Justice Antonin Scalia may have gone on to his reward, but his judicial philosophy has only become more powerful here in the mortal realm. Don’t believe me? President Obama — of all people — appears to have endorsed Justice Scalia’s judicial philosophy of original intent for interpreting the U.S. Constitution. Just yesterday . . .
he stunned this political observer by referring to the “clear,” plain language and original intent behind the wording in the U.S. Constitution. Mark Landler and Jennifer Steinhauer, reporting for the New York Times on Tuesday, had the story:
“The Constitution is pretty clear about what is supposed to happen now,” Mr. Obama said during a news conference after a meeting in California with…[Southeast Asian] leaders. He said that the Constitution demanded that a president nominate someone for the court and that the Senate either confirms or rejects. “There’s no unwritten law that says it can only be done on off years,” Mr. Obama said. “That’s not in the constitutional text.”
I, for one, welcome President Obama to this brave new world (for him, anyway) of Constitutional interpretation, and applaud the philosophical growth and maturity that he is showing. By adopting the philosophy that the original intent behind the plain language of the Constitution is of utmost importance in deciding the meaning of those words, he has put himself squarely along side the late Justice Scalia, along with Justice Clarence Thomas.
He has taken the first step into a wider world, and (one can only hope) soon see the logical beauty of the judicial analysis behind such recent court decisions as D.C. v. Heller, in which the majority opinion authored by the late Justice Scalia relied on an originalist interpretation of the plain text of the Constitution to hold that the Second Amendment to the U.S. Constitution protected an individual right to keep and bear arms.
At the time, the President indicated that he disagreed with the decision, but I am confident that his own intellectual integrity will lead him to endorse the decision, for consistency’s sake.
It will also be interesting to see what kinds of nominees the president will come up with to fill the new vacancy on the court. I am sure that the Federalist Society can promulgate a list of hard-hitting legal minds that follow the originalism (or possibly just pure textualism) that Obama has now endorsed.
Or: perhaps the President is just an intellectual fraud and unprincipled Nixon-style politician who latches on to whatever argument his speechwriters throw at him to justify whatever increases his own political power.
I’m sure it’s one of those two options.
Why do I feel as tho I’m bent over a desk with a hand on each shoulder and my pants around my ankles?
You’ve been there for a while. The anesthetic is just wearing off.
😉
The nitwit-in-charge had no problem with filibustering Samuel Alito. Sure, now he says “sorry about that.” So I guess that it would be okay for the Republicans to filibuster Jughead’s nominee, as long as they apologize nine years later. Fair is fair.
The NY Slime approved of filibustering Alito. But it seems that their thinking has turned 180 degrees since they embarrassed themselves back then. I guess it depends on whose ox is gored.
POTUS and the Slime — their hypocrisy knows no limits. Unfortunately, the stupidity of the average American also knows no limits.
I wish Mcconell had a sense of humor; “Future me is very sorry he opposed you until the end of your term” would be a hilarious rejoinder.
Future McConnell would have to have much larger cojones than present McConnell.
in August 1960, the Democrat-controlled Senate passed a resolution, S.RES. 334, “Expressing the sense of the Senate that the president should not make recess appointments to the Supreme Court, except to prevent or end a breakdown in the administration of the Court’s business.” Each of President Eisenhower’s Supreme Court appointments had initially been a recess appointment who was later confirmed by the Senate, and the Democrats were apparently concerned that Ike would try to fill any last-minute vacancy that might arise with a recess appointment. Not surprisingly, the Republicans objected, insisting that the Court should have a full complement of Justices at all times. Of course, the partisan arguments will be exactly the opposite this time.rom a Washington post article
Except that Obama has stated that he will not make a recess appointment, but will wait until the Senate returns from its current recess.
“Except that Obama has stated that he will not make a recess appointment, but will wait until the Senate returns from its current recess.”
Well, Obama has also said:
“If you like your doctor, you can keep your doctor”
And –
“If you like your (health insurance) plan, you can keep your plan.”
Fool me once, etc.
@Mark N., Obama will not make a recess appointment because he wants to be able to disparage Republicans as racist when he makes a minority appointment, which he certainly will. Grist for the campaign, as it were. Were Obama to make a recess appointment, there would not be an up or down vote until that piece of garbage is out of the WH.
It doesn’t matter what Barry says or does regarding this . Our elected representatives must avoid , at all cost , letting A. C. be replaced by a progressive .
Here is the link to the article. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/13/flashback-senate-democrats-in-1960-pass-resolution-against-election-year-supreme-court-recess-appointments/
Lots of good stuff from Volokh Conspiracy on this, including a flashback to Senate Democrats passing a resolution against election year Supreme Court recess appointments.
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/13/flashback-senate-democrats-in-1960-pass-resolution-against-election-year-supreme-court-recess-appointments/
The brouhaha instigated by the Republican presidential candidates is just a tempest in a tea pot. Obama has the right and duty to nominate a replacement for Scalia. Then it is up to the Senate to affirm or deny. There is no good reason to leave the court without nine justices for more than a year while a new president is elected, makes a nomination, and what has become a months long gauntlet of a confirmation process to take place.
I do not recall all the names I saw as the possible “short list” of nominations to the Court. Two are justices of the D.C. Circuit (an often tapped source of nominees), one of whom is from India by birth and has a very respectable resume. Two others (start your whining now) are Loretta Lynch and (believe it or not) former AG Eric Holder (who has no chance of ever being confirmed after the contempt citation and the Fast and Furious Fiasco). And the last was Jeh Johnson, who has a very interesting resume aside from his current stint.
Obama, acting in his capacity as President, has the *power* to appoint a Justice. It’s not a right.
There is nothing sacred about the number of Justices on the Bench. The count has been changed many times by an Act of Congress over the years.
If the President decided that he was going to do nothing but appoint unqualified cronies to the Judiciary, why would it be wrong for the Senate to block those appointments, even if it left the Supreme Court with “only” eight justices? Or seven? Or five? The Court would continue to function, and cases would continue to be adjudicated. There’s a procedure for handling 4-4 splits. It’s not like the Supreme Court handles hundreds of cases in a day, ala Harry Stone’s Night Court.
The tempest in the teacup is the idea that doing without a ninth justice until 2017 would somehow damage the judiciary or the country. It would not.
“There is nothing sacred about the number of Justices on the Bench. The count has been changed many times by an Act of Congress over the years.”
So, a President can be elected, and if his (or her) party has solid control of the lower and upper House, he can have the bench expanded to (whatever convenient number of) justices, then nominate who he wants and have his party confirm and swear them in?
Nice way to pack a court. What happens when the other party gets control and decides to shrink the court, who fires the excess justices? Or just wait for them to retire or croak?
No one. That’s why Roosevelt’s court packing scheme was so extreme. The only possible option would be impeachment, but that’s very difficult, and what would be the justification?
Sedition.
If we reduced the court to 7, then assumed the logical concepts of seniority, wouldn’t that say goodbye to Sotomayor? Wasn’t she the most recent? Sounds good to me.
There is no conceptual difference between a right and a power in this context. No, there is nothing “sacred” as to the number of justices, but the number has always been an odd number to avoid ties, and the fact of the matter is that a tie is a waste of a very limited judicial resources. I never suggested that it would be “wrong” for the Senate to block appointments, or more realistically, simply vote down any nomination of an unqualified candidate, so don’t put words in my mouth.I don’t know what “procedure” there is to handle ties; it is my understanding that a tie is an affirmance of the Circuit Court decision. And despite the small number of cases, the work load is tremendous, and the issues important that they address. The more minds the better.
In the final analysis, you evade my point, that there is no good reason to delay a Supreme Court nomination and confirmation process for a year and a half simply because there is an upcoming election; in fact, I don’t believe any President has failed to do so in similar circumstances. Just because he is a Democrat and you would prefer that a Republican do the nominating is not a valid reason. And it may turn out, to our chagrin, that it would be an avowed progressive socialist doing the appointing.
“There is no conceptual difference between a right and a power in this context.”
From a layman’s perspective only. The Constitution, however, defines the “powers” that the People have delegated to the federal government generally, and the President in particular. It does not describe any “rights” of the President or any other officeholder beyond which they would possess along with the rest of the citizenry.
“a tie is a waste of a very limited judicial resources.”
I’m not sure what resources are wasted — the tie is treated as an affirmation of the lower court, but not as binding precedent. The case at bar is adjudicated one way or another. I suppose you may mean there’s a potential waste of resources from the issue at hand winding its way back up to the Court in some future litigation — In which case yes, that might be true. Of course, that’s also true of a lot of federal courts, many of which have pressed Senior (semi-retired) Judges into service to help alleviate backlogs.
“The more minds the better.”
Yes and no. It would mean a bit more work for the clerks and the Justices. I’m not sure if more minds are always better — sometimes too many cooks spoil the soup.
“there is no good reason to delay a Supreme Court nomination and confirmation process for a year and a half ”
Well, no, there are potentially some very good reasons for doing so. If the President appoints a Justice who appears to be determined to use her powers and influence while in office to usurp the civil liberties of the people, there is a very good reason for the Senate to simply sit on its hands and run out the clock on the Administration.
“And it may turn out, to our chagrin, that it would be an avowed progressive socialist doing the appointing.”
Maybe. Or maybe not. Depends what kind of people the avowed socialist will try to appoint, and whether they’d be more or less inclined to respect our civil liberties. (Probably not. On the other hand, an open and honest “socialist” might have slightly more integrity than the current officeholder.)
The upshot of all this is that we don’t know if there’s a good reason to try to block Obama’s nominee yet. We won’t know until we actually nominates someone. But given the performance of nominees from Obama and other Democratic presidents in the past (such as the amoral pragmatist Breyer, who appears to want to expand federal power at the expense of civil liberties wherever he can,) I’d say that there’s considerable reason for all of us to be ready to try to do so.
Update to my previous post: tie cases may actually be reargued after confirmation, per SCOTUSBlog: http://www.scotusblog.com/2016/02/tie-votes-will-lead-to-reargument-not-affirmance/
Jan 20, 2017 is not a year and a half, over a year, or any of the other references in this thread. Is there a rule that a new president has to wait 6 months after inauguration before nominating a SC justice? Cuz I haven’t heard of that. Schumer was demanding that W not be allowed to nominate a SC justice in July, 2007, which WAS a year and a half, but he has forgotten that, now, or maybe it was different.
“The upshot of all this is that we don’t know if there’s a good reason to try to block Obama’s nominee yet.”
And we won’t. Osama uses the power of government to hide the truth from us, and nominates justices who lie about their positions to the Senate. We need to not allow any nomination he makes. If America wants to elect Hilarity because of that, she can nominate whoever she likes, but the current POS should be done.
Thank you Mr. Paulsen , I could have never put it so eloquently as you have here .
Please , everyone , read this again .
100 % correct .
Very important to understand and spread the knowledge .
“There is no good reason to leave the court without nine justices for more than a year while a new president is elected, makes a nomination, and what has become a months long gauntlet of a confirmation process to take place.”
No good reason? Keep another “living constitution” liberal that hates guns and will do away with Heller the first chance they get isn’t a “good reason”?
Of course there is a good reason to delay, to give the new POTUS the choice of nominees for SCOTUS.
This presidential election is referendum on the will of the people. The tradition is clear, and anyone who believes the SCOTUS will suffer for waiting 8 months hasn’t been paying attention.
Naturally some lawyers will squawk because nothing happens on some cases until the situation clears up.
The idea that federal court judges, district and SCOTUS is not politicized is either incredibly naive or simply propagandizing for the Left.
U.S. Constitution, Article II, Section II:
No procedure is specified. All it says is “by and with the Advice and Consent of the Senate”. If the Senate says the nominee will never make it past the committee vote so we won’t waste anyone’s time, then they’ve Advised and have not Consented. If Obama miraculously sent someone over acceptable to the Senate majority, then there might be a discussion worth having. Otherwise, the Senate doesn’t owe the President anything very specific, Constitutionally speaking.
Exactly: no where in the constitution does it require that they consent; and there are many ways in which the Senate can choose not to consent to a given candidate; they can do a simple up or down vote, but they could also kill it in committee or filibuster it until time runs out. I would have preferred that they had given specific candidates (preferably universally strict constitutionalists) as advice, rather than a blanket statement that they would not consent to any, but, that is not the tact they chose; that is their prerogative.
The Constitution says “Advice and Consent”. It does not say “Go pout in the corner”. By vowing not to consider ANY nominee, the Republican leadership is refusing to fulfill their constitutional duty, which is treasonous.
The Constitution says “Advice and Consent”. It does not say “Go pout in the corner”. By vowing not to consider ANY nominee, the Republican leadership is refusing to fulfill their constitutional duty, which is treasonous.”
“Treason “is a strong word. You are incorrect. The histrionics aren’t helpful. The law as it stands is…
As affirmed by a Supreme Court decision during this administration, the Senate’s protocols and procedures are their own to determine. Just as the Senate is in session when it says it is, the Senate discharges its authority to “advise and consent” as it says it will. (The Senate also can decide to overturn it’s own long standing conventions and precedents, as for example, when Majority Leader Harry Read decided that there would be no more filibusters of federal judicial appointments. As Leader he was quite adept at using any maneuver available to amplify on: “Shut up,” he explained.)
There is no requirement that the Senate take up a nomination timed for the convenience of a particular president, party or election. Sometimes one politician or another is annoyed at the timing. All this has happened before, and all this will happen again.
As also affirmed by the Supreme Court during this administration, when the court several times determined that legislative matters should reside with the legislature, for example declining to overturn the Affordable Care Act on grounds that if people object, the remedy is the political process.
This court, and indeed the originators of the constitution, if you would read, for example, The Federalist Papers, throw such contentious issues to political resolution, repeatedly. The current administration, with it’s electioneering skill (“I won.”), will make great amounts of hay off this event. The Stupid Party will likely wrap themselves around the axle any number of ways.
As the current president infamously said (which might help explain the limitations on cooperative governance under his administration): “I won.” Well, they won. Several times. So they get to do what they get to do.
One could suggest that if the current president wants a nominee to go through, he might 1) try to choose someone acceptable to most of the Senate and 2) maybe don’t start the discussion with the public name calling. In the end, he wants the issue. You, yourself, aren’t helping the process, falling for this.
For myself, I would prefer that issues of the scope and authority of the federal government be themselves resolved in a political process. I’m not a fan of the executive declaring “We can do this, too.” then it winding up in court. Thus, I have clear preferences in the kind of justices I would prefer to see on the court. And my preferences in this align not at all with the current president’s.
In this sense Scalia was far more “originalist” than “conservative.” Indeed, like Roberts, he p-o-ed the “conservatives” more than once via his relatively consistent philosophy of law, in both cased pretty limited.
Indeed, this president is in the position of being able to build a legacy of his choosing, through any attempted appointment, while himself being out of reach of the consequences of any political process. The legacy this president is building in his approach to this issue so far, is, well, consistent.
I doubt the ANY is entirely accurate. Which renders the “treasonous” not entirely accurate, either. I do think Obama should try calling the Republicans on their obstinate stance, by nominating Ted Cruz…
Osama should name Cruz AG. Somebody should, anyhow.
“…refusing to fulfill their constitutional duty, which is treasonous.”
Really? That’s what you got? What’s next: “racist, homophobes?”
The bald truth is, the solution here is political – get a different bunch of people elected, and / or inflict consequences on folks who don’t do what you’d prefer. Mr. Paul is doing exactly the latter, as the “treasonous” and related name calling is simply attempting to inflict a political cost on people he doesn’t agree with policy-wise. Good for him, but let’s call it what it is.
Megan McArdle has a useful take on judicial appointments in her most recent column. Judicial appointments have become so fraught because they have become “policy by other means.”
My proposal for anti-gun folks in the US is the same: use the political process. If you don’t like what you are able to do nationally, maybe try state, regional, or smaller. For example, I think the firearms laws in NYC are silly. NYC *imposing* their preferences on people hundreds of miles away, is something else, entirely.
If you can’t get the laws you’d like past the constitution (“Heller” for example), my advice remains the same. Propose your amendment and have at it. If you can’t get enough other people to agree, well, that’s be cause they don’t agree. And they’re here too. And you don’t get to impose your preference for disarming other people by verbally abusing the Senate into accepting a Supreme Court Justice who will do it for you.
The other bald truth here is there are remedies for “treason.” I look forward to seeing from Mr. Paul the lawsuit vs. the AG demanding the offenders be prosecuted for treason; the petition to the White House demanding that The President direct his administration to do exactly that; demands for motions to impeach from various congresscritters (I’m sure Chuck-y could be convinced to do it on an otherwise slow news day. Former Leader Read, would take rather less convincing, I suspect.)
Otherwise, this is just more “politics by other means”, of the name-calling variety.
Treasonous? LOL. How is the Senate saying they won’t confirm any nominees not exactly like Obama saying he will veto any bill passed that repeals Obamacare. Nothing is stopping Obama from wasting his time and nominating someone when he already has the answer. Let him nominate away.
Let’s say that come November, a Democrat wins the White House, and Republicans retain control of the Senate. Are we to wait another four years? Do the Democrats have to win both the Presidency and a super-majority in the Senate to fill the empty seat?
Congress is free to override any Presidential veto, if they have the votes.
Congress is not free to sit on their thumbs indefinitely until they can get a President who will appoint who they want to the Supreme Court.
In your scenario, if the new Democratic President feels she has the political capital and can convince the public we need another Justice the Republicans in the Senate will feel the heat to act from their constituents. Democracy in action. Note that there is no reason why we can’t continue with 8 justices. You would think that the Liberals would be happy that the court is down one conservative vote. Odds are more court cases will swing their way. I guess the need to prop up Obama’s legacy with any kind of accomplishment overrides all other considerations. I hope Obama does as expected and nominates an extreme leftist forcing the Democratic presidential hopefuls to swing further left to defend his choice.
The advice Senate Republicans have given Obama is they believe no one he can nominate will be able to receive their consent. Obama could call the bluff by nominating someone that should be acceptable. Say, Frederick Scullin or William Traxler, who both handed down highly significant pro-gun decisions. If they still refuse to budge, then yeah, they’re just being petulant morons.
However, they are under no obligation to approve somebody just because there’s a vacancy. The President has the power to nominate, and the check on that power is the requirement of the Senate’s consent.
“Let’s say that come November, a Democrat wins the White House, and Republicans retain control of the Senate. Are we to wait another four years?”
Wow that situation has never happened ever in the history of the Repulic!
Oh, wait it did. Look up Sonia Sotomayor. There make believe crisis solved you can sleep tonight.
Treasonous? No, but it is politicking at the expense of the federal judiciary, and that is something the voters are fed up with. The federal bench is woefully short of judges and justices all over the country, and the business of the Senate is to get those seats filled with qualified candidates. Candidates should be reviewed and given an up or down vote, and be done with it. The administration of justice does suffer when there are not enough judges to handle the case load; justice delayed is justice denied.
The administration of justice? Hahahahahah. Where there is a Kelo v. City of New London, there is no justice.
and tonight’s “Nightmare Scenario”……………………………
“Obama, emboldened by Hillary’s suggestion of naming him to the Supreme Court once she’s president, does a fast end run and nominates himself for the Supreme Court. The republicans, totally out maneuvered, have little choice (and even smaller cajones) and confirm his nomination leaving Shotgun Joe as the new President. Shotgun Joe, also emboldened by his sudden power, realizes that he can use the power of the presidential pulpit and declares his candidacy for the Democratic nomination and then wins he election going away in November by promising all the Democratic voters more and more of the same as Obama”
Sitting back with a BIG bowl of popcorn to watch all of this unfold
Not going to happen. Not only is it ridiculously implausible, Obama doesn’t want the job.
You are correct, Sir
I don’t know what the Justices are paid but past presidents can make a lot more getting paid for speeches. As demo stated by that silver tongued devil, Bill Clinton & pant suit granny, Hillary.
Also, he would have to show up for work some days.
He pays attention to the Constitution when it’s useful to him, like when he needs something to wipe his ass.
Or the Senate could follow Trumps advice, Delay, delay, delay that way if he is elected he can nominate his liberal nut job sister to the seat.
He has already stated two names that he considers the type of justice he would nominate, William “Bill” Pryor Jr. and Diane Sykes.
Major problem if a 2nd Amendment case gets in front of the Supreme Court. Richard Pearson & the NRA affiliate Illinois State Rifle Association are doing their part to speed the process. Supreme Court denied review of Friedman v. Highland Park in December 2015.
Pearsons justification for selling out his members in Rep. Brandon Phelps “NRA backed” HB183 carry bill in 2013 was they had to have preemption. Criminal penalties of 6 MONTHS or 1 YEAR in jail for hundreds of gun-free zones, an unelected Star Chamber review board where any cop in IL can smear the applicant anonymously, and of course Duty to Inform so police can execute armed citizens, provided by NRA lobbyist Todd Vandermyde. All for the greater good according to the big brains in southern Illinois.
They got preemption and a 10 day sunset on any assault weapons ban by local government. The hicks at ISRA couldn’t call it a win and drive their monster trucks back to Dixieland, they had to sue Highland Park. Feeling their oats after doing nothing to promote concealed carry for 20 years. Flop!
On December 7, 2015, the Mayor and police chief of Highland Park held a press conference to crow about their victory over “the gun lobby.” Reporter Marcella Raymond from WGN was there, stating “we have contacted ISRA (world headquarters) in Chatsworth, but our calls were not returned.” Dr. Arie Friedman made a mistake when he trusted the “man” who sold out Otis McDonald. Be sure to thank ISRA for jamming up case law for all 50 states.
As with their use of “choice,” for the Left, “consent” too is a one way street.
I wouldn’t hold your breath!
Looks like POTUS Dindunuthin’ has hired a legal clerk to spin for free on demand at NYT. Sorry, Old Gray Whore, I stopped reading you years ago on principle.
Here’s more mockery of the Telepromter In Chief. Read the middle link if not the others.
http://pjmedia.com/instapundit/226987/
A correction concerning Justice Scalia. He did not advocate “original intent”, and actually opposed that idea as being too subjective. He advocated “original meaning”: what a reasonable person of the time would understand the words used to mean.
Note that “of the time” includes the time of any amendments. Someone the other day said that Scalia and the originalists would deprive women and blacks of the right to vote. He seriously did not understand that Scalia and other “original meaning” people would note that the amendments to the constitution are now in force (being adopted in accordance with the original meaning of the constitution), and they should be interpreted in light of what a reasonable person at the time of their adoption would understand the words to mean.
“Advise” would include the Senate taking the opportunity of presenting the President with a list they approve of ahead of time and urging him to pick one.
The Senate should thus make a list of people who would stand with Barry Goldwater on the issues of armed citizens, gay rights, etc., since Barry today would be considered a left winger on most individual rights, but a right winger on arms.
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