Conservative attorney argues for filling Scalia vacancy with Scalia zombie

President Obama and Congressional Republicans are hurtling toward a constitutional impasse over replacing the late Supreme Court justice and Twitter egg Antonin Scalia, and Arizona attorney Kory Langhofer has a solution:

Rather than fighting over which living jurist should replace Scalia, we could simply let Scalia vote from the grave. At least in the short term:

As Langhofer argued, “There’s no Ouija board required to figure out how Justice Scalia would vote on these things, he’s already voted…We know exactly what he thought. And it’s not unprincipled to say we should give affect to that.”

The argument is simple: It’s no secret that Justice Scalia was a raging conservative, so it wouldn’t be that big of a deal if we gave the conservative side of the Supreme Court an extra vote for Scalia’s ghost in cases that he’s already heard.

Antonin Scalia, via Wikimedia Commons

Antonin Scalia, via Wikimedia Commons

This argument does require Langhofer to concede that judicial review in the modern era is often little more than a formality, but that doesn’t require much imagination, either. Being partisan appointees in a hyper-partisan era, we know how at least seven or eight of the nine Supreme Court justices are going to vote in cases with high-profile political implications long before such cases are argued. Scalia was one of those justices. Furthermore, as Langhofer pointed out, justices cast preliminary votes early on in the process, and they almost never change their minds. This being the case, we really do know exactly where Scalia was going to come down on issues currently before the court — the executive’s authority to regulate greenhouse gas emissions; the principle of one person, one vote; TRAP laws restricting abortion access; and so on.

However, that being said, come on. It apparently doesn’t go without saying that Scalia, a self-described textualist, would cite Article III of the Constitution, which states that Supreme Court justices “shall hold their offices during good behavior,” to point out that dead people don’t “behave” in any way — good or bad. In a hypothetical case of Scalia v. BRAAAAAAINS, no Ouija board is required to figure out that Scalia would write for the majority in a 9-0 ruling holding that Kory Langhofer is a fool, and that his argument is pure applesauce.

Or maybe not. Scalia’s brand of textualism was adopted out of convenience, and was often little more than a prop to justify conservative politics. Were he alive today, it’s entirely possible that he’d argue for letting politically-motivated zombies set legal precedents. We simply can’t be sure.

And that’s the point.

(h/t TalkingPointsMemo)


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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  • dcinsider

    Do you have any idea how many idiots and ntiwits have attended Ivy League schools? Graduating from Yale does not equate to Mensa membership. I have worked with many fine Ivy League grads, and not a small number of total buffoons boasting the same degree.

  • Republicans have proven time and time again that an Ivy League education only means that your daddy had more money and influence, than most people. You’d think that at some point those institutions are going to have to stand up for the quality of their education, by disavowing this kind of nonsense as not representative of what they teach.

  • Langhofer is a partisan lunatic who hates America’s Constitutional democratic-republic system of government.

    I mean, really, by this insane standard, given we could reasonably predict how Thurgood Marshall would have voted, let’s kick Clarence Thomas off the court. Chief Justice Roberts could replaced by an algorithm which selects former Chief Justice Rehnquist’s likely ruling instead. And hell — Alito’s rulings can be replaced by the still-living ones of Sandra Day O’Connor! (Souter can decide for himself whether he wants to supersede Sotomayor’s rulings. Same with Kagan vs Stevens.)

    I guess the truly astonishing part is this proposal is coming from a Yale Law-educated and presumably Bar-certified attorney. He should know better.

  • Sure, anyone with half a brain could predict how Scalia was going to rule on any given subject, but guess what, dead guys don’t get to make rulings; doing so would obliterate all legal precedent. They get replaced with living people, who may not always rule in the same manner. That’s been a standard of our judicial system since day one. Langhofer’s ideas are a sad joke, with very little grasp on reality. Last time he was in the news he was working for Mitt Romney, and expressing his dismay that some workers still get pensions.

  • Remember when C- nominated fucking Harriet Miers* to the Supreme court?

    * “In letters to then-Governor Bush dating from 1997, she wrote, ‘You are
    the best governor ever – deserving of great respect,’ called Bush
    ‘cool,’ and wrote that he and his wife, Laura, were ‘the greatest!'”

  • iamlegion

    Except for the part where publicly pre-deciding on a case or case topic is judicial misconduct and grounds for demanding recusal from a case or even impeachment from the bench. Not that Scalia shouldn’t have been recused or impeached long before he died anyway but still…

  • The_Fixer

    I find it amazing that this guy has a license to practice law. I fear for his clients.

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