility interval of 5 percentage points.” – Reuters

    “In the Democratic race nationwide, former Secretary of State Hillary Clinton has 44 percent, with Sen. Bernie Sanders of Vermont at 42 percent, and 11 percent undecided. This compares to a 61 – 30 percent Clinton lead in a December 22 survey by the independent Quinnipiac (KWIN-uh-pe-ack) University Poll.” – Quinnipiac University

    “’Cause I don’t have no use
    For what you loosely call the truth” – Tina Turner

    Greenlight a Vet
    Folds of Honor
    Memorial Day – May 30, 2016

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