SCOTUS after Scalia

[Flem72]

Often it is not, but sometimes it is.

 

Sincere question: how?when?

[Flem72]

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

 

Nice link. Another political statement, which all arguments upon this matter will be.

 

"What makes the Republicans' effort all the more galling is that it flies in the face of their oft-professed, unwavering allegiance to the Constitution, a document that says the president "shall nominate," with the "advice and consent of the Senate," our Supreme Court justices. It doesn't say anything at all about these duties and obligations being suspended a year or so before each president is scheduled to leave office."

 

Correct. Nor does it say that the Senate has a duty to confirm; confirmation is generally viewed as a political concession to the president, which, in turn, does not mean that the Senate must confirm just any nominee. "Bork" is not a verb.

 

This is not a constitutional issue, it is a political one. As othrs have pointed out, representatives of both parties talk out of both sides of their respective pie holes depending upon who is doing the nominating and who will "advise and consent."

 

Even POTUS recognizes this in the first link you provided: “'The Constitution is pretty clear about what is supposed to happen now,” Mr. Obama said during a news conference after a meeting in California with leaders of Southeast Asia. He said the Constitution demanded that a president nominate someone for the court and the Senate either confirms or rejects" and that is what will happen, and both sides will try to make whatever political hay can be made. O's best political move is to nominate a Hispanic or a LBGT. HIspanics will swing more votes.

[Winstonm]

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.

 

If so, we must also accept Scalia's premise that money equals speech, else his free speech argument in Citizen's United fails. Judge Scalia, as is the wont of many, was consistent with his ideology and was not above mentally contorting the meaning of words to make reality appear to fit his faith.

[PassedOut]

Sincere question: how?when?

Actually I'm surprised that you can't think of a situation in which a person can be known to be innocent of a given crime. For a simple example, if a crime is committed in one place and a person cannot have been at that place at that time, then the person is innocent of the crime committed there.

 

And, beyond absolute true or false, it's surely an injustice to execute a person who is unlikely to have been the perpetrator.

[hrothgar]

Nice link. Another political statement, which all arguments upon this matter will be.

 

"What makes the Republicans' effort all the more galling is that it flies in the face of their oft-professed, unwavering allegiance to the Constitution, a document that says the president "shall nominate," with the "advice and consent of the Senate," our Supreme Court justices. It doesn't say anything at all about these duties and obligations being suspended a year or so before each president is scheduled to leave office."

 

Correct. Nor does it say that the Senate has a duty to confirm; confirmation is generally viewed as a political concession to the president, which, in turn, does not mean that the Senate must confirm just any nominee. "Bork" is not a verb.

 

This is not a constitutional issue, it is a political one. As othrs have pointed out, representatives of both parties talk out of both sides of their respective pie holes depending upon who is doing the nominating and who will "advise and consent."

 

 

What you are conveniently ignoring is that Mitch McConnell and multiple Republican Presidential candidates have stated that the the Senate must refuse to act on any candidate that Obama advances, specifically citing that there must be a presidential election before anyone is nominated.

 

FWIW, I agree that this is a political process. Hopefully you can agree that the Republicans are being remarkably stupid in how they are playing their hand.

[Flem72]

Actually I'm surprised that you can't think of a situation in which a person can be known to be innocent of a given crime. For a simple example, if a crime is committed in one place and a person cannot have been at that place at that time, then the person is innocent of the crime committed there.

 

And, beyond absolute true or false, it's surely an injustice to execute a person who is unlikely to have been the perpetrator.

 

So you don't think that that rather obvious fact -- heard of an alibi defense? -- wouldn't come out at the first trial?

[Flem72]

What you are conveniently ignoring is that Mitch McConnell and multiple Republican Presidential candidates have stated that the the Senate must refuse to act on any candidate that Obama advances, specifically citing that there must be a presidential election before anyone is nominated.

 

FWIW, I agree that this is a political process. Hopefully you can agree that the Republicans are being remarkably stupid in how they are playing their hand.

 

That they announce that position is, from one point of view, refreshing: they could just say "OK, give us a nominee, and we'll act" without any intention of doing anything.

 

I don't yet know whether it is stupid.

 

It would be refreshing to see O nominate a truly consensus jurist; hope he doesn't nominate a non-jurist political figure who just happens to be a lawyer.

[kenberg]

What you are conveniently ignoring is that Mitch McConnell and multiple Republican Presidential candidates have stated that the the Senate must refuse to act on any candidate that Obama advances, specifically citing that there must be a presidential election before anyone is nominated.

 

FWIW, I agree that this is a political process. Hopefully you can agree that the Republicans are being remarkably stupid in how they are playing their hand.

 

This last is my view.

 

I don't recall ever hearing of the Thurmond Rule before, but at least I remember Strom Thurmond. Many voters never heard of him and have no interest in learning what rule he may have promulgated for his own purposes in the 1960s. (proof reading, I found I had first typed 1860s, a typo with some possible psychology).

 

I looked up Troy Davis on the Wikipedia and, whatever the various arguments are, it is by no means clear that an innocent man was executed. I think most people understand that an innocent person can be judged guilty in a court of law. If I really wanted to come to a solid opinion about whether that happened in the Troy Davis case, I expect it would take a lot of time and effort. The case did not appear to be handled irresponsibly. I didn't look at the other case that Winston mentioned.

 

The Republicans have been obstructive. This is not an accusation, it is announced intent and a proud boast of their own. But we all have our lives to lead and our bridge hands to play, and we forget. If the Republicans wish to bring this approach front and center during the election year, I think they should be encouraged to do so. It will get great cheers from a segment of the population. I think it will generate no enthusiasm at all from the less ideologically rabid. It is well past the time for us to see which group actually is in the majority.

[hrothgar]

It would be refreshing to see O nominate a truly consensus jurist; hope he doesn't nominate a non-jurist political figure who just happens to be a lawyer.

 

The Republicans want Scalia 2.

Democrats with find this unacceptable.

 

I don't see much hope of a consensus candidate.

 

In all honesty, if I were trying to craft a way out, I'd try something Sorkinesque.

 

Step 1: Lean on Ginsburg to resign

 

Step2: Try to craft an agreement around a pair of candidates

 

Say: Richard Posner as the Scalia replacement plus Sri Srinivasan for Ginsburg

[PassedOut]

Whether "error" has occurred and whether a person is "innocent" is unknowable in any absolute, true-false sense ...

Often it is not, but sometimes it is.

 

Sincere question: how?when?

For a simple example, if a crime is committed in one place and a person cannot have been at that place at that time, then the person is innocent of the crime committed there.

 

So you don't think that that rather obvious fact ... wouldn't come out at the first trial?

Usually, but once in a while evidence is missing, unavailable, or suppressed. That's a good reason for having a system to correct injustices.

 

I have to say, though, that it's interesting to see the way people who rationalize positions like Scalia's actually think.

[Winstonm]

We are all biased, no doubt; however, from my point of view what separates the political sides now is a a type of extremism: extremes in rationalization. I submit that these people do not attempt to interpret the Constitution but instead search for a reading of the Constitution that fits their ideology. This is a rather fine distinction, and it can be argued that everyone does the same, and that may well be the case to a degree, but I also submit that the truly self-honest person double and triple checks to make certain his understanding is non-biased and is willing to change his viewpoint if actuality and ideology disagree.

[kenberg]

For a simple example, if a crime is committed in one place and a person cannot have been at that place at that time, then the person is innocent of the crime committed there.

 

Let me focus on this one for a moment. From the Wikipedia:

Davis denied shooting Cooper and denied shooting MacPhail. Davis testified to having seen Coles assault Young, and Davis said that he had fled the scene before any shots were fired and, therefore, did not know who had shot MacPhail.^[35][36]

 

Six witnesses, including Davis, testified at trial for the defense.^[32] Davis's mother testified that Davis had been at home on August 19, 1989, until he left for Atlanta with his sister at about 9 pm.^[35]

 

 

There appears to be a problem. Davis said he fled the scene, his mother said he was at home. Perhaps theese two stements can be reconciled. Maybe he was at his home until 9, left with his sister, dumped her somewhere, went to the scene, fled the scene, picked up his sister. It's possible. The jury is to listen, and decide.

 

The decision of a jury is not beyond review, many people have been released after exonerating evidence has been uncovered. But I think it goes roughly like this: A person, at the start, is legally entitled to a presumption of innocence. After a jury trial at which he is found guilty, the legal presumption is that he is guilty. The conclusion can change, but until then the presumption is that he is guilty.

 

Jury decisions are not holy writ, but they are not to be overturned lightly either. My guess, after reading the wik, is that he did ot. But my guess is, and should be, of no importance.

 

If someone wants to argue that the possibility of error is one reason not to impose the death penalty, I agree. And I regard sitting on judgment of anyone as most onerous. But we do so, and in fact we must. I seriously doubt that anyone is ok with an innocent person being executed.

[Zelandakh]

So you don't think that that rather obvious fact -- heard of an alibi defense? -- wouldn't come out at the first trial?

It might be that a vital piece of evidence such as a photo or video only comes to light after the original trial. Yes it would be unusual but it is hardly impossible.

 

 

Step 1: Lean on Ginsburg to resign

Step2: Try to craft an agreement around a pair of candidates

Have you been re-watching the West Wing, Richard? :P

[hrothgar]

Have you been re-watching the West Wing, Richard? :P

 

There is a reason why I used the word "Sorkinesque" in the original posting... (I readily admit the idea was lifted from the West Wing)

[barmar]

Correct. Nor does it say that the Senate has a duty to confirm; confirmation is generally viewed as a political concession to the president, which, in turn, does not mean that the Senate must confirm just any nominee. "Bork" is not a verb.

No one is expecting them to "confirm just any nominee". But they should at least be willing to consider the merits of the nominee, not refuse to participate in the constitutionally-mandated process.

 

There's nothing in the Constitution requiring legislators to vote on any particular bill. But if one of them missed a significant number of votes, they're obviously not doing their job.

[mike777]

I like Bill James comment here:

 

"Well. . .there certainly has to be some limit as to the extent at which the Senate can ignore nominees. The system breaks down if the Senate SYSTEMATICALLY ignores nominees, so the question that now confronts us is "What exactly is the limit of the Senate's right to ignore a nominee?" "

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I hope the President nominates whoever he prefers for whatever reasons.

 

I am not sure what the issues or concerns are if we get a "liberal" court. We lose our religious liberty? We lose our guns or get unrestricted abortion? The unions seize control of the workforce? The EPA takes control of the economy in the name of saving the planet? 15 million illegal immigrants get the vote?

 

Is the above what people "hear" when the phrase "liberal court" is spoken? I don't know.

[akwoo]

I have to say, though, that it's interesting to see the way people who rationalize positions like Scalia's actually think.

 

Let me attempt to fully rationalize one version of Scalia's position.

 

One way to understand his view is that the law is supposed to act like a computer program.

 

We all know computer programs have bugs. They do the wrong thing sometimes. Occasionally they even completely fail and crash. But Scalia says that when the law has a bug, even a hideous bug that executes an innocent person, the computer program keeps running until there is a software update in the form of a legislative or constitutional fix to laws or legal procedures.

 

What is the argument behind this? It goes that there is no difference in principle between one exception and another exception. Hence, if one exception can be made for what seems like a very good reason, other exceptions can equally be made for what seem like good reasons, and we go down the slippery slope of exceptions for less and less obviously good reasons, and pretty soon there is no longer law.

[akwoo]

There is nothing in the Constitution to prevent the Senate from trying to turn the US into the parliamentary-type democracy, insisting on approving only the nominees for courts and for the Cabinet that they have signaled in advance and turning the President into a figurehead like the British monarch. The major difference is that Supreme Court decisions and an impeachment case during the administration of Andrew Johnson affirmed the prerogative of the President to dismiss Cabinet secretaries without the approval of the Senate, but the Senate could attempt to take this right away from the President using the power of the purse, or by refusing to confirm any successor.

[mike777]

I suppose there are two ways to use the constitution to try and overcome this problem.

 

1) the voting booth

2) recess appts and the entire legal arguments over what are or are not "legal" recess appts.

 

 

Of course the constitution set up checks and balances and competing power centers so over the decades the power flows and ebbs between the branches of power.

 

 

At some point the voting public will decide just how angry or not angry they are over the whole issue. No one really knows at this point the level of anger.

 

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Another way to phrase the whole issue of the purpose of the courts is that the trial is not about finding truth or justice or right or wrong it is about following the law.

Many people hate this idea.

 

If you follow the law you can execute whoever. If you don't like that, change the law. When the law is in conflict with other law, SOCTUS weighs and decides.

[hrothgar]

If you follow the law you can execute whoever. If you don't like that, change the law.

 

"If you follow the law, you can keep blacks as slaves. If the blacks don't like this, they can change the law"

[Flem72]

Usually, but once in a while evidence is missing, unavailable, or suppressed. That's a good reason for having a system to correct injustices.

 

I have to say, though, that it's interesting to see the way people who rationalize positions like Scalia's actually think.

 

I don't think you understand Scalia's position or the law in this area. We're talking about the source of the "right" to a new trial are we not? It is statutory, not constitutional. The usual rubric is that a defendant is entitled to a fair trial, not an error-free one.

 

You are no doubt familiar with the "system" that has allowed convicted persons to get out of prison b/c of bad -- falsified or just plain botched -- evidence, usually of the DNA variety? or newly discovered evidence? or inadequate representation? It can be done, but it is a matter of procedural rule, generated for the federal courts by SCOTUS pursuant to statutory duty, and not a constitutional matter. If you think it's source should be the Due Process clause -- and it is not -- you will find that 99.9% of the process that is due comes before verdict.

 

If you want to see what the standards are -- and there is a requirement of diligence placed upon defendants and their counsel-- check out FRCrP 33 and the (hundreds of) case annotations.

[mike777]

Of course there is another way to change the law and that is War. War is just politics by another name.

 

Lets hope we can avoid Armageddon.

[Flem72]

We are all biased, no doubt; however, from my point of view what separates the political sides now is a a type of extremism: extremes in rationalization. I submit that these people do not attempt to interpret the Constitution but instead search for a reading of the Constitution that fits their ideology. This is a rather fine distinction, and it can be argued that everyone does the same, and that may well be the case to a degree, but I also submit that the truly self-honest person double and triple checks to make certain his understanding is non-biased and is willing to change his viewpoint if actuality and ideology disagree.

 

I would put the matter this way:

 

Cases that reach SCOTUS are hard cases, on the far outskirts of decided law; that's why the Court exists. Agreed? If you are familiar with the process of SCOTUS decision making, you will know that preliminary drafts of opinions AND dissents, sometimes several versions, are circulated among the justices, so that the final publication is as highly refined as possible.

 

I believe it is difficult for a judges to be intellectually dishonest ("twisty" to the point of sham) when extensive written opinions are required and support for their reasoning, based upon a preexisting body of "received wisdom", must be provided for all to see. This requirement is the essence of a judicial action as opposed to a legislative or executive one. But I think that, when a case reaches the far outskirts, and a reasoned answer is required, a judge will fall back upon his/her fundamental view of the constitution to reach a final conclusion. I don't see this as a bias as much as it is a philosophical position. If we are debating the existence of precognition, or the possibility vel non of true AI, your view of the mind/brain problem will inform all arguments that go beyond the data.

[barmar]

But I think that, when a case reaches the far outskirts, and a reasoned answer is required, a judge will fall back upon his/her fundamental view of the constitution to reach a final conclusion. I don't see this as a bias as much as it is a philosophical position. If we are debating the existence of precognition, or the possibility vel non of true AI, your view of the mind/brain problem will inform all arguments that go beyond the data.

I think the complaint people have had with some court decisions is that they don't start with their view of the Constitution. They start with what they think is "right", and then try to find some way to justify it in the words of the Constitution.

 

For instance, in the Obamacare case, they recognized that the Constitution allowed taxation (depite what many tax protesters claim), so they just had to get enough of the justices to agree that the individual mandate is a tax, not a fine.

 

Then there are cases where the Court has to determine the intent of the Constitution, like Citizens United and same-sex marriage. There's nothing in the Constitution that says whether corporations should be treated like people when determining what rights they have, so SCOTUS had to decide the intent given the lack of explicit guidance (it's kind of like trying to decide what's alertable in ACBL, considering the vague wording in our Alert Procedure).

[PassedOut]

I think the complaint people have had with some court decisions is that they don't start with their view of the Constitution. They start with what they think is "right", and then try to find some way to justify it in the words of the Constitution.

Exactly the way that religious people use the Bible or the Quran...