SCOTUS Appointment

[fredtoast]

(02-15-2016, 05:10 PM)Belsnickel Wrote:  If the people truly like a law that has been shot down due to constitutionality then work on an amendment. That is how the process is intended to work. To say the SCOTUS is not answerable to anyone or that they have the final say is ignorant and more indicative of a lack of faith in the processes and our elected officials.

This times 1000.

[Rotobeast]

FWIW....
I believe that the week following the recognition and burial of Scalia, the process to replace him should begin.

[*michaelsean*]

(02-15-2016, 05:10 PM)Belsnickel Wrote: The problem I always have with people complaining about 'legislating from the bench' is that it is really bullshit. Call it what it is, you don't agree with their interpretation. Every decision, and dissent, I have ever read makes a very good argument for their position on the issue. They are making their decision based upon their interpretation of the Constitution as it stands. It is not making law, and it certainly does not take the power from the people. If the people truly like a law that has been shot down due to constitutionality then work on an amendment. That is how the process is intended to work. To say the SCOTUS is not answerable to anyone or that they have the final say is ignorant and more indicative of a lack of faith in the processes and our elected officials.

“If someone with a job roughly like my own, facing a legal problem roughly like the one confronting me, interpreting a document that resembles the one I look to, has written a legal opinion about a similar matter, why not read what that judge has said?”-Justice Breyer on judicial rulings from other countries.  That is not any interpretation of our Constitution.

[fredtoast]

(02-15-2016, 07:10 PM)michaelsean Wrote: “If someone with a job roughly like my own, facing a legal problem roughly like the one confronting me, interpreting a document that resembles the one I look to, has written a legal opinion about a similar matter, why not read what that judge has said?”-Justice Breyer on judicial rulings from other countries.  That is not any interpretation of our Constitution.

Yes it is.

These issue about Constitutional interpretation are very complicated.  The Supreme Court usually does not even take cases until Circuit Curt judges have issued conflicting opinions.

These decisions require complex logical analysis. Judges should look at all sources to help them make their decisions.  

[Belsnickel]

(02-15-2016, 07:10 PM)michaelsean Wrote: “If someone with a job roughly like my own, facing a legal problem roughly like the one confronting me, interpreting a document that resembles the one I look to, has written a legal opinion about a similar matter, why not read what that judge has said?”-Justice Breyer on judicial rulings from other countries.  That is not any interpretation of our Constitution.

If he said it was the only thing or if he said that he based his decisions on them, you'd have a point. Being a justice at their level is as much about philosophy as it is law, and reading up on approaches in situations similar to what they are facing means nothing other than learning how others have approached them. It doesn't mean anything more. We've seen all sorts of thing quoted in decisions that aren't from prior court cases or legal documents, and those are no different.

[fredtoast]

(02-15-2016, 08:13 PM)Belsnickel Wrote:  We've seen all sorts of thing quoted in decisions that aren't from prior court cases or legal documents, and those are no different.

A lot of people here will appreciate this citation from Kagan's majority opinion in Kimble v Marvel 135 S Ct. 2401 (2015)

• What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “Spider-Man,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”). 
  

[Belsnickel]

I saw this article cross my Facebook feed and figured some folks here might enjoy it: http://www.npr.org/2016/02/16/466935651/5-ways-scalias-death-is-complicating-the-2016-election?utm_source=facebook.com&utm_medium=social&utm_campaign=npr&utm_term=nprnews&utm_content=20160216

[Benton]

(02-15-2016, 05:51 PM)Rotobeast Wrote: FWIW....
I believe that the week following the recognition and burial of Scalia, the process to replace him should begin.

Same here.

And, personally, I think appointments — along with balanced budgets — should be tied directly to the salaries of those that approve them. Or hold them up. If you're going to grandstand and threaten government shut down, or you're going to handicap areas of the government because the appointee isn't from your party, great! your salary and public credit card gets locked until it's resolved.

[Rotobeast]

(02-16-2016, 05:51 PM)Benton Wrote: Same here.

And, personally, I think appointments — along with balanced budgets — should be tied directly to the salaries of those that approve them. Or hold them up. If you're going to grandstand and threaten government shut down, or you're going to handicap areas of the government because the appointee isn't from your party, great! your salary and public credit card gets locked until it's resolved.

I'm onboard.

[fredtoast]

(02-16-2016, 05:03 PM)Belsnickel Wrote: I saw this article cross my Facebook feed and figured some folks here might enjoy it: http://www.npr.org/2016/02/16/466935651/5-ways-scalias-death-is-complicating-the-2016-election?utm_source=facebook.com&utm_medium=social&utm_campaign=npr&utm_term=nprnews&utm_content=20160216

The biggest impact I see is voter turnout.

So many people see the Supreme Court as being more powerful than any other branch of government.  They would see a shift in power on the court worse than just losing a Presidential election.

2016 will be an epic statement on how totally broken our system of government is becoming.....

-The Supreme Court will only have 8 justices, so its power will be neutered in all close cases.

-A major portion of Congress will be too busy campaigning to address any problems.

-In a Congress with a 15% approval rating almost every incumbent will get re-elected.

[GMDino]

http://www.dailykos.com/story/2016/2/13/1484831/-Sen-Mitch-McConnell-in-2005-The-President-and-the-President-alone-nominates-judges

Quote:Sen. Mitch McConnell, in 2005, defending the absolute right of a sitting president to nominate judges.

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."

Quote:"[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.'"

Take it from Sen. Mitch McConnell: for the Senate to block a sitting president from nominating a Supreme Court nominee—not just a specific nominee, mind you, but any nominee at all, would put the Constitution of the United States itself at stake. And he's a patriot, so he would never even consider such a thing.

[BmorePat87]

(02-17-2016, 02:49 PM)GMDino Wrote: http://www.dailykos.com/story/2016/2/13/1484831/-Sen-Mitch-McConnell-in-2005-The-President-and-the-President-alone-nominates-judges

I don't see the connection. Obama certainly can nominate whoever he wants, they're just saying "we aren't going to approve it". Also, he's referencing attempts to require a supermajoirty (as oppose to a simple majority) to confirm the appointment, which is  a far different thing than saying "we aren't going to vote for your guy". 

[GMDino]

(02-17-2016, 02:53 PM)BmorePat87 Wrote: I don't see the connection. Obama certainly can nominate whoever he wants, they're just saying "we aren't going to approve it". Also, he's referencing attempts to require a supermajoirty (as oppose to a simple majority) to confirm the appointment, which is  a far different thing than saying "we aren't going to vote for your guy". 

I think the correlation was that Sen Turtle wanted to follow the constitution until he didn't want to anymore.  

Just adding it to the BS back and forth we're going to have for the next year.

[BmorePat87]

(02-17-2016, 02:56 PM)GMDino Wrote: I think the correlation was that Sen Turtle wanted to follow the constitution until he didn't want to anymore.  

Just adding it to the BS back and forth we're going to have for the next year.

How does he not want to follow the Constitution right now? Is he saying the President doesn't have the authority to nominate or is he saying he shouldn't because they will reject every nomination? 

[GMDino]

(02-17-2016, 03:00 PM)BmorePat87 Wrote: How does he not want to follow the Constitution right now? Is he saying the President doesn't have the authority to nominate or is he saying he shouldn't because they will reject every nomination? 

I hate to answer a question with a question but do you think saying they are going to reject any and all nominees before ever knowing who they are isn't ignoring what they are suppose to do under the Constitution?

He is flat out saying we will not even consider them.

Not to mention his "suggestion" that Obama not even nominate someone?  

[BmorePat87]

(02-17-2016, 03:51 PM)GMDino Wrote: I hate to answer a question with a question but do you think saying they are going to reject any and all nominees before ever knowing who they are isn't ignoring what they are suppose to do under the Constitution?

He is flat out saying we will not even consider them.

Not to mention his "suggestion" that Obama not even nominate someone?  

No, it isn't. They're doing their job (even if ineffectively). Obama is free to nominate anyone and they're free to reject anyone.

[GMDino]

(02-17-2016, 05:01 PM)BmorePat87 Wrote: No, it isn't. They're doing their job (even if ineffectively). Obama is free to nominate anyone and they're free to reject anyone.

But he's not saying they will go through the process and take a vote as they are to do.  He's saying they won't accept anyone.  Period.

At least fake it Mitch!

[BmorePat87]

(02-17-2016, 05:30 PM)GMDino Wrote: But he's not saying they will go through the process and take a vote as they are to do.  He's saying they won't accept anyone.  Period.

At least fake it Mitch!

And? The Constitution doesn't say they need to hold a vote, just give their advice and consent. Mitch gave his advice "don't try it" and they're saying they won't consent. 

[GMDino]

(02-17-2016, 05:36 PM)BmorePat87 Wrote: And? The Constitution doesn't say they need to hold a vote, just give their advice and consent. Mitch gave his advice "don't try it" and they're saying they won't consent. 

Well I'll plead ignorance but when was the last time they just told a President "Sure, go ahead" or "No way" without having a vote?

Also I just came across this and figured I'd add it to this thread rather than start a new one:

http://www.nbcnews.com/news/us-news/white-house-obama-will-not-attend-justice-scalia-s-funeral-n520236

Quote:White House: Obama Will Not Attend Justice Scalia's Funeral
by HALIMAH ABDULLAH






President Barack Obama will not attend Justice Antonin Scalia's funeral Saturday, the White House confirmed.


Instead, the president will pay his respects on Friday, when Scalia's body lies in repose in the Great Hall of the Supreme Court building. Vice President Joe Biden will attend Scalia's funeral at the Basilica of the National Shrine of the Immaculate Conception, the White House said Wednesday during a press briefing.

When pressed for clarification on Obama missing the funeral, White House press secretary Josh Earnest repeated that "the president will pay his respects at the Supreme Court on Friday and he'll be joined with the first lady when he does that."


When asked whether Obama's Saturday plans include golfing, Earnest stressed instead that the president believes it is important to honor 
Scalia's life and service.


Four out of the past seven funerals for a Supreme Court justice have either had the president or vice president in attendance.


Former President George W. Bush attended the funeral for Chief Justice William Rehnquist.


Former President Bill Clinton attended the funerals for former Chief Justice Warren E. Burger and Justice William Brennan but did not attend the funerals for Justices Harry Blackmun or Lewis F. Powell Jr.


Former Vice President Al Gore attended the funeral for Justice Thurgood Marshall.

Scalia's chair on the Supreme Court bench and the bench itself were draped with black wool crepe in memoriam Tuesday — a Supreme Court tradition. In addition, a black drape was hung over the courtroom doors.


Despite push back from Republicans who say Obama shouldn't nominate a replacement in an election year, the White House made it clear Wednesday that the Constitution gives the president the right to select a "well qualified candidate" to the Supreme Court.


Obama called Scalia a "brilliant legal mind" in hailing the justice after his unexpected death Saturday at age 79.
"He will no doubt be remembered as one of the most consequential judges and thinkers to serve on the Supreme Court," Obama said in remarks Saturday night. 

[RoyleRedlegs]

It's going to be an interesting process.
Obama could do the smart thing and nominate a moderate or even slightly right leaning judge. Would be very hard to deny that for 11 months.
And that would be seen as a "unifying" act by him as he always likes to claim he is a unifying guy....

But...I don't know if his ego and determination to leave "his mark" will let him do anything but nominate a far left judge.