After Scalia

You’ve probably heard that Supreme Court justice Antonin Scalia passed away of natural causes a few days ago. I wish his friends and family solace in this difficult time.

But setting that aside, I’m glad he’s off the court. From Lawrence v. Texas to Obergefell v. Hodges to many others, he did more to fight the advance of civil rights in this country than anyone else on the court, or indeed anyone else I can think of.

And now, of course, there’s a storm of speculation in the opiniosphere: will Obama nominate a replacement? (Yes. That’s his job.) Should he leave it to the next president? (No, that would be not doing his job.)

Will the Senate block his nominee? Yes. That’s what this Congress does: block Obama. Isn’t there a tradition of not nominating SCOTUS replacements in an election year? No, that’s just something Republican senators made up so they wouldn’t have to do their job.

Will Obama nominate a liberal, or a moderate? Will Mitch McConnell refuse to let the issue come to the floor? Those are interesting questions, and the pundits are applying the full force of their three-dimensional-chess-playing brains to them, because there are so many interesting ways this could go, so many ways the actors could position themselves. Obama gets to pick a nominee. The Senate can drag its feet on the confirmation. But the longer the position isn’t filled, the more pressure there will be on the Senate to do so. And it could be a big issue in October, at the height of election season.

It’ll be interesting to see how this plays out. But one thing I’m fairly certain of: Scalia’s replacement will be more liberal than him. He or she would pretty much have to be, unless Obama somehow nominates Bryan Fischer or the reanimated corpse of Atilla the Hun.

And that in turn means that some number of cases that would have been 5-4 decisions with Scalia’s vote will become 5-4 the other way. And maybe this country can move forward.

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