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 Post subject: Re: RIP Antonin Scalia
PostPosted: Tue February 16, 2016 4:26 pm 
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digster wrote:
but the Democrats have the added benefit of being correct.
I was completely with you until this part. Why do you feel the Democrats are "correct"? Is it because you think the Democrats would appoint a justice that's ideologically better? If so, then I'm back on board with your post.


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 Post subject: Re: RIP Antonin Scalia
PostPosted: Tue February 16, 2016 4:31 pm 
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No, I say that because the (Democratic) president is supposed to nominate a Supreme Court justice and the Senate is supposed to confirm or deny that nomination. Both the Democrats and Republicans want to adjust (in the case of the former) or maintain (in the case of the latter) the ideological bent of the Court. But only the Democrats can claim that they want to adjust that ideological bent by doing what's actually supposed to be done when a Court justice dies or retires. There's no requirement that the Court maintain a 5-4 ideological bent that leans conservative.


Last edited by digster on Tue February 16, 2016 4:36 pm, edited 3 times in total.

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 Post subject: Re: RIP Antonin Scalia
PostPosted: Tue February 16, 2016 4:34 pm 
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Green Habit wrote:
stip wrote:
This SC nomination is a reflection of a refusal on the part of republicans to confer any legitimacy about the right to rule onto the other party. You can trace the history of this back to both parties but we are dealing with something fundamentally new based on its magnitude.
Perhaps our point of disagreement is that I'm limiting my analysis to the filling of Scalia's seat. Replacing a SCOTUS justice is a huge deal, especially when the ideological balance could shift with it. As such, I think it's perfectly reasonable for both parties to do everything they can in this instance to reach a conclusion in their favor. Talking about the wider trend may be a subject for another time or thread, and one where we may reach some more agreement.

fair enough, but you can't divorce the individual instance from the larger context.

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 Post subject: Re: RIP Antonin Scalia
PostPosted: Tue February 16, 2016 4:38 pm 
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digster wrote:
No, because the President is supposed to nominate a Supreme Court justice and the Senate is supposed to confirm or deny that nomination. Both the Democrats and Republicans want to adjust (in the former) or maintain (in the latter) the ideological bent of the Court. But only the Democrats can claim that they want to adjust that ideological bent by doing what's actually supposed to be done when a Court justice dies or retires. There's no requirement that the Court maintain a 5-4 ideological bent that leans conservative.
If Obama nominates someone, as is his right, the GOP Senate has the respective right to deny that nomination, as you said. If you feel the Republicans are wrong in saying that Obama shouldn't even bother nominating someone, then I feel that that's more style than substance. The Republicans are smart enough to know that Obama will ignore those pleas, and they'll then exercise their constitutional power to stop those nominees.


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 Post subject: Re: RIP Antonin Scalia
PostPosted: Tue February 16, 2016 7:02 pm 
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Oh, I'm not under the impression that the Senate will not confirm the nominee, but that they're going to stop the process from even occurring.


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 Post subject: Re: RIP Antonin Scalia
PostPosted: Tue February 16, 2016 7:12 pm 
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digster wrote:
Oh, I'm not under the impression that the Senate will not confirm the nominee, but that they're going to stop the process from even occurring.
Again, style over substance. The end goal (that Obama's nomination doesn't become a SCOTUS justice) happens either way.


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 Post subject: Re: RIP Antonin Scalia
PostPosted: Tue February 16, 2016 7:31 pm 
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In this particular case though, the style has substance. The blatant disregard for process and the full frontal assault on the opposition parties right to govern is a problem

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 Post subject: Re: RIP Antonin Scalia
PostPosted: Tue February 16, 2016 7:34 pm 
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Green Habit wrote:
digster wrote:
Oh, I'm not under the impression that the Senate will not confirm the nominee, but that they're going to stop the process from even occurring.
Again, style over substance. The end goal (that Obama's nomination doesn't become a SCOTUS justice) happens either way.


For the Democrats to get what they want, Obama needs to do exactly what he's supposed to do anyway. For the Republicans to get what they want, they have to block the nomination process of a Supreme Court justice for over a year. I think there is a difference there.


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 Post subject: Re: RIP Antonin Scalia
PostPosted: Tue February 16, 2016 9:51 pm 
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Sigh, we're never going to agree on this. I guess I'll wrap it up by saying that ultimately the public will decide if the style really matters at all. If either side loses that ground, I'll chalk it up as a tactical error in politics, but one that I (and I'll only speak for myself) can understand taking the risk on.

I'll shift the subject to something else soon, but it'll take me a while to think through this. Maybe by tomorrow morning.


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 Post subject: Re: RIP Antonin Scalia
PostPosted: Tue February 16, 2016 10:21 pm 
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I'm kind of a fool for thinking there is a possible world where Congress makes laws and the Executive branch enforces laws, and they don't battle it out like our country is a glorified Risk board that they're trying to win.

It's not Cruz or McConnell's job to obstruct Obama. It's their job to write some fucking laws or pass a budget.

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 Post subject: Re: RIP Antonin Scalia
PostPosted: Tue February 16, 2016 11:42 pm 
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Quote:
But “the Constitution is pretty clear about what is supposed to happen now,” Obama said Tuesday after a speech at the U.S.-Association of Southeast Asian Nations summit at Rancho Mirage, California. “When there is a vacancy on the Supreme Court, the president of the United States is to nominate someone, the Senate is to consider that nomination, and either they disapprove of the nominee or that nominee is elevated to the Supreme Court.”

“Historically, this has not been viewed as a question,” Obama said.

“There’s no unwritten law that says that it can only be done on off years, that’s not in the constitutional text,” Obama said. “I’m amused when I hear people who claim to be strict interpreters of the Constitution suddenly reading into it provisions that are not there.”


Pretty cool statements by Obama given this is Scalia's seat.

http://www.msnbc.com/msnbc/obama-scotus ... etty-clear

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 Post subject: Re: RIP Antonin Scalia
PostPosted: Wed February 17, 2016 4:37 pm 
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So, explain to me again why Obama shouldn't just make a recess appointment now, and fuck-off the whole nomination/confirmation process?

Trump would. Cruz would.

By the way, Obama has made 32 recess appointments. Reagan made 240. Bush II made 171.


Last edited by hlniv on Wed February 17, 2016 4:43 pm, edited 1 time in total.

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 Post subject: Re: RIP Antonin Scalia
PostPosted: Wed February 17, 2016 4:40 pm 
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This is interesting context. The link lists all back to George Washington.

http://www.nytimes.com/interactive/2016 ... .html?_r=0

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 Post subject: Re: RIP Antonin Scalia
PostPosted: Wed February 17, 2016 4:55 pm 
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hlniv wrote:
So, explain to me again why Obama shouldn't just make a recess appointment now, and fuck-off the whole nomination/confirmation process?

Trump would. Cruz would.

By the way, Obama has made 32 recess appointments. Reagan made 240. Bush II made 171.

The main obstacle is that the Senate would have to recess and they are under no compulsion to do so. Also, about two years ago the Supreme Court limited the president's ability to make recess appointments. The recess has to be longer than three days and if the Senate conducts virtually any sort of business no matter how inconsequential then it isn't considered a recess.

Then there's the political ramifications that he would be giving the Republicans a gift for November as he'd be seen as vindicating everything they've said about him for 8 years by going around the Senate and acting unilaterally. Additionally, a recess appointment is temporary. The Senate would have to confirm it next year anyway. So if Obama does this and it swings the election towards the Republicans they'd just put a conservative on the Court anyway.

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 Post subject: Re: RIP Antonin Scalia
PostPosted: Wed February 17, 2016 5:12 pm 
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4/5 wrote:
hlniv wrote:
So, explain to me again why Obama shouldn't just make a recess appointment now, and fuck-off the whole nomination/confirmation process?

Trump would. Cruz would.

By the way, Obama has made 32 recess appointments. Reagan made 240. Bush II made 171.

The main obstacle is that the Senate would have to recess and they are under no compulsion to do so. Also, about two years ago the Supreme Court limited the president's ability to make recess appointments. The recess has to be longer than three days and if the Senate conducts virtually any sort of business no matter how inconsequential then it isn't considered a recess.

Then there's the political ramifications that he would be giving the Republicans a gift for November as he'd be seen as vindicating everything they've said about him for 8 years by going around the Senate and acting unilaterally. Additionally, a recess appointment is temporary. The Senate would have to confirm it next year anyway. So if Obama does this and it swings the election towards the Republicans they'd just put a conservative on the Court anyway.
Plus, if the GOP sued you'd have a long court battle ahead of you...and the entire Supreme Court would likely have to recuse itself since it's implicated here. So you probably get an en banc DC Circuit having the final ruling, which favors Obama, but would be a huge circus just to get to that point.


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 Post subject: Re: RIP Antonin Scalia
PostPosted: Wed February 17, 2016 7:24 pm 
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Interesting points. And?

Like none of that is going to happen anyway? No matter what he does, it will be the same drawn out battle and argument from the GOP.

Elections now are about mobilizing your base. What better way to mobilize the liberal base than by doing this?

Wait, is the Senate not in recess now? I thought they were.


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 Post subject: Re: RIP Antonin Scalia
PostPosted: Wed February 17, 2016 10:55 pm 
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http://www.washingtonpost.com/postevery ... t-the-law/

Quote:
I’m a liberal lawyer. Clerking for Scalia taught me how to think about the law.

When I was in law school, a Supreme Court clerkship was the Holy Grail. For me, it was clerking for Justice Antonin Scalia. Now that I’m a partner in a law firm that serves the notoriously progressive entertainment industry, the fact that I once clerked for Scalia often elicits looks of surprise from those sitting across from me, who ask if I’m the functional equivalent of a unicorn — a conservative in Los Angeles — a place that Scalia had amusingly warned me would “melt my brain.” I tell them, no, I’m politically liberal, but that my time working for the justice was one of the defining experiences of my life.

...

I missed the mark a few times when I made assumptions about what Justice Scalia would think, based on his political leanings. In one particular criminal case, I tried to anticipate his reaction and gave him the analysis I thought he wanted. But when I suggested he might want to follow the more conventionally conservative line of thinking, he looked at me incredulously and said, “We can’t do that.” There was another case, where we were tasked with writing the majority opinion, when I saw him struggle and ultimately change his mind after realizing that the text of the statute would not support the position he initially wanted to take. That was the one time the Justice — who was very respectful of personal time and valued his own — called me on a weekend and asked me to come into chambers. As we worked through the case together, the power went out in our wing of the Court. Rather than taking a break, we moved our chairs and books into the hallway, using the natural light that came through the courtyard. This prompted Justice David Souter (who was famously averse to using modern technology, including, seemingly, the light bulb) to poke fun at our inability to read in dim light.

If there was a true surprise during my year clerking for Scalia, it was how little reference he made to political outcomes. What he cared about was the law, and where the words on the page took him. More than any one opinion, this will be his lasting contribution to legal thought. Whatever our beliefs, he forced lawyers and scholars to engage on his terms — textual analysis and original meaning. He forced us all to acknowledge that words cannot mean anything we want them to mean; that we have to impose a degree of discipline on our thinking. A discipline I value to this day.


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 Post subject: Re: RIP Antonin Scalia
PostPosted: Wed February 17, 2016 11:16 pm 
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Yeah, one huge difference between Scalia and Thomas is that Scalia usually wanted a left leaning clerk, if for nothing else because he liked to argue a lot. Thomas always wants his clerks lock and step with his ideology.


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 Post subject: Re: RIP Antonin Scalia
PostPosted: Thu February 18, 2016 2:17 am 
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Thom Tillis, on Feb. 16 wrote:
I firmly believe the voice of the American people should be heavily weighted in that decision and their voice will soon be heard on Election Day. Given the current circumstances, the process of filling the Supreme Court vacancy would be best left to the next president.


Thom Tillis, on Feb. 17 wrote:
I think we fall into the trap if just simply say sight unseen, we fall into the trap of being obstructionists.


North Carolina, my friends!

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 Post subject: Re: RIP Antonin Scalia
PostPosted: Thu February 18, 2016 4:39 pm 
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hlniv wrote:
Interesting points. And?

Like none of that is going to happen anyway? No matter what he does, it will be the same drawn out battle and argument from the GOP.

Elections now are about mobilizing your base. What better way to mobilize the liberal base than by doing this?

Wait, is the Senate not in recess now? I thought they were.

Quote:
"The Senate is only in recess when the Senate says it’s in recess. So in some ways that hands a lot of power to the Senate majority leader who can call the Senate back into session once every 72 hours for some sort of pro forma business, so they wouldn’t officially be in recess,"

So unless Obama did it like right now....which he wouldn't because it would be a major gift to the Republican party...there's no guarantee that there will be another recess during which he could make such an appointment.

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