Thoughts On The Death Of Supreme Court Justice Antonin Scalia

chapman.0830 - 08/29/05 - A Supreme Court headed by Supreme Court Justice Antonin Scalia has questions for Chapman University Law School professor John Eastman as he and California Attorney General Bill Lockyer argue the 1905 ''Lochner v. State of New York'' case during a re-enactment Monday afternoon at Chapman University. (Credit: Mark Avery/Orange County Register/ZUMA Press)

Supreme Court Justice Antonin Scalia, the Supreme Court’s most adamant, eloquent, controversial and influential conservative jurist and one of the most important theorists in the institution’s history,  died today, unexpectedly, on a ranch near San Antonio while on a hunting holiday. He was 79.

Reflections:

1.  I had a beer with the Justice at a bar function a long, long time ago, after entertaining the assembled legal heavyweights. He was friendly, funny, and gregarious, and when I asked him if he would be on the Supreme Court for the rest of his life, he said, “God, I hope not!”

2. While everyone will be saying that this ups the ante in the Presidential race, that’s impossible. The importance of the election couldn’t be  greater. The vacancy Scalia’s death creates, unfortunately,will  increase the level of demagoguery from both parties, with the appointment of Scalia’s replacement being elevated to the equivalent of a life and death matter obliterating all other considerations. Anyone who argues that will be exposing their true status as a hack, appealing to hysterics, ignoring te ethical value of proportion. The composition of the Court is important, but it is not that important.

3. What is most important to the Court, and has been lost since Robert Bork became the first qualified judge to be blocked by pure partisan considerations despite undeniably outstanding qualifications, is to have smart, able, proven justices. Scalia was such a jurist.

4 .One of the traits of a qualified jurist is a refusal to pre-judge any issue or case before hearing arguments and knowing all the facts. Several of the current justices, including Scalia, have been sucked into the bitter partisan battles of this era and have made comments that called this trait into question.

5. Scalia was the longest tenured justice, and probably stayed too long, as have several of his surviving colleagues. It is a demanding job, and though seniors deny it, being a judge is like being a baseball player: even the greatest ones who are better than most younger players long after their prime have past are still not as good as they used to be. Age diminishes us all:  in Scalia we could see it in increasingly nasty and bitter dissents, and increasingly imprudent commentary off the bench. I don’t believe there should be a mandatory retirement date, but I do think judges at all levels should accept that part of their duty to justice is to leave the bench before they start to slip, not after. Nino told ne years ago that he wanted to leave the Court before he had to. He was right then.

6. No SCOTUS Justice within memory was more viciously attacked by ideological foes—well, other than Clarence Thomas. Too many of those critics never read a single one of Scalia’s opinions, and if they did, they wouldn’t understand it.

7. The sudden revelation of Scalia’s mortality should focus renewed attention on the wisdom of entrusting vital government power with the rapidly aging and aged. Perhaps we will learn that Scalia had some secret and fatal malady, but absent that, nobody thought his demise was imminent. The fact is that once one is over 75, all bets are off, for anybody. The attenuated ages of so many leading candidates for the 2016 election—Trump, Clinton and Sanders—really deserves attention, and it is irresponsible to ignore it.

8. Let’s see which progressive pundit or website shows its ugly side in reacting to Antonin Scalia’s death. He gave half a century to public service and the law, and few have served longer or with more distinction. Anyone who can’t rise above partisan differences to  give him the final respect he earned will be revealed as petty and small.

9. President Obama would be prudent and wise to announce that the vacancy will be filled by the next President. If he insists on the theater of appointing his own, making that poor judge, whoever it is, the center of a pre-election circus when confirmation is impossible, then it will be yet another example of this President being divisive for political expediency.

UPDATE: Senate Majority Leader Mitch McConnell announced that the Senate would not hold a vote on any President Obama-appointed replacement this year. “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President,” McConnell said in a statement.

UPDATE 2: Naturally, the President announced that he would send a DOA nomination to the Senate anyway.

 

 

226 thoughts on “Thoughts On The Death Of Supreme Court Justice Antonin Scalia

  1. Of course, what’s stopping ole Ginsberg from retiring and the Senate and Obama making a simple deal:

    Senate pre-confirms a Scalia-esque judge and Obama nominates a Ginsberg-esque judge. That way, next go round with Presidents, the Dems don’t have to risk Ginsberg desperately trying to live nearly another decade with a possible Republican…

    • Didn’t I suggest the same thing some where in this thread? If not, I meant to—it would make perfect sense, and I can’t believe someone close to Ginsburg hasn’t mentioned it. But it will never happen—because it makes perfect sense.

    • There are no “deals” to be made. Ginsburg needs to retire too — just in case a Republican wins in the Fall. She owes that duty to her legacy. If she doesn’t retire and dies into a Trump Presidency, then shame on her.

      Ginsburg should retire and Obama should make two nominations to the Bench. Then, the Senate should confirm both of them — assuming they are qualified.

      As I mentioned above, people just need to do their damn jobs.

                • I somewhat agree; the problem is that opposition is not always politics and gamesmanship there can be genuine and reasonably justifiable concerns about nominees.

                  To make my point; here’s a strictly rhetorical question;

                  Would you be saying these exact same things if it was a controversial Republican President in their last year of office nominating to SOTUS someone like Justice David T. Prosser Jr. who is currently on the Wisconsin Supreme Court?

                  I’m not implying a thing and I actually don’t want an answer, it’s just a question to inspire honest personal reflection.

                    • The problem is that Harry Reid doesn’t, and you’re not minority leader. Tit for Tat rules in politics. This will continue until the Democrats officially declare that their rejection of Robert Bork was a breach of Congress’s role. Remember, Joe Biden was one of the main leaders of the attack on Bork, which destroyed him politically, judicially and personally. Then the outrageous ambush of Clarence Thomas, using an unsubstantiated, decades old accusation of sexual harassment, from the same party that defended Clinton for far worse and far more substantiated accusations.

                      Democrats have far dirtier hand in this business. While you, or I may reasonably say that the GOP is obligated to consider an Obama nominee based only on qualifications, the Democrats are ethically estopped from doing so. This is the environment they made, and now, when it is disadvantageous to THEM, they are screaming about it. BIDEN is screaming about it.

                      As a friend of mine likes to say, “There is some shit I refuse to eat…” Unless Obama picks a moderate justice, and maybe even if, the nomination will be Borked by the GOP—the base will DEMAND it— and the Democrats can blame themselves. And that’s why I wrote that Obama should take the initiative and deferred filling the post. The fight will be bad for everyone, including the hapless judge nominated. The nomination isn’t going to fill the position. The nomination is just going to fuel more anger and division. Obama knows it, but anger and division is his game.

                    • Nope. The Golden Rule shouldn’t change because it is a political environment. Everybody does it — or here, you did it first! — is not an excuse.

                      Blocking any nomination for 10 months is ridiculous – and I wouldn’t vote for anyone, Democrat or Republican, who engaged in such behavior. And it would be weak for ANY President to cave in to such threats. Obama needs to put forth a qualified nominee and let the Senate engage in childish partisan politics if they choose to.

                      I listened to Senator Hatch today in an interview state that he would block any nominee, even if qualified, if that is what Mitch McConnell wanted. Shameful.

                    • Funny how this Golden Rule only applies when Democrats get to benefit.

                      You should also remember that in District of Columbia v. Heller, 554 U.S. 570 (2008), there were four justices who voted to uphold the D.C. handgun ban. The gun rights lobby will be backing up Senate Majority Leader McConnell.

                      (Would NARAL trust a President who supported prohibiting abortions for people on a slut watch list to nominate someone who would not vote to overturn abortion rights?)

              • It takes as long as it takes. There is nothing in the Constitution that sets a time limit on how long confirmation of a justice needs to take, nor, indeed, on the number of justices there are supposed to be. Ginsburg isn’t going to retire now, that would just take the Court to a conservative majority 4-3 and invite the Senate to drag the process out even more.

                It is not the Senate’s job to simply confirm whoever the President nominates. They can vote the nomination down, not move it to the floor, or not move it out of committee.

                I might add, the Democrats do not have the moral high ground on this one. Chuck Schumer openly said in 2007 not to confirm any nominees from GWB, who had 18 months to go at that point. Obama voted to filibuster Justice Alito because his values were not in line with what Obama believed to be American values. And need I mention Harry Reid’s creation of a black hole into which every bill that came from the GOP House disappeared?

                This comes back to the six basic truths of human nature I mentioned. People are biased, partisan, arrogant, lazy, immature and hateful, and they will let those traits run amok if they think they can. Both sides want to capture this SCOTUS seat because they believe it can shape American jurisprudence for decades. Both sides also believe they have an absolute right to have the filling of this seat in their time, the way they want it, and they aren’t interested in hearing what the other side has to say about it. So they resort to sniping and fearmongering and hurling insults in the hope that will move someone. It won’t and most people know it.

                Beth, your idea that Ginsburg should retire now and the Senate should just confirm whoever Obama picks is a pipe dream. Yes, GWB pushed Roberts and Alito through in quick succession, after a stumble with Harriet Myers, but the GOP held the Senate then. Yes, GHWB managed to get Thomas over the hump…in 1991, when he had the fact that Thomas was black working for him, and Anita’s attempt to slime Thomas backfired.

                Most changes over the past 2 decades have kept the complexion of the Court from changing too much. The last one that was any kind of change was the decidedly conservative Alito for the swing vote O’Connor, and the Democrats were stuck on that one, the GOP was holding all the cards. Well, this time out the Dems are not holding all the cards and an Obama appointment now could give the Court a solid liberal majority for decades, endangering gun rights, religious freedom, freedom of speech, limitation of government in individual lives, and a lot of other issues. The GOP can stop this nomination cold, and they’d be idiots not to. Red State America is not going to accept “well, we were just doing our jobs” if some far-left justice becomes the fifth vote in decisions that turn all those things upside down and the Senators know it. Even centrist types like Susan Collins know this one is for all the marbles, and are unlikely to break ranks if it comes to that.

                BTW, let’s say this was the other way around. Let’s say it’s 2008 and Justice Ginsburg had died in office. Can you really say with a straight face that the Senate would have accepted a GWB nominee?

                • Are you asking me what the Senate should have done or would have done? I’m stating how government SHOULD act.

                  This is why everyone hates politicians.

                  • I think my question was pretty clearly “would have,” and we both know the answer – no, Harry Reid would have smugly pocketed the nomination and refused to even talk about it again, telling the media it was a closed issue, so please move on.

                    We can all talk about what should be done in the best of all possible worlds, but what should be and what’s likely to be are two different things. No politician ever handed the other side a win just to do the right thing, if he did he would not be a politician. Maybe if this were the beginning of an administration you might give the incoming president more deference, because he would have some political capital. Obama has spent all of his. He’s powerless to start a big new initiative during the next 338 days, and everyone knows it. His record is pretty much set, and it’s not a very good one.

                    • Basically no confirmation process has ever taken even half as long as the time that remains in Obama’s administration. Add to that the time it’d take a new President, and you’re talking about the willful suspension by the GOP of the ability of the legal process to function.

                      -Suspension by virtue of rendering the Court impotent to effect laws that end up with tie votes, defaulting to pre-appeals judgments
                      -Willful because of one branch of government, dominated by one spiteful party, imposing its will on another.

                      How is that good government? The only reason “politics” has crept in to every branch of government is actions like this. It reminds me of Gingrich’s horrible (and successful) attempt at hijacking Congress by subordinating everything to party rule; now it’s the Court’s turn.

                      You can blame-throw all you want, but this is squarely on the GOP. As Beth says, shameless.

                    • What a willfully obtuse comment.

                      As though the Senate has up and decided out of the blue to ‘ruin’ the process. As though the nation hasn’t endured the 7 year wrecking ball that Obama has been on Process and Decorum. Never mind the 2 decades long Democrat-dominated destruction of process and decorum (though the Republicans have helped…some).

                      No Charles, though a favored tactic of you Leftwingers, you don’t get to break processes to your advantage and then bitch and moan when Republicans don’t fix the processes to your advantage. We know full well, that the Left will turn right about and break it again, to their advantage.

                      At this point, given what the Senate knows about just how despicably the Left conducts itself, it isn’t “spite”, it’s trying to stop the wrecking ball’s last swing before retiring.

                      No, this ISN’T squarely on the GOP. Nice try pretending like this has occurred in a vacuum however. Won’t fool us though.

                    • Texagg, you have written good comments before, but this is not one of them. At least Steve-o-J cites facts: your comment is 100% opinions and adjectives – zero facts. I’m not going to waste my time commenting on zero facts.

                      Steve-O you cite a few facts (fortunately); here is a much longer review of all the facts, by a history prof

                      And I can’t help but note the “decency” quote you pull out to end with was said about a REPUBLICAN renegade senator – arguably the worst demagogue in congressional history – by Joseph Welch, counsel for the Army.

                    • We’re going to play a cognitive game:

                      Which of the following are factual statements:

                      A) The civil war was about slavery.

                      B) In 1776, the Declaration of Independence is signed, enshrining beliefs in distinct contrast to the practice of slavery in America, southern representatives signed this document. In 1787, the United States forms under the Consitution, a document only achieved by a compromise allowing slavery, without which, Southern states would have never joined the Union. For the early years of the Republic, a clear balance of power was maintained by admitting a few slave states and a few non-slave states through increasingly hot compromises. Abolitionist sentiment slowly grows alongside a population explosion in the north which slowly tipped the balance of power in the House of Representatives towards the Northern (generally anti-slave) states. The Democrat party forms with the general intention to perpetuate slavery through a series of political compromises appealing to several geographic regions. This slows down the advance of abolitionist sentiment and power, avoiding the inevitable for a few decades. In 1818, Missouri’s application for statehood is bogged down because it would tip Senatorial power towards the pro-slave faction. After the Missouri Compromise of 1820, the tenuous balance of power was maintained through increasingly controversial compromises. During the mid-1820s, a Christian revival swept America, among the topics seizing those awakened was increased hostility towards the peculiar institution; by the 1830s, open and aggressive demands for national emancipation became political hot topics. The Democrat dominated South, at this point felt very estranged from the Union and it’s American ideals. Politics became increasingly divisive as any move in the political realm was seen as motivated by stopping slavery or protecting slavery. Anti-slave states increasingly pass laws that frustrate Federal ability to enforce slave-protecting laws at the national level. In the mid-1840s, the Mexican-American was is seen by many as a South-incited venture to add more territory to the pro-slave bloc. As early as 1851, secessionist movements gain serious traction as Southern Unionists must defeat their attempted measures in various Southern states — all related to the issue of slavery. In 1852, the publication of Uncle Tom’s Cabin publicizes the evil of slavery and further incites the average citizens passions for or against the institution. By 1853, the pro-Slavery Democrat party has complete control of the State legislatures in what will be the Confederate States. In 1854, the Republican Party forms from a broad coalition of politicians, including a handful of Northern Democrats, with the key platform issue of the opposition to slavery. The new party, gains control of the vast majority of Northern seats. The birth of this party, signals to the South a clear national level of opposition to the South’s singularly key issue. By 1856, the South’s tone and rhetoric was nearly exclusively one of secession or civil war should the anti-Slavery party continue its vision. With the election of Abraham Lincoln, the South saw its political fate as inevitable and began secession, with many specifically stating that the preservation of slavery was the driving factor.

                      Now, I know you can be honest and state that BOTH of those options are factual. So, though you feign illiteracy at times, I know you have skimmed enough of the commentary in this discussion to recognize that Jack, et al, have demonstrated thoroughly and with historical examples, that this political climate has primarily come about due to the malfeasance and bad faith conduct of Democrats, with a smattering of input from the Republicans. Hence my summary. Which was factually accurate. Your dismissal of my summary is both lame and, to repeat myself, willfully obtuse.

                      Let me correct your opening sentence for you:

                      Texagg, you write good comments and this is one of them.

                    • “Jack, et al, have demonstrated thoroughly and with historical examples, that this political climate has primarily come about due to the malfeasance and bad faith conduct of Democrats, with a smattering of input from the Republicans.”

                      Absolutely unproven; and from my POV, it’s exactly wrong. Untrue.

                      But I did read all the facts, which were fun and edcucational, thanks.

                      And I do think that the way to common views has to go through facts, they may not be enough at any point of time, but it’s the only way to forward movement. Just shouting at each other doesn’t get us anywhere.

                    • Not even close, Charles. It took almost a year to fill Powell’s seat because the Dems played politics with the nomination. They also resorted to “slime” tactics against Thomas and Alito. Finally Chuck the Schmuck said to shut down nominations altogether for 18 months, and now he’s saying not to use that speech against him.

                      You Democrats are the ones with no shame. You play games, use dirty tactics, and call names, then call US spiteful when your own tactics come back on your head? Have you not even a SHRED of decency or logic, sir?

                    • charlesgreen said, “Texagg, you have written good comments before, but this is not one of them. At least Steve-o-J cites facts: your comment is 100% opinions and adjectives – zero facts. I’m not going to waste my time commenting on zero facts.”

                      I’m really curious Charles, since you went out of your way to publicly chastise Texagg for not having what you call “facts” in his reply to your comment and just sharing his opinion please tell us how many “facts” are there in that comment of yours that Texagg replied to and exactly how are we supposed to identify that which you are think to be facts?

                      To a novice reader/blogger your comments looks to be nothing but opinion, just like Texagg’s comment, so you chastising him for the same thing you did is one of those unethical double standards that I’ve heard about. Get off your high horse Charles, you’re in the kitchen, if you can’t take the heat go somewhere else, otherwise stop your hypocritical bitching.

                    • charlesgreen said, “Absolutely unproven…

                      The fact is that there have been many, Many, MANY facts presented in both Jacks blogs and from fellow bloggers in these threads that have supported exactly what Texagg stated; so you want facts, then open your eyes and go back and read all the facts presented. Your ignorance of the facts presented does not mean that what Texagg wrote has not been proven with facts. Now after you go back and read all the facts presented in all these blogs and threads you can still choose to say that it hasn’t been “proven” but at that point in time it would become quite clear that you don’t give a damn about any facts that contradict your POV and you’re basing your opinion strictly on party lines. So go ahead and read all the facts presented here and go ahead; stay on your side of the party line; we’ll keep on pointing out that “your POV” is nothing but a partisan excuse to ignore all the malfeasance and bad faith conduct of Democrats in the past. Personally, I think you’re using “your POV” as a nonsensical excuse.

                      charlesgreen said, “…from my POV, it’s exactly wrong.”

                      That’s a fair statement from your point of view.

                      charlesgreen said, “Untrue.

                      Totally unfair statement, in fact your uses of the word “untrue” in this case is absolutely false and you cannot prove otherwise. True and false in this case is opinion based, it’s nothing more than your go-to justification phrase – “your POV”.

                      It’s been fun conversing with you here in the kitchen.

          • A President should not support prohibiting sales of firearms to persons on the terrorist watch list, but Obama did that anyway.

            (Would NARAL trust a president, who supported prohibiting abortions for people on a slut watch list, on nominating justices to the Supreme Court, when there was a recent 5-4 ruling on a law banning abortion outright, with four justices holding that such a law is constitutional?)

  2. So let me condense the arguments. The Republicans here are arguing that the Republicans in Congress should get to engage in bad, inappropriate, and unethical behavior because Democrats have done it too. You’re all idiots and you have learned nothing from participating on this site — including apparently absorbing the most basic of ethical principles.

    • False.

      Mischaracterization.

      The republicans here’s are saying that the senate and president should defer to the next president because this president has been a wrecking ball to our system and nation. Then the republicans here are also saying he democrats can’t complain because they’ve done the same thing…only they’ve done it in bad faith in the past.

      Nice try though, but your wrong.

      • No. Every problem should be met with an ethical blank slate. The President should nominate a candidate and, if qualified, the Senate must confirm him or her. If unqualified, the Senate should not confirm him or her.

        Nice try — but YOU’RE not even close. My analysis is spot on. You’re still pointing to poor bad behavior as an excuse to behave badly now — a/k/a “everybody does it.” Ethics F for you.

        • Beth said, “The President should nominate a candidate…”

          Here is what I said a couple of days ago about the President nominating a candidate; you didn’t bother to comment on that before, would you like to do so now – it’s relevant to this conversation too.

        • The slate isn’t blank. The Democrats poisoned the well with the Bork hearings, the pointless Alito filibuster, and Chuck the Schmuck’s dumb statement that no GWB nomination should even be considered with 18 months to go, which he’s now embarrassing himself trying to dodge. To ask the GOP in Congress to handle this like it’s in a vacuum is to ask them to roll over and play dead because you think it’s the right thing to do. Come on, you can do better than this.

          • Yes, Beth is appealing to the same tactic that Charles was earlier:

            that is: The Left can break whatever processes they want if it is to their advantage, and then cry and moan when Republicans don’t fix the broken process when it is advantageous to the Left. Of course, we know that should the Republicans fix the process advantageously for the Left, the Left will merely break it again when it suits them…

            I really hope the Senate stays strong and doesn’t let this wrecking ball administration get one last swing in.

        • “Every problem should be met with an ethical blank slate.”

          I don’t know how on Earth that is a rational comment.

          If the local child molester offers to babysit your daughter, are you supposed to ignore his history while making considerations?

    • Beth said, “The Republicans here are arguing that the Republicans in Congress should get to engage in bad, inappropriate, and unethical behavior because Democrats have done it too.”

      Who is presenting that argument?

      Beth said, “You’re all idiots and you have learned nothing from participating on this site — including apparently absorbing the most basic of ethical principles.”

      Your blanket statements included me; I take personal offense to what you said. Prove to me that I have presented such an argument and you are not just smearing the whole based on the few, or maybe the one, which is clearly unethical and shows that “you have learned nothing from participating on this site — including apparently absorbing the most basic of ethical principles”.

      By the way Einstein; it’s not unethical to point out the hypocrisy of the Democrats regarding this process and making the point of hypocrisy does not directly or indirectly imply that the person pointing out the hypocrisy is actually condoning Republicans for doing the same thing.

      If you’re going to call people idiots, then you better be doing it on a more individual basis instead of using unethical blanket statements.

          • Beth,
            You can picture whatever your pretty little heart desires.

            By the way; you’ve now proven to everyone that you’re not only an idiot but you’re also a political hack. Big surprise.

            I’m curious Beth, what does that muck between your toes taste like?

            • The problem is that I’m NOT a political hack. I speak out against this process no matter who is doing it — that makes me (by definition) politically neutral.

              • Bull shit Beth!

                What you stated was in no way, shape, or form resembling anything close to “politically neutral”.

                You were wrong to spew your unethical partisan bull shit in the first place and you’ve been wrong with every subsequent comment trying to justify your original nonsense; all you’re doing is proving beyond any doubt that your motivation is that of a Liberal posing as “politically neutral”.

                Here’s a bit of Liberal logic; prove me wrong.

                • What did I say that was partisan? That people should do their jobs? That they shouldn’t rely on “but everybody does it” to excuse unethical behavior? In case you haven’t been paying attention, that is the ethics lesson that Jack tries to pound home at least once a week.

                  Maybe if you use more italics and exclamation points you’ll be more convincing.

                  FYI — I am a registered Republican. So I shouldn’t have said that all Republicans on this site are idiots — I should have exempted myself first.

                  • There is no point for anyone to respond to this drivel. No one has relied on “everyone does it” to defend the Senate taking it’s time or outright ignoring this President’s nomination. You keep mentioning this hoping it will somehow make the trope true. But it won’t.

                    People HAVE stated that Democrats DO NOT GET TO CRY that Republicans are taking their time on this, because Democrats have engaged in tactics like these many times and are the ones who have poisoned our entire system (with some Republican assistance). If this were any other President that happened to be a Democrat, any other President that has shown even an iota of leadership, good faith, and non-destructive conduct, then I’d be all for the process running it’s course per tradition.

                    But we don’t have that President. We have Obama. This isn’t an unethical spite action. To the contrary, this is quite ethical to slow down the destruction a little more.

                    • Tex — I mean this with all sincerity. One of us gets a flunking grade in reading comprehension, because in my book you just rationalized (again) unethical behavior. I seriously hope it isn’t me. (I’m pretty sure it isn’t me, unless my mind has degraded since the taking the LSAT and SAT years ago.)

                      Presidents have immense power when it comes to nominations. I wrote about this days ago before Scalia died and this controversy arose. It doesn’t matter if you think Obama is a horrible leader — the majority of Americans do not, that’s why they voted him into office. The President gets to name the next Supreme Court Justice — like it or not. The Senate HAS to confirm that candidate if he/she is qualified. It’s up to them to decide whether to do their jobs or not. It already looks like certain Republicans are cracking though — at least the ones who are up for reelection are.

                      As for the aging or infirm Supreme Court Justices, they know the drill as well. It’s up to them to try and time their retirement so that an ideologically similar Justice is appointed. It looks like Justice Ginsburg is going to wait out another election cycle. If President Cruz gets to name her replacement, then she will most likely be replaced with a strict constructionist — something that she does not espouse in the least. But that’s the way it works. If a Republican President names a qualified conservative Justice for the post, then the Senate needs to confirm him or her. And I’ll be the first to say it.

                    • The Senate does not HAVE to give their consent, and I don’t think they are cracking, although they might be looking at this with a bit more rationality and a little less anger. They can tell the President to go take a run and jump at the moon, they won’t confirm any nominee. It isn’t the job of the legislature to just wave at the President’s agenda as it goes by. Interestingly, in 1987 the NY Times said in an editorial that the-then Democratic Congress should fight Reagan on further appointments. Guess their position “evolved.” Frankly I think the Federal judiciary should impose a mandatory retirement age of 75, to prevent crises like this and senile old farts hanging on long after they should have retired because they are afraid their legacies will vanish. BTW, I guess it must be that time of the month here, this is the second woman who’s gone off the deep end since Scalia’s death.

                    • Thank you.

                      This explains why the Senate would be right to block President Obama’s nominees. The ruling in Heller was 5-4, with four justices claiming that a general ban on handguns is constitutional.

                      As for Bork, he was right regarding unenumerated rights and equal protection with respect to sex and the idea that j”there is no constitutional principle by which judges can prefer, say, the right of married couples to practice birth control over the right of a utility company to pollute the air” On freedom of speech,. he was wrong and Justice Scalia took the opposite position.)

                  • Beth said, “FYI — I am a registered Republican.”

                    If that’s true then, touche! Congratulations Beth, you fall into the same “I’m a Republican” category as Donald Trump. If you’re actually a registered Republican then you’re a RINO.

                    Beth said, “I shouldn’t have said that all Republicans on this site are idiots — I should have exempted myself first.”

                    So Beth, now you’re using the “everyone’s an idiot except for me” logic? Tell me Sigmund, what exactly would you say to someone that uses that as part of their overall argument?

                    Personally, I think you’ve effectively stripped away any facade of “political neutrality” that you’ve previously enjoyed in these threads.

                    • Beth said, “You’re new here. I’ve never enjoyed any facade of political neutrality here.”

                      So you’ve always claimed that your a Progressive Liberal and not the “politically neutral” person that you claimed at 12:26 pm?

                      Just because you complain about things that both sides do does not make you “politically neutral” it just means that there are things you don’t like about both sides; I’m the same way but I’m clearly a Conservative Republican.

                    • Listen Beth; I really don’t give a damn if you’re a Republican, Democrat, Socialist, Communist, Fascist, have green hair, blue hair, have body tatoos, or wear a burka, I just don’t care who or what you are; however, your blanket condemnation that all Republicans are idiots was dead WRONG, it was unjustifiable partisan Bull Shit, it was unethical, it was immoral, and I took it upon myself as a reasonably ethical (IMHO) human being to point out that fact to you.

                      You can’t openly admit the fact that you were dead wrong to make such a blanket statement and that’s a direct reflection of your character.

                      As a friend of mine says, “your choices, your consequences”.

                      I’m done with this conversation now.

                    • “Beth said, “You’re new here. I’ve never enjoyed any facade of political neutrality here. So you’ve always claimed that your a Progressive Liberal and not the “politically neutral” person that you claimed at 12:26 pm?”

                      Yes, clearly by me pointing out that others believe I am partisan means that I am acknowledging that I am partisan. WHAT????? I’m glad you’re done with this conversation because this is just embarrassing Zoltar.

  3. Yes, you are suffering incredibly from reading comprehension issues.

    You say the Senate isn’t doing its job. Therefore it is unethical. Then you say that when the Republicans here insist that Democrats cannot complain about the Senate taking its time because Democrats have done the same before, that the Republicans are actually saying that they are allowed to take their time because the Democrats have done the same before.

    2 things you have to prove:

    1) That the Senate ISN’T doing its job – or even that what it is doing is actually unethical.

    2) That Republicans here actually are saying what you say they are saying.

    On #2, that’s easy, you are flat out wrong, still. I’ve shown you how you are wrong, but we’ll try this again. But #2 is very much contigent on #1. You assert this interesting bit: “The President gets to name the next Supreme Court Justice — like it or not. The Senate HAS to confirm that candidate if he/she is qualified”.

    Let’s review the actual text of the Constitution, from Article 2, Section 2, with pertinent parts bolded:

    He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

    In summary:

    He (the President), by and with the Advice and Consent of the Senate, shall appoint Judges of the supreme Court.

    Juxtaposed next to what you assert, “The President gets to name the next Supreme Court Justice — like it or not. The Senate HAS to confirm that candidate if he/she is qualified”.

    Now, the Constitution seems fairly silent on exactly what “qualified” means in terms of Beth’s worldview, it also seems fairly silent on this notion of “HAS to confirm”. So it would seem that without Senatorial Consent, a candidate is definitionally not qualified. Sounds dreadfully rough if a Senate wanted to be spiteful, of course, it also sounds excellently perfect facing a President who is petty, divisive, destructive, hyper-partisan, and sitting on a track record of regression and spouting a vision contrary to the values of the Nation.

    Additionally, this whole “like it or not” clause in Beth’s version of the Constitution doesn’t actually appear in the Real Constitution. It would seem that the Conjuction “with” makes it a fairly obvious statement that The President has to work WITH the Senate on this. Presidents of the past have often been able to rely on a fairly easy process, but then again, Presidents of the past have proven themselve cooperative and conciliatory leaders…well, that is until the cooperative and conciliatory Reagan and cooperative and conciliatory Bush had to deal with spite-driven Democrats.

    Now, since evaluations do not occur in a vacuum, or as you like to assert “given a blank ethical slate”, it’s safe to assume that a sitting Senate CAN look at the past record of a sitting President as well as the past conduct of the adherents of his worldview and decide beforehand just what kind of nominee it can reasonably expect, and therefore communicate it’s intentions beforehand. One could also say this constitutes a type of “Advice”…a power the Constitution explicitly grants the Senate. Now, if said President engaged in an incredible Paradigm shift (unlikely) and were to suddenly become bipartisan, become a team player, become a leader and a cross-aisle reconciler, the Senate may very well see its Advice has been taken.

    Do you see how the Senate has yet to fail in doing its job given the circumstances?

    So, until you can prove that the Senate is actually behaving unethically, then your #1 requirement above fails, and the argument that the Democrats don’t get to whine like babies because they used the same tactics, actually IS NOT a rationalization. Even more so, since the Democrats actually used those same tactics IN AN UNETHICAL manner.

    “It doesn’t matter if you think Obama is a horrible leader — the majority of Americans do not, that’s why they voted him into office.”

    Relying on polling data from 4 years ago is somewhat shaky, given that 2014 happened which was a clear statement to the contrary. Independent of half-decade old popularity numbers (which really weren’t that great anyway, since you are citing election results), he has PROVEN himself incapable of being trusted by any of the other branches of government…it is, therefore, their duty to slow him down.

    • texagg04,
      Did you forgot to mention that this statement is actually false, “It doesn’t matter if you think Obama is a horrible leader — the majority of Americans do not, that’s why they voted him into office” the fact is that only a majority of voters put Obama into office NOT a majority of Americans – there’s a BIG difference!

      • But that’s the case with most elections. At the end of the day, and I think this is a widely accepted but unspoken rule on Ethics Alarms: Non-voters don’t matter or count for these sorts of discussions.

        What IS key, is that claiming Obama should be seen as a great leader because of the 2012 elections is silly. All the 2012 elections tell us is that more voters considered him a better leader than Romney would have been. Which is scary in and of itself.

        Amusingly, if we actually quit looking at the President as just another Legislator, and we viewed him as a President, we’d start electing fewer partisans and start electing more statesman-like leaders.

        • texagg04 said, “I think this is a widely accepted but unspoken rule on Ethics Alarms: Non-voters don’t matter or count for these sorts of discussions.”

          Although I’m not inclined to count out the rest of the population, I’ll try to keep that in mind for similar discussions. Thanks for the input.

          • Well, I should say, statistics of voter participation ARE valid discussion points for other topics…often related to questions of WHY are participation rates so low and are there ethical reasons/implications related to that?

      • Yes, I saw Tex’s reaction, and it’s the same as mine: That argument is used to argue that the Republicans weren’t really elected by voters either. If someone didn’t vote, they essentially gave their proxy to everyone else, and said, “You decide.” They are accountable for the result, and can’t disown it.

  4. I can’t really respect scalia since he refused to apologize for demonizing henry mccollum. He basically held McCollum up as why the DP is just…..and it turned out that not only was mccollum innocent but a.) he was bullied into confessing and b.) the real killer was quite literally staring the police and prosecutors in the face the entire time (he lived 100 feet from the field where the little girl’s corpse was found, he had a decade long record of sexual violence, committed another rape and murder around the same time…..). Scalia should have eaten crow and said he was wrong. He didn’t.

    • Wrong. Scalia wrote a dismantling opinion properly ridiculing Blackmun’s emotional and non-legal attack on the death penalty. He accurately described the crime, and under the law, at that moment, McCollum was guilty of it, under the law, which is all Scalia has to go on. The fact that he was acctually innocent, at that moment, was irrelevant to the death penalty argument. Scalia wrote that this crime justified death, and he was right, and at the moment he wrote it, McCollum was legally guilty. He owed no one an apology. The cops and prosecutors who botched it do.

      This is typical of the ill-informed attacks Scalia got his whole career. People don’t understand the terms, the law, or his opinions, and make these emotional argument. Scalia didn’t demonize anyone.

      • The big question isd how many people are sop ill-informed?

        the second big question is why cops and prosecutors are physically capable of botching?Have you ever heard of the Can’t, Rather Than Don’t, principle?

      • Blackmun’s opposition to the death penalty in that case was that Mccollum had the mind of a child and thus the execution would be unconstitutional. McCollum had the IQ of a fourth grader, and by the “confession” Chris Brown and Daryl Super were the killers. Blackmun had a fair point; Executing someone with the mind of a child is cruel and unusual. Scalia’s argument was pure appeal to emotion. He said McCollum’s execution would be enviable compared to what Buie went through. If Scalia had his way an innocent would have died.

        At the very least McCollum turned out to be a lousy example in hindsight (since not only was McCollum innocent, the prosecutors hid evidence that Roscoe Artis (who dna proved was the actual murderer) was a possible suspect. The police asked Britt to compare the prints of an unknown man that were found on a can touched by the 11 year old girl. Britt didn’t conduct the tests. Years later, as I said, DNA proved that Artis actually raped and murdered the child.) To this day the prosecutor and several of the officers refuse to acknowledge they fucked up.

        Back in 2010 the Republicans used McCollum to say the democrats were soft on crime, attacking a man WHOSE DAUGHTER HAD BEEN RAPED AND MURDERED AND WHO ATTENDED THE EXECUTION OF HIS DAUGHTER’S KILLER. They also inaccurately said the Racial justice act would free killers (in reality it would have only transferred it to life in prison.)

        • !. There’s nothing in the Constitution about executing a low-IQ convicted murderer being “cruel and unusual.”
          2. Arguing that the punishment fit the crime is hardly an appeal to emotion. It’s basic logic.
          3. I already made this clear: Scalia was making the case for executing a convicted killer. In the eyes of the law, McCollum was not innocent; he had been found guilty.
          4. The rest is irrelevant to the issue and the post.

          • !. There’s nothing in the Constitution about executing a low-IQ convicted murderer being “cruel and unusual.”

            I fail to see how it could be unconstitutional to execute someone with a low IQ without being unconstitutional to have the trial in the first place.

            • Michael Ejercito said, “I fail to see how it could be unconstitutional to execute someone with a low IQ without being unconstitutional to have the trial in the first place.”

              Are you confusing unethical with unconstitutional?

              It might have been unethical to have a trial that convicted a person with low IQ of murder but I don’t think it was unconstitutional? I don’t think there is anything in the constitution that says or implies that “stupid” people cannot be be held legally accountable in a court of law for illegal actions.

      • Except that when Blackmun pointed out that Scalia made a mistake Scalia got angry and went on a rant about how evil liberals are. Also, he tried to imply that it was morally just. He’s cited the dodgy math of Joshua Marquis on the subject.

        Scalia said that morally McCollum deserved to die. He was wrong. There was evidence back then that cast doubt on the confession; it’s like when Donald Trump refused to apologize for saying the central park 5 deserved death even when it turned out it was matias reyes alone who raped the jogger

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