The Play on the Scalia Replacement: Remember the Lame Duck

Within minutes after the public announcement of Antonin Scalia’s death, Senator Mike Lee’s flack Conn Carroll started predicting Obama would have zero chance of successfully naming a successor. After Carroll, one after another actual Senator followed that sentiment, including Chuck Grassley and Mitch McConnell, both of whom would have the ability to stall any Obama nominee. From that point, the GOP was pretty much committed, they said, to preventing any Obama nominee from being confirmed.

That led to a bunch of bad comparisons — between judges like Robert Bork who was rejected and Miguel Estrada who never got a vote — and simply going a year without acting on a President’s nominee. Even the comparison with Anthony Kennedy (who was nominated in November after two other nominees, including Bork, failed) is inapt, as he was nominated earlier than any Obama pick would be (though in a sense that fetishizes the year that would pass without a nominee).

I, like bmaz, believe Obama will pick someone fairly centrist, probably someone who has been recently confirmed by big margins.  I agree the most likely nominee will be Sri Srinivasan, who in 2013 was confirmed to the DC Circuit with a 97-0 vote — though I’m also mindful of the wisdom (given the GOP unanimity about obstructing this nominee) of picking someone who drive Democratic turnout — an African-American woman, for example. Though I highly doubt Obama will nominate Loretta Lynch, as some have suggested, not least because the fight over releasing data on HSBC’s continued money laundering will draw more attention as it moves toward appeal, which might focus attention on her role in administering the wrist slap in the face of egregious drug cartel and terrorist supporting money laundering.

After some reflection, some conservatives have suggested that the GOP would have been better served if they had simply not managed to pass Obama’s nominee, rather than making such a big stink about it.

I think that ignores how much both parties look forward to using this nominee to drive turnout — and regardless of who the respective nominees are, the GOP have a much bigger challenge in getting enough voters to turn out to elect a GOP president in November, so I’m sure they’re quite happy to have an issue that (they presumably hope) might flip some conservative Latino votes — though one likely outcome of an extended 8-member court is that the Fifth Circuit’s ruling staying Obama’s immigration orders will be upheld after a 4-4 tie on the court, which might have the opposite effect.

Furthermore, I think it ignores one other factor. Srinivasan has been predicted to be Obama’s most likely SCOTUS appointment for almost 3 years (few people consider how such predictions might have influenced Ruth Bader Ginsburg’s decision not to retire). The Republicans probably presume he’s the most likely candidate as well.

The presumption Srinivasan — or someone similar — would be the nominee easily justifies the GOP’s immediate promise they won’t confirm a nominee. That’s because they need to explain why someone they just overwhelmingly confirmed, someone who faced more opposition from the left than the right, suddenly became unacceptable.

More importantly, I presume the GOP wants to keep open the possibility of confirming Srinivasan or whatever centrist Obama appoints during the Lame Duck. Here’s why:

Barring any replay of Bush v. Gore, both sides will know on November 9 who would get to pick Scalia’s replacement if Obama’s pick failed. Both sides will also know the makeup of the Senate. Because of the demographic issues I mentioned earlier, the likely Democratic nominee, Hillary Clinton, is most likely to win. That’s not to say I think she’s necessarily the strongest candidate — even ignoring the potential the email scandal will taint close advisors like Huma Abedin or Jake Sullivan, I think it likely the economy will be crashing by November in a way that would favor Trump if he were the GOP nominee facing Hillary. But I think electoral demographics suggest the GOP will have a harder time winning this year, particularly after a year of Trump branding the GOP with bigotry.

Plus (ignoring my suspicion the economy will be crashing by November), we’re likely to have a more Democratic Senate after November. Harry Reid is the only retiring Democrat where the replacement race is currently perceived to be toss-up, whereas Marco Rubio, Mark Kirk, Kelly Ayotte, and Ron Johnson are all deemed to be likely toss-ups, if not Dem-favorable. It’s still most likely the GOP will have a slight majority, but a smaller one, in the Senate, one where people like Susan Collins could make more of a difference. But it is likely to be more Democratic.

If Hillary wins (the most likely outcome) and Democrats win the Senate (unlikely, but feasible), then the Republicans will have good reason to want to confirm an Obama nominee perceived to be centrist. Whereas Srinivasan looks far worse than Scalia to the Republicans, he would all of a sudden look far preferable to a Hillary choice with the time to wait out the Senate. The GOP would have time between November 9 and the Christmas break to confirm whatever Obama nominee has been languishing.

In other words, I think the GOP have provided a way to stall someone (like Srinivasan) they have recently confirmed, while leaving the possibility of confirming that person if November makes it likely the next nominee will be more liberal.

One more thing: Commentary on this process has presumed that McConnell and Grassley (and Obama) learned of Scalia’s death when we all did. I would hope that Obama, at least, got word well before that, particularly given the involvement of at least the US Marshals and according to some reports the FBI. But I also wouldn’t leave out the possibility that one of the 39 other still unidentified guests at the ranch this weekend gave the Republican leadership a heads up as soon as a hearse showed up. So it’s possible that what looked like quick knee-jerk response on the part of Republican leadership was instead more considered, along the lines I’ve just laid out.

60 replies
    • emptywheel says:

      Yeah, I’ve suggested Cass as a likely pick too (ick). But I think the electoral impact of this makes it more likely Obama will pick a person of color, even if a South Asian.

      • bmaz says:

        Sunstein was a real fear before. Think less so now. He is 61 years old, and would piss off and demoralize the Dem base. And, as you say, he brings no diversity. Even Jane Kelly, why still white, and still HLS, brings midwest sensibility and actual trial level criminal defense experience. And Grassley support, at least theoretically.

        • Anon says:

          The thing with Sunstein is that he would piss off everyone. Sunstein has authored articles and at least one book advocating for the idea that the government should infiltrate groups of people who merely believe bad things to undermine them. His argument was theoretically directed against the III% types and the Freepers but that kind of power would horrify everyone except Rick Santorum.
          That said Obama has shown a tendency to go for known quantities over right ones before so it is still possible.

  1. Jim White says:

    Given what a political mess this has become already, I’m wondering if Obama might have difficulty getting a candidate to agree to be nominated. It’s already quite clear that actual fitness for the job is likely to play little or no role the Senate process. Who wants the next nine months of their life to be dominated by the meanest possible politics on a daily basis? And that goes especially for someone with “centrist” leanings. It’s much easier to see someone who has strongly held beliefs fighting under such circumstances, but Obama will never go there.

  2. emptywheel says:

    Right: but if my analysis here is right, then no liberal would believe they have a shot, whereas a Srinivasan might have a real shot. Plus, this thing really won’t move anytime soon and it would a cinch for someone like SS to resubmit the materials he did 3 years ago. So for him, he could continue to do his day job on the DC Circuit with almost no interruption. So for him, there’s a huge potential upside with far less downside than there would be for–say–Loretta Lynch.

  3. Peterr says:

    Here’s a wrinkle for you and bmaz: what about a state supreme court justice?
    I think Cardozo was the last SCOTUS justice promoted from the state bench, so it’s not unprecedented, but it’s certainly been a while. The downside is that anyone so chosen would not have been confirmed by the US Senate for a judicial appointment before, so that would slow things down. On the other hand, it would put the folks most vocal about the whole “respect for the states” movement in a real bind.
    No names to suggest here, as the only state Supremes that I have paid attention to have been either in Kansas as they slap Sam Brownback around or those who have ruled in the marriage equality cases, like Mark Cady in Iowa, and I hadn’t really thought of this route until just recently. (Cady is 62, so likely too old.)
    It would be an intriguing end-run on the Washington insiders.

    • bmaz says:

      No, can’t see it. And while I know Watford is the hot new name (and he is a very decent chap according to friends who know him), aside from being black, he brings little to this particular and instant battle. First off, he is 9th Circuit, which is a bugaboo to a lot of people, and especially Republicans. Secondly, he was confirmed with only 61 votes. That is a lot of respective ground to leave open to attack. For now, at least, I am sticking with Sri, Kelly and Garland, in that order of likelihood.

      • Peterr says:

        I think you may be giving too much credence to Sri’s confirmation vote. It would be quite easy for the GOP to say “We affirmed him for the lower court, because there are checks and balances to watch out for him at the appeals court and SCOTUS. That vote does NOT mean that we think he would make a fine member of SCOTUS itself. Indeed, we firmly disagree with this nomination.” I can’t recall who this was directed at in the relatively recent past, but I know it has been used before by the GOP.
        When Watford was confirmed in 2012, he got 50 Dems, Bernie, Short Ride Joe, and nine GOP votes: AZ’s pair of Jon Kyl and the Gluehorse, along with Lindsey Graham, Lamar Alexander, Richard Lugar, Susan Collins, Olympia Snowe, Lisa Murkowski, and Scott Brown. Interestingly, there were three senators who did not vote: David Vitter, Claire McCaskill, Mark Kirk, and Jim DeMint. Don’t know about Vitter and DeMint, but both McCaskill and Kirk’s lack of a vote was to avoid having to piss someone off (leadership, the voters back home, or both).
        Some of those folks are gone from the Senate, but others remain — and the pressure on folks like Kirk would be quite powerful. (Claire would likely have no problem voting Aye today.)
        If this gets to a floor vote, Watford would be confirmed — or the GOP can write off the African American vote for the next 40 years. This is why McConnell et al. are pushing to keep the nomination from being made in the first place. If they can squash it in committee and keep it out of sight, they’ll be happy to do that — to Watford or Sri or anyone else.
        I’d love to see someone ask Ted Cruz “If you become president, at what point in your term do you lose the right to nominate someone for the Supreme Court? Is it after Jan 1 of that year? After the first Tuesday following the first Monday in the November prior to a presidential election? Is it after the midterm election date? When, specifically, do you believe you would lose that right?”

        • Peterr says:

          Interestingly, there were three senators who did not vote: David Vitter, Claire McCaskill, Mark Kirk, and Jim DeMint.

          That should be four. Need moar coffee . . .

        • bmaz says:

          Uh, no, vote margins do seriously factor into how this will be packaged for PR purposes. Plus, again, Watford is 9th Circuit. If Watford is the nominee, I will gladly eat my words. But I don’t think so in the least.

    • hardheaded_liberal says:

      Sandra Day O’Connor: “In 1975 she was elected to the Maricopa County Superior Court and in 1979 was elevated to the Arizona State Court of Appeals. She served on the Court of Appeals until 1981 when she was appointed to the Supreme Court.” See Wikipedia. State Supreme Court justices of color cannot even win confirmation to the federal courts of appeals with the current obstructionism of the Senate. (Sorry, can’t find a link handy on this point.)

      • scribe says:

        Re: Sandra Day O’Connor. Recall that in 1981 when she was nominated there was a fluffy Jill Clayburgh movie called “First Monday in October” about the madcap antics that would ensue when a woman was finally appointed to the Supreme Court, bringing those stuffy old fogies into the modern world. Reagan, movie guy, saw the opportunity for life to imitate art and used it bigtime.
        In terms of the standards of judicial experience we now apply to Supreme Court candidates, she was qualified for a seat on the Arizona Supreme Court but not the US. Today’s standards generally require more (Kagan’s utter lack of courtroom experience – on her feet and on the bench – being the exception that proves the rule) but O’Connor did have substantial academic wattpower, being right up there with her classmate Rehnquist at Stanford Law. Her lack of high positions prior to nomination was a reflection of the then-lower and -thicker glass ceiling in the way of women. It wasn’t that long before 1981 (less than 10 years) that criminal law was deemed “too tough” and “too ugly” for women and there were cases in the late 70s involving successful appeals by women lawyers from contempt citations for daring to wear pants suits rather than skirts. Seriously.
        More to the point, today’s standards for Supreme Court justices tend to include service as a federal appellate judge (Roberts, Scalia, Ginsburg, Sotomayor, Breyer(?)), having clerked for a justice of the Supreme Court, maybe heading an administrative agency (Thomas). Harriet Myers’ nomination was a twofer bird Bushie flipped at the Court in particular and the judiciary in general. That, and an egregious choice who made appointing the corporate whore Roberts and the cop-loving radical Alito (3d Cir.) palatable.

  4. orionATL says:

    “… Plus (ignoring my suspicion the economy will be crashing by November), we’re likely to have a more Democratic Senate after November. Harry Reid is the only retiring Democrat where the replacement race is currently perceived to be toss-up, whereas Marco Rubio, Mark Kirk, Kelly Ayotte, and Ron Johnson are all deemed to be likely toss-ups, if not Dem-favorable. It’s still most likely the GOP will have a slight majority, but a smaller one, in the Senate, one where people like Susan Collins could make more of a difference. But it is likely to be more Democratic…. ”

    this is the first time i’ve seen this important anailysis this electoral year.

    • bevin says:

      The economy is very likely to be a big issue by November, another strike against Hillary. But so, and they are not unrelated, is the growing international crisis.
      The system is falling apart. It has been since the dotcom bubble burst. And the powers that be are always inclined to opt for loud noises and destruction, to distract voters and to shock the system into renewed growth.
      The republicans would be well advised to cash in their influence soon, while they still have plenty of it.

      • orionATL says:

        americans vote against, not for.

        the worse the economic situation gets, the more that favors trump, assuming scandal over business dealings doesn’t take him down.

        the american economy seems basically sound. it’s the international economic milieu in which the american economy sits that is causing trouble. for that we can thank angela merkel’s obdurate austerity in europe, and chinese comedown from high annual growth rates .

  5. orionATL says:

    pick a high-quality, thurgood-marshall type of candidate and run the republicans into the ground on their refusal to confirm.

    right now, republicans are howling like republicans howled in dec 2000 as if all rights were theirs and they were entitled to the outcome favorable to their party – which says a lot about their party’s prior biased choices and about the failure of the supreme court to be a fair, neutral national referee.

    just do a careful revue of candidate’s history beforehand and then turn the supreme court’s behavior over the last decade into a major campaign issue.

    you can never expect to deal with the contemporary style of republican in a collegial way.

  6. aquacade says:

    Curious a textualist dying during an election year, we could end up with a deadlocked decision in the natural-born lawsuits against Ted Cruz. The RNC is going to figure that out soon enough.

  7. orionATL says:

    all the flaming democratic revolutionaries at emptywheel seem to be very timidly, cautiosly, conservatively evaluating this candidate and that candidate for supreme court replacement in terms of who republicans might accept, who can obama sneak thru the senate.

    yall aren’t scared of republicans are you?

    i’m charles grassley. boo!

    i’m mitch mcconnell. boo!

    i’m henry cruz. boo!

    anybody got any intellectually and morally highly-qualified candidate to discuss?

    i say put up that candidate and tell the senate to go goat-fucking in texas.

  8. scribe says:

    Three points:

    1. On the possibility that someone tipped off someone about Scalia’s passing. While I’d count on it happening – 40 guests is a big crowd to keep quiet – keep in mind a couple things about lodges like that ranch. Generally, they are way remote – why it took until early afternoon to get the “local” priest to come give Last Rites. Being that remote, they are often outside cell coverage. A few years back I went to a hunting lodge in a northeastern state where, if you wanted to make a cell call, you had to hike (or drive) a couple miles uphill to the top of a low mountain where you could get one bar and place your call. To mollify the modernists who needed to be connected (I recall emailing EW and possibly commenting on the site from there), they installed satellite internet. Which was great until about 9 pm, when they turned off the generator. They were off the grid. As I recall it there was no landline to the lodge even though the road was passable to family cars. So, maybe someone who recognized that Nino they hunted/partied with wasn’t up for breakfast – lodges like that can be convivial places, depending on who the people in the crowd are – and put two and two together when the hubbub began was able to put in a call or a text (less bandwidth) and got the word out. But also likely is that the folks there were of the attitude they were devoting their precious time* to a hunting trip and there was nothing they could do, seeing as he was already dead, and went hunting.

    * These places are expensive, but the crowd they tend to draw can afford the money from their pocket change. Their time, OTOH, is a rare and valuable commodity they carefully husband.

    2. No way on God’s Green Earth the Republicans are letting HRC get the chance to nominate Obama for the Court (you forgot that little balloon, didn’t you?), particularly if the election results give the Collinses the sway hand.

    3. Aw, hell. I forgot what I was going to write.

    • Peterr says:

      What you said about remote.
      One nit to pick, though. I’ve heard various media folks report that part about the priest coming out to administer Last Rites. In Catholic liturgical You don’t give Last Rites to a corpse — you perform them on the living, to prepare them for death.

    • emptywheel says:

      Especially agree with the hunting part: most everyone would have been out when Poindexter found him. Though note this was an invited party: Poindexter paid, not the guests. Your point still stands — these people were still surely rich — but they were also unpaid guests.

  9. scribe says:

    Now I remember: The economy will be going into the crapper in advance of the election. Republicans and MOTUs want the whip hand back from the Dems, thank you very much.

  10. Peterr says:

    Lots of things factor into PR purposes. Unanimous flipflopping on a unanimous confirmation to a district court nomination will not be a problem for the GOP, nor for their PR people. “Back in 2012, we tried to be nice. We reached out and gave the president an olive branch. And now look what he’s doing — trying to ram a SCOTUS appointment down the throats of the American people as he prepares to leave office.” They’ve used that PR approach before, and it’s worked for them, especially with their base and the David Broders in the press corps.
    This would be a much different PR discussion for a vote on Watford, because those GOP senators who voted to confirm him to the 9th Circuit did so in the face of their own party in the past, and would have to explain why they’ve changed their mind. They can’t say “the leadership wants it” because they stood up to the leadership on him before. They can’t say “I’m acting on principle” to oppose him now, because that’s what they said about their vote for him in the past. All they can say is “I’ve changed my mind” and that’s not an easy thing for folks like McCain to say. Of the nine, McCain, Graham, Alexander, Murkowski, Vitter, and Collins are still there, plus Kirk and McCaskill who didn’t vote.

    Voting down an African-American nominee would also factor into things from a PR perspective. Witness the OMG! reactions to folks like Rudy 9/11 and others when Beyonce released “Formation” and then sang it at halftime. (Better, witness the skewering that SNL gave it, with the title “The Day Beyonce Turned Black.”) How far does the GOP nationally want to go down that road?
    But really, what matters more is the state by state PR stuff . . .
    Is Mark Kirk willing to not just write off but piss off the entire African American community in Illinois, from the South side of Chicago to Alton to Cairo, as he runs for reelection this year? Good luck with that, Mark.
    Kelly Ayotte just watched energized Bernie Sanders supporters help him take apart Hillary Clinton in the Democratic primary. Does she want to give NH democrats (Bernie and Hillary supporters alike) a reason to not simply vote against her in November, but get each of them to drag three of their friends to the polls to do the same?
    You know the dynamics of the AZ race — will McCain feel like he has to follow McConnell and Cruz to stave off his primary opponent, or will he get his Maverick on and tell them to stuff it? How does the dynamic change after the primary? If he loses, would he vote in favor of Watford to give a big middle finger to the rightwing? If he wins, would he feel he had to make nice with the right wing and vote down Watford, or feel emboldened to vote in favor? I honestly don’t know how any of this would play out in AZ, except to say that it would be a very complicated hypothetical to game out.
    Ron Johnson is behind Russ Feingold in WI polling. Would he feel like a vote for Obama’s nominee might help him cut that margin?
    Here in MO, Roy Blunt is up for reelection, and struggling. A vote against Watford might help him in the rural areas, but would boost turnout like you wouldn’t believe in St Louis and KC. He’d be my candidate for ducking the vote this time around (a la Claire) if he thought could get away with it.
    In PA, the Dems have a big primary race for someone to oppose Pat Toomey, and right now Joe Sestak is leading in the polling. Distressingly for Toomey, Sestak is the best positioned of the Dems to take him on in November. Like Blunt’s race, Toomey would be caught between riling up the African American community against him or pissing off his base. He might just join Blunt in sitting on his hands.
    Tim Scott, the African-American senator from SC, is also up for reelection. Don’t know how his campaign would be affected by voting against an African-American SCOTUS nominee, but I don’t think it would make a lot of AA voters who crossed over for him before happy to do so again.
    In short (or not so short), this cuts in all kinds of ways — and most of them are more dependent on political pressures within the different states than national pressures — especially when the states have GOP senators up for reelection.

    • hardheaded_liberal says:

      Tim Scott is a Tea Partier who was initially appointed to complete DeMint’s term when DeMint went to Heritage – appointed by Tea Partier Nikki Haley who was elected in large part because she was endorsed by Sarah Palin. Tim Scott does not give a plugged nickel for the support of the African American community, which did not even support him when he was a low-information member of the Charleston (SC) County Council.

  11. Mr.Murder says:

    Reggie Walton. Showed he respects spirit of law past party lines, pretty strict wording. Think the guy is a diamond in the rough that would make Cheney name yuge in confirmation hearings. Rep, Bush Sr appointee. Make certain where he would be on choice, other core issues.

    • Avattoir says:

      Walton just turned 67 and at the end of 2015 took Senior status, i.e. semi-retirement. There are other reasons to conclude he will not be chosen, but those two suffice.

  12. P J Evans says:

    I wonder if there are law schools reconsidering the degrees they granted to some of the current candidates, since said candidates apparently didn’t actually learn much.

  13. Rocky says:

    Obama nominates. The Senate votes no.
    Obama nominates. The Senate votes no.
    Obama nominates. The Senate votes no.

    Obama terms out.

  14. lefty665 says:

    Don’t think a black nominee does much for the Dems. The Repubs have spent the last 7 years (and many before) polarizing and firing up race based voters on both sides. A black nominee fight comes under the heading of “Oh yeah, and that too” rather than material inspiration to turn out the base. That’s been done long and merry ago.
    Don’t think the Repubs are all that afraid of a Hillary nominee either. She’s a right wing, DLC, Repub wannabe. Wall Street and the Neocons are happy with her. What makes anyone think her court nominees would be feared by the right?
    I still argue for looking to the Senate for a nominee. It’s a lot harder for the Repubs to refuse to confirm a member of the club. Cruze, Cotton, Rubio… all different in degree, but not in fundamentals from the right/centrist wusses most popular in the speculation.
    The real heartbreaker is that the chances of Obama nominating someone from the left are slim and none. More Same, never Change.

    • pdaly says:

      joe6pac, the article in your link is more explicit that the time Pointdexter entered Scalia’s bedroom was around 11am and not 8am when Pointdexter initially knocked on Scalia’s bedroom door.
      This LA Times article blurs the 3 hour timeline with the word “eventually”:

      “But when Scalia, 79, failed to appear for a morning excursion at 8 a.m. Saturday, Poindexter became concerned and went to his room, which has its own outdoor fire pit and a wall of windows overlooking the 22-room adobe ranch hotel, a lake and surrounding peaks of the Chinati Mountains.

      “I had not seen him, and everyone else was up. I knocked loudly,” Poindexter said in an interview with the Los Angeles Times. But Scalia was in a large room, the “El Presidente” suite, and the owner figured that perhaps the justice couldn’t hear him.
      Poindexter had just met Scalia, and although he found him “congenial” and they got on well at dinner the night before, his first thought was: “He’s a Supreme Court justice, and if he doesn’t want to be bothered.”

      Eventually, Poindexter entered the silent room, apprehensive.”

      There was a 5pm (Eastern time) announcement of Scalia’s death in the local Texas paper’s online website and another 30 minute or more delay before the national press published his death. So 8am to 11am, depending on when Pointdexter entered the room until 5pm when the local press published Scalias death is plenty of time–as emptywheel wonders– for Republicans both to have learned about the open seat on the Supreme Court and to have strategized.

        • pdaly says:

          What?! It seems neither the family nor the authorities are concerned about the pillow over his head so Iguess we shouldn’t be either.
          Odd that the time Scalia is found in the room by Poindexter is 1 p.m. in this NY Daily News article and not 11a.m. as in the Wall St On Parade article nor “eventually” after the 8 a.m. bedroom door knock of the L.A. Times article.
          Also odd is the fact that the judge is publicly giving out the ’cause of death.’
          “Presidio County Judge Cinderela Guevara told ABC News she will write on Scalia’s death certificate: “Natural causes — heart attack.””
          In Texas, I though details ’cause of death’ for natural causes is NOT public record–unlike Massachusetts and a handful of states with public death certificate laws.

          • bloopie2 says:

            Texas, eh? Suspicious death of a high political figure with beaucoups enemies? I wonder if there was a grassy knoll nearby.

  15. orionATL says:

    jeez, these emptywheel dems are something else. i haven’t seen such a triangulating, centrist, power hungry caucus of democrats as these ew democrats since…. well, since bill clinton left office. :)

    • emptywheel says:

      As you seem to be doing a lot lately, you are confusing analysis w/emotion (and analysis with preference).

      You may operate solely on kneejerk emotion, but that’s not a good way to figure out what may happen in the world.

      • orionATL says:

        actually, i’ve enjoyed this discussion.

        and no, ew, it is you who misunderstand.

        i am mocking (gently) people who like to use the words “triangulation” and “centrist” as if they were disparaging terms but who are acting in ways that are the very definition of these terms.

        as for your brief lecture on analysis, if your recent charactetization of secretary clinton as a “warmonger” is what you call political analysis, then i think you have a very skewed view of analysis. or should i just say that your “analysis” there was emotionally and preference driven.

        • orionATL says:

          one thing that makes this particular discussion so unusual and more interesting for an emptywheel post is that there are a number of comments from outside the normal emptywheel circle.

      • bloopie2 says:

        to ew (2:54pm) and to all the rest of youse. May God (the God of Antonin Scalia or another God) bless you if you can “figure out what may happen” here. I’ll put a note on my calendar for a year from now, with a link hereto, to see who came closest to the bullseye. Then, wilst though gainest the 2016 award for precognition. :)

  16. jerryy says:

    I am hoping this administration’s history does not repeat itself … as in nominating someone well qualified for the position and well like in their field, but thought of as being leftist. They get to dangle in the breese for a while as straw-people for the GOP to froth over in public until they decide enough is enough and withdraw.
    Me. Jones, Ms. Johnson, Mr. Liu come to mind.
    Behind the scenes a candidate suitable to the corporatist view in then ushered in. Remember that things like the TPP would not be possible without the GOP establishment’s active support.

  17. Cujo359 says:

    I had assumed that the GOP was trying to influence the President to name a “centrist” candidate, but it looks like you figured out the specifics. Good job.
    Not being quite as foolish as they’re portrayed in certain circles, I’m sure the Senate Republicans know that Obama’s tendency would be to name a corporatist who doesn’t care about government surveillance and the like. This strategy gives him cover to do that, because, dontcha know, we need another Justice and here is this “moderate” guy just waiting to be confirmed.

  18. omphaloscepsis says:

    “Father Mike Alcuino of the Santa Teresa de Jesus Church in Presidio was called around 3:20pm to give the Justice a Catholic last rites.

    Justice of the Peace Precinct 2 Juanita Bishop received the initial call, but called Justice of the Peace Precinct 1 David Beebe to handle the vague call about a body at the ranch. No name was mentioned. Bishop was in Fort Stockton at the time and Beebe was getting ready to head to Alpine to attend an political forum in Alpine.

    County Judge Cinderela Guevara pronounced Scalia dead by telephone at 1:52pm after she was called by Presidio County Sheriff Danny Dominguez, who was at the ranch resort. The Texas Code of Criminal Procedures allows Justice of the Peaces to make this call if it’s deemed reasonable.”

    “The spokeswoman for the Roman Catholic Diocese of El Paso said a priest from Presidio was sent to administer last rites to Scalia.

    ‘That’s my understanding. He was given last rites by Father Mike Alcuino, who served in Presidio — that’s under the Diocese of El Paso — within the last 45 minutes (just before 3 p.m. Mountain Time on Saturday). He’s the only priest in Presidio,’ Liz O’Hara said. ‘The only thing that I know that I got from Bishop Mark Seitz was that Father Mike was called to the ranch where Justice Scalia was to administer last rites.’ ”

    “extreme unction is primarily a sacrament of the living . . . extreme unction has been instituted secondarily as a sacrament of the dead, i.e. for the purpose not merely of increasing but of conferring sanctifying grace sacramentally. Hence, if for any reason the subject in mortal sin is excused from the obligation of confessing or of eliciting an act of perfect contrition, extreme unction will remit his sin and confer sanctifying grace, provided he has actual, or at least habitual, attrition, or provided (say on recovering the use of reason) he elicits an act of attrition so that the sacrament may take effect by way of reviviscence.”

    Busy time for the El Paso Diocese. The Pope will be across the river in Juarez on Wednesday.

  19. emptywheel says:

    Charlie Savage recalls what he reported in his first book on Scalia’s expansive role at OLC, including to sign off on covert operations and order CIA to hide its warrantless spying program.

    Years later, Scalia would recall attending daily morning meetings during this period in the White House Situation Room with Marsh, CIA director William Colby, and other top officials. At those meetings, “we decided which of the nation’s most highly guarded secrets that day would be turned over to Congress, with scant assurance in those days that they would not appear in the Washington Post the next morning. One of the consequences of these congressional investigations was an agreement by the CIA that all covert actions would be cleared through the Justice Department, so, believe it or not, for a brief period of time, all covert actions had to be approved by me. Needless to say, I did not feel that this was an area in which I possessed a whole lot of expertise. Nor did I feel that the Department of Justice had a security apparatus to protect against penetration by foreign operatives. We had enough security procedures to frustrate la cosa nostra, but not the KGB.”58

    That makes far more interesting grist for conspiracy theorizing that that Scalia’s death probably saved unions.

  20. pdaly says:

    Found this in Chapter 2 of the Texas laws about death certificates.

    The fact of death (name, date, place) of an individual is public knowledge; however, the death certificate is not. A death certificate is a confidential record for the first 25 years after the date of death and may be released only to a properly qualified applicant [HSC 191.051; GC 552.115].”

  21. Matthew Saroff says:

    First, Obama does not appoint, he nominates.

    Second, let me agree with Charlie Pierce, and suggest that he nominate the well respected legal scholar ANITA HILL.

    Then again, maybe I just want to watch the world burn.

  22. pdaly says:

    “Bryan Garner, one of Scalia’s close friends and the co-author of two books with the justice, said in an interview that Scalia seemed happy and jovial during recent trips to Hong Kong and Singapore in late January and early February. Garner said Scalia never mentioned anything about heart problems or other ailments during the trip.”
    Long plane ride to and from Singapore/Hong Kong recently. A deep vein thrombosis can develop in the leg and break off later creating a life threatening pulmonary embolism. Was he complaining of a leg pain or leg swelling recently? It would be another natural cause other than heart disease.

  23. bloopie2 says:

    So, who’s asked all them Republicans if they would refuse to confirm, on principle of it being an election year, the nominee of a Republican President? And who’s asked all them Republicans if they would refuse to confirm, on principle of it being an election year, a conservative nominee of Obama? Nah.

  24. P J Evans says:

    A deep vein thrombosis can develop in the leg and break off later creating a life threatening pulmonary embolism.

    Usually not a long time, though. (One of my mother’s cousins dropped dead in the Honolulu airport after a flight from Kansas.) You can get a pulmonary embolism without a DVT, too. (Someone I knew had that happen. It was a shock to everyone.)

  25. GKJames says:

    Hope your hunch about November’s outcome is right. If Republicans take the White House, their choice will bake into the Court their inane mind-set for another generation. And it’ll be made worse if Ginsburg or (and?) Breyer stroke out in the next four years. If there’s an incentive for Democrats to focus on turn-out, this is it.

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