It's President's day and everyone is talking about a dead judge.

I really wanted to talk about race and misogyny in the campaign and the corruption of the National Democratic party but the death of Scalia has completely changed the whole ball game.

On Saturday we heard that Justice Antonin Scalia had died in his sleep while on a quail hunting trip in Texas. He was really into hunting. We still don't really know why he died - we are just told natural causes and that no autopsy is necessary. I would not be surprised if he had been ill, as he is said to have been this brilliant mind, but in the last story we heard about him he didn't seem so sharp.

About a month ago, liberals were all shocked about Scalia's line of questioning in oral arguments in a case about affirmative action in university admissions, even to the extent of publishing transcript of his words. Normally the process of the Supreme Court, while public, is not published because what is important is the judges' written decision which was not yet available. Scalia's questioning seemed so racist, suggesting that African Americans were not up to attending prestigious universities, but were actually based on some research submitted to the court which was sympathetic to affirmative action but showing that it often didn't work in terms of putting minority groups into positions of power, and that the kind of college education needed to be considered - but prestige was not part of story. Scalia mangled the line of argument in a way that makes you wonder what happened to this sharp mind that we are all hearing about in the obituaries.

This already seemed like a seismically significant election, a paradigm shifting, era defining election but Scalia's death ups the stakes considerably, now that control of all three branches of government are up for grabs. Its not just math(s) - Scalia was one of five conservative judges sharing the court with four liberal judges, but he was also a leader, often the author of conservative Originalist decisions or dissents.

Scalia was famous for his view that you have to read the original constitution textually rather than constructively. He refused to see it as a living set of principles that could develop with our society and adapt to new social situations and new attitudes and technology. So because the founders in 1791 had no intention of legalising same-sex marriage there was no way a judge could find that in the constitution. It is just a text not a set of universal values. Except when it came to gun control because surely no one in 1791 really intended citizens to have a right to own a semi-automatic machine gun?

So now we need a new judge and whether Obama gets to appoint someone or we have to wait for the next president, its likely to be someone more liberal than Scalia. Even if the Republican's win the election, its difficult to imagine that they can find a judge as conservative as Scalia!

So now we have a chance to overturn Citizen's United, the court case that gives corporations citizenship in political donations, union rights can be protected and even perhaps the majority can democratically turn around the obscene protection of gun sales. Many of the cases coming up will be pitting the religious liberty of businesses against women's ownership of their bodies and marriage equality so the ninth judge will be the ultimate referee in the culture wars.

As you can imagine they are already fighting over who gets to pick the new judge. The Senate Republican leader Mitch McConnell almost immediately said they wouldn't confirm anyone that Obama put forward, and Obama says he's going to make an appointment anyway. The Republicans have some theory that there is a precedent not to appoint a supreme court judge during an election, a precedent that doesn't seem to be born out by history and the Democrats are all of course becoming Originalists and reading the constitution textually and not finding any lame ducks in the text.

Its telling that the Republicans want to stall. They must actually think that they are going to win! If as the polls suggest the Democrats win the presidency and pull in the senate on his or her coattails, they can appoint a seriously liberal, nay even a progressive, judge. Even Obama himself! Who actually isn't that progressive when it comes to constitutional law but certainly is a liberal. Whereas if Obama appoints now he has to choose a moderate who can be confirmed by a Republican senate. So their stalling is very very interesting. Or ridiculously optimistic, I'm not sure which.

But its hard to see how they can win this way. They are already perceived as the 'Do nothing Congress' and despised for it, and now they are going to leave a Supreme Court vacancy for 11 months. As for the debate on Saturday evening - the candidates looked like five year old boys yelling 'liar' at each other and 'my dad's bigger than your dad' and making up precedents that didn't exist. It was amazing drama, must be good for TV ratings, but even the republican pundits on CNN were shaking their heads and saying this was not a good look for the party.  Pitted in contrast with all the tributes to Scalia from people who disagreed with him on the law but got along with him and counted his as a friend.

Maybe we can get back to Hillary and Bernie desperately trying to convince South Carolina that they are the proper successor to the first African American president. This upcoming primary will be a big test for Bernie who we are told does not have support among black voters, and Clinton is trying to present this as his being a 'single issue candidate' (the single issue being campaign finance and the rigged economy) while she looks at the wider context of social inequality including race and gender. In reality she is stuck n the old Democratic politics of the 90's putting together a rainbow coalition of disenfranchised minorities as if their oppression was only contingently related. I have to admit that Clinton did well in the last debate. Bernie chose FDR and Churchill as his foreign policy role models (cringe) and Clinton chose Mandela and Obama, simultaneously presenting herself as 21st century and woke. But the trouble is how will her uncritical adulation of Obama play in the Nevada caucus where Latino voters might quite rightly be irritated by Obama's unprecedented number of deportations. And they could have fixed that if his Executive Orders weren't stuck in the Supreme Court.
Other news: I saw my first bumper sticker yesterday, showing that the election has finally arrived in Los Angles and it was for Bernie (or that only Bernie Anglenos are willing to risk their car's aesthetic with a bumper sticker!)