Supreme Court Justice Antonin Scalia's dead. The maneuvering begins!

Loretta Lynch will be very controversial. She has given the right some fodder since becoming AG.ThinkProgress has a good article on it.

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I'm not saying that Lynch ought to be controversial. I'm saying that the Republican demonization machine would go into overdrive if Lynch were Obama's pick, even though she won confirmation as attorney general in a Republican-controlled Senate just last year. She's already one of the right's favorite Antichrists, neatly replacing her predecessor at the Justice Department, Eric Holder. A Lynch pick would set off so much anger on the right that mainstream journalists would take the conservative howling and feces-flinging very, very seriously. Eventually the low-information public would conclude that there must be something awful about Lynch because she makes so many people so angry.

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So what is it that conservatives don't like about Lynch?

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Loretta Lynch As Scalia's Replacement? | Crooks and LiarsOh is that an ad?

Some of the latest scuttlebutt involves Republican Nevada Gov. BrianWhite House, GOP Lock Horns on Supreme Court Nomination - WSJ

No, if it was an ad it would look like this:

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Loretta Lynch will be very controversial. She has given the right some fodder since becoming AG.
You're never going to believe what ThinkProgress had to say about her!

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Do you not know what click-bait is?

Democrat Harry Reid backs Republican for Supreme Court | CNN Politics

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Senate Minority Leader Harry Reid said Wednesday that he would support Nevada Gov. Brian Sandoval as the next Supreme Court justice, putting his weight behind a moderate Hispanic Republican from his home state.

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Sandoval, a former federal judge, is being vetted for the spot, according to a source close to the process, although he has not been actively involved in the process.

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"Neither Governor Sandoval nor his staff have been contacted by or talked to the Obama Administration regarding any potential vetting for the vacancy on the U.S. Supreme Court," according to a statement from Mari St. Martin, his communications director.

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Now, this one would be interesting. Sandoval is not a teabagger and is more liberal on social issues than a lot of Dems, too.Edited by Pressie, : No reason given.

Supreme Court: Here's who should replace Antonin Scalia | CNN

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I want to suggest a third option: The President should appoint a leading legal mind at the end of his career. In particular, the President should nominate Judge Richard Posner to the Supreme Court. Posner is a leading intellectual light of the past half-century in law. He is the author of more than 40 books -- many of them landmarks and classics in diverse fields.

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The article goes on to say that opposing Posner would be very difficult because of his tremendous statute, that it would avoid the need to point an apparent moderate who might later out philosophically the opposite of what the President intended (as did Souter and Brennan) and that Posner is too old to stay on the Court for a long period of time if there is some regret.Interesting analysis.Edited by NoNukes, : No reason given.

Interesting, I like the idea of an "elder statesman" tradition for picking a SC judge -- if it would catch on. You mean there is hope for Roberts? IIRC several judges became increasingly liberal over time.Enjoy

I'd like to see someone on the court who has a demonstrated record of putting jurisprudence, consistency and practical considerations above political philosophy, but I'd settle for someone who just wasn't crazy. There must be some really crazy judges in the lower courts that considered the Texas case just now coming before the Supreme Court, and this New York Times editorial lays out the basic details pretty well: Showdown on Abortion at the Supreme Court. I'll attempt to summarize.The Texas law states as its goal the protection of women's health. To that end the law requires that abortion clinics meet all the standards of outpatient surgical centers and that their doctors have local hospital admitting privileges. The legal wrangle involves whether these requirements are necessary for women's health or if they're instead designed to set a standard too high for most abortion clinics to meet.Evidence that the law's goal isn't as stated, to protect women's health, is that clinics in Texas that perform procedures with a far higher complication rate than abortion are not bound by any similar requirements, and that abortion clinics across the state are closing down, making legal and safe abortions less available or even unattainable.In 1992 in Planned Parenthood v. Casey the Supreme court ruled against restrictions that impose an "undue burden" on women, including "unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion." It also said that abortion laws "must be calculated to inform the woman’s free choice, not hinder it."Still, the Fifth Circuit Appeals Court approved the Texas law, ruling that "any conceivable rationale" was sufficient justification regardless of any effect on a "woman's free choice" or any burden. There must be some real crazies sitting on that court.Before Scalia's death the Supreme Court would have upheld the Fifth Circuit ruling, and the 4-4 tie that seems likely now would have the same result by leaving the Fifth Circuit ruling in place. But a 5-3 outcome isn't impossible if Kennedy switches sides.--Percy

Justice Kennedy can expect a lot of mail ... from both sides.Yikes

Not quite "real crazies". Just some motivated judges opinion on what they believe the standard of review is. What they have stated is essentially the rationale basis test which is the test to be applied when the right at issue is less protected that are fundamental rights such as first amendment rights. The courts have always balanced a states rights vs individual rights as part of the analysis with respect to abortion.For non fundamental rights, the rational basis test is the correct test, and the court often accepts reasons that are quite obviously pretexts. About the only reasoning that won't survive a rational basis test is one that is clearly either illegal or irrational. (For example maintaining racial purity was a clearly illegal rationale) Truth is a secondary issue here (if rational basis is the standard).The problems here are that 1) the judges in the circuit court clearly applied the wrong standard and 2) a measure that effectively prevents abortions in huge portions of the state the size of Texas, and this measure clearly does exactly that, most likely won't be upheld at the Supreme Court, so the measure probably won't base any kind of enhanced scrutiny.I believe you pretty much nailed the issue in the remainder of your post. In summary, the right in question here may fall short of fundamental, but the Supreme Court has already said that 'rational basis' is not the right standard. Maybe something like intermediate scrutiny is applicable. I think this is the most likely outcome.ABE: I should have said I think this is a likely outcome. Not clear if it is the most likely outcome.Edited by NoNukes, : No reason given.Edited by NoNukes, : No reason given.

When you say "switch sides", you are aware that Kennedy wrote the opinion in Casey v. Planned Parenthood, right? I know we talk about liberal vs. conservative, but Kennedy's position is a bit more nuanced that is, say Thomas' position on abortion. Kennedy agreed that the state had an interest that supported some restrictions, but that those restrictions could not substantially burden a 'fundamental right to chose'. Perhaps switching sides in this case would mean joining the other three conservatives.Also, let's not forget that the Fifth Circuit is probably the most conservative of all of the federal circuit courts.Edited by NoNukes, : No reason given.

The worst that can happen here is that a 4-4 tie leaves the decision intact for the fifth circuit only. No other circuit would be bound by the Supreme Court decision if the vote is tied.Another possible outcome is that if there is a tie, the Justices won't decide the case until a new Justice is appointed. In fact, that's a fairly likely outcome.

At the time I only knew what was in the editorial, which said Kennedy co-wrote the opinion. Looking this up now, Planned Parenthood v. Casey upheld regulations that had been challenged under Roe. It was viewed as an opportunity to overturn Roe, but it reaffirmed Roe, despite that it upheld 4 of the 5 regulations challenged. This is too confusing for me to parse and I'm not going to try to dissect it.All I meant about changing sides is that a 4-4 vote could become 5-3 if Kennedy doesn't vote with the conservative side of the court. The editorial excerpted statements from the Planned Parenthood v. Casey opinion he co-wrote that they suggested he might want to keep in mind as he thinks about the Texas case:

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In the 1992 case Planned Parenthood v. Casey, the Supreme Court struck down abortion restrictions that impose an undue burden on women. Such restrictions include unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion. There is no more apt a description than that for the Texas law.

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--Percy

It is a rather complicated thing to unravel. None of the opinions in this case were fully adopted by all of the members of the majority.To add some pessimism about what Kennedy might do, since Casey, Kennedy has seldom seen a restriction that he did not think was okay. I think he is something like 20 for 21 in upholding new restrictions.

Here is an interesting time line. Scalia’s Supreme Court Seat Has Been Vacant For More Than 400 Days - The New York TimesAccording to data compiled by NY Times, the Senate has done something, even if it's just a filibuster, when a nomination has occurred during an election year.George Washington nominated and had approved two new justices to court during his last year in office.Even John Tyler, constantly opposed by the Senate during his tenure, was able to get multiple candidates voted on (admittedly rejected). At least that Senate would make a stand on something.According to Wikipedia, Tyler actually nominated and had confirmed a Justice with less than a month left in his term. This happened in February - AFTER the election.Andrew Jackson nominated a Justice on his LAST FULL DAY IN OFFICE and that Justice was approved.Another post-election nomination was by Martin Van Buren
Wikipedia Rutherford Hayes and Benjamin Harrison both successfully nominated a Justice after the election.If the Senate needs a precedent to do their job, here's a few. Geez, at least vote the nomination down.