Justice, Politics, SCOTUS, Supreme Court

Who Is Trump Replacing On The Court? Your Perspective Defines Your Reality.

Is Donald Trump replacing Antonin Scalia, or is he replacing Merrick Garland?

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Justice Antonin Scalia

Justice Antonin Scalia

If you had told me a year ago that Antonin Scalia would leave the Supreme Court, but under a Republican administration, I’d still have been happy, politically speaking. The Republicans can always replace Scalia’s vote. But his wit? His bombast? His Pied-Piper-like ability to corrupt the souls of young law students? You can’t replace that. Scalia being dead is a good thing for the forces of progress (too soon?). I don’t really care about which conservative white man they find to stuff into Scalia’s robes.

If you had told me a year ago that Antonin Scalia would leave SCOTUS in a month, but that Republicans would prevent the first black president from appointing his successor, instead holding the seat open for the pleasure of a cartoon bigot, I’d be apoplectic. Marty Mc-F**king-Fly could come back from the future and tell me that, and I’d chase him into a pile of manure.

But as we await tonight’s robing ceremony, I’m not sure which reality I accept. Is Donald Trump replacing Antonin Scalia, or is he replacing Merrick Garland? Do we pretend like the last year of Republican obstructionism never happened? Or do we look at the context in which this pick is being made?

This is a metaphysical question. If you inherit $20, but are mugged on the way home from the funeral parlor, did you lose $20? Does the fact that the mugger evaded capture matter? What if the mugger targeted you only because you are black? Do the motivations of the mugger matter at all when it comes to your relationship with the fleeting $20? Instead of chasing after your “lost” $20, are you better off going out and trying to earn another $20?

This is also a practical question. Senate Republicans are bullies. If you don’t stand up to them, if you don’t make them pay for what they did to you, they will mug you again. Next time, maybe they’ll take more money. Next time, maybe they’ll take your life.

Then there are the jurisprudential questions. Of the three “finalists,” only Judge William Pryor’s name rings out as a malignant threat to the rights of American citizens, at least if you happen to think that “women” deserve the full rights of citizenship. But Pryor has apparently dropped out of the running because he doesn’t hate LGBT folks enough? We live in evil times.

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Of the other two, Judge Neil Gorsuch presents as the standard, Federalist Society darling that these people were always going to nominate when they got into power. I probably disagree with 90% of what he stands for, but once you accept that reasonable people will disagree about the rights and responsibility of citizens, there’s nothing odiously disqualifying about him. He’d be better prepared for his job than Donald Trump is prepared for his.

Judge Thomas Hardiman might be something more than that. I think Hardiman’s “moderate” qualifications are being a little overblown: he’s a straight white male Republican, let’s not forget that. But Hardiman’s biography would bring some much needed DIVERSITY to the Court. He got his degree at Georgetown Law, which while T14 is not an Ivy, and certainly not Harvard or Yale Law, where all the rest of them come from. He’s driven a cab, and he’s worked for Skadden. There are worse things to be than this guy.

If we look at the men, maybe we can find a way towards normalcy and acceptance. But if we look at the nomination process, we’re right back into the end times. As David Lat has written, one of the factors in Gorsuch’s and Hardiman’s favor is that they “look” the part. They look like “winners.” They’re attractive white men, and being “attractive” “white” “men” is one of the reasons they’re going to be at the final rose ceremony tonight. Which, when you think about it, is a HORRIBLE factor to consider when making a lifetime appointment to the Supreme Court, and should be grounds to deny them they appointment. If there’s one branch of government where looks shouldn’t play a role, it’s the judiciary. How dare this president force-feed us some white men simply because they confirm to whatever Aryan ideal he and Steve Bannon and Richard Spencer have for America?

And when I say “final rose ceremony,” I’m not being cute. Trump has invited both Gorsuch and Hardiman to D.C. to take part in his television show tonight. We’re talking about one of the most important decisions a president has to make, and Trump is turning it into a reality show. Given the way he’s doing it, we have to entertain the possibility that a real “dark horse” nominee emerges, purely for television effect. Pretty much anybody who is currently in Washington D.C. can be named.

No. NO. Object and obstruct. NONE OF THIS IS REMOTELY NORMAL.

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There is no “right” answer to these questions. There is no “normal” reaction. Again, Senate Republicans stole a seat on the Supreme Court. In broad daylight. And they got away with it. There is no “precedent” for how we should feel about this. There is no “playbook” for how we should fight back. Mitch McConnell molested the Constitution right in front of us. It’s way worse than what Steven Spielberg and George Lucas did to Indy.

Every person will deal with their victimization at the hands of Trump and the Republicans in their own way.

But because of the way they’ve done it, Republicans have ensured one thing: the justice, whoever it turns out to be, will be viewed as illegitimate by at least half of the country for the rest of his life. The Court itself is a weaker institution now than it was a year ago. They’ve given any Democratic lawmaker with guts the ability to defy or ignore any 5-4 decision helped or penned by Trump’s illegitimate replacement. Don’t believe me that Dems would do this? Well, then you probably don’t understand that Sally Yates would be the frontrunner for the 2020 Democratic nomination right now, if she wanted to be.

Donald Trump will replace Merrick Garland’s vote with somebody of his own choosing. But Senate Republicans have ensured that Scalia’s replacement will be weakened and hobbled before he even puts on the robes. They’ve robbed themselves of Scalia’s integrity and authority.

Senate Republicans are just petty thugs: they grabbed some cash, but left the assets behind.

Earlier: Is Judge Neil Gorsuch The Supreme Court Nominee?
Is This Proof Judge Hardiman Is Trump’s Supreme Court Pick?
Supreme Court Update: And Then There Were Three Four
Wherein The Supreme Court Is Reduced To A Sideshow

Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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