Scalia’s Replacement and the Election

supreme court

Of course, the big news this past week or so is the very sad passing of a legal giant, Antonin Scalia, Justice on the Supreme Court (SCOTUS).

There’s a political knife fight brewing over replacing him, with Senate Republicans led by Mitch McConnell at this point vowing to block any Obama nomination because he has so little time left in office, while Obama and his minions – including a sycophantic mainstream media – are clamoring that to do so is to subvert the intent expressed in the Advise and Consent Clause of the Constitution.

Indisputably, the Republicans have the authority by virtue of their control of the Senate to proceed however they wish, including blocking Obama’s nominees from confirmation. It’s borkalso indisputable that the Dem/socialists’ ginned up “outrage” is laughably hypocritical. After all,  when Ronald Reagan nominated Judge Robert Bork to SCOTUS, his confirmation was blocked on purely political grounds by a Senate Dem/socialist lynch mob led by Ted Kennedy, and they thought that was just perfectly fine. In fact, they took great pride in it.

Even more hypocritical is that when Bush 2 nominated Sam Alito to SCOTUS back in 2006, a little known Senator from Illinois, one Barrack Hussein Obama, participated in a filibuster attempt to block the nomination. It sure seems to me that what’s good for the goose is good for the gander.

At issue is the fact that SCOTUS has been pretty evenly divided ideologically for quite some time, with many cases being decided by a 5 – 4 vote, Kennedy being a “wobbler” who vacillates between originalist (“conservative”) and living constitutionalist (“liberal”) positions. Scalia has always been a fervent originalist. In his absence the Court is evenly divided between the two camps (always with the caveat that Kennedy’s something of a wild card, and there’s the occasional Roberts hiccup, too).

So, the argument goes, in a year in which the presidential election is so contentious, particularly on divisive fundamental philosophy, and we’re so close to the actual election, any SCOTUS appointment should be delayed until the newly-elected President can make his or her own choice.

I think there’s merit to that argument, but frankly I don’t really care about it. As far as I’m concerned, the Constitution gives the approval power to the Senate, the GOP controls thecongress control Senate, and they don’t need any rationalization to block Obama’s appointments if that’s what they want to do. There’s plenty of precedent, as I’ve already pointed out, and there’s no way such a rabid leftist zealot as Obama is going to make any nomination that’s going to be any good for this country. Period.

But there’s another aspect I don’t hear anyone talking about when considering the upcoming election and SCOTUS nominations.

Scalia was 79 when he died. But Ginsburg, a hard-Left zealot, is 82. For that matter Breyer, another doctrinaire Leftist, is 77. It’s quite conceivable that either or both could retire or die during the first term of the next President. At 79, Kennedy could very well be in play, too.

That means, assuming that Obama can’t successfully replace Scalia, that the next President could very well be able to appoint four SCOTUS Justices. So let’s do some math and see how this could play out.

Let’s assume that over the next President’s first term three more SCOTUS seats open up, for a total of four. The current ideological split, in Scalia’s absence, is essentially 4 – 4. If the Dem/socialists win, they can appoint 4 leftists, giving them a 6 – 3 (Roberts, Thomas, and Alito) majority. If the GOP wins, they might also get to appoint 4 conservatives, giving them a 7 – 2 (Kagan and Sotomayor) majority.

Anybody have any questions about how important this election is? It’s way past time for the GOP to get its act together, stop screwing around, and – for once – get it right.



©Brian Baker 2016

(Published in my local newspaper, The Signal, on 2/26/2016:



44 comments on “Scalia’s Replacement and the Election

  1. Nee says:

    Don’t forget that Biden was quoted in 92 as saying an appointment when an election year is underway was not feasible….hehe. I love them pesky facts! 🙂

  2. garnet92 says:

    In terms of the long-term well-being of our United States, the appointment of SC Justices during the next president’s term, may be the single most important decisions that he/she will make. I shudder to think of the direction of our country if Hillary can appoint 3-4 leftist judges. In that case, I’ll be long gone, but my children and grandchildren will suffer for it. On the other hand, if (God forbid) Donald Trump is elected, who knows what kind of justice he’d submit? But with his perspective, they most certainly won’t be conservative in any way. We’d have to consider ourselves fortunate if he appointed left-leaning rather than full blown leftists. I wish I could have a more optimistic outlook for the next several years, but it’s hard to do given the facts as they are now aligned.

    As far as the current situation goes, I see no reason to stop Obama appointing someone, the Senate still has the option to vote him/her down. The real question is whether McConnell has any vestige of testicles left or not.

    • BrianR says:

      Garnet, I’m with you on all of that 100%.

      Obama absolutely can appoint whomever he wants, whenever he wants. The Constitution says so. Then the GOP-controlled Senate can do whatever THEY want in response.

      And then it does boil down to whether or not McConnell and the rest of those dudes grow some balls and actually — FINALLY — do what they promised to do.

      I guess we’ll see.

    • Nee says:

      And…enter PollyAnna…I would like a provision that when a justice dies unexpectedly, that they must be replaced with a judge of the same political persuasion. Seems fair. Because no President will be fair and balanced, will they? Ahem.

      • BrianR says:

        Well, Nee… Interesting idea.

        But then it defeats the whole purpose of the Advise and Consent Clause of the Constitution. And who would make that determination? For example, Kennedy was appointed by a Republican, but he votes Left a lot of the time. Look at Roberts’s votes on Obamacare. Also a Republican (Bush 2) appointment.

      • jevica says:


        There is no way you/we know that someone will be of the same political persuasion. As Brian mentioned Roberts, Kennedy, etc.

      • Nee says:

        Jev….I know…hence my self identifying as Pollyanna. Sigh. 🙂

  3. jevica says:


    Let’s hope the PSP gets some balls and does the right thing. How is everything, is the family ok?

  4. jevica says:

    Sorry did not see first comment

  5. Anonymous says:

    Hey Brian, another great column! You are absolutely right…this election will be THE most important in my life-time, so I really hope the people get it right. Unfortunately, as much as I hope that reason will prevail, I am not too hopeful at this point…

  6. Kathy says:

    After what we’ve suffered through the past 7+ long years, there cannot be any doubt how important it is to get this election right, but from everything we’ve seen so far, it’s going anywhere but in the right direction.

    The pending nomination as well as the future ones will be important long after the next president is gone; meanwhile Congress sounds like a 3-year-old throwing a temper tantrum by refusing to consider any nomination O makes.

    Had they a real backbone, they would have kept their mouths shut except to say we’ll do our job. When the nomination is sent to them, then reject it without all the fanfare. Stating that they’ll reject it, without even knowing the name, is what earns them the monikers like roadblocks, obstructionists, etc.

    But we all know they don’t have a real backbone – all they have is posturing, followed by capitulation, followed by a shrug and a ‘oh well, we tried’. That’s where the housecleaning really needs to start.

    Good piece, Brian, on a very important issue.

    • BrianR says:

      Thanks for the kind words, Kathy.

      I can’t argue with a single thing you wrote. Like you, based on past performance I don’t have much confidence in the Senate wimps carrying out their pledge. Maybe this time they’ll prove us wrong. I damn well hope so.

    • Bill says:

      I have to agree with Kathy. They should have kept their mouths shut. Not paid any attention to MSM and just not give their approval on anyone that O selects. But the way they have been acting (the same as before they got their majority) I really don’t look for anything in the Republic’s interest from the bunch in DC.
      They have completely ignored the voting base letters and e-mails to them. Now they wonder why a loud mouth like Trump is so popular. I honestly don’t think he’d be good for the country but he’s saying what the silent majority has been saying to themselves for years.

      • BrianR says:

        Hi, Bill.

        I can’t argue with anything you or Kathy wrote.

        I CAN see a couple of reasons why they drew that line in the sand: to throw down a political gauntlet to gin up enthusiasm from conservatives in an election year. And by preempting the issue, they retained control of the narrative and the debate, rather than having to cede it to Obozo.

        There was no way this issue wasn’t going to become a political hot potato. If they’d just sat on their hands and waited for Obozo to act they’d have been on the defensive, which is not where anyone wants to be if they can avoid it.

        I think it was a smart move… but now they have to stick by their guns, or they’ll end up looking idiotic, and even worse than they did before.

        It also gave them the opportunity to present an appearance of unity and resolve.

  7. jevica says:

    The Fed’s chose not to defend voter ID laws in a number of states, what a bunch of carp, always the same minority stopped from voting, etc., etc. We should have to prove citizenship, end of story

  8. gunnyginalaska says:

    Good column as usual and that is one reason why we HAVE TO WIN! Whatever it takes.

  9. captbogus2 says:

    Just hoping the wishy-washies hold the line…. for once…

  10. Grey Neely says:

    Believe it or not, I think that Trump’s campaign is forcing the GOP senators to grow some backbone for once. These senators know that Trump is “putting the spotlight” on business as usual in the US Congress. They know if they don’t hold the line against Obama, Trump is going to make their actions the Number One agenda in his campaign and speeches. So perhaps they will hold the line for once.

    On the subject of who Trump will appoint should he win, I don’t have a clue. On the other hand, I know who Hillary will appoint (another Far Left idiot like herself). I wish there were a better answer; but I don’t have one. And I fear that Trump will be the final winner in the GOP primaries.

    Secession is starting to look better and better, especially if Hillary gets elected.

    • BrianR says:

      If Hairboy ends up being the GOP nominee, this country’s screwed regardless of who wins.

      I’m still looking for Clinton to be indicted. That would mean either Sanders, or a nominee from a brokered convention; Biden or Warren, maybe. O’Malley. Hell, maybe even Bloomberg.

      This is the craziest election year ever.

  11. CW says:

    Great post, Brian.

    Liberal democrats like Obama have been very busy undermining the Constitution at every opportunity, using our own faithfulness against us in their undeclared and bloodless civil war. They know the SCOTUS is our last wall of defense, and we absolutely cannot let them choose a nominee, because as you said, ”….there’s no way such a rabid leftist zealot as Obama is going to make any nomination that’s going to be any good for this country. Period.” Obama wants to weaken the Constitution. Any nominee he selects will be with that goal in mind and I cannot intellectually relate to any self-described “Republican” who can’t see this. You would have to be living under a rock, or be a closet liberal, if you don’t get it.

    It’s time for Republicans to be openly and unapologetically political. They should come right out and state that no Obama nominee will be considered or have a hearing because Obama has repeatedly demonstrated a blatant disrespect for the Constitution and he can’t be trusted to nominate someone who would fulfill the duties of the job by upholding the Constitution. TELL THE TRUTH, in other words, and send a signal at last that we aren’t going to play nice while democrats rewrite the rules to their own liking.

    You’re right that the importance of this election can’t be overstated. Nonetheless it appears the Trump supporters are going to take over where the RINOs left off to deny conservatives yet again. It’s unbelievably tragic.

    • BrianR says:

      Thanks for the kind words, CW. Much appreciated.

      I couldn’t agree more with everything you’ve said. But let’s not coronate Hairboy yet. It’s still early in the primary season; he didn’t sweep Super Tuesday; he’s only got 80-something of the thousand or so delegates needed to win the primary; and Cruz is within easy striking distance, as is Rubio. The fat lady hasn’t even tuned up yet.

  12. captbogus2 says:

    True the fat lady is still in her dressing room. I can easily take either Cruz or Trump over the Democrat choice. I just wish they’d quit their bullshit mud slinging at each other. They could have their cake and eat it, too, if they would quit griping about not being able to see the forest for the trees.

  13. captbogus2 says:

    Yeah but it would be nice if the primaries/debates consisted of each candidate explained his platform, his proposed policies and his interpretation of the duties of the POTUS instead of the crap these sleaze two bit wanna-be statesmen politicians think gets them the vote…

  14. captbogus2 says:



  15. jevica says:

    Too too many of the so-called debates. If the PSP did as much to defeat BHO as they did to stop Trump, we would have a Republican President

  16. cyn3wulf says:

    Well, it looks like I’m just in time to tell you that it’s time for another post. So many topics to choose from.

    On my end, I have backed myself into being a Trump supporter. It has been a long road, and was dragged kicking and screaming the whole way. Ok, not really, but it was against my will. My travels looked a little something like this:
    1. Again? Why is this clown running? He knows he’s not going to get anywhere. Must be a publicity stunt…
    2. Whoa, he really took off with his stance on immigration. Just goes to show you what Pubs should have been doing all along. Ah, well, this will be thankfully short-lived. He’s bound to say something stupid sooner or later.
    3. I was thinking sooner, but not like the next day sooner. No way he survives disparaging a pow, even if it is McCain.
    4. What the freak?
    5. Here begins a longish period where I was nowhere near being a supporter but found myself defending him nevertheless. Mostly because it turns out that much of what the press says that he said he didn’t exactly say, and that totally bereft of context. I’m a fair guy. I don’t have to like you to defend you if you are being unfairly accused of something.
    6. Trump surely does get unfairly accused of a lot of things. Weird. You’d think they wouldn’t have to make stuff up in this case.
    7. By now, the field has narrowed considerably, though it’s still fairly crowded. My guy, Cruz, plays some dirty pool on a few occasions. I rationalize it away. It was his campaign guys, not him. It’s only happened once. Twice. Three times a lady. Well, it’s politics. It ain’t beanbag, right?
    8. The field has narrowed to 4. I liked Rubio once upon a time. I cannot, however, get by the Gang of 8 anchor that’s wrapped around him. Kasich? The only way I would vote for Kasich would be if he was a Democrat and he was running against McCain. Trump? I, grudgingly, like how he has managed his campaign. He’s already shut Hillary’s pie hole once, and he almost effortlessly destroys opponents with a single sentence. He doesn’t apologize (how long have we been looking for someone who wouldn’t apologize to the media/Left over faux outrages?). And more. But I can’t do it. I mean, it’s Trump. Not happening. Besides, my guy, Cruz, is still in the race, tarnished though he may be.
    9. Hey, what’s all the hubub at the Trump rally in Chicago about? Ah, typical Leftist thugs agitating. Organized by Funded by Soros no less. Heh, media/Left is blaming the victim as usual.
    10. Wait, what? Kasich, Rubio, and freaking Cruz blamed Trump for the violent “protests”? Are you freaking kidding me? These jack wagons are going to legitimize the tactics of the Left? Forget about Trump – they’re going to throw conservatives under the bus out of sheer opportunism? Really? The three of you are dead to me. Well, Kasich, you already were, and Rubio, you were on life support. But, Cruz. Ted. How could you do it? I can’t overlook this one, Ted. You can see yourself out.
    11. Well, Trump, looks like it’s you. You know, if you bring sanity to immigration or bring back our manufacturing or improve our general economy, especially for the middle class, or if you nominate the judges you say you’ll nominate… If you do just one of those things, sadly, we’ll probably be further ahead than we would have been with any of the other candidates at the helm, with the possible exception of Rand Paul. Well, let’s see what you can do to Hillary…

    • BrianR says:

      Hey, Cyne. Always good to hear from ya. I hope all’s well.

      Unfortunately, I can’t join your limited enthusiasm for Hairboy.

      I consider him a VERY dangerous man. No core principles (other than self-promotion and egomania); no record of real traditional conservatism; populist tub-thumping; I could go on and on, but why bother? I’ve written several essays on the topic right here on my blog.

      Out here in Commiefornia we went down this road before: Schwarzenegger, who turned out to be a complete disaster as Governor, and Trump sounds eerily like a rerun of that fiasco writ large on the national stage.

      • cyn3wulf says:

        Aye, could well be. But then, every single one of the others, with the exception of Rand Paul, proved that they were willing to turn a blind eye to their core values if they thought they could gain some votes from it.

        Republican party politicians, donors, etc. only have themselves to blame for it:
        and the follow-up:

        What has been amazing to me is how many web sites/bloggers/reporters who I thought were strong conservatives have turned out to be establishment shills. Many of them rose to prominence fighting the establishment, and, in the end, they have become a part of it. Truly sad.

        Anyway, how’ve you been? All is well here. Chugging along as it were. Heard from Flagwaver at all?

      • BrianR says:

        Over the last couple of years I heard from Flag one or two times. Apparently his marriage broke up; he finished school. But nothing much other than that.

        Things are well with me. Retired now, spending a lot of time with my Granddaughter. How about you? What’s been happening?

      • cyn3wulf says:

        Oh, just the usual. Year 20 of teaching in the same school. Trying to get out of debt (3 steps forward, 2 steps back). Raising our two kids (son is in 9th grade, daughter is in 5th). Time goes by all too quickly.

        Shame to hear Flag doesn’t keep in touch; I do miss the discussions we all used to have. Those were good times. Too bad everything Salem touches turns to crap.

      • BrianR says:

        Yeah, ain’t that the truth. TH has turned into pretty much a waste of time.

        Cool about your kids. They really make life worth living. My munchkin’s the high point of my life.

        Don’t do a Flag. Stay in touch, pard!

  17. jevica says:


    Looks like there will be alot of work in CA building a wall around the state.

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