A new book, First: Sandra Day O’Connor by Evan Thomas, claims that Supreme Court Justice Antonin Scalia thought that the equal protection rationale of the Bush v. Gore decision in 2000 was “as we say in Brooklyn, a piece of shit,” according to Rick Hasen.
But he went along with it anyway.
Rick Hasen, author of The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, joins Chris Riback for a discussion of Scalia’s complex legacy as a conservative legal thinker and disruptor of the nation’s highest court.
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Rick Hasen: “Scalia disrupted business as usual on the court just like Gingrich disrupted the U.S. House of Representatives in the 1990s and Trump is now disrupting the presidency. Scalia changed the way the Supreme Court writes and analyzes its cases and the tone judges and lawyers use to disagree with each other, evincing a pungent anti-elitist populism that, aside from some criminal procedure cases, mostly served his conservative values. Now the judiciary is being filled at a frenetic pace by Trump and Senate Republicans with Scalian acolytes like Supreme Court Justice Neil M. Gorsuch, who will use Scalia’s tools to further delegitimize their liberal opponents and continue to polarize the federal courts.”
Coming soon from Hasen: The Justice of Contradictions: Antonin Scalia and the Politics of Disruption
“Shortly before his death in February 2016, Supreme Court Justice Antonin Scalia spoke favorably of Donald Trump’s presidential run,” the Wall Street Journal reports.
Said Bryan Garner, author of Nino and Me: “Justice Scalia thought it was most refreshing to have a candidate who was pretty much unfiltered and utterly frank.”
Garner added that the justice “was fascinated by the fact that Trump was so outspoken in an unfiltered way, and therefore we were seeing something a little more genuine than a candidate whose every utterance is airbrushed.”
“I wonder if President Obama would have attended the funeral of Justice Scalia if it were held in a Mosque?”
— Donald Trump, in a tweet earlier today.
Justice Antonin Scalia was taking a free vacation at a ranch in Texas when he was found dead, the Washington Post reports
The trip was apparently a gift from the ranch’s owner, who just last year obtained a favorable result from the Supreme Court.
President Obama will not attend Supreme Court Justice Antonin Scalia’s funeral on Saturday, Politico reports.
Vice President Joe Biden and his wife Jill Biden will attend.
Donald Trump spoke to radio host Michael Savage and added fuel to the conspiracy theory that Supreme Court Justice Antonin Scalia was murdered, saying that one of the details of his death was “pretty unusual.”
Former Virginia Gov. Bob McDonnell may be the biggest loser after the death of Supreme Court Justice Antonin Scalia, Politico reports.
“Scalia was considered among the most receptive justices to McDonnell’s argument that his conviction on corruption charges improperly relied on the kind of favors that are commonplace on the American political scene… If the court can’t muster five votes in Scalia’s absence to overturn McDonnell’s conviction, the appeals court ruling upholding his sentence is likely to kick in, and he could be sent to prison.”
Rick Klein: “Justice Scalia’s death sets up an extraordinary, even unprecedented moment for a dysfunctional federal government. A constitutional crisis – starting with a selection process and continuing through an all-but-certain congressional slow-walk to a possible filibuster – will unfurl against the backdrop of a election cycle that will determine the future of all three branches of government. It raises the stakes for the race; the senators on the GOP side joined those calling on President Obama not to make a pick, and Hillary Clinton added a decrying of those Senate vows to her stump.”
“It will be easy enough to lampoon or urge on a broken Washington system over these next few months. The fight over Scalia’s replacement will no doubt galvanize the parties’ respective activist bases. But a wearying fight – with its utterly predictable outcome – won’t necessarily reward the loudest candidate. Given the likeliest of an ugly ride, voters might look to someone who can get things back on course.”
David Axelrod reports that the late Justice Antonin Scalia actually recommended that President Obama pick Elena Kagan to fill a vacancy on the Supreme Court.
Said Scalia: “I have no illusions that your man will nominate someone who shares my orientation. But I hope he sends us someone smart.”
He added: “Let me put a finer point on it. I hope he sends us Elena Kagan.”
New York Times: “Within hours of Justice Scalia’s death, both sides began laying the groundwork for what could be a titanic confirmation struggle fueled by ideological interest groups. The surprise opening also jolted the presidential campaign hours before a Republican debate in South Carolina, shifting the conversation toward the priorities each candidate would have in making such a selection.”
Los Angeles Times: “The battle lines were drawn within minutes of the death announcement, with Obama saying he would nominate a successor and Senate Majority Leader Mitch McConnell, who controls the schedule, saying that the Senate should not take up an appointment in the 11 months remaining in the president’s term. Republican presidential candidates immediately backed McConnell. Democrats objected, arguing that selecting a justice is Obama’s job — and deciding in prompt fashion is the Senate’s.”
For members: How Hillary Clinton could respond
Senate Majority Leader Mitch McConnell (R-KY) “believes the U.S. Senate should wait 11 months for the next president to be sworn in before confirming a Supreme Court justice to replace the late Justice Antonin Scalia,” CBS News reports.
Said McConnell: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”
Supreme Court Justice Antonin Scalia has died at a Texas ranch at the age of 79, Politico reports.
San Antonio Express News: “Scalia arrived at the ranch on Friday and attended a private party with about 40 people. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body… A federal official who asked not to be named said there was no evidence of foul play and it appeared that Scalia died of natural causes.”
Sen. Ted Cruz called Scalia a “hero” and suggested “that the next President names his replacement.”
Rick Hasen: Justice Scalia’s Death and Implications for the 2016 Election, the Supreme Court and the Nation
“The whole time I have been on my court, it has been a liberal court.”
— Justice Antonin Scalia, quoted by the Wall Street Journal, reflecting on his 30 years on the Supreme Court.
“As soon as I think I’m getting lazier and I just can’t do the job as well, I’m going to get off there. I want to preserve whatever reputation I have. If you’ve lost your smarts, yeah, you should get off. But that hasn’t been the case.”
— Supreme Court Justice Antonin Scalia, quoted by the Associated Press, on when he might retire.
Supreme Court Justice Antonin Scalia “criticized judges who believe the Constitution is a ‘living’ document, saying they amount to policy makers who are rewriting it and making moral decisions for the entire country about same-sex marriage and other issues,” the AP reports.
He also referred to this summer’s same-sex marriage ruling as “extreme.”
Said Scalia: “They’re not adhering to the text, they’re operating as policy makers. They’re not interpreting the constitution. They’re writing one, they’re revising one.”
Jeffrey Toobin: “There was a shocking, ugly moment during the argument of Obergefell v. Hodges, the same-sex marriage case, in the Supreme Court on Tuesday. Right after Mary Bonauto, the lawyer challenging marriage bans in several states, completed her argument, a spectator rose from a back row and started screaming, ‘If you support gay marriage, you will burn in Hell!’ As the man yelled, ‘It’s an abomination!,’ guards carried him from the courtroom.”
“That wasn’t the ugly part, though. In the quiet moment after the man was removed, as his shouts vanished into the hallway, Justice Antonin Scalia filled the silence with a quip. ‘It was rather refreshing, actually,’ he said.”
Taegan Goddard is the founder of Political Wire, one of the earliest and most influential political web sites. He also runs Political Job Hunt, Electoral Vote Map and the Political Dictionary.
Goddard spent more than a decade as managing director and chief operating officer of a prominent investment firm in New York City. Previously, he was a policy adviser to a U.S. Senator and Governor.
Goddard is also co-author of You Won - Now What? (Scribner, 1998), a political management book hailed by prominent journalists and politicians from both parties. In addition, Goddard's essays on politics and public policy have appeared in dozens of newspapers across the country.
Goddard earned degrees from Vassar College and Harvard University. He lives in New York with his wife and three sons.
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