Scalia, J.

Intrigued by the prospect of nominating Sri Srinivasan.

Approved by the Senate 2 ½ years ago by 97-0 vote for the not-very-conservative DC Court of Appeals.
Rafael "Ted" Cruz claims him as a friend, as do other conservatives.

 

I didn't say that. I said that they have a Constitutional duty to advise and consent. They're doing neither by pitching overboard their duty before the President has even nominated someone. If they want to get the Senate to reject the President's nominee, fine. That's what happened to Bork and Fortas. But this ain't that.

The rest of your post is irrelevant because it doesn't address this very basic issue.

We'll see what the GOP-led Senate does with the nominee once he or she is named. Until then, McConnell and the rest of them look like petulant children who aren't getting their way so they're going to quit and go home.

 

Right. Because more than 200 years of Constitutional scholarship can be reduced to a reading test.

The SCOTUS has been determining what is and isn't constitutional since the beginning. It didn't start with Roe v. Wade. Arguably, it started with Marbury v. Madison.

 

Wow. Defending Bork and Thomas?! Go for it!

 

And I'm not saying they should retire at any particular time. Their appointments are for life, and if they want to stay there, fine. I'm just sorry his tenure on the Court couldn't have ended with a rousing going away that he could enjoy.

 

But that's not true. Many nominees had been rejected by the Senate before Bork, starting with Rutledge in 1795.

Bork drew the ire of the Democratic-controlled Senate not just for his political views, but also for his actions during Watergate (the "Saturday Night Massacre").

 

Talented legal mind? Except for the part where he had never been a judge, nor had written any academic papers that would allow anyone to determine he was "talented". GWB had no business nominating the man, and he was rightly opposed. I love the way you guys keep coming up with individual nominees that were opposed and refuse to take notice that the Republicans are threatening to oppose ANYONE Obama nominates. It's a fundamental difference.

 

I'm just not that much of a history student I guess.

 

That's not my assessment. I merely refuted an assertion.

 

I'm pro-life with a few exceptions, but this is what the 9th Amendment of the Constitution says.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This means that the Constitution should not be considered an exhaustive list of rights. It works the opposite way that people are stating here. If the Constitution doesn't specifically give the federal government the power to control something, then the power lies with the states and the people. This is what the 10th Amendment says. People conveniently ignore the very last part of it.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

I'm a gun owner and have no problem with others owning guns, but there is a good case to be made that the 2nd Amendment has possibly been misinterpreted in DC v. Heller. The major Supreme Court cases before it had a different interpretation. Does the 2nd Amendment only refer to a well-regulated militia? As of right now, most gun owners do not belong to a well-regulated militia. In countries where every adult male is required to have a gun i.e. Switzerland, they are a part of a well-regulated militia up until the age of 34. If the Founding Fathers wanted everyone to own a gun regardless, then why did they throw "well-regulated militia" into the Second Amendment? What purpose does it serve?

 

I think Obama should nominate Bill or Hillary to the Supreme Court.

 

I know you didn't say it but it is, in fact, true. I never studied much history outside of standard high school courses.

 

I think many people reach a point of wealth where the power is simply more attractive than the prospect of a few more million in the bank.

Regardless, neither Bill or Hillary are qualified for a spot on SCOTUS. That isn't because of their politics but because 1) Bill was disbarred by SCOTUS to practice before it 2) neither have ever been judges 3) neither are legal scholars. They are both politicians who happen to also be lawyers. When you consider that Scalia suggested Elena Kagen as a potential nominee you see that the respect for a legal mind can absolutely transcend partisan politics. Elena Kagen isn't a politician. She's a lawyer and a legal scholar. Any political involvement she's ever had was as a lawyer. And her legal mind was evidently well respected by Scalia even though the two of them differ in many, many ways.

Though we can (and do) disagree with the outcome of many SCOTUS cases, there is little doubt that the people on the present court are highly respected legal minds who have the respect of other legal minds (even those who hold differing opinions on certain social issues). No one has appointed a wild renegade who simply threw the rule of law out the window.

 

Constitutional Amendment Needed

Essentially, there is nothing other than a possible series of recess appointments (in rare windows) to keep SCOTUS from being completely paralyzed by partisanship in the Senate.

Each party could essentially adopt the rule that they will not consent to any nominee until the same party controls both the White House and the Senate. "Only 5 justices sitting on the court? No problem! The American people have a chance to speak three years from now!"

I wish that we could have some sort of mechanism to provide incentives to avoid unnecessary delays in this process.

I think a constitutional amendment to allow automatic interim justices would be a nice way to keep the court functioning while also providing an incentive for confirming a permanent justice (in the interest of stability).

I would propose a system of rotating temporary justices from the circuit courts (thereby ensuring that the judges were already confirmed by the Senate previously), pulled at random for each case, with the only exclusion that the case didn't come from that circuit or circuits.

It would be both chaotic and orderly. There would be no way to predict which judge would sit on which case, so the President and the Senate would have a strong incentive to confirm a permanent justice, likely even a compromise candidate.

I know this isn't a perfect plan, and it has no chance of being implemented, but I'm just tired of seeing the process being made into a disaster.

 

If Obama appointed himself, the GOP would sign on.

 

There is an interesting period in January 2017 when the terms of the senate and the president overlap. So if the GOP wins the White House and the democrats win the senate there will be a 17 day period when the senate could approve an Obama SCOTUS nominee.

 

There are any number of qualified jurists who should be considered suitable to both parties. Though I disagreed greatly with Scalia, I also recognize that he did offer many incredibly sound opinions during his tenure.

At the heart of disagreement though is the notion that Scalia really didn't feel it right for the federal government to compel states to do things. And while I disagree with that notion, personally, I understand why a sensible person would take such a position given our nation's history.

If any of these published short lists are even somewhat accurate, there are some highly qualified individuals being considered for SCOTUS and the Senate owes it to the court and to the people to at least give that person a hearing.

 

The same could have been said for Chief Justice William Howard Taft when he was nominated.

 

This is true, but I don't think there is any realistic scenario in which the Democrats take the Senate but lose the White House.

That being said, strange things are happening this election cycle, so who knows?