The Death of Antonin Scalia — Evan Osnos in The New Yorker looks at what lies ahead now that he’s gone.
The abrupt death of Supreme Court Justice Antonin Scalia—the fiery, funny, polarizing face of the Court’s modern conservative turn—ended a chapter in legal history and opened a political battle of a kind that America has not seen in decades. The bitter divide of this Presidential election season—over visions for the economy, national security, and immigration—has widened to include the ideological composition of the nation’s highest court.
At seventy-nine, Scalia was the Court’s longest-serving Justice, a father of nine, and an outsized personality who thrilled conservatives and infuriated liberals like nobody else in Washington. Though he maintained close friendships with some of his combatants, including fellow Justice Ruth Bader Ginsburg, and always hired a “token liberal” among his clerks, he openly relished the political implications of the Court’s affairs. Ever since he was nominated by President Ronald Reagan, in 1986, he dedicated himself to combating the notion of a “living” Constitution that evolves in step with the nation. The very announcement of Scalia’s death was accompanied by a political declaration. In the first official notice, Texas Governor Greg Abbott said, “We mourn his passing, and we pray that his successor on the Supreme Court will take his place as a champion for the written Constitution and the rule of law.”
The 2016 election has become a contest not only to determine control of the White House and the Congress but also to shape the future of the Supreme Court. The next President was expected to make multiple appointments to the court. (On Inauguration Day, Ginsburg will be nearly eighty-four, Anthony Kennedy will be over eighty, and Stephen Breyer will be seventy-eight.) With Scalia’s death, the partisan composition of the Court is now already up in the air. In a hastily arranged address on Saturday night, President Obama said he planned to name a nominee, over the protests of Republicans who could seek to prevent the Senate from voting on it. “I plan to fulfill my constitutional responsibility to nominate a successor, in due time. There will be plenty of time for me to do so, and for the Senate to carry out its responsibility for a timely vote,” he said. The issues at stake, he added, “are bigger than any one party. They are about the institution to which Justice Scalia dedicated his life.”
The outcome of the process has the potential to reshape American law on abortion, affirmative action, voting rights, energy, campaign finance, and many other issues. The political effects on the Presidential race cut in multiple directions: Will the suddenly inescapable vision of, say, a Cruz Presidency and a Cruz-chosen nominee bring more Democrats to the polls? And to which Democrat does that benefit accrue? Will the risk of a Sanders Court inspire evangelical voters to consolidate behind a Republican choice?
As news of Scalia’s death spread, hours before a Republican debate, the call for a moratorium on political strategizing around the news, in order to honor his achievements, was brief. Senate Majority Leader Mitch McConnell issued a statement that, in effect, called on President Obama to refrain from naming a replacement and allow the Court to operate with eight Justices. “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President,” McConnell said.
Ted Cruz, the Texas senator who was a clerk for former Chief Justice William H. Rehnquist, agreed, marking Scalia’s passing in a tweet: “We owe it to him, and the Nation, for the Senate to ensure that the next President names his replacement.” Senate Minority Leader Harry Reid called on Obama to nominate a replacement immediately, saying, “The Senate has a responsibility to fill vacancies as soon as possible.” Donald Trump, the Republican front-runner, called for the Senate to “delay, delay, delay” if President Obama attempts to name a successor.
Hillary Clinton said that Republicans who want the seat to remain vacant until the next President is in office “dishonor our Constitution” for partisan reasons. Bernie Sanders, who defeated Clinton last week in the New Hampshire primary in part by presenting himself as a different kind of politician, avoided any mention of the political implications: “While I differed with Justice Scalia’s views and jurisprudence, he was a brilliant, colorful and outspoken member of the Supreme Court. My thoughts and prayers are with his family and his colleagues on the court who mourn his passing.”
When Obama does nominate a successor to Scalia, that could set the stage for a Republican filibuster in the Senate. If there is a filibuster of a nominee, it will be the first time that has occurred since 1968, when President Lyndon Johnson, blocked by Senate Republicans and Southern Democrats, reluctantly withdrew the nomination of his confidant Abe Fortas, whom he had appointed to the Supreme Court three years earlier, to succeed Earl Warren as Chief Justice.
That drama began in June of that year when Warren, a Republican known for his liberal decisions, informed Johnson that he intended to retire. Just months before Election Day, Johnson moved swiftly to nominate Fortas as a successor to the Chief Justice. But it emerged that Fortas had attended White House staff meetings, briefed Johnson on Court deliberations, and pressured senators to limit their opposition to the Vietnam War. Moreover, Fortas had been paid outside his salary to speak to students at American University. The Illinois Republican Everett Dirksen and others withdrew their support—sparking the first and, so far, the only Senate filibuster over a Supreme Court nomination. (Scholars and partisan opponents have debated, ever since, whether it was technically a filibuster or another form of parliamentary procedure, though Laura Kalman, a professor of history at the University of California at Santa Barbara, has said that “Abe Fortas and L.B.J. are spinning in their graves at the notion there was no filibuster.”)
While the White House weighs potential nominees, the courts and Presidential contenders face a range of puzzling implications. What will happen if the Supreme Court reaches a tie in any of the cases that are currently before the Justices? (The lower court ruling would stand but would not set a legal precedent.) Is there any liberal nominee who stands a chance of winning confirmation in a Republican-controlled Senate? (Early bets landed on Federal Appeals Court Judge Sri Srinivasan, an Indian-American jurist who has worked in both Democratic and Republican Administrations.) In his nomination to the U.S. Court of Appeals for the D.C. Circuit, Srinivasan won, in 2013, that rare achievement for a Democrat in today’s Washington—unanimous confirmation, with praise from Republicans.
It’s Not Just Flint — David Rosner and Gerald Markowitz report that a lot of cities and towns have bad water.
“I know if I was a parent up there, I would be beside myself if my kids’ health could be at risk,” said President Obama on a recent trip to Michigan. “Up there” was Flint, a rusting industrial city in the grip of a “water crisis” brought on by a government austerity scheme. To save a couple of million dollars, that city switched its source of water from Lake Huron to the Flint River, a long-time industrial dumping ground for the toxic industries that had once made their home along its banks. Now, the city is enveloped in a public health emergency, with elevated levels of lead in its water supply and in the blood of its children.
The price tag for replacing the lead pipes that contaminated its drinking water, thanks to the corrosive toxins found in the Flint River, is now estimated at up to $1.5 billion. No one knows where that money will come from or when it will arrive. In the meantime, the cost to the children of Flint has been and will be incalculable. As little as a few specks of lead in the water children drink or in flakes of paint that come off the walls of old houses and are ingested can change the course of a life. The amount of lead dust that covers a thumbnail is enough to send a child into a coma or into convulsions leading to death. It takes less than a tenth of that amount to cause IQ loss, hearing loss, or behavioral problems like attention deficit hyperactivity disorder and dyslexia. The Centers for Disease Control (CDC), the government agency responsible for tracking and protecting the nation’s health, says simply, “No safe blood lead level in children has been identified.”
President Obama would have good reason to worry if his kids lived in Flint. But the city’s children are hardly the only ones threatened by this public health crisis. There’s a lead crisis for children in Baltimore, Maryland,Herculaneum, Missouri, Sebring, Ohio, and even the nation’s capital, Washington, D.C., and that’s just to begin a list. State reports suggest, for instance, that “18 cities in Pennsylvania and 11 in New Jersey may have an even higher share of children with dangerously elevated levels of lead than does Flint.” Today, scientists agree that there is no safe level of lead for children and at least half of American children have some of this neurotoxin in their blood. The CDC is especially concerned about the more than 500,000 American children who have substantial amounts of lead in their bodies. Over the past century, an untold number have had their IQs reduced, their school performances limited, their behaviors altered, and their neurological development undermined. From coast to coast, from the Sun Belt to the Rust Belt, children have been and continue to be imperiled by a century of industrial production, commercial gluttony, and abandonment by the local, state, and federal governments that should have protected them. Unlike in Flint, the “crisis” seldom comes to public attention.
Hollywood Comes to Cuba — Victoria Burnett reports for the New York Times on lights, camera, and action in newly-reopened Havana.
It was a novel scene — an American actor filming an American TV show on a Cuban street — and one that, until last month, would have been illegal under the United States’s economic embargo.
But regulations published by the Treasury Department on Jan. 26 now allow Americans to shoot scripted movies and shows in Cuba for the first time in half a century. The rules opened the door to American projects — which could include scenes for the next “Fast & Furious” movie and an Ethan Hawke film — and to collaboration between Hollywood and the island’s underfunded film sector.
“The world just got bigger because Cuba has become accessible,” said Matthew Carnahan, creator of “House of Lies.”
As a location, Cuba was inspiring, if challenging, he said, but added, “I’m dreaming up reasons to go back.”
A stream of American filmmakers needing to hire Cuban equipment and crews would be a boon to the country’s independent production industry, which sprouted in the late 1990s as digital technology made filmmaking more accessible and state money for movies ran dry.
Some Cuban filmmakers worry, though, that their government will open its arms to Hollywood while continuing to give its own filmmakers the cold shoulder. Independent production companies in Cuba operate in a legal limbo, getting little or no funding from the state and often struggling to get their movies past the censors.
“It’s great that people from Hollywood want to come to Cuba, but it’s caught us at a bad moment,” said Carlos Lechuga, a Cuban director. “We have stories to tell, and right now we don’t feel that we can do that.”
The thaw between the United States and Cuba in 2014 prompted a swell of inquiries from Americans eager to shoot there. The next “Fast & Furious” installment may be partly shot in Cuba, a spokeswoman for its studio, Universal Pictures, said, adding that the company “is currently seeking approval from the United States and Cuban governments.”
And Cuban filmmakers have been fielding inquiries. “There isn’t a day that I am not meeting with a potential client from the United States,” said Oscar Ernesto Ortega, 29, whose El Central Producciones produces music videos, commercials and documentaries for clients like the Puerto Rican band Calle 13 and Red Bull Media House from offices in Miami and Havana.
Boris Crespo, founder of BIC Producciones, in Havana, said he had been working flat out for the past year, providing production services for Conan O’Brien’s four-day visit to Cuba last year and the History channel’s “Top Gear,” which filmed an episode in Cuba in January.
Mr. Carnahan, who worked with Island Film, another Havana production company, said he was struck by the “passionate” crew and the quality of Cuban actors. (The “House of Lies” shoot was planned before the new regulations went into effect, so producers had to get a license from the Treasury Department.)
What Cuba is missing, he said, are decent cellphone connections, fast Internet access and even “basic things — hammers — things that we don’t give much thought to.”
And the process of procuring shooting permits was extremely slow, he said.
Mr. Crespo said that the state-funded Cuban Institute of Cinematic Art and Industry “drowns in its own bureaucracy.”
The Strip from The New York Times (Doonesbury’s site was off-line at the time of publication.)