Justice Ginsburg has died; McConnell vows to fill the vacancy

[raimius]

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.

[PolarFBear]

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.

[Aguila Blanca]

Originally Posted by PolarFBear

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.

Interesting, but not really a parallel to a jury alternate. A more apt parallel would be to have an alternate justice sitting in the wings in the event one of the justices has to recuse him/herself from a particular case.

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.

[zxcvbob]

Originally Posted by Aguila Blanca

Interesting, but not really a parallel to a jury alternate. A more apt parallel would be to have an alternate justice sitting in the wings in the event one of the justices has to recuse him/herself from a particular case.

I really like that idea! But I wonder how that would affect justices' decision when to recuse themselves?

[Aguila Blanca]

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

Originally Posted by Constitution

The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

[Doc Intrepid]

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.

[Aguila Blanca]

Originally Posted by Doc Intrepid

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.

I don't think having an opinion on the Constitution is an automatic reason for recusal. Who among us doesn't have opinions -- on a lot of things?

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.

[KyJim]

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

[zukiphile]

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.

[kell]

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.

[Metal god]

From there, it was a short jump. Now it only takes 51 votes to break a filibuster, and it only takes 51 votes to confirm. That means the party with the bare majority in the Senate gets to make the appointment.

I’ve been thinking about this . Can/should mitch change the rules back if they loose the senate and add to change the rules again you need 60 votes ??? That what he should do if he can IMHO . I think it was wrong when Reed did it and although understand why Mitch did it . We really should go back to the old rules and make it harder to change them .

[5whiskey]

Let them nuke the filibuster. It should have been abolished decades ago.

I disagree. The wheels of this republic is supposed to turn slow, and the filibuster is one more tool that gives a minority enough influence to block bad laws. Kind of like the electoral college (and the senate itself) ensures less populous states have a way to not be steam rolled by the whims of NY and CA. And that filibuster (which is likely dead now anyway) could be the only thing that stops sweeping gun bans should democrats win the presidency and control of the senate. But if that’s the only thing stopping it... it’s probably going to be scrapped.

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/

[Mainah]

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...

We're living in a political time that is defined by the voter's desire for institutional change. And the Dems have managed to nominate Clinton and then Biden. So I'm not convinced they know what political suicide looks like.

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.

[zukiphile]

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.

Originally Posted by 5Whiskey

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...

I'm not sure how much strategic foresight was involved in the Byrd rule and the Reid rule. Beyond the legitimate function of the Senate in slowing or thwarting legislative action, these traditions of minority protection only continue where the majority of senators understand that those traditions leave each of them individually more powerful than if each were simply one of 51 on any issue.

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.

[Grant 14]

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.

[raimius]

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.

[Tom Servo]

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

Nothing new. FDR tried those things in the 1930s, and both backfired spectacularly. The idea of abolishing the filibuster or expanding the court poll really badly, even when people dare voice the idea.

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.

[KyJim]

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:

[O]ur position is simply that the President has the duty to nominate a candidate to fill the current Supreme Court vacancy and the Senate has the duty to “advise and consent,” which means to hold hearings and to vote on the nominee.

Article II of the Constitution is explicit that the president “shall nominate . . . judges of the Supreme Court.” There is no exception to this provision for election years. Throughout American history, presidents have nominated individuals to fill vacancies during the last year of their terms.

Likewise, the Senate’s constitutional duty to “advise and consent” – the process that has come to include hearings, committee votes, and floor votes – has no exception for election years. In fact, over the course of American history, there have been 24 instances in which presidents in the last year of a term have nominated individuals for the Supreme Court and the Senate confirmed 21 of these nominees.

https://web.archive.org/web/20161002...%20Vacancy.pdf

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:

I hope that four Republican senators will join the Democrats to keep this seat on the Supreme Court open until after the winner of the November 3 election is inaugurated on January 20, 2021. But if the Republicans, in an exercise of astounding hypocrisy, approve a Trump nominee before then, Democrats must be prepared to act. They must consider expanding the size of the Supreme Court to overcome how the Republicans manipulated the process to block Garland and confirm Trump’s nominee to succeed Ginsburg.

https://prospect.org/justice/supreme...ative-nominee/

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.

[ballardw]

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>.

[zxcvbob]

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.

[Spats McGee]

Originally Posted by KyJim

.....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:....

KyJim wins the Understatement of the Day for calling Chemerinsky a "well-known constitutional scholar."

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.

[44 AMP]

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.

[TruthTellers]

Originally Posted by Aguila Blanca

IMHO, yes.

The Supreme Court is in a delicate balance at the moment. One of the staunch conservative justices, Clarence Thomas, isn't going to live forever. If he dies or retires during a Democratic administration, his replacement will almost certainly be anti-2A, because it's inconceivable that a Democratic President would nominate anyone who isn't vehemently anti-2A. Roberts is either squishy on the 2A, or quietly against it.

That means (again, IMHO) that getting a pro-2A or, at least, 2A-neutral strict constructionist/originalist justice in place now to replace Ginsberg is indeed crucial. If a pro-2A justice is confirmed, we might then see the SCOTUS actually take up a few more 2A cases before Thomas departs the Court. And, since Roberts claims to support stare decisis (which means he doesn't like to upset previous SCOTUS decisions), getting a few more pro-2A decisions on the record could prove to be pivotal for generations to come.

I wouldn't say Robert's is against it, he was key in the Heller and Macdonald rulings. Squishy... we really don't know. We do know the other eight justices have no idea how he's going to rule on a gun related case, which is why we haven't seen one granted cert (that wasn't later mooted) in a long time.

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.

[TruthTellers]

Originally Posted by Metal god

I’ve been thinking about this . Can/should mitch change the rules back if they loose the senate and add to change the rules again you need 60 votes ??? That what he should do if he can IMHO . I think it was wrong when Reed did it and although understand why Mitch did it . We really should go back to the old rules and make it harder to change them .

I wouldn't because if you see the last two Trump appointees, plus Alito and Thomas, none of them got 60 votes in the Senate and with how centralized the Democrat party has become, it's impossible for any Republican nominee to ever get a Democratic senator to vote for them in the future.

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.

[TruthTellers]

Originally Posted by 44 AMP

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.

It didn't stop Obama. The only thing that did was McConnell and the precedent of a President in his final year in office not having a justice confirmed since the 30s. McConnell, while very Machiavellian when it concerns his own financial well being and political clout, has shown the past 4 years that he is steadfast when SCOTUS is the focus.

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.