It would be so easy for me to be snarky. But I'll refrain.
Stephen Henderson is the Editorial Page Editor of the Detroit Free Press. He was a reporter at the Supreme Court for several years around the turn of the century before coming to Detroit. That got him on NPR to discuss Scalia's legacy. Naturally, Henderson's editorial of Scalia is a cover story in today's edition of the Freep. He wrote:
He was a man for whom the notion of expanding liberty beyond the narrow confines of those who could enjoy it at the nation’s founding could only happen through the democratic process, with the majority granting rights to minority populations. And if it happened otherwise, through courts that saw the Constitution’s promise of liberty in broader terms, it was in contravention to the nation’s founding principles.My summary is simple: The Constitution was written at a time when only white male landowners could vote. Therefore the Originalist interpretation of the Constitution is a euphemism for bigotry.
Gay rights? Only if the majority wishes. Affirmative action? For Scalia, it wasn’t a tool for realizing the promise of racial equality, but rather a means of discriminating against the majority. Sexual privacy? Not mentioned in the Constitution, so it didn't exist.
… Those notions sit quite close to the center of the “originalist” or “constructionist” view of the Constitution that Scalia and other conservative appointees since Reagan have aggressively tried to ply throughout American law.
Henderson says the conservative side of the Supremes "had already begun to witness significant erosion of their dominance on the court." And the GOP and their conservative backers fear their majority is slipping away. So, of course, they are crowing they will block a nominee that hasn't been named yet, simply because Obama is the one doing the nominating. They are betting the next prez. will be one of their own.
One of the loud voices slamming Obama is, of course, Ted Cruz, who hopes to be the one doing the nominating. His comments got so silly in their alarm that I won't link. Other sentiments out there is that if Obama's nomination goes through we can say goodbye to the Constitution. Which sounds like the speaker means: the Constitution interpreted to favor straight white Christian guys.
Elizabeth Drew of Ohio, who is a regular contributor to New York Review of Books, put it well: "Senator Cruz, if you're president, which powers would you surrender in the last year of your presidential term?"
Conservatives also like to say that justices nominated in an election year are never confirmed. Timothy Lee of Vox lists fourteen such justices, though the only one since WWII is Anthony Kennedy and he was actually nominated the previous December after Robert Bork was rejected.
A big issue of the prez. campaign has just gotten a lot more visible. The GOP candidates have already been trumpeting what kind of justice they would nominate – if we get a President Trump, Cruz, Rubio, or Carson they have vowed they will nominate someone to overturn marriage equality. Even a President Kasich or Bush wouldn't do us any favors (I've lost track of how many are still in the race). Alas, Sanders and Clinton haven't made a big deal of what kind of justice they would appoint. I hope they start saying so soon. Of course, if Mitch McConnel, Senate Majority Leader, is able to block Obama's nominee, this issue will definitely be part of the fall campaign.
But it should already be part of the campaign with Ginsberg, Breyer, and Kennedy all 77 or older. Scalia sat on the court for almost 30 years. His successor will be with us for a long time.
In the meantime leaving a vacancy in the court would not benefit the GOP. Ties of 4-4 mean the lower court rulings remain in effect – and at the moment there are more Obama and Dem appointees than GOP appointees. Will that vacancy bring more conservative voters to the polls? Do they already vote? Will the usual increased Dem turnout in an election year make the difference? Do younger voters understand the importance of the Supremes?
Want to save time? Elizabeth Drew suggests ignoring all stories that speculate on who Obama will nominate.
Jim Burroway of Box Turtle Bulletin reminds us of Scalia's legacy regarding LGBT rights. Burroway quotes Scalia's dissents (fortunately merely dissents) on four of our big cases: Romer v. Evans, which overturned a Colorado constitution amendment that banned laws granting rights to LGBT people. Lawrence v. Texas, which struck down sodomy laws. US V. Windsor, which declare the Defense of Marriage Act to be unconstitutional. And Obergefell v. Hodges, which brought marriage equality. Scalia can be somewhat amusing with his phrasing, but it is tough to wade through the bigotry.