Justice Ginsburg has died; McConnell vows to fill the vacancy

[Tom Servo]

The DNC side of the house has been openly talking about nuking the filibuster.

They already did. Harry Reid did so in 2013 in order to get vacancies filled quickly in the federal courts. He made a pinky-swear that this would never, ever apply to Supreme Court appointments, though. Lindsey Graham and Mitch McConnell were among the Senators who warned him not to do it.

From there, it was a short jump. Now it only takes 51 votes to break a filibuster, and it only takes 51 votes to confirm. That means the party with the bare majority in the Senate gets to make the appointment.

Republicans currently hold 53 seats (54 if we count VP Pence as a tie-breaker). Even with a couple of defections, they can get what they want.

 

[Aguila Blanca]

The DNC side of the house has been openly talking about nuking the filibuster. I can see Mitch giving them a premptive dose of it.

Let them nuke the filibuster. It should have been abolished decades ago.

Any proposed law deserves a proper discussion, and a vote. If the votes are there to pass it, so be it. A law that is supported by a majority of the duly elected legislators should not, IMHO, be blocked by "parliamentary procedure."

Yes, we'll get some laws we don't like that way. That's why we need a Supreme Court that will review laws based on the Constitution, not on their personal biases or what courts are doing in Europe.

At the same time, we also need to do away with so-called "poison pill" amendments. No proposed bill should have amendments tacked onto it for the sole purpose of making it unacceptable to the very legislator(s) who proposed it. That's not statesmanship -- that's dirty politics.

 

[TXAZ]

... That's not statesmanship -- that's dirty politics.

Unfortunately, that's what most US politics have devolved into, resulting in divisiveness that sometimes makes the Korean and Indian parliament chair-throwing debates look tame.

 

[TXAZ]

This is getting complex... Large numbers of senators and other pols are attempting to dictate terms and conditions. Then you've got others threating to "burn the ******* place down" if Trump nominates / and or McConnell holds a vote.

I'll ask my earlier question in a different way: Is this specific (new at some time in the future) justice that critical to the Second Amendment?

 

[Aguila Blanca]

I'll ask my earlier question in a different way: Is this specific (new at some time in the future) justice that critical to the Second Amendment?

IMHO, yes.

The Supreme Court is in a delicate balance at the moment. One of the staunch conservative justices, Clarence Thomas, isn't going to live forever. If he dies or retires during a Democratic administration, his replacement will almost certainly be anti-2A, because it's inconceivable that a Democratic President would nominate anyone who isn't vehemently anti-2A. Roberts is either squishy on the 2A, or quietly against it.

That means (again, IMHO) that getting a pro-2A or, at least, 2A-neutral strict constructionist/originalist justice in place now to replace Ginsberg is indeed crucial. If a pro-2A justice is confirmed, we might then see the SCOTUS actually take up a few more 2A cases before Thomas departs the Court. And, since Roberts claims to support stare decisis (which means he doesn't like to upset previous SCOTUS decisions), getting a few more pro-2A decisions on the record could prove to be pivotal for generations to come.

 

[raimius]

Yes, right now, we suffer under a 4-1-4 court on the 2nd Amendment, which is why we keep getting cert denials and NYSRPA v NYC got shoved aside despite NYC's blatant maneuvering to dodge judgment. Neither side really knows who will win (which is really sad that "sides" and "winning" is more accurate than getting sound legal judgments). With a pro-2A justice replacing RBG, we would know much better where we stand, and would likely be able to address 2A issues, and build actual SCOTUS case law and doctrine.

 

[PolarFBear]

Novel idea. Why not have a "next SCOTUS appointee" be nominated and approved in advance. The same idea as an alternate jury member. Since appointment to SCOTUS is "supposed" to be non-political there would be no waiting for a full bench.

 

[Aguila Blanca]

Novel idea. Why not have a "next SCOTUS appointee" be nominated and approved in advance. The same idea as an alternate jury member. Since appointment to SCOTUS is "supposed" to be non-political there would be no waiting for a full bench.

Interesting, but not really a parallel to a jury alternate. A more apt parallel would be to have an alternate justice sitting in the wings in the event one of the justices has to recuse him/herself from a particular case.

I don't see how approving a future/alternate justice would be any less political than it is now. In fact, it would probably be worse, since it would raise the possibility of a new justice taking office during the term of an administration that might have opposed his/her confirmation.

 

[zxcvbob]

Interesting, but not really a parallel to a jury alternate. A more apt parallel would be to have an alternate justice sitting in the wings in the event one of the justices has to recuse him/herself from a particular case.

I really like that idea! But I wonder how that would affect justices' decision when to recuse themselves?

 

[Aguila Blanca]

Recusal is for when a justice (or a judge in a lower level court) has a conflict of interest. Today, when the Internet knows everything about everyone, I don't think a justice would fail to recuse him/herself in the event of a conflict of interest, because failing to do so could potentially endanger the entire hearing and decision when -- not if -- the conflict later became public.

Interestingly, the Constitution does not spell out in other than the most general terms the procedure for appointing Supreme Court justices.

https://www.thoughtco.com/understanding-the-supreme-court-nomination-process-3368219

The President] 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.

 

[Doc Intrepid]

There is at least some evidence to support this.

RBG gave a number of interviews some years back, one was expressed in an op-ed piece on the editorial page, in which she clearly laid bare her opposition to the 2nd Amendment.

https://www.nraila.org/articles/201...ce-again-shares-her-intent-to-overturn-heller

Her personal views on the matter did not cause her to recuse herself when the issue was discussed before the court.

 

[Aguila Blanca]

There is at least some evidence to support this.

RBG gave a number of interviews some years back, one was expressed in an op-ed piece on the editorial page, in which she clearly laid bare her opposition to the 2nd Amendment.

https://www.nraila.org/articles/2016...verturn-heller

Her personal views on the matter did not cause her to recuse herself when the issue was discussed before the court.

I don't think having an opinion on the Constitution is an automatic reason for recusal. Who among us doesn't have opinions -- on a lot of things?

A conflict of interest is when a case involves a relative, when a judge may have a personal or financial interest in the outcome of a case, or something like that. For example:

A number of years ago I was engaged as an expert witness for a swimming pool service contractor who was suing a building contractor who had performed alterations on his house. When we got to court on the appointed day, the case was called and the attorneys for the two sides introduced themselves and their respective clients. The judge (a woman, not that it matters) looked at my client, looked at the case record in front of her, and asked my client (who was the plaintiff), "Are you the owner of XYZ Pool Maintenance Company?"

My client acknowledged that he was, whereupon the judge apologized but said she felt she had to recuse herself from the case because she had used that company to service her swimming pool. Therefore, she has a business relationship with the plaintiff in the case, and she felt that was a potential conflict of interest.

 

[KyJim]

Personal views should rarely dictate recusal. Most of us have opinions on the big issues in the world. The question is whether a judge can set aside his or her opinions and follow the Constitution and the law.

Furthermore, a strong opinion does not usually equate to a conflict of interest. Those most often come up when a judge has something personal at stake, such as owning stock in a company that comes before the court

 

[zukiphile]

The problem with the concept of recusal at the level of the Sup Ct is that there is no one to enforce a remedy. Disqualification is voluntary.

There is code requiring disqualification from hearing any case "in which his impartiality might reasonably be questioned". https://www.law.cornell.edu/uscode/text/28/455

Scalia recused himself from a case in which the words "under God" were at issue because he had discussed his view in a public speech. On the other hand Kagan was BHO's solicitor general and had expressed support for the ACA before sitting on the Court, and she only recused herself from hearing some ACA involved matters.

 

[kell]

No one is gonna take your guns. Don't let radical factions on either side influence your thinking. Think for yourself, you're not stupid, we all can do it. Use your own common sense and judgement.

 

[Metal god]

From there, it was a short jump. Now it only takes 51 votes to break a filibuster, and it only takes 51 votes to confirm. That means the party with the bare majority in the Senate gets to make the appointment.

I’ve been thinking about this . Can/should mitch change the rules back if they loose the senate and add to change the rules again you need 60 votes ??? That what he should do if he can IMHO . I think it was wrong when Reed did it and although understand why Mitch did it . We really should go back to the old rules and make it harder to change them .

 

[5whiskey]

Let them nuke the filibuster. It should have been abolished decades ago.

I disagree. The wheels of this republic is supposed to turn slow, and the filibuster is one more tool that gives a minority enough influence to block bad laws. Kind of like the electoral college (and the senate itself) ensures less populous states have a way to not be steam rolled by the whims of NY and CA. And that filibuster (which is likely dead now anyway) could be the only thing that stops sweeping gun bans should democrats win the presidency and control of the senate. But if that’s the only thing stopping it... it’s probably going to be scrapped.

And this hot of the press. The below article discusses the potential (actually more implies that it WILL happen) if a new justice is confirmed now. Written by a never trump Republican (though at time I can relate with the sentiment), it states that dems are sure to pack SCOTUS with 15 justices and generally commit other shenanigans if and when the they win the election (“If” being in tiny print, and “when” is much more implied).

I actually think that’s a bit doom and gloom. What goes around comes around, sure, but I don’t see a move that extreme because surely Democrats would recognize the political suicide they would be committing...

A bit into politics but I’m not trying to really play partisan or denigrate one party or another, just talking strategy.

https://www.usatoday.com/story/opin...rt-republicans-should-wait-column/5842050002/

 

[Mainah]

What goes around comes around, sure, but I don’t see a move that extreme because surely Democrats would recognize the political suicide they would be committing...

We're living in a political time that is defined by the voter's desire for institutional change. And the Dems have managed to nominate Clinton and then Biden. So I'm not convinced they know what political suicide looks like.

I'm not a fan of Trump. But he absolutely has the right to move forward with RBG's replacement. And the Democrats inability to navigate the current system isn't a justification for packing the court.

 

[zukiphile]

Whiskey, I concur about the point of the Senate. Maybe it's extraordinary that the body of tradition that protects minorities in the senate survived conversion of the Senate to an elected body at all.

I actually think that’s a bit doom and gloom. What goes around comes around, sure, but I don’t see a move that extreme because surely Democrats would recognize the political suicide they would be committing...

I'm not sure how much strategic foresight was involved in the Byrd rule and the Reid rule. Beyond the legitimate function of the Senate in slowing or thwarting legislative action, these traditions of minority protection only continue where the majority of senators understand that those traditions leave each of them individually more powerful than if each were simply one of 51 on any issue.

That's a point with enough subtlety and complexity that it won't be persuasive to movements that see these institutions of representative government as inherently corrupt or racist.

 

[Grant 14]

Speaking of "Conflict of interest" and recusing from issues, I wish we could make it law that all politicians had to recuse from any issue that they had a financial connection with. Then we might have a "Government of the People" rather than a "Govt For The Politicians". Getting the secret money (super packs) out of politics would be a good start. Voter suppression should be a felony. I am just dreaming and I wont hold my breath while waiting. Grant.