The problem is not that the process is politicized, the problem is that the Supreme Court is politicized. It should make no difference the ideology or political viewpoint of justices. Just like it should not make a difference if a traffic cop is liberal or conservative, if the car is breaking the speed limit should be all that matters.
However, the supreme court has gone beyond its duties to just address whether laws are constitutional and decided to substitute its own judgement for the constitution and the legislature. They have morphed into a kind of guardian council where they get to decide what laws are good and what are bad based solely on their personal ideas. Because of this our country barely qualifies to be called a democracy.
For example, gay marriage. There have been 38 plebiscites on gay marriage on the anti-side has won 37. A bipartisan majority of 342 in the house and 85 in the senate backed the Defense of Marriage Act. Yet because five unelected lawyers decided that they knew best, gay marriage is now the law of the land.
Given that the Supreme Court has abrogated to itself such power and people want to have a say in their government it is inevitable that nominations are political fights.
Bolding mine. Whenever someone utters this phrase, it makes me far less likely to take them seriously. Have you railed against Gore v. Bush, Citizens United v. FEC, etc.? Were you unaware that SSM was legalized in 38 states and defended by numerous lower court decisions? You act like most of the country didn’t want it and these five justices came out of nowhere and made it so. There’s a lot of events in the narrative that precede the final decision in Obergefell v. Hodges.
Anyway, given that the House is susceptible to gerrymandering, that the Senate gives disproportionate power to states with smaller populations, and a bunch of other crap like SuperPACs, voter ID laws, etc., we’re already not as democratic as we like to think. FWIW, I agree that the SCOTUS is too political, but it’s difficult to divorce a person’s political leanings from their legal decisions. Ideally, we would have nine moderates on the court (even though I’d personally prefer the decisions handed down by nine liberals).
Perhaps if the GOP implodes in the next few years due to the TrumpCruzMotherfuckingularity, whatever replaces it will be a bit more reasonable and open to compromise. Then, perhaps the tug of war can gradually come to a halt and both sides might actually be able to work on moving the SCOTUS towards the center. I suppose it’ll depend a lot on the makeup of Congress the next time an nomination is needed. Another thing worth mentioning is that a good deal of justices are seen as moderate when nominated (like RBG), and others end up otherwise defying expectations (like Kennedy).
I think a good litmus test of what the Dems might do in the future will be what Obama does with Garland’s nomination if Hillary or Bernie win in November. I hope he doesn’t withdraw it, because it sets a bad example moving forward, and it is an implied endorsement of the partisan game currently being played by the Senate Republicans. If he sticks behind Garland, he confirms his commitment to compromise, and hopefully others follow suit.
If the idea is to shame the GOP and prove Dems are the better side, this plan won’t work. the GOP is beyond shaming. They only understand punishment. If Bernie or Hillary gets a Dem Senate, I want Obama to withdraw and have the next president nominate Goodwin Liu, who’s said to be super liberal and is also super young. Make it clear that his nomination is for the purpose of punishing the GOP for playing politics with the SCOTUS and tell them that they better never do that again
And from far enough away, an elephant is the same size as mouse.
Sometimes keeping yourself far from what is going on doesn’t give you a better perspective. Sometimes it just makes you ignorant.
I have never railed about Gore vs Bush or Citizens United because they were obviously the right decisions. There is a reason to have a Supreme Court, sometimes laws are passed that are unconstitutional. A law that makes it illegal to produce a documentary critical of a politician is obviously unconstitutional. Likewise a case that decides whether the Florida legislature or the Florida Supreme Court gets to decide how electors are chose is obviously something for a constitutional court to decide.
What is important is not ideology but rather whether the justices are content to be justices. A justice that said the constitution bans abortion is just as bad as one that says it grants abortion as a right. A justice that says that states are not allowed to recognize gay marriages is just as bad as one that says states are forced to recognize gay marriage.
A justice’s personal views on gay marriage should be as germane to the supreme court as their favorite Star Wars movie, but it is obvious to anyone who has read the decision how the justices who wrote it feel about gay marriage.
I think a better implied endorsement of the Republican tactics by Obama is when he was a Senator and tried to filibuster a Supreme court nomination.
Yeah, it sucks when judicial activism doesn’t go your way, doesn’t it? :rolleyes:
Especially in the case of your example, when “five unelected lawyers” actually dared to read something called the Equal Protection Clause in the Fourteenth Amendment of the U.S. Constitution.
Really? Who said that? :dubious:
But that just continues the cycle of assholery. Each side will continue to point to a past slight of the other and say “but they started it!” I want mature people leading the country, not two groups of bickering children. You say that the GOP leadership is beyond shaming, and you’re probably right, but they also seem to be beyond learning from their mistakes. If Obama “punishes” them for their behavior, that will just reinforce their image that he’s the Worst President Ever and justify future idiotic behavior.
Besides, I wasn’t talking about setting a good example for the GOP, I was talking about setting a good example for the Democrats. If Obama doesn’t play this partisan game with the GOP, even after it becomes obvious that he’s winning, then that suggests that there’s hope that at least one side is trying to break the cycle.
Which part were you disputing - that there were five of them, that they weren’t elected, or that they were lawyers?
How many of the 38 legalized SSM as the result of a popular vote, as opposed to it being imposed by judges?
Well, that’s true. Many of those events involved states amending their constitutions to define marriage as the union of one mand and one woman, or specifically outlawing SSM. I’ll assume you don’t need a cite.
Regards,
Shodan
Just a nitpik FWIIW our country is not a democracy but rather a republic.
I agree that this will continue the cycle of assholery. Problem is, it takes both sides to stop it. If we accept the given that the GOP is without shame and unable to learn, for the Dems to NOT do this, it only enables the GOP to win more political battles. A conservative dies/quits and he gets replaced by either a moderate or a conservative, to “maintain balance on the court”, says the GOP. But when a liberal dies/quits, he gets replaced by a moderate or a conservative because “that’s what the people want”, says the GOP. Over time, liberals are replaced by moderates and conservatives and the court swings ever rightward. In order for the back and forth to subside, there must be equal understanding on both sides that a line should not be crossed lest that side face the brunt of the voter’s fury in the future. If we accept that the GOP won’t back down, then Dems can’t back down either or we cede control of the government to them.
I’m fully in support of a set of circumstances in which this stops and we have civility and moderation on both sides. How can that happen with the current GOP in charge and the GOP base filled with Tea Party people who won’t hesitate to primary a RINO?
It sucks whenever judicial activism occurs. Judges should interpret and apply the law, not make it up.
The equal protection clause makes no reference to SSM.
Harry Blackmun. You may have heard of him.
Regards,
Shodan
A modest proposal: Whenever anyone says “both sides are the same”, that person should make all of their voting decisions via coin-toss. If they truly are both the same, then it won’t matter, right?
Meanwhile those of us who do see a difference can keep on voting for whichever side we think is better.
It makes no reference to mixed-race marriages, either, but it’s the basis upon which bans on mixed-race marriages are invalid.
What part of “equal protection” can you use to justify denying the right to marriage to people of mixed race, or of the same sex?
In Obergefell v. Hodges, the State of Ohio was regularly accepting marriages made in Maryland … except certain ones … and this is what runs afoul of the equal protection clause … either Ohio accepts all marriages made in Maryland, or it accepts none of them, all the marriages made in Maryland have to be treated equally.
The real issue is how do We the People make this final determination? So far we’ve depended on a panel of nine peoples who vote and the results are binding … until the Constitution itself in amended. Not sure what puzzleglum wants to see happen, just wanted to point out that it’s nine peoples who decide, not just five.
The freedom of speech clause makes no reference to Super-PAC’s or corporations. They didn’t even exist when the text was written. So where did strict originalists find the basis for the Citizens United decision? As somebody once said “It sucks whenever judicial activism occurs. Judges should interpret and apply the law, not make it up.”
I’m thousands of miles away also, and pretty conservative in most ways that matter.
And I am utterly astounded at how the American Republican party acts and that the american people let them do it! They actively try to hurt their country, what sort of people are they?
While I agree that the process is politicized, the Senate’s actions take us even further down that road, which is anathema to what the Founding Fathers wanted (or, at least, most of them). And further politicization of the nomination process just politicizes the Supreme Court even more.
People arguing that Democrat Senators filibustering Republican nominees justifies the Senate’s actions are completely missing the point. Both Democrats and Republicans have commonly filibustered candidates for at least 50+ years and, most importantly, filibustering has never blocked a nominee from being confirmed.* Yes, it’s politicizing the nomination process, but that’s been an accepted practice. What McConnell is doing is completely different. If filibustering is prolonging the game, then McConnell is just outright refusing to play altogether. McConnell’s actions are so worrisome because instead of letting the process unfold naturally, he’s stopping it from happening in the first place. It’s an entirely new level of obstructionism. Other politicians might filibuster and generally give the nominee grief, but, at the end of the day, they confirm or deny and let the process take its course because they realize that they’re dealing with an essential branch of government. McConnell just doesn’t seem to care. He wants a conservative Justice and he’ll be damned if decades of precedent are against him.
*Although it could be argued maybe one or two have, there were several other factors that led the them not being confirmed
Well, the Supreme Court was always meant to be a defender of the minority position. That’s one of the reasons they’re not popularly elected. And, as for the legalization of gay marriage, the Supreme Court did have a strong Constitutional basis for its decision: the 14th Amendment’s Equal Protection Clause. You might not agree with their interpretation, but that is their job.
Well, yeah. The Second Amendment doesn’t mention assault rifles, the Constitution doesn’t mention the right to privacy, the Fourth Amendment doesn’t state that officers can give a cursory patdown, etc. The Constitution isn’t statutory law; it’s filled with broad, generalized language that invites interpretation. And that’s the Supreme Court’s function. You may not like a particular interpretation, but that’s the role it plays in this government.
The first amendment makes no reference to the source of the speech at all, and so we conclude it is speech that is protected regardless of the source.
The other thing, of course, is that our constitution is a limit on the powers of the government, not a list of rights granted to the people. We don’t need to have the constitution say that a group of people can speak uncensored, since the constitution doesn’t grant the government the power to censor groups of people.
In our government: what is not forbidden, is allowed.
Not: what is not allowed, is forbidden.