[billw55]

kenberg, on 2016-February-15, 08:31, said:

The Republicans have since made it clear that this rejection will take place. Qualifications are irrelevant, Obama nominates, the Senate rejects, end of story.

This about sums it up. The Rs will block any D appointment until they lose the senate.

[barmar]

Zelandakh, on 2016-February-16, 10:41, said:

Why not? The American constitution effectively allows appointments, laws and budgets to be blocked almost indefinitely. This is the democracy often held up to be a model for other countries, so surely such matters are to be championed and applauded? And if not, perhaps some of the more modern democracies are not so bad and modernising America to avoid paralysis through extremism might be less heretical than the extremists would have one believe.

There's certainly nothing precluding them blocking nominations for cause -- if POTUS keeps nominating unacceptable candidates, they can and should reject them, and this will repeat as long as it takes to find someone agreeable to both branches.

But if there's going to be a rule that says "No nominations will be accepted for the last X months of the administration", X should be a reasonably short period. If we're going to knowingly and deliberately leave a vacancy, we shouldn't do it for an extended period of time.

I'm not saying that there's any legitimacy to the Thurmond Rule, I'm just justifying why such a rule, if followed, should have a short threshold. Note that Thurmond specified 6 months, so by that criteria any nomination made by Obama before the summer should be given due consideration. But Republicans have indicated that they plan on blocking any nomination Obama tries to make.

Even individual Senators are inconsistent in how they apply the Thurmond Rule -- it only seems to matter when it favors their party. Wikipedia mentions:

Quote

Senator Leahy rejected the rule in the closing months of the Democratic Clinton administration, but later invoked the rule in the last months of the Republican Bush administration as noted above. In March 2008, Leahy wrote a letter to Bush stating “I urge you to work with senators from other states, as well, so that we might make progress before time runs out on your presidency and the Thurmond rule precludes additional confirmations.” In June 2012, however, Leahy said "it is troubling to hear Senate Republicans already talking about how they plan to resort to the Thurmond Rule to shut down all judicial confirmations for the rest of the year" and in February 2016 denied that the Thurmond Rule even existed.

That's flip-flopping at its finest.

[helene_t]

Zelandakh, on 2016-February-16, 10:41, said:

modernising America to avoid paralysis through extremism might be less heretical than the extremists would have one believe.

Is this really a constitutional problem? I think any country would be paralysed if appr half of both chambers of the parlament consisted of obstructionists.

In France they have had a similar situations in times when one wing had the presidency while another wing had parlament. Until now this hasn't caused too many problems. I could be wrong since I don't follow French politics regularly but my impression is that the contrast between usa and france is due to differences in the attitudes of the politicians.

[Zelandakh]

WellSpyder, on 2016-February-16, 10:53, said:

Really? Who by?

I suppose Voice of America and Reagan are two of the more commonly given examples but the idea has been implicit in many political speeches over the years.

helene_t, on 2016-February-16, 15:35, said:

Is this really a constitutional problem? I think any country would be paralysed if appr half of both chambers of the parlament consisted of obstructionists.

The difference in America is that a minority (40%) can hold up the rest. That cannot happen in the UK for example due to the guillotine. The opposition in most countries can also not cause the government to go into shutdown by denying them a budget. The last time anyone tried anything even close to that in the UK was Lloyd George and resulted in the rules being changed, essentially preventing any opposition from such bills. There are some countries where obstructionists can cause chaos, pre-war Germany being the classic example, but I would like to think we have learnt something since then and can draft constitutions to avoid such issues.

[Flem72]

"I guess Scalia did not think the 9th Amendment covered an individual's right not to be executed by the state in error."

"I do understand that Scalia had his reasons, but when reasoning leads to a conclusion that can't be right, one must reexamine the reasoning. I'm fairly sure that the framers did not intend for innocent people to be put to death."

First: Most folks think the 9th doesn't confer any substantive rights, it only tells us how to interpret the C's other grants of rights.

Second: You both realize that your usages of "error" and 'Innocent" are practically metaphysical terms? Whether "error" has occurred and whether a person is "innocent" are unknowable in any absolute, true-false sense (except to the person and his/her victims) ---we're dealing with human processes that are designed to try to do the best we can do in morally extremely troubling circumstances.

NB: Every student in every first year law class has to take Criminal Procedure. Every class spends the first week or so letting the students debate the death penalty from their personal, as yet un-legal point of view. My prof was a very symp/emp type (most of you would think that rare in a former federal prosecutor) who wanted to let everyone get it out, and respond in some way to keep the ball rolling. After a couple days, she actually said, as the only response she could muster, "well, that's a point of view." Sheesh. Wouldn't wish that on anyone.

[y66]

Obama 1, Obstructionists 0. Assist to the Des Moines Register.

[cherdano]

Flem72, on 2016-February-16, 11:19, said:

In all of this, folks should remember that jurists like Scalia don't think, e.g., that "a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction" is a bad idea, they only think it is not a constitutional idea except to the extent that legislatures may enact the will of the people.

LOL.

[blackshoe]

One quote I read of something Scalia said bothers me. I don't remember it exactly but he expressed the belief that people have rights because some government passed a law granting them. That ain't the way I learned it in school.

On another note, I ran across a "news report" that attempted to imply that there's something fishy about Scalia's death. This rests, it seems, on three things: the doctor (coroner?) who pronounced him dead did so over the phone ("She wasn't even there!"), there was and apparently will be no autopsy, and his body was moved to … San Antonio, I think, and embalmed within 24 hours. Personally, I think this "news report" is nonsense.

[PassedOut]

Flem72, on 2016-February-16, 17:22, said:

Whether "error" has occurred and whether a person is "innocent" are unknowable in any absolute, true-false sense (except to the person and his/her victims)

Often it is not, but sometimes it is.

[Flem72]

cherdano, on 2016-February-16, 18:47, said:

LOL.

So you, as a charitable, reasonable example of homo sapiens, believe what? that the man (and others like him) just want all people charged with a capitol crime to suffer the most extreme penalty once convicted on the evidence presented ath the first trial? or are you just ignorant when it comes to constitutional theory?

[Flem72]

PassedOut, on 2016-February-16, 20:12, said:

Often it is not, but sometimes it is.

Sincere question: how?when?

[Flem72]

y66, on 2016-February-16, 17:55, said:

Obama 1, Obstructionists 0. Assist to the Des Moines Register.

Nice link. Another political statement, which all arguments upon this matter will be.

"What makes the Republicans' effort all the more galling is that it flies in the face of their oft-professed, unwavering allegiance to the Constitution, a document that says the president "shall nominate," with the "advice and consent of the Senate," our Supreme Court justices. It doesn't say anything at all about these duties and obligations being suspended a year or so before each president is scheduled to leave office."

Correct. Nor does it say that the Senate has a duty to confirm; confirmation is generally viewed as a political concession to the president, which, in turn, does not mean that the Senate must confirm just any nominee. "Bork" is not a verb.

This is not a constitutional issue, it is a political one. As othrs have pointed out, representatives of both parties talk out of both sides of their respective pie holes depending upon who is doing the nominating and who will "advise and consent."

Even POTUS recognizes this in the first link you provided: “'The Constitution is pretty clear about what is supposed to happen now,” Mr. Obama said during a news conference after a meeting in California with leaders of Southeast Asia. He said the Constitution demanded that a president nominate someone for the court and the Senate either confirms or rejects" and that is what will happen, and both sides will try to make whatever political hay can be made. O's best political move is to nominate a Hispanic or a LBGT. HIspanics will swing more votes.

[Winstonm]

Flem72, on 2016-February-16, 11:19, said:

In all of this, folks should remember that jurists like Scalia don't think, e.g., that "a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction" is a bad idea, they only think it is not a constitutional idea except to the extent that legislatures may enact the will of the people.

If so, we must also accept Scalia's premise that money equals speech, else his free speech argument in Citizen's United fails. Judge Scalia, as is the wont of many, was consistent with his ideology and was not above mentally contorting the meaning of words to make reality appear to fit his faith.

[PassedOut]

Flem72, on 2016-February-16, 21:09, said:

Sincere question: how?when?

Actually I'm surprised that you can't think of a situation in which a person can be known to be innocent of a given crime. For a simple example, if a crime is committed in one place and a person cannot have been at that place at that time, then the person is innocent of the crime committed there.

And, beyond absolute true or false, it's surely an injustice to execute a person who is unlikely to have been the perpetrator.

[hrothgar]

Flem72, on 2016-February-16, 21:16, said:

Nice link. Another political statement, which all arguments upon this matter will be.

"What makes the Republicans' effort all the more galling is that it flies in the face of their oft-professed, unwavering allegiance to the Constitution, a document that says the president "shall nominate," with the "advice and consent of the Senate," our Supreme Court justices. It doesn't say anything at all about these duties and obligations being suspended a year or so before each president is scheduled to leave office."

Correct. Nor does it say that the Senate has a duty to confirm; confirmation is generally viewed as a political concession to the president, which, in turn, does not mean that the Senate must confirm just any nominee. "Bork" is not a verb.

This is not a constitutional issue, it is a political one. As othrs have pointed out, representatives of both parties talk out of both sides of their respective pie holes depending upon who is doing the nominating and who will "advise and consent."

What you are conveniently ignoring is that Mitch McConnell and multiple Republican Presidential candidates have stated that the the Senate must refuse to act on any candidate that Obama advances, specifically citing that there must be a presidential election before anyone is nominated.

FWIW, I agree that this is a political process. Hopefully you can agree that the Republicans are being remarkably stupid in how they are playing their hand.

[Flem72]

PassedOut, on 2016-February-16, 23:18, said:

Actually I'm surprised that you can't think of a situation in which a person can be known to be innocent of a given crime. For a simple example, if a crime is committed in one place and a person cannot have been at that place at that time, then the person is innocent of the crime committed there.

And, beyond absolute true or false, it's surely an injustice to execute a person who is unlikely to have been the perpetrator.

So you don't think that that rather obvious fact -- heard of an alibi defense? -- wouldn't come out at the first trial?

[Flem72]

hrothgar, on 2016-February-17, 03:40, said:

What you are conveniently ignoring is that Mitch McConnell and multiple Republican Presidential candidates have stated that the the Senate must refuse to act on any candidate that Obama advances, specifically citing that there must be a presidential election before anyone is nominated.

FWIW, I agree that this is a political process. Hopefully you can agree that the Republicans are being remarkably stupid in how they are playing their hand.

That they announce that position is, from one point of view, refreshing: they could just say "OK, give us a nominee, and we'll act" without any intention of doing anything.

I don't yet know whether it is stupid.

It would be refreshing to see O nominate a truly consensus jurist; hope he doesn't nominate a non-jurist political figure who just happens to be a lawyer.

[kenberg]

hrothgar, on 2016-February-17, 03:40, said:

What you are conveniently ignoring is that Mitch McConnell and multiple Republican Presidential candidates have stated that the the Senate must refuse to act on any candidate that Obama advances, specifically citing that there must be a presidential election before anyone is nominated.

FWIW, I agree that this is a political process. Hopefully you can agree that the Republicans are being remarkably stupid in how they are playing their hand.

This last is my view.

I don't recall ever hearing of the Thurmond Rule before, but at least I remember Strom Thurmond. Many voters never heard of him and have no interest in learning what rule he may have promulgated for his own purposes in the 1960s. (proof reading, I found I had first typed 1860s, a typo with some possible psychology).

I looked up Troy Davis on the Wikipedia and, whatever the various arguments are, it is by no means clear that an innocent man was executed. I think most people understand that an innocent person can be judged guilty in a court of law. If I really wanted to come to a solid opinion about whether that happened in the Troy Davis case, I expect it would take a lot of time and effort. The case did not appear to be handled irresponsibly. I didn't look at the other case that Winston mentioned.

The Republicans have been obstructive. This is not an accusation, it is announced intent and a proud boast of their own. But we all have our lives to lead and our bridge hands to play, and we forget. If the Republicans wish to bring this approach front and center during the election year, I think they should be encouraged to do so. It will get great cheers from a segment of the population. I think it will generate no enthusiasm at all from the less ideologically rabid. It is well past the time for us to see which group actually is in the majority.

[hrothgar]

Flem72, on 2016-February-17, 07:56, said:

It would be refreshing to see O nominate a truly consensus jurist; hope he doesn't nominate a non-jurist political figure who just happens to be a lawyer.

The Republicans want Scalia 2.
Democrats with find this unacceptable.

I don't see much hope of a consensus candidate.

In all honesty, if I were trying to craft a way out, I'd try something Sorkinesque.

Step 1: Lean on Ginsburg to resign

Step2: Try to craft an agreement around a pair of candidates

Say: Richard Posner as the Scalia replacement plus Sri Srinivasan for Ginsburg

[PassedOut]

Flem72, on 2016-February-16, 17:22, said:

Whether "error" has occurred and whether a person is "innocent" is unknowable in any absolute, true-false sense ...

Often it is not, but sometimes it is.

Flem72, on 2016-February-16, 21:09, said:

Sincere question: how?when?

For a simple example, if a crime is committed in one place and a person cannot have been at that place at that time, then the person is innocent of the crime committed there.

Flem72, on 2016-February-17, 07:52, said:

So you don't think that that rather obvious fact ... wouldn't come out at the first trial?

Usually, but once in a while evidence is missing, unavailable, or suppressed. That's a good reason for having a system to correct injustices.

I have to say, though, that it's interesting to see the way people who rationalize positions like Scalia's actually think.