The 2016 battle over a SC nominee is going to be as political as an actual issue of confirmation. Both the Repubs and the Dems are going to use the nomination politically as proof of how important it is their voters turn out, because the next president will pick the crucial swing vote. I don't see any circumstances in which the Senate Repubs would allow an Obama nominee to be seated, unless it was someone like Rick Santorum.

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My guest today is Mark Karlin, editor of BuzzFlash at TruthOut. Welcome back to OpEdNews, Mark.

JB: We spoke just a few weeks ago but there's plenty to talk about today. You wrote a piece called Scalia's Only "Originalism" Was in Cloaking Right Wing Extremism in Legal Jabberwocky [2.19.16]. You don't appear to be partaking in the current Scalia nostalgia wafting around our nation's capital. Why not?

MK: Supreme Court Justice Scalia wore a judicial cloak over his body when he was performing his official duties, and he wrapped himself at the same time in a cunningly crafted image of having a "brilliant" legal mind. Washington insiders and the mainstream media helped Scalia build his brand image of "originalism," which is a hokum right-wing manufactured concept propagated to justify extremist Supreme Court rulings.

As far as Scalia's personal ideology and beliefs - which he was quite frank and brash about stating when speaking publicly - he was a pre-Vatican Opus Dei Catholic and Koch Brothers style partisan Republican zealot. His legal opinions were based on his personal political and social outlooks, not the Constitution or legal precedent. In short, he was a guileful hypocrite.

Take his most infamous role in the theft of democracy: Bush v. Gore. Scalia accepted a filing from the 2000 Bush campaign to stop the Florida Supreme Court mandated recount in Florida that would have likely found Al Gore the winner of the state and the presidency. Then, Scalia issued a stay to halt the recount so the full Supreme Court could consider the Bush campaign's objections to the Florida recount court order.

In the end, as we all know, the 5-4 right-wing majority on the Supreme Court essentially nullified the votes of the majority of Americans (Gore won the national popular vote by more than 540,000 ballots cast) and installed George W. Bush in the White House.

Scalia shepherded the Bush coup through the Supreme Court. Beyond the issue of the theft of democracy, it was a betrayal of the "originalist" view that state's were responsible for overseeing voting as part of the state's rights credo of the Republican Party. Also, Scalia had on numerous occasions adopted the so-called originalist interpretation that voting issues were to be deferred to state legislatures and courts.

Furthermore, the majority five members of the Supreme Court ruled that the installation of Bush in the White House through the halt of the Florida recount was a one-time decision only and not a precedent. Say what?

The Bush anointment was pure Scalia, providing evidence that he was a partisan thug who wrapped himself in "originalist" jabberwocky while often violating the clear intent of the Constitution.

Basically, Scalia was sort of a Donald Trump in the disguise of being a former University of Chicago law professor who revered the Constitution, when he really didn't give a fig about it if it interfered with his personal ideology and worldview.

JB: I'd like to go back to something you said earlier. "he was a pre-Vatican Opus Dei Catholic and Koch Brothers style partisan Republican zealot." Many of us know who the Koch Brothers are but are not equally well-versed in Catholicism and could use a little help here.

MK: In December of 2013, I wrote a BuzzFlash at Truthout commentary, which addresses your question:

Antonin Scalia is rumored to belong to the secretive Catholic Opus Dei Society, which is said to number about 100,000 world wide. Its main tenets are that God is an authoritarian and, therefore, Opus Dei adherents support dictatorial societies; that women stand behind men in life; that mass should be in Latin; and that God created a natural order of life in which the rich are rich and the poor are poor -- and the divine order of inequality shouldn't be disrupted.

In fact Opus Dei, which is so covert that it won't even reveal its membership, has neither denied nor confirmed if Scalia belongs to the highly conservative theological church within a church.

Nevertheless, these and other beliefs of the renegade right wing Catholic cult are basic to Scalia's rulings on the Supreme Court.

Whether or not Scalia was actually a member of Opus Dei, he imposed his socially medieval religious perspectives on the nation using constitutional "originalism" as a cover.

The relatively progressive National Catholic Reporter, which is independent of the church, wrote an article on Scalia on February 15, which stated:

"There have been thousands of words written about Supreme Court Justice Antonin Scalia, who died on Feb. 13. Most describe his political and legal views, which were very conservative. But I have read very little about his religious beliefs. And they were easily as conservative as his legal views.

Scalia was a Roman Catholic, one of six on the Supreme Court. But Scalia was a very traditional Roman Catholic. He was not comfortable with the changes brought about by the Second Vatican Council. He was so traditional that, in fact, he searched out and attended a Tridentine Mass in Latin when he lived in Chicago, and later in Washington, D.C. Reportedly, he travelled to St. Catherine of Siena church in Great Falls, Va., to attend a Latin Mass -- a distance from Washington, D.C.

And of course, he was married with nine children. "Being a devout Catholic means you have children when God gives them to you," he told his biographer, Joan Biskupic. One of his sons, Paul, entered the priesthood."

Needless to say the Catholic Church in the United States - and Pope Francis as the leader of the international church - bypassed Scalia in many areas by light years. Scalia's religious paleolithic outlook particularly emerged in his scorn for LGBTQ rights, belittling of women's rights issues, and separation of church and state issues, among many others.

JB: Thanks; that was helpful. You've mentioned the legal constitutional theory of originalism. How prevalent is it among federal judges and legal scholars?

MK: Unfortunately, the legal theory of originalism is prevalent among many right wing judges, particularly Republican-appointed Federalist Society members of the bench. "Originalism" and its cousin, "strict constructionism," are the refuge of reactionary scoundrels who need to hide behind legal mumbo jumbo to assert white patriarchal values and legal opinions.

There is some minor bickering among a few originalists between whether originalists should base judicial decisions on the original intent of the framers of the Constitution, or on the contextual meaning "to a reasonable" person at the time of the Constitution's ratification in each of the founding states. Scalia leaned toward the latter in terms of this legal cult.

What is most important to remember, however, is not some Federalist Society cocktail party banter over minor differences of opinion about originalism. The heart of the matter is that the white males who created the Constitution sanctioned slavery, placed the ownership of property as a keystone of the new nation, saw no role for women or nonwhites in voting, and created the Constitution in the context of white male patriarchy. Furthermore, many of them, particularly adherents of James Madison, believed that democracy should be left to the elites.

In his new book, "What Kind of Creatures Are We," Noam Chomsky writes that "the main framer" of the Constitution - Madison - was worried about crafting a document that would preserve the oligarchy. Madison wrote in his notes about how to word the Constitution that the founders needed "to protect the minority of the opulent against the majority" and that "if elections were open to all classes of people, the property of landed proprietors would be insecure."

Despite subsequent amendments over the years that legally expanded voting rights, in theory, to all US citizens, Scalia used "originalist" mumbo jumbo not so much to maintain the integrity of the Constitution. His real interest was in trying to restore the racist, patriarchal, wealthy property and financial privileges of white males.

Scalia used originalism in that context: the thinking and elitist background of those who wrote it. In many ways, he wanted the US to return to an age of white male propertied-class dominance.

JB: Within minutes of the announcement of Scalia's death, Republicans piled on to block any chance of Obama's nominating a replacement. What are your thoughts or predictions about what lies ahead in that department in the last year of the current administration?

MK: I have two thoughts about what is behind the Republican Senate undermining the language of the Constitution, which clearly states that it is the president's responsibility to make an appointment to the Supreme Court (federal bench): Article II, Section 2: "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint"Judges of the Supreme Court."

There is no so-called "Thurmond rule" in the Constitution that prohibits the confirmation of a supreme court judge in the last year of the residency. I am hardly the first person to point out that Justice Kennedy was confirmed in the last year of the Reagan presidency by a vote of 97-0.

Republican Senate Majority Leader Mitch McConnell didn't wait for Scalia's body to get cold before announcing he would not even allow a hearing, let alone a vote, on an Obama nominee to the Supreme Court. This is contrary not only to precedent, but to the Constitution itself, as I previously noted. McConnell is betting that the Senate Republicans need to remain obstructionist in order to placate its Tea Party zealots, who turn out at the polls in strong numbers.

Secondly, the generally 5-4 right-wing Supreme Court has been possibly more important than Congress in determining legal policies that affect the nation. The Republicans have long understood the importance of the Supreme Court and federal bench as a means of, ironically, legislating from the bench. The Democrats have been relatively obsequious in the battle for federal judicial appointments, while the Republicans take no prisoners in opposing federal appointments.

That McConnell so inappropriately, in timing, announced that the Republican Senate majority would not even allow a judicial committee hearing for an Obama appointee is testament to how powerfully the narrow right-wing control of the Supreme Court has changed the country to favor the wealthy, to limit the power of non-whites and women (in general), and to further the interests of Republicans in winning elections, among other public policy tilts against progress.

The 5-4 on the Supreme Court, of which Scalia was a part, was more an extension of a Republican Congress than a separate branch of government. McConnell wants to keep it that way, and is hoping for a Republican to win the White House and be sworn in in 2016 - and for Republicans to maintain control of the Senate.

JB: Clearly, my wish list is a whole lot different than McConnell's. Anything you'd like to add before we wrap this up?

MK: Remember that the 2016 battle over a Supreme Court nominee is going to be as political as an actual issue of confirmation. Both the Republicans and the Democrats are going to use the nomination politically as proof of how important it is their voters turn out, because the next president will pick the crucial swing vote. I don't, myself, see any circumstances in which the Senate Republicans would allow an Obama nominee to be seated, unless it was someone like Rick Santorum.

JB: Yikes! What a concept. Thanks so much for talking with me again, Mark. It's always a pleasure.

***

My previous interviews with Mark:

Was Ike Twice the Socialist That Bernie Is? 1.24.2016

Perusing the News with Editor, Mark Karlin 9.7.2015

also worth a look:
Jeffrey Toobin Looking Back Feb. 29, 2016 issue of the New Yorker

Authors Website: http://www.opednews.com/author/author79.html

Authors Bio:

Joan Brunwasser is a co-founder of Citizens for Election Reform (CER) which since 2005 existed for the sole purpose of raising the public awareness of the critical need for election reform. Our goal: to restore fair, accurate, transparent, secure elections where votes are cast in private and counted in public. Because the problems with electronic (computerized) voting systems include a lack of transparency and the ability to accurately check and authenticate the vote cast, these systems can alter election results and therefore are simply antithetical to democratic principles and functioning.



Since the pivotal 2004 Presidential election, Joan has come to see the connection between a broken election system, a dysfunctional, corporate media and a total lack of campaign finance reform. This has led her to enlarge the parameters of her writing to include interviews with whistle-blowers and articulate others who give a view quite different from that presented by the mainstream media. She also turns the spotlight on activists and ordinary folks who are striving to make a difference, to clean up and improve their corner of the world. By focusing on these intrepid individuals, she gives hope and inspiration to those who might otherwise be turned off and alienated. She also interviews people in the arts in all their variations - authors, journalists, filmmakers, actors, playwrights, and artists. Why? The bottom line: without art and inspiration, we lose one of the best parts of ourselves. And we're all in this together. If Joan can keep even one of her fellow citizens going another day, she considers her job well done.


When Joan hit one million page views, OEN Managing Editor, Meryl Ann Butler interviewed her, turning interviewer briefly into interviewee. Read the interview here.

While the news is often quite depressing, Joan nevertheless strives to maintain her mantra: "Grab life now in an exuberant embrace!"


Joan has been Election Integrity Editor for OpEdNews since December, 2005. Her articles also appear at Huffington Post, RepublicMedia.TV and Scoop.co.nz.