Comment by nbadg | Hacker News Reader

Comment by nbadg | Hacker News Reader

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Unlikely to be correct re: nomination, though it's difficult to know how the election will effect the confirmation process, and vice versa. Kagan was nominated May 2010 and confirmed August 2010; Sotomayor was nominated May 2009 and confirmed August 2009. I'm inclined to expect a nomination sooner rather than later, potentially of a candidate with very strong Democratic support. If Republicans oppose the nomination, that could be used as political leverage against them during the election.

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...

>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

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.

> whether people retain their rights when they coordinate as a corporation.

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?

GP is correct, you are incorrect.

It's right there in the SCOTUS decision itself, spelled out clearly and unambiguously.

It's also fairly consistent with past SCOTUS decisions, like the 1957 decision United States vs Auto Workers:

"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.

Of course, the fear that democrats may take both the presidency and the senate might motivate senate republicans to make a deal now, since there's a nonzero chance an immediate deal comes with maximal leverage.

I just don't see republicans as that cautious.

Nor do I in general, but Mitch McConnell is. He strongly prefers a nominee constrained by Grassley rather than by Manchin.

For the immediate future, even a 4-4 court is a marked improvement from the pov of democrats.

OK, but if they do not oppose, their supporters will not support them in the election. They have a duty and obligation to oppose.

They may find themselves between a rock and a hard place.

> They have a duty and obligation to oppose

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.

They have a majority of Senate. They don't need token opposition. They can just decide, as Mitch McConnell has already said, that this is a rare opportunity for the people to vote directly on the direction they want to take the court, and that's that.

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.

Obama is not a lame duck president until his replacement is nominated and then elected. That happens in November.

That depends on whose definition you use, but this discussion is mostly about precedent; look up the "Thurmond Rule" to see why technical strictness about the term "lame duck" isn't really an issue here.

The Thurmond Rule, which is amorphous and inconsistently applied, only applies when an incumbent has "six months or so" remaining in his term. We are still several months away from that excuse being valid.

Will the central-mass of the voting public be amused by yet another "obstructionist move" by Republicans? That is how it will be spun by the Democrats: the ads will basically write themselves ("instead of working, the GOP is shutting down government. Again")

Refusing to confirm a nominee isn't "shutting down the government", and speaking as a liberal and moreover a supporter of the Democratic coalition, I don't think our side does itself any favors by pretending like the GOP's entirely predictable refusal to allow Obama to appoint a Supreme Court justice on his way out the door is unprecedented or harmful.

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.

An _incentive_ to oppose I can see. But I see no duty or obligation to not do your job for 11 months just because you don't like it. Brinksmanship may be a common part of the job, but it's not in the job description.

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.

> If Republicans oppose the nomination, that could be used as political leverage against them during the election.

"Them" being Republicans, or Democrats? Trying to understand.

It will be interpreted as Republicans shutting down the government... again. Moderates and Independents, and Centrists on both sides tend to strongly dislike that, and it could swing the election to a Democrat victory.

That might be the case, but stalling a justice nomination isn't as severe or visible as a government shutdown and might not get the same level of attention.

I think it's far easier to sell the argument that the voters should decide on who gets to nominate a replacement for Scalia, than that we should shut down national parks or whatever. These aren't remotely the same type of "shutdown".

wait didnt the voters decide when obama got reelected? he's still the president right?

They also decided when they gave Republicans control of the senate.

No it won't. The Supreme Court will function just fine with one open seat. Ties affirm whatever the lower court decided. Whole Supreme Court terms have elapsed, within the last 50 years, with empty seats.

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