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General Category => General Comments => Topic started by: NobleHunter on February 13, 2016, 05:29:38 PM

Title: Justice Scalia dead
Post by: NobleHunter on February 13, 2016, 05:29:38 PM
http://www.cbc.ca/news/world/supreme-court-justice-antonin-scalia-dead-1.3447579 (http://www.cbc.ca/news/world/supreme-court-justice-antonin-scalia-dead-1.3447579)

Well, damn. That was more unexpected that it should have been.
Title: Re: Scalia dead
Post by: AI Wessex on February 13, 2016, 05:36:29 PM
Well damn, indeed.  I thought he would live forever and torture even more generations with his idiosyncratic brand of faux originalism.  Now we'll see what the Senate does when Obama puts forward the nomination of his successor.  It won't be pretty.
Title: Re: Justice Scalia dead
Post by: Pete at Home on February 13, 2016, 06:04:33 PM
Why should it be pretty?  Can you name any Obama appointment to SCOTUS that was less phony in his or her protestations of constitutional principle, and less of a modish political sellout than Scalia:  He may have written Rausch, but four "liberal" justices signed it.
Title: Re: Justice Scalia dead
Post by: AI Wessex on February 14, 2016, 06:38:33 AM
You continually dismaze me.  I will hope for another Souter.
Title: Re: Justice Scalia dead
Post by: AI Wessex on February 14, 2016, 09:33:41 AM
Mitch McConnell 2005 stands on principle not politics:
Quote
    "The Constitution of the United States is at stake.  Article II, Section 2 clearly provides that the President, and the President alone, nominates judges.  The Senate is empowered to give advice and consent.  But my Democratic colleagues want to change the rules.  They want to reinterpret the Constitution to require a supermajority for confirmation.  In effect, they would take away the power to nominate from the President and grant it to a minority of 41 Senators."

    "[T]he Republican conference intends to restore the principle that, regardless of party, any President's judicial nominees, after full debate, deserve a simple up-or-down vote.  I know that some of our colleagues wish that restoration of this principle were not required. But it is a measured step that my friends on the other side of the aisle have unfortunately made necessary. For the first time in 214 years, they have changed the Senate's 'advise and consent' responsibilities to 'advise and obstruct.'"

Mitch McConnell 2016 again stands on principle over politics:
Quote
“The American people‎ should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,” the Kentucky Republican said in a statement.
Despite the fact that the longest any vacancy has lasted in modern history is 3 months.

Grassley, like Cruz and Rubio at last night's debate, weighs in with false facts:
Quote
“The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year,” Mr. Grassley said. “Given the huge divide in the country, and the fact that this president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court justice.”
Actually, at least 6 vacancies have been filled in an election year since 1912, and (I think) many others before that.

Principle is everything if you're a Republican; the President should not turn this into a political game by nominating someone to fill the vacancy.  Question: If a Republican does *not* win the White House in November, should filling the vacancy be deferred until 2020?
Title: Re: Justice Scalia dead
Post by: Pete at Home on February 14, 2016, 10:42:07 AM
I note that you did not attempt to answer my question of identifying any Obama SCOTUS appointee that was less of a political ho than Scalia. :(

You continually dismaze me.  I will hope for another Souter.

Souter was a Bush appointee who veered left after duping Congreess to appear moderate.  You want a justice to veer conservative after duping Obama?

Souter's rulings and written opinions at least do not rule out the possibility of any coherent moral principle (unlike Justice Stephens, another surprise appointee).  But Souter did support Scalia's opinion in Rausch , and thus remains, IMO, an enemy of the people and a friend of the tyrant-state.

Title: Re: Justice Scalia dead
Post by: AI Wessex on February 14, 2016, 11:12:43 AM
Quote
I note that you did not attempt to answer my question of identifying any Obama SCOTUS appointee that was less of a political ho than Scalia. :(
Because you're just trying to distract by picking a fight rather than talk about Scalia's shameful legacy.  I'm waiting for you to bring Hitler into yet another thread or reference some obscure case to bolster your authority on this issue.  In fact, it's everybody's issue and we all have an equal voice in this discussion.

Quote
Souter was a Bush appointee who veered left after duping Congreess to appear moderate.  You want a justice to veer conservative after duping Obama?
One thing I liked about Souter was his genuine modesty and ability to reflect and alter his views as he continued to think about issues.  Do you think they can avoid letting ho's sit on the bench with binding litmus tests during confirmation hearings that guarantee their rulings in all cases? Like the Originalist Constitution (that is an imaginary antiquated set of guideposts), they should not evolve in their thinking during their term on the bench.  So, why bother?  Just let the President (if he's of your party) tell the SC what decision they should make.  If the President is not of your Party, insist that the SC should be independent, but should not replace any members unless the POTUS is of your Party, actually of the wing of your Party if you control the Senate.  Hell, we don't need all this fuss, just put the SC members back on the Circuit where Madison wanted them to be to protect "federal interests", not the Constitution. 

But the real issue (and has been since 1992) is that Democrats do not represent the real interests of this nation.  Republicans have to do everything in their power to prevent them from doing ever more harm to the Republic.  For God's sake, don't let them infect the SC more than they already have!
Title: Re: Justice Scalia dead
Post by: Pete at Home on February 14, 2016, 11:34:27 AM
Quote
I note that you did not attempt to answer my question of identifying any Obama SCOTUS appointee that was less of a political ho than Scalia. :(
Because you're just trying to distract by picking a fight rather than talk about Scalia's shameful legacy.

I'm the only person on this thread who brought up Scalia's shameful legacy, the *Rausch* decision.  I said nothing to "start a fight." 

"reference some obscure case to bolster your authority on this issue. "

How can I discuss Scalia's legacy without discussing his cases?  Why do you even begin discussions about jurisprudence if you have such grotesque penis envy against anyone who knows something you don't know about the law? 

Title: Re: Justice Scalia dead
Post by: AI Wessex on February 14, 2016, 12:35:53 PM
"Hos" and "penis envy".  That sets a good tone for discussion, doesn't it?  "Rausch"?  Do you mean Raich?  If so, you'll have to explain.  OTOH, there is plenty to criticize about a host of other rulings and statements he made.

One wonders what an 8-member SC will do with a lot of cases.  Obama could drive Republicans bat*censored* crazy with Executive Actions on immigration, climate, commerce regulation and a host of other things that would lead to 4-4 no-decisions.  As Rubio says, Obama has only "a few months" left in office, less than the 11+ months he really has, to cause mischief. Maybe the Republicans will get lucky and Obama won't see the opportunity and run out of time before he gets everything done.  I doubt Hillary would dismantle or rescind any of those program changes.
Title: Re: Justice Scalia dead
Post by: Fenring on February 14, 2016, 01:17:42 PM
Pete, here's an excerpt from Scalia's Raich write-up:

Quote
Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.”

What's wrong with this opinion?
Title: Re: Justice Scalia dead
Post by: NobleHunter on February 14, 2016, 01:22:37 PM
One wonders what an 8-member SC will do with a lot of cases.  Obama could drive Republicans bat*censored* crazy with Executive Actions on immigration, climate, commerce regulation and a host of other things that would lead to 4-4 no-decisions.  As Rubio says, Obama has only "a few months" left in office, less than the 11+ months he really has, to cause mischief. Maybe the Republicans will get lucky and Obama won't see the opportunity and run out of time before he gets everything done.  I doubt Hillary would dismantle or rescind any of those program changes.
Even if that's a game Obama tries to play, it'd seem like a simple matter to arrange for the challenges to arrive before the court next year.

If the GOP decides to play the delaty game, will they give up if Cruz or Trump wins the nomination? Or Sanders? Holding off seems like a risky option considering how few candidates can be counted on to be reasonable (from the Establishment's perspective) if elected.
Title: Re: Justice Scalia dead
Post by: Pete at Home on February 14, 2016, 01:27:34 PM
"Hos" and "penis envy".  That sets a good tone for discussion, doesn't it?  "Rausch"?  Do you mean Raich?  If so, you'll have to explain. 

Al, you've framed this discussion with the claims that (1) anything I say is an attempt to start a fight with you, and (2) I only cite or discuss caselaw in order to inflate my personal sense of authority.  How do you seriously expect to have an intelligent discussion after such accusations?  Right at the onset, you've boxed up any possibility of intelligent or respectful discussion between us.  And that's disappointing, since I thought from our last exchange that we'd decided to give each other another chance.
Title: Re: Justice Scalia dead
Post by: Pete at Home on February 14, 2016, 01:29:47 PM
Pete, here's an excerpt from Scalia's Raich write-up:

Quote
Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.”

What's wrong with this opinion?

What's wrong is Scalia's pretense that the case facts of Raisch (thanking Al for correcting my spelling) fit the rule.  Because if a houseplant in the windowsill can fit the commerce rule, then Congress could regulate the sexual positions in marital coitus, and call that interstate commerce.  It's a gross expansion of the already bloated Wicker decision.
Title: Re: Justice Scalia dead
Post by: NobleHunter on February 14, 2016, 01:39:28 PM
Looked it up on Wikipedia. Holy crap that was a Federal uber alles decision. Since half the point of a federal system is free commerce between the States, under this decision's logic all commerce becomes interstate commerce. Granted, it appears the mistake had been made by a previous case, but it's still widely counter to the intent of the interstate commerce clause.
 
Quote
Congress could regulate the sexual positions in marital coitus, and call that interstate commerce
It might affect the interstate market for "marital aids" or prostitutes.
Title: Re: Justice Scalia dead
Post by: Pete at Home on February 14, 2016, 01:45:58 PM
Quote
Quote
Congress could regulate the sexual positions in marital coitus, and call that interstate commerce
It might affect the interstate market for "marital aids" or prostitutes.

Yes.  My con law professor who agreed with Raisch, recognized that my analysis was correct, but said that Congress simply wouldn't pass such a law.  My position is that the constitution is nullified both by the allowance, and by the implication that we should just trust government to do what we previously restricted them from doing through the Constitution.

Looked it up on Wikipedia. Holy crap that was a Federal uber alles decision. Since half the point of a federal system is free commerce between the States, under this decision's logic all commerce becomes interstate commerce. Granted, it appears the mistake had been made by a previous case, but it's still widely counter to the intent of the interstate commerce clause.
 


Actually, the previous decision did NOT go as far as Raisch.  The previous decision was distinguishable because the farmer's grain was FED to the farmer's livestock who were sold in interstate commerce.  That's enormously different from a plant in the windowsil that was used exclusively for the homeowner's purposes.  Scalia had a chance to reverse a very bad piece of case law, and instead he expanded it, betraying every principle of federalism that he'd claimed to stand for for the previous 15 years.
Title: Re: Justice Scalia dead
Post by: AI Wessex on February 14, 2016, 02:07:35 PM
I read the wikipedia article so I have moved up from being ignorant to having enough information to be dangerous.  What raises my hackles even more than the decision is that I agree with Clarence Thomas's dissent position:
Quote

    Respondent's local cultivation and consumption of marijuana is not "Commerce ... among the several States."

    Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

and

    If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers – as expanded by the Necessary and Proper Clause – have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to "appropria[te] state police powers under the guise of regulating commerce."

and further:

    If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite."

Pete, your honor is redeemed ;), except for the penis envy comment. 
Title: Re: Justice Scalia dead
Post by: Mynnion on February 14, 2016, 02:12:48 PM
To push the conversation a little   Who should Obama nominate?  A moderate or a liberal?  How should the Senate respond?  Block the vote, reject the nominee, or appoint if qualified?

While the initial response was to block there are certainly some considerations that should go into that decision.  If Obama's choice is a well respected and well qualified moderate will the GOP risk the possibility of a Clinton/Sander's win and the possible loss of the Senate giving the opportunity for a liberal nominee?

It looks like there are 24 GOP Senate seats up for grabs and only 10 DEM seats.

Trump is a wild card.  If he wins no one is really sure what kind of nominee he will choose.
If the GOP race is close and they choose a candidate other than Trump will he run as an independent and split the party?

Hold onto your hats.  This is going to get messy.
Title: Re: Justice Scalia dead
Post by: Fenring on February 14, 2016, 02:13:27 PM

What's wrong is Scalia's pretense that the case facts of Raisch (thanking Al for correcting my spelling) fit the rule.  Because if a houseplant in the windowsill can fit the commerce rule, then Congress could regulate the sexual positions in marital coitus, and call that interstate commerce.  It's a gross expansion of the already bloated Wicker decision.

But marital coitus isn't a saleable item, as obviously pot is. Why doesn't it stand to reason that if people are producing something with a substantial market value - regardless of their intent in its use, for themselves or for sale - that this might involve interstate commerce? For instance, what if people using pot locally would directly affect interstate purchasing of pharmaceuticals that the pot would replace? Or what if people would start crossing state lines to purchase the pot rather than consuming products locally? I don't think it stands to reason that "just a houseplant on a windowsill" would actually remain that for long.
Title: Re: Justice Scalia dead
Post by: Pete at Home on February 14, 2016, 02:19:30 PM
Thanks, Al.

The Penis envy remark was me lashing out (immaturely) against what struck me as a very hurtful personal jab, the most hurtful since Kenmeer's dark little fantasy about my child dead in a garbage can.  In reflection I don't think you meant it any where as hurtfully as I took it.  I felt crushed.

I'm actually quite grateful at your recognition that at least in this case, I cited Raisch to further the point of the thread rather than to just inflate my own authority.

I wasn't trying to start a fight when I suggested that Scalia's darkest legacy lives on in the "liberal" justices that supported his Raisch decision.  Right or wrong, it's what I feel and believe. 

I salute your integrity at being able to recognize truth even when it comes from the mouth of someone like Clarence Thomas. 
Title: Re: Justice Scalia dead
Post by: Pete at Home on February 14, 2016, 02:23:14 PM

What's wrong is Scalia's pretense that the case facts of Raisch (thanking Al for correcting my spelling) fit the rule.  Because if a houseplant in the windowsill can fit the commerce rule, then Congress could regulate the sexual positions in marital coitus, and call that interstate commerce.  It's a gross expansion of the already bloated Wicker decision.

But marital coitus isn't a saleable item, as obviously pot is.

The argument is that someone who is getting good sex at home, and happy in their marriage, would be less inclined to get a happy endings massage from an illegally trafficked sex slave at an Asian massage parlor.  Therefore, by logic no more invasive than that of Raisch, Congress has the power to regulate marital sex under the Commerce clause.  Thanks to Scalia, Stephens, Souter, Ginsburg, Breyer and Kennedy.  Not to mention Madame Butterfly herself, Katherine Harris of Florida 2000.
Title: Re: Justice Scalia dead
Post by: Fenring on February 14, 2016, 02:34:41 PM
I'm no lawyer...but I'm pretty sure that didn't answer my question. Incidentally I think the problem isn't the SCOTUS decision but rather the interstate commerce power itself. If I had to guess I would suggest that its wording is probably the culprit that allows them to interpret it so broadly. As you suggest, logic can be stretched to interpret pretty well anything commerce-related as being interstate commerce in an age of quick transport and online purchases.
Title: Re: Justice Scalia dead
Post by: Pete at Home on February 14, 2016, 03:05:59 PM
"Interstate commerce" was clear enough until Raisch, and the logic that extended it was dishonest logic, IMO.  Like Justice Stephen's argument that the first amendment "with respect to religion" meant showing respect to religion, rather than with reference to religion.  It's a dishonest argument masquerading as a textual argument.  Any words may be "interpreted" to mean anything, but reasonable and honest interpretation creates a much narrower scope of variances.

Law is a legal contract, and as such is only valid inasfar as it reflects the reasonable expectation of the bound parties.  The understanding may evolve, but it's dishonest, tyranous and encroachment for one party to unilaterally change the established meaning and claim that it "evolved."  That's not evolution; it's a coup d'etat.
Title: Re: Justice Scalia dead
Post by: NobleHunter on February 14, 2016, 03:12:01 PM
The logic is that because home grown medicinal pot (item A) can affect the interstate commerce in pot (item B) by supply/demand changes and because pot (item B) is regulated under the interstate commerce clause, the Feds can regulate medicinal pot (item A). Since Congress regulates sex trafficking (item B) and marital coitus (item A) could affect sex trafficking, Congress can regulate marital coitus (item A). Especially since the previous decision established federal jurisdication over local cow feed (item A) for interstate cows (item B). So the two items don't even need to be in the same market.

The commerce clause is ridiculously outdated and probably would be a couple of paragraphs if amended. ETA: If for no other reason than to restore it as a limit on Congressional power rather than a permissive. Interstate commerce, to say nothing of international commerce, is ubiquitous and it would be difficult for a single phrase or portion thereof to place clear and definite limits on the power to regulate it.
Title: Re: Justice Scalia dead
Post by: Pete at Home on February 14, 2016, 03:47:43 PM
Correcting spelling above: "Wicker" decision => WICKARD v Fimburn, 1942
Title: Re: Justice Scalia dead
Post by: AI Wessex on February 14, 2016, 07:56:12 PM
Correcting spelling above: "Wicker" decision => WICKARD v Fimburn, 1942
Now go for Raich to clean up that one.

One of the more memorable West Wing episodes involved replacing a Conservative SC Justice, assuming I remember it fairly accurately.  Rather than fight to the death with the oppositional Senate, Bartlet convinces an aging liberal Justice to retire so he can nominate two younger replacements of opposing viewpoints.  Maybe it's time for Ginsburg, who is 82 years old and has Leukemia, or Kennedy (79) to step down.
Title: Re: Justice Scalia dead
Post by: Pete at Home on February 14, 2016, 08:35:31 PM
Correcting spelling above: "Wicker" decision => WICKARD v Fimburn, 1942
Now go for Raich to clean up that one.

One of the more memorable West Wing episodes involved replacing a Conservative SC Justice, assuming I remember it fairly accurately.  Rather than fight to the death with the oppositional Senate, Bartlet convinces an aging liberal Justice to retire so he can nominate two younger replacements of opposing viewpoints.

I saw the words West Wing and nearly jotted off something rude, but fortunately resisted and read what you said.  Maybe the 1/2 episode of WW that I watched was anomaly.  That does sound like a coop and relevant piece.

The size of SCOTUS is set by statute, and was quite often jiggled for political purposes in the 19th century.  What Roosevelt proposed had much more established legal precedent than, say, eliminating the Senate cloture rule.  IMO Roosevelt's threat was entirely proper precisely because the High Court was operating in bad faith.  Wickard was a drastic change in direction and a response to Roosevelt's threat.

I think there's a legitimate argument that Wickard was legitimate under the circumstances, because we were in the Depression, and the purpose of the law could be thwarted by huge monopolies doing internal exchanges, just like the farm in question making the wheat that it fed to the cows which were in turn sold in interstate commerce.  It's not such a stretch to say that the feeding of cattle sold on interstate commerce, is a matter for Congress to legislate as interstate commerce.  More importantly the law could be thwarted without such enforcement.  There is no plausible argument in Raich that allowing window plants for medical marijuana as approved under California law would defeat the operation of federal drug laws aimed at the inter-state drug trade.  Indeed, the inter-state drug interdiction could be carried out more smoothly if the feds weren't wasting their time on harmless potted plants.
Title: Re: Justice Scalia dead
Post by: NobleHunter on February 16, 2016, 04:10:59 PM
So elsewhere on the Internet, this relevent portion of Article II of the US Constitution was pointed out:
Quote
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court
Given the arguments made by assorted GOP governors regarding his executive orders on immigration and their subsequent lawsuit, couldn't he be sued if he doesn't nominate or appoint a new Justice? It'd probably be easier to find someone with standing, as anyone with a case pending before the court could make an argument for it.

There doesn't seem to be argument for suing the Senate, however. Though Obama could make them look ridiculous for refusing to participate.
Title: Re: Justice Scalia dead
Post by: Seriati on February 16, 2016, 05:12:51 PM
Not sure what your issue is Pete, Wickard is and remains an abomination, from which Federal excess has continued with barely a pause ever since.  It would have been nice if Scalia had gone the other way and supported overturning it when Raich was decided, but that decision was 6-3, wasn't it?  Wouldn't have made a difference.  That seems like a lot of angst to pin on a justice who was generally incredibly consistent in how he interpreted the Constitution.  Irregardless of what some seem to think, having Justice's like Scalia who favor the actual text over interpretation and side conversations about the text is much better for both sides of the political spectrum than the opposite.  Putting in place a majority who'll interpret the Constitution as supporting the cause of the day, puts everyone who believes in the rule of law at risk.

On the more important question, yes the President should nominate a new Justice.  And if he picks someone from the deep left, the Senate should evaluate them at length and reject them.  This court needs honest jurists who will apply the laws as written.
Title: Re: Justice Scalia dead
Post by: NobleHunter on February 16, 2016, 05:44:07 PM
Quote
Irregardless of what some seem to think, having Justice's like Scalia who favor the actual text over interpretation and side conversations about the text is much better for both sides of the political spectrum than the opposite.  Putting in place a majority who'll interpret the Constitution as supporting the cause of the day, puts everyone who believes in the rule of law at risk.
The problem is Raich shows that Scalia didn't favor the actual text over interpretation. He, and the rest of the majority, wanted to allow the Feds to keep meddling in state experiments with medical pot so he created a justification for it and to hell with the original intent of the clause. His only consistency in interpretation was finding results that suited the ruling he wanted to make.
Title: Re: Justice Scalia dead
Post by: Pete at Home on February 16, 2016, 11:31:22 PM
Yes, NH, that's why I felt betrayed by Scaling in Raich.  Because it betrayed Scalia's record of text interpretation, and his rulings for limits on federal power.

Seriati, Wickard could and should have been construed narrowly even if not overturned.  Wickard was the high water mark, but Raich is Noah's flood.  Wickard affected interstate commerce directly though subtly.  Raich allowed for attenuated and completely speculative effects on interstate trade.
Title: Re: Justice Scalia dead
Post by: Pete at Home on February 17, 2016, 07:36:33 AM
So elsewhere on the Internet, this relevent portion of Article II of the US Constitution was pointed out:
Quote
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court
Given the arguments made by assorted GOP governors regarding his executive orders on immigration and their subsequent lawsuit, couldn't he be sued if he doesn't nominate or appoint a new Justice? It'd probably be easier to find someone with standing, as anyone with a case pending before the court could make an argument for it.

There doesn't seem to be argument for suing the Senate, however. Though Obama could make them look ridiculous for refusing to participate.

There's nothing saying there should be nine members.  They were originally set at five.  They were at one time set at eight.  The number got periodically jacked up in the 19th century so the Pres could stack the deck.
Title: Re: Justice Scalia dead
Post by: Greg Davidson on February 17, 2016, 10:04:29 AM
Just checking, anyone want to defend the near unanimous decision of Republicans speaking on the topic to call for a blanket refusal of any Obama nominee within the last 11 months of his term?

Many Republicans have declared that they have Constitutional obligation for a schedule on which they are to play their necessary part in adding a member to the Supreme Court. Anyone agree? And if you do, would you also agree that if a Republican President is elected and the Democrats have enough votes, they could use the same principle and choose to delay until the winner of the 2020 election?
Title: Re: Justice Scalia dead
Post by: AI Wessex on February 17, 2016, 10:33:43 AM
My understanding is that the number was originally set to match the number of Federal circuit courts, and one justice was assigned to each.   They were expected to live and work in the territory the circuit covered to protect federal interests rather than to decide matters of constitutional interpretation.  The number of justices changed over time as the number of circuits changed, and when the circuit courts were turned into federal appeals courts the justices were given their current home in DC.  After that the numbers game became a political football. I could be wrong on some of that, but don't have full access to the Web to check my sources.
Title: Re: Justice Scalia dead
Post by: Wayward Son on February 17, 2016, 11:13:41 AM
Quote
There's nothing saying there should be nine members.  They were originally set at five.  They were at one time set at eight.

The problem with having an even number of justices is the likely scenario of a deadlocked Court.

There are already  seven cases on the docket that will likely end up in a tie (http://fivethirtyeight.com/features/a-4-4-supreme-court-could-be-good-for-unions-and-voting-rights-advocates/), on aspects of Obamacare and contraception, union rights, redistricting, and drunk driving.  An affirmative action case will likely have a 4-3 reversal. 

Without a tie-breaker, the Court will not function as well as it should.
Title: Re: Justice Scalia dead
Post by: LetterRip on February 17, 2016, 12:44:40 PM
Actually I think a 'tie' is a great proper result.  I think all cases should have a 'win by 2'.  If they are close decisions, then there probably isn't a reasonable for cases to be decided.
Title: Re: Justice Scalia dead
Post by: Pete at Home on February 17, 2016, 01:03:34 PM
Just checking, anyone want to defend the near unanimous decision of Republicans speaking on the topic to call for a blanket refusal of any Obama nominee within the last 11 months of his term?


Don't know if this is a defense, but I'd say that it's par for the course.  Less problematic than Democrats changing the cloture rules, or demanding that the Ninth Circuit remain so huge and cumbersome.  Or Holder's selective enforcement of hate crimes, or his abrupt last minute announcement that DOMA would not be defended.  (Like I said, DOMA was unconstitutional, but Obama misled the country as to his position).
Title: Re: Justice Scalia dead
Post by: Pete at Home on February 17, 2016, 01:04:44 PM
Actually I think a 'tie' is a great proper result.  I think all cases should have a 'win by 2'.  If they are close decisions, then there probably isn't a reasonable for cases to be decided.

Agreed. 5:4 decisions strike at the court's legitimacy.  Keep at eight, or bring it to ten.
Title: Re: Justice Scalia dead
Post by: NobleHunter on February 17, 2016, 01:13:22 PM
Moving to a +2 standard might imperil the court's legitimacy by making it appear indecisive. One of the major benefits of the SC is that it makes solid decisions that can be counted on going forward.
Title: Re: Justice Scalia dead
Post by: Pete at Home on February 17, 2016, 01:22:27 PM
Moving to a +2 standard might imperil the court's legitimacy by making it appear indecisive. One of the major benefits of the SC is that it makes solid decisions that can be counted on going forward.

The whole history of the abortion wars and some of the culture wars is that the people have lost faith in the court's consistency.  Roe v. Wade has been law for 48 years, and both the prolifers and pro-choicers talk as if some change in the wind will knock it down.  Not to mention 20 years ago SCOTUS upheld criminal penalties on homosexual consensual sex between adults, and now fed courts send clerks to jail for asking if someone else could sign the gay marriage certificates.
Title: Re: Justice Scalia dead
Post by: Seriati on February 17, 2016, 02:22:49 PM
Actually I think a 'tie' is a great proper result.  I think all cases should have a 'win by 2'.  If they are close decisions, then there probably isn't a reasonable for cases to be decided.
Having the final decider hopelessly deadlocked is not a real solution.  Particularly when that doesn't result in nothing happening, it results in the lower level decision taking force.  When there are harms pushing both ways on an issue, an non-resolution is not the right answer.

I think this sentiment comes from a deeper problem.  Too many court decisions are decided based on politics.  It makes people feel like it should be  a matter of "voting."  The Justices aren't supposed to be voting their opinions, they are supposed to be applying the law.  That's why the death of Scalia really hurts, his primary legal philosophy (notwithstanding, Raich) was to rely on the text of the law strictly.  It's really hard to argue that where a system includes the power to amend, holding to what the laws actually say is the wrong answer.

Most of the court decisions should have been no worse than 7-2, and frankly the "liberal" judges are in the wrong to try and leave the text of the constitution and the law.  It's not their responsibility to change the way our country works.
Title: Re: Justice Scalia dead
Post by: NobleHunter on February 17, 2016, 02:36:02 PM
Riach is particularly egregious but it's hardly unique. Scalia does not appear to have been any more or less reliant on the text of the law or constitution than any other justice. The court appears to be suffering from an excess of politics but the problem can't be corrected by taking Scalia's lofty statements of strict adherence to the text at face value.
Title: Re: Justice Scalia dead
Post by: Seriati on February 17, 2016, 02:41:34 PM
Riach is particularly egregious but it's hardly unique. Scalia does not appear to have been any more or less reliant on the text of the law or constitution than any other justice. The court appears to be suffering from an excess of politics but the problem can't be corrected by taking Scalia's lofty statements of strict adherence to the text at face value.
I've read an awful lot of opinions and dissents written by Scalia, how many have you read to reach this conclusion you hold?  Or are you basing it on some authoritative source?
Title: Re: Justice Scalia dead
Post by: Wayward Son on February 17, 2016, 03:19:16 PM
Quote
That's why the death of Scalia really hurts, his primary legal philosophy (notwithstanding, Raich) was to rely on the text of the law strictly.

I got the impression that he relied on the strict text of the law when it agreed with his politic stance, otherwise not-so-much (as when he declared that corporations can have religious beliefs in Hobby Lobby).

Do you know of any of Scalia's decisions where he took a liberal position because of his strict reading of the text?
Title: Re: Justice Scalia dead
Post by: NobleHunter on February 17, 2016, 03:42:34 PM
I've read an awful lot of opinions and dissents written by Scalia, how many have you read to reach this conclusion you hold?  Or are you basing it on some authoritative source?
Only a few of the more controversial ones. Sources summarizing his decisions were probably not favourable to Scalia.

However, I find it hard to take of claim of strict adherence to the text when it doesn't seem to apply on controversial cases. He was either being disingenuous about his legal philosophy or lacked the flexibility to recognize when he was straying from his principles.
Title: Re: Justice Scalia dead
Post by: Seriati on February 17, 2016, 03:56:20 PM
I'm fascinated by summing up a Jurist with his history and his impact on legal and judicial thought and theory, as vaguely, 'not really standing for his principals' when the chips were down, without any real apparent basis for that conclusion.
Title: Re: Justice Scalia dead
Post by: NobleHunter on February 17, 2016, 04:34:27 PM
Forgive me if I don't feel like providing footnotes for posts on a message board.

I didn't see much of a basis for "notwithstanding Raich."
Title: Re: Justice Scalia dead
Post by: Wayward Son on February 17, 2016, 06:08:18 PM
On the lighter side, just check out some of these lame excuses on why Obama shouldn't name a replacement for Scalia. (http://www.rightwingwatch.org/content/five-bogus-right-wing-excuses-obstructing-obamas-scotus-nominee)  :)
Title: Re: Justice Scalia dead
Post by: scifibum on February 18, 2016, 10:57:10 AM
 
Just checking, anyone want to defend the near unanimous decision of Republicans speaking on the topic to call for a blanket refusal of any Obama nominee within the last 11 months of his term?

Many Republicans have declared that they have Constitutional obligation for a schedule on which they are to play their necessary part in adding a member to the Supreme Court. Anyone agree? And if you do, would you also agree that if a Republican President is elected and the Democrats have enough votes, they could use the same principle and choose to delay until the winner of the 2020 election?

They are wrong.  But I want Democrats to acknowledge that they were also wrong to try to filibuster when Alito was nominated in 2006, and in general when calling the GOP on obstructionism to own up to and apologize for their own obstructionism in the past.  Obama has mentioned he "regrets" the filibuster, which is a start. 

I'm not saying these are equivalent offenses, but we can't pretend being less dirty equates to being clean if we want things to clean up in general.  When Democrats call out the GOP for obstructionism, they are implying a promise not to engage in these tactics themselves.  It's not a credible promise if they don't acknowledge and apologize for doing it in the past.

Meanwhile, the senior senator from my home state is about as dishonest as he can get:

Quote
"I don't think we should filibuster the Supreme Court nominee or any judgeship nominees. We wouldn't have to filibuster," Hatch said on "Wolf." "All it would take is for Sen. Grassley to just say, 'Look, we're not going to confirm anybody this year.' The reason we're not going to confirm is we value the court, we don't want it to be in this political atmosphere. We value the integrity of the court and we're going to put it over to next year."

Riiiiight.  It's because you don't want politics to interfere. 
Title: Re: Justice Scalia dead
Post by: Pete at Home on February 18, 2016, 11:48:43 AM
There's no point in apologizing when you are retaining the undeniable advantage. Dirty play over SCOTUS is how the left stacked the court and got bs anti constitutional decisions like Raich and same sex marriage.  You want to make peace, then let's see action, not crocodile tears. Start by dividing the ninth circuit.
Title: Re: Justice Scalia dead
Post by: Pete at Home on February 18, 2016, 11:51:41 AM
Quote
That's why the death of Scalia really hurts, his primary legal philosophy (notwithstanding, Raich) was to rely on the text of the law strictly.

I got the impression that he relied on the strict text of the law when it agreed with his politic stance, otherwise not-so-much (as when he declared that corporations can have religious beliefs in Hobby Lobby).

Do you know of any of Scalia's decisions where he took a liberal position because of his strict reading of the text?
Yes. The outrageous stance he took with the left against freedom of religion.
Title: Re: Justice Scalia dead
Post by: JoshuaD on February 18, 2016, 12:15:59 PM
Just checking, anyone want to defend the near unanimous decision of Republicans speaking on the topic to call for a blanket refusal of any Obama nominee within the last 11 months of his term?

Many Republicans have declared that they have Constitutional obligation for a schedule on which they are to play their necessary part in adding a member to the Supreme Court. Anyone agree? And if you do, would you also agree that if a Republican President is elected and the Democrats have enough votes, they could use the same principle and choose to delay until the winner of the 2020 election?

They are wrong.  But I want Democrats to acknowledge that they were also wrong to try to filibuster when Alito was nominated in 2006, and in general when calling the GOP on obstructionism to own up to and apologize for their own obstructionism in the past.  Obama has mentioned he "regrets" the filibuster, which is a start. 

I actually disagree.  If we're going to have the Supreme Court that the Living Constitutionalists want, I expect it to become much more politicized. When it's that powerful, of course we've gotta fight like hell over it.

As the function of the nine justices approaches legislation, they become more powerful. As they become more powerful, it becomes much more important to control who is appointed there.

If we could all agree that the constitution is dead (i.e. not subject to constant change in meaning) then there'd really not be the need for this hubalub. Any intelligent jurist or lawyer could be expected to draw basically the same conclusions on the big points. Sure, there would be some interesting new corner cases, but the last 200 years of law wouldn't be subject to constant revision by these guys.

Title: Re: Justice Scalia dead
Post by: NobleHunter on February 18, 2016, 12:43:26 PM
You're kidding yourself if you think there's an indisputable objective meaning in the Constitution.
Title: Re: Justice Scalia dead
Post by: JoshuaD on February 18, 2016, 12:51:04 PM
You're kidding yourself if you think there's an indisputable objective meaning in the Constitution.

That's not what I said.

I said that if we all agreed about the method of interpreting it, and if that method was much less inclined towards a morphing meaning (i.e. toward a "dead" constitution) then the range of issues that would be subject to the Court's review and re-review would be drastically reduced.
Title: Re: Justice Scalia dead
Post by: JoshuaD on February 18, 2016, 12:53:18 PM
If the document continued to mean what it meant last year and the year before and the year before that, all the way back to 1789 (or to the date of the ratification of the relevant amendment) then there really wouldn't be too much to talk about. We'd have 200+ years of settled interpretation to go by.

While the questions might have a handful of possible interpretations, that difficult process would have been done long ago and been settled. The wonderful thing about a concrete meaning is that it's concrete; you know what it means, and if you don't like it you can get out the jackhammer.
Title: Re: Justice Scalia dead
Post by: Wayward Son on February 18, 2016, 01:00:23 PM
Quote
But I want Democrats to acknowledge that they were also wrong to try to filibuster when Alito was nominated in 2006, and in general when calling the GOP on obstructionism to own up to and apologize for their own obstructionism in the past.  Obama has mentioned he "regrets" the filibuster, which is a start.

I don't think it is necessarily wrong to filibuster a nominee who a significant portion of the Senate feels is unqualified.  But can anyone tell me why Obama's nominee is unqualified? ;)

The filibuster should be used as a last-ditch effort by a minority to pressure the majority in dire circumstances.  (That's why I think a filibuster should be an oral one, where Senators have to keep speaking to keep it going, not this "gentleman's agreement" that you need 60 votes or you table discussion. :D)  But McConnell's threat to use it before any nominee is named is simply obstructionism and an abuse of power.  Which is why the Democrats had to remove it as an option for some regular business.

It also should be pointed out that the Alito filibuster never materialized, and that it was called for after the Alito hearings.  Democrats didn't unilaterally vow to filibuster whoever Bush nominated.
Title: Re: Justice Scalia dead
Post by: Fenring on February 18, 2016, 01:05:03 PM
I said that if we all agreed about the method of interpreting it, and if that method was much less inclined towards a morphing meaning (i.e. toward a "dead" constitution) then the range of issues that would be subject to the Court's review and re-review would be drastically reduced.

The problem is, and always has been, that there is no "we." There are disparate parties, some of which want to change the rule of law to suit them, while others actually don't comprehend the value of long-term consistency and actually believe that expediency is of the highest value. Part of this is a weakness in long-term planning, and part is an artifact of the party-based political system where short-term victory is always the greatest good.

In other words, interpretation of the constitution is a mess because that's exactly how some people want it to be.
Title: Re: Justice Scalia dead
Post by: NobleHunter on February 18, 2016, 01:06:03 PM
That's not what I said.

I said that if we all agreed about the method of interpreting it, and if that method was much less inclined towards a morphing meaning (i.e. toward a "dead" constitution) then the range of issues that would be subject to the Court's review and re-review would be drastically reduced.
Oh, that makes more sense.

I'm not sure it would help as much you claim though. The ACA would likely still be contentious, for instance. While the SC's scope of action would be reduced, it would still be immensely powerful within that scope. Novel ways of exercising power would still make for difficult interpretation.

It also seems like a bit much to expect errors of interpretation to stand just because they're old ones.
Title: Re: Justice Scalia dead
Post by: JoshuaD on February 18, 2016, 01:17:04 PM
That's not what I said.

I said that if we all agreed about the method of interpreting it, and if that method was much less inclined towards a morphing meaning (i.e. toward a "dead" constitution) then the range of issues that would be subject to the Court's review and re-review would be drastically reduced.
Oh, that makes more sense.

I'm not sure it would help as much you claim though. The ACA would likely still be contentious, for instance. While the SC's scope of action would be reduced, it would still be immensely powerful within that scope. Novel ways of exercising power would still make for difficult interpretation.

It also seems like a bit much to expect errors of interpretation to stand just because they're old ones.

Oh I don't think the ACA is very contentious at all in the context of a dead constitution. It's only when you are focused on getting results that you like that you read the authority to force a purchase into the commerce clause and the powers of taxation.

It would have been beyond consideration 200 years ago. It's a non-starter, unless you accept the premise that the meaning of the words changes as time goes on, and while congress may not have had this power a few decades ago, now they do. 
Title: Re: Justice Scalia dead
Post by: NobleHunter on February 18, 2016, 01:37:01 PM
Powers of taxation were amended, 200 years ago doesn't count in that respect.

I'm not sure universal healthcare would have been a non-starter on a theoretical level. Governments had been providing health care for at least a hundred years by that point. So healthcare was a thing that governments did. It'd be difficult to make the argument that it was something the Federal government should be doing rather than the States. On a practical level, until the Feds got more tax powers healthcare on that scale wasn't something they could afford to do. So the question would have remained unasked. So it could be Congress always had the power, they simply chose not to exercise it.

Another problem is that the commerce clause can't mean what it did two hundred years ago because commerce isn't the same thing it was. The implications of an interpretation (any transaction where money, goods, or services cross state lines) that works fine in 1815 are going to be vastly different in 2015. In 1815, it means the Feds are restricted to a very narrow class of transactions; in 2015 the Feds can regulate almost any transaction.
Title: Re: Justice Scalia dead
Post by: Pete at Home on February 18, 2016, 01:58:38 PM
You're kidding yourself if you think there's an indisputable objective meaning in the Constitution.

There are quite a number of objective indisputable meanings in the constitution.  For instance, the traditions of distrusting authority, as manifest in checks and balances such as federalism and separation of powers. These are not fixed or immutable, but they certainly are objective and indisputable.

Title: Re: Justice Scalia dead
Post by: LetterRip on February 19, 2016, 02:01:01 PM
JoshuaD,

Actually 200 years ago see the "Act for the Relief of Sick/Disabled Seamen"

http://www.scribd.com/doc/29099806/Act-for-the-Relief-of-Sick-DisabledSeamen-July-1798

http://www.addictinginfo.org/2011/11/11/mandatory/

It was federally mandated purchase of health insurance.  So the founders of the constitution believed that it was constitutional, as did the early courts.
Title: Re: Justice Scalia dead
Post by: Pete at Home on February 19, 2016, 02:13:33 PM
LR, you rock.  Really miss you around here.
Title: Re: Justice Scalia dead
Post by: Seriati on February 19, 2016, 03:59:34 PM
It was federally mandated purchase of health insurance.  So the founders of the constitution believed that it was constitutional, as did the early courts.
That's a poor citation for the principal that mandated health insurance would be constitutional.  There is no way the courts or the adopters would have believed that the federal government could force a similar tax on the states or their citizens to provided for the health care of every citizen.

What you actually have there was a specific federal solution to a problem that was a consequence of intra-state trade (something the federal government is expressly intended to regulate) that sick seamen are treated where they get sick, not where they reside and pay tax. The equivalent law is the one that prohibits hospitals from turning away sick patients because of a lack of ability to pay.
Title: Re: Justice Scalia dead
Post by: Pyrtolin on February 19, 2016, 04:19:05 PM
Quote
The equivalent law is the one that prohibits hospitals from turning away sick patients because of a lack of ability to pay.
Which is why it's reasonable to charge a tax to pay for that service, and even to waive it for people who have secured an otherwise approved form of payment.
Title: Re: Justice Scalia dead
Post by: NobleHunter on February 20, 2016, 12:10:51 PM
The applicability of the 1798 law is also problematic because it relates to maritime traffic, which is also tends to be a federal concern. So while the Act might offer support for the mechanism of the ACA, it doesn't offer much support for the intent. What the debates over specific provisions or effects tend to miss is that universal healthcare may not be an appropriate area of action for the federal government of the US. Even in Canada, it's a provincial matter. Our federal government, unlike the US, is just allowed to bully them into compliance.
Title: Re: Justice Scalia dead
Post by: NobleHunter on February 24, 2016, 02:09:23 PM
Report: Obama Might Nominate Republican for Supreme Court

http://www.slate.com/blogs/the_slatest/2016/02/24/obama_might_nominate_republican_governor_brian_sandoval_to_supreme_court.html (http://www.slate.com/blogs/the_slatest/2016/02/24/obama_might_nominate_republican_governor_brian_sandoval_to_supreme_court.html)

Ha. I was wondering if Obama could find someone to troll the GOP with while not being irresponsible. Though I don't think the ACA, SSM, or abortion should really get top billing for a potential justice.
Title: Re: Justice Scalia dead
Post by: scifibum on February 24, 2016, 03:11:19 PM
I would be pleased if Obama nominated a centrist.  He'd have some credibility then to suggest the Senate get to work on new rules to de-escalate the judicial wars.
Title: Re: Justice Scalia dead
Post by: AI Wessex on February 24, 2016, 04:57:43 PM
I agree, even though appointing a centrist goes against the grain of my personal political philosophy.  Government is supposed to span the interests of even people I know to be incapable of forming a rational argument.

FWIW, I've been reading a lot on the so-called principle of Originalism.  Right now I'm in the middle of "James Madison and the Struggle for the Bill of Rights".  Today's hard-core oppositional politics don't hold a candle to how vicious things were back then.  To call something "original" you would have to carefully pick and choose who you want to listen to and ignore all the energized and reasonable arguments that opposed them.  That they ever came up with anything coherent was a miracle.  I'd be interested if anyone could turn up an originalist statement or Federalist Paper on cell phone privacy, among about a million other things.  Then tell Apple how they should respond to the FBI accordingly...
Title: Re: Justice Scalia dead
Post by: scifibum on February 24, 2016, 05:00:09 PM
I agree, even though appointing a centrist goes against the grain of my personal political philosophy. 

Mine too.  But I'm starting to be more concerned about how well our government is able to function than about specific SC rulings.
Title: Re: Justice Scalia dead
Post by: Wayward Son on February 24, 2016, 05:34:53 PM
Of course, to the Judicial Committee, a "centralist" would have to be someone far to the right of Scalia... :)
Title: Re: Justice Scalia dead
Post by: Pete at Home on February 25, 2016, 09:47:43 AM
http://www.theguardian.com/law/2016/feb/25/brian-sandoval-supreme-court-obama-republicans-democrats?utm_source=esp&utm_medium=Email&utm_campaign=GU+Today+USA+-+Version+CB+header&utm_term=158748&subid=17797190&CMP=ema_565

Brian Sandoval?  I will be very surprised if Obama commits himself to *that* appointment.