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September 20, 2020, 03:05 AM | #26 |
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Yes, right now, we suffer under a 4-1-4 court on the 2nd Amendment, which is why we keep getting cert denials and NYSRPA v NYC got shoved aside despite NYC's blatant maneuvering to dodge judgment. Neither side really knows who will win (which is really sad that "sides" and "winning" is more accurate than getting sound legal judgments). With a pro-2A justice replacing RBG, we would know much better where we stand, and would likely be able to address 2A issues, and build actual SCOTUS case law and doctrine.
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September 20, 2020, 08:53 AM | #27 |
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Novel idea. Why not have a "next SCOTUS appointee" be nominated and approved in advance. The same idea as an alternate jury member. Since appointment to SCOTUS is "supposed" to be non-political there would be no waiting for a full bench.
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September 20, 2020, 09:31 AM | #28 | |
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I don't see how approving a future/alternate justice would be any less political than it is now. In fact, it would probably be worse, since it would raise the possibility of a new justice taking office during the term of an administration that might have opposed his/her confirmation.
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September 20, 2020, 09:36 AM | #29 |
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I really like that idea! But I wonder how that would affect justices' decision when to recuse themselves?
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September 20, 2020, 10:21 AM | #30 | |
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Recusal is for when a justice (or a judge in a lower level court) has a conflict of interest. Today, when the Internet knows everything about everyone, I don't think a justice would fail to recuse him/herself in the event of a conflict of interest, because failing to do so could potentially endanger the entire hearing and decision when -- not if -- the conflict later became public.
Interestingly, the Constitution does not spell out in other than the most general terms the procedure for appointing Supreme Court justices. https://www.thoughtco.com/understand...rocess-3368219 Quote:
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September 20, 2020, 10:50 AM | #31 |
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There is at least some evidence to support this.
RBG gave a number of interviews some years back, one was expressed in an op-ed piece on the editorial page, in which she clearly laid bare her opposition to the 2nd Amendment. https://www.nraila.org/articles/2016...verturn-heller Her personal views on the matter did not cause her to recuse herself when the issue was discussed before the court.
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September 20, 2020, 12:05 PM | #32 | |
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A conflict of interest is when a case involves a relative, when a judge may have a personal or financial interest in the outcome of a case, or something like that. For example: A number of years ago I was engaged as an expert witness for a swimming pool service contractor who was suing a building contractor who had performed alterations on his house. When we got to court on the appointed day, the case was called and the attorneys for the two sides introduced themselves and their respective clients. The judge (a woman, not that it matters) looked at my client, looked at the case record in front of her, and asked my client (who was the plaintiff), "Are you the owner of XYZ Pool Maintenance Company?" My client acknowledged that he was, whereupon the judge apologized but said she felt she had to recuse herself from the case because she had used that company to service her swimming pool. Therefore, she has a business relationship with the plaintiff in the case, and she felt that was a potential conflict of interest.
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September 20, 2020, 12:14 PM | #33 |
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Personal views should rarely dictate recusal. Most of us have opinions on the big issues in the world. The question is whether a judge can set aside his or her opinions and follow the Constitution and the law.
Furthermore, a strong opinion does not usually equate to a conflict of interest. Those most often come up when a judge has something personal at stake, such as owning stock in a company that comes before the court |
September 20, 2020, 05:38 PM | #34 |
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The problem with the concept of recusal at the level of the Sup Ct is that there is no one to enforce a remedy. Disqualification is voluntary.
There is code requiring disqualification from hearing any case "in which his impartiality might reasonably be questioned". https://www.law.cornell.edu/uscode/text/28/455 Scalia recused himself from a case in which the words "under God" were at issue because he had discussed his view in a public speech. On the other hand Kagan was BHO's solicitor general and had expressed support for the ACA before sitting on the Court, and she only recused herself from hearing some ACA involved matters.
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September 20, 2020, 07:12 PM | #35 |
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No one is gonna take your guns. Don't let radical factions on either side influence your thinking. Think for yourself, you're not stupid, we all can do it. Use your own common sense and judgement.
Last edited by 44 AMP; September 20, 2020 at 09:03 PM. Reason: needs to be restated |
September 20, 2020, 09:51 PM | #36 | |
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September 20, 2020, 10:56 PM | #37 | |
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And this hot of the press. The below article discusses the potential (actually more implies that it WILL happen) if a new justice is confirmed now. Written by a never trump Republican (though at time I can relate with the sentiment), it states that dems are sure to pack SCOTUS with 15 justices and generally commit other shenanigans if and when the they win the election (“If” being in tiny print, and “when” is much more implied). I actually think that’s a bit doom and gloom. What goes around comes around, sure, but I don’t see a move that extreme because surely Democrats would recognize the political suicide they would be committing... A bit into politics but I’m not trying to really play partisan or denigrate one party or another, just talking strategy. https://www.usatoday.com/story/opini...mn/5842050002/
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September 21, 2020, 08:21 AM | #38 | |
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I'm not a fan of Trump. But he absolutely has the right to move forward with RBG's replacement. And the Democrats inability to navigate the current system isn't a justification for packing the court. |
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September 21, 2020, 08:33 AM | #39 | |
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Whiskey, I concur about the point of the Senate. Maybe it's extraordinary that the body of tradition that protects minorities in the senate survived conversion of the Senate to an elected body at all.
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That's a point with enough subtlety and complexity that it won't be persuasive to movements that see these institutions of representative government as inherently corrupt or racist.
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September 21, 2020, 09:06 AM | #40 |
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Speaking of "Conflict of interest" and recusing from issues, I wish we could make it law that all politicians had to recuse from any issue that they had a financial connection with. Then we might have a "Government of the People" rather than a "Govt For The Politicians". Getting the secret money (super packs) out of politics would be a good start. Voter suppression should be a felony. I am just dreaming and I wont hold my breath while waiting. Grant.
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September 21, 2020, 01:53 PM | #41 |
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Kell, this is probably better left to another thread, but if you don't think Democrats in high places have plans for confiscation, you have not reviewed their public statements and policy proposals. Biden has not publicly stated he wants mandatory "buybacks," but the guy he promised to put in charge of gun policy (O'Rourke) very publicly did.
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September 21, 2020, 01:56 PM | #42 | |
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Furthermore, both concepts seem like a good idea if my guys are in power. What happens when the balance shifts in a few years, and the other guy's party decides to expand the court to 17 Justices? What happens when I realize he only needs a bare majority to ramrod legislation through? There are simply too many moderates to let this happen, and the fact such outrageous threats are being made at all is a signal of desperation. It's like threatening to nuke the site from orbit because a fire hydrant is leaking.
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September 21, 2020, 01:59 PM | #43 | ||
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The filibuster rule is just that, a rule. It is not a constitutional provision. It is not even a statute. I don't have a problem with getting rid of it.
I think this is an outstanding argument for filling the court vacancy now: Quote:
The interesting part of the argument was when it was made --- February 24, 2016, President Obama's last year in office. And, while I haven't looked up every person who signed onto it, one who did is well-known constitutional scholar, Prof. Erwin Chemerinsky. Now, however, he has changed his mind: Quote:
So, don't think the "hypocrisy" is all on one side. It is not. If we take Prof. Chermerinsky's 2016 letter at face value, President Trump has a constitutional duty to fill the seat and the Senate has a constitutional duty to consider it---on the merits because the filibuster rule is not of constitutional dimension. |
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September 21, 2020, 03:00 PM | #44 |
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The popular media is completely ignoring most of the "precedents" involved.
John Marshal nominated Jan 20, 1801 (yes over 200 years ago), confirmed Jan 27, 1801. AFTER the election of 1800 was held, nominated by John Adams but before the new president, Thomas Jefferson, inaugurated. Plus he was the second nominee after the 1800 election. So the so-called "Gardner Precedent" has about as much truth as <nothing I want to go on record as actually writing>.
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September 21, 2020, 04:21 PM | #45 |
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The president has a duty to make a nomination, although there doesn't seem to be a time limit. What the Senate does with that nomination is not the president's problem.
Yes, McConnell is a hypocrite. Big deal. I *think* I'd say the same thing if Schumer pulled the same shenanigans, but maybe I'm a hypocrite too.
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September 21, 2020, 04:25 PM | #46 | |
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I kept one of his hornbooks on my shelf for the first 15 years of practice. I made the mistake of loaning it out, and that's the only reason I don't have it any more.
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September 21, 2020, 04:29 PM | #47 |
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When it is not an election year, and when we don't have COVID screwing up the normal order of things, appointing a new Supreme Court Justice has been, political theater and high drama, particularly in recent decades.
The entire idea that a Justice should be someone with the personal integrity to rule on the law, and not involve their own personal views on ANY matter seems to have been lost in the hubub about "where they stand on issues" and "Litmus tests" or them not, perhaps, being pure saints in their personal lives before becoming a nominee. No one with any desire to be some degree of "activist judge" should ever be considered for such a position. However, we get the choices we get, and lately it seems pure partisan politics counts for more than the rule of law and the duty to the American people. The sitting President has the duty and responsibility to nominate a replacement when there is a vacancy. NO ONE ELSE DOES. All cries for the President to wait until after the elections are the ravings of whiners who are not currently in power to make the needed decision, but HOPE to be in that position to nominate THEIR choice AFTER they win the election. The Pres COULD do that, but is under no obligation, legal or moral to do so. Personally I don't think he should wait. DO BUSINESS as usual without pandering to the political opposition, but, that's just my opinion, worth what you paid for it.
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September 22, 2020, 02:20 AM | #48 | |
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It was clear that he would have ruled in favor of NY Rifle and Pistol had the city not removed that law in record time once SCOTUS took the case. With a third Trump nominee tho, SCOTUS would clearly have an overwhelming majority to make extreme pro 2A rulings, whether Roberts is part of the court or not. I say that because for the past 10 years he has been obsessed with his legacy and with five conservatives, three liberals, and himself, the court is appearing to take a hard turn to the right for the next 10+ years. I get the feeling that Roberts may very well resign in the next few years regardless of who is President in an effort to protect his legacy. That would be even more likely if Justice Breyer, who at 82 is now the oldest member of the court, were to retire or die. So, the ticking clock applies to more than Thomas and Alito.
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September 22, 2020, 02:34 AM | #49 | |
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OTOH, Republicans are more than willing to vote for justices nominated by Democratic presidents, including the vehement anti-gun Ginsberg. It would be a zero sum game for those center-right and right because it would mean only people like Roberts and Kennedy would get approved.
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September 22, 2020, 02:44 AM | #50 | |
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He was wise enough to understand how feckless Republicans are and had Garland been given hearings in 2016, I think he thought there would have been a handful of Republicans (McCain, Collins, Graham, Coats, Murkowski) who would have voted to appoint him, enough to get him confirmed. The President should always, ALWAYS go ahead with nominating a SCOTUS justice. It's up to the Senate to do the rest and when the Senate is controlled by the opposite party (which it typically is for near all Presidents in the last half or their second term) then the President doesn't get his nominee confirmed. Oh well.
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