“Scalia’s death could doom McDonnell and hurt Menendez”

Josh Gerstein for Politico:

Scalia was considered among the most receptive justices to McDonnell’s argument that his conviction on corruption charges improperly relied on the kind of favors that are commonplace on the American political scene.

“Scalia was one of the most concerned members of the court about criminalizing politics and the line between what’s allowed and what’s not allowed,” said Rick Hasen, a law professor he University of California at Irvine. “I think his voice would have been a very important one in the McDonnell case.”

If the court can’t muster five votes in Scalia’s absence to overturn McDonnell’s conviction, the appeals court ruling upholding his sentence is likely to kick in, and he could be sent to prison.

However, the exercise of counting votes could understate Scalia’s role in such a case, which seems like one where his passionate views had the potential to swing other justices. “He would have — or could have — attracted Justice [Elena] Kagan to his position. He could have attracted Justice [Stephen] Breyer. In this instance, Scalia’s absence is really to the detriment of the country,” Hasen said.

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