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D L X
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Picking A New Scotus Justice

Thu Feb 18, 2016 4:01 pm

This topic needs its own thread, as it goes far afield of the obituary/eulogy of Mr. Scalia.

There is currently a vacancy on the Supreme Court. In many people's belief, including most lawyers and at least one SCOTUS Justice, the Supreme Court is handicapped without a full complement of judges. Here's what we know:

* According to the constitution, the President "shall nominate" a Supreme Court justice, and with the advise and consent of the Senate, "shall appoint" him or her. That is an edict -- it is unconstitutional to not perform this duty.

* Nearly all of the GOP candidates for President, as well as the Senate Majority Leader Mitch McConnell have declared that they will not act on any presidential nomination, instead waiting for the presidential election to conclude.

* As of the initiation of this thread, there are 337 days left in President Obama's term, which equates to 23% of his term.

* The longest SCOTUS vacancy in history was 363 days (Blackmon replacing the disgraced Fortas after two failed noms).

* The longest SCOTUS vacancy in the past 40 years was 237 days (Kennedy replacing Powell after failed noms of Bork and Ginsberg)

* The longest the Senate has ever considered a nomination is 125 days.

* The Average Time the Senate has considered a nomination is 25 days.

* The president may appoint a SCOTUS justice without the Senate's say when the Senate is in recess, which will last until the end of the Senate's term. (The Senate then would not have to take up the issue at all.)

I personally think that with the sheer recalcitrance of the Senate leadership, a recess appointment is quite likely.
 
Mir
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RE: Picking A New Scotus Justice

Thu Feb 18, 2016 4:39 pm

The irony of the GOP lionizing Scalia's strict dedication to originalism when dealing with the Constitution and then deciding that they don't really need to follow the whole process for replacing judicial vacancies as laid out in the Constitution is remarkable.

I would think Scalia would, in his usual blunt terms, tell them to man up and do their jobs. Doesn't mean they have to accept the first person Obama would nominate, but they've got to consider anyone he does put up in good faith. To say that they're not going to consider anyone at all is a dereliction of their duty.

-Mir
 
D L X
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RE: Picking A New Scotus Justice

Thu Feb 18, 2016 4:41 pm

More data:

Here are the Republican Senators that are currently up for reelection:

AYOTTE, KELLY (NH)
BLUNT, ROY (MO)
BOOZMAN, JOHN (AR)
BURR, RICHARD (NC)
COATS, DANIEL (IN)
CRAPO, MIKE (ID)
GRASSLEY, CHUCK (IA)
HOEVEN, JOHN (ND)
ISAKSON, JOHNNY (GA)
JOHNSON, RON (WI)
KIRK, MARK (IL)
LANKFORD, JAMES (OK)
LEE, MIKE (UT)
MCCAIN, JOHN (AZ)
MORAN, JERRY (KS)
MURKOWSKI, LISA (AK)
PAUL, RAND (KY)
PORTMAN, ROB (OH)
RUBIO, MARCO (FL)
SCOTT, TIM (SC)
SHELBY, RICHARD C (AL)
THUNE, JOHN (SD)
TOOMEY, PATRICK J (PA)
VITTER, DAVID (LA) (retiring)


You need 14 to break a filibuster. The only ones I can see are Ayotte, McCain, Vitter, Toomey, Portman, and *maybe* Grassley. But seriously, they're all only maybes.
 
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einsteinboricua
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RE: Picking A New Scotus Justice

Thu Feb 18, 2016 4:49 pm

Quoting Mir (Reply 1):
Doesn't mean they have to accept the first person Obama would nominate, but they've got to consider anyone he does put up in good faith. To say that they're not going to consider anyone at all is a dereliction of their duty.

   If they won't accept any nominee, at least go on record and vote down the candidate. But they won't because they know that a candidate that's thoroughly qualified would have no other reason to be voted down other than "they're an Obama nominee" (and that is not an excuse). Instead, not voting or doing anything sounds way better.

I just want to know what they're excuse will be if:

A. Senate Democrats regain the Senate but a GOP candidate wins the presidency.
B. The GOP retains the Senate but loses the presidency (again).*


*Actually, I think I know. They'll say that they were rewarded with the majority once again and that the American people want them to stop the Democrat's agenda. Welcome to years 9-12 of gridlock.
 
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casinterest
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RE: Picking A New Scotus Justice

Thu Feb 18, 2016 4:54 pm

Quoting D L X (Reply 2):
BURR, RICHARD (NC)

Burr, will be tough through the primary, but he will have to rush to the middle towards election time. There are some very foul politics occurring with Gerrymandering in the state of NC, and it may be enough to generate enough interest to sweep him out of office. However, the likely DEM candidate Deborah Ross, is very widely unknown, and to this point has not made a huge attack on the Burr, or shown enough reason why Burr should not be re elected. But if this season turns out to be a battle over the Supreme Court and Gerrymandered districts , North Carolina may get a lot of money to try to push Burr out.
 
D L X
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RE: Picking A New Scotus Justice

Thu Feb 18, 2016 5:07 pm

Quoting casinterest (Reply 4):
There are some very foul politics occurring with Gerrymandering in the state of NC, and it may be enough to generate enough interest to sweep him out of office.

Ironically enough, this gerrymandering case is one that's about to end in a 4-4 tie, affirming the lower court.
 
Osubuckeyes
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RE: Picking A New Scotus Justice

Thu Feb 18, 2016 5:09 pm

Quoting D L X (Thread starter):
Nearly all of the GOP candidates for President, as well as the Senate Majority Leader Mitch McConnell have declared that they will not act on any presidential nomination,

Wouldn't that only be Cruz. Trump, Carson, Kasich, Bush don't hold any position of power to act on anything. I don't think Rubio has said he will not act (not 100% sure on this), but he did say he thinks it should be up to the electorate this election (which is wrong).

Quoting D L X (Reply 2):

Maybe we should talk about potential nominees first before blatantly bashing Republican Senators who have taken no action what so ever. There isn't a nominee yet so there is no point in discussing the politics of blocking and all that BS. Rhetoric is bluster until there is action. I will gladly eat crow when and if the Republicans are unreasonable, but maybe start the discussion with a shred of objectivity before assembling your Republican hit list.
 
D L X
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RE: Picking A New Scotus Justice

Thu Feb 18, 2016 5:13 pm

Quoting Osubuckeyes (Reply 6):
I don't think Rubio has said he will not act (not 100% sure on this), but he did say he thinks it should be up to the electorate this election (which is wrong).

He parsed his words carefully to imply that he would not ("the Senate will not take this up"), but did not explicitly say that he personally would not act.

Quoting Osubuckeyes (Reply 6):
Maybe we should talk about potential nominees first before blatantly bashing Republican Senators who have taken no action what so ever.

???

The Republican Senators have already declared that they will refuse to act. That refusal is certainly germane for comment. Do you believe they are lying? Do you believe that the President should not act with an eye to what these powerful Senators have said?

Quoting Osubuckeyes (Reply 6):
assembling your Republican hit list.

 

I'm just relaying facts. In order to break a filibuster, you're going to need Republicans. These are the ones I suggest are most likely to be the pool the President could aim for because they are in election campaigns themselves. It is hardly a "hit list." You're being bombastic.
 
Osubuckeyes
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RE: Picking A New Scotus Justice

Thu Feb 18, 2016 5:24 pm

Quoting D L X (Reply 7):
The Republican Senators have already declared that they will refuse to act. That refusal is certainly germane for comment. Do you believe they are lying? Do you believe that the President should not act with an eye to what these powerful Senators have said?

I'm sure you know politicians love to say one thing and do something else. They haven't done anything since there hasn't been any nominee yet. So maybe lets reserve judgement for the most part. It is pointless to talk about what they say... politicians say a lot of BS. It is also disingenuous to assume that everyone will fall lock in step with McConnell especially in the current state of the Republican party. IIRC, the last few nominees from Obama and Bush both caused quite an uproar in the Senate, but all of them turned out to be voted on and confirmed.

Quoting D L X (Reply 7):
I'm just relaying facts. In order to break a filibuster, you're going to need Republicans. These are the ones I suggest are most likely to be the pool the President could aim for because they are in election campaigns themselves. It is hardly a "hit list." You're being bombastic.

Facts that aren't relevant as there hasn't been a nominee, gone to the Senate, or been a fillibuster. Like I said I will gladly eat crow if it happens.
 
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einsteinboricua
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RE: Picking A New Scotus Justice

Thu Feb 18, 2016 5:26 pm

Quoting D L X (Reply 2):
AYOTTE, KELLY (NH)*
BLUNT, ROY (MO)
BOOZMAN, JOHN (AR)
BURR, RICHARD (NC)
JOHNSON, RON (WI)^
KIRK, MARK (IL)^
MCCAIN, JOHN (AZ)*
PORTMAN, ROB (OH)*
TOOMEY, PATRICK J (PA)*

These are the vulnerable Republicans.

Coats and Rubio are also retiring. (Rubio said that if he ran for president he would not run for reelection) Senators not mentioned here are in safe seats. Indiana and Louisiana are also seen as safe seats for the GOP; Florida is a tossup.

The ones with an asterisk are toss up or lean Republican seats. The ones with a caret (^) are seen as Democrat pickups. The ones without a sign are safer GOP seats but Democrats may give them a run for their money. A late surge could flip the seats.
 
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Dreadnought
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RE: Picking A New Scotus Justice

Thu Feb 18, 2016 5:33 pm

Quoting Osubuckeyes (Reply 8):
I'm sure you know politicians love to say one thing and do something else. They haven't done anything since there hasn't been any nominee yet. So maybe lets reserve judgement for the most part.

I agree. Politicians change their positions all the time. Let's see what happens.

I've seen a list of potential nominees. A couple look like they could be OK. A couple look like real turkeys that belong nowhere near the USSC. Let's see which one gets nominated first. If Obama sends up one of the turkeys, then obviously he's trying to pick a fight and you guys will hardly be in a position to complain if the Republicans fight back.

But if he sends up a decent candidate I would agree he would need to be positively considered.
 
wingman
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RE: Picking A New Scotus Justice

Thu Feb 18, 2016 6:46 pm

The two leading candidates, Srinivasan and Lynch would be very and somewhat problematic for the GOP. In the first case you had a 97-0 vote to confirm just three years ago. That would place Republicans in an extremely uncomfortable position and open them to very real charges of being in Washington for pure theater, and not at all to carry out their constitutional duties. And it would place their presidential nomination is a terrible spot with Independents.

Lynch was a more partisan vote but I think Obama goes with Srinivasan and Lynch hangs tight until the new Democratic President takes office. It's not too far-fetched to think that in the next 4 year another three Justices will need to be replaced.
 
Flaps
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RE: Picking A New Scotus Justice

Thu Feb 18, 2016 7:16 pm

The whole problem centers around the politicization of the court on BOTH sides of the aisle. The current president himself filibustered a Bush nomination when the shoe was on the other foot so therefore doesn't have any high ground to stand on either.

The nomination SHOULD (but won't) go tor the most qualified candidate versed in Constitutional law and who will faithfully follow the Constitution as written and in the spirit of its intent rather than political affiliation or bias. Scalia generally was a pretty good Constitutionalist which makes his shoes extremely difficult to fill in the current toxic political environment.

Presently the court consists of four from the left and four from the right. Neither side of the aisle in the toxic political cesspool that poses for our government will be able to resist the temptation to tilt the court to their own political viewpoint. I would like to see a centrist to ensure balance based on Constitutional law rather than political affiliation but I'm not so naive as to have any hope or expectation of such.

Quoting Dreadnought (Reply 10):
But if he sends up a decent candidate I would agree he would need to be positively considered.

I agree with this point of view. There seem to be some solid centrist candidates available. IMHO, I personally think that he is going to run up a turkey based on all of his actions and appointments thus far. Its going to be an interesting soap opera to watch.

[Edited 2016-02-18 11:42:19]
 
StarAC17
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RE: Picking A New Scotus Justice

Thu Feb 18, 2016 7:30 pm

Quoting D L X (Thread starter):
Nearly all of the GOP candidates for President, as well as the Senate Majority Leader Mitch McConnell have declared that they will not act on any presidential nomination, instead waiting for the presidential election to conclude.

If major cases that the court is supposed to hear end up 4-4 and cost resources to be heard again when there is a ninth justice voters will remember that and the democrats will make sure that it is an issue.

Quoting D L X (Thread starter):
The president may appoint a SCOTUS justice without the Senate's say when the Senate is in recess, which will last until the end of the Senate's term. (The Senate then would not have to take up the issue at all.)

This could backfire horribly on the GOP because the new senate takes office on January 4th and Obama leaves office on January 20th. If the GOP keeps getting nuttier and nuttier in the next nine months they run the risk of losing the election and losing the senate.

This means that Obama can nominate a justice in his last weeks in office or the next president can, and that could be president Bernie Sanders with a democratic senate.

Quoting einsteinboricua (Reply 9):
Coats and Rubio are also retiring. (Rubio said that if he ran for president he would not run for reelection) Senators not mentioned here are in safe seats. Indiana and Louisiana are also seen as safe seats for the GOP; Florida is a tossup.

If Rubio drops out in the next few weeks I can almost guarantee he will run for re-election.
 
Ken777
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RE: Picking A New Scotus Justice

Thu Feb 18, 2016 7:34 pm

Quoting wingman (Reply 11):
Srinivasan and Lynch would be very and somewhat problematic for the GOP


I can agree with that - both would be very strong nominees and both puts a lot of pressure on getting voters of color.

My bet would be Srinivasan because of his 97 - 0 approval vote in the Senate. Lynch does bring in the women's vote in November, but I believe she would be politically contentious.

If there was a recess appointment of a very liberal retired judge "until a regular nominee was approved by the Senate" I would if that would get the GOP looking quickly at a close to moderate appointment.
 
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DeltaMD90
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RE: Picking A New Scotus Justice

Thu Feb 18, 2016 7:44 pm

Quoting Osubuckeyes (Reply 8):
I'm sure you know politicians love to say one thing and do something else. They haven't done anything since there hasn't been any nominee yet. So maybe lets reserve judgement for the most part.

??

I agree that politicians often are full of it and lie, but I don't think we should just stay quiet when they say they're going to be blatantly obstructionist. Blasting them for merely saying it is completely warranted. I hope they do pull through and not act like spoiled children but heck yeah I'm gonna criticize them for their current rhetoric

Quoting Dreadnought (Reply 10):
But if he sends up a decent candidate I would agree he would need to be positively considered.

I hope so to, vowing to block anyone just "because Obama" is completely unacceptable. The President should nominate a fair judge, not a "liberal" judge, not a "conservative" one, a fair one. Politics are one thing, the courts are another.

If the President does nominate a liberal activist judge (a real liberal activist judge and not just anyone to the left of Ted Cruz) then I'd have no problem with them voting no. But at least vote on it, and make your case. And I really hope they don't pull any crap and shoot down a completely reasonable, fair nominee. Them being obstructionist will fire up the GOP base but will totally turn off everyone else
 
bhill
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RE: Picking A New Scotus Justice

Thu Feb 18, 2016 7:50 pm

Quoting Osubuckeyes (Reply 6):
Maybe we should talk about potential nominees first before blatantly bashing Republican Senators who have taken no action what so ever.

Right, you REALLY should be more informed of the antics your party is up to....but I understand because the GOP is so disorganized the rhetoric changes by the minute. The Leader of the Judicial Committee, Chuck Grassley, did all the bashing needed...and ANY nominee has to go through HIS committee first. He pretty much told the citizens of the United States there will be no potential nominees while the President is still in office.


Seems they MIGHT be stepping back from the cliff now, but yer pals SURE can throw a tantrum
 
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einsteinboricua
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RE: Picking A New Scotus Justice

Thu Feb 18, 2016 8:01 pm

Quoting StarAC17 (Reply 13):
If Rubio drops out in the next few weeks I can almost guarantee he will run for re-election.

I don't think so. He has stated multiple times that he dislikes the Senate. He'll probably end up like any other failed GOP candidate: a cushy job as a "political contributor" on Fox News, and possibly with eyes on another position (governor of Florida sounds like the kind of job he'd want to take...big enough to remain in the national spotlight but out of the beltway).
 
Osubuckeyes
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RE: Picking A New Scotus Justice

Thu Feb 18, 2016 8:09 pm

Quoting DeltaMD90 (Reply 15):
I agree that politicians often are full of it and lie, but I don't think we should just stay quiet when they say they're going to be blatantly obstructionist. Blasting them for merely saying it is completely warranted. I hope they do pull through and not act like spoiled children but heck yeah I'm gonna criticize them for their current rhetoric

Bashing them for what they say is fair game. As I said in my post in this thread and the other blocking a vote regarless of nominee is moronic. My point was that there hasn't been a nominee so analysis of a list of Republicans that may vote to overcome a fillibuster is completely pointless since there hasn't even been a nominee yet... This is a thread titled "Picking a New SCOTUS Justice" not, which Republicans are up for re-election.

Quoting bhill (Reply 16):
Right, you REALLY should be more informed of the antics your party is up to....but I understand because the GOP is so disorganized the rhetoric changes by the minute. The Leader of the Judicial Committee, Chuck Grassley, did all the bashing needed...and ANY nominee has to go through HIS committee first. He pretty much told the citizens of the United States there will be no potential nominees while the President is still in office.

1. I don't pigeon hole myself to one party so the Republicans are not "my" party.

2. http://www.politico.com/story/2016/0...rassley-obama-supreme-court-219320 Grassley states that he hasn't rules out hearings (which is absurd if he did since there is no nominee). He also states that the next president should decide (which I also said is wrong).

3. GOP is so disorganized and crazy that it is very difficult to believe anything they say, which is why it is fair to reserve judgement at the very least until there is an actual nominee. I would treat the Dems the same way. Until anything has actually happened it is all political bluster.

Quoting bhill (Reply 16):
Seems they MIGHT be stepping back from the cliff now, but yer pals SURE can throw a tantrum

Right, but it also doesn't seem like a far cry from their previous tantrums under Obama and the Dems' tantrums under Bush.
 
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DeltaMD90
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RE: Picking A New Scotus Justice

Thu Feb 18, 2016 8:15 pm

Quoting Osubuckeyes (Reply 18):
My point was that there hasn't been a nominee so analysis of a list of Republicans that may vote to overcome a fillibuster is completely pointless since there hasn't even been a nominee yet

I suppose, but I don't think that list is all that arbitrary. If any Republicans are gonna cross the line, it's probably going to be the ones with the most to lose from not doing so which are probably the ones up for reelection (and especially the ones that look like they're gonna lose their elections.)

Not sure why you referred to it as a hit list
 
D L X
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RE: Picking A New Scotus Justice

Thu Feb 18, 2016 8:16 pm

Quoting Osubuckeyes (Reply 18):
Bashing them for what they say is fair game.

Who's bashing them? Is making a list of Republicans up for reelection bashing them? If so, I think you need to give them more credit for having a thicker skin.

Quoting Osubuckeyes (Reply 18):
This is a thread titled "Picking a New SCOTUS Justice" not, which Republicans are up for re-election.

You're literally the only one here that doesn't think the list is relevant. As stated multiple times by multiple people, for the President to get a nominee through the Senate, some Republicans are going to have to help. It is absolutely germane to suggest some Republicans that might provide that help.

Quoting Osubuckeyes (Reply 18):
Grassley states that he hasn't rules out hearings (which is absurd if he did since there is no nominee).

Which shows why this discussion is relevant: you don't have to walk something back that wasn't said.

You've stated your opinion. Why don't you sit back and enjoy the thread instead of telling everyone else to stop talking about it?
 
Mir
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RE: Picking A New Scotus Justice

Thu Feb 18, 2016 10:58 pm

Quoting Flaps (Reply 12):
The current president himself filibustered a Bush nomination when the shoe was on the other foot so therefore doesn't have any high ground to stand on either.

Not so. He filibustered one Bush nominee, not all of them. So he's got plenty of ground to stand on. If he nominates a far left judge and complains when the Republicans block them, then you'd have an argument of hypocrisy - they're completely within their rights to say "this person is too far left for us, find someone else". But if he nominates someone in the center, or even center-left, the Senate has a Constitutional duty to give them fair consideration.

-Mir
 
Flaps
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RE: Picking A New Scotus Justice

Fri Feb 19, 2016 1:11 am

Quoting Mir (Reply 27):
Not so. He filibustered one Bush nominee, not all of them.

Try reading my quote again

Quoting Mir (Reply 27):

Quoting Flaps (Reply 12):
The current president himself filibustered a Bush nomination when the shoe was on the other foot so therefore doesn't have any high ground to stand on either.


I said a Bush nomination not all of them.

Quoting Flaps (Reply 12):
The nomination SHOULD (but won't) go tor the most qualified candidate versed in Constitutional law and who will faithfully follow the Constitution as written and in the spirit of its intent rather than political affiliation or bias.

I included above, the relevant missing portion of my statement for context. We generally share the same opinion. The only difference is that I included a blurb stating my lack of faith in the integrity of the current president to actually do what we both agree would be the correct action.
 
Mir
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RE: Picking A New Scotus Justice

Fri Feb 19, 2016 1:17 am

Quoting Flaps (Reply 28):
I said a Bush nomination not all of them.

And the GOP is threatening to filibuster all of them. So the situations are not analogous.

-Mir
 
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WarRI1
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RE: Picking A New Scotus Justice

Fri Feb 19, 2016 2:09 am

http://www.providencejournal.com/opi...icans-have-duty-to-vote-on-justice



A few words form the article.



Page 2 of 2 - In 2005, Democrats blocked a number of President George W. Bush’s circuit court nominees, not because they were stalling until a new president took office, but because they believed his nominees to be too far out of the judicial mainstream.

At the time, an outraged Sen. Mitch McConnell demanded, “Let's get back to the way the Senate operated for over 200 years, up or down votes on the president's nominee, no matter who the president is, no matter who's in control of the Senate. That's the way we need to operate."

He was right then, wrong now. Rejecting the president’s nominee, before the nomination is even made, shows disrespect for the president, the Senate, the Supreme Court and the Constitution.

The president should and will nominate someone to replace Scalia. The Judiciary Committee should hold hearings and report that nominee. The Senate can then work its will. The Republicans hold a majority in that chamber, so if the nominee can be shown to be unqualified, they can vote that nominee down. At least then, the Constitution will have been faithfully served.
 
 
Ken777
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RE: Picking A New Scotus Justice

Fri Feb 19, 2016 3:01 am

Quoting Flaps (Reply 12):
I personally think that he is going to run up a turkey based on all of his actions and appointments thus far.

No way. Who ever he puts up will be fully qualified and ready to serve effectively. Whoever has the nomination will probably be in a position where they can continue working while the Senate Republicans play pocket billiards.

Quoting StarAC17 (Reply 13):
and that could be president Bernie Sanders with a democratic senate.

While Hillary would have a rough time against most GOP candidates her run would be a breeze compared to Sanders. I'm to looking for a Sander's victory in November.

Quoting StarAC17 (Reply 13):
If Rubio drops out in the next few weeks I can almost guarantee he will run for re-election.

His ego is too great to drop out and he IS running 3rd. Let him keep going so he distances himself from his Senate office.

Quoting Mir (Reply 29):
And the GOP is threatening to filibuster all of them.

As Scalia demonstrates life can change direction pretty fast and there are other older Justices on the Court. It is not impossible for Obama to face multiple nominations in his remaining year.
 
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WarRI1
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RE: Picking A New Scotus Justice

Fri Feb 19, 2016 3:07 am

Quoting Ken777 (Reply 26):
As Scalia demonstrates life can change direction pretty fast and there are other older Justices on the Court. It is not impossible for Obama to face multiple nominations in his remaining year.

I cannot even imagine the reaction to such a situation from the Republicans. The finger of fate and timing. Great to win, but even the Conservatives have to take their lumps. They have had it their way for a long time. Time for change.
 
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seb146
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RE: Picking A New Scotus Justice

Fri Feb 19, 2016 4:52 am

Quoting Flaps (Reply 22):
my lack of faith in the integrity of the current president to actually do what we both agree would be the correct action.

And the correct action is to nominate someone. That has been the standard for decades. A justice dies, the president nominates someone. What is so hard to understand about that? Reagan didn't wait until his term was up to nominate someone. Bork was voted down and Kennedy was confirmed. In an election year. Get over it.

Quoting DeltaMD90 (Reply 15):
The President should nominate a fair judge, not a "liberal" judge, not a "conservative" one, a fair one.

Obama could nominate Barbara Bush and Republicans would scream about how "liberal" she is.
 
D L X
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RE: Picking A New Scotus Justice

Fri Feb 19, 2016 5:00 pm

Quoting Flaps (Reply 12):
I would like to see a centrist

I'd like to see a non-partisan.

Quoting StarAC17 (Reply 13):
If major cases that the court is supposed to hear end up 4-4 and cost resources to be heard again when there is a ninth justice voters will remember that and the democrats will make sure that it is an issue.

I don't think it even has to be a major case. There are a whole lot of private actors, corporations and individuals, with cases before the Supreme Court and the lower courts that rely on them for guidance. ALL of these cases may be held up, and many of them will see possibly millions of dollars held in abeyance while Congress gets off its duff to help them out.

Quoting Flaps (Reply 12):
I personally think that he is going to run up a turkey based on all of his actions and appointments thus far.

What "turkeys" has Obama appointed?

Quoting Dreadnought (Reply 10):
I've seen a list of potential nominees

Care to share?
 
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casinterest
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RE: Picking A New Scotus Justice

Fri Feb 19, 2016 10:12 pm

Quoting slider (Reply 21):
A Justice of SCOTUS should have a very simple litmus test, and that's closer to Scalia's constructionism than it is the judicial activism angle of many of them.
Quoting seb146 (Reply 28):

Obama could nominate Barbara Bush and Republicans would scream about how "liberal" she is.

Exactly.
 
Alias1024
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RE: Picking A New Scotus Justice

Sat Feb 20, 2016 12:43 am

Quoting Flaps (Reply 12):
The nomination SHOULD (but won't) go tor the most qualified candidate versed in Constitutional law and who will faithfully follow the Constitution as written and in the spirit of its intent rather than political affiliation or bias. Scalia generally was a pretty good Constitutionalist which makes his shoes extremely difficult to fill in the current toxic political environment.

I believe most judges, on both sides of the political spectrum see themselves as faithfully following the Constitution and laws as written by legislatures. The problem is that the relevant passages are not always clear. Two judges, fully versed in constitutional law with decades of experience can interpret a passage differently, both with the best intentions to follow the spirit under which it was written.

For example, Justice Scalia considered flag burning to be a protected form of speech in United States v. Eichman, even though there is no reference in the constitution that non-verbal or non-written actions constitute speech. Personally, I agree with the ruling, but it's difficult to prove definitively that a non-verbal act of destruction which many find obscene and offensive is what the founding father's had in mind. No wonder it was a 5-4 decision.

Or how about his opinion in District of Columbia v. Heller? The second amendment has a preamble. One would have to assume it was put there for a reason by the framers of the constitution, and the most rational reason would be to clarify the problem that the amendment is intended to address. That preamble mentions "well regulated militia" but not personal home defense against intruders. If personal defense against other citizens were the intent, why wasn't it clearly mentioned? The founding fathers kinda left the judiciary hanging on that one.

I think perhaps the best description I've heard for what to look for in a nominee came from Justice Scalia himself when he spoke with David Axelrod about who President Obama should nominate after Justice Souter's retirement.

"I hope he sends us someone smart."

That's what I want to see. Someone smart enough to challenge the other Justice's viewpoints and make them all better, while being willing to consider whether those opposing viewpoints might be correct.
 
Sydscott
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RE: Picking A New Scotus Justice

Mon Feb 22, 2016 3:03 am

I think the statistics on the Judiciary overall tell the story of what is going to happen.

Currently there are 73 Judicial Vacancies including the Supreme Court. Of these there are 31 Judicial Emergencies.

Currently there are 34 pending nominees including 12 waiting for a vote on the floor of the Senate. (That's after the 5 were recently confirmed)

Of the 34 nominees 4 are for Circuit Courts, 26 for District Courts and 4 for the Board of International Trade.

Considering the glacial pace of confirmations it'll be interesting to see how many Lower Court ones get through since none on the outstanding list look all that controversial and there are more than a few from States where there are 2 Republican Senators. (There is a Nominees from Nebraska and 2 from Tennessee waiting for confirmation votes while there are 2 from Louisiana, 1 from Utah, 1 from Indiana, 2 from Oklahoma, 1 from Florida and 1 from Georgia in the Committee at the moment) You would expect that the GOP would want the Judges which they have helped Obama to select to get a vote as quickly as possible. (Except for the Georgia one where 1 of the Senators from Georgia has already decided not to return his blue slip)

If this is the current state of lower Court nominations there is no chance of a Supreme Court Nominee getting through.
 
Ken777
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RE: Picking A New Scotus Justice

Mon Feb 22, 2016 2:38 pm

Quoting sydscott (Reply 32):
If this is the current state of lower Court nominations there is no chance of a Supreme Court Nominee getting through.

At this time I doubt if the nominee gets a vote.

What might change things is if the remaining Justices schedule votes on areas where the "tie" will result in a decision that the GOP does not want. That might move them, especially if some politicians say "It's your own fault".
 
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LAX772LR
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RE: Picking A New Scotus Justice

Tue Feb 23, 2016 7:42 am

Quoting WarRI1 (Reply 27):
I cannot even imagine the reaction to such a situation from the Republicans

Sorta fair play, considering how they had no shame whatsoever in utilizing the authority afforded to them by a 2010 Congressional win to gerrymander so egregiously as to thwart numerical democracy (circa 2012) in the House.
 
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einsteinboricua
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RE: Picking A New Scotus Justice

Tue Feb 23, 2016 12:16 pm

Two senators have broken ranks with McConnell and asked to have hearings:
-Sen. Collins from ME (expect calls like "RINO" and such).
-Sen. Kirk from IL (though his may be appearing moderate to avoid what looks like certain defeat in November).

Lisa Murkowski (AK) also seemed to break ranks, but she asked the president to uphold the (non-existent) tradition to not name a justice in an election year.

Chuck Grassley (IA) is flip-flopping, as is Ron Johnson (WI).

Seems McConnell's caucus is not as unified as he wished.
 
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casinterest
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RE: Picking A New Scotus Justice

Tue Feb 23, 2016 3:00 pm

Quoting einsteinboricua (Reply 35):

Seems McConnell's caucus is not as unified as he wished

4 or 5 won't matter. The numbers will have to hit about 8 or 9 before he begins to cave. I still expect hearings this year as once the primaries are over, the DEMS will hammer the GOP on the campaign trail about it.
 
D L X
Topic Author
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RE: Picking A New Scotus Justice

Tue Feb 23, 2016 3:50 pm

Quoting casinterest (Reply 36):
4 or 5 won't matter. The numbers will have to hit about 8 or 9 before he begins to cave

A giant rupture usually starts with a crack. This is a pretty big crack. If Susan Collins is shifting, expect Olympia Snow to be not far behind. They know their electorate, and they share it.

My suspicion with no way of knowing is that the 8 remaining SCOTUS justices themselves may also be sending quiet emissaries to the Senate saying "one year down a justice is unacceptable," and maybe even "the Senate's method to prevent a appointment is probably unconstitutional."

"Shall" is going to be the word of the year.

Quoting Ken777 (Reply 33):
What might change things is if the remaining Justices schedule votes on areas where the "tie" will result in a decision that the GOP does not want.

I think this is almost a given that it will happen, that a 4-4 tie will hurt a GOP partisan cause.
 
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einsteinboricua
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RE: Picking A New Scotus Justice

Tue Feb 23, 2016 5:04 pm

Quoting D L X (Reply 37):
Olympia Snow

You do realize that Olympia Snowe retired from the Senate in 2012, her seat taken by Independent Angus King....right?
 
Ken777
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Joined: Thu Mar 11, 2004 5:39 am

RE: Picking A New Scotus Justice

Tue Feb 23, 2016 6:46 pm

Quoting casinterest (Reply 36):
I still expect hearings this year as once the primaries are over, the DEMS will hammer the GOP on the campaign trail about it.

If that is the case then expect Obama to name someone within his traditional timeframe - leaving McConnell to take the hits during the primaries. Depending on the outcome of the primaries he might then let the GOP Nominee lead the way on holding hearings or waiting. Of course if Trump for Cruz s to be the nominee that might be a problem for the Senator. Now THAT would be fun to watch.
 
D L X
Topic Author
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RE: Picking A New Scotus Justice

Tue Feb 23, 2016 8:18 pm

Quoting einsteinboricua (Reply 38):

Quoting D L X (Reply 37):
Olympia Snow

You do realize that Olympia Snowe retired from the Senate in 2012, her seat taken by Independent Angus King....right?

Doh!!!!

had totally forgotten.  
 
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ER757
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RE: Picking A New Scotus Justice

Wed Feb 24, 2016 12:00 am

Quoting casinterest (Reply 36):
I still expect hearings this year

The Senate Judiciary Committee disagrees

https://gma.yahoo.com/senate-judiciary-republicans-vow-no-hearing-supreme-court-203556021--abc-news-topstories.html
 
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seb146
Posts: 23903
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RE: Picking A New Scotus Justice

Wed Feb 24, 2016 1:19 am

Quoting ER757 (Reply 41):
The Senate Judiciary Committee disagrees

And that would be fine, if they had a legitimate reason to. But, the next Senate will have to confirm a likely Hillary or Bernie nominee. How would that make them feel?
 
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einsteinboricua
Posts: 8706
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RE: Picking A New Scotus Justice

Wed Feb 24, 2016 2:39 am

Quoting seb146 (Reply 42):
Quoting ER757 (Reply 41):
The Senate Judiciary Committee disagrees

And that would be fine, if they had a legitimate reason to. But, the next Senate will have to confirm a likely Hillary or Bernie nominee. How would that make them feel?

If the Senate remains red, they'll claim it's a mandate from the public to not approve a nominee. Just you wait.
 
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WarRI1
Posts: 14195
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RE: Picking A New Scotus Justice

Wed Feb 24, 2016 2:45 am

Quoting einsteinboricua (Reply 43):
If the Senate remains red, they'll claim it's a mandate from the public to not approve a nominee. Just you wait.

Absolutely, a very good point. The party of no does not take no well when applied to them. A message from God most likely if they do retain control.  
 
Ken777
Posts: 10184
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RE: Picking A New Scotus Justice

Wed Feb 24, 2016 2:50 am

Quoting seb146 (Reply 42):
How would that make them feel?

Like they have lost BIG time. With Hillary (or Sanders) in the White House they will have lost the opportunity to sit down with Obama and negotiate who is nominates. Bernie would nominate the most radical judges possible, but would probably quickly learn that those don't get approved. Clinton would be able to name judges that are a bit more liberal than Obama could get away with - especially if an election returning a Democrat to the White House.

Quoting einsteinboricua (Reply 43):
If the Senate remains red, they'll claim it's a mandate from the public to not approve a nominee.

That might depend on who moves into the White House. That is a bigger mandate than the Senate gets. The Senate also has a problem if the GOP looses seats in November.
 
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einsteinboricua
Posts: 8706
Joined: Thu Apr 15, 2010 4:11 pm

RE: Picking A New Scotus Justice

Wed Feb 24, 2016 3:05 am

Quoting Ken777 (Reply 45):
Quoting einsteinboricua (Reply 43):
If the Senate remains red, they'll claim it's a mandate from the public to not approve a nominee.

That might depend on who moves into the White House. That is a bigger mandate than the Senate gets. The Senate also has a problem if the GOP looses seats in November.

We have 4 scenarios:

-Democrats win both Senate and White House = nominee likely confirmed (nuclear option will probably be applied in case GOP refuses to relent and filibusters).

-Democrats win Senate, lose White House = nominee refused hearings. Only a moderate candidate will be approved (Kennedy part 2).

-Democrats lose Senate, win White House = nominee refused hearings. GOP will claim a mandate to not approve "extremist, activist judges". If senators break to form a majority, filibuster will be enacted by GOP as a last resort.

-Democrats lose Senate and White House = filibuster is tool of last resort for Democrats. GOP could finish off the nuclear option and allow GOP president to appoint with simple majority, bypassing the Democrat minority.
 
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DocLightning
Posts: 22230
Joined: Wed Nov 16, 2005 8:51 am

RE: Picking A New Scotus Justice

Wed Feb 24, 2016 3:22 am

Quoting einsteinboricua (Reply 46):

-Democrats lose Senate, win White House = nominee refused hearings. GOP will claim a mandate to not approve "extremist, activist judges". If senators break to form a majority, filibuster will be enacted by GOP as a last resort.

One thing I'm pretty sure is that Mrs. Clinton will crack heads if that happens. I'm pretty sure she's willing to play a lot dirtier than Mr. Obama.
 
Mir
Posts: 19491
Joined: Mon Jan 05, 2004 3:55 am

RE: Picking A New Scotus Justice

Wed Feb 24, 2016 4:48 am

Quoting ER757 (Reply 41):
The Senate Judiciary Committee disagrees

So much for the party of "follow the Constitution". If they don't want to do their jobs, the voters should replace them with people who will.

-Mir
 
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DocLightning
Posts: 22230
Joined: Wed Nov 16, 2005 8:51 am

RE: Picking A New Scotus Justice

Wed Feb 24, 2016 5:08 am

Quoting Mir (Reply 48):

So much for the party of "follow the Constitution". If they don't want to do their jobs, the voters should replace them with people who will.

The President could sue...

http://www.thedailybeast.com/article...cking-a-supreme-court-nominee.html

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