Just a thought about the Post-Scalia Situation

Just wrote on the other Scalia thread what you can hear on the news stations. I think Toobin was one of the first to raise it….
Word is that Obama may go with Sri Srinivasan in part because the Senate already approved him 97-0 for the United States Circuit Judge of the United States Court of Appeals for the District of Columbia. He’s probably not the change that Obama’s supporters were counting on Obama for. But Republican opposition to someone they once supported would make them look ridiculous, and could thus be a powerful factor in the elections. Have no idea how Srinivasan would rule on campaign finance, class action lawsuits, union dues. I would have to guess that he’s center-conservative.

I would think nominating a sacrificial centrist for Republicans to drool over and exhaust themselves defeating, followed by left centrist for the win.

It appears that the “moderate” option would by Srinivasan, former O’Connor clerk, confirmed 97-0 to CADC (including a vote from Cruz). First Asian-American justice, a bit to the right of Breyer. The GOP Senate could easily refuse to let him come to a vote, but the hypocrisy would be evident. “Sri” is the consensus moderate pick.

The more politically interesting pick is Watford, CA9, confirmed 61-34. Interesting because he’s black, and would thus give the GOP Senate the prospect of outraging the black Dem base and perhaps gearing up their turnout to 2008 levels. I’m presuming that the Dem candidates would solemnly pledge to resubmit Watford on their first day in the White House. Tom Goldstein at SCOTUSblog thinks Watford is the likely pick, on the basis I’ve set forth.

Or Obama could submit Srinivasan, who’d wait a couple months then politely withdraw with a statement that plainly the Senate’s not interested in letting his nom come to a vote, and then Obama could go “ok, I tried” and nominate Watford.

3 Jews, 5 Catholics and then add a foreign-born Hindu — surely nothing there to rankle the evangelicals.

Srinavasan is a presumed Republican. I don’t believe he publicly identifies with either party, but he clerked for O’Connor, and first served in the Dubya administration. While not affiliated with the Federalist Society, and therefore not in the same class as the four members of the Federalist Society bloc that runs the Court (whenever they can cajole Kennedy — or his clerks — into agreement), he is not even the mild inoffensive Democrat imagined in this scenario. He’s a Republican.

Srinavasan was nominated to his present place on the bench, US Court of Appeals for the District of Columbia, precisely because the state of play for Obama getting his nominees voted on by an R Senate has long since gotten to the point that the standard for them allowing a vote for even the second highest court that Srinavasan now sits on, is that they will only accept Republicans.

But this point has already been made more clearly by the prompt announcement by McConnell that he won’t let any Obama nominee be considered anyway. Perhaps your post came in under some sort of time-zone difference, and this proposal of yours was set down before McConnell made that announcement, but at this point, the Rs have already accepted whatever electoral backlash that might arise from simply refusing to allow a vote on whomever Obama might send them for confirmation.

The dynamics of the situation are already plain. The Rs are, if anything, to be commended for just outright saying that they will not play their part in governing by voting on Obama’s nominee. They could have made no such admission, but denied Obama a nominee in practice by delay, avoiding any categorical assertion that a sitting president is to be denied a prerogative of that office.

Sure, the Ds should make an electoral issue out of R abuse of power, and sure, that abuse is now categorical because of McConnell’s statement. But if the Ds are to do that, we have much the stronger examples of R’s using the annual appropriations bills and the debt ceiling as hostages.

So far the D approach to this sort of club law has been to complain about R mookishness at the time of the crisis, then do what has to be done to avoid the train wreck threatened by the Rs with minimal concessions (or not so minimal in the case of the sequester), but then to fail to follow-up on the opening presented by the crisis created by the Rs to propose reforms that would keep them from hostage-taking in the future.

The Ds should propose that appropriations would simply rise by a cost-of-living factor in any year in which appropriations bills aren’t passed, and that the debt ceiling simply be eliminated. They should propose that, at least for SCOTUS, a nominee has to get a confirmation vote within 60 days of nomination, and if that one is refused, the next nominee gets 30 days, and the next 15, the next 7 days, and after that 48 hours. Perhaps the list idea gets in here as the provision that the president submits a rank-ordered list of twenty, so that vetting on all of them can get started immediately.

The way you put pressure on the other party is to propose an actual legal change, and run the next election on their reaction to your proposal. Propose your list idea as a law that will govern all future SCOTUS nominations, and then it acquires some utility as a political cudgel. But as a one-off, it’s just a gimmick the other side has already gotten well past in the state of play.

Ethnic identity aside, I would like to see Obama nominate Goodwin Liu over Srinivasan.
Srinivasan clerked for Republicans after Stanford Law School. Has defended Skilling and Exxon against very troubling charges. Does Obama end up giving the big-donor Republicans what the Republican Party itself cannot deliver? Srinivasan would make hostile Republican Senators look like fools in the confirmation hearings. So maybe the Republicans back off and tell the American people that it was their threatened intransigence that kept Obama from nominating a progressive and that is why the electorate should vote Republican.

OK strike 10. I just remembered how much I liked Liu and forgot about the Republican opposition he has already faced. Perhaps Obama was trying to put Liu in a position that he could be appointed to the Supreme Court, but the Republicans have already destroyed that option.

I don’t like Srinivasan as a Justice, but he’d also potentially drive a wedge between Hillary Clinton and Bernie Sanders, perhaps a feature not a bug from Obama’s perspective,

The Republicans have already had their chance to weigh in. There are bunch of federal judges on the topmost bench who were approved unanimously or with more than 95 senators voting for them.

If I were Obama, I’d rank order those judges according to my own judicial standards. (Elections mean something remember?) Then I’d run through them in order, giving the Senate 90 days on each until the election.

If I were Hillary Clinton, I’d promise to nominate Obama if elected. In that case the racist will come howling into the open, and she wins in a walk–not only the African American and other minorities will flock to her, but suburban whites will recognize her as one of their own, unlike the spittle flecked yahoos on the right.

I don’t know what Bernie Sanders thinks of Obama’s judicial temperament.

My reading of the electorate suggests that the Republicans have nothing to lose by refusing to confirm anybody until after the next election (and beyond?)

I might be disappointed to have Srinivasan replace RBG. But replacing Scalia? I’d take that in a New York minute.

PS – Not to mention the voter-suppression.

I like the idea of nominating a black liberal, preferably a woman — someone who will protect women’s rights, someone who will protect voting rights. And when the voters — black, female, gerrymandered to a fair-thee-well — see yet again how the Republicans want to stiff them, then the Democratic candidate for President has another recent and powerful demonstration of what’s at stake.

It should go without saying, but the BEST possible pick would be Belle. (No Constitutional req’t of a law degree.)

So unless I’m mistaken, the Republican Senate has immediately and universally committed to:
1) Taking the longest supreme court vacancy of 120 days and hold out until the next election 340 days later.
2) On the hope that they retain their Senate majority of five after the election in which 24 Republicans are up against 10 Democrats.
3) And the hope they take the Presidency in a race in which their leading candidate is still Donald Trump.
4) and run on this?

Nah, if Obama wants to be a radical madman, he should nominate himself, to begin serving after he ends his term in the WH.

Why not? Let them gnash their teeth.

(Well–he has said he doesn’t want it, so that’s a strike against it. But he might enjoy the spectacle nonetheless.)

23: three others are octogenarian or close. How’s their state of health?

“moderation” in the eye of the beholder, and who would that be?

How will the current SC cases turn out with Scalia gone and not replaced? The right-wingers won’t be able to overturn even if Kennedy supports them. The liberals still need Kennedy to overturn. What does that mean in the specific cases?

President Obama may NOT find a serious jurist who would want to be nominated in this environment. The process is already hell for nominees, and now it will be worse. You would be looking at 9 months of being a political punching-bag for some of the most insane people on the planet, short of the religious suicide bombers. No privacy, no peace.

TM @ 31 only the Reps can play the game of obstruction and the Dems won’t pay them back if the tables turn.

I thought that was a provision of the Constitution itself, like the requirement of 60 votes to approve a nominee and fixing the number of Justices at 9.

The Democratic President’s hand will be strengthened

Strangely, it is quite possible that President Sanders would have more chance of getting his nominee through the Republican senate than President Clinton.

Steve Williams #28, I agree with everything you wrote, except that the only toss-up is if the GOP manages to nominate Kasich (who’s doing better in S. Carolina at this moment, but it may not be enough to place better than 4th there). Otherwise it looks to me like No Contest — Hillary wins against the rest of them fairly easily.

It strikes me that President Obama is likely to nominate a moderate-to-liberal Democrat for SCOTUS — or else make Hillary defend his conservative pick, and suffer the wrath of the Dem primary voters.

The Republican Senate will probably put a hold on whomever is nominated, in any case.

The 10-candidate proposal would probably be DOA to both White House & Senate. Too much work, takes spotlight away from Presidential races.

GW @ 42 thanks for the info

that other thing — only the Reps can play the game of obstruction and the Dems won’t pay them back if the tables turn — that’s still in the Constitution, right?

@47
But the way it’s worked, at least since Gingrich was their Speaker, is that of course they are really aggressive in their opposition to the Ds. Obama doesn’t need to do anything to make that clear. Gingrich taught their side to always refer to our side as literally traitors. The bit of canned rhetoric that got Rubio in trouble for repeating a bit too robotically, was precisely this point, that Obama has acted purposefully to destroy America, and is not simply a reasonable person who simply espouses the wrong public policy.

But even if they toned down the rhetoric, and their point was simply that Obama supports the wrong public policy, they still should oppose him and our side quite aggressively. What’s at stake with public policy is so important that merely being wrong makes a life and death difference, and that on a mass scale. Calling our side traitors is over the top, as that is a capital crime. But saying that we’re bums who need throwing out of office, that should be completely unremarkable. We aren’t done any good with the electorate by complaining that the other side is being mean to us, is not cooperating with us.

And until they are able to throw us out completely, of course they should do everything the current rules allow to check those Ds still in office. They have a Senate majority, so they get to say that no D justice gets approved, just as we hold the presidency, so we have to nominate whoever goes to the Senate for approval. I only wish that while we had the Senate majority, or at least a filibuster minority, our side had refused to approve all five of the Federalist Society junta.

Just because some Ds persist in seeing US politics as if it were based on a bipartisan consensus, and if only we follow the imagined rules of that political system, and make clear that the Rs are behaving aggressively, the electorate will act like a responsible arbiters and punish the evil aggressors. I’m sure that there are swing voters who could be swayed by that sort of appeal, but it doesn’t seem to be a big demographic. Most of us accept that politics ain’t beanbag, and the other side is supposed to be aggressive. A bit more aggression from our side, please.

That said, if the bipartisan system has broken down, we definitely need to change how we do anything that depends on a bipartisan consensus. Our current system for financing the operations of our govt was set up during and just after WWII, during the New Deal consensus. As such, it gives any one part of the legislative trifecta the ability to take the operation of the govt hostage, should the bipartisan consensus break down. It has broken down, and our annual appropriations process has to be changed so that it no longer requires consensus to allow the govt to be funded.

The debt ceiling is obsolete. It did have some function as a control on govt spending, a century ago, before WWI, but was allowed to survive as long as it was only a sop to deficit scolds, letting them vent harmlessly whenever the ceiling was reached. It’s no longer harmless now that we have at least one party willing to use whatever tools lie to hand to get their way, so we need to just get rid of it.

SCOTUS is in a different category. We don’t need vacancies filled within any given time frame, should both parties play tit for tat judicial chicken and refuse to confirm anyone nominated by a president of the other party. We need the govt funded and the Treasury solvent all the time, but we don’t really need SCOTUS vacancies filled at all, ever. It is true that if we let SCOTUS acquire nine vacancies, that would just move the same problem of the politicized judiciary down to the appellate court level, and we wouldn’t be able to replace those justices either.

The problem is that we have let SCOTUS expand its jurisdiction without any check. We have reached a point of deference to the courts that SCOTUS could get away with pretending that any problem or conflict is within its jurisdiction. This is why the commentariat is in an uproar about this vacancy. The Scalia replacement will be more powerful than the president, because he or she will be the swing vote on what is practically an ennearchy.

The problem is that we have let the Court acquire too much political power. Neither party can let the other put anyone on a Court that we have let become an unchecked ennearchy.

I think Obama’s path is obvious. Find a respected jurist who is an apparent non-partisan and nominate them promptly.

The Republicans must accept them because they won’t want the prolonged battering obstructing will earn them from everyone who’s votes they hope to gain and the Democrats ambitions are served by any non-right leaning nominee.

It will be in Obama’s and the Republicans interests and acceptable to Democrats.

Otherwise the Republicans put themselves further in the hole for the Presidency and will watch a Democrat not only nominate a juror for this vacancy but likely two more.

Glen Tomkins @ 53:The debt ceiling is obsolete. . . . . It’s no longer harmless now that we have at least one party willing to use whatever tools lie to hand to get their way, so we need to just get rid of it.

I think you are missing the big picture. You take the drama as presented too seriously. You do not see American politics as a fiction presented to the public to excuse politicians from responsibly using their legal authority to exercise power they have alienated to corporate lobbyists. It is all a fog, an elaborate misdirection, so ordinary people have no idea what politics is about or who is being served. The Reps and Dems are so noisy because they do not want you to hear. They feed off each other, create excuses for their betrayals.

Not only do I expect the Senate to reject all of Obama’s appointees, I expect them to reject all of Clinton’s/Sanders’s as well. The Supreme Court will be an 8-judge panel de facto as long as Democrats control the White House and Republicans control Congress, i.e. the foreseeable future.

I am not sure why anyone would expect the Republicans to retain control of the Senate in 2017 — the odds would seem to be fairly heavily against them.

‘We are looking for Democratic judges, clerks for Democratically-appointed Justices – that sort of thing – not rock-ribbed Federalist society stalwarts.’

You can say that informally and everyone will understand, but is there any way to make it more official? Obama presents this list of very centrist moderates – republicans say in public “that’s a list of radicals, we won’t play that game”.

Obama says, just pick anyone else vaguely to the left; Republicans propose a hardliner of their own, say “look, a moderate centrist just as you asked”. Obama says, no, it has to be a Democrat. Republicans say “Ohhh look, Obama puts party politics over the common good. Unlike us, who just want a good candidate without caring about political orientation”.

The Senate will even reject Srinivasan, even though they’ve already voted for them. The president needs to nominate someone who won’t mind the futility of the effort. This situation demands surrealism. Nominate Bernie Sanders! Wouldn’t Senatorial courtesy impel a respectful reception? Nah. Biden! He’s qualified. Well-liked. Capable. Friendly.

Who could be worse than Scalia? Obama ought to nominate Mitch McConnell (age 73). It would be fun to see how that would play out. John Boehner needs a job; maybe he wouldn’t mind the attention. As long as no one could be confirmed, there’s no reason not to get ridiculous.

It seems to me that conceding so much ground to the Republicans on Supreme Court picks by submitting a list of names for pre-approval would be setting a very dangerous precedent for further extortion, while also implicitly conceding that the extremist narrative has some truth to it. That would be a considerable long-term sacrifice for very minimal short-term gain, since the Republicans would accept a nominee or two, then vote them down on the basis of whatever conspiracy theory is currently getting a hearing among their base of the senile and the demented.

I also doubt that the Democratic base would be motivated to go the polls by such acts of futile appeasement.

Phil @ 68 has it. The OP argues as if there were some critical mass of reasonable voters capable of judging the behaviour of the Republicans for what it is. But no such mass exists. Kasich has 4% of the national primary vote, and the shock-jocks are already putting it out that Scalia was murdered with a heart-attack gun in pursuit of Obama’s Muslim agenda.

This is exactly why Bernie and Trump are kicking the crap out of the Democrats and Republicans. Yes Bernie is wiping the floor with Hillary and Trump is spanking the crap out of all the others. I read all this whining on here the Republicans this, they obstruct, blah, blah, blah. It’s the very same for the Democrats. Point being both parties do the same f’n thing. Democrats are blind to “their” people doing it as the Republicans are blind to “their” people doing it. BOTH PARTIES DO IT, get it through you your thick skulls. Yes, Obama has a Constitutional right to nominate whom ever he wishes. Yes, it is, and ONLY is, the right of the Senate to actually allow a judge to sit on the Supreme Court through advise and consent. I think it’s completely stupid for McConnell to come out and basically say “screw you Mr. President”. I can’t stand Obama because he is the worst President America has ever had PERIOD! I didn’t vote for him. He has no idea what the Constitution actual is or what it actually states. He is a racist big time and has proven that over and over. He hates the military and he hates cops. In short he is a complete scumbag moron that proves how many stupid Americans we have and possibly bring up a good reason to debate that maybe we need to have some kind of test or qualification that one must pass before they can be allowed within 50 feet of a ballot. With that said the Senate should STFU and do their damn job. I would rather see Trump as our next President BUT I’d be ok with Bernie as well because either one of them is going to shake up Washington. Thank God Hillary will never be the President of the U.S. – it’s going to be a great day…

NYTmes list of possible nominees:

http://www.nytimes.com/2016/02/15/us/politics/potential-nominees-obama-may-consider-to-fill-antonin-scalias-seat.html?action=click&pgtype=Homepage&clickSource=ts-item%201_of_4&module=span-abc-region&region=span-abc-region&WT.nav=span-abc-region

The OP’s advice seems vaguely familiar:

http://2.bp.blogspot.com/_–YjWiyF8eE/TQIgXUBECHI/AAAAAAAAHuU/OA3xOf4bUno/s1600/tom-t_middleman.jpg

I don’t really understand why the Supreme Court in America is so political.

In Australia I can’t imagine having a similar discussion about the High Court justices. But the High Court is similar in that it can overturn Parliamentary statute and so on, whereas I don’t think there is a similar body in England that can do that to UK statues.

It makes me wonder if this is a problem with Scalia or if it is something to do with how your legal system is set up, since we don’t seem to have a similar issue despite also having the equivalent of your Supreme Court in our High Court.

Obama and his advisors wasted the first term trying to compromise with the R’s who had no interest in compromise. In the last couple of years he seems to have developed a (still small) set of cojones and been reminded, perhaps by his wife, that he actually has beliefs. He should nominate a justice who reflects those stated beliefs (gun control, women’s rights, campaign financing) and let them do as they will: a little Harry Truman.

JG

I want to highlight this comment by Glen because it identifies the real problem:

“The problem is that we have let SCOTUS expand its jurisdiction without any check. We have reached a point of deference to the courts that SCOTUS could get away with pretending that any problem or conflict is within its jurisdiction. This is why the commentariat is in an uproar about this vacancy. The Scalia replacement will be more powerful than the president, because he or she will be the swing vote on what is practically an ennearchy.

The problem is that we have let the Court acquire too much political power. Neither party can let the other put anyone on a Court that we have let become an unchecked ennearchy.”

The more clearly political branches have ceded more and more power to the courts as each side sees the court as a way to try to ram things down the other side’s throat without compromise. The Court is where you can win win win and if you lose you can hope to appoint a better court later to win win win. In a good system, when you have a super dodgy Court ruling like Roe v. Wade you would get a clarifying amendment to the Constitution. You wouldn’t build a massive edifice of jurisprudence on top of it. You would be embarassed to keep mentioning it, especially when the ruling goes on and on about how the decision is grounded deeply in the history and sacredness of marriage and then you turn around and say “oh it really applies to everyone though”. The policy level result was fine, but it essentially invented a right to privacy (on abortion, lets not get crazy and pretend it is a real right to hold things private) and amended the Constitution to add it.

Another example, drug policy. For most of the history of the nation it was clear that the federal government didn’t have the power to regulate the mere production and sale of mind altering substances. We know this because the temperance movement had to get an amendment to outlaw alcohol. Now maybe the federal government should have such a power and maybe it shouldn’t. But it was clearly understood that it didn’t. But by the 1950s did we bother amending the Constitution to give the federal government that power? Of course not. Why bother? We can get pet Supreme Court justices to do our bidding.

And don’t whine about how hard amendments are, yes they are hard but we don’t even try anymore. The reason we don’t try is because the Supreme Court has gone well past ‘interpreting’ the Constitution and well into amending it. We don’t bother amending it because we put judges on the Court to do it for us. The problem is that the Supreme Court is a really bad institution for amending the Constitution. It is hyper elitist even compared to the Senate. It is essentially unaccountable. The members have life tenure.

When we can honestly say that the most important thing the President of the United States (one of the most powerful human beings on the planet) can do is appoint a justice to the Supreme Court, we are definitely doing something wrong with the Supreme Court.

So now we are here. Instead of having a mid level scuffle over Scalia, we are going to be in full blow up mode because both sides see this appointment as their chance to change the balance on which side gets to amend the Constitution.

I think SH 83 is right. If constitutional amendment by super-majority were a routine happening as it is in every other constitutional system, the court wouldn’t have that absurdly mythical power it has now. But the system is so petrified, there really is no way out short of a revolution.

By the way good point Bruce @41.

ZM @ 79

The UK now has a Supreme Court. In typically British fashion, its powers of what elsewhere would be called judicial review are complicated, surrounded with many qualifications of scope and means, not least because “parliamentary supremacy” is at least nominally sacred as a principle of the famously unwritten British constitution. But, it does have them, primarily in relation to devolution and by delegation from EU human rights law, which features strong judicial review.

A partial list of important legal, or at least quasi-legal, issues that today would of course be referred to the courts for a determination, but which nobody at the time thought lay within their jurisdiction, would include:

Of your list, numbers 1, 5, 6, and 7 were heard and decided by courts, though not necessarily the Supreme Court. Number 2 had no real world effect, so there was nothing to challenge. The laws in number 3 were obviously Constitutional. Number 8 was effectively decided by the Court because the Chief Justice (Bradley) was the deciding vote on the Commission.

@86. yes that gets at the emotions triggered by Obama choosing Scalia’s successor. Just a wild guess: Gerald, are you taking the bull by the Horne here?

John, with all due respect, your suggestion strikes me as the epitome of what is wrong with the center-left. Its insistence that it’s actually a good idea to be forever “reasonable” in the face of right-wing lunacy, and that this “reasonableness” must take the form of moving ever closer to right-wing lunatics. As if, reaching out, trying to find common ground, is a smarter strategy than matching the right’s fire with the left’s fire.

It’s also admitting, whether folks realize it or not, that one accepts that the right will push vigorously, relentlessly, aggressively, for its own agenda — never trying in the slightest to assuage the fears of the left — but the left can’t do likewise.

And then there’s the practical and pragmatic aspects of this:

It’s highly likely that no matter whom Obama nominates, she or he will not get through. Even those moderates. So, at best, it’s an empty gesture and gets us nowhere. It also sends yet another signal to Democrats, Social Democrats and those further left, that the Dem leadership is far more interested in the status quo, protecting ruling class privilege, and not offending crazed Republicans, than actually nominating great justices who would fight for “the people.” Which, of course, we already knew.

And, if by some fluke, the Republicans called Obama on his bluff, they would be voting in some harmless sacrificial lamb (from their POV), blocking yet another justice who could shift the ideological balance of the Court to the left. By definition, you can’t offset a far-right justice with a centrist, or even a liberal. Each time the Dems fail to nominate an actual leftist, the Court tilts a bit more to the right. Liberals aren’t as far to the left as a Scalia is to the right, etc.

In short, what Obama really should do is pick the best possible leftist judge . . . and for good measure, find one to really make heads on the right explode. How about a woman, a person of color, a gay woman, an atheist, and a renown Marxian legal scholar to boot? That I would pay to see.

@83,

I wouldn’t phrase the problem of excessive judicial power in terms of the idea that SCOTUS has usurped the power to amend the Constitution. Laws don’t interpret themselves, and if you have the unlimited power to do the interpretation, you don’t need to amend anything. The analogy is Stalin’s reputed observation that who votes doesn’t matter, who counts the votes is what matters.

And I don’t think the example you raise of Roe v Wade is a good example of SCOTUS improperly deciding an issue that the political branches should decide, or that they should amend the Constitution to decide. Whether or not govt has the legitimate authority to criminalize abortion is a clear case of ius, as opposed to lex, an issue of individual rights, and not properly a political issue, as say, campaign finance, and the dispute over the FL 2000 results were political issues, matters of lex. The courts are supposed to protect individuals from govt overreach, they are supposed to define the limits of majoritarian tyranny, and confine that tyranny to matters of lex, not ius. No one’s legitimate individual rights should be at the mercy of majoritarian tyranny, or even majoritarian inertia.

What happened in the case of abortion is that reality changed out from underneath the common law. At one time abortion was medically unethical because it was unsafe. Removing kidney or gall stones was also unethical for the same reason, and both abortion and “cutting for stone” are against the Hippocratic Oath as Hippocrates set it down. Whatever sexist and moralistic context in the case of abortion prevented its decriminalization along with cutting for stone, was a completely legitimate and necessary issue for the courts to address. The common law, not legislatures, made abortion illegal, way back when, and it is absolutely sound and legitimate court jurisdiction to correct injustices that develop when reality changes out from underneath existing law. The common law had become codified secondarily since the days of Justice Coke, and so legislative failure to correct the law that legislatures had fossilized into code law triggered a judicial duty to do the correction.

Once abortion was safe and medically ethical, the paramount concern became the right we all have to control our own bodies. No one would deny that I have some sort of right to life (as unfortunate as some of the consequences might be in terms of long-winded postings), but should my continued life at some point require a blood transfusion, the law will absolutely protect your right to refuse to give your blood to save my life. As trivial a violation of your body as it is to as force you to donate a unit of blood is, compared to forcing a woman to carry a child to delivery, the law will absolutely not require that unit of blood from you. The law won’t even let me have your kidney or liver after you’re dead, such is the respect the common law has for your right to control your person, even after death when it’s of no tangible use to you.

It’s a simple matter of equity that women have the right to deny a fetus the much more invasive and risky right to free use of their bodies. That became the controlling issue in the matter of abortion after abortion became safe and therefore ethical.

There never was any need to appeal to specific Constitutional provisions to achieve that result, and arguments from rights based on the common law (as is the case with whatever right there is for private gun ownership), were more powerful and more to the point in this case than any sort of argument from the Constitution. There is therefore absolutely no question of a need to amend the Constitution in order to recognize a women’s right to abortion.

What has muddled the issue is that once you decide to have a Constitution, and you make what is arguably the mistake of enumerating certain individual rights in that basic law, you have to account for the basic law in deciding cases that involve individual rights. This difficulty was recognized in the document itself in the 9th Amendment, inserted precisely because people had pointed out that the enumeration of certain rights in the prior eight amendments would prejudice the recognition of existing rights under the common law. But of course tying a claim for the existence of a given right to one of those enumerated rights is about the strongest claim that can be made, so an advocate is practically compelled to search for any connection, however tenuous, to an enumerated right, however stronger the common law right.

Constitutionolatry is ahead of even SCOTUSolatry as a source of our woes. We refuse to make obviously necessary changes because whatever foolish or obsolete mechanism is enshrined in that document is sacrosanct, thought of as foundational rather than contingent.

To put it in terms of the issue you raise of keeping our basic law current, the one big thing we need to amend the document to achieve, is the abolition of the states. I suspect on the basis of prior posts you won’t join me in urging such an amendment, but I would point to that issue as an example of something that does actually require amendment to achieve.

LOL …it is certainly not intention to be gored by the bull***!

I find that willful ignorance is NOT BLISSful … just plain stupid!

These folks are playing for power, money, influence and control!!!

And the fact that THE American Peoples ELECTED an African-AMERICAN man to the highest office in the land the 1st time in 240 years of US governance … in their minds was a fluke … an aberration!

The SECOND time … well … if they could ERASE the first 16 years of 21st Century America … from the minds of each American AND the history books … make no mistake …they would!

Yes …they’d like to erase Bush/Cheney, GOP/Republican governance 2001-2008 too!
Because they know ….that disastrous period led directly to the American Peoples willingness to try something different … you got to admit …after 240 years … a BLACK MAN as President …is something different!

AND ..that difference has been pretty good for the vast majority of Americans and the country!

And another thing I missed in my study of history, is the case the seceding states, or the Lincoln administration, brought to the courts to resolve the question of secession. What’s that case called, so I can Google it?

Putting aside the fact that the whole point of secession was to deny the power of any US courts to resolve any issues whatsoever, the case you’re looking for is Texas v White.

Gerald, why so racist????

I think Obama has been the worst President ever and it has NOTHING to do with his skin color. It has to do with his lack of leadership, lack of any cohesive understanding of economics, and absolute lack of any understanding of foreign affairs. I admit I voted for him the first time AND not because he was black but because I felt (big mistake now) that he might have the ability to actually bring change and, as best he could, cooperation in Washington. It didn’t happen because he was too young, too ignorant, too arrogant, and lacked the capability to see the big picture. He was supposed to be “hope and change”, he was suppose to be the “uniter”. It didn’t happen, he failed BIG time.

His first HUGE mistake was ramming Obamacare down everyone’s throat with some procedural tricks in the middle of the night. That’s not how you deal with a HUGE policy change and you must agree that you sure in the hell don’t lie about it to make people feel good “you can keep your doctor, you can keep your current plan, and you will save on average $2k to $5k a year” blah, blah, blah. All blatant lies he KNEW were lies from the onset. Next, we have the worst economy we’ve ever had in over 50 years. Unemployment, or more specifically, underemployment is worse than ever. I don’t care what the “official” number may say they are BS, just ask 100 or 1,000 people and you’ll get the real answer on how the economy is doing. Ask the minorities how their doing since Obama has been in office. Yes the rich are doing just fine as they always do under a Democrat or Republican administration. Our foreign affairs are a complete mess because of Obama’s complete ignorance. Now granted he didn’t start this huge mess in the Middle East but he sure in the hell has made it much worse then it could have been with his consistent misjudgments. Nobody, and I mean nobody in the world fears Obama, he is the laughing stock of the world as is America for being suckered into electing someone so ignorant and arrogant into the highest office in the land.

It’s people like you who try to scare people into being silent by being racist and throwing around the race card with the typical “you don’t like him because he is black” give it a rest pal very few are putting up with the racist crap people like you spew. I’m neither Republican or Democrat but I am tired of the same old crap over and over and that’s why Trump and Bernie are kicking the crap out of everyone else. Hillary, she is all done, she will never be President. All I know is if you want to get this country moving forward again you need people in Washington who know how to work together to make things happen. Neither party is always going to get everything they want so they need to get over it. Trump or Bernie, in my opinion, will make a good start at that. Lastly, to get this country moving forward is the need to shut racist and political correct people up and shine they light on them like the cockroaches they are. They do nothing to help make a country stronger, they do nothing to help bridge the gaps to reach agreement, they do nothing to make a community stronger, they do nothing to help people see each other as people rather than a skin color. Racist and political correct people simply make a nation weaker by dividing all people until they’ve destroyed the very fabric of what a community and nation really are…

Nick 02.15.16 at 7:14 pm

There’s better bullshit available elsewhere.

To the subject at hand, Obama’s already nominated someone who took 20 Republican votes. He can nominate another such person again. There’s no need for a time-stretching game.

I like this suggestion by Mr. Holbo a lot.

Here is a comment that’s closely related to this post that I put on another website just a few minutes ago:

President Obama, while having done quite a few good things while in office, was a terrible leader of the Democratic Party. He tried to be above all the “partisan bickering,” refusing to articulate the fact that 99% of the “bickering” came from the Republican side and going out of his way to distance himself as far as possible from the “professional left” that had done more work than anyone to put him in office. The results of generating no enthusiasm for the party apart from his persona were the two worst mid-term disasters in modern history, creating the conditions for complete legislative gridlock — and, ironically, cutting into the legacy he obviously wanted to leave.

In other words, President Obama owes it to the party that put him in power in the first place to play out this nomination process in a way that will, with complete justification for the good of the country, damage the Republican Party as much as possible

@102,

I’m always up for historical facts. Set forth a few pregnant facts, please.

Richard Posner is 77 and a conservative turned moderate. not Obamas best pick. a pretty good judge though.

@101, in regards to Obama as the worst president ever
http://www.motherjones.com/kevin-drum/2016/02/china-killing-us

Glen 84: your claim about US courts “deciding political cases” makes only superficial sense. When is a Supreme Court case not political? Gris wold is an excellent example. What could be less political than a couple claiming the right to use contraceptives? And yet, even 50 years later, what could be more political?

Or let’s look at the Exxon Valdez decision, in which the SC cut jury awarded damages for an unprecedented environmental disaster even though nothing in the laws or constitution provided any basis for limiting the damages. Was this a political decision? Of course it was. But it also was an ordinary civil law suit that of course was subject to Supreme Court review.

As to historical precedent, do you really wish to argue that Dred Scott or Cherokee Nation vs. Georgia were not political cases, and do you think that those who hoped that the Supreme Court would use its authority to rectify obvious injustice were foolish to do so? I really don’t understand your point.

Plume 93: I would really prefer judges to be impartial. It’s not their job to “fight” for a partisan political agenda.

Nick …what do you find to be racist?

The stating of factual history of of the US and the laws codified by its citizens (happen to be “white”) that made it legal to enslave human beings (happen to be “Black”)? That made it legal to oppress, terrorize, and exclude an entire population of Americans based on race and skin color?

I bet you call THAT a “race card” ….LOL.

Your “judgement” that President Obama is the worst President in the last 50 years is not supported by facts or for that matter by the vast majority of the American people. You do know President Obama was ELECTED …TWICE!

Your declaration of having voted for President Obama rings false. Your entire screed consists of RW talking points repeated ad nauseam for the past 4-5 years.

The history books with say that the 112th Congress led by Nancy Pelosi was one of the most productive and consequential in the preceding 100 years. Now the 113th and 114th Republican-led Congress’s …well …they ARE already the worst in the past 150 years!

You may wish to remain willfully ignorant of the huge/spectacular improvement to governance and the economy in the USA between 2009 to the present under POTUS Obama’s leadership AND Bush/Cheney GOP/Republican governance 2001-2008 . I assure you …future historians of American history …will not!

By the way …have you ever tried to get someone who didn’t want to get alone with you to do so?

The RW screed that President Obama failed in “bringing” the parties together is just plain Bullsh****t and you know it!

BEFORE President Obama was sworn in the current Senate Majority leader gathered a group of like minded Republicans and decided to BE the most obstructionist Congress in US history since America’s Civil War … How do you think the unprecedented number of filibusters came about?

Republican LED government shut down, unpresidented obstruction to EVERY legislative policy by THIS President … 113th and 114th Congress’s led by Republicans and considered the WORST performing in US history!

Sheeze … take your line of willful ignorance somewhere else ….

Cranky @ 12. As a Brit hearing things second hand, my understanding was that Obama’s two picks so far (Kagan and Sotomoayor) have been solid. Certainly not “center-conservative”.

I’ve got my own private nightmare. Its name is Bush v. Gore, the case where the Supremes called an election on the basis of a questionable declaration by a state official (Katherine Harris) in Florida.

What will happen if there is widespread voter suppression, fraud, bogus counting, etc. and state officials call the election every which way, and then the SC is split? I imagine that the lower courts could have diverse opinions. What then?

Everything as Lenin put it is “Political”. The correct term here is surely “controversial”. Political is about how state power is used; all law requires the use of state power. The question is do the courts decide controversial issues and if so how? Before the first world war the statutes about elections in England contained no absolute rule barring women from elected office but the courts decided to interpret them that way to stop women being candidates or taking office, and Parliament refused to pass new Law to allow female councillors. Allowing women political rights was seen as a big social change that neither judges or MPs were willing to allow. Slavery was clearly an American custom when the USA was created as a independent Republic so the continence of Slavery can be defended as the correct decision applying “Judicial restraint”. Banning the sale of contraceptives even to married people is not any different if you assume a Catholic stance as the starting point and free choice as the new social innovation that courts should avoid. Scalia was a bigot but he had a social theory to justify it. Culture defines what is controversial and culture changes over time. A controversial idea at any time is controversial and changing the venue of who decides it does not change the reality. If Dred Scott had not been decided as it was Slavery would still have been just as controversial and a civil war could still have occurred.

It probably suits politicians in the US to allow courts to decide controversial issues as it relieves them of responsibility for doing so. If they assumed the duty of decision I am not sure the results would be better.

Ideally if the Congress were elected by a form of PR you would have a multi party system and obstruction would be less likely. Having a bigger court with more members would make each judge less powerful and so each appointment less controversial. But the problem is ultimately caused by the way the US system is set up with President and Congress as separate mini power centres. It throws power to the judges. It is likely to be a problem indefinitely unless the political system is revised fundamentally.

@120. The statistical relation about having daughters and preferring Clinton to Sanders does not tell us anything about the rationality of that preference. I just found it interesting. At least there does not seem to a self-selection problem, i.e. the reason that those who have daughters are more likely to support Clinton is that Clinton supporters generally select to have more daughters.

But of course the right-wing may accuse Clinton supporters of having actively selected daughters through artificial insemination of X sperm, abortion of male fetuses, and neglect of the health of infant boys.

This is the kind of Satanic influence Hillary Clinton is known to have had.

Glenn Beck and Rush Limbaugh will soon ask as they invert Amartya Sen: where are the millions of missing boys among Clinton supporters?

Most of the discussion seems to presume that the Repubs will act as a unified bloc. I don’t see this. All the candidates, and most of the rest, are committed to opposing anybody Obama propsoes. So, if someone like Srinivasan were nominated and confirmed, it would be with the votes of Dems + a small number of Repub defectors. That would sow the seeds of yet more trouble for the Repubs.

It also might mean that Obama has appointed a conservative to defend the plutocracy. That would call into question the legitimacy of the Democrats as a party of the left, and not for the first time.
.
The good cop / bad cop routine has worn thin in this election cycle. Both Parties and the country are in trouble.

It also might mean that Obama has appointed a conservative to defend the plutocracy.

There’d be bleak comedy in nominating Ted Cruz.

But he tried.

It is not always clear, in these choreographed displays, what he intends. When all the talk of multi-dimensional chess dies down, it is sometimes clear that he has advanced the cause of a reactionary, plutocratic politics.

I think Obama has done very serious damage to the Democratic Party and I would like to see this admitted openly by Democrats and their centre-left sympathizers. Obama appointing Srinivasan, a Republican-leaning jurist, is going to be bad for the Republicans we are told. Oh, really.

Glen 118: Your distinction is artificial. “No, I wouldn’t say that Scott was seeking redress of the political situation, he did not petition to free all the slaves. He sued to vindicate his own rights, and was wrongly denied those rights”

But if the court’s decision had been just, the consequences would clearly have been political because it would have applied to many other individuals in similar situation. And that is very common for judcial decisions. Btw the court couldn’t have abolished slavery because at the time, there were no constitutional grounds for doing so. But the court could have held that non-slave states have the right to refuse recognition of the institution of slavery.

Keith 121: “Banning the sale of contraceptives even to married people is not any different if you assume a Catholic stance as the starting point”

The constitution precisely forbids the states to “assume a Catholic stance as a starting point” and it is precisely the Supreme Court’s job to uphold that constitutional principle.

In fact, why not the obvious strategy? Obama offers to support (and sign) a bill destroying Social Security and Medicare, in return for Republicans agreeing to approve his nominee. Grand Bargain achieved!

Glen Tomkins,

“As to how US courts, at least at the highest level, became so political, the simple but uninformative answer is that they started deciding political cases. I assume from your dismay that Australian courts observe a certain jurisdictional modesty. SCOTUS doesn’t, at least not lately.”

The Australian High Court decides some important cases like the Mabo case about native title , and there have been cases about the treatment of refugees, and one about the federal government can’t fund Chaplains in schools.

But I don’t think it is so much that our High Court is more modest in its jurisdiction, I would think the jurisdiction was similar except our constitution is shorter and we have more received law possibly. In Australia I just haven’t noticed the idea that the High Court is political to the same degree and usually both sides of politics would respect the decision of the court once it has been handed down and I can’t quite imagine a comment thread like this here if there was a vacancy in the High Court.

I don’t think your idea of abolishing the States us very good, since losing a whole tier of government would be quite a big step. One thing we did in Australia was make the federal government the main tax collector, so then it has some oversight of the States in funding State spending programs which is I think technically extra-constitutional, possibly you could try something like that before trying to abolish the States all together so you only had local government and distant Federal government.

The suggestion itself and the elaborations offered throughout are monumentally naive politically and to the extent that any Democrat politician or operative thinks even remotely this way, it goes a long way to explain the long list of political losses suffered by a party that represents the economic and social views of a clear majority of Americans (according to most values/opinions polls). It is really astounding to consider handing one of the most coveted positions to Republicans just to show “bipartisanship” in freaking 2015. It is astounding that one would think that the R’s intransigence still needs be to demonstrated. And it is astounding that one can’t the see the obvious next moves (e.g. 65)

Coupled with the amazing suggestion for Posner, this tells me that JH is trolling the readership here or really wants Obama to nominate someone for laughs. Considering a strong, almost crazy conservative like Posner for his fun writing misses the real import of the SC to affect people’s lives. How can one seriously suggest giving up the fight and pushing the button and nominating someone who will through the Law create a society antithetical to one’s vision? Seriously now?

The joke has been made many times already. By saying that Obama should cede his last year of power to make appointments to an incoming Republican candidate, the Republicans are implying that a Democrat President should get only three years of power, compared to a defacto five year term for a Republican. That is, the Republicans have reintroduced a new 3/5th rule, though one should remember that counting slaves as only as 3/5ths of a person reduced the total population size of the slave states and thus the number of representatives that their eligible white citizens could send to Congress. Counting slaves as whole persons would have increased the representation of white Southerners in the Congress, and that is what white Southerners wanted. In this case, not giving Obama a whole term stands in the way of progress.

I don’t think that’s accurate. If Scalia was nominated, he would be confirmed. Same with, say, Cruz.

Anyone nominated by Obama becomes a Muslim socialist sleeper agent, no matter what people thought of them before. This would go for Scalia and Cruz. You really need to pay attention to what is going on among the right-wing electorate. The chief birther is leading the nomination race (he may also be a 9/11 Truther, but that is another matter). This Obama hate knows no limit.

I don’t think that’s accurate. If Scalia was nominated, he would be confirmed. Same with, say, Cruz.

See, here I think Cruz is hated enough that an agonized Senate would vote him down. There’s no way in hell I’d want to test that other than in my dreams.

TM at 133,

As I say, you can’t always cleanly disentangle the two. The practice of judicial modesty would indeed involve judgment on a continuing basis, see my last @147 for an idea about what a differentiating test might look like. I think it’s pretty much what actual jurisprudence requires.

Sure, the Scott suit had wider implications. That’s why abolitionists were attracted to supporting the suit, advancing it as a test case. My point is that people at the time, even those inclined to favor the result reached by Taney, were surprised that the case wasn’t settled on narrower grounds, that Taney went deep into issues not raised at all by either party to the suit to issue a much broader decision than the case called for.

Like slavery or the opposite, the hope is that a judge will decide a case on its own terms. If the wider outcome in other cases is that slavery the institution is weakened, well, that’s the law. When a judge goes out of his way to bring in issues irrelevant to the case in order to serve what he imagines to be some general good that the law doesn’t actually protect, and thereby does injustice under existing law to an individual, that judge has politicized the process illegitimately.

Part of your point seems to be that it could have gone the other way. Nothing in Scott’s suit would have led to a decision that slavery was illegal or unconstitutional, but maybe we should let judges riff away in hopes that sometimes they will give us an illegitimate but just outcome like ending slavery.

Well, one answer to that is that a judgeocracy is always going to have a bias towards comforting the comfortable and afflicting the afflicted, because we choose our judges from among the tribe of the relatively comfortable. Don’t count on a Warren Court, because mostly you are going to get a Taney court. And if you institutionalize a judgeocracy, you practically guarantee the corruption of absolute power.

But the more germane objection I have to your idea that the courts might have ended slavery on a lark, willfully, if given a chance, is its implication that that’s what we owe all the decisions of the Warren Court to, that’s what we owe the gay marriage decision to, judges who just chucked settled law and decided to play Santa Claus and comfort the afflicted, the law be damned. No, every single one of those good decisions was also legitimately arrived at. Reality had changed out from under settled law, and the law has to change to keep up our evolving understanding of the world we live in. When most of us, in our ignorance, believed gay people to be child molesters, of course the law would never recognize any sort of human rights for gays. When that understanding changed, when the ignorance lifted, of course the law had to change. But it changed in accordance with settled principles of law, not on some generous whim.

There was no chance a court in Taney’s day would end slavery by judicial fiat, because the ignorant belief in black inferiority was too widespread. Had equality been recognized, of course the end of slavery would have followed. But what a court even in that era could do that Taney failed to do, was simply do what the law told him to do to respect what lesser dignity could possibly be accorded to a black person before his court. He sold out his duty to that individual out of loyalty to a system, a corrupt way of life based on slavery, that the law never instructed him he needed to protect. That’s what I mean by a politicized decision.

Some laws are plants, some laws are weeds.

geo 2150,

No, what I’ve been arguing is that some issues are legitimately subject to majoritarian tyranny, and some aren’t. Legislatures should only decide issues, such as where roads go, what taxes we have, etc., that require the will of the majority to prevail. There is no need for the will of the majority to prevail in the question of abortion, or the question of gay marriage. I believe the legal concept is that the state needs to show a compelling public policy interest to justify denying rights to individuals, it has to show that some public interest would be compromised if the rights were allowed.

What I mean by reality changing out from under previously settled law, is just that the common law is based on our common sense of what is right and wrong, and more particularly what we as a society are allowed to do in terms of bringing the weight of the law down on others to protect our common interests. That common sense is in turn based on commonly accepted beliefs about how reality works.

If we go back 200 years, there was no word for “homosexuality, and term only invented in the 1890s. The vast majority of people did not know anyone who was gay, or at least didn’t know that they knew any such person, because gay people had to be very circumspect to survive. The only people we now might think of as gay who ever came to public attention, were people who committed sodomy. My understanding is that sodomy was first identified as a crime at the time that the common law came to be more thoroughly documented than had previously been the case, in the reign of Elizabeth I. Now, the name, taken from the Bible narrative of Sodom and Gomorrah, implies that the crime in question is that of rape, homosexual rape. It seems perfectly reasonable to me, a gay man, that people would imagine that homosexual rape is a pretty heinous crime. I’m glad we have laws against such a thing. But if the only gay men you that you know exist are the ones that their victims complain have raped them, then your view of the reality we all live in is that same-sex relations are inherently rape, or at the least submission/dominance. (This is similar to the problem of the only Muslims that most Americans know exist are Muslims who bomb things, because that’s all the media is interested in). Of course in such a reality gay men are not going to be granted the right to love one another, because that is not conceivable to people who are convinced that all gay men are rapists and child molesters. Of course there’s a clear public interest in such a world in putting all gay men you can find behind bars, before they get at your children.

That view of reality has been changing steadily for over a century. Once it reached a certain point, once enough people stopped believing that gays are all, or even have any unusual propensity, to be rapists or child molesters, the legitimate public interest in criminalizing the gay disappeared. And when this view of reality disappeared, when all that was left of it was pathetic nonsense about govt recognition of marriage somehow carrying some sort of metaphysical seal of moral approval — patent nonsense for an institution that confers community property and joint filing status — of course the courts had to send its legal manifestations to the trash heap.

I can’t see why anyone would want to locate the reality-determining function for our society in legislatures, except where we have to, in matters of public policy, where the roads go, what we do about climate change, etc. I have infinitely greater trust in the common sense and common decency that is the basis of common law when that is allowed to function properly.

That said, part of the problem of distinguishing between ius and lex, matters that legitimately should be decided by majoritarian tyranny vs all the rest, is that we blurred the distinction a century and a half ago with a mania for codification of the common law. Murder isn’t really illegal because some legislature decided it should be illegal, but because judges and juries way back when, long before English was even a written language, used common sense and common decency to decide that murder would be a crime. Sodomy was only a crime in the past because the people of that day let their common sense and common decency be guided by tragically flawed ideas about the reality of human sexuality. We should not have had to wait on majoritarian tyranny to decide when it would be convenient for the usual assholes in our legislatures to give up a favorite hated minority to torment. Judges gave us sodomy, and it was only right that judges should sign sodomy’s death warrant.

Ze K @150,

Sure, we’re limited in practice to what currently constitutes the common sense and common decency of most of us in a given society. I can’t give you a system that will produce results better than you and me and the rest of us, because until and unless some Higher Power descends to tell us what to do, you and me and the rest of us are the best we’ve got.

I think we can say after millennia of experience, that the one solution we don’t want to go with, is listening to people who assure us that they know exactly what the Higher Power wants us to do. Aside from observing that rule, we just muddle through.

Sorry to respond in bromides, but I’m not sure what your objection is.

I think it is fair to say, that we have muddled through recognizing some common ground, that we have never actually been in Ayn Rand territory, with the closest being cases like Somalia and Lebanon at their worst, which an overwhelming majority of us recognize as counter-examples because the reality of “no rules” is not nearly as neat and pretty as an Ayn Rand novel.

I believe in moralistic beliefs that work. Theocracy doesn’t work, libertarianism doesn’t work. The mongrel of a non-system we have mostly let’s us muddle through, so it has my loyalty.

GBH, what Bob means is that senators are doing the deciding. Senators are two to a state, so inequality is already baked into the cake in perpetuity, what with Wyoming having the same say as California. There is no more (or less) gerrymandering to be done.

Y’know, I think Obama has indulged in unprincipled betrayal of his supporters. In fact I think Obama is what his opponents used to decry him as (before they moved to the deranged lengths of Birtherdom) – a ruthless and streetwise Chicago operator.

Which is why I think that whatever he does from here will – surprise, surprise – somehow end up making the Repubs look really bad and materially help Hillary’s election. Whether it gets a good justice onto SCOTUS is another question, of course.

geo at 157,

You got a better idea?

I predict the same process will play out in the US.

Predicting a two-party system seems a little easy.

Sorry my link in the comment above was wrong (it was a link to someone’s comment about local Oz politics) the correct one is here
http://www.climateplus.info/2016/02/14/us-climate-action-and-democracy-at-a-tipping-point/

I guess so. But at least Obama would not have to see his attempt to save the world from climate change undone during his own Presidency.

@160. Please stop blaming Obama for what we are seeing. Most pundits and even intellectuals seem unable to tell the difference between economic populism and a Klan rally. Or, to put it another way, they would go to a Klan rally and report the underlying economic anger and join in calling out political elites for creating it. Trump is leading Klan rallies across the US. That’s the sum total of it.

From what I have read and heard, Clinton has been much clearer about calling out Trumpism for what it actually is and critiquing it root and branch than even Sanders has. She even refers to white privilege.

find

On the other hand if Slavery could have been abolished by court order in 1860 or before that would have been better than having a civil war.

The south attacked the north before there was any decision along those lines, legislative or otherwise. You’d get the war just the same.

TTN and Bob.

You guys are right on that.

Val,

“That being the case, why would Obama really care about getting a new appointee accepted? If the court is at a standstill, his EPA regulations are upheld and the US (at least for the time being) is seen to make a contribution to reducing worldwide carbon emissions, right?”

The Our Children’s Trust organisation has a Federal court case in Oregon, which might eventually come before the Supreme Court to decide whether the government is required to act on climate change.

But I think it still is strange that appointments to the Supreme Court should be made based on what judgement they are likely to make in upcoming court cases. I think it should be made more based on their knowledge of the law and good decision making in court cases thy have decided.

“But I think it still is strange that appointments to the Supreme Court should be made based on what judgement they are likely to make in upcoming court cases. I think it should be made more based on their knowledge of the law and good decision making in court cases thy have decided.”

This is an example of foreigners not understanding how crazy the system as gotten in the US. We have essentially stopped formally amending our Constitution, and now only our judges get to amend it. But when 5 unaccountable life appointees have license to amend the Constitution things get crazy when one of them dies and needs to be appointed.

The obvious answer is to go back to a norm where amendments to the Constitution go through the amendment process, and judges encourage that or wait for it, but neither side is going to unilaterally disarm on that.

Historically I think what happened is we were in a true emergency situation over the Jim Crow south and the Supreme Court stepped in to save the country and with arguably strong support from the civil war amendments. But instead of seeing that as a scary brush with institutional crisis that was to be avoided, both sides decided that it provided great tools for destroying the other side on the hard questions. The Supreme Court always had strong political elements, but the new approach transformed it from a Court with political components to a completely political organ. The problem is that life tenure doesn’t go well with completely political organs. (And it isn’t clear why a completely political organ should be allowed to overrule Congress).

As flawed as the textualist arguments are, the liberal jurisprudence arguments are much worse. The explictly want the Supreme Court to be a political organ. But that is a bad idea. We would be better off with no Supreme Court at all and Congress doing what it wants than the Supreme Court as a purely political organ.

(That wouldn’t be my preference BTW. I would prefer the Supreme Court to go back to being more of a regular court with the bog standard contract interpretation style of interpreting a document [rules like you don’t interpret phrases to mean ‘nothing’ and you don’t interpret things to mean the opposite of what everyone at the time understood them to mean].)

Having a ravening plutocracy dominating the politics of the country means there will be some unpleasant disputes. Arguing about whether you want the Justices of the Supreme Court or the Chairmen of Congressional Committees or the Presidents of Business Corporations to destroy all that is good and decent seems to miss the big picture.

Sebastian @180: We have essentially stopped formally amending our Constitution … The obvious answer is to go back to a norm where amendments to the Constitution go through the amendment process

Yes and no. You’re certainly right that the Court ought to be constrained by a constitution, which is a social compact, a statement of consensus, an expression of a nation’s most basic political vision and values. Of course it’s absurd not to expect the social consensus to change in important respects over 250 years. As you say, that’s what the amendment process is there for, and if it worked, the Court would not have accrued as much power as it has.

But it doesn’t work. It’s reasonable enough in principle that supermajorities should be required in order to compass fundamental changes. But the amendment process, like the Senate and the Electoral College, and above all the campaign finance system, the major-party duopoly, first-past-the-post vote counting, and the concentration of media ownership, was designed to make popular deliberation rare and ineffectual.

The explicit premise of every political argument nowadays has to be that contemporary America is a thoroughly undemocratic society, very efficiently administered and controlled. This doesn’t mean that fundamental change is impossible, though it will probably require generations. But it does mean that debating theories of constitutional jurisprudence is somewhat beside the point just now.

Ok, but is it really a strong argument that if have trouble getting crucial amendments through (which by the way is mostly untested, there haven’t been dozens of failed amendments in the last forty years) we should just let the judges decide, and if we don’t like their decisions just wait until they die? That seems rather dangerous.

“As you say, that’s what the amendment process is there for, and if it worked, the Court would not have accrued as much power as it has. ”

Why are you so sure? It is no harder to pass amendments now than it used to be. We haven’t even tried more than one in my lifetime. We don’t try because the Supreme Court does it for us. It is a vicious cycle of compounding anti-democratic moves by the Court again and again and on thinner and thinner reeds of argument.

The problem is that every step seems ‘too hard’ so no one tries it. Like running a socialist or telling the Republican Party that the Iraq War was a horrible waste.

Yet when people do try these ‘too hard’ things, it looks like sometimes there is a response. The problem is that THE ESTABLISHMENT won’t try these things for various reasons having to do with their own power. The problem isn’t that they are ‘impossible’.

This is not a difference with Australia that would account for the politicisation of your Supreme Court.

It is well known changing the written constitution is difficult in Australia, (we have received law constitution law as well which is unwritten coming from England) we have to have a referendum, and it has to pass with a majority in the federal electorate and get a majority vote in a majority of the States as well.

We have had 44 referendums since federation in 1901 and only 8 succeeded , we are averse to changing the constitution generally speaking. Our next one is likely to be about Indigenous Recognition and we have been discussing this for a few years now already.

So the difficulty of changing the constitution can be ruled out as a reason why the US Supreme Court is more politicised than the Australian High Court I think.

184: “America is a thoroughly undemocratic society, very efficiently administered and controlled”

The part “efficiently administered” is somewhat disputable.

TM @190: Really? From the point of view of the financial, defense, energy, pharmaceutical, chemical, software, entertainment, advertising, hospital, insurance, and correctional industries, the national security bureaucracy, and salaried or self-employed professionals in the top 5 percent or so of the income scale, how could America be more efficiently administered?

!st this NOT a case of 2 sides do it!

The POTUS is a 4 year term ..not 3/5’s of a term.

2nd The PEOPLE of the USA ELECTED THIS POTUS… TWICE and have spoken in fact he won the popular vote with 5 MILLION more than his GOP opponent.

3rd It is the POTUS Constitutional duty AND his right as POTUS to offer his selection.

4th The American people WANT and TRUST POTUS Obama’s political leanings in these matters (see 2)

5th Only willful ignorance allows one to ignore the actions of the MOST obstructionist political Party to a sitting President since the Civil War .
GOP/Republican Senators —abusive use of the filibuster. And stopped or delayed every judicial nominee submitted. AG Lynch comes to mind.
GOP/Republican led Congress’ 113 and 114 rated the 2 WORST in US history.

POTUS Obama should and will submit whom he believes to be well qualified and the GOP/Republicans SHOULD do their job … NOT obstruct the Constitution and the duly ELECTED POTUS.

TM 02.19.16 at 9:30 am @ 195 —
Gibbon says that the day before Rome fell (in 476, I guess) chariots made of gold trundled back and forth through the streets as on any other day.

@189 – Glen Tomkins 02.18.16 at 7:01 am:

The Articles of Confederation had a provision that the Union the thirteen former colonies had signed onto, was to be perpetual and indissoluble. There was an explicit provision against secession. Not only did all thirteen break that promise when they jumped ship to ratify the Constitution, they did so unilaterally, without negotiating the fact or the terms of their secession with the confederal govt from which they were seceding.

All thirteen…unilaterally? How about “unanimously”?

When all parties to a contract decide not to enforce that contract any more, and a new contract has been written to take its place, who is left to press for enforcement of the old contract?

If southern states had devised a way to secede without violating Art. I, Section 10 of the US Constitution, it might have worked. Trump might be telling his supporters that he will make the Confederates pay for building the Mason-Dixon wall….

@191,

Perhaps I should have clarified that this hypothetical of mine applies to situations like that in 1860-61, that unfolded over months, in which there is time to go to law before going to war, and the issue in which going to war — with a state of the Union — is chosen by the president over going to law, seems to be a legal issue to most people.

Today, I think almost everyone would agree that the question of South Carolina’s authority to nullify the Tariff of Abominations, or Virginia’s authority to secede, should be one that the courts would decide, rather than getting a Force Bill through Congress to invade SC, or calling for states loyal to the Union to send their militias to be federalized and sent South to invade the Confederacy. The courts would send injunctions South instead of armies, and events would unfold like nullification events in the 1960s, not like nullification in 1832 or 1861.

Kennedy and Eisenhower did send troops and marshals to deal with some of the nullification events in their presidencies, but they did this to enforce court orders, something Jackson and Lincoln never sought.

@124,

Why would people in 1861, people generally and not just secessionist mooks, think it was at least a reasonable position, even if not one they agreed with, that the seceded states had the right to demand back the forts and other federal facilities located in their states? And if there was disagreement on this point, why would everyone just assume that of course the people who would decide this constitutional question would be commandants of these facilities, rather than the courts?

The theory that people proceeded by on these matters in those days was something that people today have no trouble seeing as an insane way to run a supposed Union. I certainly don’t have any sort of faith in the cogency or reasonableness of that theory, so I’m not a suitable advocate for presenting the theoretical arguments for it. But the historical practice is pretty inarguable, that this insane theory was once widely respected as the way things were done in relations among the states and the Union.

When the Federalists passed the Alien and Sedition Acts in 1798, Madison thought that they were clearly unconstitutional, a widely held opinion. It is difficult to imagine that we today would fail to identify the grounds on which this opinion was held, that provisions of the acts violated protections of free speech — and especially political speech — as central constitutional law issues. But instead of thinking that the right remedy was to go to law to vindicate these protections, Madison supported nullification of the Alien and Sedition Acts, and two states actually did nullify, Virginia and Kentucky.

I’m not aware that any violence occurred as a result of these nullifications. My understanding is these laws were mostly not enforced, perhaps not enforced anywhere in the US except by Justice Chase in his circuit (SCOTUS justices at that time spent most of the year riding a circuit), enforcement that earned him impeachment, but not conviction, after the Federalists lost the election that Chase tried to win by tossing opposition editors in jail. Just as Madison did not try to appeal to the courts (where his side might have lost, given the Federalist cast of the Court), neither did Adams seek vindication of the Acts’ legitimacy, and injunctions to state courts to proceed with enforcement, in the federal courts. Presumably Adams would have won in SCOTUS, had anyone gone there with this question.

The understanding at that time was that enforcing these laws, for which Adams had the same oath sworn in heaven as Lincoln, in states which had nullified them, would require sending in military forces. The US Army being laughably small at the time, and unable to move across the map in any case without a fresh appropriation, this would require going to Congress for the authorization to raise an army, the US Army plus the militias of states willing to participate, to invade Virginia and Kentucky. There was no stomach for this even in the New England states, so the Federalist bluff was called, they had tried some hardball, but had to slink away when challenged by states nullifying their scheme of suppressing the political opposition.

In contrast, when South Carolina nullified the Tariff of Abominations in 1832, Madison opposed that instance of nullification. I know of no evidence that he had changed his mind since 1798 about nullification in general, and the reason he offered for his opposition to South Carolina’s nullification that I have seen in direct quotation is that he thought it tolerably clear that Art I, sec 8 gives Congress the sole power to set tariffs. But again, neither Madison, nor the president at the time, Andrew Jackson, nor the South Carolina govt, sought vindication for their view of the matter in the courts.

Unlike Adams in 1798, Jackson in 1832 sought and obtained a Force Bill that voted the money to raise an army to invade South Carolina to collect the tariffs voted by the US Congress. There was no question of sending injunctions that SC cease and desist from using its militia to keep by force the Collector of Revenues of the Port of Charleston from going about his duties. SC didn’t complain that it was unfair for the rest of the US to raise an army, and it didn’t seek injunctions to stop the raising of such an army. It instead came to the negotiating table, and a compromise tariff was accepted by both sides before the invasion was necessary.

Yes, this is a crazy way to run a country, so crazy and so at variance with our current practice that the idea that our highly respected, even idolized, Constitution embodies this madness, is difficult to swallow. But that’s our history, I’m not making this up.

In that context, Buchanan’s reported remark, that he wasn’t sure whether or not secession was constitutional, but was sure that there was nothing he could do about it, makes a certain sense. I can’t understand this remark as referring to any particular provision except Art IV, sec 4, which is the same provision cited by states to justify the second wave of secession. Usurping the states’ legitimate authority to declare who was in insurrection was the overt act of lawlessness that “moderate” Southerners thought should be waited on to justify secession. These states argued that this provision gives to the states alone the authority to decide which group of armed men within their state boundaries are in insurrection, as opposed to carrying out the will of the state. Since Buchanan could not get a Force Bill through the lame duck Congress to raise the army necessary to vindicate his Supremacy Clause duty to enforce the laws throughout the Union, even if he thought that secession merited the war that would have started, he was left without recourse. It was not clear to him that it was appropriate to give orders to US Army commanders of outposts in seceded states that they should refuse to surrender US property to armed groups sanctioned by those states as their militias. If the policy of the US was not to be war on the seceded states, a war he could not get declared with the Congress he had, then it only made sense to respect the view of the matter of the seceded states, that a state had the Art IV, sec 4 authority to only allow US forces, including military facilities, within its borders at the state’s discretion.

Of course Buchanan’s reluctance to at least ask for a Force Bill might be attributed to a pro-Southern bias. But I’m not aware that he asked for a Force Bill to invade Northern states for nullifications of the Fugitive Slave Act either. He was unwilling to go to war to enforce his oath sworn in Heaven to uphold federal law as defied by states on both sides of the Mason Dixon line. I’m not aware that he asked for injunctions either on any of these defiant states.

These questions were not appealed to the courts for their decision, because the thinking at the time was not that all Constitutional questions were necessarily legal questions. Concretely, this question that commanders of US forts in seceded states faced in 1860-61, was not thought to have one answer. The idea that the law has to be able to arrive at only one answer, that it cannot demand contradictory actions, is fundamental, and is the basis for judicial review, which does not derive from any authority granted by the Constitution, but from the need for courts to decide which law to enforce when there would be contradictory requirements unless one such law was not enforced. If a US Army commander accepted the claim of the seceded state to have asserted its Art IV authority and rescinded its permission for his forces to continue in that state, then, in the absence of a declaration of war on the seceded state by his govt, he would be compelled to respect that claim and surrender the fort. But if that same commander were to follow the theory that having seceded, the state and the US were now, in the absence of formal relations, in a state of war even without formal declaration, then he would be duty bound to resist surrender to the forces of a hostile power.

SCOTUS didn’t do those questions in those days, and so no one thought to ask it to decide these questions, or more generally, what status the seceded states actually had, foreign power, insurrectionists conspiracy, or whatever. People just got by without legal guidance, and so we had Major Anderson sitting in Ft Sumter as a sort of Heisenberg particle vs wave, empowered to come up with his own answer where the law was not thought capable of dictating a unitary result, and no one sure whether a Kentuckian would say yes or no to the authority of SC to take back the fort entrusted to his command by the US.

Crazy as this theory of govt was, it did not have this mook feature imagined by many of our current nullification and secession enthusiasts, that nullification is some sort of right analogous to the rights of individuals we ask the courts to protect. A state had the practical authority to nullify federal law because it had the Art IV authority to define what within its borders was insurrection and what wasn’t. It could order its military forces to block federal authorities in their duties, and the federal govt could do nothing about that short of sending in an army, because the designation of these blocking forces as insurrectionists could only be made by the state, and federal forces could only enter the state to suppress insurrection at the invitation of state govt. But this state authority did not cancel the duty of the US govt to assert the Supremacy Clause to see that US law was enforced throughout the country. As Lincoln put it, the folks dissatisfied with a Union that had just elected him president might have had reservations that led them to the extreme response of secession, but whatever the status of their justifications for secession, these fell far short in clarity and force to the oath registered in Heaven to enforce the Supremacy Clause that Lincoln had just taken.

To take a recent example of history repeating every tragedy as farce, the Bundy folks would have had a very clear right of revolt guaranteed by the 2d Amendment, had the govt of Oregon deputized them as a militia. Failing that, no dice, just criminals. But even if they believed, and the rest of us accepted, some witch’s brew combination of 2d Amendment right of revolt plus Sovereign Citizen usurpation of state authority, or if Oregon ha declared that they were its militia, they still had no right to expect that the full weight of the US govt would not come down on them. The president still has that oath sworn in Heaven to suppress violent revolution.