Supreme Court Justice Antonin Scalia Dead at 79

Again I have no interest in it as it sets up a straw horse (fund by growth) to knock down. That is not how free college education is (and has been for decades) funded in Scandinavia countries. Bernie want to do it the same way as that is proven to work / to be economically feasible.

 

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Except there is no straw horse. If you can prove one, go for it.

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Relevant to the thread, is there any reason to prefer Clinton's prospective Court appointments over Trump's or Sanders's?

 

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Very true. Personally I think Bernie has everything he needs to do the job. His passion is to kick some oligarch ass and to restore democracy for all Americans. So how is this going to get done now that seditionist have infiltrated our governing body. It' clear they want to make sure working Americans get the short straw. Actually the invisible straw. You said it yesterday this has to end and and it's conceivable it will end tragically. Continuing to call sedition obstructionism is intellectually dishonest. Voting to shutdown the government based on sociopathic political reasons is an act of political terrorism. They said they wouldn't do their jobs as long as Barack Obama is president. You'd have to be brain dead not to understand why. Sounds like racism in the work place. Shutting down the government because you can't stand the President is a black man. This isn't good for the rest of the world either. How long do they get to pretend they're not fucking over Americans. The fucking government is the fucking people. At least that's what we were led to believe in civics class. It's what the constitution proclaims. Time to crack the whip.

 

Come on. Trump's a narcistic clown. His campaign is a confirmation of this. What's scary is so many Americans seem to like ignorant blowhards for leaders. What's important for the court is not to appoint another self serving sociopath to the bench. I trust both Hillary Clinton and Bernie Sanders to recommend highly qualified candidates.

 

Sure. But the question was about the nature of his potential Supreme Court appointments, compared with Clinton's. And here Clinton's long career and established pattern of associates come into play, as factors for consideration.

Obviously it's idle in a sense - faced with the choice, one would be a fool to put Trump in the White House over Clinton based on such speculation - but it's a window into something "liberals" seem to find mysterious: the lack of support for Clinton among a wide range of people who don't seem to have acquired their reluctance from the wingnut propaganda sources.

 

seriously. after the dishonesty by Huerta in Nevada I'm seriously considering not voting for Hillary if she is the nominee not that it matters I'm a liberal in Georgia my vote doesn't count anyway

 

The Scalia Effect

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This might have something to do with Republican panic:

Dow Chemical Co., one of America's largest chemical manufacturers, agreed on Friday to settle a price-fixing lawsuit for $835 million in the wake of Justice Antonin Scalia's death.

The company had challenged a $1 billion judgment in a high-stakes, class-action case. But without Scalia, it appears the new reality at the high court was too big a gamble for the company to continue with the litigation.

"Growing political uncertainties due to recent events within the Supreme Court and increased likelihood for unfavorable outcomes for business involved in class action suits have changed Dow’s risk assessment of the situation," the company said in a statement ....

.... Stunningly, Dow's statement singled out two major cases in which Scalia wrote the majority opinions―2011's Wal-Mart v. Dukes and 2013's Comcast v. Behrend―essentially conceding that, without Scalia, the company no longer had any prospects of winning. Both of those cases were decided 5 to 4, with conservatives ruling for the corporations.

(Farias↱)​

It is one thing to point to Republican intransigence in general, or even the inevitable but overdue rising focus on conservative racism, but even in terms of the McConnell Cloakroom Conspiracy, the conservative tantrum over the Supreme Court is extraordinary. Let's see, there's the "tradition" with no affirmative examples in history, and is established by eighty years of the question not coming up. There is a Biden speech that doesn't say what Republicans want it to say. There is the U.S. Constitution, which doesn't say what Republicans want it to say.

These people swore a sacred oath.

But they're Republicans, and now we see what their word is worth.

Still, though, why? It can't just be the black man in the White House, or the fact of the letter D in parentheses after his name. There must necessarily be something more.

And maybe we've just seen an example.

The greatest of all crimes are the wars that are carried on by governments, to plunder, enslave, and destroy mankind.

The next greatest crimes committed in the world are equally prompted by avarice and ambition; and are committed, not on sudden passion, by men of calculation, who keep their heads cool and clear, and who have no thought whatever of going to prison for them. They are committed, not so much by men who violate the laws, as by my men who, either by themselves or by their instruments, make the laws; by men who have combined to usurp arbitrary power, and to maintain it by force and fraud, and whose purpose in usurping and maintaining it is by unjust and unequal legislation, to secure for themselves such advatages and monopolies as will enable them to control and extort the labor and properties of other men, and thus impoverish them, in order to minister to their own wealth and aggrandizement.

(Spooner↱)​

And for those of today's generations who earn such scorn as Lysander Spooner explained a hundred forty-one years ago, Antonin Scalia was among their most powerful and insidious tools.

As long as they thought they could get away with it, Dow Chemical was willing to try. With their puppet dead, they wonder if circumstance can find them another "originalist" who so loathes the Constitution as Scalia did; in the face of that grimly poor prospect, Dow Chemical folded and settled.

Antonin Scalia, popular myth to the contrary, was no originalist; there are no originalists left in the judiciary. This general assertion is validated by one simple point of fact: The one part of the Constitution―the Supreme Law of the Land―that is not binding upon the legislators or judges, is the part that tells them what the Constitution is for and what it does.

Nobody rejecting the Preamble can reasonably pretend to argue what the Founding Fathers intended. Scalia's manner of originalism is a fraud.

And this Dow settlement might well be an indicator of just what that fraud is worth.
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Notes:

Farias, Cristian. "Antonin Scalia's Death Just Cost This Company $835 Million". The Huffington Post. 26 February 2016. HuffingtonPost.com. 27 February 2016. http://huff.to/2128Vh5

Spooner, Lysander. Vices Are Not Crimes: A Vindication Of Moral Liberty. 1875. Static1.SquareSpace.com. 27 February 2016. http://bit.ly/1n5GIIJ

 

The Conservative Effect

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There is a saying, much criticized, in Beltway circles, that one should never let a good crisis go to waste. We might also recall Pablo Picasso, who explained that no act of creation takes place without an act of destruction. There are ways in which those two axioms seem well-suited for partnership.

In Republican circles, these days, perhaps we need a new formulation: Never let a [crisis/issue/day] pass without turning it into a marketplace derby.

Even as Senate Republicans invent fake traditions in order to justify their dereliction of duty and abandonment of the Constitution, the rising pitch of a terrified diva must occasionally give way to some notion of substance.

Enter Sen. Ted Cruz, whose notion of substance is pretty useless:

Sen. Ted Cruz agrees with Donald Trump on this much: He doesn’t plan on cutting many deals with Democrats if he’s elected president.

Speaking with reporters outside the Georgia State Capitol before his final Atlanta rally ahead of the SEC Primary on Tuesday, the Texas Republican sought to warn conservatives about the way Trump, the real estate developer who is the presidential frontrunner across the Deep South and nationally, would pick Supreme Court justices.

“If you want Justice Scalia’s replacement to be someone that is a compromise between Chuck Schumer and Donald Trump, you will know for a fact that your rights are going to be taken away,” Cruz said.

(Lesniewski↱)​

We might, then, remind the junior U.S. Senator from Texas that these United States of America survived the disgrace of Antonin Scalia's horrifying term with the Supreme Court; he was, at the time of his death, the longest-serving justice on the current bench.

The damage Justice Scalia inflicted will probably never be tallied properly; it seems an impossible task. Former clerk Bruce Hay↱ recalls his time with the mean-spirited, fake "originalist":

He refused to join a recent Supreme Court opinion about DNA testing because it presented the details of textbook molecular biology as fact. He could not join because he did not know such things to be true, he said. (On the other hand, he knew all about the eighteenth century. History books were trustworthy; science books were not.) Scientists should be listened to only if they supported conservative causes, for example dubious studies purporting to demonstrate that same-sex parenting is harmful to children. Scientists were also good if they helped create technologies he liked, such as oil drills and deadly weapons.

His own weapon was the poison-barbed word, and the battleground was what he once labeled the Kulturkampf, the culture war. The enemy took many forms. Women’s rights. Racial justice. Economic equality. Environmental protection. The “homosexual agenda,” as he called it. Intellectuals and universities. The questioning of authority and privilege. Ambiguity. Foreignness. Social change. Climate research. The modern world, in all its beauty and complexity and fragility.

Most of all, the enemy was to be found in judges who believe decency and compassion are central to their jobs, not weaknesses to be extinguished. Who refuse to dehumanize people and treat them as pawns in some Manichean struggle of good versus evil, us versus them. Who decline to make their intelligence and verbal gifts into instruments of cruelty and persecution and infinite scorn.​

Hay goes on to tell the tale of a transgendered friend who, for him, seems to exemplify the impact of Scalia's hatred:

It’s her knowledge of what the “culture war” means for trans women across the country, women who are shunned by their families, who are often unable to get jobs and therefore live in poverty, who face shocking levels of assault and murder (2015 was a record year), who attempt suicide at a rate greater than 40 percent. Who are generally excluded from the protection of antidiscrimination laws. Who, on the contrary, are at this moment the subject of dozens of pending pieces of transphobic legislation around the country, such as bills to stigmatize trans children by forcing them to use separate locker rooms at school or to jail trans women for using public bathrooms that match their identity. The drumbeat of organized hatred, calling to mind yellow stars and separate drinking fountains and worse, makes my friend feel like a nonperson, unwelcome in her own country. All this, for the crime of not matching someone else’s idea of how women are supposed to look.

She’s decided to leave academic physics after finishing the doctorate. She has become too absorbed in the struggle for equality – for being accorded the most basic human dignity – to think of anything else. She could not live with herself, she tells me, if she did not devote her talents to helping the many trans women whose lives are decimated by the bigotry and ignorance of those around them. Bigotry and ignorance inflamed by demagogues like Antonin Scalia, whose toxic rhetoric has done so much to incite and legitimate fear of gender nonconformity and elevate it to the level of constitutional principle. She is resolved to become a trans rights activist.

So that is Antonin Scalia’s contribution to physics. To drive a woman with a luminous mind from the study of quantum theory and statistical mechanics and condensed matter, and into the urgent project of safeguarding vulnerable people from the inhumanity he dedicated his life to spreading. An inhumanity that survives as his true legacy, safeguarded by deluded acolytes and admirers.​

We might also consider that Hay's lamentation for his friend actually represents one among the lesser of Scalia's awful inflictions.

To the other, Antonin Scalia is also a man who once explained that his qualification to do this to people has nothing to do with the law.

Ted Cruz is excremental. Antonin Scalia is dead. The United States of America will survive them both, much to their dismay.
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Notes:

Hay, Bruce. "I thought I could reason with Antonin Scalia: A more naive young fool never drew breath". Salon. 27 February 2016. Salon.com. 27 February 2016. http://bit.ly/1QPj69b

Lesniewski, Niels. "Cruz Warns Trump and Schumer Would Cut SCOTUS Deal". At the Races. 27 February 2016. ATR.RollCall.com. 27 February 2016. http://bit.ly/1TeRc7c

 

Now there's a criterion we could use for a Court appointee: nobody who ever used the term "the homosexual agenda" as an adult, in anything other than mockery, gets to be on the US Supreme Court. It's too cheaply political, and it's too damn dumb.

This is an issue. I keep hearing, from serious people I tend to respect - now from a Harvard Professor of Law - about how intelligent Scalia was, how "frighteningly smart".

And then I read his stuff.

Am I the only guy on the planet who reads Scalia's essays and is underwhelmed by the quality of the intellect revealed? The logical invalidities? The sloppy and confused reasoning? Scalia was well read, had a big vocabulary, yadda yadda - he couldn't think. There's a German proverb, "Too clever is dumb" - it's open to deeper reading than the standard, here: Scalia was pleased with being clever, and too clever was his highest intellectual attainment. He was not an intelligent man.

 

One of my disappointments in "government" came among many others during the George W. Bush administration, when he nominated a rabid bigot to a Fifth Circuit bench. I wrote both my Senators, asking them to vote against him. Their offices sent form emails, intended to generically assuage generic Democrats and Republicans alike, as if the world outside was that weird "generic ballot" we hear about in polls.

In the end, my Senators voted to approve a federal judge for whom consent is irrelevant to sexual intercourse.

Very, very disappointing. And incredibly dangerous.

When they should have made a stand, they deferred to traditional advice and consent. It happens, but should I ever have personal audience with either of them, I will make a point of reminding what they have done.

 

Justice Jane?

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So, there is some murmur and buzz around the proposition that the White House might be in the process of vetting Eighth Circuit Appeals Judge Jane Kelly for nomination. This would be a fine choice; she received unanimous confirmation in 2013.

Then again, in negotiating a Republican-controlled Senate this time around, Kelly would at least have an inroad:

In a Senate floor speech in 2013, Mr. Grassley effusively praised Judge Kelly, a longtime public defender, just before she won unanimous confirmation to her current position on the United States Court of Appeals for the Eighth Circuit.

The senator read from a handwritten recommendation letter he had received from a retired judge, David R. Hansen, a Republican appointee he counted as an old friend. Mr. Hansen called Judge Kelly a “forthright woman of high integrity and honest character” and a person of “exceptionally keen intellect.”

“I congratulate Ms. Kelly on her accomplishments and wish her well in her duties,” Mr. Grassley said at the time. “I am pleased to support her confirmation and urge my colleagues to join me.”

Democrats have privately said that selecting Judge Kelly might force Mr. Grassley to change his stance and hold hearings, out of a sense of obligation to a respected jurist from his home state and concern about tarnishing his reputation in Iowa months before he faces re-election. The six-term senator is facing pressure from voters to consider any nominee on the merits, but he said in an interview Wednesday that he would not change his position even for a fellow Iowan.

(Hirschfeld Davis and Herszenhorn↱)​

And, you know, maybe the unfair aspect of the politics is that this is how it has to go. Judge Kelly is certainly qualified, but what if she's the only one the White House has enough leverage to push through by embarrassing the hell out of Chuck Grassley?

But Republicans keep setting themselves up for it. If you had this potential nominee at this time under these circumstances, why would you not send this judge to the Show?

The ouch! on this one is nearly vicious. But if you find yourself asking what a good man like Chuck Grassley did to deserve this, you haven't been paying attention.
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Notes:

Hirschfeld Davis, Julie and David M. Herszenhorn. "White House Is Said to Be Vetting Iowa Judge for Supreme Court Seat". The New York Times. 2 March 2016. NYTimes.com. 3 March 2016. http://nyti.ms/24DkdNh

 

I didn't think that people should celebrate this man's death, and I said as much in an earlier post. But now I find out that he was down in Texas (where else?) for one of those "hunts" where they release live game birds from cages right in front of the "hunters", who, in effect, murder these birds. I knew he was a right-wing bigot and I disliked him for that -- a lot. But now I find that he is a murderer also. Good riddance Antonin -- hope you are dining tonight with your fellow dead "hunters" . . . in HELL!

 

Well, there is also the passing of time; I certainly didn't spare him a fortnight, but he really ought to have time to get in the ground, first. That is, we need to wait if we intend to dance on the grave, else we are merely trampling the corpse.

Then again, I could have waited↑, too, before making a point about dignity in such a manner as to deliberately link to vicious parody↱.

I can also imagine a condition by which this grave-dancing is reassigned to the dignified and more appropriate means of responding to the death of a prominent political person perceived problematic. That is to say, the new undignified will be really undignified. Er ... ah ... something.

Point being, our society is in a rough time; let us hope things don't get so much worse that, hey, at least they're not abusing the corpse in the street.

It really is starting to feel like American society is about to undergo a massive tantrum. We really do need to find a way off this track.

And yet, it is still impossible to ignore that Justice Scalia is one of the reasons we're at this point.

No, honestly. Think about it in terms of role models, and here's an outlier to crystallize: There was, ten or fifteen years ago, a judge who gave a man convicted of raping a fourteen year-old an exceptionally light sentence because Bill Clinton got away with adultery. More realistically, our society has a constant murmuring discourse about role models, and as the viciously antisocial politics of the empowered social-conservative hardline have risen to such prominence in recent decades, they have found themselves relying more and more on completely illogical, even paradoxical balbutive vomited in lieu of rational argument, and, honestly, if e'er they had an empowering role model, it would be Justice Antonin Scalia.

It is very hard to sympathize with the grave-dancing. Or, rather, it just feels awful how easy it is to sympathize with the grave-dancing. I try to leave it as, "Fine, the menace of his term on the Court is gone", and leave it at that. It is a feeling that hardly lacks for insecurity. But in trying to figure the context in which this is all happening, it seems I ought to be focusing more on the significance of what that context means. It was already undignified when he laid down.

And in a way, history is far too ironic this time around; the moral relativism and abandonment of fixed, God-given values did occur as predicted, except not in the projected societal sectors. We got here through a celebration of ignorance and apathetic vice. The grave-dancing is symptomatic; this societal sickness spreads.

We're going to need to know how we got here in order to find our way out. But it's true, even outlooks and ideologies I would expect to damn well know better are starting to throw in. I get that it's a reality of market demand, but that demand only begs the question.

It is, I suppose, possible to be indifferent to Scalia's death in particular; I would, at least, hope so. Because it really is a good thing he's no longer on the Supreme Court.

 

House Notes and Sentate Business

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Via The Hill↱:

President Obama is vetting two federal appeals judges and a federal trial judge who have received support or have ties to Republicans to replace Justice Antonin Scalia on the Supreme Court, according to the New York Times.

Citing a source knowledgeable about the process, the Times reports that Merrick B. Garland and Sri Srinivasan are undergoing background checks by the FBI.

And according to the National Law Journal, federal trial judge Ketanji Brown Jackson is also being considered for the nomination.

Jackson formerly served on the U.S. Sentencing Commission and is an extended relative of Speaker Paul Ryan through marriage, according to the Times. She was confirmed to her current position in a voice vote in 2013.​

Again, this is the weird bit about Republican politics. To the one, sure, just go dragging the Speaker into all this. To the other, Judge Brown Jackson is good call.

Via National Law Journal↱:

Jackson was confirmed to the federal district court in Washington in March 2013. During her confirmation hearing, she received support from Speaker Paul Ryan, R-Wisconsin, who is related to her by marriage. Ryan expressed his “unequivocal” support for her nomination to the D.C. court.

No recent Supreme Court justice has come directly from a federal trial bench. Sonia Sotomayor, who joined the court in 2009 from the U.S. Court of Appeals for the Second Circuit, had earlier been a judge in the Southern District of New York. Sotomayor has lamented the lack of professional diversity on the bench, and she’s called her trial court service “the formative experience for preparing me for the [Supreme] court.”

Jackson earned her law degree in 1996 from Harvard Law School and clerked for Justice Stephen Breyer from 1999 to 2000. She served as a federal public defender in Washington and as of counsel to Morrison & Foerster, where her practice included appellate work, before her appointment to the U.S. Sentencing Commission in 2010. She continued to serve on the commission after becoming a judge.​

One of the luxuries of being a Democrat is that there really are plenty of qualified judges, and one need not nominate, you know, Harriet Miers.
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Notes:

Rupert, Evelyn. "Srinivasan, two other judges on Supreme Court short list: reports". The Hill. 4 March 2016. TheHill.com. 4 March 2016. http://bit.ly/1TggYHR

Tillman, Zoe. "Source: D.C. Judge Ketanji Brown Jackson Vetted for Scalia Seat". The National Law Journal. 26 February 2016. NationalLawJournal.com. 4 March 2016. http://bit.ly/1TggVvy

 

Lynch|Piñata

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Via The Hill↱:

Attorney General Loretta Lynch has asked that the White House not consider her for the open seat on the Supreme Court, a spokeswoman said on Tuesday.

In a statement, Justice Department spokeswoman Melanie Newman said Lynch has decided “the limitations inherent in the nomination process would curtail her effectiveness in her current role.”

Newman added: “Given the urgent issues before the Department of Justice, she asked not to be considered for the position.

“While she is deeply grateful for the support and good wishes of all those who suggested her as a potential nominee, she is honored to serve as attorney general, and she is fully committed to carrying out the work of the Department of Justice for the remainder of her term.”​

Yes, there is that.

Meanwhile, speaking of the limitations inherent in the nomination process, and also from The Hill↱:

President Obama’s top spokesman on Tuesday ripped Sen. John Cornyn (R-Texas) for suggesting Republicans will treat his Supreme Court nominee like a "piñata."

“Given Sen. Cornyn’s language, it sounds like he might spend a little too much time watching Donald Trump rallies,” White House press secretary Josh Earnest told reporters.

Earnest called the Texas senator’s comments another unprecedented step in the contentious fight to replace the late Justice Antonin Scalia.

Senate GOP leaders have already pledged not to hold hearings or votes for any nominee Obama puts forward, arguing it should be up to the next president, and not Obama, to name a replacement for the conservative judge.

Now, they have “taken the next step and suggested without knowing who this nominee is … that they’ll be subjected to bashing by Republicans,” Earnest said.

He said it’s "an indication that Republicans are digging in even further on an unreasonable position of not giving that person any sort of fair hearing and vowing to tear that person down."

He added: "I don’t think that’s how most people believe how this process should work." ​

And perhaps it's not, but it's pretty much all Republicans have, and as we've learned these recent years, that's pretty much all that counts.
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Notes:

Fabian, Jordan. "White House: Cornyn's 'piñata' comment sounds like Trump". The Hill. 8 March 2016. TheHill.com. 8 March 2016. http://bit.ly/1LQeNsd

Hattem, Julian. "Loretta Lynch takes name out of running for Supreme Court". The Hill. 8 March 016. TheHill.com. 8 March 2016. http://bit.ly/1nvi58x

 

Yes, true.

It's now going to be even more shameful as the Repub Congress is not going to allow Obama to appoint a new justice. I hope this comes back to haunt the Repubs when Hillary is elected President.

 

We'll have to see what they come up with. Four years will be a long time to stall.

But, hey, they're Republicans, and in order to keep the two-way competition fair, we'll have to spot them some credibility.

Really.

Even if they try Nostradamus.

 

Jordan Withdraws from Consideration

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Judge Adalberto J. Jordan, of the U.S. Eleventh Circuit Court of Appeals, has withdrawn his name from consideration as a nominee to the U.S. Supreme Court:

The Miami-based judge was reportedly a contender to fill the vacancy left by the death of Justice Antonin Scalia and would have been the first Cuban-American to sit on the high court.

“He pulled himself out of consideration,” Sen. Bill Nelson (D-Fla.) told CNN, explaining that Jordan was dealing with a “personal, family situation” involving his mother.

“I talked to him ... I think that's unfortunate because he is squeaky clean,” Nelson said.

Jordan is the third potential candidate to ask the White House not to be considered for the open seat on the Supreme Court.

Attorney General Loretta Lynch, who was rumored to be on Obama’s list, said Tuesday she asked the White House to take her out of consideration for the open seat on the court.

Nevada Gov. Brian Sandoval (R) took himself out of the running late last month after it was reported he was being vetted.

(Fabian↱)​

Meanwhile, the field as it stands:

President Obama has begun interviewing candidates for the Supreme Court vacancy created by the death of Justice Antonin Scalia.

Sources close to the process say that among those being interviewed are Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia; Judge Sri Srinivasan, of the same court; Judge Paul Watford, of the 9th Circuit Court of Appeals based in San Francisco; Judge Jane Kelly, of the 8th Circuit Court of Appeals based in St. Louis; and U.S. District Judge Ketanji Brown Jackson, who serves in Washington, D.C.

The first three are considered leading contenders.

(Totenberg↱)​

Senate Republicans, meanwhile, are posturing themselves to resist any nomination. Such as Sen. John Cornyn (R-TX), who wants to beat nominees until they resemble a piñata, and also his need to delegitimize any nominee:

"What I don't understand is how someone who actually wants to be confirmed to the Supreme Court would actually allow themselves to be used by the administration in a political fight that's going to last from now until the end of the year," Cornyn told a small group of reporters in the Capitol.

(Barrett↱)​

In other words, since Senate Republicans intend to thrash any nominee, nobody who wants to be on the Court would choose to go through the process; therefore, we might conclude that anyone willing to go through the process does not actually want to be on the Court, which conveniently justifies Republican resistance to that nominee.

We need not suggest his comments drove Judge Jordan out of consideration, but, to the other, we might wonder what comes next. Because the upside is that the senior U.S. Senator from Texas didn't say the nominee would resemble an unarmed black man in Cleveland, or a Sikh cabbie after 9/11. In other words, we can still at least pretend the GOP hasn't utterly abandoned decency ... except ... you know ... in that case, never mind the presidential contest taking place.
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Notes:

Barrett, Todd. "Supreme Court nominee would be a 'piñata,' Cornyn says". CNN. 7 March 2016. CNN.com. 9 March 2016. http://cnn.it/1W9rgaO

Fabian, Jordan. "Another judge withdraws name from SCOTUS consideration". The Hill. 9 March 2016. TheHill.com. 9 March 2016. http://bit.ly/223mMpM

Totenberg, Nina. "President Obama Meets With Supreme Court Candidates". National Public Radio. 8 March 2016. NPR.org. 9 March 2016. http://n.pr/1TLWasi

 

Conservative "Justice"

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Perhaps it is easy enough to buy into the usual conservative reactionism; while Republicans fret over the prospect that the next Supreme Court justice, if nominated by a Democrat, will wreck the country, consider in the meantime what makes for a good judge in the conservative outlook.

And, you know, it's easy enough to point to Alabama Chief Justice Roy Moore, but nobody takes that thought seriously.

But here's an idea: The governor of a state nominates a Supreme Court justice; legislative opposition says no and points to a politician they would approve for the bench. And everything, predictably, goes downhill from there.

Members of a Virginia Senate committee on Tuesday endorsed former Attorney General Ken Cuccinelli’s nomination to the state’s Supreme Court.

The Senate Courts of Justice Committee approved Cuccinelli’s nomination by a 9-6 vote margin.

State Sen. Richard Stuart (R-Stafford County) on Tuesday nominated Cuccinelli to fill a vacancy on the state Supreme Court.

Gov. Terry McAuliffe nominated interim state Supreme Court Justice Jane Marum Roush, but the Republican-controlled Virginia House of Delegates on March 2 formally rejected her nomination. State Sen. Glen Sturtevant (R-Richmond) blocked GOP efforts to nominate Virginia Court of Appeals Judge Rossie Alston.

The Associated Press reported the full Senate will likely consider Cuccinelli’s nomination on Wednesday.​

Michael K. Lavers'↱ report for Washington Blade posted Tuesday evening, noting that Cuccinelli postured himself as surprised; Democrats and rights activists were stunned:

The Democratic Party of Virginia in a press release said Cuccinelli’s record on LGBT-specific issues “makes him unfit for the bench.”

“This is an embarrassment and affront to the people of Virginia and to the judicial process,” said Lieutenant Gov. Ralph Northam in a statement his office released on Wednesday. “Ken Cuccinelli has spent his career as an activist trying to outlaw abortion and birth control, denying science and climate change and aggressively denigrating and denying our LGBT community of basic rights.”​

The thing is that they're not wrong about Cuccinelli's record. This is the sort of person Virginia Republicans think should be a Supreme Court justice.

To the other, perhaps it is not a surprise that the lede had changed by Wednesday afternoon:

Former Attorney General Ken Cuccinelli withdrew from consideration for the state Supreme Court on Wednesday following a surprise move by state Senate Republicans a day earlier to nominate him for a vacancy.​

According to the Virginian-Pilot report from Patrick Wilson and Bill Sizemore↱, Cuccinelli was "very interested" in the idea of serving on the commonwealth's high court, but his family apparently said no.

But in addition to the former Attorney General's bigotry against women, homosexuals, and science, there is also the taint of scandal that brought down the Republican governor he hoped to succeed, and, while it seems strange to call it a complex consideration, we might wonder at how embarrassed Virginia would be by the outcome.

Consider, for instance, Alabama, whose state Supreme Court was just brushed aside by the U.S. Supreme Court in a family law case falling under Article IV of the U.S. Constitution. The nation's highest court handed down a summary disposition↱ rejecting the Yellowhammer argument without bothering to hear oral arguments. Only days before, the Alabama Supreme Court itself handed down some manner of marriage equality decision abiding the Supreme Law of the Land, and while the rest of the Court did its job, Chief Justice Roy Moore and colleagues responded to the eleven-word ruling with one hundred sixty-nine pages complaining about their own concurrence.

And while repeated judicial thrashings often only harden Alabamian resolve against the federal government, rule of law, and general human decency, it is also true that at some point being perpetual losers will embarrass Yellowhammer pride.

One would think Virginia conservatives might be smart enough to figure out that putting this "Cooch" on the commonwealth's highest bench would also be setting the Old Dominion up for sustained and repeated humiliation.

Apparently not.

But between his wife and their seven children, maybe someone was able to make the obvious point, and after the McDonnell scandal and subsequent electoral humiliation when the party rammed a trio of hardliners onto the 2013 ticket―Cuccinnelli for governor; an extremist preacher named E.W. Jackson, who could not manage to spell the word "commandment" properly on the front of his book about the Ten Commandments, for Lieutenant Governor; and Mark Obenshein, the state senator who proposed criminal penalties for women who don't report menstrual irregularities to the state, for Attorney General―and voters chose former DNC Chairman, professional fundraiser, and Clinton hand Terry McAuliffe for the Executive Mansion.

(No, really, even I was surprised that Democrats ran McAuliffe; only the McDonnell scandal and six and a half points to the Libertarian candidate can explain McAuliffe's two-point plurality ending a thirty-two year trend of bucking the governorship against the White House; the outcome was also the first time in forty-eight years the governor ascended on a plurality instead of a proper majority.)

It really is hard to figure what Virignia Republicans were thinking. To the other, though, we gain some insight into the conservative outlook on justice. That is, Mat Staver is Mat Staver, but he's just this goofy lawyer who wins some and loses some, you know? And Alabama Chief Justice Roy Moore might be a conservative icon, but we're also talking about Alabama, so maybe he's not the best comparison.

Virginia, though? It's probably not bellwether, but we cannot dismiss this episode as insignificant. Ken Cuccinelli on the Virginia Supreme Court? Yeah, that's how conservatives view justice. Americans would be wise to heed the conservative warning.
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Notes:

Lavers, Michael K. "Ken Cuccinelli nominated to Va. Supreme Court". Washington Blade. 8 March 2016. WashingtonBlade.com. 10 March 2016. http://bit.ly/1LQssPR

Wilson, Patrick and Bill Sizemore. "Ken Cuccinelli withdraws from consideration for Virginia Supreme Court". The Virginian-Pilot. 9 March 2016. PilotOnline.com. 10 March 2016. http://bit.ly/1SCMQpk