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Obama Nominates Merrick Garland for SCOTUS

Antonin Scalia Reportedly Dead at 79

So you think Senate Republicans should vote on Obama's nominee?

And the 14th Amendment was ratified in 1868. The 27th Amendment was ratified in 1992. What is the originalist time period you are using?
 
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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.

Why do you find it acceptable to delay in this case?
 
As to the more pertinent question of whether this senate should give the forthcoming nomination from Obama an up or down vote before the election, I'm still thinking about it. As I have stated, I don't think it's constitutionally required for them to do so. Practically speaking, in the abstract, I do think there is some merit to an argument that, at some point in time before an election, a senate may justifiably refuse to vote on a president's nominee. If, for example, if Justice Scalia had died on January 19, 2017 (or even the first Monday in November 2016), and Obama immediately nominated someone, I think the senate could justifiably refuse to vote for the nominee. So, the argument would go, with delegates from Iowa and New Hampshire already having been awarded, we are now far enough along in the election cycle that eyes are forward to the new president and not backward to Obama.

That said, my present thinking is that we are not sufficiently close to a change in power that the senate should stall. I'm not sure where the line should be drawn, but 11 months just feels like an awfully long time to wait.
 
I think the question is pretty simple, is there enough time to thoroughly vet, nominate, and vote yes or no on a candidate? Of course no one would accuse anyone of obstructionism if Obama nominated someone in January of 2017. The question would be interesting if we were even close to a limited time frame.

As it stands he has 11 months in office, once someone is nominated the longest time it has ever taken to get a yes or no vote or is around 4 months. If the Pubs want to vote no, that is a completely different thing than refusing to vote.
 
Yeah. If Republicans went through the process and found specific problems with the nominee, people may accuse them of partisanship but at least they wouldn't be disrespecting the intent of the Constitution.
 
I find it pretty amusing to hear liberals talking about disrespecting the "intent" of the constitution, considering that liberals generally don't give 2 shits about constitutional intent, preferring instead to interpret the constitution according to what they think is right and just. On those latter terms, a senate delaying for 11 months is less offensive to constitutional intent than, for example, the judiciary reading the due process clause to somehow give women the unfettered right to have an abortion until the point of viability in her pregnancy.
 
You could say the same thing about conservatives. In fact, you have been making the same point that conservatives are doing what they think is right and just instead of adhering to the intent of the Constitution that the President nominate and the Senate votes up or down.
 
Anyway, let's talk about potential replacements. Tom Goldstein of SCOTUSblog came out today with his prediction that Obama will nominate Paul Watford on the theory that the Senate won't confirm anyone anyway so the strategy will be to exact the biggest political price. Also under the theory that Obama will want to nominate a black justice.

Tom Goldstein has already revised his prediction to Loretta Lynch. So basically everyone is just making ish up right now
 
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.

It would also be lunacy to claim that flogging is constitutional merely because it was an acceptable punishment at the time the constitution was enacted, yet originalism would dictate such a conclusion.
 
The time period of the enactment of the provision that is being interpreted.

Yeah that doesn't fly considering multiple provisions that took place at different times can be interpreted at the same time.
 
Republicans lose all moral high ground on the claim that Obama is failing to "Take care that the laws be faithfully executed" through his Executive Orders if they don't act on their obligation to advise and consent
 
Yeah that doesn't fly considering multiple provisions that took place at different times can be interpreted at the same time.

I don't think you understand originalism. Originalism is the idea that you interpret Constitutional provisions under the meaning they had at the time they were adopted. For the body of the Constitution itself, that's the Founding. For the Amendments, it's when they were enacted.
 
You could say the same thing about conservatives. In fact, you have been making the same point that conservatives are doing what they think is right and just instead of adhering to the intent of the Constitution that the President nominate and the Senate votes up or down.

You are missing at least one crucial point: originalism is a hermeneutic for *judicial* interpretation of the constitution. I think everyone would agree that the issue of whether the senate must act before 1/20/17 is non-justiciable. Thus, on this point, each senator has an obligation to uphold the constitution *as he or she interprets it.* I wouldn't begin to theorize as to the best hermeneutic for a legislator to take because, candidly, I've never studied the issue before.

I do find it interesting, however, that your instinct was to measure legislators' actions against the intent of the provision at hand. That's originalism. Welcome aboard.
 
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.

I'm no lawyer, but I couldn't disagree more. Are you really we apply a medieval mindset to present day society? if you follow that logic to a "t," you really do get some loony conclusions. Today most of the developed world consider killing people to be hypocritical and cruel and unusual. So that means as a matter of definition the constitution does proscribe applying the DP.
 
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if only we had a governmental body to make decisions pertaining to constitutional authority
 
I don't think you understand originalism. Originalism is the idea that you interpret Constitutional provisions under the meaning they had at the time they were adopted. For the body of the Constitution itself, that's the Founding. For the Amendments, it's when they were enacted.

I don't think you understood what I posted. The Constitution has multiple provisions adopted over multiple time periods. "Original" may be cobbled together from very different, contrasting time periods. The Constitution also outlines a process by which it is to be interpreted by different people over time. It's problematic, but let's not act like it's not what the founding fathers intended.
 
You are missing at least one crucial point: originalism is a hermeneutic for *judicial* interpretation of the constitution. I think everyone would agree that the issue of whether the senate must act before 1/20/17 is non-justiciable. Thus, on this point, each senator has an obligation to uphold the constitution *as he or she interprets it.* I wouldn't begin to theorize as to the best hermeneutic for a legislator to take because, candidly, I've never studied the issue before.

I do find it interesting, however, that your instinct was to measure legislators' actions against the intent of the provision at hand. That's originalism. Welcome aboard.

By that definition, most people are originalist, but those who are "originalist" simply want to stifle social change.
 
I'm no lawyer, but I couldn't disagree more. Are you really advocating we apply a medieval mindset to present day society? if you follow that logic to a "t," you really do get some loony conclusions. Today most of us in the developed world consider killing people to be hypocritical and cruel and unusual. So that means as a matter of definition the constitution does proscribe applying the DP.

If you disagree with the death penalty, you can vote to outlaw it. If a majority of people agree with you, your position will prevail. That's the beauty of a democratic form of government. But whether you, or even the entire developed world, thinks the death penalty should be outlawed, has no bearing on whether it is prohibited by the constitution. To think otherwise is to delegate the task of lawmaking to 5 Ivy League elites. That's not government for the people by the people. That's an oligarchy.
 
By that definition, most people are originalist, but those who are "originalist" simply want to stifle social change.

You really aren't getting it. Originalism is a method of interpretation, results be damned. Read up on Scalia's Fourth and Sixth amendment opinions, for example. The results were quite contrary to the results desired by "conservative" politics.
 
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