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Opinion: Supreme Court Justice Ted Cruz?

Good morning. I'm Paul Thornton, The Times' letters editor, and it is Saturday, Feb. 20. Here's a look back at the week in Opinion.


It's a sign of the times that a substantial portion of American voters and a major political party are fine with allowing a vacancy on the Supreme Court to go unfilled for perhaps a year. But columnist Jonah Goldberg has a solution that could break the deadlock and allow President Obama and the Senate to replace the late Justice Antonin Scalia: Nominate and confirm a conservative, possibly even (yes) Sen. Ted Cruz.

Goldberg acknowledges this won't happen:

Scalia was not only one of the more gifted writers and intellectuals to ever don the robe, he was also a founding father of the originalist counterrevolution and the elder statesman of the court's conservative wing.

So it is no wonder that conservatives should grow instantly queasy at the thought that Obama will replace him with yet another high priest of the cult of the "living Constitution."

Already, partisans are sharpening their spears for what could easily be the meanest and most-polarizing nomination battle in modern American history. It will get ugly, very ugly. Congress will grind to a halt. Interest groups will pour millions into the effort on both sides. Careers will be ruined. Public trust will plunge even deeper, if that's even possible.

Some commentators have already moved to DEFCON 1. Within 48 hours of the news that Senate Majority Leader Mitch McConnell would block any nominee Obama sent his way, New York Times editorial writer Brent Staples opined on Twitter, “In a nation built on slavery, white men propose denying the first black president his Constitutional right to name Supreme Court nominee.” Never mind that this would be Obama's third such appointment; Staples' tweet is but a drop in the river of poison to come.

Obama could prevent all this strife. He could say that he will leave this appointment up to his successor. Or he could appoint a conservative during the Senate recess (Sen. Ted Cruz, anyone?) who would serve only until the end of the following session. That would preserve the power balance on the court for the time being.

Such diplomacy would go a long way to reduce — or at least prevent — further polarization and meanness in our politics.

Chances Obama will go this route? Zero. Instead he'll pick a liberal whom he'll call a moderate and insist on an up-or-down vote.

And I don't blame him. If I were president, I would seize the opportunity to appoint a like-minded justice. So would pretty much any Republican or any other Democratic president. On the other hand, I don't fetishize bipartisanship and unity the way Obama does — if only rhetorically.

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Here's what an honest debate on replacing Scalia would look like. Jon Healey imagines a world in which Democrats and Republicans dispense with the spin and speak frankly about their intentions. Here's what McConnell, the Senate majority leader, would say: "We will be slow-rolling this one because we don't want to be accused of stonewalling even though we simply won't allow this nomination to reach the Senate floor." Obama: "I knew the Senate wouldn’t give my pick a vote because of the politics of the situation. So I cast about for someone who not only would make a fine justice, but also raise the electoral stakes." L.A. Times

"A dumb political move": Michael McGough scolds the president for passing on Scalia's funeral Mass today, noting that George W. Bush eulogized Chief Justice William H. Rehnquist at his funeral in 2005. Given their political differences, Obama shouldn't be expected to participate in Scalia's funeral, but attending it would send a badly needed message about nonpartisanship when it comes to the Supreme Court. L.A. Times

Scalia might be dead, but his originalism lives on. David B. Rivkin Jr. and Lee A. Casey say, "Scalia was a stout conservative who transformed American jurisprudence in 34 years on the bench." The Times editorial board reminds Republicans that it is Obama's constitutional duty to nominate — and the Senate's to consider and vote on — Scalia's successor. In a separate editorial, the board notices cracks in the Republican wall of obstruction. In an op-ed article, Akhil Amar and Vikram Amar find precedence for Obama in Ronald Reagan's end-of-term nomination of Anthony Kennedy to the Supreme Court.

Fight on, Apple. A court order forcing the company to develop software that would effectively allow the FBI to bypass the security features of San Bernardino shooter Syed Rizwan Farook's iPhone 5c would set a dangerous precedent if Apple were to comply, and the company is right to appeal the ruling, says a Times editorial. L.A. Times

Francis has said something about contraception you thought you'd never hear from a pope: It's OK to use birth control. (But only for women who fear they have been exposed to the Zika virus and whose babies might be stricken with severe birth defects as a result.) From the moment this pope was elected in 2013 and refused to ride in the papal limousine, Francis has indicated that he would do things differently from his predecessors. His apparent flexibility on contraception is a major example, writes Carla Hall. L.A. Times

When a Rockefeller gives up on Big Oil, it's a big deal. Writing on the op-ed page, Neva Rockefeller Goodwin — great-granddaughter of John D. Rockefeller Sr., who created the Standard Oil Co. — writes that she dumped her inherited Exxon Mobil shares, which were liquidated and the proceeds donated to fight global warming. She explains: "I lost faith in Exxon Mobil's future value. A prime reason is that Exxon's valuation is based largely on the immense untapped reserves of oil and gas it owns. And yet if future generations are to inherit a livable world, most of those reserves must stay in the ground." L.A. Times

Let me know what you think about this newsletter. Email paul.thornton@latimes.com.

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