The poor guys hasn't even been buried and it begins.. However It is the sitting POTUS job to fill that Seat .. Just bad timing for the republicans
if they go crazy and try to block it until after the election it might blow up in their face


Note that the record for longest time period to go through this process is 125 days. Obama has 342 remaining in office.


Senate Majority Leader Mitch McConnell said Saturday that the Senate should wait until a new president is elected (WHY) besides the obvious


“The Supreme Court of the United States is too important to our democracy for it to be understaffed for partisan reasons, said Sen. Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee,

The poor guys hasn't even been buried and it begins.. However It is the sitting POTUS job to fill that Seat .. Just bad timing for the republicans
if they go crazy and try to block it until after the election it might blow up in their face


Note that the record for longest time period to go through this process is 125 days. Obama has 342 remaining in office.


Senate Majority Leader Mitch McConnell said Saturday that the Senate should wait until a new president is elected (WHY) besides the obvious


“The Supreme Court of the United States is too important to our democracy for it to be understaffed for partisan reasons, said Sen. Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee,

It's the job of POTUS, maybe his most important job, to occupy that court. Obama has every right to nominate someone.

"Just bad timing for the republicans "

No one gets in without approval of the Senate, which the GOP controls, so the timing could be a LOT worse. I don't know that I believe McConnell would have the onions to block an Obama nominee, but I believe that Cruz would.

How about this...in 2014, the citizens of this country gave the Senate to the GOP. Obama, when it suits him, likes to say, "elections have consequences". I have no quarrel (not that this surprises anyone) with the Republican senators declaring that based on the 2014 midterms, that the public doesn't want the makeup of the court tilted dramatically to the left. The 2014 midterm results make that pretty obvious.

We all know what happened to the Bush appointee Robert Bork. The Senate (when ruled by Democrats) refused to aprove of him, and that effort was lead by Biden. Let's see how Biden likes being on the other end of political gridlock. What's good for the goose...

Obama will probably nominate a transgender Native American female with Bolshevik political leanings, preferably one in a wheelchair, crippled from getting run over by a Koch Brothers oil truck. That way, when the Senate says "pass", Obama can say "see, the Republicans hate all these victim groups represented by this pick, blah, blah, blah."

That aside, I mourn the passing of Scalia, he was a worthy guardian or libetry. He also used to vacation all the time with Ginsburg. Talk about an unlikely pair!!

You think Leahy's statement isn't politically self-serving?

It will be very, very interesting. In the middle of the election, of all things.

Obama will probably nominate a transgender Native American female with Bolshevik political leanings, preferably one in a wheelchair, crippled from getting run over by a Koch Brothers oil truck. That way, when the Senate says "pass", Obama can say "see, the Republicans hate all these victim groups represented by this pick, blah, blah, blah."
.

Saw this elsewhere, the speculation has begun...

"My mole in the White House tells me Obama will nominate 46-year-old Judge Sri Srinivasan, an Indian-American jurist who Obama nominated in 2013 to the U.S. Court of Appeals for the D.C. Circuit -- and the Senate confirmed unanimously. Having confirmed him unanimously just three years ago, it would be difficult (but hardly impossible) for Republicans to oppose him now. (Twelve former Solicitors General, including Republican notables as Paul Clement and Kenneth Starr had endorsed his confirmation. Moreover, the D.C. Circuit has long been a Supreme Court farm team – Scalia himself, along with John Roberts, Clarence Thomas, and Ruth Bader Ginsburg were judges there before ascending to the Supreme Court.)

But is Srinivasan progressive? He had been Obama’s principal Deputy Solicitor General before the nomination, arguing Supreme Court cases in support of affirmative action and against Indiana’s restrictive voter ID law, for example. But this record doesn’t prove much. (Having once worked as an assistant Solicitor General, I know the inhabitants of that office will argue whatever halfway respectable arguments the Justice Department and, indirectly, the President, wants made.)

Before the Obama administration, Srinivasan worked for five years in George W. Bush’s Justice Department. Prior to that, as an attorney in the private firm of O'Melveny & Myers, he defended Exxon Mobil in a lawsuit brought by Indonesians who accused the company’s security forces of torture, murder, and other violations against their people; successfully represented a newspaper that fired its employees for unionizing; and defended Enron’s former CEO, Jeffrey Skilling, later convicted for financial fraud. But in these instances, too, it could be argued he was just representing clients. Another clue: After graduating Stanford Law School in 1995, Srinivasan clerked for two Republican-appointed jurists – Judge J. Harvie Wilkinson III, and Supreme Court Justice Sandra Day O'Connor – both of whom were considered moderate. "

Saw this elsewhere, the speculation has begun...

"My mole in the White House tells me Obama will nominate 46-year-old Judge Sri Srinivasan, an Indian-American jurist who Obama nominated in 2013 to the U.S. Court of Appeals for the D.C. Circuit -- and the Senate confirmed unanimously. Having confirmed him unanimously just three years ago, it would be difficult (but hardly impossible) for Republicans to oppose him now. (Twelve former Solicitors General, including Republican notables as Paul Clement and Kenneth Starr had endorsed his confirmation. Moreover, the D.C. Circuit has long been a Supreme Court farm team – Scalia himself, along with John Roberts, Clarence Thomas, and Ruth Bader Ginsburg were judges there before ascending to the Supreme Court.)

But is Srinivasan progressive? He had been Obama’s principal Deputy Solicitor General before the nomination, arguing Supreme Court cases in support of affirmative action and against Indiana’s restrictive voter ID law, for example. But this record doesn’t prove much. (Having once worked as an assistant Solicitor General, I know the inhabitants of that office will argue whatever halfway respectable arguments the Justice Department and, indirectly, the President, wants made.)

Before the Obama administration, Srinivasan worked for five years in George W. Bush’s Justice Department. Prior to that, as an attorney in the private firm of O'Melveny & Myers, he defended Exxon Mobil in a lawsuit brought by Indonesians who accused the company’s security forces of torture, murder, and other violations against their people; successfully represented a newspaper that fired its employees for unionizing; and defended Enron’s former CEO, Jeffrey Skilling, later convicted for financial fraud. But in these instances, too, it could be argued he was just representing clients. Another clue: After graduating Stanford Law School in 1995, Srinivasan clerked for two Republican-appointed jurists – Judge J. Harvie Wilkinson III, and Supreme Court Justice Sandra Day O'Connor – both of whom were considered moderate. "

I was half-joking, but it wouldn't shock me at all.

I don' think Obama gets any appointee confirmed, who isn't as conservative as Scalia. And I would urge every Republican Senator to do whatever they had to do, to prevent Obama from dragging the court one zillimeter to the left of where it is now.

God, I hate that this happened.

"If the Constitution means whatever the present society wants it to mean, then sometimes it will evolve in the direction of greater freedom, and sometimes it will evolve in the direction of less freedom, as it has often done throughout our history." -Supreme Court Justice Antonin Scalia, who died today at the age of 79.
In the words of Shakespeare, "He should have died hereafter."

This was Scalia's defense of his view that it's not healthy for each generation to decide what the Constitution really means, in light of the view of the times. If we were to do that, then the rights spelled out in the Constitution are not guaranteed, but rather subject to the whim of whoever is in office at the time. I don't want Obama getting to decide what the Bill Of Rights really says, nor do I want Trump doing it. The only way to guarantee those rights, is to implement the Constitution the way it's written. If we want to change it, there is a mechanism to do that.

How does anyone disagree with what Scalia said here?

Just saw on CNN, it was not a joke, that Obama says that Eric Holder is on the short list to replace Scalia. In a related story, Ted Cruz and Marco Rubio died laughing.

How can anyone take Obama seriously, if he could say that out loud?

And it's OK, I guess, when Chuck Schumer suggested that the Dems refuse to confirm any Bush nominee for the last 18 months of his presidency. What's good for the goose...

http://www.breitbart.com/big-government/2016/02/14/sen-schumer-senate-can-block-scotus-nominees-for-18-months/?utm_source=facebook&utm_medium=social

Justice Anthony Kennedy, the court's current swing vote, took office during Ronald Reagan's final year in office.

My friend posted this on facebook and he is Far from left but summed it up nicely


To all of my second amendment friends who always post about our right to bear arms (which I have no problem with). You can't have it both ways. Some of the same people who fervently believe in the second amendment also believe that President Obama shouldn't be able to appoint the next Supreme Court Justice after Scalia's death.
Here's the deal, like him or not, it's his right under the Constitution. Article 2 section 2 absolutely gives him that right. "He 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."
The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session."
I don't want to hear about any bull#^&#^&#^&#^& traditions...Justice Scalia was the justice who always erred on the side of never interpreting the Constitution to fit the trends of the day, I absolutely believe he would agree with Obama's right to appoint the next justice.
Just for the record I'm not happy about it either, but what's right is right.

And it's OK, I guess, when Chuck Schumer suggested that the Dems refuse to confirm any Bush nominee for the last 18 months of his presidency. What's good for the goose...

http://www.breitbart.com/big-government/2016/02/14/sen-schumer-senate-can-block-scotus-nominees-for-18-months/?utm_source=facebook&utm_medium=social


And I disagree with him ..But lets be frank he made that statement 10 years ago I will recommend to my colleagues that we should not confirm a Supreme Court nominee except in extraordinary circumstances. with no power to forward his recommendation or opportunity to bring it to the floor a Hollow threat

then you have this,, Mitch McConnell said the Senate should not confirm a replacement for Supreme Court Justice Antonin Scalia until after the 2016 election the big difference this is not a recommendation
this the Republican's Mission statement and he is in a position of power

Not sure how he can say

“The American people‎ should have a voice in the selection of their next Supreme Court Justice," McConnell said in a statement. "Therefore, this vacancy should not be filled until we have a new President."

Hate to say it Sen Warren is right

McConnell is right that the American people should have a voice in the selection of the next Supreme Court justice,” Warren wrote. “In fact, they did -- when President Obama won the 2012 election by five million votes.”

Very Very interesting

And I disagree with him ..But lets be frank he made that statement 10 years ago I will recommend to my colleagues that we should not confirm a Supreme Court nominee except in extraordinary circumstances. with no power to forward his recommendation or opportunity to bring it to the floor a Hollow threat

then you have this,, Mitch McConnell said the Senate should not confirm a replacement for Supreme Court Justice Antonin Scalia until after the 2016 election the big difference this is not a recommendation
this the Republican's Mission statement and he is in a position of power

Not sure how he can say

“The American people‎ should have a voice in the selection of their next Supreme Court Justice," McConnell said in a statement. "Therefore, this vacancy should not be filled until we have a new President."

Hate to say it Sen Warren is right

McConnell is right that the American people should have a voice in the selection of the next Supreme Court justice,” Warren wrote. “In fact, they did -- when President Obama won the 2012 election by five million votes.”

Very Very interesting

"But lets be frank he made that statement 10 years ago "

He made the statement the last time a Republican president had the potential to nominate a SCOTUS justice, when the Dems controlled the Senate. Obviously, Schumer wouldn't have said that during the Obama presidency, so the fact that it was 10 years ago, is irrelevant.

The President has the right to nominate anyone he wants. The Constitution doesn't allow anyone to prevent him from nominating someone. The Senate has the right to say "no, thanks", as the Dems did with Justice Bork, widely considered to be a brilliant jurist, and rejected for pure politics, and I don't recall any of the Democrats apologizing fot that. Biden led the charge against Bork, and he can't have it both ways. If there was nothing wrong with the Dems blocking Bork, there's similarly notihng wrong with the GOP blocking whatever Bolshevik twit Obama nominates.

"And I disagree with him "

I notice you didn't say why you think Scalia is wrong.

"Sen Warren is right "

Are you feeling OK? Yes, Obama won the 2012 election. And in 2014 (the most recent national election), do you know what happened? Those same people that elected Obama in 2012, gave the Senate majority to the GOP.

You, and Senator Warren, are saying that the 2012 election was an expression of the will of the people, but the 2014 midterms were not?

Brother, I would just LOVE to hear you, or Senator Lie-awatha, explain that one. You have fun with that, OK?

I guess we should just forget every election the Democrats have ever lost?

Every Republican Senator is just as "elected" as Obama is.

I don't see what is different this time than previous ones - both sides have attempted and often been successful in stonewalling or preventing a nomination for a justice.

Situation normal, all depends on whose ox to gore.

I don't see what is different this time than previous ones - both sides have attempted and often been successful in stonewalling or preventing a nomination for a justice.

Situation normal, all depends on whose ox to gore.

The difference is, when Bush was in office, dissent was "the highest form of patriotism". Now that Obama is in there, dissent is the lowest form of racism.

Of course, you are correct.

I don't see what is different this time than previous ones - both sides have attempted and often been successful in stonewalling or preventing a nomination for a justice.

Situation normal, all depends on whose ox to gore.

exactly :uhuh:

To all of my second amendment friends who always post about our right to bear arms (which I have no problem with). You can't have it both ways. Some of the same people who fervently believe in the second amendment also believe that President Obama shouldn't be able to appoint the next Supreme Court Justice after Scalia's death.

And they are right.

Here's the deal, like him or not, it's his right under the Constitution. Article 2 section 2 absolutely gives him that right.

No. the Constitution does not ABSOLUTELY, give the President that right. Read carefully your quote of that portion of Article 2:

"He shall have power . . . 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 . . .

That is, he has the absolute power to nominate Judges, but the power to appoint Judges is absolutely dependent on the advice and consent of the Senate.

I don't want to hear about any bull#^&#^&#^&#^& traditions...Justice Scalia was the justice who always erred on the side of never interpreting the Constitution to fit the trends of the day, I absolutely believe he would agree with Obama's right to appoint the next justice.

No he would not believe that Obama has the absolute right to unilaterally appoint the next Justice. Not only does the text (and he was a textualist) not give Obama that power, but he understood that the constitutional framers would never have given that absolute power to one person to appoint someone to such a fundamentally important position. And that the People's representatives should have a major portion of that power.

Just for the record I'm not happy about it either, but what's right is right.

Exactly, what is right is right.

The difference is, when Bush was in office, dissent was "the highest form of patriotism". Now that Obama is in there, dissent is the lowest form of racism.

Of course, you are correct.

No, it isn't racisim, but it is partisanship at its worst on both sides. For every Schumer quote, there are quotes of McConnell et al., during the Bust administration backing the president's right to nominate justices.

Detbusch as the constitutional expert here, I'll ask you, and I'll admit I am ignorant. Is there any so-called 'nuclear' recess type options for justices like there are for other appointments?

"But lets be frank he made that statement 10 years ago "

He made the statement the last time a Republican president had the potential to nominate a SCOTUS justice, when the Dems controlled the Senate. Obviously, Schumer wouldn't have said that during the Obama presidency, so the fact that it was 10 years ago, is irrelevant.

The President has the right to nominate anyone he wants. The Constitution doesn't allow anyone to prevent him from nominating someone. The Senate has the right to say "no, thanks", as the Dems did with Justice Bork, widely considered to be a brilliant jurist, and rejected for pure politics, and I don't recall any of the Democrats apologizing fot that. Biden led the charge against Bork, and he can't have it both ways. If there was nothing wrong with the Dems blocking Bork, there's similarly notihng wrong with the GOP blocking whatever Bolshevik twit Obama nominates.

"And I disagree with him "

I notice you didn't say why you think Scalia is wrong.

"Sen Warren is right "

Are you feeling OK? Yes, Obama won the 2012 election. And in 2014 (the most recent national election), do you know what happened? Those same people that elected Obama in 2012, gave the Senate majority to the GOP.

You, and Senator Warren, are saying that the 2012 election was an expression of the will of the people, but the 2014 midterms were not?

Brother, I would just LOVE to hear you, or Senator Lie-awatha, explain that one. You have fun with that, OK?

I guess we should just forget every election the Democrats have ever lost?

Every Republican Senator is just as "elected" as Obama is.

Mid terms are mid terms they are the will of state election's not a presidential election and if you think they trump a presidential election.. if just shows how partisan you really are .. they may influence things in Washington But they don't erase who the POTUS or nullify those who voted for him ..

Its just bad timing for the republicans .. and if a Hillary or Bernie gets in and there are vacancies to be Filled OMG Thats going to be fun to watch

Is there any so-called 'nuclear' recess type options for justices like there are for other appointments?

The last paragraph of Article II section 2, which contains the appointments clause, states "The President shall have Power to fill up all Vacancies that may happen during the Recess of the senate, by granting Commissions which shall expire at the End of their next session."

So, yes, Obama can make a recess appointment to the SC. And that has been done before. But the Senate can vacate that appointment after their next session, which has also been done before. So it would only be temporary, unless approved by the Senate. Obama has an opening now to do that since the Senate is in recess. But he says he won't. And if he doesn't do it now, he probably won't be able to do it afterwards since the Senate would stay in session, either in fact or pro forma, to avoid that.

One of the more unusual anomalies on the matter of recess appointments to the Supreme Court, if the Senate vacates them, is that SCOTUS Judges are supposed to be appointed for life. But that only applies if the Senate confirms them. Which is another indicator of the power and necessity of Senate confirmation and of the limited power of the President to appoint.

Mid terms are mid terms they are the will of state election's not a presidential election and if you think they trump a presidential election.. if just shows how partisan you really are .. they may influence things in Washington But they don't erase who the POTUS or nullify those who voted for him ..

They don't trump presidential elections, but neither do presidential elections trump them. Presidents may be elected, among other things, to NOMINATE Supreme Court Judges, but Senators are elected to CONFIRM, and thus ultimately to appoint them. You seem to have a hard time understanding that simple but very important, fundamental, concept.

Would you prefer a king or dictator instead of a constitutionally limited President?

Its just bad timing for the republicans .. and if a Hillary or Bernie gets in and there are vacancies to be Filled OMG Thats going to be fun to watch

Do you enjoy cat fights?

The last paragraph of Article II section 2, which contains the appointments clause, states "The President shall have Power to fill up all Vacancies that may happen during the Recess of the senate, by granting Commissions which shall expire at the End of their next session."

So, yes, Obama can make a recess appointment to the SC. And that has been done before. But the Senate can vacate that appointment after their next session, which has also been done before. So it would only be temporary, unless approved by the Senate. Obama has an opening now to do that since the Senate is in recess. But he says he won't. And if he doesn't do it now, he probably won't be able to do it afterwards since the Senate would stay in session, either in fact or pro forma, to avoid that.

One of the more unusual anomalies on the matter of recess appointments to the Supreme Court, if the Senate vacates them, is that SCOTUS Judges are supposed to be appointed for life. But that only applies if the Senate confirms them. Which is another indicator of the power and necessity of Senate confirmation and of the limited power of the President to appoint.

Thanks for the lesson.
If Obama nomiates a so-called moderate, the Senate will be playing a tough hand; delay delay delay, and hope the GOP candidate wins, of they will have to obstruct nominees for 4 more years

Thanks for the lesson.

I am by no means a constitutional "expert." Just a fellow citizen who believes we would be governed best if we faithfully governed according to it. So I try to, what I consider, appropriately and necessarily understand it. I think that it is nowhere near as difficult to understand as our agenda driven politicians would like us to believe. In my opinion, the difficulty in constitutional interpretation occurs when politicians legislate outside constitutional bounds and Supreme Court Judges try to make the Constitution fit their legislation rather than to decide that it is unconstitutional. And that difficulty is compounded when those Justices are personally sympathetic to what they consider higher ideals, or more "equitable" social outcomes no matter if the legislation is originally and textually unconstitutional. So tangled, convoluted, even rationally ridiculous arguments become necessary to make constitutional text fit their personal preference.

I don't intend to give "lessons." Just want to have rational and honest discussions.

If Obama nomiates a so-called moderate, the Senate will be playing a tough hand; delay delay delay, and hope the GOP candidate wins, of they will have to obstruct nominees for 4 more years

As I have been trying to tell some of the more optimistic "conservatives" on the forum, that what is left of our founding system of government, of whatever it is that they consider "conservatism," is dangling by a thread which is thinner than a hanging chad.

The Progressives have been absolutely persistent in changing our system of government. The "conservatives" just react every now and then, and think that any victory will be permanent. That the price of liberty is eternal vigilance doesn't seem to penetrate the average "conservative" mind.

So, yes, you are right. Not only the Senate, or the Republican Party been reduced to playing a tough hand, but the fundamental nature of how we are governed is as well.

I think that some "liberal" minds might be persuaded to preserve our founding system if their understanding of the difference between unalienable rights and government granted rights was fully informed. I keep hoping for discussions along those lines, but we just seem to stay stuck on if what politicians do "works" within the parameters that those politicians prescribe. Basic, foundational, principles are not regarded. Which why, in my opinion, things seem to "work" for a while, then the illusion stops working and things get worse. We get further in debt. We breed more poverty. We create more conflict and divisiveness. We eviscerate the individual differences that comprise our famous "e pluribus Unum" all in the name and quest of a so called diversity which actually herds us into conformity.

Sorry for the bloviating "lesson." I didn't mean it to be that. Just trying, probably futilely, to stimulate a discussion.

Yes, as you say, the Senate will be playing a tough hand if it remains in Republican hands and the Democrats win the presidency. But much of that is due to not playing as tough as the Democrats the past eight to twenty years. So now they pay the piper. Their fear of main stream press and the supposed moderate center has been at the expense of their supposed faithfulness to the Constitution. So now they are backed into a tiny corner not just of preserving their power, which is not so important to the rest of us, but preventing the appointment of a majority of progressive judges which basically means the final end of the Constitution as written, and the final touch and implementation of reversing the relation of American citizens to their government.

By the way, if the Republicans had the courage to be tough, the number of Supreme Court Justices does not have to be nine. Congress decides the number and can change it. If the Republicans maintain control of Congress, they don't really have to fill a vacancy. Of course, there is that perception thing. And because we are ignorant of reality, we are driven by perception

As I have been trying to tell some of the more optimistic "conservatives" on the forum, that what is left of our founding system of government, of whatever it is that they consider "conservatism," is dangling by a thread which is thinner than a hanging chad.

The Progressives have been absolutely persistent in changing our system of government. The "conservatives" just react every now and then, and think that any victory will be permanent. That the price of liberty is eternal vigilance doesn't seem to penetrate the average "conservative" mind.

So, yes, you are right. Not only the Senate, or the Republican Party been reduced to playing a tough hand, but the fundamental nature of how we are governed is as well.

I think that some "liberal" minds might be persuaded to preserve our founding system if their understanding of the difference between unalienable rights and government granted rights was fully informed. I keep hoping for discussions along those lines, but we just seem to stay stuck on if what politicians do "works" within the parameters that those politicians prescribe. Basic, foundational, principles are not regarded. Which why, in my opinion, things seem to "work" for a while, then the illusion stops working and things get worse. We get further in debt. We breed more poverty. We create more conflict and divisiveness. We eviscerate the individual differences that comprise our famous "e pluribus Unum" all in the name and quest of a so called diversity which actually herds us into conformity.

Sorry for the bloviating "lesson." I didn't mean it to be that. Just trying, probably futilely, to stimulate a discussion.

Yes, as you say, the Senate will be playing a tough hand if it remains in Republican hands and the Democrats win the presidency. But much of that is due to not playing as tough as the Democrats the past eight to twenty years. So now they pay the piper. Their fear of main stream press and the supposed moderate center has been at the expense of their supposed faithfulness to the Constitution. So now they are backed into a tiny corner not just of preserving their power, which is not so important to the rest of us, but preventing the appointment of a majority of progressive judges which basically means the final end of the Constitution as written, and the final touch in reversing the relation of American citizens to their government.

By the way, if the Republicans had the courage to be tough, the number of Supreme Court Justices does not have to be nine. Congress decides the number and can change it. If the Republicans maintain control of Congress, they don't really have to fill a vacancy. Of course, there is that perception thing. And because we are ignorant of reality, we are driven by perception

I'm pretty liberal on a lot of issues, centrist on others. That being said
I'd prefer to see someone like I mentioned above, as shown to be more middle of the road, and not an activist of either party. I think that is where both parties are heading though... Ultimately, you don't know how they will preside until often many years after they are appointed...

Mid terms are mid terms they are the will of state election's not a presidential election and if you think they trump a presidential election.. if just shows how partisan you really are .. they may influence things in Washington But they don't erase who the POTUS or nullify those who voted for him ..

Its just bad timing for the republicans .. and if a Hillary or Bernie gets in and there are vacancies to be Filled OMG Thats going to be fun to watch

"Mid terms are mid terms "

Thanks for the scoop.

"they are the will of state election's not a presidential election"

That is a tortured, nonsensical answer if I have ever heard one. In 2014, the will of many states was to replace Democratic senators with Republican ones, meaning that those people in those states, wanted a Republican senator, not a Democrat one, to decide on confirmations. That's democracy.

WDMSO, were you complaining when the Democrats blocked Bork's nomination? If not, you have zero legitimate beef here

"they may influence things in Washington But they don't erase who the POTUS or nullify those who voted for him "

Who said that midterms negate the Presidential elections 2 years prior? I said Obama gets to pick the nominee. And the Republican-led Senate, via the will of the people, gets to vote on confirmation.

There has never been a President as dismissive and insulting to those who disagree with him, than Weird Harold. He hasn't built up a lot of goodwill among us bitter clingers, us racists, those of us who do nothing but "hate all the time". He reaps what he sows.

"Its just bad timing for the republicans "

True, but during the first 6 years of Obama's presidency, when the Dems controlled the senate, would have been far worse.

"and if a Hillary or Bernie gets in and there are vacancies to be Filled OMG Thats going to be fun to watch"

If the GOP still controls the Senate, it will be entertaining. If the GOP nominates Trump, the GOP could easily lose control of the Senate. Then the next few years would be a jackpot for liberals.

I'm pretty liberal on a lot of issues, centrist on others. That being said
I'd prefer to see someone like I mentioned above, as shown to be more middle of the road, and not an activist of either party. I think that is where both parties are heading though... Ultimately, you don't know how they will preside until often many years after they are appointed...

Is someone like Scalia, who interprets the Constitution literally, necessarily advocating for conservatism? I don't think so. WDMSO wants to elect a POTUS who gets to decide what he thinks the Constitution really means. What that means is, if we elect someone with fascist inclinations as POTUS, he can decide that we don't really have a right to a free press, and do away with it. A guy like Scalia would strike that down as not complying with what the constitution says. Is that strictly a Republican notion? You'll never convince me that it is.

The Constitution isn't a legal opinion, it's a binding, legal document.

Is someone like Scalia, who interprets the Constitution literally, necessarily advocating for conservatism? I don't think so. WDMSO wants to elect a POTUS who gets to decide what he thinks the Constitution really means.

He clearly, to my eye, interpreted the Constitution with a conservative mindset. I think his decisions and particularly his public speeches bear that out. But this is no different than Ginsberg, who interprets the Constitution through a more liberal lens.

He clearly, to my eye, interpreted the Constitution with a conservative mindset. I think his decisions and particularly his public speeches bear that out. But this is no different than Ginsberg, who interprets of the Constitution is done through a more liberal lens.

Can you cite an example of conservative activism on his part? If one says "the Constitution is what it says, and nothing more", how is that right-leaning, unless you concede that it's the liberals who are more likely to try to ignore the constitution to further their agenda - a notion I wholeheartedly agree with. But it's conceivable that a uber conservative could be a fascist, in which case I still want a guy like Scalia to reign that person in.

Scalia has said that his personal views are conservative, but he doesn't advocate that way when deciding cases. I am no expert, but I wonder what true right-wing advocacy you'd find in his legal opinions.

If Obama nominates a moderate, the Senate should consider that person. Trouble is, to Obama, Josef Stalin is a moderate. That's what you get from a guy whose spiritual advisor is Rev Wright. Sonja Sotomayor wrote somewhere that in her opinion, a Latina female, because of her life experience, can reach superior legal opinions than anyone else. That bigoted sentiment would rightly preclude her from serving in jury duty, yet there she is on the highest court in the land, for the next 4 decades. She also had multiple opinions get reversed in higher court (Bork had none).

Can you cite an example of conservative activism on his part? If one says "the Constitution is what it says, and nothing more", how is that right-leaning, unless you concede that it's the liberals who are more likely to try to ignore the constitution to further their agenda - a notion I wholeheartedly agree with. But it's conceivable that a uber conservative could be a fascist, in which case I still want a guy like Scalia to reign that person in.

Scalia has said that his personal views are conservative, but he doesn't advocate that way when deciding cases. I am no expert, but I wonder what true right-wing advocacy you'd find in his legal opinions.

If Obama nominates a moderate, the Senate should consider that person. Trouble is, to Obama, Josef Stalin is a moderate. That's what you get from a guy whose spiritual advisor is Rev Wright. Sonja Sotomayor wrote somewhere that in her opinion, a Latina female, because of her life experience, can reach superior legal opinions than anyone else. That bigoted sentiment would rightly preclude her from serving in jury duty, yet there she is on the highest court in the land, for the next 4 decades. She also had multiple opinions get reversed in higher court (Bork had none).

No, I'm not a legal scholar, and don't claim to be one. I think from what I recall, as I'm not getting into a long pissing match today and looking this up, were his Heller opinion was a more conservative interpretation of the Constitution, and I feel the same about his recent comments on affirmative action. I also recall some pretty Conservative (respectfully, I am sure rooted in his faith) opinions regarding DOMA. You can think he had legal opinions not based in a conservative interpretation of the Constitution, but you are a conservative, so I'm not sure how objective you are being on it, just like I as a liberal sees him as conservative.

If rumors were true, and the Indian-American who I mentioned above were nominated, he seems at first glance to be a 'moderate'

I think it will be interesting, and ugly moving forward. Obama will nominate someone, and the Senate should to do their job, even if that means not appointing anyone, and we'll see how it plays out.

WDMSO, were you complaining when the Democrats blocked Bork's nomination? If not, you have zero legitimate beef here


yes they blocked bork and the other guy withdrew and yet someone was appointed to the seat during Regan's last year in office thru negotiations

The Dems never told Regan you Must wait until the election is over or Dont even try it ?? your a lame duck ... and he hasn't even given a Name Thats the difference you choose to disregard

Is someone like Scalia, who interprets the Constitution literally, necessarily advocating for conservatism? I don't think so. WDMSO wants to elect a POTUS who gets to decide what he thinks the Constitution really means. What that means is, if we elect someone with fascist inclinations as POTUS, he can decide that we don't really have a right to a free press, and do away with it. A guy like Scalia would strike that down as not complying with what the constitution says. Is that strictly a Republican notion? You'll never convince me that it is.

The Constitution isn't a legal opinion, it's a binding, legal document.
let be honest your only upset because of the possibility that the court could swing the other way . and the possibility of other justices not seeing the world as you do its terrifying and all those things are fine until people like you and other politicians have no problem openly trying usurp the process to maintain status Quo ..

Looks like Subversion to me
Subversion refers to an attempt to transform the established social order and its structures of power, authority, and hierarchy

No, I'm not a legal scholar, and don't claim to be one. I think from what I recall, as I'm not getting into a long pissing match today and looking this up, were his Heller opinion was a more conservative interpretation of the Constitution, and I feel the same about his recent comments on affirmative action. I also recall some pretty Conservative (respectfully, I am sure rooted in his faith) opinions regarding DOMA. You can think he had legal opinions not based in a conservative interpretation of the Constitution, but you are a conservative, so I'm not sure how objective you are being on it, just like I as a liberal sees him as conservative.

If rumors were true, and the Indian-American who I mentioned above were nominated, he seems at first glance to be a 'moderate'

I think it will be interesting, and ugly moving forward. Obama will nominate someone, and the Senate should to do their job, even if that means not appointing anyone, and we'll see how it plays out.

As always, your points are thoughtful and respectful. You know how to disagree with someone in a way that no one could be offended by, I could learn that from you...

On affirmative action, the constitution says that racial discrimination is illegal, right? It doesn't say "unless the person being victimized, is white".

WDMSO, were you complaining when the Democrats blocked Bork's nomination? If not, you have zero legitimate beef here


yes they blocked bork and the other guy withdrew and yet someone was appointed to the seat during Regan's last year in office thru negotiations

The Dems never told Regan you Must wait until the election is over or Dont even try it ?? your a lame duck ... and he hasn't even given a Name Thats the difference you choose to disregard

"The Dems never told Regan you Must wait until the election is over "

Schumer tried selling exactly that. It didn't come up.

I don't hide the fact that I am horrified at the potential shifting of the balance. I wouldn't say I'm all that "worried" about it, because Obama can't do it without Senate approval, and as the Senate stands now, they won't approve. So it's not a real concern.

Unlike most here, I proudly admit my bias.

What I can't stand, is the hypocrisy. When Democrats obstruct and filibuster, they are heroes (see Wendy Davis in Texas).

John R is, unlike me, not a diehard partisan. He said that what the GOP I saying they will do, is no different than what the Dems have done repeatedly. My favorite was when Ted Kennedy was grilling Clarence Thomas about the way Thomas treated women. Because Ted Kennedy has a lot of moral authority in that area, right?

Please show me in history when a sitting POTUS was threatened to be Denied the opportunity to appoint a Supreme Court Judge for consideration when a Vacancy opened .. Technically this hasn't happen yet but the Republicans have hinted as much


Historical precedence :Reagan appointed three Justices to the Supreme Court of the United States ..

But OMG Obama might appoint One



2. Convention or custom arising from long practice: The president followed historical precedent in forming the Cabinet

Please show me in history when a sitting POTUS was threatened to be Denied the opportunity to appoint a Supreme Court Judge for consideration when a Vacancy opened .. Technically this hasn't happen yet but the Republicans have hinted as much


The only times in history when a President has APPOINTED (temporarily) a Supreme Court Justice were those times when the Senate was in recess. And for those Judges to be able to retain their appointments, the Senate had to approve them when it came back in session.

You keep repeating the same mistake because you don't seem to grasp the simple notion that the President NOMINATES a potential Judge who must then be APPOINTED by the advice and consent of the Senate. Appointment is a process in which the Senate has at least as much, if not more, say as the President. The President cannot unilaterally APPOINT, except temporarily in extreme circumstance, a Supreme Court Justice. The Founders would NEVER have given one person the power to summarily and permanently APPOINT someone to such a high and fundamental position as a Supreme Court Judge. That would be outside their fundamental concept of separation of powers with its checks and balances. It would create a tyrannical power of one branch of the Federal Government over the others. It would strip The People of any say over those who would judge them. It would be a despotism which totally destroyed the Constitution they wrote.

Please show me in history when a sitting POTUS was threatened to be Denied the opportunity to appoint a Supreme Court Judge for consideration when a Vacancy opened .. Technically this hasn't happen yet but the Republicans have hinted as much


Historical precedence :Reagan appointed three Justices to the Supreme Court of the United States ..

But OMG Obama might appoint One



2. Convention or custom arising from long practice: The president followed historical precedent in forming the Cabinet
He has 2 justices appointed to the Supreme Court.

https://en.m.wikipedia.org/wiki/List_of_federal_judges_appointed_by_Barack_Obama
Posted from my iPhone/Mobile device

I'm pretty liberal on a lot of issues, centrist on others.

I'm very "liberal" on most issues, but in a classical sense. And I'm extremely "centrist" on those issues. But my "center" is the one the Founders created, not a fictional one created by political interest groups.

That being said
I'd prefer to see someone like I mentioned above, as shown to be more middle of the road, and not an activist of either party. I think that is where both parties are heading

You really do have more affinity, in perspective, with the Founder's view than what is referred to nowadays as the "liberal" or Progressive view. Except the Founder's had a different concept of what was the "middle of the road."

They were very concerned with the danger of "factions" nibbling away at unalienable freedoms and individual liberty. But they, especially Madison, thought that in a large republic the great variety of factions would check each other. Unfortunately, in that we have developed a two party system, various factions coalesce in one or the other party in order to have influence. So we, in actuality, have only two huge factions composed of conglomerated interests. And the two factions, rather than balancing and neutralizing each other, strive to dominate. And by virtue of majority vote, they succeed.

Which is why the Founders chose a republican form of government rather than a pure democracy. A pure democracy is eminently susceptible to the tyranny of the majority. It is, in fact, absolutely a tyranny of the majority.

There is no middle of the road between two diametrically opposed factions. But even further, the burden of factions by which each party is composed cannot really, or barely, find a middle of the road within the party, much less than with the other party. And that, as you say, is where both parties are headed, if they have not actually arrived. So they strive, each, to have their own separate versions of the "middle." And to legitimize their power to do so, they prefer to cast us as a democracy rather than a constitutional republic. And thereby they can justify their majority tyrannies.

So by election rather than constitutional process, they achieve forced "compromises "along the way. Thus by victory or defeat, factional rule is imposed. And the "way" constantly departs from the middle road on which we were founded and veers into factional despotism.

The "middle of the road" for the Founders was the Constitution. A just and equitable government would stay within the bounds of that road in order to preserve individual freedom. Straying to the "right" of it could lead to anarchy, and to the "left" of it to the tyranny they revolted against.

The departure from the original road now gives us little option to vote for those who would govern by the original middle. We are confronted as options those who insist on taking over the road and imposing their will on the people . . . and doing so by inventing and shaping the "issues" and solutions so that the will of the people is also shaped according to the rhetoric of factions rather than by desires of sovereign individuals.

though... Ultimately, you don't know how they will preside until often many years after they are appointed...

And that is the crossroad to which we have ultimately arrived. Rather than adhering to their oath of office to protect and defend the Constitution, to be faithful to it in their jurisprudence, they are, as you say activists fueled by factional partisan appointments and desires.

And, in order to fundamentally reshape our system of government, it is necessary to demonize as extremists those who seek to faithfully govern in accordance to the Constitution. They must be marginalized, made to look like fools. i.e., Ted Cruz.

We have, in the coming election, a chance to begin to liberate ourselves from factional dominance, or to further enchain ourselves to it. And for most, that won't be easy not only because a progressive precedence has conditioned us to it, but as well because, for many, the chains are covered with velvet and secure for them an "equal," comfortable, though confined, little place. And that's as "liberal" as remaining in the womb. And as "centrist" as a fetus between those walls.

As an aside re the topic of this thread, Scalia, though an avowed social "conservative," he even more so followed the original middle of the road and adhered to its original text and meaning. He, above all, valued the liberty it guaranteed which allowed him his "conservatism" and others their "liberalism." But only if we didn't stray from the constitutional "middle." If not, all bets are off. You may temporarily win a factional government lottery, or you may lose.

And the factional drift is obviously toward the "left" rather than to the "right" since it is evident that government is gaining power, not losing it. Drift toward tyranny rather than anarchy. The true middle is being erased.

OK, so I bloviated again. But if you stick with it and read between the lines, you can get the picture.

The only times in history when a President has APPOINTED (temporarily) a Supreme Court Justice were those times when the Senate was in recess. And for those Judges to be able to retain their appointments, the Senate had to approve them when it came back in session.

You keep repeating the same mistake because you don't seem to grasp the simple notion that the President NOMINATES a potential Judge who must then be APPOINTED by the advice and consent of the Senate. Appointment is a process in which the Senate has at least as much, if not more, say as the President. The President cannot unilaterally APPOINT, except temporarily in extreme circumstance, a Supreme Court Justice. The Founders would NEVER have given one person the power to summarily and permanently APPOINT someone to such a high and fundamental position as a Supreme Court Judge. That would be outside their fundamental concept of separation of powers with its checks and balances. It would create a tyrannical power of one branch of the Federal Government over the others. It would strip The People of any say over those who would judge them. It would be a despotism which totally destroyed the Constitution they wrote.

I incorrectly used appointment rather than Nomination as you said... but it dosn't change my question > but thanks for the Civics lesson.. I in no way shape or form have I suggested what you have written I never mentioned recess appointments.. I incorrectly used a term.. you caught that but couldn't figure the context of my question?

. I have only expressed where in History? Has a Sitting president be told don't even forward a nomination ( not appointment ) for advice and consent...

you dont think this is the kinda of behavior that creates that tyrannical power of one branch which you wrote ^^^^

Senate Majority Leader Mitch McConnell said the Senate should not confirm a replacement for Supreme Court Justice Antonin Scalia until after the 2016 election

yet historically: from the NY times The Senate has never taken more than 125 days to vote on a successor from the time of nomination; on average, a nominee has been confirmed, rejected or withdrawn within 25 days. When Justice Antonin Scalia died, 342 days remained in President Obama’s term.

And that is the crossroad to which we have ultimately arrived. Rather than adhering to their oath of office to protect and defend the Constitution, to be faithful to it in their jurisprudence, they are, as you say activists fueled by factional partisan appointments and desires.

And, in order to fundamentally reshape our system of government, it is necessary to demonize as extremists those who seek to faithfully govern in accordance to the Constitution. They must be marginalized, made to look like fools. i.e., Ted Cruz.

We have, in the coming election, a chance to begin to liberate ourselves from factional dominance, or to further enchain ourselves to it. And for most, that won't be easy not only because a progressive precedence has conditioned us to it, but as well because, for many, the chains are covered with velvet and secure for them an "equal," comfortable, though confined, little place. And that's as "liberal" as remaining in the womb. And as "centrist" as a fetus between those walls.

As an aside re the topic of this thread, Scalia, though an avowed social "conservative," he even more so followed the original middle of the road and adhered to its original text and meaning. He, above all, valued the liberty it guaranteed which allowed him his "conservatism" and others their "liberalism." But only if we didn't stray from the constitutional "middle." If not, all bets are off. You may temporarily win a factional government lottery, or you may lose.

And the factional drift is obviously toward the "left" rather than to the "right" since it is evident that government is gaining power, not losing it. Drift toward tyranny rather than anarchy. The true middle is being erased.

OK, so I bloviated again. But if you stick with it and read between the lines, you can get the picture.

Man what an apocalyptic view

You have passion and conviction I see it in your writing.. may I take the Liberty and say you would fall in the originalist Camp And I would fall in the Non Originalist Camp and we agree to disagree on how we see a replacement would effect the court

Eight Reasons to be an Originalist
1. Originalism reduces the likelihood that unelected judges will seize the reigns of power from elected representatives.
2. Originalism in the long run better preserves the authority of the Court.
3. Non-originalism allows too much room for judges to impose their own subjective and elitist values. Judges need neutral, objective criteria to make legitimate decisions. The understanding of the framers and ratifiers of a constitutional clause provide those neutral criteria.
4. Lochner vs. New York (widely considered to be a bad non-originalist decision).
5. Leaving it to the people to amend their Constitution when need be promotes serious public debate about government and its limitations.
6. Originalism better respects the notion of the Constitution as a binding contract.
7. If a constitutional amendment passed today, we would expect a court five years from now to ask what we intended to adopt. [Can the same be said for a court 100 or 200 years from now?]
8. Originalism more often forces legislatures to reconsider and possibly repeal or amend their own bad laws, rather than to leave it to the courts to get rid of them.


Eight Reasons to be a Non-Originalist
1. The framers at the Convention in Philadelphia indicated that they did not want their specific intentions to control interpretation.
2. No written Constitution can anticipate all the means that government might in the future use to oppress people, so it is sometimes necessary for judges to fill in the gaps.
3. Intentions of framers are various, sometimes transient, and often impossible to determine. Text is often ambiguous and judicial precedents can be found to support either side. In such cases, why not produce the result that will best promote the public good? It's better than flipping a coin.
4. Non-originalism allows judges to head off the crises that could result from the inflexible interpretation of a provision in the Constitution that no longer serves its original purpose. (The amendment process is too difficult and cannot be relied upon to save us.)
5. Non-originalism allows the Constitution to evolve to match more enlightened understandings on matters such as the equal treatment of blacks, women, and other minorities.
6. Brown vs Board of Education (on originalist grounds, it was decided incorrectly).
7. Originalists lose sight of the forest because they pay too much attention to trees. The larger purpose--the animating spirit--of the Constitution was the protection of liberty, and we ought to focus on that.
8. Nazi Germany: Originalist German judges did not exercise the power they might have to prevent or slow down inhumane programs.

source http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.html

I incorrectly used appointment rather than Nomination as you said... but it dosn't change my question > but thanks for the Civics lesson.. I in no way shape or form have I suggested what you have written I never mentioned recess appointments.. I incorrectly used a term.. you caught that but couldn't figure the context of my question?

The different term changes the context.

. I have only expressed where in History? Has a Sitting president be told don't even forward a nomination ( not appointment ) for advice and consent...

you dont think this is the kinda of behavior that creates that tyrannical power of one branch which you wrote ^^^^

I don't know if, when, or where in history a President was told not to submit a nomination. But that would not prevent a President from submitting one. The leader of the Senate forecasting that it would attempt to block Presidential action has happened many, many, times by both parties. I forget which speaker of which branch said that a President's or his party's proposals would be "dead on arrival" for the rest of his term. It is a common and expected practice to block the opposition's legislation or nomination. Opposition is not tyranny. The suppressing or elimination of opposition is tyranny. Constitutional opposition is the intended check and balance used to prevent that tyranny.

Senate Majority Leader Mitch McConnell said the Senate should not confirm a replacement for Supreme Court Justice Antonin Scalia until after the 2016 election

yet historically: from the NY times The Senate has never taken more than 125 days to vote on a successor from the time of nomination; on average, a nominee has been confirmed, rejected or withdrawn within 25 days. When Justice Antonin Scalia died, 342 days remained in President Obama’s term.

It is not written in stone or in the Constitution that more than or less than a given number of days are required to confirm a nomination. It is certainly not required in the Constitution that a President's nomination must be confirmed. The number of SCOTUS Justices is not specified in the Constitution, and is decided by Congress. The Constitution does not require nine Supreme Court Judges. The NY Times may get their panties all up in a bunch if it takes more than 125 days to vote on a successor, but it is not the arbiter of who or when or if a successor is voted on or if their even will be a successor. The NY Times is not the authority on the matter. It certainly is not impartial. And its opinions should be viewed in the light of its partisan and ideological predilections.

And, as has been said, the Constitution is not a suicide pact. When a political party's agenda scarcely hides that it is about rewriting the Constitution by appointing activist Judges who have no intention of letting the Constitution stand in their way of approving unconstitutional legislation which agrees with their ideological views, then the opposition must defend the Constitution with whatever powers it grants them to do so.

If you wish to preserve the Constitution, we are at a critical point in history when all stops must be pulled to avoid its wreck.

On the other hand, if you think the Constitution is "living and breathing,"a slave which follows to current fashions, then it is of no account and should be, as Progressives believe, tossed into the dust bin of history. (Strange that you would even insist, as a believer of a living breathing constitution, that there must be an unchanging, static amount of days for a nomination to be voted on).

And, even if that were the case that the Constitution was defunct, how would that stop the Republicans from taking more than 125 days to vote on a nomination? Just because the NY Times says they shouldn't?

Eight Reasons to be a Non-Originalist
1. The framers at the Convention in Philadelphia indicated that they did not want their specific intentions to control interpretation.
2. No written Constitution can anticipate all the means that government might in the future use to oppress people, so it is sometimes necessary for judges to fill in the gaps.
3. Intentions of framers are various, sometimes transient, and often impossible to determine. Text is often ambiguous and judicial precedents can be found to support either side. In such cases, why not produce the result that will best promote the public good? It's better than flipping a coin.
4. Non-originalism allows judges to head off the crises that could result from the inflexible interpretation of a provision in the Constitution that no longer serves its original purpose. (The amendment process is too difficult and cannot be relied upon to save us.)
5. Non-originalism allows the Constitution to evolve to match more enlightened understandings on matters such as the equal treatment of blacks, women, and other minorities.
6. Brown vs Board of Education (on originalist grounds, it was decided incorrectly).
7. Originalists lose sight of the forest because they pay too much attention to trees. The larger purpose--the animating spirit--of the Constitution was the protection of liberty, and we ought to focus on that.
8. Nazi Germany: Originalist German judges did not exercise the power they might have to prevent or slow down inhumane programs.

source http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.html

this is hilarious "Non-sense" ;)

Man what an apocalyptic view ?????

You have passion and conviction I see it in your writing.. may I take the Liberty and say you would fall in the originalist Camp And I would fall in the Non Originalist Camp and we agree to disagree on how we see a replacement would effect the court


Eight Reasons to be a Non-Originalist
1. The framers at the Convention in Philadelphia indicated that they did not want their specific intentions to control interpretation.

An originalist such as Scalia would agree with that. Which is why, as an originalist, he was a textualist, and did not seek to infuse intentions into his judgments.

2. No written Constitution can anticipate all the means that government might in the future use to oppress people, so it is sometimes necessary for judges to fill in the gaps.

Judges filling in gaps on their own cognizance can, and most assuredly will, be a means to oppress people. That's why the Framers didn't try to anticipate everything in the future and made an amendment process part of the Constitution, thus giving the people the power to provide for change without it being shoved down their throats by agenda driven Judges.

3. Intentions of framers are various, sometimes transient, and often impossible to determine. Text is often ambiguous and judicial precedents can be found to support either side. In such cases, why not produce the result that will best promote the public good? It's better than flipping a coin.

Intentions were clearly argued and stated during the constitutional conventions. What counted was the agreed upon intentions. And the majority's agreed upon Constitution to fulfill those intentions.

It is a ploy to say that text is ambiguous. What makes clear text appear ambiguous is a judge's desire to make the Constitution fit bad legislation. Which requires the insertion of meanings which do not reside in the text. What is called "interpretation" in that manner is actually revision and rewriting.

And that is an oppressive means of "producing" a result which promotes the Judge's preferred notion of the public good rather than allowing the public to decide for itself what is its good.

4. Non-originalism allows judges to head off the crises that could result from the inflexible interpretation of a provision in the Constitution that no longer serves its original purpose. (The amendment process is too difficult and cannot be relied upon to save us.)

The people, through their representatives, are the ones to head off crises. Judges are, by definition, interpreters of law not crisis managers. And the people, through their representatives, make the law, not the Judges. The Judges are studied in existing law. They apply that law. They are no more competent to create law than are the people's representatives. They are even less so because there are only nine of them. The body politic is vastly larger and profoundly more informed as to what is proper to its needs and what are its crises. And leaving it up to nine fallible humans who are not even "expert" in policy and crisis management to "save us" is a recipe for disaster or for the well worn method of oppression by not letting a crisis go to waste.

I'll use your tactic here--where is it in history that Supreme Court Judges have saved us from disaster by going outside of the Constitution?

5. Non-originalism allows the Constitution to evolve to match more enlightened understandings on matters such as the equal treatment of blacks, women, and other minorities.

The Constitution is not in conflict with "enlightened understandings." It allows their evolution and protects them. It also protects the people against unenlightened understandings. Without that protection, despots can impose their versions of enlightened understanding.

6. Brown vs Board of Education (on originalist grounds, it was decided incorrectly). ??
7. Originalists lose sight of the forest because they pay too much attention to trees. ??? The larger purpose--the animating spirit--of the Constitution was the protection of liberty, and we ought to focus on that. Textualist originalists, such as Scalia, do focus on that. The constitutional text (the forest?) is constructed to protect liberty. Progressive anti-constitutionalists (living and breathing Constitution types) are focused on the forest of "social justice" for groups more than on protection of individual liberty. The Progressive notion of liberty is that which government prescribes as liberty.

8. Nazi Germany: Originalist German judges did not exercise the power they might have to prevent or slow down inhumane programs.

What the hell does that have to do with the U.S. Constitution

And, BTW, I am more in the textualist/originalist camp.

Please show me in history when a sitting POTUS was threatened to be Denied the opportunity to appoint a Supreme Court Judge for consideration when a Vacancy opened .. Technically this hasn't happen yet but the Republicans have hinted as much


Historical precedence :Reagan appointed three Justices to the Supreme Court of the United States ..

But OMG Obama might appoint One



2. Convention or custom arising from long practice: The president followed historical precedent in forming the Cabinet

"Please show me in history when a sitting POTUS was threatened to be Denied the opportunity to appoint a Supreme Court Judge for consideration "

Never, I believe, including now. Has a Republican senator said he would "take away" Obama's ability to nominate someone? Not sure the Constitution allows that. Obama is free to nominate anyone he wants, the Senate is then free to reject them, just like the Dems did when they controlled the Senate under Bush, correct, or no? What McConnell sais, is the same thing Schumer said when there was 18 months left in Bush's presidency. Were you equally appalled by that?

This is politics at its ugliest, and most hypocritical. Both sides are critical of each other, knowing full well that if the situation were reversed, they'd be doing the same thing.

Let me say this...you were very dismissive of the 2014 midterms, and the effect they should have. Seems like you only think that "elections have consequences" when your side wins? Our republic was deliberately set up so that the legislative branch was the most powerful. In the most recent federal elections, the American people voted resoundingly to give control of the Senate to the GOP. No sane person can say they are surprised when the Senators do the job they were elected to do. I doubt any of the newly-elected GOP Senators ran on the pledge to tilt the balance of the SCCOTUS to the left.


"Reagan appointed three Justices to the Supreme Court of the United States ..

But OMG Obama might appoint One "

Reagan didn't give the Senate all the reason they needed, to hate him. This is the most insulting, dismissive President of my lifetime, in terms of how he treats those who disagree with him. Now he expects them to play ball on something of this magnitude? You reap what you sow.

I
Senate Majority Leader Mitch McConnell said the Senate should not confirm a replacement for Supreme Court Justice Antonin Scalia until after the 2016 election

.

And Schumer said the same thing when there was 18 months left in Bush's second term. The same exact thing. What was your reaction to that, may I ask? As an unaffiliated independent, I presume you were equally critical of Schumer?

The left's disdain for this tactic, sure seems to be awfully selective, does it not?

WDMSO -

One reason to be an originalist...our founding fathers believed the freedoms spelled out in our founding documents, were self-evident, and given to us by God, and NOT something for the current leader to decide whether or not we really had the right to expect. If we let the current folks in DC decide what the Constitution means, then sometimes they will decide it means we have less liberty than it clearly states. The only way to guarantee those freedoms, is to make them absolute.

Why would anyone be comfortable letting people in DC decide what the Bill Of Rights really means?

As Scalia said, the Constitution isn't a legal opinion, it is a legally binding document. It's not carved in stone either, if we want to change it, there is a mechanism to do that.

http://www.outsidethebeltway.com/supreme-court-appointments-and-lame-duck-presidents-yes-both-sides-do-it/
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How does supreme court justice Deval l Patrick sound ? How would that be for a WTF moment in history. You really don't expect Obama to get this right do you ?
Posted from my iPhone/Mobile device

In 2006 I believe, then-Senator Obama joined a small group of Democrats who fillibustered the nomination of Alito. There was no uproar (other than from conservatives) that the Dems were undermining the process. The Democrats rewarded Obama by making him their nominee. So if it was a noble effort for Obama to do what he did then, I'd just love to hear why suddenly it's dirty politics for the GOP to do what it's doing now.


Lots of posturing and glaring hypocrisy on both sides. It's not a 1-way street.

What the hell does that have to do with the U.S. Constitution

And, BTW, I am more in the textualist/originalist camp.


Seems you know exactly what that has to do with the Constitution

Seeing you have Identified what camp you fall in on How its interpreted

But I understand your is the only correct way to interpret the Constitution:btu:

WDMSO -

One reason to be an originalist...our founding fathers believed the freedoms spelled out in our founding documents, were self-evident, and given to us by God, and NOT something for the current leader to decide whether or not we really had the right to expect. If we let the current folks in DC decide what the Constitution means, then sometimes they will decide it means we have less liberty than it clearly states. The only way to guarantee those freedoms, is to make them absolute.

Why would anyone be comfortable letting people in DC decide what the Bill Of Rights really means?

As Scalia said, the Constitution isn't a legal opinion, it is a legally binding document. It's not carved in stone either, if we want to change it, there is a mechanism to do that.


The Country's not a 1 way street your standard bearer Has died Who know's whos name he'll forward in any case the country will march on

In 2006 I believe, then-Senator Obama joined a small group of Democrats who fillibustered the nomination of Alito. There was no uproar (other than from conservatives) that the Dems were undermining the process. The Democrats rewarded Obama by making him their nominee. So if it was a noble effort for Obama to do what he did then, I'd just love to hear why suddenly it's dirty politics for the GOP to do what it's doing now.


Lots of posturing and glaring hypocrisy on both sides. It's not a 1-way street.

The difference is that Alito came up for a vote and I think he was actually confirmed. Within min. of his death (before the family even announced it) Cruz was saying that Pres. Obama shouldn't nominate anyone and let the next Pres. do that. Should have kept his mouth shut (along with McConnell). Let Pres. Obama nominate someone and then vote him down until there is no more time left in his term. Apples and Oranges.

RIP Alito.

The difference is that Alito came up for a vote and I think he was actually confirmed. Within min. of his death (before the family even announced it) Cruz was saying that Pres. Obama shouldn't nominate anyone and let the next Pres. do that. Should have kept his mouth shut (along with McConnell). Let Pres. Obama nominate someone and then vote him down until there is no more time left in his term. Apples and Oranges.

RIP Alito.

Alito was confirmed. As were Obama's 2 nominees. Sometimes there is cooperation, sometimes there is not (see Robert Bork). Bush had a nominee get rejected by his own party, can't remember her name, but the GOP wouldn't even give her a hearing.

I don't think I would have advised anyone to start talking tough 5 minutes after his death was announced, either. Poor taste.

The GOP controls the Senate. And Obama is a guy who seems to think he can ignore the parts of the Constitution he doesn't happen to like (religious liberty, for example). If Obama wants to replace Gindburg with another radical leftie activist, fine, that doesn't shift the court. If Obama wants to replace Scalia with Rachael Maddow, then I want the Senate to stop him.

I see no huge difference between refusing to hold ahearing, and having a hearing but unanimously rejecting someone. Same outcome. If having the hearings soothes otherwise ruffled feathers, the GOP should do that. In the end, every TV station except one i sgoing to portray them as hatemongering, racist obstructionists, no matter what they do. So they have little to lose, by acting like Republicans, for a change.

Obama isn't getting anyone in, unles she nominates the next Scalia, which he would never do. But the media will spin it they were they always do, and it will give a lift to the Dems in November, both in terms of winning the Presidency and in terms of re-taking the Senate.
It is a freebie to the Dems at a fortunate time. You were 100% correct, lousy timing for the GOP.

What Scaia wrote in opposition to the gay marriage decision...I am in favor of gay marriage. That being said, I cannot fathom how anyone can disagree with Scalia's sentiment. 9 judges appointed for life, are not elected, and therefore are not answerable to us. Therefore, for them to legislate from the bench, could not be more contrary to our founding views on liberty and self-determination.

“The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.
"Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

As I like to say...try making that wrong

It might be the same outcome but it is also about optics. It looks worse. Let him nominate whoever he pleases, but don't vote him in. Looks better and will not be used against you to the same degree telling him not to nominate someone will.

I see at a min. 2 things happening:

Pres. Obama nominates an African American or a very liberal person. When the right votes him down, the left uses it to fire up their base (maybe even more so if the person is an AA).

He nominates someone considered somewhat moderate who the right has approved overwhelmingly (like the Indian guy??). If the right votes him down, the left uses that to say the right is just out to obstruct.

Could the right vote for a moderate (knowing Alito isn't being replaced w/another Alito) if a Dem. was winning in the polls and had stated they would vote for someone more liberal than whoever is on the table - maybe that would be the best outcome for them?

Seems you know exactly what that has to do with the Constitution

What do German originalist judges' decisions based on German law or constitution have to do with American originalist interpretation of the U.S. Constitution? Apples and oranges? And what's to say that the German judges actually didn't exercise their power in the way they wanted to, that they did adjudicate according to personal beliefs? Assuming that judges know best what the law should say or be is placing unwarranted power in their hands. The problem with letting judges exercise discretion outside of the law's text is precisely that their personal preferences can lead to bad consequences rather than good ones.

The Posner essay "On Originalism and Pragmatism" which is given as an argument for nonoriginalsim in the link you posted is big on the presumed consequences of judicial decisions and especially the harmful consequences of slavishly following originalist theory of interpretation. But why are we to assume that a particular judge's presumption on what the consequences would be are correct?

The nonoriginalist view that judges should have the leeway to decide based on their opinion of what consequence may follow, argues against itself. It requires us to accept that a judges personal opinion on consequence is correct. It could just as well, and often is, wrong.

Every paragraph in Posner's essay, in my opinion is full of such contradictions and would take a point by point analysis to explain. Overall, it seems to me to place too much trust in fallible beings to give them the power to legislate which should belong to those who make law, not to those adjudicate it.

He does make an interesting point regarding the dust up over Scalia's replacement. He says "In a representative democracy, the fact that many (it need not be most) people do not like the probable consequences of a judge’s judicial philosophy provides permissible, and in any event inevitable, grounds for the people’s representatives to refuse to consent to his appointment, even if popular antipathy to the judge is not grounded in a well-thought-out theory of adjudication."

Seeing you have
Identified what camp you fall in on How its interpreted

But I understand your is the only correct way to interpret the Constitution:btu:

It is not MY way. I don't own it. I am not a judge. But I don't want a judge to make laws. I like the separation of powers. Having the one who adjudicate the law also be the one who makes the law is a centralization of power. Even more so if the maker and judge of law is appointed by, and an ideological puppet to, a single person, the President. In "originalist" terms, that would be the definition of tyranny--the centralization of legislative, executive, and judicial power.

It might be the same outcome but it is also about optics. It looks worse. Let him nominate whoever he pleases, but don't vote him in. Looks better and will not be used against you to the same degree telling him not to nominate someone will.

I see at a min. 2 things happening:

Pres. Obama nominates an African American or a very liberal person. When the right votes him down, the left uses it to fire up their base (maybe even more so if the person is an AA).

He nominates someone considered somewhat moderate who the right has approved overwhelmingly (like the Indian guy??). If the right votes him down, the left uses that to say the right is just out to obstruct.

Could the right vote for a moderate (knowing Alito isn't being replaced w/another Alito) if a Dem. was winning in the polls and had stated they would vote for someone more liberal than whoever is on the table - maybe that would be the best outcome for them?

"Looks better and will not be used against you to the same degree telling him not to nominate someone will"

If the Senate allows a vote and votes no, every TV station minus one will say that they are just a bunch of racist obstructionists. Optics are a tiny better, probably, if they allow the vote.

"He nominates someone considered somewhat moderate who the right has approved overwhelmingly (like the Indian guy??). If the right votes him down, the left uses that to say the right is just out to obstruct. "

To which the response is, "how is that different than what the Democrats did to Bork, because they confirmed Bork to a lower court". Again, only one TV station will bother pointing out that both sides do this all the time.

"Could the right vote for a moderate (knowing Alito isn't being replaced w/another Alito) if a Dem. was winning in the polls and had stated they would vote for someone more liberal than whoever is on the table - maybe that would be the best outcome for them?"

You're saying Alito, you mean Scalia.

They have little to lose by waiting until after the elections. If a Republican is elected President (decent chance if the nominee isn't Trump), and if the GOP keeps the Senate (likely unless the nominee is Trump), they would be able to get another Scalia in there.

If a Democrat wins the Presidency, and the GOP keeps the Senate, I'd ask the GOP senators to stick to their guns and demand that Hilary replace Scalia with someone similar.

If the GOP keep sthe Senate, then as Obama likes to say, "there are consequences".

There are some ancient justices on that court,m if the next POTUS i sthere 8 years, there could be a few vacancies. If there was ever a time for the GOP to NOT nominate Trump, it's now.

Not much going right for the GOP, we aren't getting any favorable bounces, that's for damn sure.

It is not MY way. I don't own it. I am not a judge. But I don't want a judge to make laws. I like the separation of powers. Having the one who adjudicate the law also be the one who makes the law is a centralization of power. Even more so if the maker and judge of law is appointed by, and an ideological puppet to, a single person, the President. In "originalist" terms, that would be the definition of tyranny--the centralization of legislative, executive, and judicial power.

"But I don't want a judge to make laws"

Why would any citizen be OK with someone who isn't elected (and therefore not answerable to us) to make laws? That's exactly what Scalia was getting at in his dissent of the gay marriage ruling.

Some comments (in red type) on the article by Posner (black type) in the link on reasons for or against originalism that wdmso provided.


Judge Richard A. Posner on Originalism and Pragmatism
Excerpts from Overcoming Law (1995) ("What Am I? A Potted Plant?" and "Bork and Beethoven")
Republished with permission of the author.

*****Politically, I feel more governed than self-governing, (he should since government has progressively become more pervasive in our lives than it was before judges kept agreeing to transfer power and rights from the people to the government) and this is one reason why I think more warmly of limited government than of popular government. Does he think more warmly of it than Scalia did? From Posner's idea that judges should exercise more discretion than Scalia thought they should, it seems to me that his idea opens the door to judges who wish to give government broader powers to implement the judge's notion of equity and justice, or some personal higher ideal, or personal ideology. And exactly that has been happening since Courts adopted so-called nonoriginalst theory of interpretation.

In considering whether to shrink what are now understood to be constitutional safeguards to the slight dimensions implied by a literal interpretation of the Constitution, His amazing flourish of legalese is difficult enough to follow even without this kind of backstep. He says, or implies, a bit further on that "general provisions" (slight dimensions) are more lasting and workable than "specific provisions" (a more expansive charter of liberties) we should be careful to have a realistic, not an idealized, picture of the legislative and executive branches of government, which would be even more powerful than they are today if those safeguards were reduced.

He may not like literal interpretation, but, actually, the framers (the original ones, not the current revisionist judges) were very realistic about the power being invested in each branch of government. That's why they insisted on separation of powers to prevent too large or absolute power in any branch. A literal interpretation of the Constitution would prevent such accumulation of power in one branch. The nonoriginalist method of interpretation which really picked up traction under the FDR Courts and has continued in varying degrees up till now has given a nearly absolute power to the Court by enabling it to adjudicate by personal opinion rather than through "literal" interpretation. This, in turn, has given the Court unchecked ability to give powers to the legislative or executive branches in order to advance the Justices ideology. Maybe that's why he felt, in 1995, more governed than self-governed. And the Federal government has gained, through judicial "discretion," much more power since then. Of course, the nonoriginalists believe this has given the people more liberty than they had under the old "literal" interpretations.

The framers of a constitution who want to make it a charter of liberties and not just a set of constitutive rules face a difficult choice. They can write specific provisions and thereby doom their work to rapid obsolescence, or they can write general provisions, (Which is what (general provisions) the original Framers did, except for the Bill of Rights which the wiser ones did not want to include, but were compelled to in order to ratify) thereby allowing substantial discretion to the authoritative Putting on black robes does not make one "authoritative" in the sense that your smarter and wiser than the society from which you came, and it certainly doesn't give you the power to do someone else's job such as creating law. interpreters, who in our system are the judges. ("Interpreters" not creators.) The U.S. Constitution is a mixture of specific and general provisions. Many of the specific provisions have stood the test of time well or have been amended without much fuss. This is especially true of the rules establishing the structure and procedures of Congress. Now he will leave the meat of the Constitution which is the enumerated powers of the Federal Government, and what the Constitution is really about, and not ambiguous, and move on to the Bill of Rights--Most of the specific provisions creating rights, however, have fared poorly. Some have proved irksomely anachronistic-for example, the right conferred by the Seventh Amendment to a jury trial in federal in all cases at law if the stakes exceed $20. (I would suppose a textualist would refer not only to what the words meant when the Constitution was written, but what the value of $20 meant then. Much more that it is worth today. Others have become dangerously anachronistic, such as the right to bear arms. (Well, no, they have not become anachronistic. That's his personal opinion. Of course, he qualifies it with "dangerously." He knows that anachronism cannot, nor should not, be abolished. But if in their opinion it's dangerous, then he thinks it should be up to nine (or five actually) people with black, authoritative robes to abolish. Not by literal interpretation of the Constitution since that would be erasing part of the Constitution, not by will of the people, since, I guess, they are not authoritative, not even by Congress, which, I guess is also not authoritative. But by the authoritative "discretion" of five black robes. Some have turned topsy-turvy, such as the provision for indictment by grand jury. The grand jury has become an instrument of prosecutorial investigation on, rather than being the protection for the criminal suspect that the framers of the Bill of Rights expected it to be. Well, gee, so he's not for judicial "discretion" in this case? If the Bill of Rights had consisted entirely of specific provisions, it would no longer be a significant constraint on the behavior of government officials. Right. As he says in the second sentence of this paragraph, if it had so consisted, it would have been doomed to rapid obsolescence.

Many provisions of the Constitution, however, are drafted in general terms. This creates flexibility in the face of unforeseen changes, but it creates the possibility of alternative interpretations, and this possibility is an embarrassment for a theory of judicial legitimacy that denies judges have any right to exercise discretion. A choice among semantically plausible interpretations of a text, in circumstances remote from those contemplated by its drafters, (The Constitution is not about circumstances. For the most part, it is explicitly, not ambiguously, about who has certain powers. Of course, if a Judge feels he has the "discretion" to allow a branch to assume the power of another branch, he is allowed to actually create an ambiguity. But clauses that might be considered ambiguous if they stood alone, are clear in context and in the structure of the text, as well as actual explanations by the Framers outside of the text. Of course, they can be made to seem ambiguous by the "discretion," of judges who ascribe meanings to the text which are not in the text. So thusly promote what such judges consider good consequences.) requires the exercise of discretion and the weighing of consequences. Reading is not a form of deduction; understanding requires a consideration of consequences. If I say, "I'll eat my hat," (The Constitution, not differing from all legal writing, does not use colloquial figures of speech.) one reason why my listeners will "decode" the meaning of this statement in nonliteral fashion is that I couldn't eat a hat if I tried. The broader principle, which applies to the Constitution as much as to a spoken utterance, is that if one possible interpretation of an ambiguous statement would entail absurd or terrible results, that is a good reason to reject it.

Even the decision to read the Constitution narrowly, and thereby to "restrain" judicial interpretation, is not a decision that can be read directly from the text. The Constitution does not say, "Read me broadly," or, "Read me narrowly." The decision to do one or the other must be made as a matter of political theory and will depend on such things as one's view of the springs of judicial legitimacy and the relative competence of courts and legislatures in dealing with particular types of issue. This paragraph, like most of his, is so full of ambiguity and linguistic (but high sounding) gibberish that it sort of floats without landing anywhere. If the Constitution must be read through a "matter of political theory," then why not read it through the matter of the political theory of those who wrote it. I guess that would be too originalist. No, let's sift it through the matter of political theory of nine black robes. But what if they have different matters of political theory? Wouldn't that create ambiguity? And who's to say that somebody's "discretion" is better than somebody else's?

The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." Read narrowly, this just means that the defendant can't be forbidden to retain counsel. If he cannot afford counsel, or competent counsel, he is out of luck. Read broadly, it guarantees even the indigent the effective assistance of counsel. It becomes not just a negative right to be allowed to hire a lawyer Isn't that actually a positive right? but a positive right to demand the help of the government in financing one's defense if one cannot do it oneself. Either reading is compatible with the semantics of the provision, but the first better captures the specific intent of the framers. When the Sixth Amendment was written, English law forbade a criminal defendant to have the assistance of counsel unless his case presented abstruse questions of law. The framers wanted to do away with this prohibition. But, more broadly, they wanted to give criminal defendants protection against being railroaded. When they wrote, government could not afford, or at least did not think it could afford, to hire lawyers for indigent criminal defendants. Moreover, criminal trials were short and simple, so it was not completely ridiculous to expect a lay person to be able to defend himself competently from a criminal charge without a lawyer if he couldn't afford to hire one. Today the situation is different. Not only can the society afford to supply lawyers to poor people charged with crimes, but modern criminal law and procedure are so complicated that an unrepresented defendant is usually at a great disadvantage. So where in the Sixth Ammendment does it say, literally or discretionally, that the government can't request pro-bono counsel?

***** The liberal judicial activists may be imprudent and misguided in their efforts to enact the liberal political agenda into constitutional law. But it is no use pretending that what they are doing is not interpretation but "deconstruction," deconstruction is a form of interpretation. not law but politics, Unfortunately, it becomes law, from the bench, and to deny that it is politics, especially since Judges are chosen for political views, is the idealism that Posner abjures above. just because it involves the exercise of discretion and a concern with consequences and because it reaches results not foreseen two hundred years ago. It may be bad law because it lacks firm moorings in constitutional text, or structure, or history, or consensus, or other legitimate sources of constitutional law, or because it is reckless of consequences, or because it oversimplifies difficult moral and political questions. But it is not bad law, or no law, just because it violates the tenets of strict construction.

Strict construction and originalism are different labels. Even Posner is a bit of an originalist, whatever that is. The labels are too pedantic and restrictive. And they create a fog of authoritative specialization. Something that no Joe Sixpack should be able to comprehend. Personally, I think it's BS. As a common citizen, I find it absurd that Judges can decide not by law, but by their opinion of what the consequences of their decisions will be. The notion that they have some higher power to know the future, as Spence would say, doesn't pass the smell test.

The idea that legal text is "interpreted" by the personal eye of the reader smells like the very ambiguity that so-called nonoriginalists think is such a problem. To treat legal documents like creative literature is contrary to the reason to create law. Creative literature inspires a variety of interpretation. And that doesn't lead to bad consequences. Or even good ones. A short story I wrote long ago for a creative writing class, when it was critiqued for class discussion, evoked different "interpretations" from different readers. Some way off from what I intended. But most were so complimentary that I was reluctant to poo-poo them. For that reason, I suppose, most creative artists don't object to wild speculations about what their work "means." Especially if it makes their stuff look good. The death of one of the Eagles band inspired me to google and listen to their stuff again and to read some interviews with them. My favorite song, Hotel California, inspired lot's of interpretation, but the writer of the song smiled when the interviewer relayed some interpretations, and the songwriter gently said that the meaning was quite different. But that's okay for artists . . . as long as you like their work.

Law requires consistency, predictability, and specificity. It is not a good consequence for law, no matter how complimentary Judges are of it, if by their discretion they wildly and beautifully speculate, "interpret" to achieve, in their opinion, what is good rather than applying the law as written. Such fanciful "interpretation" nullifies and destroys the law. It doesn't elevate, compliment or evolve it. It would be more honest to quit legal pretense, set the law aside, and decide as a higher authority who knows best. In their written arguments they can use high flown language to describe how and why they arrived at their decision and not bother to mention articles, sections, statutes, or legally binding texts.

Except for the Bill of rights, which was an afterthought and may have been more destructive of the People' rights than of preserving them, the Constitution is most importantly a manual of powers and duties of the Federal Government and to which of its three branches they are allocated . Which is why an originalist like Scalia believed it is more about WHO was responsible for the legislation, execution, and adjudication of law than WHAT the law is. There is little, if any, ambiguity in that. And as for the overriding importance of "consequence," it is the very idealism that Posner eschews, as well as hubris, to claim a judicial discretion for SCOTUS Judges which allows them to judge as some higher, more competent authority on consequence than the legislators and the people those legislators represent. As if the Judges possessed some greater purity and knowledge.


From "Bork and Beethoven" This section was too long and boring and about one man's, Bork, opinion to waste time on.

Poor Obama, now he says he regrets his filibuster of Alito...I'm sure that's true, because what that does, is leave him with precisely zero moral standing to complain if the GOP does the same thing. Jerk. When he does it, it's such brilliant legislating, that he deserves to be promoted to be POTUS. When someone then does it to him? As Hilary said in SC yesterday, that's racist. I really cannot stand these people..

Oh no, just heard he was staying for free at a place where he had ruled on an appeal to the USSC last year. Not good.

Oh no, just heard he was staying for free at a place where he had ruled on an appeal to the USSC last year. Not good.

I heard the president is going to Cuba instead of the Supreme Court Justices funeral .
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That is not good.

That is not good.

I heard that as well, and find it disappointing.

I heard that as well, and find it disappointing.

Very, very disappointing if true.

Hilary's comments on the shocking reality that the GOP senators aren't going to confirm Rachael Maddow or Gloria Allred to the Supreme Court...

"You know, that’s in keeping with what we’ve heard all along, isn’t it? Many Republicans talk in coded racial language about takers and losers. They demonize President Obama and encourage the ugliest impulses of the paranoid fringe. This kind of hatred and bigotry has no place in our politics or our country.”

WHY WASN'T IT RACIST WHEN OBAMA FILLIBUSTERED BUSH'S NOMINEE???

I cannot flippin' stand these people.

Bryan, I give you a LOT of credit, you said you didn't think it was about race, and obviously it isn't (several GOP Senators voted for Sotomayor for Christ's sake, so if they are racists, they aren't very good racists).

With these people, it's always always always about dealing the race card from the bottom of the deck. Always. And no one calls them on it.

And what was with that witch barking like a dog? I heard about it, and didn't believe it until I actually saw it. How is that any less presidential, than the things Trump says?

If the GOP doesn't run video of that jerk barking like a dog 24 hours a day, then they are too stupid to win and don't deserve to win.

I heard that as well, and find it disappointing.

I think breitbart had it wrong. Just saw a quote from Pres. Obama on CNBC "Next month, I'll visit Cuba......"

He won't be attending the funeral citing " security issues " . I wonder what golf course or fundraiser will be more secure ?
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I think he should attend. But others disagree.

But Ed Whelan, the president of the Ethics and Public Policy Center, who once clerked for Justice Scalia and shares the same faith, said that Mr. Obama made the right decision. Mr. Whelan emphasized that traditional Catholic funerals are deeply religious affairs during which even eulogies are discouraged.

“For Catholics, a funeral Mass is first and foremost a funeral, not an event of state,” Mr. Whelan said.

Michael Moreland, a law professor at Villanova University who is Catholic and was on the White House staff of Mr. Bush, said both sides had valid points.

The event on Friday at the Supreme Court is the more appropriate place for a presidential visit, he said, but Mr. Obama’s attendance at the funeral “could have been a nice occasion for reducing polarization of D.C.’s political culture.”

I think he should attend. But others disagree.

But Ed Whelan, the president of the Ethics and Public Policy Center, who once clerked for Justice Scalia and shares the same faith, said that Mr. Obama made the right decision. Mr. Whelan emphasized that traditional Catholic funerals are deeply religious affairs during which even eulogies are discouraged.

“For Catholics, a funeral Mass is first and foremost a funeral, not an event of state,” Mr. Whelan said.

Michael Moreland, a law professor at Villanova University who is Catholic and was on the White House staff of Mr. Bush, said both sides had valid points.

The event on Friday at the Supreme Court is the more appropriate place for a presidential visit, he said, but Mr. Obama’s attendance at the funeral “could have been a nice occasion for reducing polarization of D.C.’s political culture.”
It doesn't really matter. Obama could pull Jimmy from the well and Buck would claim he just did it for the photo op.

It doesn't really matter. Obama could pull Jimmy from the well and Buck would claim he just did it for the photo op.

So what's it going to be, golf ?
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So what's it going to be, golf ?
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Wasn't JFK Catholic? How did they manage to get politicians to his funeral oh the hell with it.

Obama has nothing but disdain for everything Scalia stood for, Scalia was the poster boy for the bitter racist clingers that Obama the uniter liked to talk about, no one in Scalia's family will suffer for Obama's absence...

I think he should attend. But others disagree.

But Ed Whelan, the president of the Ethics and Public Policy Center, who once clerked for Justice Scalia and shares the same faith, said that Mr. Obama made the right decision. Mr. Whelan emphasized that traditional Catholic funerals are deeply religious affairs during which even eulogies are discouraged.

“For Catholics, a funeral Mass is first and foremost a funeral, not an event of state,” Mr. Whelan said.

Michael Moreland, a law professor at Villanova University who is Catholic and was on the White House staff of Mr. Bush, said both sides had valid points.

The event on Friday at the Supreme Court is the more appropriate place for a presidential visit, he said, but Mr. Obama’s attendance at the funeral “could have been a nice occasion for reducing polarization of D.C.’s political culture.”

I bet he would have found his way to the church if Supreme Court Justice Ginsburg passed away .
Stop the nonsense .
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I bet he would have found his way to the church if Supreme Court Justice Ginsburg passed away .
Stop the nonsense .
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He is prob. doing it bc he hates the right. Hard to understand since he is treated so well.

Were is Doozer when we need him?

He is prob. doing it bc he hates the right. Hard to understand since he is treated so well.

Were is Doozer when we need him?

some points for authenticity here, he doesn't like white conservative people (those racist bitter clingers), he doesn't like Catholics (made Georgetown cover up religious items when he gave a speech there), neither side will shed any tears if he's not there. He can instead attend some racist Black Lives Matter event at Rev Wright's "church", and let the Catholics do their own thing. Maybe Obama can send a true Catholic emisary, like Joe Biden or Nancy Pelosi.

Obama said he respects Scalia's service, I believe that's true, that's where the admiration ends, we all know that.

So what's it going to be, golf ?
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So a reporter plants a loaded question and for you it's gospel :sheep:

So a reporter plants a loaded question and for you it's gospel :sheep:

You don't get sarcasm well;)
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You don't get sarcasm well;)
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You're leading Jim along.

You're leading Jim along.

Just answer the damn question ! 😁
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Just answer the damn question ! 😁
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Funny thing is I have several times. :sleeps:

Funny thing is I have several times. :sleeps:

If that's true, then what's the big deal about doing it again? Doesn't make a lot of sense why you are dodging this way...

My father always told me that wakes and funerals aren't for the people who died......they're for the people who are still here.

Politics be damned....you show the #^&#^&#^&#^& up. It's the right thing to do. Anybody arguing the politics of this are #^&#^&#^&#^&-ing morons....

Disgusted with this decision.....anybody that wants to argue it can kiss my a$$
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So if you go to the wake and not the funeral your a scum bag

I guess no one here has ever done that??

Another example of... it's just that it's Obama


Conservatives block any nomination dont even Try !!! The Republicans Cheer

Conservatives Your not attending the Funeral ? The Republicans are outraged

So if you go to the wake and not the funeral your a scum bag

I guess no one here has ever done that??

Another example of... it's just that it's Obama


Conservatives block any nomination dont even Try !!! The Republicans Cheer

Conservatives Your not attending the Funeral ? The Republicans are outraged

Just a question but what do you think the chances are thy he nominates a white male ?
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My father always told me that wakes and funerals aren't for the people who died......they're for the people who are still here.

Politics be damned....you show the #^&#^&#^&#^& up. It's the right thing to do. Anybody arguing the politics of this are #^&#^&#^&#^&-ing morons....

Disgusted with this decision.....anybody that wants to argue it can kiss my a$$
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I'll bet you get this pissy when there's nothing but crushed wheat thins at the bottom of the box as well.

What's the difference between paying your respects to his family in the Great Hall versus a funeral in a church? Hell, if Obama went to the funeral people would be beotching the only reason he went was as a publicity stunt because he hates conservative white men.

I can just hear Hannity ranting about the security cost and why is the President wasting taxpayers money.

My father always told me that wakes and funerals aren't for the people who died......they're for the people who are still here.

Politics be damned....you show the #^&#^&#^&#^& up. It's the right thing to do. Anybody arguing the politics of this are #^&#^&#^&#^&-ing morons....

Disgusted with this decision.....anybody that wants to argue it can kiss my a$$
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Your logic is flawed. There is a long history in this country of politics getting in the way of presidential appointees. If you think only the GOP does this, then please show me a picture of Robert Bork sitting on the Supreme Court. Both sides do this. It's common. Is that going too fast for you?

Now, the question of the funeral. CNN has been reporting that never in the history or our nation, not once, has a President failed to attend the funeral of a sitting justice of the Supreme Court. So as usual, TDF (who isn't a crazy conservative) is right.

So try to follow the bouncing ball...it's nothing new for the Senate to block a nominee. What Obama is doing, has never been done, not once in 240 years.

Just saw the funeral is at The National Shrine which has a capacity of 10,000 people. The Secret Service can barely keep wackos out of the White House and you think it's practical for them to secure this site on a few days notice?

Insanity.

I'll bet you get this pissy when there's nothing but crushed wheat thins at the bottom of the box as well.

Apples and oranges. Different context. It's all relative. Depends on his perspective regarding the relative importance of wheat thins compared to Obama. No doubt, for most sane people, the wheat thins would take priority.

Hell, if Obama went to the funeral people would be beotching the only reason he went was as a publicity stunt because he hates conservative white men.

I can just hear Hannity ranting about the security cost and why is the President wasting taxpayers money.

I realize that's just sarc. Which is OK. As wdmso would say, we all should have the discretion to interpret--even in order to promote an agenda.

Even though your pissy sarc is not true, and you know it (my discretionary interpretation), I don't personally care if he goes to the funeral or not. I don't think his respect is more important than anybody else's. In fact, in my discretionary opinion, it would be hypocritical for him to attend the funeral. He has publically disrespected the Court, why should he pretend to care or honor the passing of one of its members, especially one he probably dislikes more than most others. If I were Scalia, I would not have wanted him at my funeral.

Just saw the funeral is at The National Shrine which has a capacity of 10,000 people. The Secret Service can barely keep wackos out of the White House and you think it's practical for them to secure this site on a few days notice?

Insanity.

It's the first time in the history of the nation, that a president hasn't attended the funeral of a sitting SCOTUS justice. What that means is, Obama's predecessors managed to pull this off.

So if you go to the wake and not the funeral your a scum bag

I guess no one here has ever done that??

I guess Obama can't afford to give up a day's pay and miss work.



Another example of... it's just that it's Obama

I could give a rats ass if its Obama, Bush, Clinton, or even Reagan.

You are the President of United States, a Justice of the Supreme Court has died......you go to his funeral PERIOD......Unless you have a VERY good reason not to.......haven't heard one from him yet.

Heard plenty from everyone making excuses for him though.

Funny, When I spoke out against Bush I was labeled a Crazy Liberal, Now I speak out against Obama and I get labeled hypocritical Conservative.......

I know one thing......I know an A-Hole move when I see it.....
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Just saw the funeral is at The National Shrine which has a capacity of 10,000 people. The Secret Service can barely keep wackos out of the White House and you think it's practical for them to secure this site on a few days notice?

Insanity.

So the Vice President and his family are expendable?? No need to worry about security for him, huh.


I guess Obama never took in a ball game since he's been president.....those stadiums are sooooo much easier to keep secure than the National Shrine.
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So the Vice President and his family are expendable?? No need to worry about security for him, huh.


I guess Obama never took in a ball game since he's been president.....those stadiums are sooooo much easier to keep secure than the National Shrine.
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Certainly less of a target than the POTUS.

How much security planning do you think goes into a ballgame?

Certainly less of a target than the POTUS.

How much security planning do you think goes into a ballgame?

First time ever, Spence.

Remember the mass after 09/11? Leaders from all over the world in one building. Somehow, they pulled that off.

You can't admit that he's not going, because he doesn't want to go?

Now, the question of the funeral. CNN has been reporting that never in the history or our nation, not once, has a President failed to attend the funeral of a sitting justice of the Supreme Court. So as usual, TDF (who isn't a crazy conservative) is right.
There's not enough information out there to make that statement. The Chicago Tribune reported in 1954 that Truman sent flowers.

Regardless, this is only the third time it's happened in 60 years. They also didn't have the dead justices in repose until the last Justice Rehnquist in 2005. Since 1980 POTUS has only attended 4 of 10 justices funerals.

I'd also like to remind you you're likely voting for this guy...

http://thehill.com/blogs/ballot-box/presidential-races/270129-trump-would-obama-have-gone-to-scalia-funeral-if-it-was

Certainly less of a target than the POTUS.

So you think they will have reduced security for this just because the VP doesn't give them as many "Points".....that is the most ridiculous thing I've ever heard

How much security planning do you think goes into a ballgame?

So you said that National Shrine holds 10,000 people and the secret service can barely keep a few whackos out of the White House.

Yet they can put the president in the middle of a big grass field in front of 40,000 people to throw out the first pitch of a ballgame without a problem.

A place full of sports whackos that is serving alcohol......

But they can't risk it at a funeral service....

I take it back.....this is the most ridiculous thing I've ever heard.
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Interesting. Back in 1992, then-Senator Obama was very emphatic that President Bush shouldn't nominate anyone to the Supreme Courtm that no one should be nominated until after the election.

Here is what he said...

"the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over. Some will criticize such a decision and say that it is nothing more than an attempt to save a seat on the court in hopes that a Democrat would be able to fill it. Instead, it would be our pragmatic conclusion that once the political season is under way (and it is) action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and essential to the process. Otherwise, it seems to me . . . we will be in deep trouble as an institution."

So according to Biden, it is "pragmatic" and "fair" to block nominations until after an election is completed. And to do otherwise, would put the institution IN DANGER!!

Life's a funny old dog, isn't she?

A good case to ignore any nomination.
https://www.youtube.com/watch?v=N1SUn0zTGUQ

Sounds like both sides are the same?

Sounds like both sides are the same?

The left wing and the right wing re attached to the same bird.
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The left wing and the right wing re attached to the same bird.
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......and that bird is a turkey
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......and that bird is a turkey
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Pretty much
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good one