SC Justice Scalia Has Died

[Rhea]

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 [who] 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 .[)]

The bold is the promise to "forbid," functionally. I fixed up the quote for you so that they are correctly labeled as the partisan hacks that they are for making these statements.

 

[laughing dog]

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)

Once Cruz and you started opining, it is clear that there are no ethical issues at stake, just the same raw partisan bs.

 

[Cheerful Charlie]

There are some commentators arguing the GOP obstructionism might cause many voters to turn out for Clinton or Sanders over this issue that guarantees a Democratic president. Then you get a more liberal SC justice in the end and maybe several more later. This will be most interesting to see how this all plays itself out. GOP over-reach may be the GOP's own undoing and they richly deserve that fate.

 

[jonatha]

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?

There have only been two vacancies created on the court during an election year since 1940.

In the summer of 1968 Earl Warren announced his intention to resign so that Lyndon Johnson rather than Richard Nixon could nominate his successor. The Senate declined to accept the nominee (although they did vote on it).

In October 1956 Justice Minton resigned due to poor health. His successor was not nominated until after the next month's election.

 

[Angra Mainyu]

Why do you think it's either someone like Scalia, Alito or Thomas, or Venezuela redux?
That seems extremely improbable. How would it be like Venezuela?

Apart from my intentional exaggeration, my point stems from my long-held belief that the unelected Supreme Court is the final absolute authority over secular law...in the same sense that the unelected Ayatollah and his council in Iran are the final legal authority in Iran. The ONLY restraint on the degree of their judicial tyranny is their own conscious and 'virtue', no other.


It is, of course, a deep flaw in our Constitutional system - a latent political despotism that has emerged and become rampet since FDR's shaking up of the Supreme Court tradition. (In fact, prior to the civil war, for 60 years, the courts made NO rulings on the constitutionality of Congresses laws).

Today the Court is divided and a handmaiden to political power, unmoored to any uniform or objective political philosophy. The group on the left have shown themselves to be a "bloc", a cadre of 4 uniform and relentless decision making on important issues. The group on the right have always been more flexible and (tragically) open minded BUT are an important check composed of 2 center-rightists (Roberts-Kennedy) and 2 rightists (Alito-Thomas).

One more leftists means that the new court (unlike the old) will never deviate from hard core liberal/progressive agenda. Challenges to imperial Presidents (if Democratic) will be quashed, etc. Issues on amnesty, abortion, Obamacare, Affirmative Action, will be moot - it will be a rubber stamp to advance the leftist agenda.

Of course, the left gang of 5 won't be as reckless as the Venezuelan justices...but they will be just as dogmatically partisan.

Let's say that you're right that the leftist judges misinterpret the constitution as much as you say, in that leftist dogmatic manner.
Then, in order to prevent a "gang of 5", you don't need another justice like Scalia, Thomas or Alito, but just one that doesn't misinterpret the constitution in a leftist dogmatic manner (not to mention the very likely retirement of one or two leftist judges during the next presidential term).
For example, someone like Roberts or Kennedy wouldn't have that bias (unless by "like Scalia, Alito or Thomas") you just meant like them in the sense of not having a leftist bias in their interpretation of the constitution, which in this context seems like a very improbable interpretation of your words.

In fact, it seems to me that picking someone like Scalia - who is also dogmatically biased, but in another direction - would be a bad idea - he misinterpreted the constitution too, and in ways that would lead to considerable injustice.

Consider for example the case of marihuana grown for one's own consumption (Bomb#20 provided the example). It should be obvious that that has nothing to do with interstate commerce, and that was so if we go by Scalia's own interpretation theory (i.e., the version of originalism he claimed to support).
Or his dissent in Obergefell: (sources: http://srdiocese.org/Scalia_on_Obergefell http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf )

But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.

But by the method of interpretation he supported, the matter should be about what the text meant, regardless of whether the people who ratified the provision believed that the provision implied that banning same-sex marriage would be in conflict with it.
For that matter, many states also banned interracial cohabitation in 1868, and even though that wasn't the case everywhere, it seems at least very probable that many of the people who ratified the provision didn't think it would affect such bans. Neither did the SCOTUS justices who, in Pace v. Alabama, unanimously held that such ban was compatible with the 14th Amendment (and their reasoning supported the conclusion that so were bans on interracial marriage).

Now, if so many people - including all justices in 1883 - can be wrong about the consequences of the 14th Amendment and whether it's compatible with such bans, why not all people?
Scalia believed, however, that Loving v. Virginia was a correct decision, and appeared to accept "strict scrutiny" in that case. But that's not the point. Rather, the point is to illustrate that many people can be wrong - not that it's needed: even without giving any examples, of course all people at a time can be wrong about the consequences. Scalia was applying the wrong test, even by the very standards he claimed to support.

That aside, I have a question about the following point:

It is, of course, a deep flaw in our Constitutional system - a latent political despotism that has emerged and become rampet since FDR's shaking up of the Supreme Court tradition.

How would you propose to correct that flaw?

 

[Keith&Co.]

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?

There have only been two vacancies created on the court during an election year since 1940.

In the summer of 1968 Earl Warren announced his intention to resign so that Lyndon Johnson rather than Richard Nixon could nominate his successor. The Senate declined to accept the nominee (although they did vote on it).

In October 1956 Justice Minton resigned due to poor health. His successor was not nominated until after the next month's election.

So...one. One is the 'tradition.'

 

[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.

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

I remember once listening to that dunce Bork try to defend the right of the government to punish flag burning.

He claimed it violated the right of people to not be offended.

You can't get it more wrong than that.

He was a seriously flawed radical and the fact that he couldn't get approved is ENTIRELY on him and Reagan.

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.".

No, you just don't understand the "magical year" that for some insanity doesn't count.

But of course how could you. This shit is just made up as the do-nothing Republicans go.

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.

It was your desire that Bork be approved, despite his gaping flaws and bad judgements.

So that is your principle. You simply want your way despite the costs.

 

[Achwienichtig]

Lady's and Gentlemen, I understand Scalia raises strong feeling, but let's remember that his best friend on the Supreme Court was none other than Ruth Bader Ginsburg, who had this to say about him.

Source: http://www.supremecourt.gov/publicinfo/press/pressreleases/pr_02_14-16

Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a duet: "We are different, we are one," different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve. From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots-the "applesauce" and "argle bargle"-and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his "energetic fervor," "astringent intellect," "peppery prose," "acumen," and "affability," all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader's grasp.

Justice Scalia once described as the peak of his days on the bench an evening at the Opera Ball when he joined two Washington National Opera tenors at the piano for a medley of songs. He called it the famous Three Tenors performance. He was, indeed, a magnificent performer. It was my great good fortune to have known him as working colleague and treasured friend.

Here's a video from a year ago highlighting their friendship:

[YOUTUBE]https://www.youtube.com/watch?v=b-Gwg8t7j3s[/YOUTUBE]

 

[maxparrish]

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

 Saturday Night Massacre

Here's a suggestion to the posters in this thread. Let's try not to be shameless, reckless, or witless partisan tools - at least not to the point we ought to be blushing. (And for some, if your not blushing by now, there is a problem ).

Because Nixon rewarded Bork with an SC nomination? Given that Nixon left office 13 years prior to Bork's nomination by Ronald Reagan, how does that work? Channeling? Voodo?

 

[untermensche]

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

 Saturday Night Massacre

Here's a suggestion to the posters in this thread. Let's try not to be shameless, reckless, or witless partisan tools - at least not to the point we ought to be blushing. (And for some, if your not blushing by now, there is a problem ).

Because Nixon rewarded Bork with an SC nomination? Given that Nixon left office 13 years prior to Bork's nomination by Ronald Reagan, how does that work? Channeling? Voodo?

Wow, he mistakenly said Nixon instead of Reagan.

And that is just one of the scummy things he was being rewarded for.

He was an unprincipled tool.

 

[jonatha]

There have only been two vacancies created on the court during an election year since 1940.

In the summer of 1968 Earl Warren announced his intention to resign so that Lyndon Johnson rather than Richard Nixon could nominate his successor. The Senate declined to accept the nominee (although they did vote on it).

In October 1956 Justice Minton resigned due to poor health. His successor was not nominated until after the next month's election.

So...one. One is the 'tradition.'

And there was only one month until the election, not 10.

 

[maxparrish]

Here's a suggestion to the posters in this thread. Let's try not to be shameless, reckless, or witless partisan tools - at least not to the point we ought to be blushing. (And for some, if your not blushing by now, there is a problem ).

Because Nixon rewarded Bork with an SC nomination? Given that Nixon left office 13 years prior to Bork's nomination by Ronald Reagan, how does that work? Channeling? Voodo?

Wow, he mistakenly said Nixon instead of Reagan.

And that is just one of the scummy things he was being rewarded for.

He was an unprincipled tool.

No, he mistakenly thought Nixon nominated Bork as a reward for firing Cox at Nixon's behest. Clearly he has little knowledge of what he speaks.

 

[Jimmy Higgins]

Lady's and Gentlemen, I understand Scalia raises strong feeling, but let's remember that his best friend on the Supreme Court was none other than Ruth Bader Ginsburg, who had this to say about him.

I really find value in the Eightfold Path, which implies that all your measures of living are required to follow the right way. Scalia and the handful of decisions or dissents from Bush v Gore II to Lawrence v Texas to Citizens United, these were very harmful and damaging to this nation.

As an engineer, the biggest fault I see in law is that law isn't cut in stone. Everything can be argued. And often the case is about being able to argue your position the best, instead of demonstrating what is actual truth. Judgment of law is very arbitrary and one can do almost anything if willing to go far enough to do so. In other words, purists are full of shit.

 

[Jimmy Higgins]

So...one. One is the 'tradition.'

And there was only one month until the election, not 10.

And Obama isn't running for re-election. I think someone noted before the Senators are in election races as well!!! That'd pretty disqualify having any confirmations every other year.

 

[Nice Squirrel]

Wow, he mistakenly said Nixon instead of Reagan.

And that is just one of the scummy things he was being rewarded for.

He was an unprincipled tool.

No, he mistakenly thought Nixon nominated Bork as a reward for firing Cox at Nixon's behest. Clearly he has little knowledge of what he speaks.

Folks, Nixon was offering Bjork the nomination (when an opening occurred) in exchange for aiding in the firing of Cox. Nixon did not nominate him due to 1) no opening on the court before 2) Nixon's resignation.

We can now end this derail.

 

[Jimmy Higgins]

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 [who] 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 .

The bold is the promise to "forbid," functionally. I fixed up the quote for you so that they are correctly labeled as the partisan hacks that they are for making these statements.

A very good fix. Max seems to think that there is a substantive difference between allowing Obama to nominate a Justice and the Senate confirming the nomination.

 

[maxparrish]

So...one. One is the 'tradition.'

And there was only one month until the election, not 10.

In 1968 Earl Warren resigned and President Johnson nominated a sitting member, justice Fortas to be Chief Justice. He also nominated Homer Thornberry to replace Fortas position as an associate justice. Fortas was nominated in June 1968, but would not be confirmed as chief.

There was no election year confirmation because of opposition within Johnson's own party - mainly from southern Democrats, combined with reputed ethical improprieties. There was not a confirmation vote. They filibustered and a cloture vote failed. His nomination was then withdrawn. Thornberry's nomination was also withdrawn. Warren stayed on the Court until Nixon, following his election, nominated Burger.

In 1956 Minton resigned, on Oct 15, 1956. Confirmation hearings and confirmation of Brennan was held in 1957.

There is nothing in this that suggests "a tradition" for an involuntary vacancy in an election year, either way.

 

[Achwienichtig]

Lady's and Gentlemen, I understand Scalia raises strong feeling, but let's remember that his best friend on the Supreme Court was none other than Ruth Bader Ginsburg, who had this to say about him.

I really find value in the Eightfold Path, which implies that all your measures of living are required to follow the right way. Scalia and the handful of decisions or dissents from Bush v Gore II to Lawrence v Texas to Citizens United, these were very harmful and damaging to this nation.

As an engineer, the biggest fault I see in law is that law isn't cut in stone. Everything can be argued. And often the case is about being able to argue your position the best, instead of demonstrating what is actual truth. Judgment of law is very arbitrary and one can do almost anything if willing to go far enough to do so. In other words, purists are full of shit.

I disagree with this. The law is precisely the sort of thing you want set in stone, because so much depends on it. I happen to think everybody is a purist. We all just disagree about what we believe is pure.

I don't mind Scalia's originalism. I happen to think he misapplied it in multiple instances, but as a hermeneutic method I'm fine with it. In particular, when it comes to the fourth and sixth amendments, I think he nailed it on the head on multiple instances, e.g. Kyllo v United States and Florida V. Jardines. In fact, Scalia typically united with the more liberal judges on these issues.

The amount of damage done by Scalia is something I won't claim to be able to measure. In general, I tend to think he has done far less damage than people claim. I'm not even all that certain that Citizen's United will prove all that damaging in the long run, mostly because with that ruling there is a newfound awareness of issues of campaign financing, and people like Bernie Sanders are actually having an easier time campaigning on grassroot donations as a result of that awareness.

Where I disagree with Scalia is in his belief that the Supreme Court hurts democracy by making rulings on things like gay marriage and abortion. His thoughts on these matters were that if they were not decided by the legislature, that meant power was being taken away from the democratic process. I disagree. You cannot hinge personal rights on the democratic process when it comes to matters of such importance. The court is there to guarantee those rights precisely when the public would deny them. Fortunately, on issues of this kind, Scalia has been in the opposition much of the time.

 

[untermensche]

There may be a reason for a Senate to delay a nomination late in a presidency.

If an elderly member of the Court, that shares the president's philosophy, were to retire late in a presidency to ensure the continuation of that philosophy on the Court one could make a case the Senate had a right to delay so that this kind of thing didn't happen.

But an act of god?

No fucking way.

This was Jesus's way of telling the nation he wanted Obama to replace Scalia.

 

[Rhea]

^^ that is a great talking point to the nutwing. All of the "God's Will" stuff ain't so obvious anymore to McConnell, is it?