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.

He has 2 justices appointed to the Supreme Court.

https://en.m.wikipedia.org/wiki/List...y_Barack_Obama
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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.

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.

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/project...aw/interp.html

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?

this is hilarious "Non-sense" ;)

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 "

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.

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/sup...h-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 ?
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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.

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:

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

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?

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.

"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.

"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.

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

I heard that as well, and find it disappointing.

Very, very disappointing if true.