Guest Post: Trump and Scalia

Good Riddance to Civility, Hello Revolutionaries!

Peter Sage:   Thad Guyer observes this election from afar, currently from Saigon.  He is an attorney specializing in litigation of whistleblowing employees.  He pays close attention to the kinds of messages that are persuasive to judges and juries.  

In the three days since the death of Justice Scalia the country has observed that the courtesies of good sportsmanship and fair play relating to the Presidential Nomination of a Judge and the Advice and Consent of the Senate had dissolved.  Senate Majority Leader McConnell dispensed even with the veneer of hypocrisy, of even pretending to consider Obama nominees, thus leaving a vacancy on the court and denying Obama the ability to fill a vacancy created with over 11 months left in his term.   Guyer observed that the supposedly non-political and ritualistically formal branch of government (e.g. "May I approach the bench, Your Honor.") had already gone "Trumpian", and Justice Scalia brought it there.

Here is Thad Guyer's observation:

Trump and Scalia were of the same cloth.

On Scalia: "He wrote cruel, demeaning things about whole groups of Americans—and *** was the fifth vote on what many of us consider towering historic injustices, from Bush v. Gore to Citizens United." Slate, http://goo.gl/OxCZaz 

And this: " He belittled lawyers. His opinions, especially in dissent, could be downright nasty. No justice in the Supreme Court’s history insulted his colleagues more, or more memorably." NYT, http://goo.gl/Lfw89X. Scalia’s leadership destroyed civility as brutally as he destroyed settled non-partisan legal doctrines about big political money and guns. 

Trump does the same with institutional primaries, as noted in UpClose on "What New Hampshire Means": "The big message is the majority position, consisting of impatience and lack of confidence in the current system and a demand for reform. They do not want incremental anything. They want to break the system." 

See also, UpClose "Trump at the Republican Debate: Report Card": " Trump was openly rude. He interrupted a lot." Boehner and McConnell de-civilized and broke the First Branch. Scalia did the same with the Third Branch. Either Trump or Sanders will probably finish the job with the Second Branch. And of course Fox News and MSNBC did it to the credibility and respectability of the Fourth Branch or “Fourth Estate”--the press. 

I say good riddance to the establishment in its institutional malaise and political corruption in all four branches. I’ll take open warfare over the covert and sneaky so often masquerading as statesmanship, judicial impartiality or journalism. Open and shouted insult and blood sport is how the British Parliament works, and it works well enough. And until 2009, there was no British Supreme Court. 

After Scalia, it is fantasy to believe that the judges and Justices are not members of yet another political branch. Obamacare as broccoli was politics, not law. See Reuters, “Here’s why health insurance is not like broccoli”, http://goo.gl/hrXR3n. When it comes to all three branches, we want our team to win—period. See, Upclose, "Replacing Scalia--live blogging the Republican debate": “Each candidate said that if elected president he would appoint every judge possible during his term and would happily insist that each nominee be very strongly conservative so as to push the court as far to the right as possible.” 

And I want my team in Congress and the White House to get me a team of judges as politically far left as possible. But if my teams can’t get leftist Justices, I have a fall back position—good riddance to the 5-4 neo-fascist Supreme Court for a while or even a long while. The pre-Scalia death analysis explains well why the U.S. Supreme Court is fading. See, New Republic (2014), “The Supreme Court Will Be a Disaster If a Justice Dies During a Republican Congress”, https://goo.gl/jimEoQ, and Washington Post (2015), “Why the next Supreme Court vacancy will favor liberals, no matter who retires” http://wpo.st/JlyB1. 

I’ll take the 4-4 stalemate any day, because my team will win almost all the draws. Obama appointees already control most of the Circuit Courts of Appeal I care about, most notably the “Left Coast” by the Ninth Circuit. My team also has the Liberal Northeast from Philadelphia to New York and Boston by the First, Second and Third Circuits. 

As a lawyer with a national practice I have seen up close how the exact same Federal statute or constitutional provision is applied not just differently, but radically differently, to millions of people based on where they live. Eg., a worker is far more protected from discrimination in California and New York than in Dallas or Atlanta. Yes, we win in the places I most care about. I can live with the “Circuit Splits” as the new dominant law of the land. See, https://en.m.wikipedia.org/wiki/Circuit_split.

Goodbye establishment. Hello Messrs. Trump and Sanders.