Justice Scalia Found Dead

[Horns11]

Are you aware of the current make-up of the House by Party?
That is the closest thing we have to direct democracy and thus the best representation available of the will of the people.

Your first assumption is that anyone who voted for a Republican for the HoR would, by default, not confirm anyone that Obama set forth. So be it. And as many have stated on this thread and throughout the news cycle, presidential appointments aren't constitutionally the people's will.

Secondly, direct democracy would have yielded a 51-to-49 percent of seats majority for the GOP, not the existing 57-to-43 percent majority. Redistricting by conservative-slim-majority states has weakened the chances of democrats gaining seats, even in contestable years. So when you say it's the "best representation of the will of the people," you need to add the "plus or minus 6 percent nationally" qualifier.

And yeah, I know democrats would do the same thing if they got the chance.

 

[Joe Fan]

Your first assumption is that anyone who voted for a Republican for the HoR would, by default, not confirm anyone that Obama set forth. So be it. .....

The R majority is historic (you have to go all the way back to the 1920s to find this many Rs). The people have spoken. And what they have made ever more clear over successive elections is that they do not want President Obama moving forward with anything else. If they feel this way about his policy initiatives, you can sleep well knowing that goes double for the most important appointment for any President.

.... Redistricting by conservative-slim-majority states has weakened the chances of democrats gaining seats, even in contestable years. ....

The part of the redistricting equation that you fail to grasp is that is that the circumstances that gave the Rs this historic majority in the House are the same that elected the various Statehouses. I think R-Governors are at an all-time high of 31 (to 19). And Rs lead in combined state legislators (with 68 of 98 total). I think these are 150-years lows for the Ds.

So you can thank Obama (at least in part) for those redistricting maps too. And again, as originally stated above, the people of this country (who care enough to vote), have spoken as strongly and loudly as they can under the rules of the Republic. They just want Obama to leave and not do anything else while still there (oh, and leave the furniture, artwork and silverware this time).

 

[UTChE96]

It would actually be a better system if a SCOTUS nomination could only be made if the position was open prior to the Presidential election. This way the electorate knows exactly which critical seats in government are up for replacement. It would also reduce the preferential timing of retirements by SCOTUS judges.

I do not see any reason that the SCOTUS cannot operate for a few years with only 7 or 8 justices. So what if there is a tie. It just means that the lower court rulings stand which is probably a better result than these all encompassing rulings made by a 5-4 split SCOTUS.

 

[Horn6721]

I am reading reports of strange or unusual things that went on concerning the Justice's death.
The pillow on his head is the most bizarre.
However it is hard to imagine anyone who would hold a pillow over his head would leave it there.
And I do not know the circumstances of whether an autopsy would be the usual action. I do not know whether the Dr who said it was a heart attack was his personal Dr who knew his history. But if he wasn't how would he know?
With all else that is going on it doesn't help that there are questions surrounding his death.

 

[Joe Fan]

It would actually be a better system if a SCOTUS nomination could only be made if the position was open prior to the Presidential election. This way the electorate knows exactly which critical seats in government are up for replacement. It would also reduce the preferential timing of retirements by SCOTUS judges.....

I am not convinced the average voter thinks about SCOTUS seats when voting. Some do (most lawyers for example). They should, but they dont (is my best guess). However, I think there is little doubt that filling the Scalia vacancy has their attention now.

 

[texas_ex2000]

I am reading reports of strange or unusual things that went on concerning the Justice's death.
The pillow on his head is the most bizarre.
However it is hard to imagine anyone who would hold a pillow over his head would leave it there.
And I do not know the circumstances of whether an autopsy would be the usual action. I do not know whether the Dr who said it was a heart attack was his personal Dr who knew his history. But if he wasn't how would he know?
With all else that is going on it doesn't help that there are questions surrounding his death.

I've read this too. A very important public figure dies with a pillow over his head? Probably nothing, but it is really unusual and I don't understand why the local DA or FBI wouldn't order an autopsy

 

[UTChE96]

I am not convinced the average voter thinks about SCOTUS seats when voting. Some do (most lawyers for example). They should, but they dont (is my best guess). However, I think there is little doubt that filling the Scalia vacancy has their attention now.

I think you are right. But part of that may be that it is not known how many (if any) justices will be up for appointment. If there were more transparency regarding which justices were up for appointment then more voters would likely think about this issue when voting.

 

[Mr. Deez]

Why does everyone assume BO would put up an uber-liberal nominee when the Republicans control the Senate?

Because Democrats never compromise in this area when it comes to Supreme Court appointments. They haven't appointed anything other than a full blown social liberal to Supreme Court in over 50 years, and they aren't going to start now. Their base would lose their minds if they did.

What's scary is that most on her are advocating for leaving the SC vacant for ~18 months.

Not that scary. The issues can be brought back in front of a 9 member court in short order, and any messes created can be resolved. Keep in mind that in the overwhelming majority of cases that get appealed at all (which is a minority of cases), the respective courts of appeals are the courts of last resort. In addition of those cases that actually reach the Supreme Court, the vast majority of them are not decided by only one vote. In other words, we aren't talking about a vacancy truly impacting many cases. Much scarier is forcing the Court into a radical direction. That can take decades or centuries to fix, if ever and impacts thousands of cases.

2 sides of the same coin, Mr. Deez. The right perverts the democratic process to institutionalize discrimination and the conservative social agenda (i.e. abortion). Aren't the courts the natural relief? From my 8th grade civics class I thought the courts were the check against executive/legislative power.

No, not 2 sides of the same coin. Before I get into this, I hope you know by now that I'm a man of integrity and try to be consistent. I don't oppose every socially liberal court decision, even if I don't like it on the merits. Furthermore, I don't support every conservative decision even if I like it on the merits. For example, I don't agree with the D.C. v. Heller decision any more than I agree with Roe v. Wade. Both make a mockery of the Constitution and are abuses of judicial power.

However, respectfully, you're off the mark here. State governments have general jurisdiction. That means they can do anything not expressly prohibited by the Constitution. The "conservative social agenda" (and the liberal social agenda) can be enacted to the extent that it doesn't expressly violate the Constitution. That's not a perversion of the democratic process. In fact, it's exactly how the process is supposed to work.

The Court is a check on the legislative and executive branches, but its legitimate authority is limited to the written law. It is not supposed to be a policymaking body and for good reason. Federal judges are not elected and have life tenure. That's as close to dictatorship as our system gets, so if they act outside the limits of the written law, they are the ones who truly pervert the democratic process.

The big problem I have with most (not all) socially liberal court decisions is that they usually rely on interpretations of the constitutional text that are so attenuated from the text, so divorced from the intents of those who wrote the text, and so subjective that they are, as a practical matter, arbitrary. They are effectively a vehicle in which a court can strike down any law it doesn't like, and that's dangerous. You may not see it as such, because far more often than not, it serves your social agenda. However, if it can be used the other way, and if the Right ever starts doing that, it will piss you off and rightly so. Rather than have such a despotic system, I'd rather leave questions like abortion with the state legislatures, where the founding fathers intended them to be rather than with elitists in Washington, D.C. who don't answer to anybody.

Texas should be allowed to ban abortion. Likewise, if your state wants to ban private handgun ownership, they should be allowed to do so as well. The remedy for abortion rights advocates in Texas and for gun rights advocates in Washington should be to convince their fellow citizens of their position on the merits and then go to Austin and Olympia, respectively, and ask their legislatures to change their laws.

 

[Joe Fan]

Found a good collection of Scalia quotes --

On Constitutional Flexibility
That’s the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that. The Constitution is not a living organism, it is a legal document. It says something and doesn’t say other things

On Judicial Overreach
It is difficult to maintain the illusion that we are interpreting a Constitution, rather than inventing one, when we amend its provisions so breezily.

On the Bill of Rights & popular opinion
A Bill of Rights that means what the majority wants it to mean is worthless.

On Affirmative Action
To pursue the concept of racial entitlement–even for the most admirable and benign of purposes–is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.

On the 2nd Amendment
Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

On politically appointed Judges
As long as judges tinker with the Constitution to ‘do what the people want,’ instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically.

On The Supreme Courts ruling on Obamacare
Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.

On Character
Bear in mind that brains and learning, like muscle and physical skill, are articles of commerce. They are bought and sold. You can hire them by the year or by the hour. The only thing in the world not for sale is character.

On Democracy
Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

On the court ruling on Gay Marriage
To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

 

[Phil Elliott]

If SCOTUS appointments are such a big deal when electing a POTUS, then perhaps we should just go to electing SCOTUS judges directly. RIP Nino.

 

[Htown77]

If SCOTUS appointments are such a big deal when electing a POTUS, then perhaps we should just go to electing SCOTUS judges directly.

If they are going to make policy anyway, we may as well.

 

[nashhorn]

The big problem I have with most (not all) socially liberal court decisions is that they usually rely on interpretations of the constitutional text that are so attenuated from the text, so divorced from the intents of those who wrote the text, and so subjective that they are, as a practical matter, arbitrary. They are effectively a vehicle in which a court can strike down any law it doesn't like, and that's dangerous. You may not see it as such, because far more often than not, it serves your social agenda. However, if it can be used the other way, and if the Right ever starts doing that, it will piss you off and rightly so. Rather than have such a despotic system, I'd rather leave questions like abortion with the state legislatures, where the founding fathers intended them to be rather than with elitists in Washington, D.C. who don't answer to anybody.

Texas should be allowed to ban abortion. Likewise, if your state wants to ban private handgun ownership, they should be allowed to do so as well. The remedy for abortion rights advocates in Texas and for gun rights advocates in Washington should be to convince their fellow citizens of their position on the merits and then go to Austin and Olympia, respectively, and ask their legislatures to change their laws.

Right on, but a bit wordy. The quotes listed by JF on Scalia say it just a bit more succinct.

 

[Horn6721]

Nash
Hey MrD is a lawyer. That is the way they speak and write. Bill by the word.

 

[Mr. Deez]

Right on, but a bit wordy. The quotes listed by JF on Scalia say it just a bit more succinct.

Actually, none of his quotes made the same point I did. Some are related to them, but they aren't the same.

 

[Phil Elliott]

Rather than have such a despotic system, I'd rather leave questions like abortion with the state legislatures, where the founding fathers intended them to be rather than with elitists in Washington, D.C. who don't answer to anybody.

Texas should be allowed to ban abortion. Likewise, if your state wants to ban private handgun ownership, they should be allowed to do so as well. The remedy for abortion rights advocates in Texas and for gun rights advocates in Washington should be to convince their fellow citizens of their position on the merits and then go to Austin and Olympia, respectively, and ask their legislatures to change their laws.

I agree most vehemently with Mr. Deez. Queue sky falling in 3....2....1....

 

[nashhorn]

NBC report Lynch to be appointee. Sorry can't get tweet to copy.

 

[NJlonghorn]

NBC report Lynch to be appointee. Sorry can't get tweet to copy.

Not on NBC News website -- just an article saying that the founder of SCOTUSBlog is predicting that.

 

[zork]

She can't even do her current job right so he wants her to bring that bias and lack of ethics to the supreme court? Color me not impressed. Automatic vote no in my opinion.

Attorney General is ok to have some bias because they are protecting the interests of the Excutive Branch, at least that has become what it is now. Sure, the job is supposed to be to protect the interests of the people by enforcing the law of the land and not just some of them.

Why not get a legal scholar who has a proven track record for being fair and whatever else a supreme court justice is supposed to be like impartial perhaps? Can't they find some super judge? http://heyjackass.com/

 

[Mr. Deez]

Why not get a legal scholar who has a proven track record for being fair and whatever else a supreme court justice is supposed to be like impartial perhaps? Can't they find some super judge?

Nobody's looking for that anymore. The Supreme Court is now a full blown political institution, which makes sense since it's now a de facto policymaking body.

It didn't used to be that way, which is why you'd see both parties appoint much more ideologically diverse judges. FDR had a pretty wide range. Eisenhower appointed some of the most liberal justices to ever sit on the Court. JFKs lone appointment (Byron White) would certainly be viewed as conservative by modern standards. However, that was the last a Democrat appointed anything but a firm liberal. The GOP kept the act going about 30 years longer, and even now their justices tend to be less partisan. (Obamacare survived on John Roberts' vote. There was no way a Democratic judge would have voted against his party on such an issue.) However, even for the GOP, ideology mostly drives everything add it does for the Democrats.

 

[UTChE96]

If Lynch is in fact the nomination then it is clear that Obama is playing politics since she has absolutely zero chance of being confirmed. Had he nominated an independent centrist than it would have been a more difficult hold-out for the Republicans.

 

[Mr. Deez]

If Lynch is in fact the nomination then it is clear that Obama is playing politics since she has absolutely zero chance of being confirmed. Had he nominated an independent centrist than it would have been a more difficult hold-out for the Republicans.

It would enable the race and gender cards.

 

[mb227]

I am not convinced the average voter thinks

Fixed that for you.

 

[mb227]

He's getting up there in age, but hell, let's get Sam Sparks in there...he has shown he can be fair in his interpretation of the law, he was appointed by a Republican, his Opinions are often entertaining and last but certainly not least...he went to Texas

I still like his invitation to a kindergarten party from 2011... https://www.techdirt.com/articles/2...rgarten-party-to-learn-how-to-be-lawyer.shtml

 

[Clean]

All Lynch has done as AG is kowtow to Obama and sue poor little Ferguson, Mo.

 

[Mr. Deez]

He's getting up there in age, but hell, let's get Sam Sparks in there...he has shown he can be fair in his interpretation of the law, he was appointed by a Republican, his Opinions are often entertaining and last but certainly not least...he went to Texas

I still like his invitation to a kindergarten party from 2011... https://www.techdirt.com/articles/2...rgarten-party-to-learn-how-to-be-lawyer.shtml

Sparks is a good judge, but he's not liberal enough to be a Democratic appointee and thinks for himself too much to be a Republican appointee.

 

[huisache]

I was trained as an historian and make my living for nearly forty years as a lawyer and my opinion is that the court has always been a political institution since the day it was first appointed. If you have any doubts at all about this, study the way it did its U-turn during the New Deal. As one historian said in describing why the court reversed itself after the 1936 elections that wiped out the GOP, the court read the election returns.

The court in the 1950s and 60s under Earl Warren took to expanding civil rights and providing some teeth to the criminal law's due process requirements. That has largely been undone by the appointees of the Nixon and Reagan administrations but that was political too.

Quit acting like political factors influencing appointments is something new because of Obama. Nixon did not appoint "that idiot Renchburg" as he described him because he thought he was fair minded.

And Bush I did not appoint Clarence Thomas because he thought he was a moderate.

I hope Obama appoints somebody middle of the road so the appointment has a chance but would not be surprised if he appoints somebody who the GOP would embarrass itself by opposing. Somebody who is Mexican American for example.

 

[nashhorn]

Or black female.

 

[texas_ex2000]

Huisache,

I'm pretty sure the Senate would confirm a pansexual transgender polyethnic naturalized alien from Pluto if (s)he/it were an originalist.

What does being Mexican American have anything to do with jurisprudence? I'm Hispanic for crying out loud, that doesn't make me smarter or dumber, more competent less competent. Are you giving my arguments more attention and respect just because I'm Hispanic?

Why is the default GOP motive always racism? I'm so sick of this $hit. This country is so f€£*ed because of this mindset.

 

[Phil Elliott]

Why is the default GOP motive always racism?

Because it works.

 

[UTChE96]

Because it works.

I'm not so sure its as effective as used to be except among the black community. I am sensing a general feeling of eye rolling among most non-liberals now anytime a gratuitous accusation of racism is thrown about.