Nomination of Merrick Garland for SCOTUS

[kilimanjaro]

Every President has a short list of SCOTUS nominees, for just such an eventually as the sudden death of Scalia or any other Justice. Much of the speculation as to whom might be chosen is empty rhetoric, the choice has already been made months before.

[Glenn E. Meyer]

http://www.theatlantic.com/politics/...iberal/477018/

Now folks, we don't do liberal vs. conservative so the title of the article is unfortunate. We also don't want to discuss the other issues in the piece.

The point for us is that the author states:

The Court will return to the view that the Second Amendment protects only a right to have guns for militia service.

Second Amendment. Until 2008, not once did the Supreme Court find a law to violate the Second Amendment. Then, in District of Columbia v. Heller, the Court, by a 5-4 margin, declared unconstitutional a 35-year-old District of Columbia ordinance that prohibited private ownership or possession of handguns. Scalia wrote the opinion for the Court. A Supreme Court bench with five Democratic appointees will not extend this protection for gun rights and likely would overrule it, returning to the view that the Second Amendment protects only a right to have guns for the purpose of militia service.

It make one wonder if the cases were worth bringing with such a narrow majority. Before Heller and McD, it was feared that a SCOTUS decision might easily turn against the RKBA for a militia rationale. Even with the decisions - Scalia's reasonable restrictions are being used quite well on the state levels and the current court (before he died and now) seems to have no motivation to extend gun rights (stun guns - yeah, but that isn't overturning a state AWB, mag ban).

Would it have been better to let sleeping dogs like, so to speak? The chance that a 5/4 negates the current position would not be good.

Folks say that the court doesn't overturn precedent - well, it has happened. Other social causes are clambering to get one of theirs on the Court to overturn decisions they don't like.

Interesting times but please avoid the usual liberal/conservative mantras or specific candidates and stick to the SCOTUS risks.

[Aguila Blanca]

Originally Posted by Glenn E. Meyer

Even with the decisions - Scalia's reasonable restrictions are being used quite well on the state levels and the current court (before he died and now) seems to have no motivation to extend gun rights (stun guns - yeah, but that isn't overturning a state AWB, mag ban).

But Scalia's reasonable restrictions don't exist. The Heller decision is being twisted and contorted by lower courts who seem to view it as their life mission to ignore Heller without getting slapped down too hard for doing so. What Justice Scalia actually wrote in Heller was not "reasonable restrictions," it was something to the effect of "presumptively lawful regulations." The key word is "presumptively."

Lower courts jump on that phrase as their "proof" that all existing anti-gun laws are constitutional. That's not what it says. Basically, what he said was, in effect, "We're not talking about those laws in this case so, for the moment, we'll presume that they're legal until they each have their own day in court." And the problem, as we are seeing, is that all those "presumptively" lawful restrictions aren't getting their day in court, because the courts (SUPRISE!) are "presuming" that they are lawful and ignoring all arguments to the contrary.

[5whiskey]

Good debate... Hate I missed most of it. I will say that I do believe the senate should have a confirmation hearing. The day McConnell said they were gonna waif and let the next president pick, I thought that was a mistake. Republicans absolutely suck at playing politics (not trying to be partisan or go down that road). They have constitutional power to confirm or deny a SCOTUS appointee... They should use it.

I do think there is wisdom in delaying confirmation as long as possible. Try to aim for the June or July time frame. Hillary could be indicted by that point, for all we know. I don't know who would eventually be president if that happened. I have to say I would fear most of the current candidates should they win... Including their possible SCOTUS picks. Things could look up a few months from now though. Its likely that either Hillary (unless she has legal issues) or Trump will be president. In either case, we would probably be happier with Garland than their picks.

[zukiphile]

Republicans absolutely suck at playing politics (not trying to be partisan or go down that road). They have constitutional power to confirm or deny a SCOTUS appointee... They should use it.

The senate's consent is necessary to confirmation. McConnell is using the power by withholding consent. That is a use of the power described in the COTUS.

One sees it written that Garland is a moderate, but what does that mean? If it means that he sides with the state in viewing the rights of criminal defendants narrowly, that doesn't really serve to moderate or counterbalance his liberal streak. Instead it shows a mind less concerned with preserving the limited government described in the COTUS; that's the very opposite of Scalia's view, not "moderate".

We also see praise of Garland's mind and the well built reasoning of his decisions. This describes a more formidable adversary, not a moderate problem. A liberal (in the judicial context, one who disregards constitutional safeguards in favor of his own vision of the good of state power) who writes transparent nonsense should be preferable to one who dresses his disregard in constitutional ornaments.

Transparent nonsense may have a shorter life after a justice leaves than better reasoned opinions.

[zincwarrior]

Again, the Republicans may well rue the day they didn't go for what they have.

[kilimanjaro]

The Supreme Court is a political wing of the White House, has been for decades. The Senate should hold a hearing, vote Garland down, and tell the White House to send a nominee who believes in the rights and liberties of the people. Throw it right back in their faces. Come election time, the debate would be about liberty, not about which party isn't performing it's advise and consent duty.

[zukiphile]

Originally Posted by k

The Supreme Court is a political wing of the White House, has been for decades.

If that were true, we would have been in better shape than we are. Over the last half century we've had more years with democrat majorities in the Senate than we've had with democrat presidents, yet quite a few justices who shift after nomination.

Originally Posted by k

The Senate should hold a hearing, vote Garland down, and tell the White House to send a nominee who believes in the rights and liberties of the people.

Giving Garland the exposure of hearings doesn't work in the Senate's favor. Post Bork, a nominee will be trained to conceal his doctrine, so hearings will serve as a television and radio forum from which Garland supporters will chide fellow senators to have an open mind and confirm.

Throw it right back in their faces. Come election time, the debate would be about liberty, not about which party isn't performing it's advise and consent duty.

I can give you a Llyod's of London guaranty that the parties will frame the debate as they see fit without regard to whether Garland had a show hearing.

The Senate has given its advice and has no duty to consent.

[ATN082268]

Originally Posted by zukiphile

Giving Garland the exposure of hearings doesn't work in the Senate's favor. Post Bork, a nominee will be trained to conceal his doctrine, so hearings will serve as a television and radio forum from which Garland supporters will chide fellow senators to have an open mind and confirm.

Some of it depends upon how the hearings are conducted and the past record of Judge Garland. Judge Garland can say whatever he wants to at current hearings but his past judicial rulings are etched in stone. If the Senate doesn't concentrate on his past rulings and/or his past rulings are a bit murky regarding his stance on certain issues, then that certainly works in his favor. Supporters for Judge Garland will either complain about him not getting a hearing or not being confirmed. Take your pick...