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Obama Nominates Merrick Garland for SCOTUS

knowell, do you believe Senate Republicans should block any Obama nominee?
 
knowell said:
It is interesting that the board libs are not advocating for the best person to become justice, but the one that would inflict most damage to republicans if blocked.
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I happen to think that Sri is eminently qualified to be a justice and that fact is why he would inflict the most damage to the Pubs if blocked.
 
knowell said:
It is interesting that the board libs are not advocating for the best person to become justice, but the one that would inflict most damage to republicans if blocked.
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I mean Sri Srinivasan is arguably the best person to become a Justice. The guy was one of the most highly regarded Supreme Court lawyers in the country and now is a judge on the most important Circuit in the country. It's basically the same resume as John Roberts
 
MysteryMen said:
I mean Sri Srinivasan is arguably the best person to become a Justice. The guy was one of the most highly regarded Supreme Court lawyers in the country and now is a judge on the most important Circuit in the country. It's basically the same resume as John Roberts
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The same people calling for the Senate to block any Obama nominee also think Roberts is "too moderate," which goes to show how far removed these people are from reality.
 
The conservative legal commentators seem to be out in front in pushing that the Senate not just sit on its hands because of the potential political costs. Even Josh Blackman, who I consider kind of a right-wing hack even though I think he likes to think of himself as a relatively objective academic, was blatantly pushing that today.

Blackman also raised an interesting possibility. If Republicans try to screw the Dems by not bringing their nominee to the floor, if the Dems manage to retake the Senate they could theoretically still get their nominee through even if they lose the presidency. The new Senate meets on Jan. 3 and President Obama doesn't leave office until Jan. 21. If Republicans screw around here, you get bet for damn sure that a Dem majority senate won't think twice about shoving someone through in Obama's final days.
 
Would the obstructionism be the same in Y4 as it is in Y8? I happen to think yes, and it would be interesting to see how far into the second term they carried it.
 
MysteryMen said:
Blackman also raised an interesting possibility. If Republicans try to screw the Dems by not bringing their nominee to the floor, if the Dems manage to retake the Senate they could theoretically still get their nominee through even if they lose the presidency. The new Senate meets on Jan. 3 and President Obama doesn't leave office until Jan. 21. If Republicans screw around here, you get bet for damn sure that a Dem majority senate won't think twice about shoving someone through in Obama's final days.
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That is really interesting, but I would think it's pretty darn unlikely that the Dems take back the Senate but lose the presidency.
 
It seems like the only play is the GOP to threaten not to confirm anybody so that they get a moderate nominee.

Otherwise they risk [guarantee] that the next POTUS gives them 3 F U nominees when justices start retiring.
 
DeaconCav06 said:
It seems like the only play is the GOP to threaten not to confirm anybody so that they get a moderate nominee.

Otherwise they risk [guarantee] that the next POTUS gives them 3 F U nominees when justices start retiring.
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I mean they still have a good chance of checking that by controlling the senate or certainly having enough votes to filibuster (though Dems might invoke the nuclear option if it comes to that). The risks aren't horribly extreme and they will be screwed if they lose the presidency regardless.

I would like to think this mere posturing, but McConnell seems to have backed the Pubs into a corner in his statement that they categorically won't confirm anyone. It's going to be hard for him to get a political win out of this. Even relative moderates like Kelly Ayotte doubled down on McConnell's stance today
 
DeaconCav06 said:
It seems like the only play is the GOP to threaten not to confirm anybody so that they get a moderate nominee.

Otherwise they risk [guarantee] that the next POTUS gives them 3 F U nominees when justices start retiring.
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There is precedence here. Ford nominated John Paul Stevens late in his term as a well respected moderate conservative, and the Dem senate approved him. And FWIW, Stevens and Powell were the centrists on the court who often made the majority for the next decade plus after that. And Stevens stayed on the bench for a long time - long enough for him to be considered originally a moderate conservative to being a liberal - and he didn't change his judicial philosophy at all and was a great advocate of judicial restraint. But that was a different time, even soon after the threatened impeachment of the president. I think Pub senators mean what they say and will block whoever Obama nominates. And I agree that's why Sri is a great choice.
 
Why would you nominate your best guy when you know that person will be obstructed? Pubs don't care about how obstruction looks to the public or they would have stopped it years ago. Why burn your best nominee just to make a point, when the best nominee has a better chance of passing once the election is over?
 
Why can't the next president nominate the same person?
 
PhDeac said:
knowell, do you believe Senate Republicans should block any Obama nominee?
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RChildress107 said:
The Court has recognized that an arrangement of the balance of power between the branches can become so set in stone that regardless of whether it was the arrangement the founders intended it nonetheless has become constitutionally mandated. NLRB v. Noel Canning is a recent example. There the court essentially said that since Presidents had used recess appointments in a certain way, and the Senate has acquiesced in that use, for most of our nations history that even though the scope of that power was unclear at the time the constitution was drafted, it was now clearly constitutional.

Scalia objected to this reasoning in his concurrence (Case was ultimately decided on another matter) but he was in the minority.
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Your example from the Canning case is a far cry from the argument that Congress is constitutionally precluded from amending the statute setting the number of justices who sit on the Supreme Court.
 
Junebug said:
Your example from the Canning case is a far cry from the argument that Congress is constitutionally precluded from amending the statute setting the number of justices who sit on the Supreme Court.
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Not a perfect example but just pointing out there is precedent for what Scalia referred to as "adverse possession" of another branches powers. It's not a clear cut answer either way (though you are right that it's not justiciable).

I'm pretty sure there were critics of FDR's court-packing plan who argued it would have been unconstitutional had he gone through with it.

Either way, Scalia must be rolling in his grave over Republicans asserting that "the people should have a say" in who replaces him.
 
RChildress107 said:
The whole "living constitution" dig at liberal justices is vastly overblown, IMO. The drafters of the constitution used some vague as shit words and phrases not because they were lazy but because they realized that some of those words would take on different, potentially expanded, meanings over time.

The Founders would be horrified at "originalism" (Scalia wasn't really an originalist fwiw, Thomas is by far the closest of any modern justice). The constitution was as much aspirational as it was foundational. Limiting the effect of its protections to how those protections were understood in the late 1700's flies in the face of everything the document stands for.

Finding that "due process" or "cruel and unusual punishment" covers more than it did over 200 years ago is not believing in a "living constitution", and the founders certainly did not intend for the amendment process to be used to update society's understanding of what the words of the constitution meant.

Conservatives favor a literal limited view of the constitution not out of principle but because 1780's social values are more preferable to them than 2016's social values.
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I disagree that the framers delegated to future generations the meaning of vague terms, like due process, equal protection, etc. Those words were not plucked out of thin air, but had core meanings that were understood at the time of the framing (although I grant that there is certainly ambiguity outside of the core). The goal of judging in constitutional adjudication should be to attempt to discern those original understandings and apply their concepts to present-day situations. For example, it is lunacy to interpret the "cruel and unusual punishment" clause to proscribe the death penalty because we may now consider the death penalty to be cruel and unusual, considering that the death penalty was applied at the time of the founding.

As for your last paragraph, one of the many attributes of originalism is that it seeks to keep the balance of governmental power versus the power of the people the same as it was at the time the constitution/14th amendment were adopted. In an orginalist world, if the people think social values have changed, the people can freely enact laws that reflect those changed values. Nothing in originalism, for example, keeps the populace from authorizing same sex marriage, if that's the way the political winds are blowing. The "living constitution" takes that power from the people and gives it to unelected judges, at the aggrandizement of the judiciary and to the detriment of the people. In other words, it has nothing do with politics, and everything do with the proper role of the judiciary. As an originalist, I happen to believe that we shouldn't be governed by what 5 Ivy League educated lawyers think "due process" means for them. I think it should mean what it meant at the time of the founding/adoption of the 14th amendment, and all the rest is given to the people to decide.
 
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PhDeac said:
Junebug, do you believe Senate Republicans should refuse to vote on appointees nominated by Democrat Presidents?
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I'm not sure what you are asking; it seems like you are asking if senate republicans should refuse to ever vote on democratic nominees? If that's your question, the answer is no.
 
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