US Politics: Jousting for SCOTUS nominees

[Ser Scot A Ellison]

BR,

Because this has turned into a giant poker game and they don't want to give away their play, stupid as it may be.

[BloodRider]

2 minutes ago, Ser Scot A Ellison said:

BR,

Because this has turned into a giant poker game and they don't want to give away their play, stupid as it may be.

i am sorry - I replied to three things in a row.  Can you contextualize what you are replying to?  I am not sure what you mean otherwise.

[Ser Scot A Ellison]

BR,

Refusing to meet with the President.  It's all part of trying to make their play as opaque as possible.

[Mexal]

15 minutes ago, Ser Scot A Ellison said:

BR,

Refusing to meet with the President.  It's all part of trying to make their play as opaque as possible.

Yes, it is, but it's unprecedented and seems to go against the whole "advise and consent" on nominations. If you're not advising or consenting, you're not doing your constitutional duty. So whether it's part of their shell game or not, it's unconstitutional. 

[Ser Scot A Ellison]

Mexal,

Okay, how does the Court force Senators to meet and talk with the President regarding SCOTUS nominees, assuming the Court agrees with your interpretation?

[Mexal]

Just now, Ser Scot A Ellison said:

Mexal,

Okay, how does the Court force Senators to meet and talk with the President regarding SCOTUS nominees, assuming the Court agrees with your interpretation?

I have no idea. Doubt they can. Still doesn't change this is an unprecedented moment in history and goes against the Constitution they swore to uphold. 

[Kalbear]

12 minutes ago, Ser Scot A Ellison said:

Mexal,

Okay, how does the Court force Senators to meet and talk with the President regarding SCOTUS nominees, assuming the Court agrees with your interpretation?

I don't think it does. I think it would simply give grounds to impeach them and throw them out of their senate seat. 

[Howdyphillip]

7 minutes ago, Kalbear said:

I don't think it does. I think it would simply give grounds to impeach them and throw them out of their senate seat. 

 Here is a legitimate question. What is to keep the democrats from seeking a lawsuit against the Senators in the 9th circuit? If they were found guilty there, wouldn't the split supreme court be forced to carry out their verdict? 

[Ser Scot A Ellison]

Guys, the Senate itself would have to vote to remove or expel Senators from the Senate.  The Judicary doesn't have the power to remove an elected Senator or Representative.

[Shryke]

8 hours ago, Lany Freelove Strangeways said:

I know I haven't paid a lot of attention to the Justices themselves (other than their voting on cases), but I can't even imagine him not asking a single question for 10 years.  That is just insane.

It's really not that insane. AFAIK Thomas doesn't ask questions because he believes the whole question process is bullshit and the submitted paper arguments are far more important because it lays out the full argument being made. Basically he thinks, I believe, that asking questions doesn't actually accomplish anything.

I can't say I don't somewhat agree with him.

[Lany Freelove Cassandra]

6 hours ago, NestorMakhnosLovechild said:

Could you perhaps explain why his questions "truly piss [you] off"?

Since, based on the article, they seem pretty straight forward and not particularly inflammatory. 

 I feel it is obvious the reason that Congress passed the law to begin with, to save lives.

And as I said, it is a hot button issue for me.  My sister was murdered by her husband who she was trying to divorce. He was a gun owner. He had multiple domestic violence convictions, and he never gave up his gun. Eventually, he used it to kill her.

[The Fallen]

I think Justice Clarence Thomas has also stated that everyone else asks the questions he would ask so there's no reason for him to do so.

I'm other words, he would be asking questions for the sake of asking questions.

As someone who adheres to the idea of talking only when I have something to say - rather than for the sake of hearing myself talk - I can't say that I disagree with him. 

Having said that, I don't think I would go a decade without asking questions. 

[TerraPrime]

1 hour ago, The Fallen said:

I think Justice Clarence Thomas has also stated that everyone else asks the questions he would ask so there's no reason for him to do so.

Which is a pretty direct and straight-forward admission that he doesn't have a shred of original judicial insight.

[TheKitttenGuard]

Does anyone think Obama will name a SC nominee within the next 2 weeks?

Will he wait to see if Trump is the Republican nominee?

[Mudguard]

46 minutes ago, TheKitttenGuard said:

Does anyone think Obama will name a SC nominee within the next 2 weeks?

Will he wait to see if Trump is the Republican nominee?

Very possibly. There are reports that he's considering Jane Kelly, who is currently a judge on the U.S. Court of Appeals or the 8th Circuit.  She was an Obama appointment that was unanimously confirmed to the Court of Appeals.  She also graduated from Harvard Law in the same class as Obama.  She's definitely has the credentials for the job and appears to be a legitimate candidate.

I don't think he waits to find out whether Trump wins the nomination.  That could take possibly take several months, which would be way too long to wait.

[TheKitttenGuard]

28 minutes ago, Mudguard said:

Very possibly. There are reports that he's considering Jane Kelly, who is currently a judge on the U.S. Court of Appeals or the 8th Circuit.  She was an Obama appointment that was unanimously confirmed to the Court of Appeals.  She also graduated from Harvard Law in the same class as Obama.  She's definitely has the credentials for the job and appears to be a legitimate candidate.

I don't think he waits to find out whether Trump wins the nomination.  That could take possibly take several months, which would be way too long to wait.

I do think Obama will nominate sooner then later to keep in with this should be a normal, constitutional process.  I was just thinking since the Republican is so hell bent on not doing anything, that he will wait to highlight that Republican obstruction will be in the aid of Trump.

[Tempra]

8 hours ago, TerraPrime said:

Which is a pretty direct and straight-forward admission that he doesn't have a shred of original judicial insight.

How many Clarence Thomas opinions have you read?  Which ones?  Do you understand that the phrase "original judicial insight" is pretty much an oxymoron given foundational role of stare decisis in our legal system?

Justice Thomas's silence is by no means unique.  Justices Thurgood Marshall and William Brennan as well as Chief Justice Burger rarely asked questions during oral argument.  Do you believe those Justices lacked any "shred of original judicial insight" as well?

The rhetoric--or code words--portraying Justice Thomas as a slow, incompetent (black) man whose only purpose on the Court was to vote however Master Scalia ordained is quite disturbing. One has to wonder whether those sentiments can simply be chalked up to ideological opposition or if something a bit more sinister is afoot.  (I don't think such rhetoric directed towards Justice Sotomayor would go unchallenged in these threads, though similar arguments could be raised about the quality of her opinions and tendancy to vote in lockstep with Justice Kagan.)

Alas, anyone who views Thomas as a dimwit is either ignorant or worse. While liberal legal analyst Jeffrey Toobin thinks Thomas' silence is "disgraceful," he does not fall into the same trap believing Thomas is stupid:

 

Quote

The conventional view of Thomas takes his lack of participation at oral argument as a kind of metaphor. The silent Justice is said to be an intellectual nonentity, a cipher for his similarly conservative colleague, Antonin Scalia. But those who follow the Court closely find this stereotype wrong in every particular. Thomas has long been a favorite of conservatives, but they admire the Justice for how he gives voice to their cause, not just because he votes their way. “Of the nine Justices presently on the Court, he is the one whose opinions I enjoy reading the most,” Steve Calabresi, a professor at the Northwestern University School of Law and a co-founder of the Federalist Society, said. “They are very scholarly, with lots of historical sources, and his views are the most principled, even among the conservatives. He has staked out some bold positions, and then the Court has set out and moved in his direction.”

Thomas’s intellect and his influence have also been recognized by those who generally disagree with his views. According to Akhil Reed Amar, a professor at Yale Law School, Thomas’s career resembles that of Hugo Black, the former Alabama senator who served from 1937 to 1971 and is today universally regarded as a major figure in the Court’s history. “Both were Southerners who came to the Court young and with very little judicial experience,” Amar said. (Thomas is from Georgia.) “Early in their careers, they were often in dissent, sometimes by themselves, but they were content to go their own way. But once Earl Warren became Chief Justice the Court started to come to Black. It’s the same with Thomas and the Roberts Court. Thomas’s views are now being followed by a majority of the Court in case after case.”

 

 

http://www.newyorker.com/magazine/2011/08/29/partners-jeffrey-toobin

[NestorMakhnosLovechild]

10 hours ago, TerraPrime said:

Which is a pretty direct and straight-forward admission that he doesn't have a shred of original judicial insight.

Honestly, what bothers me about this comment is not that it simply parrots the condescending, vaguely racist liberal pundit-class rhetoric about Thomas, but that, as a person who holds an advanced degree in a field of specialized knowledge, you should just know better. You should know that there are good, solid ways to try to figure out what people think about things in fields of specialized knowledge - like reading what they've written, or reading articles about the subject by people credentialed in their field. If you were really interested in learning a little bit Thomas' judicial philosophy, and how it differs from Scalia and Alito and the liberal wing of the Court - this information is out there and readily available. You can read the books or law review articles that have been written about it, or the different species of originalist constitutional interpretation. Or, you could actually just read Thomas' opinions - perhaps with a special focus on those in which he dissents separately from Scalia or Alito. There are very easy ways in which you could obtain directly, actual knowledge of Thomas' Judicial philosophy. 

It also might help to have some actual knowledge of the legal system and the appeals process, to have some kind of idea of what procedural posture these cases are in by the time they come to the Supreme Court - they have fully developed factual universes and literally thousands of pages of supporting briefs backed up by thousands of citations - not just from the parties, but from Amicus briefs filed by dozens of organizations who have an interest in the outcome. It's widely understood and acknowledged that questioning from the bench during oral argument is little more than an attempt to score points against the Justices that disagree with you, by highlighting what you think is a weakness in their argument. All of this stuff has been hashed out behind the scenes at length and the Court has already conferenced about these cases BEFORE they are argued. 

In the vast majority of cases, oral argument has an incredibly limited utility. As an attorney, what are you really going to be able to say in 30 minutes - which is half of the 60 minutes usually allotted for oral argument - that hasn't already been said better, at length, with pin citations, in the thousands upon thousands of pages of briefs that have been filed in the matter? I can guarantee that you are not better on your feet than you were when you wrote that brief with an army of associates and clerks backing you up, double checking your references, and constantly honing your legal framing to get it as sharp as possible. A thirty minute author interview is no substitute for the book they actually wrote - and that's basically what you get at oral argument.

The idea that a few pointless questions about killer tomatoes or some absurd hypothetical is a better judge of your judicial philosophy than what you actually write is absurd and laughable, and you would never, EVER take that position except as it suits your politics against someone you don't like in a field you don't know or understand. 

 

 

[NestorMakhnosLovechild]

On 3/1/2016 at 11:30 PM, Lany Freelove Strangeways said:

 I feel it is obvious the reason that Congress passed the law to begin with, to save lives.

And as I said, it is a hot button issue for me.  My sister was murdered by her husband who she was trying to divorce. He was a gun owner. He had multiple domestic violence convictions, and he never gave up his gun. Eventually, he used it to kill her.

Lany,

I have hesitated in responding because I am usually quite tactless and I understand that this is a very personal topic for you - which I completely respect. Professionally, I deal with these issues every day as divorce is my field of law. Domestic violence issues are my pet issues, for both personal and professional reasons, and I volunteer my time on a regular basis with a number of different domestic violence organizations, running legal clinics and representing people pro bono in domestic violence cases. 

Like it or not, the right to firearm ownership is a Constitutionally protected individual right in the United States. The right to own a firearm is also subject to significant restrictions, including permanent prohibitions based upon certain legal findings (mental incompetence, etc.). In my state, for example, Courts can confiscate your firearms and revoke your firearms license upon entry of a civil domestic violence order of protection against you. I emphasize that this is a civil judgment because it means the standard of proof is only "preponderance of the evidence" and not "beyond a reasonable doubt" which it would be in a criminal matter.

Which means that people can lose, basically forever, the right to own a firearm based upon one act of what the Court determines to be domestic violence. And since "harassment" is the most common basis upon which these restraining orders are entered, that means a lot of people are losing their right to forever own a firearm based, in some cases, off of things that most people would find pretty absurd. In one case, the Court found that a father had committed harassment because he had given his son an extreme haircut, knowing that his mother, who was the parent of primary residence, would be upset by it. Is that arguably a form of harassment? Sure. Should that have repercussions in his divorce case? Possibly. Does that, in any way, indicate that Dad is an abuser who is likely to shoot his ex-wife to death and who should forever lose his right to have a hunting rifle or handgun for self defense? I am just hard-pressed to see that this is the case. 

Now, there are also hundreds and hundreds of cases every year where there is legitimate violence or fear of violence, in which it makes total sense to remove the perpetrator's right to own firearms - certainly for now and potentially forever. I am certainly not trying to advocate that the system is broken or biased against men or anything like that. But that doesn't mean every outcome is just, or makes sense in every particular. And it doesn't mean that we shouldn't scrutinize exactly what kind of rights are being forfeited and for what reason.

The law in question deals with misdemeanor offenses - pretty much the lowest form of minor criminal offense. And there's a quirk with how the state law deals with mens rea vs. the federal law. And that raises legitimate questions as to how severely a protected constitutional right can or should be curtailed after a finding under this misdemeanor state law criminal statute. And it's perfectly fair for these questions to be asked. And it's perfectly fair for us to think about the ways in which 2nd amendment rights are restricted in more substantial ways than say, first amendment rights. And maybe it's okay for that disparity to be there. But maybe this is a bridge too far. And I think this is an area where reasonable people can and should disagree, and the questions themselves should not be considered offensive.  

[Kalbear]

The election cycle is likely being warped by this overwhelming response to this poll question: a -36 point response to the 'do you think the US is heading in the right track. As  well as a 50 point disapproval rating for congress.