U.S. Supreme Court Justice Antonin Scalia has died
nytimes.com
nytimes.com
I also found when reading transcripts of oral arguments that Scalia was really terrifically funny pretty often.
Once, I was doing some computer repair work for an attorney who was interviewing Scalia extensively for a book about Supreme Court oral arguments. It was late in the day, and all the other staff were gone.
The phone rang, and the attorney asked me if I would answer it since I was close, and tell whoever it was that he was busy. I picked it up and the voice on the other end said, "let me speak to x." I said he wasn't in. The voice says, "I know he's in. Let me speak to him please." I tried to deflect again, and he finally says, "This is Justice Scalia. I guarantee you your boss wants to talk to me."
Without thinking I piped up and said, "Oh, Justice Scalia! You won't believe who just walked in the door! Just a second."
Apparently Scalia thought that was hilarious and told the guy to pay me extra for popping off to a Supreme Court justice like that.
Edit: as a quick sidenote, I'd encourage everyone to actually read the oral arguments and the full opinions for important cases as they come up. The media is absolutely terrible about over simplifying or just straight up not getting the issues correct.
You will find that there is a hell of a lot of thought that goes into opinions, and there is much less predetermined ideology than the way these things often get painted.
I didn't have much respect for the man or the justice. As a justice, his interpretations were always based on a selectively warped view of history. As a man, he issued a steady stream of insults against all sorts of people. Specifically, he said of lawyers like me (the not-harvard crowd) "You cannot make a purse out of a sow's ear". And he regularly talked down to anyone he though not ivy enough to share the room. That sort of disrespect isn't forgotten. Nobody should ever take joy in the death of another, but I will not miss his voice on the court.
http://www.nytimes.com/2009/05/12/us/12bar.html?_r=0
This comment referred specifically to getting a clerkship, and he also admits one of his favorite clerks went to Ohio State.
In general it seems, he had a lot of bark, but no real malice, otherwise why would he be good friends with other justices, including of all people Breyer and Ginsburg?
Watch his many interviews re torture. The guy was no humanitarian.
According to the NYT source, he actually said, "you can’t make a sow’s ear out of a silk purse", referring to the Harvard crowd as silk purses but not to non-Harvard lawyers as sow's ears. He seems to be referring to his disdain for the quality of the education at the most selective law schools while complementing their qualifications of their students.
Then came Eldred v. Ashcroft. Larry Lessig, argued the case before the Supreme Court. In his retrospective on the case [1], Lessig describes how he built his argument on the Lopez/Morrison line of decisions which said that Congress's enumerated powers had to be interpeted so that they are structurally limited. In Lopez/Morrison, Scalia agreed with the argument that Congress can't regulate whatever they want simply by declaring it to be related to interstate commerce. Lessig's argument in Eldred was that a similar structural limit should apply to the copyright power: Congress shouldn't be able to establish effectively unlimited copyright "on the installment plan".
I want to be clear what I am claiming here. I'm not saying Scalia was intellectually dishonest because Lessig lost. I'm claiming it because (as described in the retrospective) the Court didn't even address his core argument. Even if Ginsburg didn't want to include it in her majority opinion (perhaps because she didn't agree with the Lopez/Morrison decisions), Scalia could have explained why Eldred was different in a concurrence, but he didn't. That's where I see the intellectual dishonesty.
[1] http://www.legalaffairs.org/issues/March-April-2004/story_le...
I didn't say the man was a saint or that he was always perfectly intellectually honest all the time. No one is.
But I think was a lot more of those things than he often got credit for. Some of you seem to forget that people who have different opinions than you are also people. And as such, they have the right to try to get those opinions represented. Scalia's attitude towards torture was repulsive in my opinion. But he represents the attitudes of a very large number of real people.
It's not like he's some kind of singular monster or something.
As for saying crass things, giving people shit when maybe he shouldn't have, well, we've all done that too.
I figure if there's one day you can cut a guy a little slack, it's the day he dies. Sheesh, if you can't find one tiny little positive thing to say about the man, I suggest that you aren't even trying. It's not like the man was pure evil.
I further suggest that you say nothing at all if you honestly can't think of anything good about him.
The vitriol in much of this thread is utterly tasteless and shameful.
“This demand for respectful silence in the wake of a public figure's death is not just misguided but dangerous. That one should not speak ill of the dead is arguably appropriate when a private person dies, but it is wildly inappropriate for the death of a controversial public figure, particularly one who wielded significant influence and political power.”
“...the key point is this: those who admire the deceased public figure (and their politics) aren't silent at all. They are aggressively exploiting the emotions generated by the person's death to create hagiography. [...] Those gushing depictions can be quite consequential, as it was for the week-long tidal wave of unbroken reverence that was heaped on Ronald Reagan upon his death, an episode that to this day shapes how Americans view him and the political ideas he symbolized. Demanding that no criticisms be voiced to counter that hagiography is to enable false history and a propagandistic whitewashing of bad acts, distortions that become quickly ossified and then endure by virtue of no opposition and the powerful emotions created by death.”
Source: http://www.theguardian.com/commentisfree/2013/apr/08/margare...
I'm not demanding that people shut up for all eternity and never criticize the opinions Scalia wrote. In this context, I think the Greenwald quote is a strawman. I've already made it clear that I disagreed with Scalia on many points.
But attacking a person on the day that he died is tasteless no matter what you think of him or her.
And I don't think there's really much to attack Justice Scalia on in terms of his personal life anyway. He was a close personal friend of the Notorious RBG, a devoted husband to one wife, Maureen, and father of 9 children.
Is that propagandistic whitewashing? No. It is not. Some people value it when politicians and judges live the life they assert publicly is the best possible life.
I don't want that life and don't agree that it's the best. But the man put his life where his mouth was.
The idea that a judge, or any Justice is just the sum of their soundbites regarding only the most highly media-ized opinions is truly preposterous.
Yes, I think Scalia came down on the wrong side of Citizens United, and also Obergefell. And there are others that I could cite where I disagree with him.
But there are many I could agree with, like Smith, where he strongly opined that the law needed a clearer use of plain language, and in fact, Scalia was one of the first on the Court to advocate plain English in legislation, contracts, and Court briefs.
I've edited hundreds of hours of video interviews with the Court on the topic of plain English in the realms, and it is clear to me that Scalia was the driving force that literally changed the Court's opinions on acceptable prose.
His influence on the language of the Court alone should win him a medal of some sort. Because this is good for everyone, not just partisans who happened to appeal to his politics.
Legal scholars and attorneys all over the country will be parsing and analyzing his jurisprudence for decades to come. There is no danger that people are going to stop thinking about the ways in which he was right or wrong.
Suggesting that people who ask to give it a day, or parse the decisions instead of the man is not misguided or dangerous. Greenwald is way off base here.
What I'm suggesting is that, like many of us, Justice Scalia was a man acting in good faith, serving his country at one of the highest levels. Regardless of how much you agree or disagree with his decisions, he was a human being and deserves a little respect.
And this is coming from someone who disagreed with him often.
The man was a human being. Perhaps wrong sometimes. Perhaps right sometimes. He does not deserve personal vitriol on the day of his death. Unless he turns out to be Hitler in disguise, I'm not sure he deserves personal attacks at all.
At best, Scalia represented the opinions of an opinionated and influential but not truly representative minority of the population.
Now - there's nothing in the constitution that says explicitly that the Supreme Court should be a representative body.
But the political reality is that judges aren't picked for the SC because they're the best legal minds of their generation - they're chosen for their legal minds and for their politics.
IMO, in a representative democracy, the political values of the judiciary and especially of the SC should be broadly similar to those of the population.
Did Scalia bring the SC closer to the values of the median population, or did he move it away from the median?
I think you have something in common with the people who don't like Scalia.
Scalia was one of those who, whether I agreed or disagreed, I always learned from when I read his arguments.
Yeah, retconning to twist everything that seeks to disturb one's bigoted and repressive worldview does take an extraordinary amount of thought, credit where it is due. I encourage everyone to not just read the opinions, but to be vigilant of this when doing so.
The true crime of this is that it leads reasonable people like yourself to the belief that his deplorable behavior is merely a case of "reasonable people can disagree intelligently".
Make no mistake, the outcome is predetermined based on his ideology. Reading individual opinions in isolation may tempt you to believe otherwise, but consulting his record over the long term will make it pretty clear.
Vigilantism, particularly against judges and justices for written opinions, is not the way to deal with laws and interpretations you find unjust. We must not fight the unjust with injustice.
Let us not fool ourselves into thinking that the legal outcome is necessarily the just outcome.
Calling the man names and suggesting it's a good thing that he's dead, is far more charitable than his worldview on morality.
The outcomes are pre-determined. Then they have to work backwards to justify them. It is extremely obvious when you read e.g. the Dred Scott or Korematsu decisions that were decided a long time ago, but it is still very obvious when you read recent decisions like Obergefell or Citizens United.
You are allowed not to respect him even if you don't think he was an idiot.
There are plenty of evil non-idiots.
>There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.
>If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility.
>“This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct.
>“Perhaps sensing the dismal failure of its efforts to show that ‘established by the State’ means “established by the State or the Federal Government,’ the Court tries to palm off the pertinent statutory phrase as ‘inartful drafting.’ … This Court, however, has no free-floating power ‘to rescue Congress from its drafting errors.’”
I don't think that's accurate. There is a position, albeit more in the academy than on the bench, that holds that judges should only in the rarest of circumstances hold that the actions of the other branches are unconstitutional. Scalia can't fairly be described as being an adherent of that school.
Rather Scalia was foremost an originalist, it's a school of legal thought that he helped pioneer as a law professor. Today judges and legal scholars needs to grapple with originalism -- agree or disagree you need to speak to it. And with Balkin and Amir's spin on it, to borrow a quote, we are increasingly all originalists now. It's can be hard to believe it now but it wasn't always like this. When Scalia was going to law school no one was poring over the diaries of the founders or the records of the reconstruction congress looking for clues.
Scalia was by no means the sole person responsible for the rise of originalism, nor the purest advocate for it, but he was certainly a major major contributor to it. That's what he will ultimately be remembered for, I think.
My understanding was that Scalia himself explicitly claimed to be following this philosophy. What makes you say otherwise?
When convenient.
The stay he supported on the Florida recount was rampant federal interference in a state matter:
https://en.wikipedia.org/wiki/Bush_v._Gore#Stay_of_the_Flori...
Indirectly, he gave us eight years of incompetence and Iraq, a horrible farce of a war.
I think our energies are better served changing the widespread voter disenfranchisement which does in fact distort the ability of our electoral system, as enacted in law, from representing the will of the people.
But voter suppression by Republicans in the South is well-known and widespread, because the GOP wins more elections when the turnout, particularly black turnout, decreases. Florida has a long history of voter suppression, which has been documented on numerous occasions: http://campaignstops.blogs.nytimes.com/2012/04/05/florida-ho...
So, in the Supreme Court vote, we have a majority conservative court that includes Scalia, a Reagan/Bush era appointee, who happens to favor the side of the coin that puts another Bush in the White House.
Scalia admitted that a recount was potentially prejudicial to Bush, and decided it was best to quash it. His action takes place in a sequence of many actions designed to bolster the GOP. Coincidentally, Scalia helped roll back the Voting Rights Act, once a milestone for Civil Rights.
http://articles.latimes.com/2013/jun/25/local/la-me-ln-scali...
Every single one of his positions may be impeccably argued, but it's a striking coincidence that he toed a clear ideological line on abortion, gun control, affirmative action and gay marriage, among many other issues.
I do not believe his stance on Bush v. Gore was neutral. He had a horse in the race; his horse won; and America was the worse for it. Good riddance.
The party that tips the scales for its establishment candidate with the superdelegate system can't complain about voter suppression. Clinton ended up with the same number of NH delegates even though Sanders won handily in that primary.
> The Commission's hearings spotlighted and this report highlights the harsh reality that despite the closeness of the election, it was widespread voter disenfranchisement and not the dead-heat contest that was the extraordinary feature of the Florida election.
> under the strictest standard, where only a cleanly punched ballot with a fully removed chad was counted, Gore won by three votes.[38] Under all other standards, Bush won, with Bush's margin increasing as looser standards were used. ... because of the possibility of mistakes, it is difficult to conclude that Gore was surely the winner under the strict standard ...
While in another analysis "Bush won under stricter standards and Gore won under looser standards"
And there are also the "spoiled ballots" where "people had punched and written in a candidate’s name", eg, for people who would "check Gore and write Gore". These were rejected, even though the voter's intent was clear. "The Washington Post found that Gore’s name was punched on 46,000 of the over-vote ballots it, while Bush’s name was marked on only 17,000"
But with all the attention on hanging chad, we didn't hear about that last issue. (I didn't until I read it just now!)
Well there's the problem. What do you do when you have ballots that are objectively unclear, like the infamous butterfly ballot? You can't invalidate the election and have a new one--apart from the logistical problems, the turnout is going to differ significantly based on the media attention and the knowledge that the cancelled ballots were so close.
The best option you have is to mandate judicial review of ballots well before the election. But even that doesn't save you in the situation Florida actually found itself in.
Also, singling out Scalia when four other justices voted with him is biased. It is also an incredible stretch to cast responsibility for an incompetence in handling an unanticipated war on any individual (especially in the judiciary!).
Yes, they all share some responsibility, but the amount is so miniscule given future actions and how many people were fooled and lied to so as to be almost completely disconnected.
A judge doesn't decide: a judge weighs evidence and then states which interpretation of the law they believe is correct.
If we had a judicial system arbitrated over by people who could simply say "I want this outcome" and make it so, then the country would and should crumble.
A county or municipality could, for example, decide not to participate in a particular vote, which could have discriminatory effect, but without being overtly discriminatory.
I'd say more "when useful". Many of his opinions were too convoluted to be considered convenient. He often went on and on without saying much of anything.
He believed in judicial restraint when it came to interfering with conservative political causes; but when it came to furthering those causes, he was an activist. The court should not protect LGBT Americans due to "judicial restraint". But when it comes to a healthcare law passed by Congress and signed by the President, the court should overturn it.
I could predict Scalia's rulings reliably by knowing only the politics of the case, not the law or the facts.
That's not my impression and I quickly found the following, but I can't say the examples are representative of the overall trend or if the analyses are accurate (and I can't say the same of your examples). However, they are hard to reconcile with your claim:
1) Scalia is known for taking a hard stance against criminal defendants, and has long advocated striking down Miranda v. Arizona and upholding the constitutionality of the death penalty
http://scarinciattorney.com/supreme-court-justices/antonin-s...
2) Defendants in criminal cases have a constitutional right to a competent lawyer's advice when deciding whether to accept a plea bargain, the Supreme Court ruled ... The ruling drew a sharply worded dissent from Justice Antonin Scalia, ... He angrily called the court's rulings a "judicially invented right to effective plea bargaining." The article notes, 97% of federal convictions and 94% of state convictions result from guilty pleas.
http://articles.latimes.com/2012/mar/21/nation/la-na-court-p...
3) Ring v Arizona: holding that the Sixth Amendment requires a jury [i.e., not merely a judge] to find the aggravating factors necessary for imposing the death penalty. Scalia dissented: He voted to deny defendants the right to a jury for those purposes.
https://en.wikipedia.org/wiki/Ring_v_Arizona
4) Lawrence v Texas: The Court struck down the sodomy law in Texas and, by extension, invalidated sodomy laws in 13 other states, making same-sex sexual activity legal in every U.S. state and territory. - in 2003! Scalia dissented, which if successful (and IIUC) would have sent defendant Lawrence to prison for having sex. Again, in 2003!
https://en.wikipedia.org/wiki/Lawrence_v._Texas
----
If the above is correct and I understand correctly: He opposed Miranda, the minimal requirement to inform defendants of their rights; opposed the right to an attorney for plea bargains, from which result >94% of criminal convictions; opposed the right to a jury for a essential aspect of death sentences; and voted to allow the state to imprison a defendant for having consensual sex with an adult.
I'm sure there are some grey areas, but I have a hard time seeing him as a ally of criminal defendants.
If you believe you should have a right you don't have, or that you should or shouldn't be sent to jail for a particular activity, the right people to contact and hold accountable are your representatives in the appropriate legislative body. Judges are only supposed to interpret the law, even if they personally do not agree with the most accurate interpretation. Changing law or creating new law is the province of the legislature.
I agree that's the ideal but we are talking about what happens in the real world, where clearly many judges' political and ideological views have significant influence. If not, why would the GOP care if Obama chooses the next Justice? Why is Scalia's passing considered a blow to partisan Republicans and ideological conservatives? A prominent attorney once said to me: Judges put on their pants one leg at a time, just like everybody else.
The point of my original comment (several levels up) and the person who responded is that Scalia indeed used his seat to advocate his beliefs.
I can't say I've agreed with everything Scalia has ever said, but there's plenty I did agree with as well. I'm definitely a bit concerned at where we could end up if a far more liberal Justice is selected to replace him.
Let's clarify the meaning of "conservative". It could mean a judge who interprets the law strictly, or it could mean a judge who uses his position for partisan conservative purposes.
I think Scalia was the latter.
Truly remarkable were his mental gymnastics allowing him to justify his activism as one of the above. Perhaps his strongest performance was his conclusion that money is speech, corporations are people, and therefore corporations are not to be limited in using their cash for political influence. But he helped the Koch brothers with fundraising, who were the biggest beneficiaries of that decision, so clearly he had to convince himself that what he decided made sense somehow.
Unsurprisingly, he can barely maintain that position with a straight face when confronted head on:
https://www.youtube.com/watch?v=UgQGJjQq4uk
Anonymous money via a corporate entity isn't a problem because "the reporters can find out" and the amount of money spent to influence politics is insignificant because "we probably spend more on cosmetics anyway". People really look up to this guy?
(edit: Actually, can't think of too "many" things off the top of my head where I fully disagreed with him. I did enjoy reading his written rulings)
In the coming days, it'll be interesting to see retrospectives on how Justice Scalia ruled on such issues as tech privacy and censorship. For example, in Brown vs. Entertainment Merchants Association (2011), Justice Scalia wrote the majority opinion which said that "video games qualify for First Amendment protection"
https://en.wikipedia.org/wiki/Brown_v._Entertainment_Merchan...
edit: More context on the ruling if you don't feel like clicking through: The 7-2 opinion struck down a California law that banned the sales of video games to minors, which had been signed into law by (of all the ironies), Republican Governor Arnold Schwarzenegger.
Basically, the court saw video games as art:
> Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection.
As described by Wikipedia:
> Scalia's decision also stated that the current self-moderated industry standards like the ESRB are operated effectively to regulate the sale of more mature games to minors, and that "filling the remaining modest gap in concerned-parents' control can hardly be a compelling state interest" requiring a law to enforce.
The two dissents were Justice Breyer (considered a liberal justice) and Justice Thomas, who is seen just as much of the conservative base as Scalia is. According to Wikipedia:
> Justices Clarence Thomas and Stephen Breyer dissented, each authoring a separate dissent. Justice Thomas, in his dissent, considered that historically, the Founding Fathers "believed parents to have complete authority over their minor children and expected parents to direct the development of those children," and that the intent of the First Amendment "does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians."
Justice Alito and Roberts, the 2 other conservative members of the court, concurred with Scalia's opinion, but had reservations about being too lax in regulating the content of video games:
> "There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show," referencing the book Infinite Reality which highlights the psychological effects of virtual reality, and argued that the decision "would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem.
He did an excellent job over the two day proceedings. It was fascinating to watch in person.
In a parallel event in the evening, I watched Scalia take questions in an open air pavilion lawn (with no security whatsoever, just an open event on campus). At one point an audience member asked him, "What's the most difficult area of law for you personally to judge?"
After seriously furrowing his brow and mind, he finally and sincerely proffered up ... "Indian (Native American) law".
My take on his answer - he found that area of law truly difficult as a strict constructionist.
There have been a great deal of 5-4 decisions since Sotomayor's nomination that in the future could easily fall the other way.
Edit;
My guess for nomination:
https://en.wikipedia.org/wiki/Sri_Srinivasan
He's a Stanford guy, Indian, already sailed through the Senate for a DC Court of Appeals position, disliked by Unions, and by all accounts a brilliant legal mind. He's successfully represented corporate clients (e.g. Skilling in Skilling vs. USA) and had a successful career in the private world.
This somewhat contradicts my first paragraph, but he's definitely to the right of Kagan or Sotamayor.
In this case, I doubt it applies. In theory Obama could pick a nominee closer to the center to avoid a tiresome confirmation battle, but I suspect there's a bigger bang for the buck in nominating fairly left-wing candidates and making the Republican Senate choose between looking obstructionist to the general public or looking weak to their base.
Could you explain why this might cost the Republicans votes? Their core voters would absolutely love them standing up to the "tyranny" of Obama. Even independent/undecided voters would understand that its reasonable enough to postpone considering how close the Presidential election is.
To be clear, I think it would be best to have it completed within 3 months, like the previous 10 nominations to the court but I don't think it will cost the Republicans at all to postpone it till next year.
However, my impression is that independent voters prefer action to inaction and typical behavior to atypical, and will be susceptible to 'the Senate is refusing to do its job' arguments from the President and the Democratic presidential nominee, as well as 'Supreme Court appointments are usually approved in XX days' arguments from the press.
We shall see.
Are there any examples where a liberal president nominated a conservative or vice-versa?
(I'm not talking about situations where someone was appointed as a conservative and moved gradually left, which actually happens to all justices.)
By no means a rule, but a tradition at least.
As tptacek said, political labels aren't necessarily objective, so this graph would differ depending on the methodology. It's also a little harder to measure justices' leanings because there are so few data points.
http://talkingpointsmemo.com/dc/antonin-scalia-fighter-priva...
He was intensely conservative.
So between the two justices, Alito + Roberts is definitely to the right of Rehnquist + O'Connor, but pretty moderate considering the possibility of two far-right justices.
I've never heard of that and have reason to think otherwise: Presidents see the Supreme Court appointments as a chance to leave their mark on the judiciary. Could you provide some evidence?
So a real compromise candidate might be possible. It'd likely depend on Obama and the senate Democrats as well, though.
it's actually pretty unlikely. Fivethirtyeight has a bunch of good articles about this, but the simplest piece of information pointing to it: Trump is intensely disliked by about 60% of the voting public. He's got a vocal and enthusiastic following, but once you go outside that bubble, he simply doesn't have room to grow.
I voted for Bush twice, McCain, and Romney, and I'll vote for either Hillary or Bernie (two candidates I can't stand) over Trump, and I'm far from alone.
Bush and Cruz are in my "hold my nose and vote" tier.
Carson isn't presidential material IMO.
That's bad, because it will perpetuate party politics. No matter how much people dislike the candidate nominated by their party, they'll think they've got no recourse but to vote for him/her lest they lose the Court.
All the Republicans I know who say they'll vote for Clinton before they'd vote for Trump - and there are plenty of those - won't follow through. The chance we might have had for an olive branch, reaching out of the viper pit of party politics, is now gone.
Those two sets intersect rather less than the Honorable Gentleman from Kentucky would like.
But the idea that the "American People" wouldn't have a say with an Obama appointment is absurd. He was elected with a clear majority and Presidents are elected for four years, not four years minus whenever the next presidential race gets going.
I know you've expressed elsewhere (edit: in this thread) that Republicans have already made it clear that they won't do an appointment this presidency (and you're probably right that they're trying to set themselves firm in this as quickly as possible), but I can't imagine a scenario where Obama doesn't put forth a nomination post-haste. I also cannot imagine 11 months of blocking a SCOTUS nomination and leaving the court with 8 members.
But that's exactly what the Democrat-controlled Senate did after Justice Abe Fortas resigned in disgrace in 1969. They knocked down Nixon's first two nominees, and Fortas wasn't ultimately replaced by Blackmun until a year later[0][1][2].
[0] - Several Wikipedia pages say May 12, but:
[1] - this one says May 17: https://en.wikipedia.org/wiki/Unsuccessful_nominations_to_th...
[2] - this page says June 9: http://supremecourthistory.org/timeline_blackmun.html
This isn't the first time this has happened. The Supreme Court will function just fine with 8 justices.
Blame John Adams!
I like to imagine he and the Democrats in general might actually end up looking better if that's how it plays out.
In any event any parliamentary ruling is appealable to the floor where it is subject to a majority vote. The is the basis of the so-called nuclear option.
McConnell's hand can be forced if there is a majority willing to do what it takes to force it. If he has the procedural support of his caucus (even if they disagree on the ultimate question) he can prevent a vote from coming to the floor.
Edit: I misread the first sentence. Mea culpa.
The right-winged politicians are posturing to make this a presidential election issue, maybe even a big one.
Electing a president who will in turn appoint a SCOTUS Justice may sway more people to vote. Perhaps the the politicians believe that they can use the normal wedge issues (abortion, death penalty, guns, etc.) to have a strong showing on election day.
I would tend to agree that an open SCOTUS seat would motivate more conservatives to vote. But, these things have a way of back firing for politicians and a lot can happen between now and November.
Of course. The question is, why do the Democrats let the GOP get ahead of and frame every debate? Will they roll over this time or draw every bit of blood they can and make this position cost the GOP more and more politically until they give in.
Unfortunately, I would not be surprised if they roll over. You'll know they did if they don't respond soon to McConnell, or not with an effective message, and Obama nominates someone as far to the right as he can stand.
Deleted comment
Presumably he's talking about selecting a replacement to the supreme court. Is this accurate? How long does this process typically take?
The general consensus, however, is that the democrats have a good chance at winning back the senate.
So the question for republicans is, do they accept a moderate candidate now, or stall until the election and risk having a democratic senate (and president, but that race is far too early to have a sense of, unlike the senate), and take the heat for taking 3-4 times as long as usual to confirm a justice, and have any cases under review potentially go 4 to 4 on the court, which means the lower court rulings in those cases stand, or the justices can request that they be re-argued.
For the democrats, you've got the current situation vs a chance to get someone more liberal in during 20 days of obama + the next senate (although pushing a nominee through in jan 2017 would have terrible optics), or waiting. Your risk is that the republicans win the senate and the president.
My sense is that the democrats will put forth someone fairly moderate, but it's hard to tell if the senate will stall it out or not. It likely depends on the nominee.
The Republicans hold all the cards, but the dems are probably in a slightly stronger position, because they only need two republican senators on the judiciary to decide that they'd rather not risk it, and two more in the full senate.
It's not just that it's an election year, but that it's a closely divided Senate with a liberal President replacing the most reliable and influential conservative on the Court.
The ones who matter most are probably Flake and Tillis since they're the least conservative among the judiciary members not up for reelection.
I think we'll see an initial stall for sure, and then in a few months it will depend on how polls are going, both in the senate and national races. Hillary + dem senate is the nightmare scenario for republicans, so they're likely to make a deal if that's still a strong possibility in July.
Obama will not replace Scalia. I like the Dem's chances this cycle and so am not despondent about this.
They will likely also have pro forma sessions to deny a recess appointment as well [1].
[1] https://en.wikipedia.org/wiki/NLRB_v._Noel_Canning
One option Obama would have that might fill the seat before his term is up is to go back to providing a real list of a number of candidates instead of the "list of one". The chance of this happening is near zero of course; I guess he'll nominate someone a bit closer to the center and let them be stonewalled, something which may help the democrats in the election.
I imagine a lot of good candidates, knowing the nomination is destined for limbo, might opt out of the media circus and decline it.
Of course if the Dems win the election the incentive to stall fades considerably.
There may be other similar situations but those are the ones that came to mind.
Raw data is available at http://www.senate.gov/pagelayout/reference/nominations/Nomin...
I guess an interesting question is whether being nominated now and not approved or stonewalled until withdrawn disqualifies you from being nominated again. I think the default answer is 'yes' (disqualified) although various circumstances could allow it to happen.
This seems like very unreasonable estimate. Being election season, the Republicans will be sensitive to public opinion and stalling for 9+ months could cement the perception of being obstructionists. If Obama nominates a somewhat moderate candidate, they may decide to live with it.
Edit for some further thoughts: I could see this play out several different ways. Dems could potentially stall on the nomination, to maximize the "gamesmanship" rhetoric leverage of any Republican opposition to the nomination. But if the nominee were confirmed by June, the whole thing might be largely forgotten by the election in November. So potentially, we could see a very quick confirmation. This definitely is a massive boon to the Democratic party; they've just been handed a wildcard and have every ability to choose exactly how to play it.
I'm no fan of dehumanizing death, but Scalia's death will have enormous ramifications. Keep in mind:
1. Burwell v Hobby Lobby (private corporate responsibility for birth control re: Obamacare) was 5-4
2. Legal pragmatism arguments against criminal justice matters under equal protections grounds have already been very close to succeeding (or actually have). Could mean the end of the death penalty in the US.
3. Scalia opposed Guantanamo inmates' ability to challenge their detention in US Courts in the Boumediene v Bush decision
4. Scalia consistently opposed expansion of national healthcare
5. Citizens United was 5-4 with Scalia supporting the decision (this is what created superPACs), so potentially this could result in a limitation of corporate personhood
6. Potential liberalization and modernization of intellectual property rules, particularly in context of software (see: denial of certiorari of https://en.wikipedia.org/wiki/Oracle_America,_Inc._v._Google...)
Further edit: SCOTUSblog analysis on the political situation: http://www.scotusblog.com/2016/02/first-reactions-on-the-pas...
I think that phrasing is deceptive. The question isn't whether corporations are people with rights, but whether people retain their rights when they coordinate the exercise thereof through a corporation, which includes non-profit groups. It should be a red flag that abolishing that right would abolish the free press without some special exemption. That requires the government to start defining who is press and who is not, which if anything is a quickly fading distinction. The distinction between MSNBC/Fox News and a SuperPAC is not so clear. (Thankfully, we have such an exemption because the first amendment particularly protects the freedom of the press, in addition to the general freedom of speech. There's a lot of examples of redundant provisions in the Constitution, and I think this is one of them. The freedom of the press flows naturally from all of the other freedoms in the Constitution.)
The particular case was actually about a political group that made a film criticizing Hillary back in 2008 during the primary season. The government wanted to ban them from promoting it during the two months leading up to the election. How can anyone think that's proper?
Let's say that you and I shared a passion for a political idea. We want to convince people of it and effect change through the political process. What would we do? We'd set up a non-profit (a corporation), convince donors of our cause, spend their money on pamphlets, broadcast ads, internet ads, discussion forums, etc. We'd support candidates that back our idea, and oppose those who oppose it. That is freedom at work and it's exactly what the Citizens United decision protects.
You are incorrect. Citizens United was decided based on the notion of corporate personhood -- the notion that corporations themselves have rights as if they are a person. There are very succinct and upheld limitations on individual monetary contribution to campaigns.
However CU broke that by giving people the ability to launder political money through a corporation.
Also, most non-profits (those 501c3s that want tax exemption) can not do any sort of campaigning. Those that do are subject to taxes.
CU said specifically that corporations are people that can "say" (aka spend) whatever they want to get their message across. People can make individual donations to support this effort essentially getting around existing campaign restrictions.
Money does not equal speech and there was a good reason monetary donations were restricted. By removing the restrictions they have reduced the ability of the average person to be heard because they now have to buy a bigger megaphone than the billionaires.
You really do need to read up on corporate personhood and election law. Let me guess... FOX News fan?
It's right there in the SCOTUS decision itself, spelled out clearly and unambiguously.
"The principle at stake is not peculiar to unions. It is applicable as well to associations of manufacturers, retail and wholesale trade groups, consumers' leagues, farmers' unions, religious groups, and every other association representing a segment of American life and taking an active part in our political campaigns and discussions .... It is therefore important -- vitally important -- that all channels of communication be open to [all of the above types of associations] during every election, that no point of view be restrained or barred, and that the people have access to the views of every group in the community."
Scalia's comment in CU itself is relevant here:
"The [First] Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speaker"
In this case, he's referring to the "category" of a corporation, which is referenced in the 1886 decision Pembina Consolidated Silver Mining Co. v. Pennsylvania:
"corporations are merely associations of individuals united for a special purpose"
which parallels the 1830 statement in Providence bank vs Billings by Chief Justice Marshall:
"The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men."
and even further back, to the 1790 case The Rev John Bracken v. The Visitors of Wm & Mary College, which was in essence about the question of whether those running the college were bound by the decisions of its original founders or whether they had the right to, collectively, make changes according to their assessment of how to best carry out the common purpose for which the college existed.
While not directly about speech, the 1819 case Dartmouth College v. Woodward establishes limits on the legislature's ability to modify private contracts, such as the charter that established Dartmouth, and a series of later decisions specified that any modification must not harm shareholders, founders, members, etc.
And Santa Clara County v Southern Pacific Railroad Company (1886) establishes (indirectly) that corporations are entitled to the same type of 14th amendment due-process and equal-protection rights as individuals. Basically, just because people have organized into a group doesn't mean the government can treat them worse than it would if they were not corporately organized.
For the immediate future, even a 4-4 court is a marked improvement from the pov of democrats.
While I believe the immediate announcements are token and positioning (the more obstinate they appear, the better the odds of a more moderate candidate) it doesn't make me LIKE it any better.
Which is why they are likely to put up token opposition - enough to placate their supporters. Everyone panders to the center when election time comes, because that's where most of the voters are. This is why the rhetoric is extreme during the primaries, but is significantly toned afterwards.
This isn't unprecedented. Obama is a lame-duck President facing a majority opposition party in both Houses of Congress. His influence is close to its nadir. Scalia is a lion of the GOP. It would have been hard to replace him in 2015. It's probably impossible in 2016.
The GOP is making Scalia's replacement a campaign issue. So be it! If the Democrats win, they'll have earned a mandate to replace a lion of the Republican Party with a committed liberal.
"Them" being Republicans, or Democrats? Trying to understand.
https://twitter.com/conncarroll/status/698626902160838656 https://twitter.com/conncarroll/status/698627015159644160
https://twitter.com/tedcruz/status/698634625246195712
The Senate had been (apparently) filibustering presidential appointments quite a bit more of late, both Democrats against Bush and Republicans against Obama, concluding in the Republican-devised "nuclear option" being used by the Democrats in 2013. Nominations by the president now only require a simple majority, not a supermajority, with the specific exception of Supreme Court nominees.
https://en.wikipedia.org/wiki/Filibuster_in_the_United_State...
It would not be surprising at all to see the same sort of filibustering that was previously applied to both Obama and Bush's nominations be applied to whomever Obama nominates to the Supreme Court.
How's that again?
The "nuclear option" was named by Trent Lott (R-Miss.) in 2003 and first seriously threatened by majority leader Bill Frist (R-Tenn.) in 2005. It got actually invoked by the Democrats in 2013, in the reverse situation: the Democrats had a majority but not a supermajority of the Senate, and a Democratic president.
But that's the process for one candidate. The whole process of replacing a candidate will take longer.
The game theory of this is interesting, for instance, what if Obama nominates someone that is seen as more moderate than someone that Hillary or Sanders would nominate?
Hillary, in my opinion, is whatever she needs to be to get her way. My biggest concern with Hillary is that in order to win the high office, she'll have to embrace the progressive mantle. If so, her first appointment would likely be one that leans progressive, if only to ensure that she keeps the peace enough to be re-elected to a second term.
edit/ Some words.
Both Roberts and Alito went through on timelines similar to judges nominated by Reagan, H.W., and Clinton.
The only nomination from Bush that faced extreme opposition was that of Harriet Miers, and that was from conservatives, not the democrats.
Especially if Sanders and Trump stay in the race.
Better the devil candidate you know, etc etc
The upcoming election is a general election; they need to appeal to more than their base. In the past year the Republicans in Congress have been trying to shed their obstructionist, irresponsible reputation as the party that shuts down government, holds the solvency of the U.S. hostage, etc.
(A Democratic Senate slow-rolled or blocked innumerable Bush judicial nominees, some for several years, and the Democratic Congress shut down the government several times under Reagan. Both sides have the power to do these things, and have exercised them freely in the past, and somehow the world continued to turn.)
I'm pretty sure that's not the case. For example, I know the recent GOP Senators used dramatically more fillibusters than anyone before. Also, I'm pretty that some basic fiscal issues like raising the debt limit weren't politicized before recently.
> somehow the world continued to turn
I think this is a dangerous belief. Actions, especially by the U.S. Senate, have serious consequences for millions to billions of people. The world merely continuing to turn is not a standard; there are serious problems in the world that need to be addressed well, or human welfare in the U.S. and elsewhere will suffer greatly.
I wouldn't be surprised if there is no action until after the election (if a Democrat is elected), or the inauguration (if a Republican is elected.)
It's never been used for a supreme court judge.
This will most likely be the first time and it will be a new low.
There's nothing I can think of in the Constitution that prevents serving under the executive and judicial branches simultaneously. In fact, John Marshall did exactly that (Chief Justice & Sec. of State, iirc).
source: the sidebar here https://en.wikipedia.org/wiki/John_Marshall
Edit: I think the rule in question is the Ineligibility Clause: https://en.wikipedia.org/wiki/Ineligibility_Clause. Contrary to how it was phrased in the WW, this seems to only affect serving in the Legislative branch and the Judicial or Executive branch at the same time. I don't think it in itself puts limit on serving in the Executive and Judicial branches simultaneously.
It doesn't - John Marshall served as the Secretary of State and Chief Justice of SCOTUS at the same time under John Adams.
That has happened once at the state level. It didn't end well.
source: http://supreme.findlaw.com/supreme_court/justices/nopriorexp...
http://www.scotusblog.com/2016/02/what-happens-to-this-terms...
http://www.chicagotribune.com/news/ct-supreme-court-scalia-d...
Source: 28 U.S. Code § 1 https://www.law.cornell.edu/uscode/text/28/1
Do you also know how split decisions are handled now?
Think about the Supreme Court as a very small Senate. The individual justices do not make decisions. The whole body does. They do operate a lot like a legislative body procedurally.
I wonder if it might be better for the Democrats to not even try to get a nominee through before the next election. From what I've seen liberal/progressive leaning younger voters are more likely than conservative leaning younger voters to feel that Congress and to a lesser extent the President are totally beholden to corporate lobbyists and that voting doesn't make a difference so why bother.
An open Supreme Court position at the time of the election could give Democrats something to focus their get out the vote message on (for both the Presidential election and Congressional elections) that might get through to some of those younger liberal/progressive leaning voters.
If they get through, great! A Democratic appointment on the Court!
If they don't, it can be a call to arms and a constant rallying cry showing how different the Right and Left are. We are not just electing the next President for four years but the next Justice for the next 30.
If there is anyone with any motivation to vote whatsoever they will vote and demographics show that is good for Democrats.
My guess is that Republicans are scrambling right now to posture for a fight but actually trying to get a moderate they can live with nominated so they can confirm them and not face that and tout themselves as reasonable and willing to work across the aisle despite their well earned reputation of late.
That unelected, life-tenured judges exercise this much authority over us, that they routinely subvert our collective democratic will as expressed through elections and referendums, that people even defend their votes for President on the basis of what kind of Supreme Court nominations they will likely make, does not suggest a healthy democracy.
Nor should it! The judiciary is at its best when it is overturning the will of the majority in order to defend the rights of minorities.
The Court did precisely that in its most celebrated cases (e.g., Brown v. Board, Lawrence v. Texas), and upheld the will of the majority in its most infamous cases (e.g., Dred Scott, Plessy v. Ferguson, Korematsu v. United States).
Lessig also clerked under Richard Posner, considered by many to be the top legal theorist in America.
http://www.nytimes.com/2016/02/14/us/antonin-scalia-death.ht...
The American people should have a voice on this matter, and if the shoe was on the other foot, the dems would be saying the same thing.
That has nothing at all to do with how justices are confirmed. As others have pointed out, the last two Obama appointed justices were appointed in less time.
America has lost a towering intellectual, and for that, I mourn today.
EDIT: Dear me. I hope the downvoters are just doing it randomly, and not pissing on Scalia's memory by actually interpreting my prose!
However, he's still a terrible person, and here's the quote yours spawned from:
“There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”
edit: This was originally in reply to a misquote that has now been deleted. Mods have now made it a parent comment.
The combination of incivility and internet buzzphrase is toxic for HN. Please don't do this when commenting here, regardless of how you feel about someone.
We detached this subthread from https://news.ycombinator.com/item?id=11096095 and marked it off-topic.
I mean, I don't collect data on how often these things appear, but that's the one I was reacting to.
This makes him a terrible person, because he is directly standing between an innocent person (or people) and their freedom and the justice this country promises.
It's calling a spade a spade. Civility doesn't (edit: shouldn't) trump that.
> I find the requirement of "civility" over "truth" to be rather off-putting.
That would of course be absurd, and there's no such requirement.
People regularly conflate judgment made from strong feeling with truth, and so they blast out the former with a righteous sense of legitimacy. Those with the opposite judgment feel equally so entitled. This dynamic is destructive, both of civil discourse and of the search for truth, so we needn't choose between the two.
Is there anyone you would call a terrible person? "No" is an OK answer here.
Are any of them people you did not know? Again, "no" is an OK answer here.
I'm not the poster you're responding to, and I'm sympathetic to the idea that it's not constructive to call someone a "terrible person", but if we are to ever call people terrible, it seems like there are some public policy actions that might be sufficiently cruel or immoral to justify calling someone a public figure who sought and used extreme power for extreme evil a "terrible person" even without having first-hand knowledge of that person's day-to-day life.
Or we could limit our condemnation to their actions and advocacy, not their whole person.
Yes, some of them are people I don't know.
Would I say it on the day their death was announced? Tougher question.
Candidly: if I felt like most of the people calling Scalia a "terrible person" were well acquainted with his work, beyond sound bites like "opposed marriage equality" or "thought we should shoot condemned convicts first and then hear their appeals", I wouldn't chide. But it seems like the more cut-and-dry an opinion you get about Scalia, the less well-informed and helpful it turns out to be.
More so than in any other government position, it is possible for a Supreme Court justice to be wrong on the substance of an issue and right on the process, and even for the process to outweigh the substance if it means 10, 50, 100 future cases are handled better.
Texts, traditions and principles are references. Sometimes they're wrong. Also, as a non-american I find it absolutely absurd that for a lot of people there is this fascination with "the constitution" as being this all-powerful scripture and that's what the supreme court is supposed to defend, not the more abstract aspects of morality.
It's all nonsense of course - all supreme justices know exactly what kind of power they have, why they have it and how to use it ... and the constitution is really just a reference.
I remember reading some of Scalia's comments (I believe on marriage equality) explaining away how the supreme court should not "redefine" etc but as another poster said, it's easy to say that when convenient and forget it when even more convenient. Those comments could be applied to just about every single case...
The Founding Fathers et al so disliked the injustice of tradition they started a new country.
To your other point about being unaccountable, the Supreme Court is checked by the balance of power between the three branches as much as the other two are. They aren't all-powerful beings, and I've seen it around this discussion that they hold unmatched power - which just isn't true.
Guys like Scalia see the role of the justice system as systematically enforcing the laws as written. They believe that as they are unelected, they have no moral right to simply make things up as they go along, and thus that their work should be mechanical and predictable - even if it results in a suboptimal outcome.
Now, the implications of the above quote are pretty disturbing, at the same time, can I really disagree with it? I am not a constitutional scholar and don't know if it's accurate, but if the constitution really has nothing in that allows for a retrial if new evidence comes to light, that sounds like a bug in the constitution and would need to be fixed. If you skip that bit and ask judges to just do what makes sense to them instead of what's written, then the democratic process ends up being bypassed.
So even if someone disagrees with that point of view, I'd hope they can at least understand it.
It is also more complexly hypocritical, as his opinions are constrained by the Constitution only as much as those of the other justices, which is to say only when convenient.
Remember, there's a reason that the process and traditions are followed. It helps provide (theoretically) a uniformity of enforcement.
In the case of your quote, the exact same mechanism for "evidence found after the trial changes to innocence" is quite possibly used for "evidence found after the trial changes to guilty". It nudges up against double-jeopardy.
There are other problems with such an approach.
A slippery slope evidentiary argument that would tend to exonerate is not a concern that it would later be applied to retry or change to guilty a previous acquittal, IMO. The courts have been quite clear on this.
I'm for religious freedom but a Supreme Court judge who literally believes in evil and refuses to read news contrary to his politics beliefs, seems dangerous.
I am no fan of religious people, but a LOT of people are able to do their job properly despite of holding these crazy beliefs, and at the same time a lot of atheist do crazy stuff without having to resort to these beliefs.
I do not believe in supernatural forces compelling man to be evil. The idea that a judge believes in Satan is absurd and dangerous.
And no, it is a tragedy of modern civilization that our Presidents must believe in silly mythological stories.
Freedom to be run by stupid people?
I would much prefer an atheist president but that's not likely to happen any time soon.
It's the only way they can try to run out the clock on Obama.
Or come up with some kind of fake moral outrage.
Can you imagine Trump picking the next three Supreme Court judges? It would set back America for decades.
Two words: recess appointment. They've got a recess coming up later this year.
During the 110th Congress, the Democratic leadership of the Senate specifically blocked Republican President George W. Bush from making any recess appointments with the use of pro forma sessions.
In 2012 President Barack Obama attempted to make four appointments during a pro forma session, calling the practice of blocking recess appointments into question. However, on June 26, 2014 the Supreme Court of the United States determined that the President had improperly used his presidential power to make these appointments stating that while the Senate was in recess punctuated by pro forma sessions the period of time between the sessions was not long enough to invoke such power.
Which made them technically not in recess even though no business was done.
And the court ruled that was fine.
Just just put someone there to gavel in each day and they are technically in session.
Ironically the court itself ruled that is perfectly okay to do.
Senate is the ultimate politics slimebowl of tricks, they are master level.
[1] https://en.wikipedia.org/wiki/Recess_appointment#Legitimacy_...
See also rules for allowing legislation to become law, or deny same, without explicit action. Pocket veto and default approval can both happen in this manner:
EDIT: It directly counters the argument that Bernie supporters are naive to risk a more leftist candidate who would have a lower chance of being able to appoint justices.
As for this post, experience has taught us that when a story crosses a certain magnitude, there's no stopping it from getting discussed on HN, so we may as well have a single thread.
I find that really difficult to believe, but you'd have access to stats and I don't. Maybe just confirmation bias on my part, or maybe disagreement on what's "outright political."
> As for this post, experience has taught us that when a story crosses a certain magnitude, there's no stopping it from getting discussed on HN, so we may as well have a single thread.
Fair enough, I suppose.
It seems the partisanship in congress is not just congress, it's all Americans. (I do wonder which caused which.)
Reading the comments, insults and battles in the thread, ouch, and wow!