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  • benenglish

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    There was a thread discussing this question tangentially and doing a good job until it went off the rails.

    Please post (or re-post) your thoughts here regarding what could or should happen to the United States Supreme Court over the next few weeks or months.

    I'll start it off with an overview clip from a foreign news source that makes at least one major error (easy to spot) and then (sort of) corrects itself.

    Lynx Defense
     
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    benenglish

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    The clip above cites three front-runner candidates. As of today, they seem to be the ones with all the buzz. (Of course, that could change tomorrow.) I'd love to see informed commentary that compares and contrasts the three current front-runners.

    Viva Frei and Robert Barnes did just that a few days ago. (Yes, this is a re-post. I hope all the good stuff from the locked thread gets re-posted here.) They discussed all three of the prospects mentioned in the BBC clip above and went over them in not much detail but with an eye to broader, philosophical issues having to do with their general outlook on life and how that might impact their biases and, by extension, their worthiness as a jurist.



    I note that etmo watched and analyzed this clip and thought it deeply flawed. While I disagree with most of what he has had to say (Find it here.), I hold it up as the sort of thoughtful analysis I'd like to see in this thread.
     

    benenglish

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    Finally, a note about the way the board works in practice.

    I should have broken out this thread a long time ago. The closed thread was started to talk about the death of RBG. When it drifted to all the processes and politics involved in replacing her, well, that topic deserved a dedicated thread. Instead, I let the other one drift into distracting topics that were, eventually, going to wind up in rules violations.

    With this thread, I cut our losses in the other thread before I felt the need to boop anybody on the nose but far later than I should have.

    My apologies to all for my tardiness.
     

    TipBledsoe

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    Trump needs to do his duty and name a replacement and the Senate needs to do thier duty to confirm a conservative judge.
    But i have a dumb question - when there was the similar situation near the end of Obama's term, the Senate had a Republican majority right?
    Assuming so, and even though it's kind of embarrassing some Republican Senators are seemingly flip-flopping, to replace the judge before the election IS precedent (Fox reports 18 out of 20 times) so the Dems are just up to thier dirty tricks misleading people to think the judge should be replaced after the election.
     

    TX OMFS

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    Trump needs to do his duty and name a replacement and the Senate needs to do thier duty to confirm a conservative judge.
    But i have a dumb question - when there was the similar situation near the end of Obama's term, the Senate had a Republican majority right?
    Assuming so, and even though it's kind of embarrassing some Republican Senators are seemingly flip-flopping, to replace the judge before the election IS precedent (Fox reports 18 out of 20 times) so the Dems are just up to thier dirty tricks misleading people to think the judge should be replaced after the election.

    Honestly, it's called politics. Both sides speak out of both sides of their mouth from time to time. It's not hypocrisy, it's politics.

    In 2016 Mitch should have just told president Obama that elections have consequences instead of invoking the upcoming election.
     

    TX OMFS

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    .
    ebcd59bcbc904f2a78729d703c461e2c.jpg
     

    oldag

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    Trump needs to do his duty and name a replacement and the Senate needs to do thier duty to confirm a conservative judge.
    But i have a dumb question - when there was the similar situation near the end of Obama's term, the Senate had a Republican majority right?
    Assuming so, and even though it's kind of embarrassing some Republican Senators are seemingly flip-flopping, to replace the judge before the election IS precedent (Fox reports 18 out of 20 times) so the Dems are just up to thier dirty tricks misleading people to think the judge should be replaced after the election.

    Actually, no. Republicans refused to replace a justice when Republicans controlled the Senate and Dems the White House.

    Democrats have a long history of breaking procedural norms on judges. While packing the Court would be their most radical decision to date, it would fit their escalating pattern. Let’s review the modern historical lowlights to see which party has really been the political norm-breaker:

    The Bork assault. When Ronald Reagan selected Robert Bork in 1987, the judge was among the most qualified ever nominated. No less than Joe Biden had previously said he might have to vote to confirm him. Then Ted Kennedy issued his demagogic assault from the Senate floor, complete with lies about women “forced into back-alley abortions” and blacks who would have to “sit at segregated lunch counters.” Democrats and the press then unleashed an unprecedented political assault.

    Previous nominees who had failed in the Senate were suspected of corruption (Abe Fortas) or thought unqualified (Harrold Carswell). Bork was defeated because of distortions about his jurisprudence. This began the modern era of hyper-politicized judicial nominations, though for the Supreme Court it has largely been a one-way partisan street.

    No Democratic nominee has been borked, to use the name that became a verb. Even Justice Sonia Sotomayor, whose left-wing legal views were obvious upon her nomination, received a respectful GOP hearing and was confirmed 68-31 with nine GOP votes. Justice Ruth Bader Ginsburg was confirmed 96-3, Stephen Breyer 87-9, and Elena Kagan 63-37.

    Democrats, meanwhile, have escalated to character assassination. Clarence Thomas was unfairly smeared on the eve of a Senate vote and barely confirmed. Democrats accused Samuel Alito of racism and sexism for belonging decades earlier to an obscure Princeton alumni group.

    Democrats promoted the uncorroborated claims of women accusers against Brett Kavanaugh from his high school and college years. Sen. Sheldon Whitehouse undertook a deep dive into Justice Kavanaugh’s high-school yearbook. This treatment has become the real Democratic Party “norm.”

    Filibustering appellate nominees. It’s mostly forgotten now, but in George W. Bush’s first term Senate Democrats pioneered the use of the filibuster to block nominees to the circuit courts. That was also unprecedented.

    Miguel Estrada was left hanging for 28 months before he withdrew, though he had support from 55 Senators. A 2001 Judiciary Committee memo to Sen. Dick Durbin was candid in urging opposition to Mr. Estrada because “he is Latino” and couldn’t be allowed to reach the D.C. Circuit Court of Appeals lest he later become a candidate for the Supreme Court.

    Democrats also filibustered or otherwise blocked appellate nominees Priscilla Owen, Janice Rogers Brown, Charles Pickering Sr., Henry Saad, Carolyn Kuhl, William Pryor, David McKeague, Richard Griffin and William Myers, among others.

    This violation of norms was stopped only after the GOP regained the majority and threatened to change Senate rules. A handful of Senators in both parties then negotiated a deal to vote for nominees except in “extraordinary circumstances.” Republicans did not unilaterally break the filibuster for judicial nominees.

    Breaking the filibuster for appellate nominees. That norm-breaker was executed by Democrats in 2013, led by then Majority Leader Harry Reid with the enthusiastic support of Barack Obama. Democrats rewrote Senate rules in mid-Congress, on a party-line vote, to add three seats to the D.C. Circuit. The goal was to stack that court with liberals who would rubber stamp Mr. Obama’s “pen” and “phone” regulatory diktats.

    Those liberals have done that numerous times, while sometimes blocking President Trump’s deregulatory rule-makings. But the political cost has been high, as we warned at the time. Harry Reid’s precedent allowed GOP leader Mitch McConnell to do the same when Democrats tried to filibuster Neil Gorsuch. The GOP majority can now confirm Mr. Trump’s next nominee with 51 votes.

    Urged on by the progressive media, Democrats are now vowing that they’ll break the 60-vote legislative filibuster rule to add two, or even four, new Justices to the Supreme Court next year for a total of 11 or 13. But they have already been saying this for months. Barack Obama gave the green light when he used John Lewis’s funeral to call the filibuster a “Jim Crow relic.” Never mind that as a Senator he endorsed a filibuster of Mr. Alito. Mr. Whitehouse and four colleagues explicitly threatened in an amicus brief that the Court would be “restructured” if Justices rule the wrong way.

    Republicans could surrender and not confirm a nominee, and Senate Democrats would still break the filibuster. Court packing would then become a sword hanging over the Justices if they rule contrary to the policy views of the Senate left. Leader Schumer won’t resist because he is quaking at the prospect of a primary challenge from Rep. Alexandria Ocasio-Cortez in 2022.

    Contrast this Democratic record, and now this court-packing threat, with the GOP record. In 2016 Mitch McConnell and his colleagues refused to confirm Merrick Garland and said the voters should decide the issue in the election. Mr. Schumer had previously vowed the same standard in the final years of George W. Bush. Mr. McConnell essentially made a political bet by putting judicial philosophy and the Supreme Court at the center of the 2016 campaign.


    Judges were also on the Senate ballot in 2018 after the Kavanaugh ugliness. The GOP gained two net seats. The use of their elected Senate power now to confirm a nominee would be a wholly legitimate use of their constitutional authority. They should not be cowed by Democratic threats from confirming a nominee. Democrats have shown they will do what they want with Senate power no matter what Republicans do now.


    What Republicans should do is let the voters know about the Democratic filibuster and court-packing plans, and make them a campaign issue. Democratic Senators and candidates should have to declare themselves not merely on Mr. Trump’s nominee but on the filibuster and court-packing that Mr. Schumer has now told the country will be on the table.
     

    oldag

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    Trump needs to do his duty and name a replacement and the Senate needs to do thier duty to confirm a conservative judge.
    But i have a dumb question - when there was the similar situation near the end of Obama's term, the Senate had a Republican majority right?
    Assuming so, and even though it's kind of embarrassing some Republican Senators are seemingly flip-flopping, to replace the judge before the election IS precedent (Fox reports 18 out of 20 times) so the Dems are just up to thier dirty tricks misleading people to think the judge should be replaced after the election.

    Actually, no. Republicans refused to replace a justice when Republicans controlled the Senate and Dems the White House.

    <<<copyright violation removed by moderator benenglish>>>


    What Republicans should do is let the voters know about the Democratic filibuster and court-packing plans, and make them a campaign issue. Democratic Senators and candidates should have to declare themselves not merely on Mr. Trump’s nominee but on the filibuster and court-packing that Mr. Schumer has now told the country will be on the table.
     
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    MacZC7

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    I still don’t understand the issue people have with DJT carrying out his constitutional obligation and nominating candidates for RBG’s replacement. Dying wishes and empathy are not in the constitution, get over it democrats!
     

    Brains

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    The Supreme Court "fight" should never be. If you pick properly, they will render solid findings based on the laws. If you don't like their decisions, change the LAW, not the jurist.

    Of course that is in a perfect world, which doesn't exist.

    I'll venture close to (but not invite a discussion on) very tough topics the Supreme Court exists to tackle, like abortion. The simple fact here is abortion is a topic that cannot be legislated and regulated by a governing body. There's no concrete solution. There's no "one size fits all" ruling. That is much the case on many topics the court faces - the law doesn't or in many cases cannot sufficiently cover the nuances of the particular situation. Gun laws are another, where despite what we here generally feel people should be able to freely exercise our 2A rights, the court has been faced with more subtle cases where in a specific set of circumstances a large number of people would want to put some sort of barrier between a person and their rights. In short, laws are written to what you know at the time and we trust our courts to fill in the "oh yeah, didn't think of that" edge cases.

    That's the reason you want to pick your jurists very carefully, and you want to pick those who you hope will steer the ship closer to your path. Ideally, you'd want to pick a jurist with a bit better vision than you, one who can see down wind a bit farther, and avoid some of the gotcha cases by rendering more thorough opinions. I think Kavanaugh is a great example of this kind of Jurist, with Scalia, Thomas, and others like them too. I even think RBG tried, but with a different focus. Her eyes were on things that were very important to her, and she did make great progress in those areas. Anyone today would be hard pressed to down play her work for women's rights. But now we have jurists that in my opinion have no business being on the Supreme Court, like Sotomayor. I fear if the left gets another pick, they would choose another like her.
     

    Darkpriest667

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    Actually, no. Republicans refused to replace a justice when Republicans controlled the Senate and Dems the White House.

    Democrats have a long history of breaking procedural norms on judges. While packing the Court would be their most radical decision to date, it would fit their escalating pattern. Let’s review the modern historical lowlights to see which party has really been the political norm-breaker:

    The Bork assault. When Ronald Reagan selected Robert Bork in 1987, the judge was among the most qualified ever nominated. No less than Joe Biden had previously said he might have to vote to confirm him. Then Ted Kennedy issued his demagogic assault from the Senate floor, complete with lies about women “forced into back-alley abortions” and blacks who would have to “sit at segregated lunch counters.” Democrats and the press then unleashed an unprecedented political assault.

    Previous nominees who had failed in the Senate were suspected of corruption (Abe Fortas) or thought unqualified (Harrold Carswell). Bork was defeated because of distortions about his jurisprudence. This began the modern era of hyper-politicized judicial nominations, though for the Supreme Court it has largely been a one-way partisan street.

    No Democratic nominee has been borked, to use the name that became a verb. Even Justice Sonia Sotomayor, whose left-wing legal views were obvious upon her nomination, received a respectful GOP hearing and was confirmed 68-31 with nine GOP votes. Justice Ruth Bader Ginsburg was confirmed 96-3, Stephen Breyer 87-9, and Elena Kagan 63-37.

    Democrats, meanwhile, have escalated to character assassination. Clarence Thomas was unfairly smeared on the eve of a Senate vote and barely confirmed. Democrats accused Samuel Alito of racism and sexism for belonging decades earlier to an obscure Princeton alumni group.

    Democrats promoted the uncorroborated claims of women accusers against Brett Kavanaugh from his high school and college years. Sen. Sheldon Whitehouse undertook a deep dive into Justice Kavanaugh’s high-school yearbook. This treatment has become the real Democratic Party “norm.”

    Filibustering appellate nominees. It’s mostly forgotten now, but in George W. Bush’s first term Senate Democrats pioneered the use of the filibuster to block nominees to the circuit courts. That was also unprecedented.

    Miguel Estrada was left hanging for 28 months before he withdrew, though he had support from 55 Senators. A 2001 Judiciary Committee memo to Sen. Dick Durbin was candid in urging opposition to Mr. Estrada because “he is Latino” and couldn’t be allowed to reach the D.C. Circuit Court of Appeals lest he later become a candidate for the Supreme Court.

    Democrats also filibustered or otherwise blocked appellate nominees Priscilla Owen, Janice Rogers Brown, Charles Pickering Sr., Henry Saad, Carolyn Kuhl, William Pryor, David McKeague, Richard Griffin and William Myers, among others.

    This violation of norms was stopped only after the GOP regained the majority and threatened to change Senate rules. A handful of Senators in both parties then negotiated a deal to vote for nominees except in “extraordinary circumstances.” Republicans did not unilaterally break the filibuster for judicial nominees.

    Breaking the filibuster for appellate nominees. That norm-breaker was executed by Democrats in 2013, led by then Majority Leader Harry Reid with the enthusiastic support of Barack Obama. Democrats rewrote Senate rules in mid-Congress, on a party-line vote, to add three seats to the D.C. Circuit. The goal was to stack that court with liberals who would rubber stamp Mr. Obama’s “pen” and “phone” regulatory diktats.

    Those liberals have done that numerous times, while sometimes blocking President Trump’s deregulatory rule-makings. But the political cost has been high, as we warned at the time. Harry Reid’s precedent allowed GOP leader Mitch McConnell to do the same when Democrats tried to filibuster Neil Gorsuch. The GOP majority can now confirm Mr. Trump’s next nominee with 51 votes.

    Urged on by the progressive media, Democrats are now vowing that they’ll break the 60-vote legislative filibuster rule to add two, or even four, new Justices to the Supreme Court next year for a total of 11 or 13. But they have already been saying this for months. Barack Obama gave the green light when he used John Lewis’s funeral to call the filibuster a “Jim Crow relic.” Never mind that as a Senator he endorsed a filibuster of Mr. Alito. Mr. Whitehouse and four colleagues explicitly threatened in an amicus brief that the Court would be “restructured” if Justices rule the wrong way.

    Republicans could surrender and not confirm a nominee, and Senate Democrats would still break the filibuster. Court packing would then become a sword hanging over the Justices if they rule contrary to the policy views of the Senate left. Leader Schumer won’t resist because he is quaking at the prospect of a primary challenge from Rep. Alexandria Ocasio-Cortez in 2022.

    Contrast this Democratic record, and now this court-packing threat, with the GOP record. In 2016 Mitch McConnell and his colleagues refused to confirm Merrick Garland and said the voters should decide the issue in the election. Mr. Schumer had previously vowed the same standard in the final years of George W. Bush. Mr. McConnell essentially made a political bet by putting judicial philosophy and the Supreme Court at the center of the 2016 campaign.


    Judges were also on the Senate ballot in 2018 after the Kavanaugh ugliness. The GOP gained two net seats. The use of their elected Senate power now to confirm a nominee would be a wholly legitimate use of their constitutional authority. They should not be cowed by Democratic threats from confirming a nominee. Democrats have shown they will do what they want with Senate power no matter what Republicans do now.


    What Republicans should do is let the voters know about the Democratic filibuster and court-packing plans, and make them a campaign issue. Democratic Senators and candidates should have to declare themselves not merely on Mr. Trump’s nominee but on the filibuster and court-packing that Mr. Schumer has now told the country will be on the table.


    I just posted this on facebook. This is brilliantly written.
     

    toddnjoyce

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    If sitting justices care enough about who gets to pick the replacement, they should retire at an opportunistic moment; failing that, I believe they are all smart enough to know they can’t predict the future.

    As far as RBG goes, it wouldn’t surprise me if the grandaughter made that part up.
     

    TX OMFS

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    The Supreme Court "fight" should never be. If you pick properly, they will render solid findings based on the laws. If you don't like their decisions, change the LAW, not the jurist.

    Amen to that.

    Also maybe we need the three branches to he more balanced, the way it was intended to be.
     
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    Shady

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    I still don’t understand the issue people have with DJT carrying out his constitutional obligation and nominating candidates for RBG’s replacement. Dying wishes and empathy are not in the constitution, get over it democrats!


    Well the real answer is simple

    ORANGE MAN BAD

    He will never pick anyone even close to what the DIms want so they do what they do get up on a box and screech so loud or take to the streets and beat people or burn shit till they get there way.

    Just like a 2 yearold.

    I hope the Republicans hold firm this time as it may be the only thing that saves the USA if Trump looses.
     

    benenglish

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    Damn it.
    I just posted this on facebook.
    You shouldn't have. It's an uncredited cut-n-paste from a Wall Street Journal editorial entitled
    Breaking Judicial Norms: A History
    A Democratic Senate pattern, from Bork to the filibuster rule.
    Now I've got to figure out how to deal with the post. The information in it is critical but the copyright violation rule at the top of every page gives me no choice but to kill it from this thread.

    ETA: If anyone can find a non-paywalled link to the original editorial, I'd very much appreciate you posting it.
     
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    toddnjoyce

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    ...ETA: If anyone can find a non-paywalled link to the original editorial, I'd very much appreciate you posting it.
    The original editorial is titled “Breaking Judicial Norms: A History”, published on 9/20 in both print and digital editions. It’s credited to WSJ’s Editorial Board and isn’t currently available without purchase.

    I’m a subscriber to both editions and there’s no set policy if/when their content will be made available publicly.

    Here’s a link to the article for those interested. It may become available without purchase in the future.

     
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