The Scalia surprise and the 2016 elections

BY: John Bachtell| April 15, 2016
The Scalia surprise and the 2016 elections

Update Remarks by John Bachtell to the CPUSA National Board, Feb. 17, 2016

Once again, developments underscore the unpredictability and volatility of the 2016 elections. Unforeseen events can intrude, greatly impacting the dynamics of the race.

One such event is the death of U.S. Supreme Court Justice Antonin Scalia, the most influential right-wing member of the court.

Scalia’s death, President Obama’s intention to nominate a replacement and the GOP vow to obstruct, has set off an epic battle.

It raises the stakes for the outcome of the 2016 elections, not only for the president but also for Congress.

It also will affect the future direction of the Supreme Court. Will the court continue to be an instrument of right-wing political domination, or will it reflect the ongoing changes in U.S. society, swinging the balance away from the right? This is what the right-wing fear most and they will do anything to prevent the loss of their majority.

This struggle forces basic political, social and cultural issues into the electoral arena and forces the GOP dominated Senate to consider hot button issues dividing the country, exposing their extremist and increasingly minority positions. This is exactly what Senate Majority Leader Mitch McConnell didn’t want.

It brings into sharp relief the kinds of justices the candidates plan to nominate and the political contours of the court for a generation to come. The next president most likely will nominate two or three justices.

Scalia’s death highlights GOP obstruction and efforts to subvert the operation of government and the judiciary. This has been their official policy from President Obama’s first inauguration to this day. They have attempted to delegitimize his administration at every turn.

The depth of the obstruction and government gridlock is without parallel. In addition to the SCOTUS, since the 2014 elections, the GOP Senate majority has publicly vowed to obstruct the appointment of appellate justices, of which there are now 9 vacancies. This hasn’t gotten much publicity, but their actions are subverting the federal judiciary.

The obstruction also highlights the way the extreme right and corporations are using the Supreme Court and judicial power to advance the right-wing and pro-corporate agenda. Chief Justice Roberts, goaded on by Scalia et al, has been very deliberate with the selection of cases to be argued before the court that will block, overturn and undo established policy and thwart the expansion of democratic rights.

These efforts have been transparent and radically undermined the credibility of the high court with the American people and exposed it as a nakedly partisan institution rather than a fair and impartial one.

The extreme right has long seen the strategic importance of stacking the courts with right-wing justices, especially as public opinion has shifted along with demographics making it more difficult for the GOP to capture the White House. In addition to eyeing the courts they have institutionalized their hold on the House of Representatives through redistricting.

In the immediate future, with Scalia’s death all cases before the SCOTUS that have not been announced are void. This leaves a mixed effect on policies.

On the one hand, organized labor and democratic forces dodged a bullet with the Fredricks v California Teachers Association and a case dealing with the separation of church and state. It could also affect the Fischer v University of Texas affirmative action case, depending on how Justice Kennedy decides.

On the other hand, because lower court decisions will stand if the SCOTUS is deadlocked 4-4, it appears a ruling to halt DAPA and DACA will stand, along with the Texas case restricting abortion rights.

The Hobby-Lobby decision will most likely leave in limbo the issue of contraceptives and the Religious Freedom Restoration Act since there are contradictory rulings from two different appellate courts.

Last week’s unprecedented injunction to halt implementation of the EPA ruling on coal fired plant emissions will stand. This Obama policy is a centerpiece of efforts to curb greenhouse gas emissions justified under the Clean Air Act. It remains to be seen if the SCOTUS will keep in place an injunction if the Senate blocks a nomination process and the seat remains vacant for a year preventing a hearing.

There is no GOP justification for refusing to conduct the nomination process that doesn’t clearly spell obstruction. Sen. McConnell and the GOP have painted themselves into a corner and may be forced to retreat.

Scalia was a proponent of “original intent” of the authors of the Constitution. If one reads verbatim the document, nowhere will you find any justification for delaying or avoiding the confirmation process, even in an election year.

And as to McConnell’s call to “let the people decide” on a new president and then hold the hearings – the people have already decided by electing President Obama twice and last time I checked he was still president.

If the GOP successfully obstructs the process, it will break the record for the longest vacancy without a confirmation vote. And you’d have to go back to 1869.

President Obama will nominate a justice in the coming weeks and there are many calculations that are going into the selection. The immediate issue facing labor, its allies, and democratic movements is to help sway and mobilize public opinion to win a confirmation hearing on the nominee.

But the obstruction can backfire on the GOP. It can activate and mobilize people into the election process and can be a uniting factor between supporters of Hillary Clinton and Bernie Sanders.

And because of the pressure, there is some backing off of the extreme position put forward by McDonnell and Donald Trump who called for “delay, delay, and delay.” Sen. Charles Grassley, chair of the Senate Judiciary committee already said he would “wait and see” who Obama nominated before he would decide on hearings.

A massive campaign is now unfolding with a broad coalition of labor, civil rights, civil liberty and other organizations which we should be part of. Petitions are being circulated to collect thousands of signatures. Letters to the editor are being encouraged.

The aim is to pressure incumbent GOP senators in especially blue and swing states, which are vulnerable in the November elections. This includes Ohio, Illinois, Pennsylvania and New Hampshire.

Nothing is set in stone. The situation is fluid. As we have seen, the dynamics of this election are fast moving and changing. If the movement grows big enough, this can become too hot of a potato for the GOP and they may be forced to do their jobs.

Photo: Creative Commons 3.0






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