SC Justice Scalia Has Died

[Loren Pechtel]

View attachment 5720

Remove him from office, he's obviously medically unsuitable due to CRS.

 

[Loren Pechtel]

Comically blatant hypocrisy aside, leave it to a conservative to use the stupid argument that "tradition/standard practice/what we've always done" is good reasoning for not doing something conservatives don't like (at the moment).

There are comical aspects, mostly in reminding us of the paper on on how "politics makes you stupid". No doubt that not ten seconds after reports of Scalia's death there were also also Lonesome Rhodes hoot'en and holler'in on how the Constitution and the future of the Republic depends on a nomination and a vote in the Senate... ASAP!

The grandiloquent pretensions, the moral posturing alluding to some mythic tradition, here-to-fore unknown to the mass of humanity, is inevitable, but it need not be stupid. Grassley reminded us of an 80 year tradition that, apparently, was only broken once (Kennedy), but it has little bearing on the Senate prerogative to deny its consent (through any legal means), which is unquestioned.

So yes, it is nice to know that this has been a tradition of inaction, just as it would be nice to know if the tradition had been to do the opposite. But to engage on this basis is making a mountain over a molehill; we know the real motives of the actors so we don't have to pretend it to be otherwise.

In other words, I find Grassly's comment to be true but superfluous and 'the Kennedy exception' to be irrelevant.

Exception??

http://www.vox.com/2016/2/13/10987692/14-supreme-court-confirmations

14. And 3 more after the election.

That's 15% of all justices. Pure chance would be 25%.

 

[maxparrish]

Maxie:
In other words, I find Grassly's comment to be true but superfluous and 'the Kennedy exception' to be irrelevant.

Well, yeah, the exception would be irrelevant. We don't know if it's an exception because no other Justice seat became available in the last year of a President's term, or if it was an exception because God told Reagan to ignore the tradition.

I'm wondering what evidence there is that this IS a tradition? How many times has a SCOTUS seat been left vacant for a (or most of a) fucking year because the President didn't want to break the 'no lame duck nominations' tradition?

I called it 'an exception' because I accepted the partisan claim of Kennedy being 'the same'. My bad. It turns out Kennedy is not an exception because his nomination to a vacancy was not analogous to that of Scalia. The vacancy and nominiation was for the prior year to the election, the third nomination since the summer of 1987 as the Senate rejected (or demanded the withdrawal) of Bork and then Ginsburg.

In fact, according to Jonathan H. Adler's research:

For what it’s worth, the last time a justice was nominated to the Court in a presidential election year and confirmed by a Senate controlled by the opposing party was 1888, when President Grover Cleveland nominated Justice Melville Fuller to be Chief Justice. Fuller was nominated April 30 and confirmed on July 20 by a vote of 41-20. President Cleveland was a Democrat, and the Senate had a slim 39-37 Republican majority.

There have been several interesting situations in the more past that are instructive, but all seem to point (increasingly in modern times) to the direction that such nominations are DOA when the other party controls the Senate.

https://www.washingtonpost.com/news.../13/on-election-year-supreme-court-vacancies/

 

[Nice Squirrel]

In 1796 Hylton v. United States. SCOTUS ruled the carriage tax constitutional. It was cited in 2012 as precedence for the Obamacare Mandate.

Do the math. 1860 minus 60 years. The point remains, the idea of SC 'finding' Congressional laws unconstitutional was unheard of it that period...and almost unheard of prior to that.

1796-60=1736. You were implying that until the Civil War the Supreme court never ruled on constitutionality. I routinely did. It ruled state laws unconstitutional like in Worcester v. Georgia (1832). It ruled on the constitutionality of Marbury v. Madison (1803), McCulloch v. Maryland (1819) , and Dred Scott v. Sandford (1857). All with major constitutional consequences. So rather than pretending there was some "Golden Era" where refused to SCOTUS rule on the constitutionality of laws and or defining constitutional decisions as only those laws passed by the Federal Congress during certain year, you need to face the facts that the Supreme Court did decide on constitutional questions.

It is also important to note that the Supreme Court does not create cases to hear, but rather needs to wait until someone challenges a law. Most laws challenged are state and local laws, such as in Lawrence v. Texas, but because of the Federal Government's greater involvement in social issues since FDR, more Federal laws are challenged,

 

[untermensche]

I called it 'an exception' because I accepted the partisan claim of Kennedy being 'the same'. My bad. It turns out Kennedy is not an exception because his nomination to a vacancy was not analogous to that of Scalia. The vacancy and nominiation was for the prior year to the election, the third nomination since the summer of 1987 as the Senate rejected (or demanded the withdrawal) of Bork and then Ginsburg.

No no.

Putting up failed nominees is entirely Reagan's problem.

Kennedy was a nominee in Reagan's last year.

You know the magical verboten year.

According to your principles he should not even have been considered.

But of course I jest when I say you have principles.

 

[maxparrish]

Do the math. 1860 minus 60 years. The point remains, the idea of SC 'finding' Congressional laws unconstitutional was unheard of it that period...and almost unheard of prior to that.

1796-60=1736. You were implying that until the Civil War the Supreme court never ruled on constitutionality. I routinely did. It ruled state laws unconstitutional like in Worcester v. Georgia (1832). It ruled on the constitutionality of Marbury v. Madison (1803), McCulloch v. Maryland (1819) , and Dred Scott v. Sandford (1857). All with major constitutional consequences. So rather than pretending there was some "Golden Era" where refused to SCOTUS rule on the constitutionality of laws and or defining constitutional decisions as only those laws passed by the Federal Congress during certain year, you need to face the facts that the Supreme Court did decide on constitutional questions.

It is also important to note that the Supreme Court does not create cases to hear, but rather needs to wait until someone challenges a law. Most laws challenged are state and local laws, such as in Lawrence v. Texas, but because of the Federal Government's greater involvement in social issues since FDR, more Federal laws are challenged,

Wrong. I am implying the 60 years prior to the civil war, and certainty since Marbury v. Madison at most, one time, it ruled on the constitutionality of a FEDERAL law.

 

[Nice Squirrel]

1796-60=1736. You were implying that until the Civil War the Supreme court never ruled on constitutionality. I routinely did. It ruled state laws unconstitutional like in Worcester v. Georgia (1832). It ruled on the constitutionality of Marbury v. Madison (1803), McCulloch v. Maryland (1819) , and Dred Scott v. Sandford (1857). All with major constitutional consequences. So rather than pretending there was some "Golden Era" where refused to SCOTUS rule on the constitutionality of laws and or defining constitutional decisions as only those laws passed by the Federal Congress during certain year, you need to face the facts that the Supreme Court did decide on constitutional questions.

It is also important to note that the Supreme Court does not create cases to hear, but rather needs to wait until someone challenges a law. Most laws challenged are state and local laws, such as in Lawrence v. Texas, but because of the Federal Government's greater involvement in social issues since FDR, more Federal laws are challenged,

Wrong. I am implying the 60 years prior to the civil war, and certainty since Marbury v. Madison at most, one time, it ruled on the constitutionality of a FEDERAL law.

As I had said above, but what is your point? That the Supreme Court would deny certiorari to any federal law questions? And if it did, why?

 

[ZiprHead]

It is the "might makes right" argument. The "we are allowed to behave like irrational children" argument.

Not considering an Obama nominee has no basis in reason.

This is how the government functions.

A Justice departs. The president nominates a replacement. The Senate considers the nominee's judicial qualifications.

Nowhere in reason does the Senate have a right to stop the process based on political whims.

They only have the power.

And the mentality of children who will throw the game to the floor as they are losing.

Too bad the founding fathers, when they wrote the constitution with age requirements, thought that that was enough to ensure children didn't make it to the legislature.

BTW, as for the death of Scalia, my condolences to the Koch brothers.

 

[maxparrish]

There are comical aspects, mostly in reminding us of the paper on on how "politics makes you stupid". No doubt that not ten seconds after reports of Scalia's death there were also also Lonesome Rhodes hoot'en and holler'in on how the Constitution and the future of the Republic depends on a nomination and a vote in the Senate... ASAP!

The grandiloquent pretensions, the moral posturing alluding to some mythic tradition, here-to-fore unknown to the mass of humanity, is inevitable, but it need not be stupid. Grassley reminded us of an 80 year tradition that, apparently, was only broken once (Kennedy), but it has little bearing on the Senate prerogative to deny its consent (through any legal means), which is unquestioned.

So yes, it is nice to know that this has been a tradition of inaction, just as it would be nice to know if the tradition had been to do the opposite. But to engage on this basis is making a mountain over a molehill; we know the real motives of the actors so we don't have to pretend it to be otherwise.

In other words, I find Grassly's comment to be true but superfluous and 'the Kennedy exception' to be irrelevant.

Exception??

http://www.vox.com/2016/2/13/10987692/14-supreme-court-confirmations

14. And 3 more after the election.

That's 15% of all justices. Pure chance would be 25%.

Two points:

1) You're right. Kennedy was not an exception because Kennedy was not an analogous situation. There is no tradition for a justice nominated to the Court in a presidential election year be confirmed by a Senate controlled by the opposing party. The last time in 1888, not 1988. Whatever 'statistics' you are providing are of pre-modern and non-analogous situations that, by nature, cannot show a tradition that does not exist.

2) There is no need for prejudicial cognition of what is, obviously, and entirely legal process - perhaps without a real tradition behind it one way or the other. Your own source (Vox) does not compare apples to apples (see above) but still points out that 'the 13 prior nominations' (the non-comparable oranges) were prior to WWII and points out:

"For most of the 20th century, the major parties were not as ideologically polarized as they are today, and Supreme Court nominations rarely led to protracted political fights. The fact that election-year nominations were common during this period doesn't seem to say all that much about the situation today."

It even punctures the Anthony Kennedy meme: "Here, conservatives will have a strong retort: Not only was Anthony Kennedy nominated in 1987 — not 1988 — but the only reason he was nominated at all was because Democrats had rejected the nomination of Robert Bork a year earlier."

I suggest you read a more scholarly analysis, rather than just VOX (which has not established a reputation for consistent accuracy):

https://www.washingtonpost.com/news.../13/on-election-year-supreme-court-vacancies/

 

[maxparrish]

Wrong. I am implying the 60 years prior to the civil war, and certainty since Marbury v. Madison at most, one time, it ruled on the constitutionality of a FEDERAL law.

As I had said above, but what is your point? That the Supreme Court would deny certiorari to any federal law questions? And if it did, why?

When folks quibble about a historical mention, they forget the point of the post where they read it. See that post - the point was about the rise of the court, in modern times (starting and since FDR), into becoming a highly politicized branch of government. And derivative, what that implies about modern politics and choices.

 

[untermensche]

The excuses for obstructionism become thinner and thinner.

But as always I expect Obama to come out of this looking better than the Republicans in Congress.

That pack of senseless hyenas.

 

[Nice Squirrel]

As I had said above, but what is your point? That the Supreme Court would deny certiorari to any federal law questions? And if it did, why?

When folks quibble about a historical mention, they forget the point of the post where they read it. See that post - the point was about the rise of the court, in modern times (starting and since FDR), into becoming a highly politicized branch of government. And derivative, what that implies about modern politics and choices.

Yes, what was the point of your post?

 

[Jimmy Higgins]

Well, yeah, the exception would be irrelevant. We don't know if it's an exception because no other Justice seat became available in the last year of a President's term, or if it was an exception because God told Reagan to ignore the tradition.

I'm wondering what evidence there is that this IS a tradition? How many times has a SCOTUS seat been left vacant for a (or most of a) fucking year because the President didn't want to break the 'no lame duck nominations' tradition?

It's an interesting question. The court can operate with 8 judges, though in a tie there is a tie breaker, but it seems like the law would be questionable. The Republicans can block any nomination of Obama so instead of waste time, they can say just nominate someone central or on the right. But it could backfire on the Republicans.

Or they could do there job and determine whether they felt the nominee was qualified for the position. Maybe Harriet Myers could get another go... oh wait, the Republicans didn't want her.

The trouble we have here is that the Republicans have indicated another Wagstaff Doctrine decision. They aren't saying they are blocking a particular nominee (Al Sharpton), they are saying they want to forbid Obama from naming a replacement, which with 11 months left in a term (near 25% of Obama's elected term) is very unprecedented.

 

[maxparrish]

Oh the desperation in these Republican hypocrites that are looking for any excuse for the Senate to not do it's duty.

That is what the Republican party has become.

The party that stands firmly in the way of any progress.

Certainly standing in the way of a progress towards replacing the staunch conservative with a loyal comrade of the left.

I called it 'an exception' because I accepted the partisan claim of Kennedy being 'the same'. My bad. It turns out Kennedy is not an exception because his nomination to a vacancy was not analogous to that of Scalia. The vacancy and nominiation was for the prior year to the election, the third nomination since the summer of 1987 as the Senate rejected (or demanded the withdrawal) of Bork and then Ginsburg.

No no.

Putting up failed nominees is entirely Reagan's problem.

Since they weren't "failed" or "a problem" until the Democratic Senate made it (or voted it) so that's an unusually dumb argument.

As most know, the problem (the delay) was caused by a Democratic Senate politically driven rejection of the first nomination (Robert Bork) and then the demand that Reagan withdraw the second or that he would face a similar fate. Having launched a campaign of obstruction for six or more months in 1987, and gotten a third nomination in 1987, they couldn't very well claim it was too late...could they?...well, unless they had an unusual degree of shamelessness.

Kennedy was a nominee in Reagan's last year.

Kennedy was nominated in 1987, not Reagan's last year. The Democratic Senate held it over till 1988...
"you know the magical verboten year.".

According to your principles he should not even have been considered.

No according to my principles Bork should have been approved and the delay caused by the Democrats (and their Hollywood funded crazy group People for the American Way) would have been irrelevant.

 

[maxparrish]

The excuses for obstructionism become thinner and thinner.

But as always I expect Obama to come out of this looking better than the Republicans in Congress.

That pack of senseless hyenas.

You are confused. They aren't giving excuses - they are being candid. No way that a pivotal conservative position on the court is going to be given up when there is a chance that a Republican might be elected in November.

Yep they (presumably) won't role over with their paws up so they are "hyenas"...LOL...

 

[untermensche]

The excuses for obstructionism become thinner and thinner.

But as always I expect Obama to come out of this looking better than the Republicans in Congress.

That pack of senseless hyenas.

You are confused. They aren't giving excuses - they are being candid. No way that a pivotal conservative position on the court is going to be given up when there is a chance that a Republican might be elected in November.

Yep they (presumably) won't role over with their paws up so they are "hyenas"...LOL...

Yes just as Thomas replaced Thurgood Marshall.

 

[maxparrish]

It's an interesting question. The court can operate with 8 judges, though in a tie there is a tie breaker, but it seems like the law would be questionable. The Republicans can block any nomination of Obama so instead of waste time, they can say just nominate someone central or on the right. But it could backfire on the Republicans.

Or they could do there job and determine whether they felt the nominee was qualified for the position. Maybe Harriet Myers could get another go... oh wait, the Republicans didn't want her.

The trouble we have here is that the Republicans have indicated another Wagstaff Doctrine decision. They aren't saying they are blocking a particular nominee (Al Sharpton), they are saying they want to forbid Obama from naming a replacement, which with 11 months left in a term (near 25% of Obama's elected term) is very unprecedented.

I have urged folks to be sensible, and take a more sober appraisal. Sigh...that seems impossible. Who said they 'want to forbid' Obama from naming a replacement, other than you (and some habitual left partisan hacks in the media)?

Rubio, Cruz, and some others have already said that he can nominate who he likes - but that he should be aware it is pointless because the Senate will not give consent this year (although they will advise...as they are).

(Frankly, after the left turned Bork into a transitive verb I am rather surprised that some posters have the chutzpah to pretend their is some ethical issue at stake):

Borked, Borking, to Bork (Merriam-Webster):

to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification <In 1987, conservative judge Robert Bork endured such virulent criticism … that to this day, a nominee sidelined by activists is said to have been “borked.” — Claire Suddath, Time, 18 May 2009> <Thus, with Bush determined to name an anti-abortion conservative, any nominee may end up Borked. — Rowland Evans and Robert Novak, Washington Post, 1 July 1991>

 

[laughing dog]

In 1796 Hylton v. United States. SCOTUS ruled the carriage tax constitutional. It was cited in 2012 as precedence for the Obamacare Mandate.

Do the math. 1860 minus 60 years. The point remains, the idea of SC 'finding' Congressional laws unconstitutional was unheard of it that period...and almost unheard of prior to that.

Assuming your fact is accurate, so what? Perhaps the Court had no need to do so.

 

[fromderinside]

Borked, Borking,

blah, blah, blah

Or it was because Nixon rewarded Bork with a SC nomination for illegally firing IC Archibald Cox

 Saturday Night Massacre

On Friday, October 19, 1973, Nixon offered what was later known as the Stennis Compromise—asking Senator John C. Stennis to review and summarize the tapes for the special prosecutor's office. Since Stennis was famously hard-of-hearing, Cox refused the compromise that same evening and it was believed that there would be a short rest in the legal maneuvering while government offices were closed for the weekend.However, on the following day (a Saturday) Nixon ordered Attorney General Richardson to fire Cox. Richardson refused, and resigned in protest. Nixon then ordered Deputy Attorney General William Ruckelshaus to fire Cox. He also refused and resigned.^[4][5]
Nixon then ordered the Solicitor General, Robert Bork (as acting head of the Justice Department), to fire Cox. Both Richardson and Ruckelshaus had given personal assurances to the congressional oversight committee that they would not interfere, but Bork had not. Though Bork claims that he believed Nixon's order to be valid and appropriate, he considered resigning to avoid being "perceived as a man who did the President's bidding to save my job."^[6] Nevertheless, having been brought to the White House by limousine and sworn in as Acting Attorney General, Bork wrote the letter firing Cox.^[7] Initially, the White House claimed to have fired Ruckelshaus, but as The Washington Post article written the next day pointed out, "The letter from the President to Bork also said Ruckelshaus resigned."
On November 14, 1973, federal district judge Gerhard A. Gesell ruled that the dismissal of Cox was illegal, in the absence of a finding of extraordinary impropriety as specified in the regulation establishing the special prosecutor's office.^[8] Congress was infuriated by the act, which was seen as a gross abuse of presidential power.

 

[Nice Squirrel]

Rubio, Cruz, and some others have already said that he can nominate who he likes - but that he should be aware it is pointless because the Senate will not give consent this year (although they will advise...as they are).

Then what is your problem? Let him nominate all the candidates he wants,