Justice Scalia dead

[JoshuaD]

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.

[NobleHunter]

You're kidding yourself if you think there's an indisputable objective meaning in the Constitution.

[JoshuaD]

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.

[JoshuaD]

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.

[Wayward Son]

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. )  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.

[Fenring]

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.

[NobleHunter]

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.

[JoshuaD]

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. 

[NobleHunter]

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.

[Pete at Home]

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.

[LetterRip]

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.

[Pete at Home]

LR, you rock.  Really miss you around here.

[Seriati]

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.

[Pyrtolin]

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.

[NobleHunter]

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.

[NobleHunter]

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

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.

[scifibum]

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.

[AI Wessex]

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...

[scifibum]

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.

[Wayward Son]

Of course, to the Judicial Committee, a "centralist" would have to be someone far to the right of Scalia...

[Pete at Home]

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.