Capitol Beat Opinion

A Ding Dong Moment As Supreme Court Justice Antonin Scalia Dies

FILE - In this March 8, 2012 file phoo, Supreme Court Justice Antonin Scalia speaks at Wesleyan University in Middletown, Conn. Scalia drew unusually critical attention during this past Supreme Court term for comments he made in court and in his writing that seemed to some more political than judicial.  (AP Photo/Jessica Hill, File)
Linda Pentz
Written by Linda Pentz

We interrupt what should have been a column this week on LGBT endorsements for Hillary Clinton, to write about the death of Supreme Court Justice Antonin Scalia instead.

And although it’s become positively Trumpian (ugh) to be anti-PC, to heck with that.  Scalia popping off while a Democrat is still in the White House is a “ding dong the witch is dead” moment.

For sure there have been plenty of sanctimonious cautionings littering Twitter about not speaking ill of the dead; to mind our manners; that Scalia’s family must have loved him, blah blah blah.

No, sorry.  Read Scalia’s dissent on marriage equality which he labeled a “judicial Putsch.”  Opposing the Court’s 5-4 decision in favor of same-sex marriage, Scalia wrote, “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Read his dissent in Lawrence vs.Texas back in 2003. “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home,” he wrote.

Scalia’s view on homosexuality was that it was “deviate sexual intercourse with someone of the same sex.”

But Scalia being dead and gone is less important than what happens next.  And that is not so much about who President Obama will nominate to replace Scalia, than whether that nominee will arrive on the bench while Obama is still in office.

Republican Senate Majority Leader, Mitch McConnell, has already vowed to stall any Obama Supreme Court nomination from moving forward, banking on a Republican presidential victory next November that would replace both Obama and his nominee.

Senate Minority Leader, Harry Reid, called the possibility of ignoring Obama’s nomination and leaving a Supreme Court seat vacant for almost a year a “shameful abdication of one of the Senate’s most essential Constitutional responsibilities.”

But can McConnell and his cronies get away with this?  Therein lies the confusion.  There is something called the Thurmond Rule which could allow this.  But is it a rule or just a practice?  It’s not entirely clear.  At the end of the day, however, it appears that the Republican majority can in fact just sit on Obama’s nomination and wait it out.

Which I think will actually be great for the Democrats.  It will enrage people, especially Sanders supporters who already decry the oligarchical hold both the political and corporate establishments have over our so-called democracy.

And it will make the moment when President Sanders or President Clinton nominates the next Supreme Court justice (or confirms Obama’s choice) particularly delicious.  Because one of them will win, despite all the media flash and fanfare that obsessively follows the Republican campaign bus (behind which Jeb Bush continues to run, crying “wait for me!”)

When that happens, let’s hope the nominee is both super progressive and gay.  At which point we can say, with deserved smugness, “rest in peace Scalia.”