Justice Kennedy Announces Retirement

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Re: Justice Kennedy Announces Retirement

Post by Doctor X » Wed Jul 04, 2018 4:54 am

I stole it from someone in a discussion where I corrected him that "NeoCon" does not really describe the religious right, particularly since many of the so-called "NeoCons" are of The Chosen[Tm.--Ed.]. He suggested "PsychoCon."

I like to give credit.

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Re: Justice Kennedy Announces Retirement

Post by Anaxagoras » Wed Jul 04, 2018 5:47 am

Ramesh Ponnuru thinks so too. He is very frank about his reasons:

Kennedy’s Replacement Should Be Judge Amy Coney Barrett
It will be nice to have one woman in the majority when the Supreme Court finally overturns Roe v. Wade.
He doesn't want Roe v. Wade overturned by only male justices. He wants a woman to be in on the opinion, perhaps even to be author of the opinion.
The main reason I favor Barrett, though, is the obvious one: She’s a woman. It may be that in an ideal world, the sex of a Supreme Court nominee would not matter. But opposing a woman will probably be more awkward for senators than opposing a man would be. Also, it cannot be good for conservatism that all three women now on the court are liberals. If Roe v. Wade is ever overturned — as I certainly hope it will be, as it is an unjust decision with no plausible basis in the Constitution — it would be better if it were not done by only male justices, with every female justice in dissent.

So pick Barrett, Mr. President. Let the dogma live loudly on the Supreme Court.
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Re: Justice Kennedy Announces Retirement

Post by gnome » Wed Jul 04, 2018 5:52 am

Personally I think the "Nuclear Option" has fucked up the future of the court. Before, you needed justices with broad appeal even if you had both Congress and the White House, or else you couldn't get them through.

Of course, the idea of holding up confirmations just because is similarly damaging.
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Re: Justice Kennedy Announces Retirement

Post by Doctor X » Wed Jul 04, 2018 6:01 am

Here is an idea assholes: do not depend on SCOTUS, propose a fucking amendment to the Constitution, if you have the balls.

"Uh . . . but . . . that . . . won't . . . the pass!"

Exactly.

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Re: Justice Kennedy Announces Retirement

Post by WildCat » Wed Jul 04, 2018 3:25 pm

Anaxagoras wrote:This seems to be who the Psychocons (apologies to Doc. X) want Trump to nominate:

Trump should nominate Amy Coney Barrett to the Supreme Court to save his presidency

Former clerk for Scalia, deeply religious, member of the Federalist Society. She was only appointed to a federal appeals court 8 months ago, and went through Senate confirmation at the time and was confirmed on a 55-43 vote which included some red state Democrats.

Would she vote to overturn Roe v. Wade? Nobody can prove that she would or wouldn't, of course, but I think conservatives who want to ban abortion believe that she would. She has said that life begins at conception, which might be a clue. But she would probably be a reliable conservative in the mold of Scalia, and Roberts would be the new swing vote. At age 46 she could be on the court for 3, even 4 decades. :notsure:
She sounds good to me. A SCOTUS justice is supposed to rule by the Constitution, not "muh feelz" which is what Ginsburg et al do.

As for judicial experience Kagan was never a judge for even a single day before Obama nominated her.
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Re: Justice Kennedy Announces Retirement

Post by Skeeve » Wed Jul 04, 2018 4:41 pm

WildCat wrote:
Anaxagoras wrote:This seems to be who the Psychocons (apologies to Doc. X) want Trump to nominate:

Trump should nominate Amy Coney Barrett to the Supreme Court to save his presidency

Former clerk for Scalia, deeply religious, member of the Federalist Society. She was only appointed to a federal appeals court 8 months ago, and went through Senate confirmation at the time and was confirmed on a 55-43 vote which included some red state Democrats.

Would she vote to overturn Roe v. Wade? Nobody can prove that she would or wouldn't, of course, but I think conservatives who want to ban abortion believe that she would. She has said that life begins at conception, which might be a clue. But she would probably be a reliable conservative in the mold of Scalia, and Roberts would be the new swing vote. At age 46 she could be on the court for 3, even 4 decades. :notsure:
She sounds good to me. A SCOTUS justice is supposed to rule by the Constitution, not "muh feelz" which is what Ginsburg et al do.

As for judicial experience Kagan was never a judge for even a single day before Obama nominated her.
Strangely enough, David Axelrod: A surprising request from Justice Scalia
When the shocking news of Justice Antonin Scalia's passing hit Saturday night, my mind raced back to a White House Correspondents Association dinner seven years ago, when we were seated together.
...
Justice David Souter, Scalia's longtime colleague on the court, had just announced his retirement, creating a vacancy for President Obama to fill. Scalia figured that as senior adviser to the new president, I might have some influence on the decision -- or at least enough to pass along a message.

"I have no illusions that your man will nominate someone who shares my orientation," said Scalia, then in his 23rd year as the court's leading and most provocative conservative voice. "But I hope he sends us someone smart."
...
"Let me put a finer point on it," the justice said, in a lower, purposeful tone of voice, his eyes fixed on mine. "I hope he sends us Elena Kagan."
Then Skank Of America could start in...

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Re: Justice Kennedy Announces Retirement

Post by gnome » Thu Jul 05, 2018 1:50 pm

WildCat wrote:
Anaxagoras wrote:This seems to be who the Psychocons (apologies to Doc. X) want Trump to nominate:

Trump should nominate Amy Coney Barrett to the Supreme Court to save his presidency

Former clerk for Scalia, deeply religious, member of the Federalist Society. She was only appointed to a federal appeals court 8 months ago, and went through Senate confirmation at the time and was confirmed on a 55-43 vote which included some red state Democrats.

Would she vote to overturn Roe v. Wade? Nobody can prove that she would or wouldn't, of course, but I think conservatives who want to ban abortion believe that she would. She has said that life begins at conception, which might be a clue. But she would probably be a reliable conservative in the mold of Scalia, and Roberts would be the new swing vote. At age 46 she could be on the court for 3, even 4 decades. :notsure:
She sounds good to me. A SCOTUS justice is supposed to rule by the Constitution, not "muh feelz" which is what Ginsburg et al do.

As for judicial experience Kagan was never a judge for even a single day before Obama nominated her.
The objection that I keep hearing is that she has stated that a judge's faith should override law in their rulings, which would be exactly ruling on "her feelz". Did she make a clear statement along those lines after all, or is it overblown wordplay?
"If fighting is sure to result in victory, then you must fight! Sun Tzu said that, and I'd say he knows a little bit more about fighting than you do, pal, because he invented it, and then he perfected it so that no living man could best him in the ring of honor. Then, he used his fight money to buy two of every animal on earth, and then he herded them onto a boat, and then he beat the crap out of every single one. And from that day forward any time a bunch of animals are together in one place it's called a zoo! (Beat) Unless it's a farm!"
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Re: Justice Kennedy Announces Retirement

Post by RCC: Act II » Thu Jul 05, 2018 8:11 pm

gnome wrote:Personally I think the "Nuclear Option" has fucked up the future of the court. Before, you needed justices with broad appeal even if you had both Congress and the White House, or else you couldn't get them through.

Of course, the idea of holding up confirmations just because is similarly damaging.
The entire Federal judiciary is pretty much fucked now. Based on a tradition of respect, there has for decades been an assumption that Federal Judges would be the final adults in the room. There are tons of examples of people who can only see through partisan lenses being surprised at a ruling because it seems at odds with the political leanings of who appointed that judge.

The norms that created this are gone. Right now the GOP is at all levels openly stuffing the courts with political partisans on the deeply warped assumption that their own norm breaking w/r/t moderation of the federal judiciary won't result in the breaking of other norms, like the Democrats if they get control of the government and get jammed up by Trump appointees, just creatively re-organizing the federal judiciary to end the influence of the Trump judges and then appointing ten new justices to SCOTUS. And then so on.

It isn't that hard to totally destroy American democracy while coloring inside the lines set by the text of the constitution. The document itself is no more inherently exceptional than any of the number of USSR constitutions the politburo used as so much toilet paper. Its the interpretations and stability afforded by significant but not absolute respect for same that makes things work.

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Re: Justice Kennedy Announces Retirement

Post by Nyarlathotep » Thu Jul 05, 2018 8:17 pm

Doctor X wrote:Here is an idea assholes: do not depend on SCOTUS, propose a fucking amendment to the Constitution, if you have the balls.

"Uh . . . but . . . that . . . won't . . . the pass!"

Exactly.

--J.D.
I think that is and long has been part of the problem. Politicians don't want to take political risks on issues their constituents are divided over. Far easier to let the courts handle it and then bitch "ACTIVIST JUDGES LEGALIZED THE THING!" or "IF SO AND SO WINS THE ELECTION HE WILL APPOINT JUDGES WHO WILL OUTLAW THE THING!!" than to take any responsibility and try to legalize or outlaw the thing the right way.

And I don't see it changing because as much as both sides complain about partisan judges, both sides also get the same benefit from it. Thus neither is going to upset that particular apple cart any time soon.
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Re: Justice Kennedy Announces Retirement

Post by RCC: Act II » Thu Jul 05, 2018 8:36 pm

So.... while waiting for the amendment instituting a specific interpretation of the general language contained in the text of the constitution to get enough political support to pass an amendment clarifying that general language... what do we actually do about that general language when it comes up in real life?


Or is this another one of those ideas that only begins to make sense if there is a One True Interpretation of all those general provisions contained in the document and if everyone were to just recognize that obvious One True Interpretation we wouldn't have all this trouble?

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Re: Justice Kennedy Announces Retirement

Post by Doctor X » Thu Jul 05, 2018 10:36 pm

Nyarlathotep wrote:And I don't see it changing because as much as both sides complain about partisan judges, both sides also get the same benefit from it. Thus neither is going to upset that particular apple cart any time soon.
I agree and, conceptually, getting the federal courts to bend a particular direction seems easier than enacting actual laws and/or amending the Constitution. Further, the ideologues, even the rather stupid ones, know they cannot convince roughly two thirds of the country--both Houses then states--to agree with whatever foolish "issue" they have.

It also, as you indicate, allows them to duck some of the blow back.

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Re: Justice Kennedy Announces Retirement

Post by corplinx » Thu Jul 05, 2018 10:56 pm

Is there a Roe V Wade repeal case coming anywhere near the Supremes through the end of the year?

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Re: Justice Kennedy Announces Retirement

Post by gnome » Thu Jul 05, 2018 11:03 pm

I've been under the impression that a few states maintain at least one direct challenge to Roe v. Wade in the hopper between them. Basically by enacting a law, popular with red state voters, that goes in direct opposition--they know it'll get struck down, but as long as there are always a small handful of cases pending, one can be brought all the way on demand.

This is not confirmed fact--I am just betting that is the case based on how many strong and questionable restrictions get enacted that have little chance of surviving in court, and that it seems like it would be a perfectly viable and perfectly legitimate tactic.
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Re: Justice Kennedy Announces Retirement

Post by Abdul Alhazred » Thu Jul 05, 2018 11:22 pm

All those western European countries legalized abortion by passing a law, with the exception of Ireland which did a constitutional amendment by public referendum.

I get the impression the Democrats will never try to go the legislative route, because that would mean less apocalyptic hysteria to exploit when there is a Republican president.
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Re: Justice Kennedy Announces Retirement

Post by Abdul Alhazred » Thu Jul 05, 2018 11:24 pm

corplinx wrote:Is there a Roe V Wade repeal case coming anywhere near the Supremes through the end of the year?
If not, you know there will be soon.

The outcome not a foregone conclusion.

And even an "anti-abortion" ruling would not necessarily mean an overturn of Roe.
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Re: Justice Kennedy Announces Retirement

Post by Skeeve » Mon Jul 09, 2018 3:23 pm

UPDATE: Trump to unveil Supreme Court pick for the ages
(CNN)When President Donald Trump unveils his second Supreme Court pick Monday night with the prime-time flourish of a reality show star, he will lay a momentous marker in modern political history.

"An exceptional person will be chosen!" Trump tweeted on Sunday, showing his glee at making a selection that will put him in the national spotlight he craves with a cherished win decades in the making for his Republican supporters.

Trump's pick will cement a 5-4 majority on the court for conservatives who could quite possibly dominate for a generation and, combined with his aggressive efforts to appoint judges to other federal courts across the country, ensure that the imprint of his contentious presidency will endure long after he has left office.

In many ways, Trump's pick will further empower the conservative backlash against progressive victories of the Obama era, on issues like gay rights, immigration and health care legislation that set a torch under his shock general election campaign. Some of those victories were made possible by the swing vote of Anthony Kennedy, whose retirement handed Trump a golden ideological opening.
Eh, probably not.

I agree with many here, all of the spleen venting so far will be nothing compared to finding a replacement for RBG.
If she were to die before Trump leaves office that is.

At any rate, the show begins at 9:PM tonight....

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Then Skank Of America could start in...

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Re: Justice Kennedy Announces Retirement

Post by Abdul Alhazred » Mon Jul 09, 2018 3:29 pm

Is it just a matter of Trump derangement?

Las I checked Justice Kennedy was no LIBBERUL.
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Re: Justice Kennedy Announces Retirement

Post by RCC: Act II » Mon Jul 09, 2018 8:02 pm

Abdul Alhazred wrote:Is it just a matter of Trump derangement?

Las I checked Justice Kennedy was no LIBBERUL.
Making it a liberal/conservative issue distorts things a bit.

The issue with taking federalist society bots of the assembly line is the issue as to respect for Stare Decisis. The willingness to at least work within the present framework of the body of case law.

It isn't something that can be absolute as that would be a danger. It has to be substantial because otherwise the law becomes unpredictable. In practice, almost everything is governed by judge made law, either completely judge made (common law) or judge made law interpreting some piece of positive law (like a statute or constitutional provision)

So judges over time are going to see situations where the application is unclear, and make a call as to what to do. And then that decision gets followed when that situation happens again, and is considered when new but similar situations come up. This is better than every time a situation comes up a judge acts like they are the first person to ever consider the question. Everyday life would be chaos if the definition of negligence completely rested on the opinion of what judge hears a case.

Thomas's level of respect for precedent is pretty close to chaos, and these new guys are further along that part of the spectrum.

When caselaw is stable it allows a remedy from the legislature. If the legislature decides some caselaw is bullshit, the legislature can look at these cases and then decide that they want to step in and change things by passing a statute specifically addressing a situation where the legislature doesn't like what has come up. Were every judge to just decide on their opinion this would become far more workable as the law would be a moving target.

So...
Abdul Alhazred wrote:All those western European countries legalized abortion by passing a law, with the exception of Ireland which did a constitutional amendment by public referendum.
The USA legalized the framework discussed in Roe when it passed the the bill of rights and the 14th amendment.

The personal rights specifically stated in the constitution aren't exhaustive. The people who wrote the thing and the text of the 9th amendment are clear on this.

The onus would be on those wanting to make abortion illegal to change the constitution. They are the ones trying to use the courts to force a change away from the original document. All Roe did was interpret what that starting point was.

The idea that before quickening it isn't the state's business and until viability it is a matter of medical regulation and thereafter very much the state's business is a reflection of the anglo/american legal tradition at the time of ratification.

Sure, a court could decide Roe was "plainly wrong" or whatever, but that seems to be at best a stretch.

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Re: Justice Kennedy Announces Retirement

Post by Pyrrho » Mon Jul 09, 2018 11:33 pm

@Popehat

Sources tell me that Trump will appoint all four front-runners stitched together as a jurisprudential Human Centipede but remains undecided who will be in front
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Re: Justice Kennedy Announces Retirement

Post by Doctor X » Tue Jul 10, 2018 1:06 am

Kavanaugh.

Let the games begin!

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"It was the criticisms of Doc X, actually, that let me see more clearly how far the hypocrisy had gone."--clarsct
"I'd leave it up to Doctor X who has been a benevolent tyrant so far."--Grammatron
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Shit. That's going to end up in your sig."--Pyrrho
"Try a twelve step program and accept Doctor X as your High Power."--asthmatic camel
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