Saturday, February 13th, U.S. Supreme Court Associate Justice Antonin Gregory Scalia, "Nino" to his friends, died at the age of 79, at home, in his sleep. The Supreme Court Justice served since his appointment by Ronald Reagan September 26th 1986. He was born in Trenton NJ, March 11th 1936. He is survived by his wife Maureen McCarthy Scalia, and their 9 children. Antonin Scalia was one of the Roman Catholics on the bench and also a Republican. He was cantankerous and had some lively opinions and reviled remarks throughout his career. I enjoyed reading some of his dissenting opinions, mostly for his use of language rather than his salient reasoning, which he did have on numerous occasions.

His untimely demise has left the country in a tizzy instead of mourning. See, this leaves a 9 person team short one. This also leaves the Supreme Court a bit too even for most people's taste. Not only can you stalemate 4 to 4, but you are more likely to do so since it is now more or less even politically as well. A new justice needs to be appointed and the sooner the better, unless you are the Republican party.

Throughout President Obama's tenure in office, the GOP (Grand Old Party) has tried to obstruct him at every turn. I do not say that lightly, it is obvious and has even been admitted to by party leaders. Now they want to prevent him from nominating a Supreme Court Justice. They have gone so far as to lie about it being a tradition for a lame duck president to not nominate. It's just flatly wrong.

Appointments are rare, since it is a lifetime position, if desired. To have a position vacant during the last year of a presidents career is even more rare, but not unheard of.

In 1912, Taft nominated Mahlon Pitney. Woodrow Wilson nominated Louis Brandeis and John Clarke in 1916 (both confirmed by the way). Herbert Hoover nominated Benjamin Cardozo in 1932. FDR nominated Frank Murphy in 1940. LBJ nominated Homer Thornberry and Abe Fortas in 1968, however neither was confirmed. Richard Nixon nominated Lewis Powell and William Rehnquist (whom Scalia succeeded) in 1971. Gerald Ford nominated John Paul Stevens in 1975. Ronald Reagan, the poster pin up for the GOP, nominated Anthony Kennedy in 1988.

The constitution is a bit light on requirements to fill a Supreme Court Justice seat. "The President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court." It certainly doesn't say anything about election years or the last year of a presidency or any number of other false charges being leveled. It's the Presidents job to select a nominee, and then it is the Senate that confirms them.

Obama had this to say today on the issue:
I understand the stakes. I understand the pressure that Republican senators are undoubtedly under. I mean, the fact of the matter is that what the issue here is that the court is now divided on many issues this would be a deciding vote. And there are a lot of Republican senators who are going to be under a lot of pressure from various special interests and various constituencies and many of their voters to not let any nominee go through. No matter who I nominate. But that's not how the system is supposed to work. That's not how our democracy is supposed to work.

So... Let's get on with it. Our courts are backed up enough. All I know is that this has become another facet of the most exciting election year I have ever heard of. As to Nino, may he be justly rewarded in whatever finds him after this life, for good or ill, is not up to me.

Topic Tuesday #102 2014/07/01 "Slippery Slope"

Like you, I am really tired of talking about this. But alas... I need to at least mention it here or I would be sorely remiss in my task of talking about topical things, for Topic Tuesday... Yesterday the Supreme Court ruled on the Burwell v. Hobby Lobby, Inc. case. I touched on it in Topic Tuesday 94, should you want to revisit, prior art. As you likely know by now (as the ruling has become as virulent as wildfire in California) the ruling was 5 to 4 in favor of Hobby Lobby and Conestoga Wood Products. I'll sum up the case. These companies, being mandated to provide women birth control as part of the Affordable Health Care Act, decided to sue as the birth control was against the corporations religious freedom as stated in the Restoration of Religious Freedom Act of 1993. The jist of this, is best served by Justice Ruth Bader Ginsburg. She wrote a 35 page dissent (starts on page 60 of the verdict) of the verdict and was echoed by Justice Sonia Sotomayor and almost entirely by Justices Elena Kagan and Stephen Breyer.

"In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs."
"[T]he Court holds that Congress, in the Religious Freedom Restoration Act of 1993... dictated the extraordinary religion-based exemptions today’s decision endorses. In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent."
"The court, I fear, has ventured into a minefield."
"Approving some religious claims while deeming others unworthy of accommodation could be 'perceived as favoring one religion over another,' the very 'risk the [Constitution's] Establishment Clause was designed to preclude."
"The exemption sought by Hobby Lobby and Conestoga would…deny legions of women who do not hold their employers' beliefs access to contraceptive coverage"
"Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community."

...and to the detractors that say, "just pay for it yourself."

"Any decision to use contraceptives made by a woman covered under Hobby Lobby's or Conestoga's plan will not be propelled by the Government, it will be the woman's autonomous choice, informed by the physician she consults."
"It bears note in this regard that the cost of an IUD is nearly equivalent to a month's full-time pay for workers earning the minimum wage."

... And the logical conclusion that is likely to occur...

"Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah's Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today's decision."

I think she said everything that needs to be said, and is obviously more qualified than I to speak to the matter. I would like to stab at the heart of the entire thing, from my perspective.

This is about 2 main points. 1. Money. The companies did not want to be forced to pay for ACA at all, and certainly not a good or service their founders saw as (and here is point 2) Abortion. I have written many time elsewhere on the matter of abortion. I will touch lightly on it here in the context of this example. The only reason they have an issue with it is because of their religion, which of course brings up the religious freedom issue. But... this tramples on the religious freedoms of their employees... the ones with actual human rights, opposed to some made up entity rights that corporations are issued to protect their shareholders from the acts of the company. This stinks. Everyone knows it stinks. Justices Samuel Alito, Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence Thomas, and Justice Anthony Kennedy are all Roman Catholics; an organization with a long history of opposing birth control. Justice Sonia Sotomayor, is also a Catholic, but also has the distinction of being a woman, which in this instance may have been a deciding factor in her decision. If you were curious, the rest of the Justices: Ginesburg, Breyer, and Kagan - are all Jewish, in addition to being more liberally minded and progressive. I'm not saying that this background is the reason for the rulings, but it is foolish to think it does not inform their opinions on such matters. Scalia is rather infamous for his belief in literal demons and all that entails, as referenced by his statement, "Hey, c’mon, that’s standard Catholic doctrine! Every Catholic believes that." . Here; I'll share it with you.

Jennifer Senior -You believe in heaven and hell?
Antonin Scalia - Oh, of course I do. Don’t you believe in heaven and hell?

Jennifer Senior - No.

Antonin Scalia - Oh, my.

Jennifer Senior - Does that mean I’m not going?
Antonin Scalia - [Laughing.] Unfortunately not!

Jennifer Senior - Wait, to heaven or hell?
Antonin Scalia - It doesn't mean you’re not going to hell, just because you don’t believe in it. That’s Catholic doctrine! Everyone is going one place or the other.

Jennifer Senior - But you don’t have to be a Catholic to get into heaven? Or believe in it?
Antonin Scalia - Of course not!

Jennifer Senior - Oh. So you don’t know where I’m going. Thank God.
Antonin Scalia - I don’t know where you’re going. I don’t even know whether Judas Iscariot is in hell. I mean, that’s what the pope meant when he said, “Who am I to judge?” He may have recanted and had severe penance just before he died. Who knows?

Jennifer Senior - Can we talk about your drafting process—
Antonin Scalia - [Leans in, stage-whispers.] I even believe in the Devil.

Jennifer Senior - You do?
Antonin Scalia - Of course! Yeah, he’s a real person. Hey, c’mon, that’s standard Catholic doctrine! Every Catholic believes that.

Jennifer Senior - Every Catholic believes this? There’s a wide variety of Catholics out there …
Antonin Scalia - If you are faithful to Catholic dogma, that is certainly a large part of it.

Jennifer Senior - Have you seen evidence of the Devil lately?
Antonin Scalia - You know, it is curious. In the Gospels, the Devil is doing all sorts of things. He’s making pigs run off cliffs, he’s possessing people and whatnot. And that doesn't happen very much anymore.

Jennifer Senior - No.
Antonin Scalia - It’s because he’s smart.

Jennifer Senior - So what’s he doing now?
Antonin Scalia - What he’s doing now is getting people not to believe in him or in God. He’s much more successful that way.

Jennifer Senior - That has really painful implications for atheists. Are you sure that’s the Devil’s work?
Antonin Scalia - I didn't say atheists are the Devil’s work.

Jennifer Senior - Well, you’re saying the Devil is persuading people to not believe in God. Couldn’t there be other reasons to not believe?
Antonin Scalia - Well, there certainly can be other reasons. But it certainly favors the Devil’s desires. I mean, c’mon, that’s the explanation for why there’s not demonic possession all over the place. That always puzzled me. What happened to the Devil, you know? He used to be all over the place. He used to be all over the New Testament.

Jennifer Senior - Right.
Antonin Scalia - What happened to him?

Jennifer Senior - He just got wilier.
Antonin Scalia - He got wilier.

Jennifer Senior - Isn't it terribly frightening to believe in the Devil?
Antonin Scalia - You’re looking at me as though I’m weird. My God! Are you so out of touch with most of America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil! It’s in the Gospels! You travel in circles that are so, so removed from mainstream America that you are appalled that anybody would believe in the Devil! Most of mankind has believed in the Devil, for all of history. Many more intelligent people than you or me have believed in the Devil.

Jennifer Senior - I hope you weren't sensing contempt from me. It wasn't your belief that surprised me so much as how boldly you expressed it.
Antonin Scalia - I was offended by that. I really was.

Now... I don't want to bore you with legalese, but there is something noteworthy that should be brought to light in this case. In the Affordable Care Act, it indicated a very specific type of medical service, especially “with respect to infants, children, and adolescents." It's "evidence-based". "Evidence-informed." Here, read the section for yourself.

U. S. C. §300gg–13(a)(1)–(3) (group health plans must provide coverage, without cost sharing, for (1) certain “evidence-based items or services” recommended by the U. S. Preventive Services Task Force; (2) immunizations recommended by an advisory committee of the Centers for Disease Control and Prevention; and (3) “with respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in the comprehensive guidelines supported by the Health Resources and Services Administration”).

I wish everything in this case could be evidence-informed. We haven't heard the last of this one. See you in the funny papers.