SCOTUS after Scalia

[blackshoe]

I do believe that a law designed to protect and free should not be allowed to become a launching pad for political power grabs.

And yet, sadly, they almost always do. :(

[Winstonm]

Not sure I follow this logic at all. To what mental contortions do you refer?

 

1st Amend. freedom of expression is the constitutional "right" most likely to continue to expand: There are indeed many new ways in which "speech" technologically can and culturally may and will (defecating on a flag anyone?) occur, and you left out a lot of steps that were OKed as free speech between drawing a crowd on a 1789 street corner and contributing to an organization that will advance a political point of view.

 

I do recognize, of course (mild sarcasm alert), that you are objective in this criticism, since conservatives by no means have any advantage in big$ political clout.

 

Scalia touted originalism, claiming many times that the Constitution was not a living document but "dead, dead, dead." One cannot have it both ways; either freedom of speech meant what the framers' understanding of that phrase meant in their times or the Constitutional meanings do indeed change with the times. Which is it?

[Flem72]

Scalia touted originalism, claiming many times that the Constitution was not a living document but "dead, dead, dead." One cannot have it both ways; either freedom of speech meant what the framers' understanding of that phrase meant in their times or the Constitutional meanings do indeed change with the times. Which is it?

 

I don't think you understand the premise of originalism. "Speech" is an originalist category; originalists do not restrict the instances, evolving through time, that fill the category "speech" so long as they constitute something communicative that fulfills the function "speech.". You'd probably like to chop off the 2nd Amend. with muskets? or the 14th Amend. with propertied white males? or the commerce clause with only horse-driven commerce? or or or....

[y66]

From a story titled Court drama jolts Senate races published by The Hill today:

 

The death of Justice Antonin Scalia is throwing another curveball into the Republican battle to maintain control of the Senate.

 

Vulnerable senators were hoping to be able focus on their records as the party defends 24 Senate seats in November.

 

Instead, those senators have to make a choice: Pit themselves against the GOP presidential field by agreeing to take up President Obama’s nominee, or face a attack ads suggesting they’re part of Washington’s “dysfunction” by fighting to keep the seat vacant.

With Republicans only able to lose a handful of seats and keep their majority, the path ahead is fraught with danger.

 

Up to now, the vulnerable lawmakers have tried to localize their reelections bid and avoid being dragged into the GOP infighting among the presidential field.

 

Republicans in blue-leaning states, in particular, have sought to stay above the presidential fray, with some wary of being tied too closely to Donald Trump.

 

But Democrats are seeking to link the Supreme Court and the presidential race in the minds of voters, suggesting the GOP’s refusal to take up Obama’s nominee puts them squarely in line with Sen. Ted Cruz (R-Texas) and Trump.

 

“[senate Republicans] prefer to delay, delay, delay until they elect a President Cruz or President Trump who can nominate someone who supports their brand of extreme conservatism,” Amy Dacey, the CEO of the Democratic National Committee, wrote in a fundraising email.

 

Vice President Biden echoed her comments, telling MSNBC’s Rachel Maddow that the Senate GOP is “intimidated by the dominant element of the Republican Party, the national politics right now, the far right.”

 

Even before Scalia’s death, Republican senators were keeping a close eye on the voter frustration that Trump, Cruz and Democratic Sen. Bernie Sanders have tapped on the campaign trail.

 

Sen. John McCain (R-Ariz.) told The Hill shortly before Scalia’s death that “anybody who is an incumbent who is running for reelection ought to be very concerned.”

 

The Arizona Republican — who faces both a primary challenge and competitive general election — quickly backed Senate Majority Leader Mitch McConnell’s (R-Ky.) strategy of allowing the next president to fill the seat.

 

But GOP incumbents, currently dispersed across the country, are struggling to deliver a unified message.

 

At the center of it all is Sen. Chuck Grassley, the chairman of the Judiciary Committee. The Iowa Republican, who is up for reelection, has told not ruled out holding a hearing for Obama’s nominee, even as he has backed McConnell’s calls to keep the seat empty.

 

Grassley isn’t alone in sending mixed message.

 

Sen. Lisa Murkowski, who is also up for reelection, initially told Alaska reporters that the president’s nominee should get a hearing. She then backtracked late this week and said the president should “follow a tradition embraced by both parties and allow his successor to select the next Supreme Court justice.”

 

Sen. Ron Johnson (R-Wis.), in particular, has been slammed by Democrats and the media after expressing seemingly contradictory positions.

 

The Republican lawmaker, considered one of the Senate’s most vulnerable incumbents, told a local Wisconsin radio station that he thought the seat should be filled by the next president.

 

But, in the same interview, he said that he's "never said that we shouldn't vote" on a nominee, suggesting that decision rests with McConnell but also that "doing nothing is still an action."

 

The mixed messaging has delighted Democrats, who say the division among Republicans indicates they will eventually cave to pressure and take up Obama’s nominee.

 

Democrats are also taking swipes at GOP Sens. Kelly Ayotte (N.H.), Rob Portman (Ohio), Pat Toomey (Pa.) and Johnson — incumbents who are at the heart of the battle for the upper chamber. All of them have backed McConnell’s strategy.

 

Lauren Passalacqua, the national press secretary for the Democratic Senatorial Campaign Committee, said their stance represents “unprecedented obstruction” and that “voters will turn out in November to elect people who will actually do their jobs.”

 

But GOP incumbents have more to worry about than Democratic attacks, as any move to accept Obama’s nominee could invite a late primary challenge.

 

While 62 percent of people in a Fox News poll said they want the president and Congress to fill the court vacancy now, only 36 percent of Republican voters took that position

[Winstonm]

http://www.newyorker.com/magazine/2016/02/29/antonin-scalia-looking-backward

 

Antonin Scalia, who died this month, after nearly three decades on the Supreme Court, devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy. Fortunately, he mostly failed.

[kenberg]

Joe Biden weighs in on filling vacancies

 

https://www.washingt...c82d_story.html

 

Some claim that this shows inconsistency but they are wrong. Senators oppose the filling of a vacancy in an election year if the president is of the opposite party. There appears to be complete consistency in this.

[y66]

http://www.newyorker.com/magazine/2016/02/29/antonin-scalia-looking-backward

 

Like Nick Carraway, Scalia “wanted the world to be in uniform and at a sort of moral attention forever.” The world didn’t coöperate. Scalia won a great deal more than he lost, and he and his allies succeeded in transforming American politics into a cash bazaar, with seats all but put up for bidding. But even though Scalia led a conservative majority on the Court for virtually his entire tenure, he never achieved his fondest hopes—thanks first to O’Connor and then to Kennedy. Roe v. Wade endures. Affirmative action survives. Obamacare lives. Gay rights are ascendant; the death penalty is not. (These positions are contingent, of course, and cases this year may weaken the Court’s resolve.) For all that Presidents shape the Court, the Justices rarely stray too far from public opinion. And, on the social issues where the Court has the final word, the real problem for Scalia’s heirs is that they are out of step with the rest of the nation. The public wants diversity, not intolerance; more marriages and fewer executions; less money in politics, not more. Justice Scalia’s views—passionately felt and pungently expressed though they were—now seem like so many boats against the current, borne back ceaselessly into the past.

Wow.

[y66]

Posted at The Hill at 1:00 PM today.

 

Republicans on the Senate Judiciary Committee have come to a consensus decision to not have hearings or a vote on a Supreme Court nominee in 2016.

 

"We believe the American people need to decide who is going to make this appointment rather than a lame-duck president," Senate Republican Whip John Cornyn (Texas) told reporters Tuesday after a special meeting of the Judiciary Committee.

 

Sen. Lindsey Graham (R-S.C.) said members of the panel reached a "consensus" that there should not be hearings or a vote on President Obama's nominee.

 

"My decision is that I don't think we should have a hearing. We should let the next president pick the Supreme Court Justice," he said after emerging from a special meeting in Senate Majority Leader Mitch McConnell’s (R-Ky.) office.

The Judiciary Committee Republicans left McConnell’s office and walked straight into a lunch with the entire GOP conference to brief their colleagues.

 

The death of Justice Antonin Scalia earlier this month has created an opening on the court, and triggered a battle between the White House and Republicans over filling it.

 

The GOP has offered mixed messages since Scalia's death over whether they would even allow a hearing on an Obama nominee, who if confirmed would almost certainly tilt the balance of the court to the left.

 

McConnell within hours of Scalia's death issued a statement saying that a decision on a nominee should be punted until after the 2016 election. McConnell, whose position was backed by other Republicans, argued this would give voters a role in the decision.

 

The White House and Democrats have argued that the Senate should consider a nominee from Obama, who is at the beginning of the third year of his second term. They have argued that it would be a deriliction of duty for the Senate to not consider an Obama nominee.

 

There have been some signs of disunity within the GOP, which faces a tough task in a presidential election year of holding on to the Senate majority.

 

Sen. Mark Kirk (Ill.), perhaps the most vulnerable sitting GOP senator, on Monday said he considered it his "duty" to vote on a nominee from Obama

[Winstonm]

Posted at The Hill at 1:00 PM today.

 

It is time for the GOP to drop their P and just GO.

[Zelandakh]

This is a great concept to have. One could extend it - a "lame duck President" could be defined as one who cannot stand for re-election, for example, so anyone in in their second term. Why not? It is just as valid. Heck a lame duck President should not be making laws either so no need to provide them with a budget. Shut them down! You know it makes sense! :P :unsure:

[mike777]

Wow.Like Nick Carraway, Scalia “wanted the world to be in uniform and at a sort of moral attention forever.” The world didn’t coöperate. Scalia won a great deal more than he lost, and he and his allies succeeded in transforming American politics into a cash bazaar, with seats all but put up for bidding. But even though Scalia led a conservative majority on the Court for virtually his entire tenure, he never achieved his fondest hopes—thanks first to O’Connor and then to Kennedy. Roe v. Wade endures. Affirmative action survives. Obamacare lives. Gay rights are ascendant; the death penalty is not. (These positions are contingent, of course, and cases this year may weaken the Court’s resolve.) For all that Presidents shape the Court, the Justices rarely stray too far from public opinion. And, on the social issues where the Court has the final word, the real problem for Scalia’s heirs is that they are out of step with the rest of the nation. The public wants diversity, not intolerance; more marriages and fewer executions; less money in politics, not more. Justice Scalia’s views—passionately felt and pungently expressed though they were—now seem like so many boats against the current, borne back ceaselessly into the past.

 

I believe the Justice believed that many of these issues should be settled by the elected legislature, not 9 unelected people from Harvard and Yale. His legal philosophy was if it is not in the constitution, the court case should be dismissed.

Of course many, many disagreed as your post points out.

[barmar]

Trevor Noah talked about this last night on The Daily Show.

 

Obama is not yet a lame duck President. An official is a lame duck during the period between the election and inauguration of his successor. So we have more than 8 months before that.

[Winstonm]

I believe the Justice believed that many of these issues should be settled by the elected legislature, not 9 unelected people from Harvard and Yale. His legal philosophy was if it is not in the constitution, the court case should be dismissed.

Of course many, many disagreed as your post points out.

 

 

Well, that's certainly the story his agent would like you to believe.

[y66]

Guest post from POTUS via scotusblog.com

 

A Responsibility I Take Seriously

 

The Constitution vests in the President the power to appoint judges to the Supreme Court. It’s a duty that I take seriously, and one that I will fulfill in the weeks ahead.

 

It’s also one of the most important decisions that a President will make. Rulings handed down by the Supreme Court directly affect our economy, our security, our rights, and our daily lives.

 

Needless to say, this isn’t something I take lightly. It’s a decision to which I devote considerable time, deep reflection, careful deliberation, and serious consultation with legal experts, members of both political parties, and people across the political spectrum. And with thanks to SCOTUSblog for allowing me to guest post today, I thought I’d share some spoiler-free insights into what I think about before appointing the person who will be our next Supreme Court Justice.

 

First and foremost, the person I appoint will be eminently qualified. He or she will have an independent mind, rigorous intellect, impeccable credentials, and a record of excellence and integrity. I’m looking for a mastery of the law, with an ability to hone in on the key issues before the Court, and provide clear answers to complex legal questions.

 

Second, the person I appoint will be someone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law. I seek judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand.

 

But I’m also mindful that there will be cases that reach the Supreme Court in which the law is not clear. There will be cases in which a judge’s analysis necessarily will be shaped by his or her own perspective, ethics, and judgment. That’s why the third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times. That, I believe, is an essential element for arriving at just decisions and fair outcomes.

 

A sterling record. A deep respect for the judiciary’s role. An understanding of the way the world really works. That’s what I’m considering as I fulfill my constitutional duty to appoint a judge to our highest court. And as Senators prepare to fulfill their constitutional responsibility to consider the person I appoint, I hope they’ll move quickly to debate and then confirm this nominee so that the Court can continue to serve the American people at full strength.

[PassedOut]

No fair taking the high road!

B-)

[kenberg]

As everyone knows, the Republican leadership has made it clear they will not approve or even consider any nominee no matter who. This is a terrible waste of an opportunity to make much needed improvements in the political life of the nation.

 

The Founders, as I understand it, did not envision political parties. They certainly did not envision this dysfunctional, take no prisoners, approach to government. Separation of powers is one thing, mutual annihilation of powers is something else.

 

 

Anyway, a Supreme Court justice is a lifetime appointment, outlasting the President and outlasting any temporary political dominance of the Senate. At its best, this means that the Senate and the President would each treat the other, and history, and the country, with some modicum of respect. This would mean that the President refrains from a position of "I am the President, I get to nominate who I want, your job is to shut up and approve my choice" and the Senate refrains from a position of "Don't bother, we don't care who you nominate, we ain't playing".

 

Any nominee will have views. We are not looking for someone who has never thought seriously about any issues. But we need someone who respects the fundamental ideas of the nation. I think that there is more of a consensus on what this means than is sometimes imagined.

 

Of course all of this discussion is pointless. The President will nominate, the Senate will tell the President to go Trump himself. This is not the way it is supposed to work.

[hrothgar]

As everyone knows, the Republican leadership has made it clear they will not approve or even consider any nominee no matter who. This is a terrible waste of an opportunity to make much needed improvements in the political life of the nation.

 

If the committee is unwilling or unable to schedule a meeting, it sounds like they are in recess.

There is a way to square this circle.

 

I understand that there is some disagreement about what constitutes a recess.

Sounds like something for the (new) Supreme court to consider

[Zelandakh]

Of course all of this discussion is pointless. The President will nominate, the Senate will tell the President to go Trump himself. This is not the way it is supposed to work.

What would happen if the Reps won the WHite House and the Dems took over the Senate and decided to retaliate by refusing any SC nomination of the new President? Is there anything to stop this from continuing indefinitely aside from waiting for the next wave of elections (which may or may not change the status quo)?

[mike777]

What would happen if the Reps won the WHite House and the Dems took over the Senate and decided to retaliate by refusing any SC nomination of the new President? Is there anything to stop this from continuing indefinitely aside from waiting for the next wave of elections (which may or may not change the status quo)?

 

 

Basically no. Of course the SC is still deciding cases. Of course to go 4 years and not replace a Justice has never happened in the USA, yet.

 

Keep in mind it is common in history for govts to basically stop working, the solution is often the destruction of the govt and it is replaced by something else. Civil War is common even in 2016. Governments fail, countries fail and are replaced by something else. Just in our lifetimes we have seen countries disappear, even a giant country such as the USSR.

[kenberg]

What would happen if the Reps won the WHite House and the Dems took over the Senate and decided to retaliate by refusing any SC nomination of the new President? Is there anything to stop this from continuing indefinitely aside from waiting for the next wave of elections (which may or may not change the status quo)?

 

It seems that there is nothing to stop it. I suppose sociologists study this sort of mutually destructive behavior. In the 1950s the following joke was making the rounds: A scorpion approaches a turtle and asks him for a ride across the Jordan River. The turtle refuses, worrying that the scorpion will bite him The scorpion explains that the turtle need not worry, f the scorpion did so then they both would drown. So the turtle agrees, and as they get to the middle of the river the scorpion bites the turtle. "Why?" asks the turtle. "it's the Middle East" replies the scorpion.

 

OK, I admitted that it was an old joke. But the results of this in real life are not funny. It would be really good if the Republicans, being the ones who now control the Senate, would say "We could block this, but if you give us a nominee we can live with we will confirm the nominee. Please remember this when the situation is reversed".

 

It would be good to see this, but we will not see this. And so it goes.

[PassedOut]

Of course congress sets the number of Supreme Court justices, and could simply set it now to eight. It started out as six, and has been as high as ten.

[WellSpyder]

It would be good to see this, but we will not see this. And so it goes.

Watching all this from the outside is incredibly depressing. Do your politicians not care at all about how much disrepute they bring their profession into? Are they really naïve enough to believe it will all stick to the other side rather than the whole political process? Or is this just an example of the "we are right so we can justify doing anything" attitude that the US sometimes appears to display towards the rest of the world?

[mike777]

Watching all this from the outside is incredibly depressing. Do your politicians not care at all about how much disrepute they bring their profession into? Are they really naïve enough to believe it will all stick to the other side rather than the whole political process? Or is this just an example of the "we are right so we can justify doing anything" attitude that the US sometimes appears to display towards the rest of the world?

 

Both are reasons.

 

Please keep in mind even in your own country of the UK there are discussions, very serious discussions of destroying the UK as we know it today and replacing it with something else or several something elses. These sorts of things happen all the time in history even in 2016.

[barmar]

Watching all this from the outside is incredibly depressing. Do your politicians not care at all about how much disrepute they bring their profession into? Are they really naïve enough to believe it will all stick to the other side rather than the whole political process? Or is this just an example of the "we are right so we can justify doing anything" attitude that the US sometimes appears to display towards the rest of the world?

We've had congressional gridlock for at least the past two administrations, so obviously they don't care.

 

I've heard some opinions that the GOP is bluffing, and will back down when Obama actually presents him. It's easy to be boisterous now, but it would be political suicide to actually go through with it. It's like when they hold the budget hostage and threaten government shutdowns.

[kenberg]

Watching all this from the outside is incredibly depressing. Do your politicians not care at all about how much disrepute they bring their profession into? Are they really naïve enough to believe it will all stick to the other side rather than the whole political process? Or is this just an example of the "we are right so we can justify doing anything" attitude that the US sometimes appears to display towards the rest of the world?

 

Incredibly depressing from here as well.

People often bemoan the lack of compromise. True enough, but I want to make a distinction.

If people treat others with respect, often they can come up with something that is better than what either or any would have come up with on their own. This is more than a compromise where each side gives in some, it becomes a solution that all parties can agree is better all around than what anyone had suggested at the beginning.

This simply cannot happen in the current climate and we are all worse off for it.

Very depressing.