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Scalia’s Death and the Upcoming Total Nomination War

Scalia’s Death and the Upcoming Total Nomination War

But first, If you are Catholic, perhaps you can arrange a Mass Intention for Scalia

There are moments I always recall with great clarity.

Learning about the death of Supreme Court Justice Antonin Scalia will be one of those events.

As I have been closely following this news, I have noticed that there is a lot of chatter about the circumstances of his death and the disposition of his body. For example, reading The Drudge Report headlines, I could almost believe this story might soon be featured on Forensic Files.

While dialoging with fans of Legal Insurrection’s cartoonist, Antonio F. Branco, I noticed many comments I had also read elsewhere. For example, suspicious were shared about the pillow found over his head. Many Americans are expressing worries about the lack of an autopsy that would have confirmed the ruling of “natural death”.

I wanted to share some perspectives, which I thought might be helpful, based on my own experiences.

Scalia was a devout Catholic. As I fellow Catholic, I wanted to note that in all likelihood the family wanted to move forward in swiftly making arrangements with as much dignity as possible. Given the fact that Scalia had a history of high blood pressure, heart problems, and was recently deemed too weak to undergo shoulder surgery, it is reasonable to bypass an invasive procedure and proceed with arranging for the Mass and the funeral.

My own father had a set of chronic health problems similar to Scalia’s. When he died of a heart attack, the timing was unexpected. However, we had braced ourselves and were prepared to go on. I suspect the same is true of the Scalia family.

Then how about that pillow over the head? It is how I sleep…as do many others. I have to believe that the law enforcement officers who arrived would have made much different decisions if there was even a slight hint of foul play.

All that being said, the Obama Administration has given conservatives plenty of reason to be suspicious about one of our icons being targeted. The treatment of Tea Party groups at the hands of the IRS is merely one shining example in a seemingly endless stream.

President Obama has never been one to embrace decorum or grace in politically charged situations. Scalia’s death was no exception. PJ Media contributor, Claudia Rosett, shared this observation about how Obama decided to dress to make a formal announcement.

…Surely when America’s president appeared before the TV cameras Saturday evening to deliver his scripted remarks about the death of a Supreme Court Justice, the great Antonin Scalia, Obama should have taken the trouble to dress at least as well as your average law student applying for a summer job.

Instead, flanked by the flags that signal ceremony, but dressed-down after a day on the golf course, the top button of his shirt undone, Obama appeared without a necktie.

As anticipated, Obama is forging ahead enthusiastically with the selection of his next nominee…despite precedents to prevent last-year presidential appointments to the nation’s highest court.

I concede there is much to be angry about. Scalia’s opinion would have been critical in many upcoming cases. The progressive joy at this unanticipated vacancy is a bitter thing to see unfold.

But, instead of squandering time speculating about the nature of his death, maybe we can all do something a bit more productive?

If you are Catholic, perhaps you can make it a point to arrange a Mass Intention for Scalia. I know I am. Imagine the powerful statement that having notices of Mass Intentions for Scalia posted throughout the country will make. Additionally, perhaps consider sending a Mass Intention card to Scalia’s office at the Supreme Court?

I am sure Scalia will appreciate the prayers, and his family will be grateful for the show of love and respect.

Another meaningful action we can take is to help strengthen the resolve of our Senate to prevent the confirmation of someone who would work to undo everything Scalia achieved during his lifetime. Dawn Wildman, coordinator for the California Tea Party Groups, indicates American conservatives are getting prepared to do just that.

“We are already getting organized. We will keep pressure on the Senate to do everything that is legal and constitutional to prevent Obama from appointing another progressive. And if the Senate agrees to go forward with any nominee, we will do the vetting that we fear they may not do. To say that we don’t trust the Republicans in Congress is an understatement. This is probably the last chance that have to prove themselves.

This will be a total nomination war.

No matter how angry we get, Scalia isn’t coming back. Nor can he be truly replaced.

At this point, all we can do is be grateful that he was on the Supreme Court for nearly 30 years and fight for another Justice who won’t reverse his decisions.

If, ultimately, we get a savvy “Originalist” who opines with wit, that would be a real miracle in this environment.

[Featured image via Ben Friedman Twitter]


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I, too, was struck by the lack of civility in Obama’s choice of clothing – but that’s nothing new. He has NO respect for the Office of the President of the United States of America. Or for the people who HAVE built this country, one of which was Justice Scalia.

    Sammy Finkelman in reply to JoAnne. | February 16, 2016 at 1:35 pm

    What do you expect? Barack Obama is not Ronald Reagan. And this was not a formal occasion to him. Nominating a successor would be a formal occasion to him.

I wonder if Justice Ginsberg, a close-friend of Justice Scalia’s, noticed the disrespect shown by Obama…

I have dreams of the Supreme Court taking a second look at itself and maybe rethinking their politics making Court decisions – instead of the Constitution.

    I believe that Scalia’s friendship has made Ginsburg a better Justice than she otherwise would have been, but she will never stop being a jurist in pursuit of social justice.

I am so sorry to see Scalia gone from us. He was the best of the Justices and the likelihood of a man of equal stature being appointed his replacement seems small. But consider this: throughout our history, when the times called for an uncommon person, an uncommon person has risen to the challenge. It’s almost as if there were some master plan being followed. No… what am I saying? Couldn’t be.

I pray for God’s comfort to Scalia’s family and loved ones.

I disagree with the premise of this article.

If Scalia did die to foul play, the government would almost certainly cover it up. The murder of the Leader of the conservative wing in the Supreme Cort during an election year would tear the country apart. Governments cover up all sorts of things all the time. Sweden just admitted it was covering up an immigrant Muslim rape epidemic for the past two years.

I don’t think he was murdered, because he was old and sick. But, he was well enough to travel and engage in physical activity, and able enough to decline his security detail when he did so.

Also, there will not be a nomination war.

1. Obama will nominate an extreme liberal who once wrote a pro crony-corporate opinion and
2. Orrin Hatch will speed the nominee through the judiciary to the floor.
3. Once it gets to the floor, Marco Rubio will be absent and 15-20 Republicans will approve the nominee.
4. The Republican Senators will then claim victory, even as the Soros-backed opposition will cry betrayal,
5. but in the end the new Judge will vote with Ginsburg 90% of the time.

    alaskabob in reply to rotten. | February 16, 2016 at 12:44 pm

    Until then, Roberts becomes the darling of the Left… again…but once a leftist (gasp.. hope not) is confirmed he will be old news.
    Decades of “activist” judges have been successful incrementally because there has been no downside to the reversals of their decisions. The losers are limited solely to the People and in many instances the Constitution … of all political battles.. this selection of a new justice is monumental and must be won.

The Left knows this is for all the marbles, and they play to win.

They also know that the Republicans’ weakest link is the RINOs in the Senate.

“I have to believe that the law enforcement officers who arrived would have made much different decisions if there was even a slight hint of foul play.”

I respectfully disagree.

1) I have seen nothing about who the LE agencies involved were. Which agency is the lead? Local? I do not know if I trust them (this is new the border). I trust the Texas Rangers. The feds do not know much about homicide investigations and I no longer trust them.

2) No autopsy makes sense if the deceased is a person where nobody gains in the death, is known only by a few, and there is some medical history to support “natural causes.”

3) If the deceased is a high profile person, I think we should always have an autopsy to settle the questions. The benefit exceeds the cost. “Natural causes” is a conclusion based on evidence (autopsy) or on a guess or on an objective. I like evidence.

4) I cannot imagine NOT requesting an autopsy with a victim like this if I were in charge of the investigation. If there was a lesson from Ron Brown’s death in 1996, it is that one does not want an autopsy if one does not want evidence. I remember the evidence in that case and then EVERTHING disappeared and people went silent. Problems like that can be avoided by leaving questions unanswered.

A conclusion of “Natural Causes” on a high profile victim without collecting the facts that are available via an autopsy sets off alarms in this former LEO.

JackRussellTerrierist | February 16, 2016 at 1:14 pm

The idea that this is ultimately in the hands of Mitch McConnell and Orrin Hatch strikes deep fear in me.

TruthOverPower | February 16, 2016 at 1:27 pm

I just posted your suggestion at the Catholic Tea Party group on Facebook.

While it would be nice for Scalia to be replaced by another conservative, even better would be a secular, non-religious STEM-schooled justice or at least not yet another wishy-washy religious humanities-schooled Roman Catholic or Jew.

Sammy Finkelman | February 16, 2016 at 1:42 pm

There seem to be the following bits of news:

1. Justice Antonin Scalia was 79 years old, but did not appear to the public to be sick.

2. Scalia had visited a doctor both on Wednesday and on Thursday.

3. He had shoulder pain or a shoulder injury, and the doctor took an MRI. The doctor said that he didn’t consider him a candidate for surgery because of his weakened heart condition. (the surgery also probably would be stupid in principle.)

??? Did the doctor alter any of his prescriptions?

??? Was this actually the beginning of a heart attack, or an aneurysm burst? Was the shoulder pain diagnosed correctly? If the doctor says “injury” it probably only means it started suddenly, with some motion Scalia undertook.

4. He had a planned trip to a hunting lodge in an isolated area in West Texas. It is by invitation only really. There were about 35 other people there, mostly locals. It costs $500 a day.

5. One of his sons (probably not the priest) was originally scheduled to be there with him, but didn’t go, for some reason that didn’t make it into the newspapers.

6. Justice Scalia arrived at the hunting lodge on Friday afternoon.

7. He did not go on the scheduled hunting trip that afternoon.

??? With shoulder pain would he even have been able to?

8. He did show up for dinner.

9. He retired early to go to bed at about 9 pm (10pm eastern time)

10. According to “officials” he said he was feeling tired.

11. The owner said he was feeling fine.

12. He did not show up for breakfast Saturday morning.

13. At 1 pm the owner checked in on him. He says he was stone cold. (which would explain not calling for an ambulance or any medical assistance.)

14. The owner says a pillow was over his head. It is not known whether it was usual for Justice Scalia to sleep this way. It is common for some people to do so.

16. Also his hands were over his chest. (which would mean he was facing up)

17. And that his clothing and the bedsheets were unruffled.

18. The owner, a man named John Poindexter (not that John Poindexter) is a Democrat. This hints darkly at possible connections and a plot. This is probably unjustified. It is just here because we don’t understand this, so it is hard to feel confident this is unjustified.

19. Both the doctor in Washington, and the owner of the lodge may be covering up that they missed signs of a possible incipient medical crisis.

    2nd Ammendment Mother in reply to Sammy Finkelman. | February 16, 2016 at 4:41 pm

    So… here’s what bugs me…. The ranch where he died, Marfa, Ft Davis, Ft Stockton, Alpine and so forth all have private and public airstrips. Doesn’t it seem a little off that his remains were traveled over 200 miles by vehicle from Marfa to an El Paso funeral home (Odessa was 60 miles closer) in order to be taken to the El Paso Airport to be flown by private plane back to Virginia? Then there’s the curiosity that the body was expected to arrive in El Paso about 3am and didn’t arrive until midday.

    Being from El Paso, all I can say is that the choice of Sunset Funeral Home isn’t one that Catholics or local people of “means” would make. It’s owners are known to have ties to the drug cartels.

    The only other thing I would toss out is that El Paso’s elected officials are solidly party Democrats and Odessa’s are solidly Republican.

Sammy Finkelman | February 16, 2016 at 1:56 pm

I didn’t mention the high blood pressure. Also I didn’t make it clear that the surgery that the doctor did not consider Scalia in a good enough condition to undergo, was almost certainly something other than heart surgery.

“If you are Catholic, perhaps you can make it a point to arrange a Mass Intention for Scalia. I know I am. Imagine the powerful statement that having notices of Mass Intentions for Scalia posted throughout the country will make. Additionally, perhaps consider sending a Mass Intention card to Scalia’s office at the Supreme Court?”

Thank you, Leslie.

I would also offer that, from my point of view, being an “originalist” means merely that the person uses the ordinary tools of literary criticism to study, evaluate, and interpret a document. Our Constitution is an old document. Referring to what the people who wrote it meant at the time they wrote it, is foundational to a rigorous analysis.

Noblesse Oblige | February 16, 2016 at 3:52 pm

I look at it this way. Without the assurance of an evaluation by medical science, we are asked to ignore the possibility (which might very well be be remote) that the current occupant of the WH, who has been given a pass from the beginning by his ideologically aligned supporters, would make an attempt to engineer the closest thing to a coup he could come up with — a free pass through the courts for all unfinished components of his agenda — global warming, guns, immigration… To not investigate the cause of death would be to compound irresponsibility upon irresponsibility.

If the Republican Establishment is afraid now, wait until they see the open revolt that will be facing them if McConnell even THINKS about allowing a vote on any Obama nomination. I’ve already written to both of my Senators asking them to publicly affirm that they will NEVER support ANY Obama SCOTUS nomination.

I am not Catholic, but I prayed for Justice Scalia and his family at my Anglican service of Holy Communion on Sunday, as I did the moment I heard of his passing.

On the political side, I have just written to both of my senators, asking them not to confirm any Obama appointee to this seat.

The suit or lack of it matters zilch. A man of real character is of real character no matter what costume he wears. Obama has no character, at least of integrity. As a charlatan and confidence artiste, he’s the maximum character possible. Otherwise, an empty suit. One problem in the profession of law today is the trump demand by judges of petty nature for a dress code that is uniform, and at the same time immodest. A kilo-buck or multi-kilo buck suit is be that measure alone, immodest. Why? Wanton display of riches as power.

The great justice Antonin Scalia died on the same day that the destruction of the Greek Revival (late phase) Trenton Central High was torn down. It had been built in 1931, opened in January of 1932. Scalia was born a few blocks away from the new high school in 1936. His mother was an elementary school teacher. While his family moved to New York and he grew up there. he always kept his Trenton connections and family here, here being Trenton. Scalia’s Dad was from Sicily, his mother from Italy. The two spinster sisters whose farm was taken by eminent domain to build Trenton Central High School were first of second generation. But the money the received for that family farm was so small that after the taking, they both moved to Sicily, as it was all they could afford.

The Greek Revival period in America was marked not only in architecture, but in law. The founding generations in America, the English-Scottish protestants had developed quite a locally grown theory of contract, charter and constitutional law. It is little remembered today, and our legal scholarship misses greatly for that. It was based on Old Testament conceptions, and on the English law theorizing and practical rulings of greats like Hale, Selden and Coke. The great three. And it was based on practical real pioneer community making. When Locke and Montesquieu came around, their work and philosophic journeyings in law and government were informed directly and indirectly by the efforts in the colonies of this continent. In America our laws root in the Hebrew, and in the law of the three greats mentioned. Not at all Greek! A mixture of Roman law suit grounded in the Hebrew, the talmudic learnings via Selden, via Spinoza and his aficionados. And by the very learned citizen-priests of New England, Virginia and even the Dutch Reformed in that colony formerly know as New Amsterdam. Not greek at all.

Yet Scalia’s law traditions came, like Trenton High, out of that same mix of Greek Revival, European civilian law traditions, and Jesuit-like turns of logic that all were absent at the founding. Or mostly absent. Thomas knows the original originalism better