SCJ Antonin Scalia Died

[happycampyer]

I'd support nominating Sandra Day O'Connor. She says she retired too soon. Her tenure wouldn't be long, the next president would likely get to replace her. The fullcourt could get back to work.

That would be brilliant—how could the Senate not confirm an early retired SC justice? "Uhh, she's not qualified..."—think not.

[MarkC]

.... things like gay rights and abortion and separation of church and state .....

Happen to agree with you on these topics and have no desire to see the clock rolled back either.

But would not agree that these are the most critical issues facing the country. Perhaps the most divisive but not the most important. The energy and resources consumed debating (arguing about...) them are out of balance and to me are the moral equivalent of fiddling while Rome burns. Add gun control and immigration to that list and you have 5 items that consume far too much resource and mental energy.

I'm a conservative but anyone that thinks Mr. Obama should not nominate a justice is whacked. He should and he will. Am hopeful that he puts forward a left-leaning but somewhat moderate diversity candidate and that the system then works as it should and said candidate is qualified and gets a fair hearing. I can hope but I do not expect.

As to discussions on VS - it is clear that the move vocal posters on threads like this are to the left. It's a good debate, I enjoy reading your perspectives. But would ask as a member of our virtual community that folks make room for both sides of the discussion. The debates would be better.

-Mark

[vertical_doug]

I prefer this funny scenario:

Ted Cruz filibusters, rallies the tea party faithful and delays the appointment of SCJ. Trump continues his birther case against Cruz. Trump gets lower court to rule against Cruz. SCOTUS agrees to hear case on expedited basis. Court deadlocks 4-4.

[Doug Fattic]

For those not familiar with how American government works, polarization towards the extremes of each party got a boost when state politicians hungry for power took over drawing congressional districts from fair minded officials. I think this change accelerated around 1990. Years ago I remember reading an article in the South Bend Tribune (my local paper) explaining how some guy given the responsibility in Indiana tried hard to be fair and achieve balance. The job description has changed!

The US congress is divided into 2 houses. The senate which has 2 senators for each state (so there are 100) elected every 6 years and the House of Representatives has 435 members distributed around the country based on population and elected every 2 years. My state of Michigan has 14 representatives. It used to have more but lost a few as the US population shifted to the south and west. So every 10 years the area what comprises a district is redrawn based on the most recent census. There lies the problem. Now whichever party is in control of a statehouse on a census year draws the district map to their advantage. The map only makes sense if one understands that it is trying to include some groups of people and exclude others. That makes for borders that wander in strange illogical geographical ways.

The result of this new mapping system (that makes a congressional territory with a solid majority of one party over the other) is that during a general election it is mostly predetermined which party will win a district. Who the representative will be from a district is really determined during the primary election. These are the elections run several months before the general election that decides who will be the candidate from each party. So the winners of the primaries are ones that have emphasized the extremes of their party instead of worrying about getting elected later in the general election with ideas that might be acceptable to both parties. They make no attempt to compromise because that would just make them vulnerable in a future primary election. I’m going by memory but of the 435 districts only about 60 are actually in play (meaning that the seat could be won by either a Democrat or Republican) during the general election held every 2 years in November. If the districts could be drawn by some other logical method (like they were in the past), than the candidates from each party might try to have policies that appealed to both parties to get a majority of votes instead of just pandering to the extremes of one.

An example of this shift away from the center is my representative to the House from southwest Michigan Fred Upton. He was a moderate Republican in a district that has been Republican for decades. His grandfather was cofounder of Whirlpool Corporation that makes appliances. His niece is super model Kate Upton. He gets reelected every 2 years by huge majorities. I used to vote for him but no more. He is now more seriously challenged in the primaries by a very conservative Republican than by a Democrat in the general election. So of course he keeps moving his policies more towards the conservative right. The days when he used to cooperate with the moderate Democrats are long gone.

Our southwest Michigan representative before Fred Upton was David Stockman. He went to be director of budget when Ronald Reagan became president. He got in trouble when he was interviewed by Atlantic Monthly and said "None of us really understands what's going on with all these numbers”. That was a real lol except Reagan wasn’t amused.

[Scott G.]

Doug,

Add to gerrymandering, people are segregating themselves by political belief.
Moving to neighborhoods/states of like minded people.

I second the motion to nominate O'Connor, freakin' brilliant.

[vertical_doug]

Doug,

Add to gerrymandering, people are segregating themselves by political belief.
Moving to neighborhoods/states of like minded people.

I second the motion to nominate O'Connor, freakin' brilliant.

I really miss the Soviet Union. Without the common enemy, we just fight with ourselves.

[Saab2000]

For those not familiar with how American government works, polarization towards the extremes of each party got a boost when state politicians hungry for power took over drawing congressional districts from fair minded officials. I think this change accelerated around 1990. Years ago I remember reading an article in the South Bend Tribune (my local paper) explaining how some guy given the responsibility in Indiana tried hard to be fair and achieve balance. The job description has changed!

The US congress is divided into 2 houses. The senate which has 2 senators for each state (so there are 100) elected every 6 years and the House of Representatives has 435 members distributed around the country based on population and elected every 2 years. My state of Michigan has 14 representatives. It used to have more but lost a few as the US population shifted to the south and west. So every 10 years the area what comprises a district is redrawn based on the most recent census. There lies the problem. Now whichever party is in control of a statehouse on a census year draws the district map to their advantage. The map only makes sense if one understands that it is trying to include some groups of people and exclude others. That makes for borders that wander in strange illogical geographical ways.

The result of this new mapping system (that makes a congressional territory with a solid majority of one party over the other) is that during a general election it is mostly predetermined which party will win a district. Who the representative will be from a district is really determined during the primary election. These are the elections run several months before the general election that decides who will be the candidate from each party. So the winners of the primaries are ones that have emphasized the extremes of their party instead of worrying about getting elected later in the general election with ideas that might be acceptable to both parties. They make no attempt to compromise because that would just make them vulnerable in a future primary election. I’m going by memory but of the 435 districts only about 60 are actually in play (meaning that the seat could be won by either a Democrat or Republican) during the general election held every 2 years in November. If the districts could be drawn by some other logical method (like they were in the past), than the candidates from each party might try to have policies that appealed to both parties to get a majority of votes instead of just pandering to the extremes of one.

An example of this shift away from the center is my representative to the House from southwest Michigan Fred Upton. He was a moderate Republican in a district that has been Republican for decades. His grandfather was cofounder of Whirlpool Corporation that makes appliances. His niece is super model Kate Upton. He gets reelected every 2 years by huge majorities. I used to vote for him but no more. He is now more seriously challenged in the primaries by a very conservative Republican than by a Democrat in the general election. So of course he keeps moving his policies more towards the conservative right. The days when he used to cooperate with the moderate Democrats are long gone.

Our southwest Michigan representative before Fred Upton was David Stockman. He went to be director of budget when Ronald Reagan became president. He got in trouble when he was interviewed by Atlantic Monthly and said "None of us really understands what's going on with all these numbers”. That was a real lol except Reagan wasn’t amused.

I find this to be a pretty accurate description of American politics. The only way to keep the extremists in check is to make sure we all vote in the primaries, which attract the activists.

The primaries are where we end up with these 'far out there' candidates in general elections. It's a system that works when people participate but so few voters participate that it becomes ineffective.

[jclay]

For those not familiar with how American government works, polarization towards the extremes of each party got a boost when state politicians hungry for power took over drawing congressional districts from fair minded officials. I think this change accelerated around 1990. Years ago I remember reading an article in the South Bend Tribune (my local paper) explaining how some guy given the responsibility in Indiana tried hard to be fair and achieve balance. The job description has changed!

The US congress is divided into 2 houses. The senate which has 2 senators for each state (so there are 100) elected every 6 years and the House of Representatives has 435 members distributed around the country based on population and elected every 2 years. My state of Michigan has 14 representatives. It used to have more but lost a few as the US population shifted to the south and west. So every 10 years the area what comprises a district is redrawn based on the most recent census. There lies the problem. Now whichever party is in control of a statehouse on a census year draws the district map to their advantage. The map only makes sense if one understands that it is trying to include some groups of people and exclude others. That makes for borders that wander in strange illogical geographical ways.

The result of this new mapping system (that makes a congressional territory with a solid majority of one party over the other) is that during a general election it is mostly predetermined which party will win a district. Who the representative will be from a district is really determined during the primary election. These are the elections run several months before the general election that decides who will be the candidate from each party. So the winners of the primaries are ones that have emphasized the extremes of their party instead of worrying about getting elected later in the general election with ideas that might be acceptable to both parties. They make no attempt to compromise because that would just make them vulnerable in a future primary election. I’m going by memory but of the 435 districts only about 60 are actually in play (meaning that the seat could be won by either a Democrat or Republican) during the general election held every 2 years in November. If the districts could be drawn by some other logical method (like they were in the past), than the candidates from each party might try to have policies that appealed to both parties to get a majority of votes instead of just pandering to the extremes of one.

An example of this shift away from the center is my representative to the House from southwest Michigan Fred Upton. He was a moderate Republican in a district that has been Republican for decades. His grandfather was cofounder of Whirlpool Corporation that makes appliances. His niece is super model Kate Upton. He gets reelected every 2 years by huge majorities. I used to vote for him but no more. He is now more seriously challenged in the primaries by a very conservative Republican than by a Democrat in the general election. So of course he keeps moving his policies more towards the conservative right. The days when he used to cooperate with the moderate Democrats are long gone.

Our southwest Michigan representative before Fred Upton was David Stockman. He went to be director of budget when Ronald Reagan became president. He got in trouble when he was interviewed by Atlantic Monthly and said "None of us really understands what's going on with all these numbers”. That was a real lol except Reagan wasn’t amused.

I think this largely is one of the mechanisms, a symptom of something else. The larger question is why and I think the answer involves the ramifications of social, economic and cultural stressors. Loss of jobs, reduction in earning and purchasing power, cultural evolution challenging traditional white, male and religious cultural dominance, etc. That exacerbates ideological polarization. And what Doug described so accurately is one of the results.

[Todd Mosley]

I'm not ashamed to admit that I would fully support the partisan cat fight going on now if the tables were turned ...

^^^ The most honest post yet.

People, please go read the constitution, particularly Art. II, § 2, cl. 2:

[The President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

Much uproar is being made that the the President is obligated to appoint a 9th Justice and that the Senate is obligated to vote on the President's nomination. In my legal opinion, this is unfounded. The Constitution does indeed state "he shall nominate... judges of the Supreme Court". At first glance, this would support the proposition that the President has an affirmative duty to make a nomination. However, a more careful reading of clause 2 makes this theory debatable.

Clause 2 begins with "[h]e shall have power" in regards to the power to make treaties. The inclusion of "have" makes the power discretionary. Otherwise, were the President not actively making treaties at any given moment, he would be violating his duties under the Constitution. How many treaties would he need to make and how often would he have to make them in order to satisfy his Constitutional duties?

Clause 2 contains a semicolon at the end of the first statement. What follows the semicolon is a continuation of the point made before the semicolon. Thus, it could be read in such a way that the second statement adopts the words "shall have power...to" from the first phrase, to be read as: "he shall have the power to nominate judges of the Supreme Court". Under that interpretation, the President's power to make judicial nominations is discretionary. If one were to narrowly focus on the second phrase without considering the first, the President would be violating his Constitutional duties if he was not actively nominating a judge to the Supreme Court. Yet the Constitution does not require a specific number of judges on the Supreme Court. Thus, if the power was not discretionary, how many and how often would the President need to nominate judges to the Supreme Court?

Further supporting that the power is discretionary is the the requirement of the Senate's advice and consent. The Constitution is silent as to what qualifies as "advice and consent" and the answer is likely a political one instead of a legal one. Art. I, § 1, cl. 2, permits the Senate (& the House) to "determine the rules of its proceedings". Thus, the "advice" required required from the Senate for the President to appoint a judge may simply be met by the majority leader telling the President, "now is not the right time" or "don't even bother nominating someone unless it is someone that subscribes to original meaning".

Initially, there were only six Supreme Court Justices. The country won't collapse if there is an equal number of judges. As others in this thread have pointed out, the lower court decision would be upheld if the Supreme Court is tied. But, most cases are not split decisions. Only about 20% Supreme Court cases are decided by a 5-4 split. Still, if it wanted to, the Court could simply delay a particular case until a replacement was installed or another Justice retired (Ginsburg?).

In sum, President won't be violating the Constitution if he fails to nominate a replacement. The Senate won't be violating the Constitution if they decline to hold a confirmation hearing. Cases will still get decided if there are only eight Justices. In the end, this is a political situation ultimately controlled by the Senate. While the country elected President Obama, and it is he who gets to appoint Supreme Court Justices, the country also elected a majority Republican Senate who has final say on who gets to be a Supreme Court Justice. The solution will depend on who has more political capital.

[spopepro]

-snip-
In sum, President won't be violating the Constitution if he fails to nominate a replacement. The Senate won't be violating the Constitution if they decline to hold a confirmation hearing. Cases will still get decided if there are only eight Justices. In the end, this is a political situation ultimately controlled by the Senate. -snip-

The sudden deep, deep reading of the constitution is accurate, if conspicuous for all the times the same people wish to alleviate major portions of the citizenship of their rights guaranteed by the same sheepskin.

The bigger point, especially in an English law country, is that such a protracted political fight would be unprecedented, and not just by a little bit. That's a really big deal, and such major breaks from precedent have historically motivated significant law reform (see: 22nd amendment).

[Saab2000]

I agree that he's probably not obligated to nominate anyone immediately. But I think it's not inappropriate either given that he has nearly a year left in office. It would be unfortunate for the senate to not even consider a nominee.

Of note: I read an article yesterday that indicated the then-Senator Obama participated in a filibuster of Justice Alito's nomination. So he's not above this partisanship. Not by a long shot.

I'm not picking sides. I just wish they'd act like adults more often. All of them. The bickering and language used wouldn't be tolerated in a kindergarten so I'm ashamed that they use it in what are supposed to be the most dignified positions in the nation.

[SteveP]

OTE=vertical_doug;760275]I prefer this funny scenario:

Ted Cruz filibusters, rallies the tea party faithful and delays the appointment of SCJ. Trump continues his birther case against Cruz. Trump gets lower court to rule against Cruz. SCOTUS agrees to hear case on expedited basis. Court deadlocks 4-4.[/QUOTE]

This would be so awesome ..

[Christian Fox]

I agree that he's probably not obligated to nominate anyone immediately. But I think it's not inappropriate either given that he has nearly a year left in office. It would be unfortunate for the senate to not even consider a nominee.

Of note: I read an article yesterday that indicated the then-Senator Obama participated in a filibuster of Justice Alito's nomination. So he's not above this partisanship. Not by a long shot.

I'm not picking sides. I just wish they'd act like adults more often. All of them. The bickering and language used wouldn't be tolerated in a kindergarten so I'm ashamed that they use it in what are supposed to be the most dignified positions in the nation.

Geat post Saab, agree 100%. Personally, I hope the President can nominate a left-leaning moderate and it moves on to confirmation. My hopes aren't high.

But remember, it was "different" when then-Senator Obama voted to filibuster...it's always "different" and justifiable when it's your team. Please. Anyone who tries to argue that their side doesn't politicize Judicial nominations sounds like a child. Actually, no, I've heard 10yr olds make more cogent arguments defending their favorite football team.

[monadnocky]

... I've heard 10yr olds make more cogent arguments defending their favorite football team.

So we are in agreement, then. Tom Brady should be the next Supreme Court justice.

[Jonathan]

Please. Anyone who tries to argue that their side doesn't politicize Judicial nominations sounds like a child. Actually, no, I've heard 10yr olds make more cogent arguments defending their favorite football team.

Definitely, when the president does make his nomination it will be loaded with politics and if there is no chance his pick will get confirmed he will load that pick with more politics. The whitehouse would love to get far right senators on record for not voting for or considering a well qualified woman or person of color especially if it's a nominee who had previously sailed through without much problem. The president gets to use the high road as a strategic advantage.

[BBB]

I'm not picking sides. I just wish they'd act like adults more often. All of them. The bickering and language used wouldn't be tolerated in a kindergarten so I'm ashamed that they use it in what are supposed to be the most dignified positions in the nation.

It is highly unfortunate, but I think politicians deserve a great deal of scorn.

The bickering, pettiness, conflicts of interest, secrecy and outright stupidity etc etc all done while supposedly governing for the good of all is just disgraceful. Here in Oz we have had three ministers resign in about six weeks (one because while on a business trip he got on the sauce, did something inappropriate to a public servant and then sent photos of the girl in question to colleagues, another because he was being investigated by the Federal Police for his role in a very unsubtle sting to bring down the then speaker of the house and the third for putting himself in a hopeless conflict of interest). Seriously?

Sure dictatorships (Nth Korea), authoritarian states (China), mafia states (Russia) etc etc would be far, far worse than modern western democracy, but for all our pretensions of superiority our leaders make it look more like a very bad comedy act.

[vertical_doug]

The bickering, pettiness, conflicts of interest, secrecy and outright stupidity etc etc all done while supposedly governing for the good of all is just disgraceful. Here in Oz we have had three ministers resign in about six weeks (one because while on a business trip he got on the sauce, did something inappropriate to a public servant and then sent photos of the girl in question to colleagues, another because he was being investigated by the Federal Police for his role in a very unsubtle sting to bring down the then speaker of the house and the third for putting himself in a hopeless conflict of interest). Seriously?

.

Post-Watergate, the press is more willing to report on the bad behavior. You can just look at how the press handled Kennedy's infidelities and Clinton's. The bad behavior has always been in Washington, it was just not reported. I am willing to bet many of the 'great' men of lore were drunks and pervs.

Australia, US, England. all the same.
Look how hard it is for Westminster to come clean on the paedophile ring dossier from the 70's.

[SteveP]

65 yr old originalist scalia would urge obama to make appointment.
post 2000/ citizens united scalia would fight obama for political end and personal "glory".

recent years he has become a cartoon character.

[Dallas Tex]

65 yr old originalist scalia would urge obama to make appointment.
post 2000/ citizens united scalia would fight obama for political end and personal "glory".

recent years he has become a cartoon character.

This comment has no basis is reality.

[guido]

This comment has no basis is reality.

Unless you look at the actual record. I'd say it started with Bush v. Gore.