Closed Thread
 
Thread Tools Display Modes
  #151  
Old 03-22-2017, 05:17 PM
Miller Miller is online now
Sith Mod
Moderator
 
Join Date: Dec 2000
Location: Bear Flag Republic
Posts: 42,939
Quote:
Originally Posted by Bricker View Post
That's not what happened, actually. Following Bork's rejection, Anthony Kennedy, a much more moderate jurist, was nominated and confirmed. (Actually, he was the third nominee for the seat; Douglas Ginsburg was the second but withdrew following revelations concerning his marijuana use.)

Not sure why you'd believe that the seat remained empty for that long.
Well, you said that his seat was "stolen" in the same way that Garland's seat was stolen, so I assumed that meant that the Democrats prevented Reagan from filling the seat at all until they got their own guy in the White House. Not that Reagan simply didn't get his first pick for the role.

So, remind me again how they're effectively the same thing? Because those are actually two very different situations.
  #152  
Old 03-22-2017, 05:29 PM
Iggy Iggy is offline
Guest
 
Join Date: Jun 2012
Location: somewhere else
Posts: 5,079
Quote:
Originally Posted by Okrahoma View Post
So - fake news?
I would say the matter has been imprecisely reported by Daily Kos. And it seems Rick Kitchen quoted the Daily Kos headline that had a detail wrong.

Today's SCOTUS ruling did not overturn "a Gorsuch ruling" with today's decision.

The Daily Kos article criticizes a Gorsuch decision in a case, Luke P., that was not under appeal to SCOTUS. And the Daily Kos article does not disclose that the SCOTUS opinion was not related to the Luke P case they referenced.

Here's a link to the Luke P decision which Gorsuch wrote.

The key phrase from the Luke P decision Sen Durbin took exception to was
Quote:
...
From this direction, we have concluded that the educational benefit mandated by IDEA must merely be "more than de minimis." Urban ex rel. Urban v. Jefferson County Sch. Dist. R-1, 89 F.3d 720, 727 (10th Cir.1996).
...
So the precedent Gorsuch referred to came from the Urban case, a decision written by TACHA from a case heard by a panel including McKAY, and JONES, Circuit Judges. Gorsuch did not make the precedent in Urban. He did apply that precedent in Luke P.
  #153  
Old 03-22-2017, 05:36 PM
Falchion Falchion is offline
Guest
 
Join Date: Oct 2013
Posts: 923
Quote:
Originally Posted by Iggy View Post
I would say the matter has been imprecisely reported by Daily Kos. And it seems Rick Kitchen quoted the Daily Kos headline that had a detail wrong.
So, what you've concluded is that a panel of the Tenth Circuit (that did not include Gorsuch) interpreted the statute in a particular way. Several years later, Gorsuch wrote an opinion that applied Tenth Circuit law. Several years after that, a case (which also did not involve Gorsuch but which also applied the same Tenth Circuit law) was reversed by the Supreme Court.

And describing that as "unanimously overturn[ing] a Gorsuch ruling" was "imprecise"?
  #154  
Old 03-22-2017, 05:37 PM
Fotheringay-Phipps Fotheringay-Phipps is online now
Guest
 
Join Date: Mar 2009
Posts: 11,420
I would say imprecise and lacking context.
  #155  
Old 03-22-2017, 05:37 PM
drad dog drad dog is offline
Guest
 
Join Date: May 2015
Posts: 5,137
Stealing a base implies playing by the rules. Getting an oscar implies playing by the rules.

This was not playing by the rules, in an adversarial game. If it was not illegal that doesn't change that it was stolen from the injured party. It's not a "wish."

If that was stolen and the premise behind voting for trump was "Because the Supreme court!!" you can't separate the theft from the election which was very close. The motives of McConnell et al are against the interests of the electorate. Any of a number of pivots may turn such an election. I link the two things because a lot of people said, and I actually heard people use, the rationale of "The Supreme Court!" for their trump vote.

It may be only remediable through politics, and good luck with that later on.
  #156  
Old 03-22-2017, 05:38 PM
k9bfriender k9bfriender is offline
Guest
 
Join Date: Jul 2013
Posts: 8,023
Quote:
Originally Posted by Bricker View Post
Correct. I don't agree that there was any major break with prior accepted practice, considering the Bork precedent. At best, the refusal to even hold a hearing, as opposed to holding a meaningless hearing with a foreordained result, is something I argue is relatively trivial. I certainly don't accept the notion that this constitutes a "stolen," seat, unless we're also calling Bork's seat stolen.
I don't agree, once again that it is the same thing at all. In Bork's case, you have senators voting down a candidate for political reasons, but those reasons were related to the candidate, not the nominating president. The democrats just really didn't like the guy, for personal, political and ideological reasons, and so voted against him, and defeated his nomination. Advise and Consent accomplished.

The next SC that Reagan put up did get confirmed.

Also the fact that there was no hearing or vote on Garland is significant as well. It is entirely possible that, if a vote had been held, a few republicans would have crossed the line and voted for him. You could argue that it is unlikely, but we will never know, because Mcconnell didn't want to risk finding out, so refused to hold a vote, or even a hearing. The fact that Bork got a vote and Garland did not does make them very significantly different in my opinion.

Another difference here, of course, is that had Obama withdrawn garland, or garland had been defeated, he could have put up a different SC nomination, and had republicans followed the precedent that you are invoking, they would have confirmed him.
  #157  
Old 03-22-2017, 05:42 PM
Bricker Bricker is offline
And Full Contact Origami
SDSAB
 
Join Date: Dec 1999
Location: Northern Virginia
Posts: 55,586
Quote:
Originally Posted by Miller View Post
Well, you said that his seat was "stolen" in the same way that Garland's seat was stolen, so I assumed that meant that the Democrats prevented Reagan from filling the seat at all until they got their own guy in the White House. Not that Reagan simply didn't get his first pick for the role.
Reagan didn't get his first pick for the role. Instead he had to settle for quasi-liberal Anthony Kennedy.

Quote:
So, remind me again how they're effectively the same thing? Because those are actually two very different situations.
Not in any way that matters, in my opinion.
  #158  
Old 03-22-2017, 05:44 PM
Bricker Bricker is offline
And Full Contact Origami
SDSAB
 
Join Date: Dec 1999
Location: Northern Virginia
Posts: 55,586
Quote:
Originally Posted by k9bfriender View Post
The next SC that Reagan put up did get confirmed.
No, the third guy did.

The second guy was Douglas Ginsburg.

Quote:
Also the fact that there was no hearing or vote on Garland is significant as well. It is entirely possible that, if a vote had been held, a few republicans would have crossed the line and voted for him. You could argue that it is unlikely, but we will never know, because Mcconnell didn't want to risk finding out, so refused to hold a vote, or even a hearing. The fact that Bork got a vote and Garland did not does make them very significantly different in my opinion.
I agree it's a difference, but not (in MY opinion) a significant one.

Quote:
Another difference here, of course, is that had Obama withdrawn garland, or garland had been defeated, he could have put up a different SC nomination, and had republicans followed the precedent that you are invoking, they would have confirmed him.
Sure. Why didn't he? You could argue that it is unlikely, but we will never know, because Obama didn't want to risk finding out.
  #159  
Old 03-22-2017, 05:47 PM
iiandyiiii iiandyiiii is online now
Member
 
Join Date: Aug 2010
Location: Arlington, VA
Posts: 29,153
I see no reason to believe that the new precedent won't be that SCOTUS vacancies won't get filled unless the Senate and WH happen to be the same party. Neither party has any incentive whatsoever to not block the other party's SCOTUS nominees, considering that it seems to have no political cost to do so.

Last edited by iiandyiiii; 03-22-2017 at 05:48 PM.
  #160  
Old 03-22-2017, 05:48 PM
Miller Miller is online now
Sith Mod
Moderator
 
Join Date: Dec 2000
Location: Bear Flag Republic
Posts: 42,939
Quote:
Originally Posted by Bricker View Post
Reagan didn't get his first pick for the role. Instead he had to settle for quasi-liberal Anthony Kennedy.



Not in any way that matters, in my opinion.
Reagan got to fill the vacancy on the Supreme Court left by Lewis Powell. Yes or no?

Obama got to fill the vacancy on the Supreme Court left by Antonin Scalia. Yes or no?
  #161  
Old 03-22-2017, 05:57 PM
Bricker Bricker is offline
And Full Contact Origami
SDSAB
 
Join Date: Dec 1999
Location: Northern Virginia
Posts: 55,586
Quote:
Originally Posted by Miller View Post
Reagan got to fill the vacancy on the Supreme Court left by Lewis Powell. Yes or no?
Yes. But not with the guy he wanted.

Quote:
Obama got to fill the vacancy on the Supreme Court left by Antonin Scalia. Yes or no?
No.

But this formulation seems to suggest Democrats are permitted to break established custom, and in response the MOST Republicans can do is break it to the same extent. Democrats got to Bork Bork, and that's not only acceptable but also defines the limits of future boundary pushes?

Why would I possibly agree to that rule, Miller?
  #162  
Old 03-22-2017, 06:09 PM
Miller Miller is online now
Sith Mod
Moderator
 
Join Date: Dec 2000
Location: Bear Flag Republic
Posts: 42,939
Quote:
Originally Posted by Bricker View Post
Yes. But not with the guy he wanted.
Not the first guy he wanted. But he did get his guy in there.

Quote:
No.

But this formulation seems to suggest Democrats are permitted to break established custom, and in response the MOST Republicans can do is break it to the same extent. Democrats got to Bork Bork, and that's not only acceptable but also defines the limits of future boundary pushes?

Why would I possibly agree to that rule, Miller?
I thought your argument was that Republicans are, in fact, breaking custom to the same extent Democrats did when they blocked Bork? Are you now admitting that this really does represent a significant escalation of the politicization of the Supreme Court?
  #163  
Old 03-22-2017, 06:24 PM
Bricker Bricker is offline
And Full Contact Origami
SDSAB
 
Join Date: Dec 1999
Location: Northern Virginia
Posts: 55,586
Quote:
Originally Posted by Miller View Post
Not the first guy he wanted. But he did get his guy in there.
A guy that was a compromise.

Not his guy.

Quote:
I thought your argument was that Republicans are, in fact, breaking custom to the same extent Democrats did when they blocked Bork? Are you now admitting that this really does represent a significant escalation of the politicization of the Supreme Court?
"Significant?" Not at all. I agree it was an escalation. But my point with respect to the Bork catastrophe is that you, or Democrats generally, can't escalate and then object to escalation in turn. Why should only Democrats be the ones to escalate, and Republicans required to respond only to the limits the Democrats have set? Asking again why you think I would possibly agree to such a rule?
  #164  
Old 03-22-2017, 06:30 PM
iiandyiiii iiandyiiii is online now
Member
 
Join Date: Aug 2010
Location: Arlington, VA
Posts: 29,153
Quote:
Originally Posted by Bricker View Post
A guy that was a compromise.

Not his guy.



"Significant?" Not at all. I agree it was an escalation. But my point with respect to the Bork catastrophe is that you, or Democrats generally, can't escalate and then object to escalation in turn. Why should only Democrats be the ones to escalate, and Republicans required to respond only to the limits the Democrats have set? Asking again why you think I would possibly agree to such a rule?
Maybe the Democrats deserve a lot of criticism for Bork, but that was decades ago, and few involved are still around. On the other hand, the Republicans just did this. Seems to me that it's entirely reasonable for Democrats who weren't involved with Bork to harshly criticize the actions of the Republicans.

As should you, IMO.
  #165  
Old 03-22-2017, 06:43 PM
Fotheringay-Phipps Fotheringay-Phipps is online now
Guest
 
Join Date: Mar 2009
Posts: 11,420
Quote:
Originally Posted by iiandyiiii View Post
Maybe the Democrats deserve a lot of criticism for Bork, but that was decades ago, and few involved are still around. On the other hand, the Republicans just did this. Seems to me that it's entirely reasonable for Democrats who weren't involved with Bork to harshly criticize the actions of the Republicans.
I disagree. Bork changed things forever. It's not like the Democrats had a change of heart after Bork and were never going to do that again. Everyone on both sides knew that the rules had changed, permanently.

The real seat the Democrats "stole" with the Bork vote wasn't the Bork/Kennedy seat. It was David Souter. This guy has been a reliable liberal vote on the court for decades, appointed by a Republican president. Because GHWB knew he couldn't get a true conservative past the Senate - because of Bork - and had to appoint a stealth candidate with no record. So that's how the Democrats ended up with a liberal (though of course, they mostly opposed him at the time).

Last edited by Fotheringay-Phipps; 03-22-2017 at 06:43 PM.
  #166  
Old 03-22-2017, 07:06 PM
iiandyiiii iiandyiiii is online now
Member
 
Join Date: Aug 2010
Location: Arlington, VA
Posts: 29,153
Quote:
Originally Posted by Fotheringay-Phipps View Post
I disagree. Bork changed things forever. It's not like the Democrats had a change of heart after Bork and were never going to do that again. Everyone on both sides knew that the rules had changed, permanently.

The real seat the Democrats "stole" with the Bork vote wasn't the Bork/Kennedy seat. It was David Souter. This guy has been a reliable liberal vote on the court for decades, appointed by a Republican president. Because GHWB knew he couldn't get a true conservative past the Senate - because of Bork - and had to appoint a stealth candidate with no record. So that's how the Democrats ended up with a liberal (though of course, they mostly opposed him at the time).
This doesn't refute what I wrote, even if it's true.
  #167  
Old 03-22-2017, 07:20 PM
Falchion Falchion is offline
Guest
 
Join Date: Oct 2013
Posts: 923
Quote:
Originally Posted by Fotheringay-Phipps View Post
I would say imprecise and lacking context.
You're both considerably more charitable than I would be.
  #168  
Old 03-22-2017, 08:02 PM
Bricker Bricker is offline
And Full Contact Origami
SDSAB
 
Join Date: Dec 1999
Location: Northern Virginia
Posts: 55,586
Quote:
Originally Posted by iiandyiiii View Post
Maybe the Democrats deserve a lot of criticism for Bork, but that was decades ago, and few involved are still around. On the other hand, the Republicans just did this. Seems to me that it's entirely reasonable for Democrats who weren't involved with Bork to harshly criticize the actions of the Republicans.

As should you, IMO.
I've said that I believe that not only should Garland have been given a hearing, but confirmed.

I said it when he was nominated and when the Senate stonewalled him.

But I absolutely understand the tactical decision not to. I don't agree it's the right way to approach things, but I don't regard it as a horrid excursion into new territory.

And I absolutely reject this idea that Democrats can escape the payback by merely pointing to the age of the offense; Kennedy is still on the bench.

But let me ask you: in thirty years, will you likely find yourself agreeable to not regarding the Garland shafting as relevant in decision-making?
  #169  
Old 03-22-2017, 08:11 PM
Bricker Bricker is offline
And Full Contact Origami
SDSAB
 
Join Date: Dec 1999
Location: Northern Virginia
Posts: 55,586
See, iiandyiiii, I think that much of your "acceptable," calculus derives from a flexible standard where the Democrats are generally doing the right thing, and so transgressions of procedure and practice are regarded leniently, as peccadillos in service of the Good; Republicans are generally doing the wrong thing and so their transgressions are to be strictly accounted and their actions strictly weighed.

Just a sense I have, based on your posts.
  #170  
Old 03-22-2017, 08:42 PM
D'Anconia D'Anconia is offline
Guest
 
Join Date: Oct 2014
Posts: 3,781
Quote:
Originally Posted by Bricker View Post
No, the third guy did.

The second guy was Douglas Ginsburg.
Don't be too hard on K9. It seems that since the last election, (and probably before), facts are no longer required in Great Debates.
  #171  
Old 03-22-2017, 09:24 PM
jshore jshore is offline
Charter Member
 
Join Date: May 2000
Posts: 6,855
Quote:
Originally Posted by Bricker View Post
No, the third guy did.

The second guy was Douglas Ginsburg.
Who was mainly done in by the Republicans themselves: http://www.nytimes.com/1987/11/08/us...pagewanted=all

Quote:
I agree it's a difference, but not (in MY opinion) a significant one.
Well, that's a game that someone can always play, i.e., to claim that a difference is not significant. However, you seem to be one of the only people who is unable to see the significance of the difference.
  #172  
Old 03-22-2017, 09:33 PM
Miller Miller is online now
Sith Mod
Moderator
 
Join Date: Dec 2000
Location: Bear Flag Republic
Posts: 42,939
Quote:
Originally Posted by Bricker View Post
A guy that was a compromise.

Not his guy.
He nominated him, right?

His guy.

Quote:
"Significant?" Not at all. I agree it was an escalation. But my point with respect to the Bork catastrophe is that you, or Democrats generally, can't escalate and then object to escalation in turn. Why should only Democrats be the ones to escalate, and Republicans required to respond only to the limits the Democrats have set? Asking again why you think I would possibly agree to such a rule?
When you say, "you," who exactly do you mean? If you mean me personally, well, I was all of twelve years old when Bork's nomination went down in flames. My ability to influence events was pretty sharply limited, as was my general knowledge of what was going on at the time. From my perspective, the level of politicization represented by blocking the Bork nomination has been the status quo for my entire life as an adult, plus six years. But, apparently, because someone with a D after their name did something back when I was in grade school, I can't hold a particular position without being labelled a hypocrite?

Sure, sounds fair.

Anyway, if your position is that the Republicans had no choice but to escalate (thirty years) after the Bork affair, it obviously follows that the Democrats are similarly bereft of choice, right? So, let's say that the Dems do really well in 2018, and in 2020 regain control of congress. You would have no objection to, I dunno... impeaching Gorsuch, just because we can? That's fair, right? Just so long as we can point to the other side and say, "They do it, too"?
  #173  
Old 03-23-2017, 12:02 AM
kaylasdad99 kaylasdad99 is online now
Charter Member
 
Join Date: Sep 1999
Location: Anaheim, CA
Posts: 29,325
Quote:
Originally Posted by Okrahoma View Post
Exactly my point. Everyone knows that Democrats' principle right now is not to confirm any Trump's nominee to the Supreme Court. If they said that clearly (and stated the reason - whether it's Garland or the FBI investigation), and as a result just didn't show up to the confirmation hearings, that would actually be a principled stand.

Pretending that they are objecting to Gorsuch's views or judicial decisions when (as I pointed out already) not one Democrat objected to Gorsuch's previous confirmation as a federal judge just exposes their hypocrisy.
This line of reasoning appears to rest on an assumption that the act of finding that a judge-designate to the court of Appeals is fit to serve on that court tantamount to finding that the same judge-designate, now an actual judge with an eleven-year judicial record, is fit to serve on SCOTUS. Speaking for myself, I would not be eager to defend such an assumption.

To be sure, I proudly state my position that no Trump nominee should be confirmed to ANYTHING. But that's just a time-saver. Finding him unsuitable based on his judicial philosophy (as expressed by his judicial record, his published writings, and his responses to the Judiciary Committee's questioning) is perfectly valid.

Last edited by kaylasdad99; 03-23-2017 at 12:03 AM.
  #174  
Old 03-23-2017, 02:33 AM
HurricaneDitka HurricaneDitka is online now
Guest
 
Join Date: Aug 2012
Posts: 9,333
Quote:
Originally Posted by kaylasdad99 View Post
To be sure, I proudly state my position that no Trump nominee should be confirmed to ANYTHING.
It doesn't matter. You and Schumer are entitled to your opinions, for sure, they just don't matter. Dems don't have the votes to prevent Gorsuch from being nominated.
  #175  
Old 03-23-2017, 03:02 AM
Velocity Velocity is online now
Guest
 
Join Date: Jun 2014
Posts: 11,582
Quote:
Originally Posted by kaylasdad99 View Post
To be sure, I proudly state my position that no Trump nominee should be confirmed to ANYTHING.
If this goes like your pre-election "decree that it is unacceptable for a Republican to ever be elected POTUS," I expect Gorsuch to be confirmed quite swiftly.
  #176  
Old 03-23-2017, 03:04 AM
Leaper Leaper is offline
Charter Member
 
Join Date: Jul 2001
Location: In my own little world...
Posts: 12,360
Quote:
Originally Posted by Bricker View Post
Yes, I have read it. And the company did not fire Maddin for refusing to operate the trailer. They fired him for leaving the trailer by the road and driving away from it.

He may come across as cruel, but that's because the company's decision was simultaneously cruel and legal. So for Gorsuch to apply the law as written, he is necessarily saying he'd allow a cruel result to stand.

I say that if the law as written allows for a result like this, that's cruel, then it's not for a judge to fix it.
1) So what about Franken's "absurd result" point?

2) As far as I can tell, Gorsuch made no effort to defend his ruling on those grounds. Why not, if that was his logic? Why did no other judges see fit to agree with him? He was the only one doing the right thing?

3) Is there an extant example of a "cruel" law staying on the books and being applied cruelly because hey, it says what it says? What happened as a result?
  #177  
Old 03-23-2017, 04:06 AM
iiandyiiii iiandyiiii is online now
Member
 
Join Date: Aug 2010
Location: Arlington, VA
Posts: 29,153
Quote:
Originally Posted by Bricker View Post
See, iiandyiiii, I think that much of your "acceptable," calculus derives from a flexible standard where the Democrats are generally doing the right thing, and so transgressions of procedure and practice are regarded leniently, as peccadillos in service of the Good; Republicans are generally doing the wrong thing and so their transgressions are to be strictly accounted and their actions strictly weighed.

Just a sense I have, based on your posts.
It's possible, as the reverse characterization is for you.

As for 30 years from now, my judgment will depend on what the Senate does between now and then.
  #178  
Old 03-23-2017, 04:54 AM
standingwave standingwave is offline
Guest
 
Join Date: Jul 2010
Posts: 3,084
Quote:
Originally Posted by Leaper View Post
1) So what about Franken's "absurd result" point?

2) As far as I can tell, Gorsuch made no effort to defend his ruling on those grounds. Why not, if that was his logic? Why did no other judges see fit to agree with him? He was the only one doing the right thing?

3) Is there an extant example of a "cruel" law staying on the books and being applied cruelly because hey, it says what it says? What happened as a result?
What other choice did the driver have? Quod est necessarium est licitum. (What is necessary is lawful.)
  #179  
Old 03-23-2017, 05:33 AM
kaylasdad99 kaylasdad99 is online now
Charter Member
 
Join Date: Sep 1999
Location: Anaheim, CA
Posts: 29,325
Quote:
Originally Posted by HurricaneDitka View Post
It doesn't matter. You and Schumer are entitled to your opinions, for sure, they just don't matter. Dems don't have the votes to prevent Gorsuch from being nominated.
Of course not. He's already BEEN nominated.
  #180  
Old 03-23-2017, 07:26 AM
Fotheringay-Phipps Fotheringay-Phipps is online now
Guest
 
Join Date: Mar 2009
Posts: 11,420
Quote:
Originally Posted by iiandyiiii View Post
This doesn't refute what I wrote, even if it's true.
I believe it does. What you wrote is that Bork is no longer relevant. I explained why Bork is still relevant today.
Quote:
Originally Posted by Falchion View Post
You're both considerably more charitable than I would be.
I think it was imprecise in that Gorsuch wasn't directly being overturned, and lacking context in that it didn't contain the info that Gorsuch was relying on an earlier standard versus creating his own. But it was technically OK, in that Gorsuch's ruling was presumably overturned in the process of the SC decision, since the "more than dimininus" standard that he used in that ruling was rejected.
  #181  
Old 03-23-2017, 07:34 AM
iiandyiiii iiandyiiii is online now
Member
 
Join Date: Aug 2010
Location: Arlington, VA
Posts: 29,153
Quote:
Originally Posted by Fotheringay-Phipps View Post
I believe it does. What you wrote is that Bork is no longer relevant. I explained why Bork is still relevant today.
I think it's less relevant, but that wasn't really the point of my post -- the point of my post was that it's entirely reasonable, and not hypocritical (for most Democrats, anyway), for Democrats to be harshly critical of the Republicans for how they handled Garland.
  #182  
Old 03-23-2017, 07:39 AM
k9bfriender k9bfriender is offline
Guest
 
Join Date: Jul 2013
Posts: 8,023
Quote:
Originally Posted by Bricker View Post
No, the third guy did.

The second guy was Douglas Ginsburg.
Fair enough, but he was a pot head*. Didn't get a vote, didn't get a hearing, he withdrew his own name before that process started, and was only being considered for barely more than a week. That was just a bad pick on reagan's part.

*yeah, I 'm sure he was no longer an active smoker, but it being the 80's family values drug war times, being connected to drugs at all was a disqualification in the eyes of, well, mostly republicans. If he hadn't withdrawn his name, then it would have likely been republicans (the party of family values and the party pushing the drug war [the party of nancy reagan's "just say no"]) who voted him down as much if not more than democrats.
Quote:


I agree it's a difference, but not (in MY opinion) a significant one.

Sure. Why didn't he? You could argue that it is unlikely, but we will never know, because Obama didn't want to risk finding out.
Obama started with the compromise candidate. If he followed Reagan's pattern, he should have nominated Janet Reno (which would have been a short term) first, then Willie Nelson, then Garland.

Quote:
Originally Posted by D'Anconia View Post
Don't be too hard on K9. It seems that since the last election, (and probably before), facts are no longer required in Great Debates.
We were talking about people getting hearings and votes and such. I skipped over ginsburg(and honestly didn't even think of him) as he is barely a footnote due to the reasons that I responded to Bricker there. It is correct, if pedantic, to point out my omission there, but I do find your comment to be a bit personal and a bit close to trying to call me a liar for use in great debates.
  #183  
Old 03-23-2017, 07:45 AM
Fotheringay-Phipps Fotheringay-Phipps is online now
Guest
 
Join Date: Mar 2009
Posts: 11,420
Quote:
Originally Posted by Bricker View Post
And I absolutely reject this idea that Democrats can escape the payback by merely pointing to the age of the offense; Kennedy is still on the bench.
Perhaps worth noting WRT this that Bork is no longer alive. Had his nomination been approved, Obama would likely have appointed his successor, in 2012.
Quote:
Originally Posted by iiandyiiii View Post
I think it's less relevant, but that wasn't really the point of my post -- the point of my post was that it's entirely reasonable, and not hypocritical (for most Democrats, anyway), for Democrats to be harshly critical of the Republicans for how they handled Garland.
Well it's not hypocritical for Democrats - they can say "we believe in going up to Point X and no further". But they need to understand that that's not how the world works, and once you politicize the SC nomination process you can't control how far the other side will take it.
  #184  
Old 03-23-2017, 07:50 AM
iiandyiiii iiandyiiii is online now
Member
 
Join Date: Aug 2010
Location: Arlington, VA
Posts: 29,153
Quote:
Originally Posted by Fotheringay-Phipps View Post
Well it's not hypocritical for Democrats - they can say "we believe in going up to Point X and no further". But they need to understand that that's not how the world works, and once you politicize the SC nomination process you can't control how far the other side will take it.
That's obviously true, but also irrelevant to my point (especially since few Democrats around today played a role in that politicization). Republican Senators today did, on the other hand, play a role in the politicization of Garland's nomination. Thus, in today's world, Republican Senators are doing much more to politicize SCOTUS than Democratic Senators.
  #185  
Old 03-23-2017, 07:58 AM
Fotheringay-Phipps Fotheringay-Phipps is online now
Guest
 
Join Date: Mar 2009
Posts: 11,420
My position is that once the Bork nomination unfolded the way it did, it was already hopelessly politicized and anything after that is minor. (Though, I should be clear, that I'm referring to the SC nomination process, not the SC rulings - people use the term to mean different things.)

The key question is: does the Senate use a judge's judicial philosophy to decide whether or not to approve a SC nominee, versus merely vetting legal qualifications, integrity & character etc., and defering to the Prez on judicial philosophy? In the case of Bork that question was answered with a resounding "YES!!!", and it's been that way ever since.

After that, this or that tactic is a relatively minor deal. (FWIW, IIRC the Democrats also pioneered the approach of refusing to hold hearings for judicial nominees, though not for SC nominees specifically.)
  #186  
Old 03-23-2017, 08:08 AM
Bricker Bricker is offline
And Full Contact Origami
SDSAB
 
Join Date: Dec 1999
Location: Northern Virginia
Posts: 55,586
Quote:
Originally Posted by iiandyiiii View Post
It's possible, as the reverse characterization is for you.
I grant the possibility. . . except that I notice two things. One: I can find plenty of posts in which I praise Democrats and others in which I criticize Republicans; I don't recall seeing equivalent numbers from you. This suggests to me that I don't suffer from this malady as seriously. Two: politically, in general, I place a great value on the concept of agreeing in advance on the rules and then applying them, rather than debating individual views of what's right in each situation, which (in my opinion) leads to a more predictable result: favoring a federalism view, for instance, in discussions of assisted suicide, marijuana, and abortion, so that I support the power of a state, and not the feds, to regulate each, even though as a personal preference I want to see all outlawed.

My sense is that you're much more willing to see the feds prevail on abortion and the states prevail on assisted suicide and marijuana, based on your desired policy result.

Am I wrong there?
  #187  
Old 03-23-2017, 08:11 AM
Bricker Bricker is offline
And Full Contact Origami
SDSAB
 
Join Date: Dec 1999
Location: Northern Virginia
Posts: 55,586
Quote:
Originally Posted by k9bfriender View Post
If he followed Reagan's pattern, he should have nominated Janet Reno (which would have been a short term) first, then Willie Nelson, then Garland.
One hundred quatloos to the newcomer. That genuinely made people in my office wonder why I was laughing so hard.
  #188  
Old 03-23-2017, 08:29 AM
iiandyiiii iiandyiiii is online now
Member
 
Join Date: Aug 2010
Location: Arlington, VA
Posts: 29,153
Quote:
Originally Posted by Bricker View Post
I grant the possibility. . . except that I notice two things. One: I can find plenty of posts in which I praise Democrats and others in which I criticize Republicans; I don't recall seeing equivalent numbers from you. This suggests to me that I don't suffer from this malady as seriously.
Is it not possible that this has something to do with the Republican party at present? Trump is president, after all, and supported by most Republicans in office. That seems pretty damn worthy of criticism, and IMO far more criticism-worthy than anything done by the Democratic party at large recently.

And I'm pretty sure there are plenty of posts in which I've criticized Democrats and even praised Republicans. The Republicans I've praised have probably been less likely to be present office holders (and often included co-workers and such other non-prominent figures), but they're Republicans.

Quote:
Two: politically, in general, I place a great value on the concept of agreeing in advance on the rules and then applying them, rather than debating individual views of what's right in each situation, which (in my opinion) leads to a more predictable result: favoring a federalism view, for instance, in discussions of assisted suicide, marijuana, and abortion, so that I support the power of a state, and not the feds, to regulate each, even though as a personal preference I want to see all outlawed.

My sense is that you're much more willing to see the feds prevail on abortion and the states prevail on assisted suicide and marijuana, based on your desired policy result.

Am I wrong there?
I place a great value on this as well -- but we both have limits, presumably. It may have been legal and according to pre-agreed-to rules for Roman soldiers to execute Jesus... but maybe they should have gone past those rules because this was more important. Maybe judges should have found interpretations to invalidate slavery (don't recall your opinions on Dred Scott), or protect escaped slaves and free black people in the 1800s, for example, even if that went against the strictest/most literal interpretation of law. Maybe if there were a hypothetical situation in which a madman was allowed by law to build a doomsday device, judges/authorities ought to violate this law (or find an interpretation that allows them to take away this device) before the world ends.

I tend to think that everyone (everyone discussing law, anyway) interprets law with their own biases, consciously or not. I don't think it's possible for humans to avoid it. I don't trust anyone insisting they have the special secret sauce to interpret totally objectively, or literally, or strictly, or whatever -- it's all just different teams, as far as I can tell. Some are better at using language and research to provide a cogent justification of their decisions, but it's still all interpretation flavored by human bias. Thus I think it's a worthy goal to try and interpret law objectively, strictly, literally, and all that jazz, but in the many, many cases in which this isn't very obviously clear (and in most substantive areas of disagreement, it's not, IMO), then I'm content with going by "what's right", since that's what everyone's going to do anyway, regardless of what they say (or what they even believe they're doing, in many cases).

Last edited by iiandyiiii; 03-23-2017 at 08:30 AM.
  #189  
Old 03-23-2017, 08:45 AM
D'Anconia D'Anconia is offline
Guest
 
Join Date: Oct 2014
Posts: 3,781
Quote:
Originally Posted by k9bfriender View Post
It is correct, if pedantic, to point out my omission there, but I do find your comment to be a bit personal and a bit close to trying to call me a liar for use in great debates.
Then report it.
  #190  
Old 03-23-2017, 09:05 AM
k9bfriender k9bfriender is offline
Guest
 
Join Date: Jul 2013
Posts: 8,023
Quote:
Originally Posted by iiandyiiii View Post
I place a great value on this as well -- but we both have limits, presumably. It may have been legal and according to pre-agreed-to rules for Roman soldiers to execute Jesus... but maybe they should have gone past those rules because this was more important. Maybe judges should have found interpretations to invalidate slavery (don't recall your opinions on Dred Scott), or protect escaped slaves and free black people in the 1800s, for example, even if that went against the strictest/most literal interpretation of law. Maybe if there were a hypothetical situation in which a madman was allowed by law to build a doomsday device, judges/authorities ought to violate this law (or find an interpretation that allows them to take away this device) before the world ends.

I tend to think that everyone (everyone discussing law, anyway) interprets law with their own biases, consciously or not. I don't think it's possible for humans to avoid it. I don't trust anyone insisting they have the special secret sauce to interpret totally objectively, or literally, or strictly, or whatever -- it's all just different teams, as far as I can tell. Some are better at using language and research to provide a cogent justification of their decisions, but it's still all interpretation flavored by human bias. Thus I think it's a worthy goal to try and interpret law objectively, strictly, literally, and all that jazz, but in the many, many cases in which this isn't very obviously clear (and in most substantive areas of disagreement, it's not, IMO), then I'm content with going by "what's right", since that's what everyone's going to do anyway, regardless of what they say (or what they even believe they're doing, in many cases).
Agreed here, and as I think someone once roughly said, "It's a constitution, not a suicide pact."

For its time, the constitution was an amazing document. It was written by some of the best legal minds in the world at the time, and it had the advantage of not having any inertia in a form of government that would resist the change too strongly, a blank slate if you will.

Things have changed in the last 250 years, and other countries have looked to our constitution, said "that's a good idea, I think we'll start there, and improve upon it."

The fact that our founding document is so outdated, and so behind the times in terms of social, technological, and even linguistic changes means that we have to keep coming up with new ways of interpreting these old words to be relevant to our current situation. Because the writers of the constitution did not explicitly talk about things they had no was of knowing would exist, means that some interpretation is absolutely required. And where there is interpretation, there is disagreement. And where there is disagreement in interpretation, you usually have two sides who cannot believe that the other side would be so stupid, disingenuous or even just plain evil to interpret it the way that they do. Both (or all) sides interpret it in the most favorable light to their own political philosophy, to do otherwise would be not only nearly impossible given human nature, it would be very counterproductive to the goal of fostering the society in which you wish to live.

As far as state's rights vs federal rights, it is hard to say which is more important, as neither address human rights. Sometimes, the state can be oppressive, with the only relief being actions of the federal government (as in civil rights issues and slavery), and sometimes, the federal government is a bit oppressive on a subject, and it becomes the state's responsibility to protect its citizens from the federal government's actions (and example being marijuana laws). So there is always the competing hierarchy of which is supreme, and which should be supreme.

If we start with the idea of human rights being supreme, then the rest of the argument goes down easier. It is easier to allow states to have sovereign rights, when holding those rights does not mean oppressing their residents. It is much easier to make an argument that the federal govt has no place interfering in a state's operation, if the state is not disenfranchising or marginalizing their populations in some way.

The government is by the people, of the people, and for the people. Some old piece of parchment is not the government, it's just some notes that some people jotted down a while back on some ways of accomplishing governance. If that piece of parchment is not serving the people, then that piece of parchment is not relevant anymore. If some words on that parchment cause people suffering or misfortune, it is the parchment that should be altered or discarded, not the people it neglects.
  #191  
Old 03-23-2017, 09:08 AM
D'Anconia D'Anconia is offline
Guest
 
Join Date: Oct 2014
Posts: 3,781
Quote:
Originally Posted by k9bfriender View Post
If some words on that parchment cause people suffering or misfortune, it is the parchment that should be altered or discarded, not the people it neglects.
Through the amendment process, or by fiat?
  #192  
Old 03-23-2017, 09:17 AM
Bricker Bricker is offline
And Full Contact Origami
SDSAB
 
Join Date: Dec 1999
Location: Northern Virginia
Posts: 55,586
Quote:
Originally Posted by Leaper View Post
1) So what about Franken's "absurd result" point?
It's not an absurd result, unless you start with the assumption that Congress has a statutory intent to avoid cruel firings of employees. They do not.

Quote:
2) As far as I can tell, Gorsuch made no effort to defend his ruling on those grounds. Why not, if that was his logic? Why did no other judges see fit to agree with him? He was the only one doing the right thing?
Are we reading the same dissent? That's what he said. And there were only three judges on the panel. So only two judges disagreed. And I'm sure they did because they thought judges should have a role beyond the cold application of law.

Quote:
3) Is there an extant example of a "cruel" law staying on the books and being applied cruelly because hey, it says what it says? What happened as a result?
There are hundreds of examples of cruel situations perpetuating because no law exists to remedy them. Most especially, there is no FEDERAL law to remedy them, because Congress does not have plenary legislative authority. I can fire you, even though you desperately need the job, because you embarrassed me on the golf course when you pointed out I was cheating. That's cruel, and perfectly legal.

Last edited by Bricker; 03-23-2017 at 09:18 AM.
  #193  
Old 03-23-2017, 09:28 AM
Budget Player Cadet Budget Player Cadet is offline
Guest
 
Join Date: May 2011
Posts: 7,071
Are we seriously rehashing that same bullshit argument that because decades ago, the democrats rejected a hardline radical involved in unflattering ways with watergate who had fucking abhorrent views of women (and then proceeded to confirm the next two serious nominees the republicans put forward, despite one of them being barely qualified for the job), therefore the right wing refusing to even consider any democratic nominee, regardless of how moderate or how they praised that nominee beforehand, is somehow okay?

Because that's bullshit.

It is a bullshit argument.

The argument is made of, coated in, and stuffed with bullshit.

...

BULLSHIT!

...

Ahem. Moving on from that...

I'm increasingly of the opinion that the senate should force the issue, and here's why: if the first time it matters, the filibuster is done away with, then the filibuster may as well not exist in the first place. If the first time the democrats buckle down and say, "Nope, that's not okay, you need 60 votes to get that through", the republicans respond by saying, "Okay, we're killing the filibuster", then the filibuster is, for all intents and purposes, already dead. It exists in name only. Or, worse, it exists in exactly one way: as a cudgel for those who reject norms to beat those who respect norms with. And that's not okay.

Last edited by Budget Player Cadet; 03-23-2017 at 09:28 AM.
  #194  
Old 03-23-2017, 09:37 AM
cmkeller cmkeller is online now
Guest
 
Join Date: Mar 1999
Location: New York, NY, USA
Posts: 12,922
k9befriender:

Quote:
Because the writers of the constitution did not explicitly talk about things they had no was of knowing would exist, means that some interpretation is absolutely required.
No, what's required is amendment by the proper elected authorities.
  #195  
Old 03-23-2017, 09:38 AM
k9bfriender k9bfriender is offline
Guest
 
Join Date: Jul 2013
Posts: 8,023
Quote:
Originally Posted by D'Anconia View Post
Through the amendment process, or by fiat?
You are not very familiar with the constitution if you believe it can be changed by fiat.

I would use a constitutional convention. As I said in the earlier post, the founders did not foresee everything, and in fact, they did not foresee quite a few things. But they did foresee that there would be situations they could not foresee, so they left provisions in it to make changes to update, or even completely overhaul it.
  #196  
Old 03-23-2017, 09:39 AM
k9bfriender k9bfriender is offline
Guest
 
Join Date: Jul 2013
Posts: 8,023
Quote:
Originally Posted by cmkeller View Post
k9befriender:



No, what's required is amendment by the proper elected authorities.
Then the first amendment does not apply to digital communications.
  #197  
Old 03-23-2017, 09:42 AM
D'Anconia D'Anconia is offline
Guest
 
Join Date: Oct 2014
Posts: 3,781
Quote:
Originally Posted by k9bfriender View Post
You are not very familiar with the constitution if you believe it can be changed by fiat.
Are you OK with changing the Constitution by judicial fiat?

Or only in cases where your preferred outcome is the result?
  #198  
Old 03-23-2017, 09:43 AM
Okrahoma Okrahoma is offline
BANNED
 
Join Date: Oct 2015
Posts: 2,710
Quote:
Originally Posted by k9bfriender View Post
Then the first amendment does not apply to digital communications.
Why not? The first amendment does not specify the means by which the speech is disseminated or restrict it based on such means.

Last edited by Okrahoma; 03-23-2017 at 09:44 AM.
  #199  
Old 03-23-2017, 09:45 AM
Bricker Bricker is offline
And Full Contact Origami
SDSAB
 
Join Date: Dec 1999
Location: Northern Virginia
Posts: 55,586
Quote:
Originally Posted by k9bfriender View Post

The government is by the people, of the people, and for the people. Some old piece of parchment is not the government, it's just some notes that some people jotted down a while back on some ways of accomplishing governance. If that piece of parchment is not serving the people, then that piece of parchment is not relevant anymore. If some words on that parchment cause people suffering or misfortune, it is the parchment that should be altered or discarded, not the people it neglects.
No argument from me.

The argument comes from me when you try to alter or discard the pieces you find to be causing suffering or misfortune without following the rules that were accepted when everyone joined the club in the first place.

When women were denied the right to vote, the solution was not to convince a set of unelected judges with lifetime appointments that this was a source of suffering or misfortune. It was,of course, but that's not their role. It's the job of legislators to fix, and, indeed, two thirds of Congress and three-fourths of the state legislatures passed the Nineteenth Amendment.

Today, you seek other modifications, but you say, "It's too hard to modify the Constitution, so I'll get the judges on my side." The point is that making law like that is not of the people, by the people, and for the people -- it's taking power from their hands and vesting it in judges; it's creating a class of philosopher kings, super-legislators to whom you can appeal when the electorate is too unenlightened to suit your tastes.

But I'm certain that if Trump appoints a couple more Supreme Court justices, and the Court then finds that not only is Roe v. Wade overturned but that no state can constitutionally even permit abortion (after all, no person can be denied life, liberty, or property without due process of law, and that now includes unborn persons) you'll be much less sanguine about vesting such powers in judges.
  #200  
Old 03-23-2017, 09:46 AM
skdo23 skdo23 is offline
Guest
 
Join Date: Jul 2010
Posts: 1,000
Don't let the door hit your ass Neil.

https://www.washingtonpost.com/power...=.ed251665e4f7
Closed Thread

Bookmarks

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is Off
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 12:36 PM.

Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2018, vBulletin Solutions, Inc.

Send questions for Cecil Adams to: cecil@straightdope.com

Send comments about this website to: webmaster@straightdope.com

Terms of Use / Privacy Policy

Advertise on the Straight Dope!
(Your direct line to thousands of the smartest, hippest people on the planet, plus a few total dipsticks.)

Publishers - interested in subscribing to the Straight Dope?
Write to: sdsubscriptions@chicagoreader.com.

Copyright 2018 STM Reader, LLC.

 
Copyright © 2017