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Author | Topic: Supreme Court Justice Antonin Scalia's dead. The maneuvering begins! | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Percy Member Posts: 22506 From: New Hampshire Joined: Member Rating: 5.4 |
If all goes according to the Constitution and precedent then Obama will nominate a candidate and the Senate will, eventually and with much noise, confirm. This will feel like a boon to most liberals, for whom Scalia was an especially annoying and effective hindrance, but Wikipedia tells me there have been 112 justices in the history of the Supreme Court, about to become 113. Our country is 227 years old, so on average a new justice is appointed and confirmed to the Supreme Court about every 2 years, though more recently it's been closer to 2½. Here's the time between appointments for the last 25 justices going back to the Eisenhower administration:
Average the time between appointments for the last 25 justices and you get 2.44 years. So though liberals may rejoice over the replacement by Scalia by a presumably more liberal justice, it might be short-lived. On average the last 10 presidents have each appointed 2.5 justices, so whoever is elected next is likely to appoint 2 to 3 justices. If a Democrat is elected then the court will swing wildly to the left, if a Republican then it will swing back to where it already currently is, perhaps even more so.
Today's New York Times eulogizes Scalia and describes him as a man of towering conservative influence, but liberals should take no solace in his absence. His stern, steady and sometimes sarcastic legal voice, first heard in dissents, then increasingly in majority opinions, has left a long legacy of conservative legal opinions that will influence justice in this country for many years into the future, certainly at least through the next two or three presidencies. Scalia may be gone, but he will not soon be forgotten. --Percy
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Percy Member Posts: 22506 From: New Hampshire Joined: Member Rating: 5.4 |
NoNukes writes: I read the eulogy and I note the fairly faint praise. Example:
quote: That passage from the NYT was preceded by this beginning about how influential a figure he was:
quote: My interpretation of the two passages together? So influential were Scalia's conservative arguments over his career that by the time of DC v Heller even dissenters were applying some of his philosophies, such as original intent.
That was primarily because in DC v Helller Scalia departed from original meaning and relied on history in pretty much the same way he had bashed others for doing. Yes, I recall, I was one of those at the time bashing Scalia for being a hypocrite, but I don't think an indirect reference to DC v Heller turns the respectful passage into "faint praise." --Percy
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Percy Member Posts: 22506 From: New Hampshire Joined: Member Rating: 5.4 |
In last night's debate Trump's proposed strategy for giving the Supreme Court appointment to the next president was "Stall, stall, stall." If they take that strategy they'll be walking a fine line. They only have to stall until the November presidential election, but to avoid hurting their chances they need substantive reasons, not contrived ones. If their actions are seen as thumbing their noses at the Constitution to better their own political causes then it could hurt them at the ballot box.
The outcome of the presidential election could be determined by who Obama nominates. If he nominates someone with too strong a liberal record then Republican target practice could be effectively disguised as well principled opposition. But if the nominee is well balanced then Republican opposition and delay would look like political posturing. Concerning whether the Republicans will be successful in blocking Obama from replacing Scalia, the New York Times notes that "few presidents have successfully filled vacancies announced in their final full year": How Long Does It Take to Confirm a Supreme Court Nominee? --Percy
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Percy Member Posts: 22506 From: New Hampshire Joined: Member Rating: 5.4 |
I wonder what the confirmation vote for Bork's nomination to the Ninth Circuit Court was back in 1982? Reagan nominated Bork to the Supreme Court in 1987, but the Senate declined to confirm.
--Percy
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Percy Member Posts: 22506 From: New Hampshire Joined: Member Rating: 5.4 |
NoNukes writes: But if the above passage is among the best things you can say about Scalia, then it is less than a compliment. Seemed like pretty high praise to me.
Of course Justices apply original intent. I think what the Times article meant was that even Justices who didn't embrace original intent were forced to take it into consideration: "...even the dissenters were engaged in trying to determine the original meaning of the Constitution..."
Scalia did not invent the doctrine. My use of the term "his philosophies" wasn't meant to imply origination.
The Times spun that episode hypocrisy into some kind of compliment. You're interpreting it as a backhanded compliment. To me it seemed genuinely complementary about his ability to imbue his ideas with force and power. --Percy
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Percy Member Posts: 22506 From: New Hampshire Joined: Member Rating: 5.4 |
subbie writes: According to this article, Bork was unanimously confirmed to the U.S.C.A. for D.C. by a voice vote; nobody even asked for a roll call vote. Well, if true then Bork is an example of a judge unanimously confirmed to a circuit court but denied the Supreme Court. I'm not familiar with Sri Srinivasan. Does he have any views that might be considered extreme from a conservative perspective? --Percy
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Percy Member Posts: 22506 From: New Hampshire Joined: Member Rating: 5.4 |
NoNukes writes: But the truth is that the Justices were not learning from Scalia,... Rather than law or legal principles, I think what they were learning from Scalia was that he was a powerful force to be reckoned with, conservative, consistent, determined, and often able to build a majority consensus around his opinions. Other justices found their legal tussles being increasingly fought on his turf, like original intent. But I'm coming around to your point of view. Mentioning original intent in the context of DC v Heller is coming to seem less like respectful acknowledgement of the power of his ideas and more like an ironic jab. My own personal opinion of Scalia is that "the power of his ideas" derived not from any inherent power that they possessed but from the fact that he was a kind of bully with a vote on the Supreme Court and he was there for a long time. The dissents he wrote over the years eventually influenced legal strategy and opinion and in a way provided roadmaps for how to bring conservative issues before the court. --Percy
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Percy Member Posts: 22506 From: New Hampshire Joined: Member Rating: 5.4
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These are not so far from my own sentiments. Anyone charging, "How naive can you be?" is equally vulnerable to the same charge. People go to the polls every year believing their candidate will make a significant and positive difference, but after more than two hundred years of presidential elections how often has this been true? Twice? 1860 and 1932? Sure, there are long term trends, but rarely are those trends displayed in any one election. For the most part it's a tiny jog to right, then a tiny nudge to the left. The only long term trend I see is that the greater the wealth of the country and the more even its distribution, the more compassionate the electorate. We're definitely becoming a meaner country as our wealth declines.
The losers in recent presidential campaigns were Mitt Romney, John McCain, John Kerry, Al Gore, Bob Dole, Michael Dukakis and Walter Mondale. Would the country really have been any worse off in the long run had any of them won, especially given the mixed record of all the winners? I think not, and in the case of Al Gore I'd argue the country would have been much better off. It's all sound and fury, usually signifying very little, especially the negative campaigning. I'm staying home, too. The only candidate who could get me out of the house is Trump. If he wins the Republican nomination then it will definitely feel pivotal and I will definitely vote. --Percy
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Percy Member Posts: 22506 From: New Hampshire Joined: Member Rating: 5.4
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Ronald A. Cass, Dean Emieritus of Boston University, was a longtime friend of Scalia. He was interviewed by Meghna Chakrabarti on local NPR radio station WCRB yesterday. Excerpts were broadcast last night, and at one point she quoted the same passage from the NYT that you did. Cass responded that Scalia was not an adherent of original intent but of textualism. Scalia believed original intent required the impossible task of getting inside the heads of long dead people to discover their intent, while textualism involved the entirely realistic task of discovering what people thought they were agreeing to when they set words on paper.
Scalia felt that we are bound today by what people agreed to over 227 years ago. I'm sure to many of us that sounds absurd on its face. Times inevitably change, something the founders knew well since they were the principle movers behind change. Better to stay true to the principles embodied by the Constitution, which are hopefully timeless. I'm not sure the distinction between original intent and textualism is all that great. Even Cass said they were only "a little bit different." In my view either approach gives a jurist the excuse to deny nearly anything he pleases just because it isn't explicitly mentioned in the Constitution, something Scalia seemed to do a lot. Cass did have a funny Scalia story. Apparently he was enjoyable and fun to be with. Once on an airliner the flight attendant mispronounced his name and he corrected her. She asked, "You mean like the Supreme Court justice?" and he responded, "Yes, exactly like that." And he left it at that. --Percy Edited by Percy, : Fix gramatically awkward 2nd sentence in 1st para.
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Percy Member Posts: 22506 From: New Hampshire Joined: Member Rating: 5.4
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In today's New York Times columnist Linda Greenhouse draws a distinctly critical portrait of Scalia: Resetting the Post-Scalia Supreme Court. Some excerpts:
quote: --Percy
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Percy Member Posts: 22506 From: New Hampshire Joined: Member Rating: 5.4 |
I'd like to see someone on the court who has a demonstrated record of putting jurisprudence, consistency and practical considerations above political philosophy, but I'd settle for someone who just wasn't crazy. There must be some really crazy judges in the lower courts that considered the Texas case just now coming before the Supreme Court, and this New York Times editorial lays out the basic details pretty well: Showdown on Abortion at the Supreme Court. I'll attempt to summarize.
The Texas law states as its goal the protection of women's health. To that end the law requires that abortion clinics meet all the standards of outpatient surgical centers and that their doctors have local hospital admitting privileges. The legal wrangle involves whether these requirements are necessary for women's health or if they're instead designed to set a standard too high for most abortion clinics to meet. Evidence that the law's goal isn't as stated, to protect women's health, is that clinics in Texas that perform procedures with a far higher complication rate than abortion are not bound by any similar requirements, and that abortion clinics across the state are closing down, making legal and safe abortions less available or even unattainable. In 1992 in Planned Parenthood v. Casey the Supreme court ruled against restrictions that impose an "undue burden" on women, including "unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion." It also said that abortion laws "must be calculated to inform the woman’s free choice, not hinder it." Still, the Fifth Circuit Appeals Court approved the Texas law, ruling that "any conceivable rationale" was sufficient justification regardless of any effect on a "woman's free choice" or any burden. There must be some real crazies sitting on that court. Before Scalia's death the Supreme Court would have upheld the Fifth Circuit ruling, and the 4-4 tie that seems likely now would have the same result by leaving the Fifth Circuit ruling in place. But a 5-3 outcome isn't impossible if Kennedy switches sides. --Percy
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Percy Member Posts: 22506 From: New Hampshire Joined: Member Rating: 5.4 |
NoNukes writes: When you say "switch sides", you are aware that Kennedy wrote the opinion in Casey v. Planned Parenthood, right? At the time I only knew what was in the editorial, which said Kennedy co-wrote the opinion.
I know we talk about liberal vs. conservative, but Kennedy's position is a bit more nuanced than is, say Thomas' position on abortion. Kennedy agreed that the state had an interest that supported some restrictions, but that those restrictions could not substantially burden a 'fundamental right to chose'. Perhaps switching sides in this case would mean joining the other three conservatives. Looking this up now, Planned Parenthood v. Casey upheld regulations that had been challenged under Roe. It was viewed as an opportunity to overturn Roe, but it reaffirmed Roe, despite that it upheld 4 of the 5 regulations challenged. This is too confusing for me to parse and I'm not going to try to dissect it. All I meant about changing sides is that a 4-4 vote could become 5-3 if Kennedy doesn't vote with the conservative side of the court. The editorial excerpted statements from the Planned Parenthood v. Casey opinion he co-wrote that they suggested he might want to keep in mind as he thinks about the Texas case:
quote: --Percy
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Percy Member Posts: 22506 From: New Hampshire Joined: Member Rating: 5.4 |
In today's New York Times: Obama Chooses Merrick Garland for Supreme Court
Just announcing the news, haven't read the article yet. --Percy
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