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Justice Antonin Scalia Dead At 79

Antonin Scalia

Multiple news agencies are reporting that Associate Justice Antonin Scalia has died, apparently in his sleep of natural causes, at a ranch in Texas:

Associate Justice Antonin Scalia was found dead of apparent natural causes Saturday on a luxury resort in West Texas, federal officials said.

Scalia, 79, was a guest at the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa.

According to a report, 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.

Chief U.S. District Judge Orlando Garcia, of the Western Judicial District of Texas, was notified about the death from the U.S. Marshals Service.

U.S. District Judge Fred Biery said he was among those notified about Scalia’s death.

“I was told it was this morning,” Biery said of Scalia’s death. “It happened on a ranch out near Marfa. As far as the details, I think it’s pretty vague right now as to how,” he said. ”My reaction is it’s very unfortunate. It’s unfortunate with any death, and politically in the presidential cycle we’re in, my educated guess is nothing will happen before the next president is elected.”

The U.S. Marshal Service, the Presidio County sheriff and the FBI were involved in the investigation.
Officials with the law enforcement agencies declined to comment.

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.

A gray Cadillac hearse pulled into the ranch last Saturday afternoon. The hearse came from Alpine Memorial Funeral Home.

Texas Gov. Greg Abbott released a statement Saturday afternoon, calling Scalia a man of God, a patriot and an “unwavering defender of the written Constitution.”

“He was the solid rock who turned away so many attempts to depart from and distort the Constitution,” Abbott said. “We mourn his passing, and we pray that his successor on the Supreme Court will take his place as a champion for the written Constitution and the Rule of Law. Cecilia and I extend our deepest condolences to his family, and we will keep them in our thoughts and prayers.”

From The New York Times:

Justice Antonin Scalia, whose transformative legal theories, vivid writing and outsize personality made him a leader of a conservative intellectual renaissance in his three decades on the Supreme Court, was found dead on Saturday at a resort in West Texas, according to a statement from Chief Justice John G. Roberts, Jr . He was 79.

“He was an extraordinary individual and jurist, admired and treasured by his colleagues,” Justice Roberts said. “His passing is a great loss to the Court and the country he so loyally served.”

The cause of death was not immediately released.

Justice Scalia began his service on the court as an outsider known for caustic dissents that alienated even potential allies. But his theories, initially viewed as idiosyncratic, gradually took hold, and not only on the right and not only in the courts.

He was, Judge Richard A. Posner wrote in The New Republic in 2011, “the most influential justice of the last quarter century.” Justice Scalia was a champion of originalism, the theory of constitutional interpretation that seeks to apply the understanding of those who drafted and ratified the Constitution. In Justice Scalia’s hands, originalism generally led to outcomes that pleased political conservatives, but not always. His approach was helpful to criminal defendants in cases involving sentencing and the cross-examination of witnesses.

With the retirement of Justice John Paul Stevens in 2010, Justice Scalia became the longest serving member of the current court. By then, Justice Scalia was routinely writing for the majority in the major cases, including ones on the First Amendment, class actions and arbitration.

He was an exceptional stylist who labored over his opinions and took pleasure in finding precisely the right word or phrase. In dissent, he took no prisoners. The author of a majority opinion could be confident that a Scalia dissent would not overlook any shortcomings.

Justice Scalia wrote for a broader audience than most of his colleagues. His opinions were read by lawyers and civilians for pleasure and instruction.

Justice Scalia’s sometimes withering questioning helped transform what had been a sleepy bench when he arrived into one that Chief Justice Roberts has said has become too active, with the justices interrupting the lawyers and each other.

And The Washington Post:

Antonin Gregory Scalia — “Nino” to family, friends and colleagues — was born in Trenton, N.J., on March 11, 1936, and grew up in the New York City borough of Queens. His father, Salvatore, came through Ellis Island at 17; he learned English and became a professor of romance languages at Brooklyn College.

Justice Scalia’s mother, the former Catherine Panaro, was a second-generation Italian American and an elementary school teacher. Not only was Nino their only child, he was the only child of his generation on either side of the family.

The whole extended clan doted on him, biographer Joan Biskupic reported in her biography “American Original,” and expected achievement. “You’re not everybody else,” Catherine would say, according to Biskupic. “Your family has standards, and it doesn’t matter what the standards of [others] are.”

In 1953, he graduated first in his class at St. Francis Xavier, a military prep school in Manhattan, and won a naval ROTC scholarship but was turned down by his first choice of college, Princeton.

A devout Catholic, he attended his second choice, Georgetown University, where he was the valedictorian of the class of 1957. In his graduation speech, he exhorted his fellow students: “If we will not be leaders of a real, a true, a Catholic intellectual life, no one will!”

Justice Scalia then entered Harvard Law School, where he was editor of the law review and graduated magna cum laude in 1960. That same year, he married Maureen McCarthy, a Radcliffe student he’d met on a blind date.

She, too, came from a small family, but they made up for it, with five sons and four daughters and literally dozens of grandchildren.

“We didn’t set out to have nine children,” Justice Scalia told Lesley Stahl on the CBS show “60 Minutes.” “We’re just old-fashioned Catholics, playing what used to be known as ‘Vatican Roulette.’ ”

He added that the other four sons were relieved when their brother Paul decided to “take one for the team” and become a priest.

The Scalias moved around. After traveling across Europe for a year while he was a Harvard Sheldon Fellow, the newlyweds moved to Cleveland, where Justice Scalia joined the Jones Day firm in 1961.

On the cusp of becoming partner, he left private practice in 1967 to become a law professor at the University of Virginia in Charlottesville.

In 1971, he became general counsel to the new Office of Telecommunications Policy in the Nixon administration; the agency spurred development of the nascent cable industry. From 1972 to 1974, he was chairman of the Administrative Conference of the United States, followed by three years as assistant attorney general for the Office of Legal Counsel.

After Jimmy Carter, a Democrat, won election to the White House, Justice Scalia returned to academia as a professor at the University of Chicago law school.

Then Reagan came into office in 1981 and the next year nominated Justice Scalia to the influential U.S. Court of Appeals for the District of Columbia Circuit. His name quickly appeared on short lists of potential Supreme Court nominees.

Reagan in 1981 made good on a campaign promise to appoint the court’s first woman with his choice of O’Connor, then an Arizona state judge and former legislator. His next chance to leave an imprint came five years later, when Chief Justice Warren Burger announced that he was stepping down.

The president decided to elevate Justice William H. Rehnquist to the chief’s job, and Justice Scalia and fellow D.C. Circuit Judge Robert H. Bork became the finalists for the opening. Bork was the more experienced jurist and a conservative icon, but the 50-year-old Scalia was almost a decade younger and brought the added political benefit of being Italian American.

Justice Scalia got the nomination. After a testy Senate battle over Rehnquist’s elevation, Justice Scalia sailed through his confirmation hearings and was approved 98 to 0.

Future vice president Joseph R. Biden, then a Democratic senator from Delaware and a stalwart of the Judiciary Committee, later said that his vote for Justice Scalia was the one he most regretted — “because he was so effective.”


Whatever one feels about the merits of Justice Scalia’s legal opinions, it is hard to deny that Antonin Scalia is likely to be remembered almost with many of the most consequential Supreme Court Justices in American history Whether he was in majority or dissent, Scalia’s arguments were always hard-hitting, on point, and designed to make his fellow Justices, legal scholars, legislators, and future Justices and lawyers think about the direction of their own arguments. Although he was an avowed conservative, both politically and in his private religious life, Scalia also often surprised people by ending up on the “liberal” side of issues, particularly in dealing with freedom of speech issues under the First Amendment. He was among the majority, for example, in Texas v. Johnson, the 1989 case that found laws criminalizing burning of the American flag to be unconstitutional. In later years, he often wrote the majority opinion in the notable cases that have been issued by the Supreme Court led by Chief Justice John Roberts that strictly interpreted the First Amendment when it came to laws dealing with speech that may be offensive. On the other hand, of course, Scalia was also notably on the right side of the course in the series of cases that began with Lawrence v. Texas that gradually expanded the rights of gay and lesbian American and eventually led to the Supreme Court’s decision this past June in Obergefell v. Hodges.

While it is still early, and there will be much to discuss about Scalia’s legacy and the next steps forward, it’s obvious that Scalia’s passing leaves a massive hole in the Court. On the practical side, his passing means that the Court will be short a Justice for what is likely to be the remainder of the current term. Given the divided nature of the court on many of the issues that have already been heard by the Justices, and which are scheduled to be heard in the coming months, this leaves open the possibility of several cases in which there is a 4-4 tie, which means that the decision below would stand but it would have no precedential impact. It’s also possible that the Court may decide to delay hearings in some closely fought cases, or set others for reargument, until a time when the Court has a full compliment of Justices again.

More broadly, Scalia’s passing is a significant blow to what has been the ideological balance of the Court for several years now, and that fact alone is likely to be a huge factor in determining what happens with any effort to name a replacement for Justice Scalia. Obviously, anyone that President Obama would select to replace Justice Scalia would be far more liberal than Justice Scalia himself, and that appointment could have a significant impact on many cases in the future. Already, there are calls from Republican Senators to delay any vote on a replacement for Justice Scalia until the next President takes office nearly a year from now. This would constitute an atypically long vacancy for a Supreme Court seat in modern history, but it would not be unprecedented and it would not be all that hard for the Republican-controlled Senate to bring such a result about. In either case, we can expect some huge political battles ahead regarding what could be President Obama’s third Supreme Court appointment, but which may not be acted on at all.

Justice Scalia’s passing is also likely to put the issue of the Supreme Court in the front and center of the Presidential race in a way that it has not been already. As I’ve noted in the past, Justice Scalia was among four Justices above the age of 75 who could have ended up creating a vacancy during just the first term of the next President, the other three being Justice Ruth Bader Ginsburg, Justice Stephen Breyer, and Justice Anthony Kennedy. Justice Scalia’s passing not only means that there is a present vacancy, but it will serve to remind everyone that there could be several others in the coming years and that the next President is likely to have a real chance to remake the ideological balance of the Supreme Court for decades to come. We can expect the candidates for President on both sides of the aisle to begin to comment on this issue more openly and more forcefully, and that will likely continue all the way through the General Election, especially if there is a battle over whether any replacement appointment would even get a vote in the Senate before the next President takes office.

Further updates and, I’m sure, more posts on the legacy of Justice Scalia and the consequences of his passing to come.

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook


  1. Andre Kenji says:

    Both Jan Crawford and Illya Shapiro are saying on CBS that they doubt that Obama will manage to nominate someone this year.

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  2. Hal_10000 says:

    Interesting note about Scalia: his best friend on the Court was his ideological opposite, Ruth-Bader Ginsburg.


    Like or Dislike: Thumb up 12 Thumb down 0

  3. C. Clavin says:

    Holy crap!?!?!?
    This will be fascinating.

    Like or Dislike: Thumb up 2 Thumb down 3

  4. PJ says:

    Was just looking at how old Supreme Court Justices get before they die (small sample size and all that), the median age of the last 20 who has died was about 79 years.

    Not sure blocking a Supreme Court Justice appointment for the next nine months will be a great move for the Republicans.

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  5. Joe says:

    I was not a fan of Scalia’s jurisprudence, but he was a passionate guy and a great writer. He was also an opera lover so he couldn’t be all bad.

    While I wish we could just let some time pass for his family to bury him, my thoughts race ahead to the political implications. Specifically, if the Senate really blocks “any” Obama appointment on “principal” (and what Constitutional principal would that be to honor a strict constructionist, one might ask?), can the presidential candidates really get traction making a campaign out this being a referendum on a narrowly divided court. While I can hear the cultural conservatives hooting already, I tend to think this really plays to the Democrat candidate insofar as I believe a majority of Americans would not want the court becoming more conservative and this will tend to bring otherwise uninterested liberals off the bench to vote.

    Time will tell. Every four years, candidates tell us that its really important that the winner picks justices. Every four years it is a non-issue to voters. This year, perhaps it will get a little more real.

    RIP Justice Scalia. And thank you for your service.

    Like or Dislike: Thumb up 11 Thumb down 0

  6. Pch101 says:

    If the Republicans try hard enough, then I suppose that this one could turn into a nine-year confirmation process.

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  7. walt moffett says:

    Condolences to his family, the politics can wait a day or three

    Like or Dislike: Thumb up 7 Thumb down 0

  8. PJ says:

    There are 269 days until November 8th.
    There are 342 days until Janary 20th, 2017.

    Bork widthdrew after 114 days.

    Kagan was confirmed after 87 days, Sotomayor after 66 days.
    Alito after 82 days, Roberts after 62 (confirmation took longer due to Rehnquist dying and Roberts being renominated to succeed Rehnquist as Chief Justice).
    Breyer after 73 days, Ginsberg after 50 days.
    Thomas after 99 days, Souter after 69 days.
    Kenndy after 65 days, Scalia after 85 days, Rehnqist (as Chief Justice) after 89 days, O’Conner after 33 days.
    Stevens after 19 days.
    Rehnquist after 49 days, Powell after 45 days, Blackmun after 27 days, Burger (as Chief Justice) after 17 days.

    And so on.

    Republicans blocking an appointment for 269 or 342 days will set an outstanding record.

    Partisan Republicans will love it, I doubt anyone else will.

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  9. Jeremy R says:

    @Andre Kenji:

    Both Jan Crawford and Illya Shapiro are saying on CBS that they doubt that Obama will manage to nominate someone this year.

    A President’s SCOTUS nomination power is at its most consequential at moments like these, where the balance of the court is at stake. If the GOP actually denies their opposition that constitutional authority (for 341 days) that would be a pretty spectacular theft of executive power.

    I imagine Obama will nominate someone who many of the GOP senators have already voted for so that it will be impossible for them to claim lack of qualification or unsuitability. For example Sri Srinivasan was confirmed 97-0 in 2013:

    It’s also worth noting that there are some members of the so-called “Gang of 14” still around who would have a tough time explaining a year of total obstruction (McCain, Graham and Collins).

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  10. Neil says:

    As Republicans might control neither the presidency nor the Senate next year perhaps they would be better off confirming a middle of the road nominee this year, assuming the president names one. If he picks a more rigid liberal ideologue that person would certainly have a hard time getting through.

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  11. David in KC says:

    If the republicans stonewall a nomination until after the election, they may regret it. If a democrat is elected president and the senate flips (both real possibilities), the republicans would a lot of the influence they would have this year. And while I am not advocating this in any way, shape or form, it would serve them right to get Justice Obama for shirking their duty for a year. (I think there are a lot of good candidates out there and don’t really think that Obama should be nominated, just a “serves them right” comment.

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  12. Tillman says:

    This is exactly how a political drama TV writer would go about ratcheting up the tension before an already tense electoral sweeps episode down the line.

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  13. Jen says:

    As Republicans might control neither the presidency nor the Senate next year perhaps they would be better off confirming a middle of the road nominee this year, assuming the president names one. If he picks a more rigid liberal ideologue that person would certainly have a hard time getting through.

    This is a thinking person’s response. This was exactly what I thought about 5 minutes after hearing this news: they might want to exercise their control in a thoughtful way. But no, apparently the Senate Majority Leader, Mitch McConnell, has already stated that he wants the next president to make the appointment. Well, okay then. Off to the races we go.

    Like or Dislike: Thumb up 9 Thumb down 2

  14. Moosebreath says:

    @Jeremy R:

    “For example Sri Srinivasan was confirmed 97-0 in 2013”

    An interesting choice, and one who has the right sort of credentials to get confirmed in this partisan atmosphere. His Circuit Court clerkship was with a Reagan appointee (J. Harvey Wilkinson) whom some wanted to succeed Rehnquist as Chief Justice, and his Supreme Court clerkship was with O’Connor, which leads me to suspect he is not too far to the left. And the thought of filibustering the first Asian American Justice may cause some Republicans grief.

    Like or Dislike: Thumb up 11 Thumb down 0

  15. Gustopher says:

    I would be very surprised if Obama hasn’t had a short list of potential nominees being constantly updated for the past few years. There are a lot of old people on the court.

    So, I would expect a nominee in a few weeks. (And for there still to be a bunch in reserve)

    Whether the Republicans act on the nominee or not is another matter. I expect they will, after a bit of grandstanding, because the American people do not like to see gridlock (they may love the effects of gridlock, but they don’t like to see it). They might force the first nominee to withdraw, and then accept a second choice.

    Also, the next president will likely get to nominate replacements for 2-3 of the liberal wing of the Court, which could push the Court the other way, so Scalia’s replacement doesn’t matter that much. If they can push Obama into nominating a less liberal justice and claim a victory there, plus run fundraisers about Obama’s Radical Supreme Court Pick (same justice, of course) and use that to turn out the base while not pissing off the center, it would be their smart move.

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  16. Gustopher says:

    Given Scalia’s previous “hunting” trips were to shoot caged birds as they were being released from their cages, and that is presumably what he was planning to do today, I have trouble hoping that he rests in peace.

    But, I thank him for his many years of service, even if much of that service was misguided. He clearly was a patriot who cared for his country, even if he was often wildly wrong about what his country stood for.

    I hope he does not come back as an undead zombie, or otherwise haunt us from beyond the grave.

    Like or Dislike: Thumb up 5 Thumb down 3

  17. C. Clavin says:

    I’ve long said the Supreme Court was the biggest issue in this race.
    It just got gargantuan.
    Now…let’s all watch Republicans prove they are incapable of governing.

    Like or Dislike: Thumb up 6 Thumb down 2

  18. Kari Q says:

    My sympathy to his family and friends. I don’t recall hearing that was ill, so I presume this is a surprise to them.

    While I respect those who think we should refrain from discussing the politics for a few days, Scalia was so fiery in his political involvement and passions that I cannot imagine him expecting such treatment. So, speculating away:

    I am positive that Obama will nominate someone. He wouldn’t let that much time go without proposing a replacement. It would be stupid both politically and from the perspective of wanting a functioning court. He’ll have a nominee soon.

    Even in the midst of the epic Bernie versus Hillary battle that is going on, the one thing that can bring Democrats together are the two words: Supreme Court. If Obama gets a replacement through Congress, it’s entire possible that argument will lose at least some punch, since it would give the Congress a majority of Democratic appointed justices.

    The GOP should consider the possible consequences of refusing to approve a nominee very carefully. The politics of it may not be as straight forward as they think.

    Like or Dislike: Thumb up 11 Thumb down 0

  19. Pch101 says:

    Benghazi was a bust. The email flap isn’t going anywhere. Now the Republicans have their wedge issue to increase turnout from their base and potentially create some unity for the party. There will be no nominee prior to election day if they can help it.

    CUE OMINOUS MUSIC: “Do you want THIS (fuzzy picture of Democratic nominee with facial grimace) determining the future for OUR CHILDREN?!?!?! Vote _____ (insert Republican nominee here) on November 8 — the stakes are too high to stay home!!!!!!!!!!”

    Like or Dislike: Thumb up 2 Thumb down 1

  20. Jeremy R says:

    Republicans are fishing about for a precedent for what they’ve already decided to do, though it looks like they probably need to reach back to 1844 when a long series of nominations was voted down.


    @ChuckGrassley says 80 years since last confirmation in election year. He missed Anthony Kennedy, confirmed 3/30/88. (nominated in ’87)


    The longest Supreme Court confirmation process from nomination to resolution was Brandeis, at 125 days. Obama has 342 days left in office.

    Justice Henry Baldwin died in office on April 21, 1844. He wasn’t replaced for more than two years, partly because of partisan gridlock.

    Like or Dislike: Thumb up 3 Thumb down 0

  21. dmichael says:

    Doug: Could you respond to Jeremy R’s comment regarding your statement: “This would constitute an atypically long vacancy for a Supreme Court seat in modern history, but it would not be unprecedented.”?

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  22. PJ says:

    Well, modern time is quite an elastic term. Consider how long Homo Sapiens have existed, or that some people believe that Earth was created 6000 years ago. 170 years is nothing…

    Like or Dislike: Thumb up 6 Thumb down 0

  23. Andre Kenji says:

    @Jeremy R: Graham was doing precisely that on CBSN some hours ago. He complained about Harry Reid ending judicial filibuster.

    Like or Dislike: Thumb up 0 Thumb down 0

  24. PJ says:

    @Jeremy R:
    The confirmation of Kennedy was totally different.

    I mean…

    Election year.
    A Republican was President.
    The Democrats controlled the Senate (held 55 seats after the 1986 election).

    It’s nothing like this year…

    Election year.
    A Democrat is President.
    The Republicans control the Senate (held 54 seats after the 2014 election).

    It’s totally different. Can’t you see it? The Democrats held one more seat in 1988 than the Republicans do now.

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  25. PJ says:

    In both cases a President was retiring after serving two terms.
    But that doesn’t matter, because it’s, again, totally different.

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  26. Andre Kenji says:

    The closest precedent would be the nomination of Abe Fortas to succeed Earl Warren as Chief Justice in June, 1968. But Fortas was a problematic nominee, no one at the time said that the next president should choose the Justice.

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  27. LaMont says:

    Wow! So Mitch McConnell finally gets to prove that he was never part of the obstructionists that plagued Congress since President Obama’s inauguration. Lol! Go ahead Mitch, do what you do best and prove to the world who really contributed to the most do-nothing congress in the history of this nation!

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  28. C. Clavin says:

    It appears Republicans will do what they do best, abdicate responsibility.

    Like or Dislike: Thumb up 4 Thumb down 4

  29. HarvardLaw92 says:

    I can’t say that I have ever agreed with his philosophy of the law, although I always respected (and tried to point out) his brilliance. The man was indeed a brilliant scholar of the law. The tragedy of his life, more than anything else, was how his devotion to that flawed philosophy led him into petty sniping and temper tantrums later in his term.

    RIP, Sir. My condolences to your family and friends.

    Like or Dislike: Thumb up 12 Thumb down 3

  30. Tony W says:

    I am glad Obama will go ahead a nominate a replacement Justice. McConnell said he already opposes whomever Obama will nominate, without even knowing who that is. In my view that is treason.

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  31. Franklin says:

    Condolences to his family and friends. Rest in peace.

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  32. Mu says:

    16 Jan 2045
    After the death of the last Supreme Court Justice John Roberts, President C. Clinton is sending her 590th justice for nomination to the senate. The senate judiciary committee is scheduled to take up the nomination by 2048.

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  33. Pch101 says:

    Ted Cruz is tweeting about the need to leave the job of replacing Scalia to the next president.

    We can see where this is going — Cruz is trying to take ownership of this as a campaign issue. You knew that it had to happen. I guess that Article 2 Section 2 doesn’t really matter much to our alleged strict constructionists.

    Like or Dislike: Thumb up 10 Thumb down 1

  34. HarvardLaw92 says:


    Trump explicitly stated at tonight’s debate that the selection of Scalia’s replacement should be left to the next president. Mitch McConnell has wasted no time expressing the same sentiment. They have no problem leaving the court hobbled for the next year just so they can have a better chance of getting their way.

    Now, if Romney had won, they’d be demanding that his replacement be selected by tomorrow. These people disgust me.

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  35. C. Clavin says:

    How scary is the idea of the intellectual leader of the Republican Party, Donald Trump, appointing a SCOTUS Justice?

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  36. Ron Beasley says:

    So who is going to tell Clarence Thomas how to vote now?

    Like or Dislike: Thumb up 16 Thumb down 3

  37. Jeremy R says:

    SCOTUSblog on election year SCOTUS nomination precedent (from 1900 to present day):

    Supreme Court vacancies in presidential election years

    In the wake of the death of Justice Antonin Scalia, questions have arisen about whether there is a standard practice of not nominating and confirming Supreme Court Justices during a presidential election year. The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending nomination. In that period, there were several nominations and confirmations of Justices during presidential election years.

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  38. rachel says:

    McConnell said he already opposes whomever Obama will nominate, without even knowing who that is. In my view that is treason.

    His opposition to confirming Obama’s nominee is deplorable, IMO, but it doesn’t rise to that level.

    Like or Dislike: Thumb up 4 Thumb down 0

  39. HarvardLaw92 says:


    To say nothing of his hypocrisy – it’s amusing how quickly he (and Chuck Grassley, the current head of the Judiciary Committee, among others) have forgotten their votes to confirm Anthony Kennedy in an election year.

    Like or Dislike: Thumb up 9 Thumb down 0

  40. HarvardLaw92 says:


    and his Supreme Court clerkship was with O’Connor, which leads me to suspect he is not too far to the left.

    Don’t read too much into that factoid. O’Connor liked clerks who interested her, not necessarily clerks who hewed to her line of thinking. She was first and foremost a politician at heart, and liked healthy disagreement / argument among her clerks.

    Clerkship also isn’t a reliable predictor of legal ideology. Rich Taranto, for example, clerked for Sofaer, Bork and O’Connor – which would lead one to believe he’d be a hard-line conservative, but he’s just not, to the extent that the Senate bent over backwards in an attempt to deny him a seat on the DC Circuit after Obama nominated him in 2011. Michelle Friedland is another example of the same.

    Scalia, behind the public persona, was sort of the same, although he usually only had one at any given time. He liked healthy argument and didn’t impose purity tests for his clerks. Larry Lessig, for example, who nobody would ever accuse of being a conservative, clerked for Scalia (as well as Posner).

    The only justice who really does impose such a “you must agree with me” rule is the one with the least impact or sense of curiosity about / engagement with the law – Clarence Thomas. His clerks are (IMO anyway) as predictably one-dimensional and “my way or the highway” as he is.

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  41. Todd says:

    It seems unlikely that 60 votes can be had for a nominee in this Senate under any circumstances. But if the GOP really does hold firm on “no way, no how” it would seem likely to help the Democrats in Senate races like IL, WI, PA and NH … will be interesting to watch how those four Republican Senators in particular approach this issue.

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  42. Grewgills says:
  43. An Interested Party says:
  44. Jen says:

    @Grewgills: That’s a very interesting article.

    One question for anyone who can answer it: yesterday on CNN, Jeffrey Toobin stated that SC decisions aren’t official until they are announced, which suggests that any votes Scalia had made before passing away will need to be re-argued. The Washington Post piece seems to suggest that it’s entirely up to Chief Justice Roberts as to whether those cases will be announced with Scalia’s votes or not. Which is more likely to occur–the re-arguing and re-voting on the cases that have already been heard, or letting those votes stand?

    Like or Dislike: Thumb up 1 Thumb down 0

  45. C. Clavin says:

    @Ron Beasley:

    Like or Dislike: Thumb up 1 Thumb down 1

  46. SKI says:

    @Jen: not exactly. It’s up to Roberts if the people assigned to write the opinions change, not if Scalia’s votes count (they don’t). The impact is that a 5-4 with Scalia in the majority is now a 4-4 -which could flip the result if the 5side was overturning the lower court.

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  47. James Pearce says:

    it would not be all that hard for the Republican-controlled Senate to bring such a result about.

    Now is not the time to go banking on the efficacy of the Republican-controlled Senate. The “Republican establishment” has less clout than ever, is operationally so weak they can’t even undermine Candidate Trump, but here they’re going to band together to stop a SC nominee who hasn’t even been named? Don’t count on it.

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  48. Tony W says:

    @Jeremy R: Maybe so, but there is no precedent for a black president nominating a Supreme Court justice during his last term.

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  49. Mikey says:

    If today’s GOP-controlled Senate refuses to do its duty, I hope more than just about anything the Democrats win the Presidency and regain control of the Senate, so that President can nominate Obama to the SCOTUS vacancy and get him confirmed.

    We might not have a Republican Party after that, since the irony would literally kill them all.

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  50. gVOR08 says:

    @Mikey: They don’t do irony. Or shame.

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  51. Hal_10000 says:

    1) Agree that the President should nominate a replacement and the Senate should consider them. That’s how the process works. Elections have consequences. It would be unprecedented and foolish to leave a seat unfilled because an election is happening in nine months.

    2) I can understand where the Republicans are coming from since many of the same Democrats intoning platitudes about the process also filibustered Bush nominees for years hoping they would get a Democrat elected in 2004. Anyone blasting the Republicans now who was quiet about what the Democrats were doing then is simply a partisan hack.

    Elections have consequences. Judges should be appointed. That’s true no matter who is President or when the next election is.

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  52. Tillman says:


    I can understand where the Republicans are coming from since many of the same Democrats intoning platitudes about the process also filibustered Bush nominees for years hoping they would get a Democrat elected in 2004.

    You’re presumably talking about lower court appointments? There weren’t any nominations made to the Supreme Court until Rehnquist died O’Connor announced her retirement in 2005.

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  53. Hal_10000 says:


    Yes. But … the filibuster was touted as early as 2001 in the context of SCOTUS. And that took place after the Gang of 14 agreement. Had Bush needed a SCOTUS nominee in 2004, there was a very good chance the Democrats would have filibustered.

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  54. HarvardLaw92 says:


    Sort of. In cases where a final vote had already been taken, the vote wasn’t 5-4 and the opinion already assigned, Scalia’s vote would likely stand. Had the opinion been assigned to Scalia, Roberts would simply reassign it to the next most senior justice in the majority.

    In cases that are still open for deliberation and the trending is heading for 4-4, the court has the option of issuing a per curiam opinion, in which case the ruling of the lower court would stand, or carrying the case over for reargument in the next term. Given how unlikely it is that a justice could be seated before October if the GOP Senate remains incalcitrant, per curiam opinions would be the more likely outcome.

    The short version is that, given the ideological split of the present court, it will create a huge mess until it is resolved.

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  55. Eric Florack says:

    How soon we forget..

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  56. Eric Florack says:

    @Hal_10000: precisely.

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