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Author Topic:   Supreme Court Justice Antonin Scalia's dead. The maneuvering begins!
Percy
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Posts: 22359
From: New Hampshire
Joined: 12-23-2000
Member Rating: 4.7


Message 11 of 122 (777997)
02-14-2016 10:12 AM


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:
First Year of ServiceJusticeAppointed ByYears Since Previous Appointment
2010Elena KaganObama1
2009Sonia SotomayorObama3
2006Samuel AlitoG. W. Bush1
2005John G. RobertsG. W. Bush11
1994Stephen BreyerClinton1
1993Ruth Bader GinsburgClinton2
1991Clarence ThomasG. H. W. Bush1
1990David SouterG. H. W. Bush2
1988Anthony KennedyReagan2
1986Anthony ScaliaReagan4
1982Sandra Day O'ConnorReagn7
1975John Paul StevensFord3
1972William RehnquistNixon0
1972Lewis F. Powell, Jr.Nixon2
1970Harry BlackmunNixon1
1969Warren E. BurgerNixon2
1967Thurgood MarshallJohnson2
1965Abe FortasJohnson3
1962Arthur GoldbergKennedy0
1962Byron WhiteKennedy4
1958Potter StewartEisenhower1
1957Charles Evans WhittakerEisenhower1
1956William J. Brennan, Jr.Eisenhower1
1955John MArshall Harlan IIEisenhower2
1953Earl WarrenEisenhower4
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: 22359
From: New Hampshire
Joined: 12-23-2000
Member Rating: 4.7


Message 18 of 122 (778013)
02-14-2016 2:05 PM
Reply to: Message 15 by NoNukes
02-14-2016 1:33 PM


NoNukes writes:
I read the eulogy and I note the fairly faint praise. Example:
quote:
By the time he wrote his most important majority opinion, finding that the Second Amendment protects an individual right to bear arms, even the dissenters were engaged in trying to determine the original meaning of the Constitution, the approach he had championed.
That passage from the NYT was preceded by this beginning about how influential a figure he was:
quote:
All of these views took shape in dissents. Over time, they came to influence and in many cases dominate the debate at the Supreme Court, in lower courts, among lawyers and in the legal academy.
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: 22359
From: New Hampshire
Joined: 12-23-2000
Member Rating: 4.7


Message 20 of 122 (778015)
02-14-2016 2:24 PM


The Republican Dilemma
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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 Message 21 by subbie, posted 02-14-2016 2:51 PM Percy has replied

  
Percy
Member
Posts: 22359
From: New Hampshire
Joined: 12-23-2000
Member Rating: 4.7


Message 22 of 122 (778019)
02-14-2016 3:13 PM
Reply to: Message 21 by subbie
02-14-2016 2:51 PM


Re: The Republican Dilemma
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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 Message 21 by subbie, posted 02-14-2016 2:51 PM subbie has replied

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 Message 24 by subbie, posted 02-14-2016 5:25 PM Percy has replied

  
Percy
Member
Posts: 22359
From: New Hampshire
Joined: 12-23-2000
Member Rating: 4.7


Message 28 of 122 (778035)
02-14-2016 9:23 PM
Reply to: Message 26 by NoNukes
02-14-2016 7:31 PM


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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 Message 26 by NoNukes, posted 02-14-2016 7:31 PM NoNukes has replied

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 Message 32 by NoNukes, posted 02-15-2016 1:15 AM Percy has replied

  
Percy
Member
Posts: 22359
From: New Hampshire
Joined: 12-23-2000
Member Rating: 4.7


Message 33 of 122 (778042)
02-15-2016 6:28 AM
Reply to: Message 24 by subbie
02-14-2016 5:25 PM


Re: The Republican Dilemma
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: 22359
From: New Hampshire
Joined: 12-23-2000
Member Rating: 4.7


Message 35 of 122 (778044)
02-15-2016 7:03 AM
Reply to: Message 32 by NoNukes
02-15-2016 1:15 AM


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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 Message 39 by NoNukes, posted 02-15-2016 1:21 PM Percy has replied

  
Percy
Member
Posts: 22359
From: New Hampshire
Joined: 12-23-2000
Member Rating: 4.7


(1)
Message 44 of 122 (778075)
02-15-2016 6:52 PM
Reply to: Message 43 by New Cat's Eye
02-15-2016 4:05 PM


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: 22359
From: New Hampshire
Joined: 12-23-2000
Member Rating: 4.7


(3)
Message 47 of 122 (778083)
02-16-2016 10:06 AM
Reply to: Message 39 by NoNukes
02-15-2016 1:21 PM


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: 22359
From: New Hampshire
Joined: 12-23-2000
Member Rating: 4.7


(1)
Message 67 of 122 (778219)
02-18-2016 11:36 AM


NYT Columnist Lays Into Scalia
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:
I’ve become increasingly concerned, as my recent columns have suggested, that the conservative majority is permitting the court to become an agent of partisan warfare to an extent that threatens real damage to the institution. Justice Scalia’s outsize role on and off the bench contributed to that dangerous development to an outsize degree.
...
His frequent parroting of right-wing talking points in recent years may have reflected the contraction of his intellectual universe. In an interview with the writer Jennifer Senior (now a New York Times book critic) in New York magazine in 2013, Justice Scalia said he got most of his news from the car radio and from skimming The Wall Street Journal and the conservative Washington Times. He said he stopped reading The Washington Post because it had become so shrilly, shrilly liberal that he couldn’t handle it anymore.
...
These insights might help explain why someone as smart as Antonin Scalia seemed so un-self-conscious about his inflammatory rhetoric. He was simply giving voice to those he spent his time with. His world was one that reinforced and never challenged him.
...
What mattered was his ability to invoke originalism as a mobilizing tool outside the court, in speeches and in dissenting opinions. The message was that courts have no business recognizing new rights. (Except, evidently, new rights of which Justice Scalia approved, such as an unconstrained right for corporations to spend money in politics.) The audience for his dissents, he told Ms. Senior in the New York magazine interview, was law students. The mission he set for himself was cultivating the next generation.
--Percy

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Percy
Member
Posts: 22359
From: New Hampshire
Joined: 12-23-2000
Member Rating: 4.7


Message 83 of 122 (779001)
02-28-2016 9:51 AM


Texas Law Comes Before the Supreme Court
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: 22359
From: New Hampshire
Joined: 12-23-2000
Member Rating: 4.7


Message 88 of 122 (779050)
02-29-2016 7:59 AM
Reply to: Message 86 by NoNukes
02-28-2016 3:42 PM


Re: Texas Law Comes Before the Supreme Court
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:
In the 1992 case Planned Parenthood v. Casey, the Supreme Court struck down abortion restrictions that impose an undue burden on women. Such restrictions include unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion. There is no more apt a description than that for the Texas law.
--Percy

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Percy
Member
Posts: 22359
From: New Hampshire
Joined: 12-23-2000
Member Rating: 4.7


Message 91 of 122 (780552)
03-16-2016 1:51 PM


Obama Announces Nomination for Scalia's Replacement
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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