Scalia's death and the new American Civil War
The 2016 presidential election is a hot mess, but now the death of Supreme Court Justice Antonin Scalia has triggered a full-blown constitutional crisis.
When he launched his publication the National Review, the late William F. Buckley famously described a modern conservative as someone who "stands athwart history, yelling Stop, at a time when no other is inclined to do so, or to have much patience with those who so urge it." By that definition, there was no better role model for today's political Right than Supreme Court Justice Antonin Scalia, who died of natural causes at age 79 at a West Texas ranch on Saturday. (Read my initial reaction and condolences here.)
The passionate, colorful jurist stood athwart history and yelled "Stop!" -- sometimes successfully, sometimes not -- while much of an energized, liberation-minded American society rallied for progress on equality for women, for minorities, for the LGBT community, for workers, and for rank-and-file voters.
Over the last three decades as the anchor of an often-but-not-always 5-4 conservative majority on the High Court, it is Scalia who can be credited -- if that's the word -- with rolling back affirmative action and voting rights in America, with the erosion of workers' rights and the strengthening of Big-Business power to almost Herculean levels, with the flood of corporate and billionaire money that threatens to undermine democracy, and with installing the Iraq-war-and-global-economic-meltdown-causing George W. Bush in the White House in 2000. At the same time, Scalia fell just one vote short of killing Obamacare -- a failure that undoubtedly saved thousands of lives -- and crippling reproductive rights for women.
This was Scalia World -- and, love it or hate it, our generation of Americans had pretty much grown used to it. Until Saturday. Now, suddenly, the very future of America itself seems up for grabs -- even more so than it has during this lengthy and increasingly convoluted chase to pick the 45th president. With the liberal-leaning President Obama poised to nominate a replacement for Scalia and -- if that move is "athwarted" -- with pundits slightly favoring the Democrats in the fall election thanks to the continued rise of the so-called "Obama coalition, progressives see a huge opening for a more liberal judiciary.
Even if hopeless gridlock persists up on Capitol Hill, a new liberal minded Supreme Court would likely increase voting rights rather than shrink them, once again tag corporate polluters as lawbreakers, and maybe even overturn the despised Citizens United ruling. Conservatives are desperate to stall -- at least 345 days, which would shatter past records -- until President Donald J. Trump, or whoever the GOP hopes to elect in November, can appoint Scalia Lite and thus resume the restoration of the 19th Century.
There should be a lot of suspense about what happens next -- who Obama will appoint, and how the Senate will respond? And it will certainly be interesting, from a political gamesmanship perspective, to watch Obama's strategy -- to see whether he pops a not-GOP-unfriendly moderate on the GOP or whether he goes with a full-throated liberal.
But there is no drama over the outcome over the next 11 months; Senate Republicans have all but guaranteed total obstruction -- a shocking breach of its Constitutional responsibility that raises questions whether, at the ripe young age of 240, America can successfully be governed.
Indeed, Scalia's corpse probably hadn't even finished its long slow ride through the arid Texas desert before GOP Senate Majority Leader Mitch McConnell declared this Saturday night: "The American people should have a voice in the selection of their next Supreme Court Justice." -- referring to the fall presidential election. "Therefore, this vacancy should not be filled until we have a new President." Indeed, a number of GOP senators running for re-election in states that went for Obama in 2012 -- the kind of endangered pol who might normally be tempted to break ranks with McConnell and the Republican establishment -- say they're on board with this blatant obstruction.
Some Republicans claim history is on their side -- which is utter baloney. It's true that once a nomination -- in 1968 Chief Justice Earl Warren wanted to retire and Lyndon Johnson wanted his pal Abe Fortas, already an associate justice, to replace Warren -- was blocked by GOP Sen. Strom Thurmond until after the election; but 1968 was a crazy year of war, riots and assassination in which folks weren't so focused on this move, and Fortas had major ethical issues (he resigned from the court two years later).
Instead, there have been a slew of justices confirmed on the brink of an election; in 1988, GOP icon and lame duck POTUS Ronald Reagan pleaded with the Senate Democrats to confirm his pick Anthony Kennedy -- and they did their duty, even as Kennedy became the swing vote on anti-progressive rulings like Citizens United. I guess Mitch McConnell would call those 1988 Democrats "saps."
Or maybe, just maybe, we should be calling those 2016 Republicans "traitors." Even the most controversial picks of the last half century -- such as Robert Bork and Clarence Thomas -- were given full hearings and voted "up" or "down" in a matter of 3-4 months. The proposed 11-month stall is an unprecedented surrender of responsibility -- but it's not happening in a vacuum. As the New York Times noted this morning, congressional leaders also aren't inviting Obama's budget chief to testify on next year's spending plan, a first. And the 150-day delay in confirming Loretta Lynch as attorney general last year is also without precedent. Each move is also another step toward a bona fide constitutional meltdown.
Why is this happening? Americans are so proud of our 240-year history of unbroken constitutional rule, except for the fact that a) we've already had one constitution, the Articles of Confederation, fail b) there was that Civil War in which 620,000 combatants died and c) a long era of a Cold War consensus and middle-class prosperity warped the perspective of those of us who lived through it. The truth is there is no guarantee that our current system will work for all eternity.
The natural evolution of Democrats and Republicans into ideologically purer liberal and conservative factions, made even more extreme by the modern science of "gerrymandering," has killed the idea of national consensus for good. The rise of ratings-driven media to replace the role of party bosses -- particularly the extremism of the talk-radio/Fox-News alliance on the Right -- has played just as powerful a role in that breakdown. And, coincidentally or not, "massive resistance" by congressional Republicans sure seems to have increased under a black president that its base sees as a Kenyan Muslim interloper. Anyway, what was once a laudable "system of checks and balances" has become a recipe for paralyzing inaction, no matter how serious or immediate the problems facing this country.
Distrust is at epidemic levels. I'm 99.9 percent certain that Scalia -- a 79-year-old with reported health issues -- died of natural causes on that ranch. But the fact that officials didn't think to conduct an autopsy -- and the million conspiracy theories that bad decision has already spawned -- is one more sign that the elites don't understand what little faith the public has left in our government. In the deep throes of this mistrust, an increasing number of voters are looking toward radical answers -- either a sharp left turn toward 'democratic socialism,' or falling in line with a billionaire reality-show star who exudes "strong leadership" with no policy ideas or moral compass.
Either way, the 2016 presidential election already seemed the most consequential of our lifetime -- but Scalia's death has taken things to a completely new level. Before, "merely" the White House was at stake; today, the coming gridlock not just on Capitol Hill but now at the 4-4 divided Supreme Court, seems the start of a full-blown crisis -- and anyone who say they know what's on the other side is lying. That blood-soaked Civil War was the outcome the last time Washington was this dysfunctional.
This time around? Somehow I don't see the gray-coated red states' Grand Army of the Applebee's clashing with the blue-clad forces of the Starbucks Republic on the grassy open fields of Manassas, do you? So how will this (hopefully) metaphorical Civil War II be fought? I don't know.
But the failure of Washington, which will be brought into sharp relief over the next 11 months, is a clarion call for action. With a dangerous demagogue waiting in the wings and a Constitution in tatters, let's just pray that our actions are rational.