SCOTUS after Scalia

[Zelandakh]

Is a "general election defeat" for the Republican Party a foregone conclusion then?

Not just yet but if the Dems lose the White House it hardly matters who they nominated as the Reps will surely appoint a conservative as a like-for-like replacement ("to keep the SC balance"). That makes this a good time to be playing the long game.

[Flem72]

Breitbart has some Scalia quotes.

 

http://www.breitbart.com/big-government/2016/02/13/supereme-court-justice-antonin-scalias-greatest-quotes/

 

No doubt NYT/Washington Post/HuffPo etc. would compile a different list, but I'd still like to see them.

[Bbradley62]

Not just yet but if the Dems lose the White House it hardly matters who they nominated as the Reps will surely appoint a conservative as a like-for-like replacement ("to keep the SC balance"). That makes this a good time to be playing the long game.

But, none of Ginsburg, Breyer or Kennedy will outlast an 8-year presidency, so there is a lot of potential for a swing to the right if the Dems lose both White House and Senate in November.

[akwoo]

At the current rate, the next President might not be allowed to appoint a Cabinet or anyone else (unless it is the Senate's choice), with the Senate staying in session to prevent recess appointments.

[kenberg]

There is something in the Post today indicating that some Republican Senators, especially those up for re-election in tight contests, are at least a little wary of the take no prisoners approach. As well thye might be.

 

 

I see cabinet appointments very differently from Supreme Court appointments. Cabinet appointments are for the administrative branch. The pres gets to choose, and they get to leave when his term is over.

 

The Supremes have lifetime appointments,and in a different branch. There is good reason to expect these appointments to go beyond immediate political advantage. Ok, I am dreaming. But that's how I see it.

 

The Republican idea that we are obligated to wait until after the election is absurd on several counts. Firstly, there is no argument whatsoever in favor of it. Secondly, any attempted argument would have to apply equally well if Scalia had died in February of 2015. What's the difference. But thirdly, which perhaps should be firstly, Supreme court appointments regularly span several presidencies. We fill them when they open up, and the Justice usually outlasts both the person who appointed him and his successor.

 

 

I really think many people are pretty fed up with politicians seeing how to play it before the body is in the ground.

 

I promise that if there was a Republican president and a Democratic majority in the Senate I would be equally dismayed by this absolute refusal to cooperate on anything. I expect I am far from the only one. Republican Senators might very well be having some second thoughts here.

[Winstonm]

Here are a couple more Scalia quotes:

 

Herrera v. Collins:

There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.

 

Then, 16 years later...

 

IN RE TROY ANTHONY DAVIS ON PETITION FOR WRIT OF HABEAS CORPUS:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent.

[barmar]

The Republican idea that we are obligated to wait until after the election is absurd on several counts. Firstly, there is no argument whatsoever in favor of it. Secondly, any attempted argument would have to apply equally well if Scalia had died in February of 2015. What's the difference.

The difference is in how long we believe we can live with one less Supreme Court justice. A few months (during several of which the Court is not even in session) is acceptable, years is not.

 

But as many reporters and late night comics have pointed out, following a "tradition" like the Thurmond Rule would be a punch in the face to Scalia, who was such a strong believer in the letter of the Constitution. He's barely in his grave and would already be turning over in it.

[Zelandakh]

A few months (during several of which the Court is not even in session) is acceptable, years is not.

Why not? The American constitution effectively allows appointments, laws and budgets to be blocked almost indefinitely. This is the democracy often held up to be a model for other countries, so surely such matters are to be championed and applauded? And if not, perhaps some of the more modern democracies are not so bad and modernising America to avoid paralysis through extremism might be less heretical than the extremists would have one believe.

[WellSpyder]

This is the democracy often held up to be a model for other countries

Really? Who by?

[kenberg]

The difference is in how long we believe we can live with one less Supreme Court justice. A few months (during several of which the Court is not even in session) is acceptable, years is not.

 

But as many reporters and late night comics have pointed out, following a "tradition" like the Thurmond Rule would be a punch in the face to Scalia, who was such a strong believer in the letter of the Constitution. He's barely in his grave and would already be turning over in it.

 

I had never heard of the Thurmond Rule, I keep learning things here. So I looked it up on the Wikipedia. It seems Thurmond made it up out of air to punish Lyndon Johnson. Orin Hatch is quotes:

 

In 2004, Republican Senator Orrin Hatch dismissed the rule: "Strom Thurmond unilaterally on his own ... when he was chairman could say whatever he wanted to, but that didn't bind the whole committee, and it doesn't bind me."

[

 

This seems about right.

 

At some point I can imagine it simply being too late for an appointment to be made. November 1st, for example. But otherwise, president's fill vacancies as they occur. Republicans can advocate deference to a rule promulgated by a segregationist and used to punish a president for passing Civil Rights laws if they wish. Simply saying, as they do, "We are blocking it because we can" seems like bad enough tactics. Citing Thurmond as justification? I don't think so.

[Flem72]

Here are a couple more Scalia quotes:

 

Then, 16 years later...

 

Yeah? So? The second, he's just stating facts, that's the law. You may think 'the law are an ass,' but there ya go.

 

The first--"tradition" is a bit twisty....

 

In all of this, folks should remember that jurists like Scalia don't think, e.g., that "a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction" is a bad idea, they only think it is not a constitutional idea except to the extent that legislatures may enact the will of the people.

[PassedOut]

In all of this, folks should remember that jurists like Scalia don't think, e.g., that "a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction" is a bad idea, they only think it is not a constitutional idea except to the extent that legislatures may enact the will of the people.

Most people today consider killing an innocent person to be "cruel and unusual punishment." I expect that was the case 200 years ago also. The purpose of higher courts is to correct what has gone wrong in lower courts.

[akwoo]

Most people today consider killing an innocent person to be "cruel and unusual punishment." I expect that was the case 200 years ago also. The purpose of higher courts is to correct what has gone wrong in lower courts.

 

More to the point, I believe Scalia did not believe that the notion of "actual innocence" mattered at all in law, only the notions of "legal innocence" or "legal guilt", which are decided through various formal procedures which interact with the real world at only one point, which is when the jury renders a verdict. From this formal point of view, the jury is to be treated as an extra-legal oracle.

 

See https://quomodocumque.wordpress.com/2016/02/14/antonin-scalia-thought-jurisprudence-was-more-like-math-than-it-really-is/

[PassedOut]

More to the point, I believe Scalia did not believe that the notion of "actual innocence" mattered at all in law, only the notions of "legal innocence" or "legal guilt", which are decided through various formal procedures which interact with the real world at only one point, which is when the jury renders a verdict. From this formal point of view, the jury is to be treated as an extra-legal oracle.

I do understand that Scalia had his reasons, but when reasoning leads to a conclusion that can't be right, one must reexamine the reasoning. I'm fairly sure that the framers did not intend for innocent people to be put to death.

[Winstonm]

Yeah? So? The second, he's just stating facts, that's the law. You may think 'the law are an ass,' but there ya go.

 

The first--"tradition" is a bit twisty....

 

In all of this, folks should remember that jurists like Scalia don't think, e.g., that "a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction" is a bad idea, they only think it is not a constitutional idea except to the extent that legislatures may enact the will of the people.

 

I guess Scalia did not think the 9th Amendment covered an individual's right not to be executed by the state in error.

[billw55]

The Republicans have since made it clear that this rejection will take place. Qualifications are irrelevant, Obama nominates, the Senate rejects, end of story.

This about sums it up. The Rs will block any D appointment until they lose the senate.

[barmar]

Why not? The American constitution effectively allows appointments, laws and budgets to be blocked almost indefinitely. This is the democracy often held up to be a model for other countries, so surely such matters are to be championed and applauded? And if not, perhaps some of the more modern democracies are not so bad and modernising America to avoid paralysis through extremism might be less heretical than the extremists would have one believe.

There's certainly nothing precluding them blocking nominations for cause -- if POTUS keeps nominating unacceptable candidates, they can and should reject them, and this will repeat as long as it takes to find someone agreeable to both branches.

 

But if there's going to be a rule that says "No nominations will be accepted for the last X months of the administration", X should be a reasonably short period. If we're going to knowingly and deliberately leave a vacancy, we shouldn't do it for an extended period of time.

 

I'm not saying that there's any legitimacy to the Thurmond Rule, I'm just justifying why such a rule, if followed, should have a short threshold. Note that Thurmond specified 6 months, so by that criteria any nomination made by Obama before the summer should be given due consideration. But Republicans have indicated that they plan on blocking any nomination Obama tries to make.

 

Even individual Senators are inconsistent in how they apply the Thurmond Rule -- it only seems to matter when it favors their party. Wikipedia mentions:

Senator Leahy rejected the rule in the closing months of the Democratic Clinton administration, but later invoked the rule in the last months of the Republican Bush administration as noted above. In March 2008, Leahy wrote a letter to Bush stating “I urge you to work with senators from other states, as well, so that we might make progress before time runs out on your presidency and the Thurmond rule precludes additional confirmations.” In June 2012, however, Leahy said "it is troubling to hear Senate Republicans already talking about how they plan to resort to the Thurmond Rule to shut down all judicial confirmations for the rest of the year" and in February 2016 denied that the Thurmond Rule even existed.

That's flip-flopping at its finest. :)

[helene_t]

modernising America to avoid paralysis through extremism might be less heretical than the extremists would have one believe.

Is this really a constitutional problem? I think any country would be paralysed if appr half of both chambers of the parlament consisted of obstructionists.

 

In France they have had a similar situations in times when one wing had the presidency while another wing had parlament. Until now this hasn't caused too many problems. I could be wrong since I don't follow French politics regularly but my impression is that the contrast between usa and france is due to differences in the attitudes of the politicians.

[Zelandakh]

Really? Who by?

I suppose Voice of America and Reagan are two of the more commonly given examples but the idea has been implicit in many political speeches over the years.

 

 

Is this really a constitutional problem? I think any country would be paralysed if appr half of both chambers of the parlament consisted of obstructionists.

The difference in America is that a minority (40%) can hold up the rest. That cannot happen in the UK for example due to the guillotine. The opposition in most countries can also not cause the government to go into shutdown by denying them a budget. The last time anyone tried anything even close to that in the UK was Lloyd George and resulted in the rules being changed, essentially preventing any opposition from such bills. There are some countries where obstructionists can cause chaos, pre-war Germany being the classic example, but I would like to think we have learnt something since then and can draft constitutions to avoid such issues.

[Flem72]

"I guess Scalia did not think the 9th Amendment covered an individual's right not to be executed by the state in error."

 

"I do understand that Scalia had his reasons, but when reasoning leads to a conclusion that can't be right, one must reexamine the reasoning. I'm fairly sure that the framers did not intend for innocent people to be put to death."

 

First: Most folks think the 9th doesn't confer any substantive rights, it only tells us how to interpret the C's other grants of rights.

 

Second: You both realize that your usages of "error" and 'Innocent" are practically metaphysical terms? Whether "error" has occurred and whether a person is "innocent" are unknowable in any absolute, true-false sense (except to the person and his/her victims) ---we're dealing with human processes that are designed to try to do the best we can do in morally extremely troubling circumstances.

 

NB: Every student in every first year law class has to take Criminal Procedure. Every class spends the first week or so letting the students debate the death penalty from their personal, as yet un-legal point of view. My prof was a very symp/emp type (most of you would think that rare in a former federal prosecutor) who wanted to let everyone get it out, and respond in some way to keep the ball rolling. After a couple days, she actually said, as the only response she could muster, "well, that's a point of view." Sheesh. Wouldn't wish that on anyone.

[y66]

Obama 1, Obstructionists 0. Assist to the Des Moines Register.

[cherdano]

In all of this, folks should remember that jurists like Scalia don't think, e.g., that "a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction" is a bad idea, they only think it is not a constitutional idea except to the extent that legislatures may enact the will of the people.

LOL.

[blackshoe]

One quote I read of something Scalia said bothers me. I don't remember it exactly but he expressed the belief that people have rights because some government passed a law granting them. That ain't the way I learned it in school.

 

On another note, I ran across a "news report" that attempted to imply that there's something fishy about Scalia's death. This rests, it seems, on three things: the doctor (coroner?) who pronounced him dead did so over the phone ("She wasn't even there!"), there was and apparently will be no autopsy, and his body was moved to … San Antonio, I think, and embalmed within 24 hours. Personally, I think this "news report" is nonsense.

[PassedOut]

Whether "error" has occurred and whether a person is "innocent" are unknowable in any absolute, true-false sense (except to the person and his/her victims)

Often it is not, but sometimes it is.

[Flem72]

LOL.

 

So you, as a charitable, reasonable example of homo sapiens, believe what? that the man (and others like him) just want all people charged with a capitol crime to suffer the most extreme penalty once convicted on the evidence presented ath the first trial? or are you just ignorant when it comes to constitutional theory?