The Scalia Vacancy

There is an opening on the Supreme Court. Scalia was as close as a supreme court justice gets to being a right wing nut, which means the 8 justices he leaves are split right down the middle between liberal and conservative. Filling the vacancy his death has created is a really big deal, and it's made even bigger by the fact that this is an election year with a cast of clowns running for the oval office.

Enter my pal, my man, Kentucky's senior Senator, Mitch McConnell. Mitch barely let Scalia's body go cold before offering his two cents on a replacement appointment -  "The American people should have a voice in the selection of their next Supreme Court justice," he said. "Therefore, this vacancy should not be filled until we have a new president." This, like so much that Mitch says, makes no sense at all. It's the President's job to appoint justices and the Senate's job to "interview" them and either confirm or reject them. This is true regardless of which party controls the oval office OR the Senate. Everyone involved in the process is an elected official, meaning the American people DID have a say in this when they re-elected Obama, and when they turned the Senate over to a GOP majority. To suggest that the people only have a say if we wait until after the November Democalypse is an insult to the intelligence of the electorate, and it's also dead wrong.

Here's where McConnell is doubly wrong - his strategy is even worse than his logic on this one. The Supreme Court is halfway through it's docket of cases for this term. Some of those cases have almost certainly been voted on, and some of those votes would've resulted in a 5-4 verdict where Scalia voted with the majority. But the decisions in those cases haven't been published yet; the opinions are still being written. It's common for justices to CHANGE their votes during this process. It ain't official until the fat lady sings. So we've almost certainly got cases in the pipeline that will be retried (resulting in a 4-4 tie, if Scalia isn't replaced), or handed back to the lower courts (which Obama has done a champion job of stacking with Democrats). There's no constitutional law on this specific scenario. For example, technically the court could publish an opinion where a dead justice voted with the majority. It's never happened, and the current chief justice, John Roberts, is known for seeing himself as a steward of the court's image/prestige. I think the's failed pretty hard core on that one, but still it seems unlikely that he'd release any key decisions where Scalia has issued some scathing opinion that belittles the half of the country who disagrees with him. 

So, Mitch, not only is it your job to hold hearings, should Obama nominate someone, but you'd be a fool not to do it. Mitch is of course assuming that the GOP will retain the Senate and also take the White House in November, thus his desire to wait. This is because he, like the rest of the GOP, is stuck in their own echo chamber. Those of us who are swing voters have yet to see someone emerge on the GOP side for whom we'd vote - they're all a bunch of scrappy mud-slinging egotists who have demonstrated a profound level of ignorance on topics like equality, immigration, and foreign policy.