[Bbradley62]

Zelandakh, on 2016-February-15, 04:39, said:

I think the Dems should nominate a true radical knowing there is zero chance of them getting ratified during this term but preparing the ground for Hilary to push them through next time around with a strong mandate that would be difficult for the Reps to rebuke in the aftermath of a general election defeat.

Speaking as a swing voter, this would piss me off. If the Dems want my sympathy/support on this issue, POTUS should nominate a centrist and if the GOP blocks it just because they can, I'm all in with Dems in November.

[Flem72]

kenrexford, on 2016-February-14, 18:30, said:

Want your head to explode? Ted Cruz.

Oy.

BTW, has anyone else thought that Cruz looks very much like a thinner, narrower-faced Lyndon Johnson?

[Flem72]

Bbradley62, on 2016-February-15, 07:45, said:

Speaking as a swing voter, this would piss me off. If the Dems want my sympathy/support on this issue, POTUS should nominate a centrist and if the GOP blocks it just because they can, I'm all in with Dems in November.

Here are some interesting arguments:

http://pjmedia.com/instapundit/226701/

And more on election year appointments:

http://www.scotusblo...election-years/

[kenberg]

I said above that I thought this is a real opportunity. The nomination of a highly qualified and minimally ideological candidate would, when s/he is rejected, present a clear picture of our problems. The Republicans have since made it clear that this rejection will take place. Qualifications are irrelevant, Obama nominates, the Senate rejects, end of story.

It is often noted that we of the older demographic simply do not understand the extent to which the world has changed. Perhaps so, but I am not yet prepared to go quietly.

In my childhood and youth, the Democrat Harry Truman beat the Republican Thomas Dewey and the Republican Dwight Eisenhower beat the Democrat Adlai Stevenson (twice). I was 9 when Truman beat Dewey but my understanding is that Dewey would have made a decent president. I supported Stevenson in 52, but I liked Ike ("I like Ike" was his slogan) as president. Have we really lost this? Does it have to be Saints versus Sinners?

There has been, of course, a lot written about Scalia. Even from the even-handed discussions I gather he thought of Satan not as a metaphor but as a living, breathing Demon against whom we must struggle. Really? My father went to church, that's what good people did in mid-century Minnesota, but if he ever thought of life as a struggle against the forces of Satan he never mentioned it to me. I did not know anyone who thought that way, and such a person would have been avoided. Why hang around with a nut?

While on this historical reminiscence, I can't recall Truman or Eisenhower ever speaking of Satan, or all that much of Jesus Christ either. I imagine they both went to church, but I don't recall it being a centerpiece of their campaign. Of course Joe McCarthy was around to tell us Stevenson was a dangerous commie, but McCarthy was an alcoholic nut whose career crashed under its own weight.

Anyway, I favor the nomination of a clearly qualified minimally ideological candidate. Let the voters see who believes we should work together, and who does not.

I will now take a nap to recover from the exhausting effort of all of this typing. Or maybe I will go to the Y and lift weights.

[blackshoe]

Is a "general election defeat" for the Republican Party a foregone conclusion then?

[Zelandakh]

blackshoe, on 2016-February-15, 08:33, said:

Is a "general election defeat" for the Republican Party a foregone conclusion then?

Not just yet but if the Dems lose the White House it hardly matters who they nominated as the Reps will surely appoint a conservative as a like-for-like replacement ("to keep the SC balance"). That makes this a good time to be playing the long game.

[Flem72]

Breitbart has some Scalia quotes.

http://www.breitbart...reatest-quotes/

No doubt NYT/Washington Post/HuffPo etc. would compile a different list, but I'd still like to see them.

[Bbradley62]

Zelandakh, on 2016-February-15, 08:39, said:

Not just yet but if the Dems lose the White House it hardly matters who they nominated as the Reps will surely appoint a conservative as a like-for-like replacement ("to keep the SC balance"). That makes this a good time to be playing the long game.

But, none of Ginsburg, Breyer or Kennedy will outlast an 8-year presidency, so there is a lot of potential for a swing to the right if the Dems lose both White House and Senate in November.

[akwoo]

At the current rate, the next President might not be allowed to appoint a Cabinet or anyone else (unless it is the Senate's choice), with the Senate staying in session to prevent recess appointments.

[kenberg]

There is something in the Post today indicating that some Republican Senators, especially those up for re-election in tight contests, are at least a little wary of the take no prisoners approach. As well thye might be.


I see cabinet appointments very differently from Supreme Court appointments. Cabinet appointments are for the administrative branch. The pres gets to choose, and they get to leave when his term is over.

The Supremes have lifetime appointments,and in a different branch. There is good reason to expect these appointments to go beyond immediate political advantage. Ok, I am dreaming. But that's how I see it.

The Republican idea that we are obligated to wait until after the election is absurd on several counts. Firstly, there is no argument whatsoever in favor of it. Secondly, any attempted argument would have to apply equally well if Scalia had died in February of 2015. What's the difference. But thirdly, which perhaps should be firstly, Supreme court appointments regularly span several presidencies. We fill them when they open up, and the Justice usually outlasts both the person who appointed him and his successor.


I really think many people are pretty fed up with politicians seeing how to play it before the body is in the ground.

I promise that if there was a Republican president and a Democratic majority in the Senate I would be equally dismayed by this absolute refusal to cooperate on anything. I expect I am far from the only one. Republican Senators might very well be having some second thoughts here.

[Winstonm]

Here are a couple more Scalia quotes:

Quote

Herrera v. Collins:
There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.

Then, 16 years later...

Quote

IN RE TROY ANTHONY DAVIS ON PETITION FOR WRIT OF HABEAS CORPUS:
This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent.

[barmar]

kenberg, on 2016-February-16, 08:37, said:

The Republican idea that we are obligated to wait until after the election is absurd on several counts. Firstly, there is no argument whatsoever in favor of it. Secondly, any attempted argument would have to apply equally well if Scalia had died in February of 2015. What's the difference.

The difference is in how long we believe we can live with one less Supreme Court justice. A few months (during several of which the Court is not even in session) is acceptable, years is not.

But as many reporters and late night comics have pointed out, following a "tradition" like the Thurmond Rule would be a punch in the face to Scalia, who was such a strong believer in the letter of the Constitution. He's barely in his grave and would already be turning over in it.

[Zelandakh]

barmar, on 2016-February-16, 10:20, said:

A few months (during several of which the Court is not even in session) is acceptable, years is not.

Why not? The American constitution effectively allows appointments, laws and budgets to be blocked almost indefinitely. This is the democracy often held up to be a model for other countries, so surely such matters are to be championed and applauded? And if not, perhaps some of the more modern democracies are not so bad and modernising America to avoid paralysis through extremism might be less heretical than the extremists would have one believe.

[WellSpyder]

Zelandakh, on 2016-February-16, 10:41, said:

This is the democracy often held up to be a model for other countries

Really? Who by?

[kenberg]

barmar, on 2016-February-16, 10:20, said:

The difference is in how long we believe we can live with one less Supreme Court justice. A few months (during several of which the Court is not even in session) is acceptable, years is not.

But as many reporters and late night comics have pointed out, following a "tradition" like the Thurmond Rule would be a punch in the face to Scalia, who was such a strong believer in the letter of the Constitution. He's barely in his grave and would already be turning over in it.

I had never heard of the Thurmond Rule, I keep learning things here. So I looked it up on the Wikipedia. It seems Thurmond made it up out of air to punish Lyndon Johnson. Orin Hatch is quotes:

Quote

In 2004, Republican Senator Orrin Hatch dismissed the rule: "Strom Thurmond unilaterally on his own ... when he was chairman could say whatever he wanted to, but that didn't bind the whole committee, and it doesn't bind me."
[

This seems about right.

At some point I can imagine it simply being too late for an appointment to be made. November 1st, for example. But otherwise, president's fill vacancies as they occur. Republicans can advocate deference to a rule promulgated by a segregationist and used to punish a president for passing Civil Rights laws if they wish. Simply saying, as they do, "We are blocking it because we can" seems like bad enough tactics. Citing Thurmond as justification? I don't think so.

[Flem72]

Winstonm, on 2016-February-16, 09:16, said:

Here are a couple more Scalia quotes:

Then, 16 years later...

Yeah? So? The second, he's just stating facts, that's the law. You may think 'the law are an ass,' but there ya go.

The first--"tradition" is a bit twisty....

In all of this, folks should remember that jurists like Scalia don't think, e.g., that "a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction" is a bad idea, they only think it is not a constitutional idea except to the extent that legislatures may enact the will of the people.

[PassedOut]

Flem72, on 2016-February-16, 11:19, said:

In all of this, folks should remember that jurists like Scalia don't think, e.g., that "a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction" is a bad idea, they only think it is not a constitutional idea except to the extent that legislatures may enact the will of the people.

Most people today consider killing an innocent person to be "cruel and unusual punishment." I expect that was the case 200 years ago also. The purpose of higher courts is to correct what has gone wrong in lower courts.

[akwoo]

PassedOut, on 2016-February-16, 11:41, said:

Most people today consider killing an innocent person to be "cruel and unusual punishment." I expect that was the case 200 years ago also. The purpose of higher courts is to correct what has gone wrong in lower courts.

More to the point, I believe Scalia did not believe that the notion of "actual innocence" mattered at all in law, only the notions of "legal innocence" or "legal guilt", which are decided through various formal procedures which interact with the real world at only one point, which is when the jury renders a verdict. From this formal point of view, the jury is to be treated as an extra-legal oracle.

See https://quomodocumqu...n-it-really-is/

[PassedOut]

akwoo, on 2016-February-16, 13:20, said:

More to the point, I believe Scalia did not believe that the notion of "actual innocence" mattered at all in law, only the notions of "legal innocence" or "legal guilt", which are decided through various formal procedures which interact with the real world at only one point, which is when the jury renders a verdict. From this formal point of view, the jury is to be treated as an extra-legal oracle.

I do understand that Scalia had his reasons, but when reasoning leads to a conclusion that can't be right, one must reexamine the reasoning. I'm fairly sure that the framers did not intend for innocent people to be put to death.

[Winstonm]

Flem72, on 2016-February-16, 11:19, said:

Yeah? So? The second, he's just stating facts, that's the law. You may think 'the law are an ass,' but there ya go.

The first--"tradition" is a bit twisty....

In all of this, folks should remember that jurists like Scalia don't think, e.g., that "a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction" is a bad idea, they only think it is not a constitutional idea except to the extent that legislatures may enact the will of the people.

I guess Scalia did not think the 9th Amendment covered an individual's right not to be executed by the state in error.