Scalia Dead.

[Bishop2b5]

My apologies, man. I skimmed your post and wrote a hasty response. I reread your post and your post was well articulated. My bad.

No problem, Wooly. I've done the same thing myself many times.

 

[GoIrish41]

Brian Sandoval Takes Himself Out Of The Running For Supreme Court Spot

Probably a good move on his part. Whomever the nominee is is going to be the epicenter of a political earthquake.

 

[DomeX2 eNVy]

Brian Sandoval Takes Himself Out Of The Running For Supreme Court Spot

Probably a good move on his part. Whomever the nominee is is going to be the epicenter of a political earthquake.

I'm sorry, but this is fucked up. He is definitely interested; and he would be good at it - imo. Full disclosure, I'm not only a citizen of his state, but we went to the same high school and used to live about 20 houses from him before he became governor.

He was already a federal judge who was unanimously approved by the Senate; and he aspires to either be POTUS or a member of SCOTUS. He was clearly pressured by the party to stand down.

I hate that the "Party" is bigger then the "Country". We just all lost. It would be nice to have another Kennedy style judge that isn't afraid to rule as they think best rather than ideologically.

 

[Emcee77]

I'm sorry, but this is fucked up. He is definitely interested; and he would be good at it - imo. Full disclosure, I'm not only a citizen of his state, but we went to the same high school and used to live about 20 houses from him before he became governor.

He was already a federal judge who was unanimously approved by the Senate; and he aspires to either be POTUS or a member of SCOTUS. He was clearly pressured by the party to stand down.

I hate that the "Party" is bigger then the "Country". We just all lost. It would be nice to have another Kennedy style judge that isn't afraid to rule as they think best rather than ideologically.

agreed, it's really sad. I thought he was an exciting pick. In decades past, it was common for S. Ct. nominees to be non-judges or to have some political background. Sandra Day O'Connor, for example, was a state legislator at one point. Earl Warren was a governor of California. Now we had the opportunity to put a guy on the Supreme Court who had experience both as a governor and a federal judge, a great opportunity, and now it's gone. Smh.

 

[Bogtrotter07]

This thread still isn't dead?

Maybe the mods could clean it up and move it to a political thread somewhere.

Supreme Court Horse race 2016

It is interesting to note that after about a page of posts relating to Scalia; the rest of the thread, some seven pages, is all about partisan politics. The same politics that have done our nation so much good in the last twenty years.

PS In all fairness, we are not going to get a supreme court justice in the next couple of years that isn't a HUGE dickhead. Because that dickhead nominee would have to be a bigger dickhead than all the obstructionist dickheads that control the process. (Both parties, please note.) Which is the definition of dickheadedness.

The irony is that the Republican dickheads think that blocking the nominee now is going to make a bit of difference. But the irony is all the non-dickheaded independents are going to have had enough, and I don't see them voting for many Republican dickheads. I am pretty confident, because I don't see many of them swaying towards Republican candidates, because that would be such a dickhead move. AND the Republicans don't have a monopoly on dickheads. Reid, Clinton, and maybe Obama, as well as Biden, and a plethora of politicians of the Democratic party are dickheads as well.

Frankly, for my daughter's sake, I would like to see a woman president. However, Hillary impresses me as a shrewd, cold, manipulative, dickhead. Which is a scary and uncommon combination. Most dickheads lack the sophistication and couth.

With everyone that asks me who I am going to support, I have told them the same thing, in protest against the campaign starting so early, just so dickheads could beat the shit out of each other, I am protesting, and will not even look at the candidates until June. The only caveat is that I tell them I know I won't vote for Trump; in a political landscape of dickheads, he is the one and only original cu***! But I have a feeling my decision will be pretty easy : find the smegma trail, and go the other way, and avoid the vagina dentate!

 

[kmoose]

I'm sorry, but this is fucked up. He is definitely interested; and he would be good at it - imo. Full disclosure, I'm not only a citizen of his state, but we went to the same high school and used to live about 20 houses from him before he became governor.

He was already a federal judge who was unanimously approved by the Senate; and he aspires to either be POTUS or a member of SCOTUS. He was clearly pressured by the party to stand down.

I hate that the "Party" is bigger then the "Country". We just all lost. It would be nice to have another Kennedy style judge that isn't afraid to rule as they think best rather than ideologically.

Maybe the Party is planning to make him THEIR appointee?

 

[woolybug25]

Maybe the Party is planning to make him THEIR appointee?

That would make zero sense...

 

[Whiskeyjack]

Here's an interesting article wherein a Dominican canon lawyer contrasts the legal philosophies of Scalia and Aquinas:

The sudden death of Justice Antonin Scalia on Feb. 13 inspired an outpouring of eulogies and appreciations for a man recognized, even by his critics, for his unmistakable integrity, keen intelligence and powerful personal charm. Jesuit-trained and the father of a priest, he was a favorite of many Catholics and conservatives for his strongly held views and clear decisions.

It is important, however, in the wave of sentiment and consternation surrounding the loss of this significant Catholic figure—a civil servant who stood in the center of so much controversy in contemporary American public life, and who stood so often and so vocally on the right but losing side—not to confuse esteem for the man with a celebration of his legal thinking.

What exactly was Justice Scalia’s philosophy of jurisprudence? On Jan. 7, little more than one month before his death, the justice gave a public lecture in Washington, D.C., to celebrate the 800th jubilee of the Dominican Order. He took the occasion—the feast of St. Raymond of Penyafort, the patron saint of canon lawyers—to contrast his theory of legal interpretation with that of the great Dominican theologian, St. Thomas Aquinas.

Justice Scalia began by noting that in the Summa Theologica (II-II, q. 60 a. 5), Aquinas argues that a judge ought to render justice according to what stands in the written law. Here the justice beamed in manifest agreement. In answering objections to this position, however, Aquinas adds—and here the justice immediately became uncomfortable—that a judge can for the sake of “the equity which the lawgiver had in view” disregard a poorly written law to uphold some natural right. For Justice Scalia, this concession of the Angelic Doctor was wittily bemoaned as a horror “worthy of the Warren Court!” What precisely is at issue in this disagreement?

As It Is Written

Justice Scalia was known above all for his principled, articulate resistance to every whiff of judicial activism. In the former law professor’s sharply “textualist” or “originalist” philosophy of judicial interpretation, the law should be respected exactly as it stands written. And what is not written is not legislated, to quote the ancient adage.

The textualist perspective must first of all be distinguished from so-called strict constructionism, which Justice Scalia called “a degraded form of textualism that brings the whole philosophy into disrepute.” The essential difference for the textualist is that “common sense” can intervene in interpreting the text of the law in question. The strict constructionist, by contrast, is cast as a simple-minded legal literalist who, for instance, would understand “the use of a gun” in a crime to mean not merely its employment with violent intent but even its bartered use in exchange for drugs—obviously not the intent of the words of the law.

Textualism might be compared with the hermeneutic of Reformation theologians, who appealed to the “plain sense” of Scripture. This confidence in the perspicuous insight of common sense may indeed allow for more sophistication than various fundamentalist follies, but it is hardly an adequate approach. And it is not only Catholic exegetes who appreciate this. It is a mark of our age, chastened perhaps by the experience of thousands of denominations disagreeing on the “plain sense,” that we appreciate with new clarity the need for controls (like tradition) to guide scriptural exegesis and hermeneutics.

As one professionally occupied with the job of interpreting texts (albeit sacred ones), I do not hesitate, despite my lack of schooling in law, to register an instinctive discomfort with the idea of textualism as a legal theory. The impulse behind it, of course, is another thing.

At base, Justice Scalia’s textualism represents his reaction to what he saw as the deplorable state of legal interpretation in U.S. courts, where, as he wrote, there is “no intelligible, generally accepted and consistently applied, theory of statutory interpretation.” It was his aim to supply this missing theory. However attentive his theory is to a reasonable, contextual construal of the written law, his position, nevertheless, is rather clearly an expression of legal positivism.

Law, in this positivist view, gains its force from contingent social factors, not from its moral merits or participation in right reason. The role of the judge is, accordingly, not to improve bad laws but to take the text as the settled law, for good or ill, whether it be liberal or conservative, whether this proceeds from good counsel and cooperation or through crooked compromise. Textualism is an overemphasis upon the text, plain and simple: an overreaction to the real problem of judges insufficiently bound to what stands written.

Higher Law

Returning to the Summa, Justice Scalia allowed that Aquinas knew infinitely more about theology. But he himself, the justice insisted, knew a great deal more about judges and judging. And he was certainly correct to desire some safeguard against manifest distortions like Roe v. Wade, in which justices discover gross injustices as “rights” where no compelling textual foundation can be provided. A crack in the door, like the case of Church of the Holy Trinity v. United States—which allowed that the “spirit” of the law might prevail over the “letter”—is open to abuses too evident to bear enumerating.

And yet, two things make the medieval theologian a much deeper juridical thinker than the judge.

First, Justice Scalia’s legal theory has no ultimate framework for holding the government accountable before God. He was unable, for instance, when questioned after the lecture, to defend an administration of justice such as the Nuremberg Trials. The trials, of course, famously appealed to the natural law to convict men who had simply enforced the promulgated, positive law of Nazi Germany. When pressed on the issue, the justice steadfastly disavowed any such appeal to a higher unwritten law. To justify the war trials, he instead simply maintained that, as he saw it, winners in a war have a right to punish the losers. “Might makes right” is the classic formula for this barbaric doctrine.

In charity, one may assume the justice did not wish to accept all that this implies, but it is worth commenting on the consequences all the same. In a word, praise God the United States won the war; for one shudders to imagine the work of the “courts” had the Nazis been victorious. The Soviets, too, were winners in the Second World War—and they simply drove the German “losers” to the gulags. Is that also the proper work of justice? Were these trials as humane and upright as Nuremberg with its appeals to a higher law?

Textualism in Justice Scalia’s inflection has no analogical understanding of law. God’s own unwritten commands are, thus, allowed no entry into public, legal discourse. (Justice Clarence Thomas, it might be noted, would differ here from Justice Scalia. Though less a theorist than his colleague on the bench, Justice Thomas broadly acknowledges the force of the natural law. He further points out that the framers wrote the Constitution under the same conviction—a different spin on “originalism.”)

Corrective Justice

A second deficiency in the viewpoint of Justice Scalia, less severe in its ultimate import but more revealing of challenges proper to the American system of law, is his anachronistic reading of Aquinas. Specifically, the saint was working with a very different, much more biblical, conception of the “judge.” In particular, the separation of powers, which Americans take as axiomatic, a system which siphons off judges entirely from the work of making laws—or at least attempts to—is in fact a queer novelty in the history of jurisprudence.

Functionally, of course, the familiar system of checks and balances ensures protection against particular abuses. But the three branches of government also scatter the integral elements of law in some fundamentally problematic ways. It is very important that Americans be honest and enlightened on this point. For all its certain advantages, the administration of justice is, on account of separated powers, an unusually disjointed operation in our society, susceptible to its own abuses and tragic breakdowns.

For Aquinas, the judge was also the legislator—a plenipotentiary, like a king—not simply the hand-bound interpreter of some legislature’s promulgated text. The modern issue of “judicial activism” is, accordingly, tied up with a very different set of historical and legal assumptions, specific to the American context. There is something to be learned, however, from the older viewpoint. In the scriptural worldview, shared by the Christian Middle Ages, judgment was an act that could compensate when the written statutes fell short of the perfection intended. Indeed, judgment was exactly this: the place where injustice was corrected.

The question we must put to our own ministers of justice (not only judges) is this: Where is this mechanism of judgment in our system? Who will undo the injustice, which at times we inflict by law upon ourselves? Increasingly we are becoming a nation lacking judgment. Who will decide aright for this land’s afflicted?

Judgment Day

Our constitution is a wondrous prodigy of statecraft. But can judges really be divorced from all lawmaking behavior? Should they be? We object to the alternative, perhaps, because in a blush of democratic idealism we wish the law to be promulgated only “by the people”—not by “unelected officials,” as we often derisively name our judges. But, in the machinery of this republic, is the court not also representative in its own special way? And is it, in fact, so clear that the court has really served this country more poorly than the Congress or many we have duly elected as our commanders in chief?

In our common law system, precedent itself is a form of legislation. This means that judges are indeed effectively lawmakers. It is true, the court is not the right instrument for deciding every issue; but it will not serve the common good if Catholics in this country concerned about crucial issues like abortion and same-sex marriage rally around the illusion that judges have no share in legislating.

If the significance of Nuremberg failed to register adequately with Justice Scalia, as a believing Catholic and honest steward of the common good, he understood well the urgent need for an escape clause in the event—ever more real in our nation—that civil servants must face some proximate cooperation with evil. Recusal was Mr. Scalia’s answer for judges. Judges might thus save their skin and their conscience—but not the country. Aquinas’s appeal to a higher law grounded in divine authority is obviously another, stronger option, for it provides a corrective to the disordered situation, not simply a way out for the judge.

For Justice Scalia, however, “natural law” was just rhetorical cover for the preferred moral agenda of any given judge. Such skepticism is profoundly disappointing. If in times and places, such as our own, the natural law can erode in a people’s perception—even to the point that its dictates are no longer widely grasped, a circumstance Aquinas himself allows—then the answer should not be a frightened moratorium on appeals to God’s eternal law. (This is not to say, however, that the natural law should always be positively legislated, as both Thomas Aquinas and Justice Thomas would agree.)

Justice Scalia has now gone to meet the one who judges justly, and I am confident that his public witness and career of service will find its just reward. As the country now solemnly seeks to fill his chair on the Supreme Court, we may hope judges like this good man may still be found. Though burdened with a problematic theory, Justice Scalia was nevertheless blessed through the gift of faith with a moral insight often lacking in the secularism that surrounds us. It would serve our nation well if more judges let such knowledge inform their administration of justice. Otherwise, it is certain that those bound neither to the text nor to God’s unwritten law will continue to “legislate from the bench,” advancing the same injustices that make us cry, “Lord…judge your people in justice!” (Ps 72:1).

 

[pkt77242]

White House considering appeals court judge for Supreme Court pick - CNNPolitics.com

The White House is considering Jane Kelly, who currently serves on the U.S. Court of Appeals for the 8th Circuit, for a possible nomination to the Supreme Court, according to a source familiar with the process.

The FBI has been conducting interviews with individuals associated with Kelly.

A judicial assistant for Kelly had no comment. The White House also declined comment.

Word of the outreach was first reported by The New York Times. It comes as President Barack Obama seeks to nominate a replacement for late Justice Antonin Scalia and push Republicans to consider his choice.

Senate Minority Leader Harry Reid said Wednesday that a decision on whom to nominate could come in "a matter of a week or so."

Kelly, who, like Obama, is a 1991 graduate of Harvard Law School. She is an Obama appointee who was unanimously confirmed by the Senate to the appeals court position in Cedar Rapids, Iowa.

She was an assistant public defender for the federal courts in Iowa, and her nomination to the appellate court was accelerated by Sen. Chuck Grassley, an Iowa Republican and now the chairman of the Senate Judiciary Committee. She was confirmed 96-0 in April 2013.

 

[Cackalacky]

That would make zero sense...

Definitely a head scratching response. IF they wanted him they should have confirmed him.

 

[BGIF]

I'm sorry, but this is fucked up. He is definitely interested; and he would be good at it - imo. Full disclosure, I'm not only a citizen of his state, but we went to the same high school and used to live about 20 houses from him before he became governor.

He was already a federal judge who was unanimously approved by the Senate; and he aspires to either be POTUS or a member of SCOTUS. He was clearly pressured by the party to stand down.

I hate that the "Party" is bigger then the "Country". We just all lost. It would be nice to have another Kennedy style judge that isn't afraid to rule as they think best rather than ideologically.

Stand down? He was never nominated.

His name was floated by the Obama administration to paint republicans into a corner. It was a pure political maneuver.

 

[IrishJayhawk]

Stand down? He was never nominated.

His name was floated by the Obama administration to paint republicans into a corner. It was a pure political maneuver.

There was certainly a piece here that was calculated to make it difficult for Republicans to justify not allowing a vote. But that doesn't mean he wasn't actually being considered as a Kennedy-type moderate. Another swing-vote on the court in place of Scalia would certainly benefit progressives.

 

[pkt77242]

For the next Justice, Americans want a nominee and a hearing - CNNPolitics.com

 

[Whiskeyjack]

TAC's Alan Jacobs published an article yesterday titled "Scalia and Disciplinary Originalism":

There are two very different ways to think of Antonin Scalia’s preferred method of interpreting the Constitution, often called originalism—and by the way, that Wikipedia page is unusually accurate and useful, though perhaps skewed a bit towards critics of originalism.

One might think of originalism as a method, or one might think of it as a discipline. If you conceive of it in the former way, you will run into some serious problems; if you conceive of it in the latter way, it is profoundly salutary. In a recent critique of Scalia, Laurence Tribe uses the words “method” and “methods” seventeen times — he can’t conceive of originalism in any other way. But there is another way.

Originalism as a method is unmanageable for several reasons, all of which stem from the essential and unavoidable condition of Constitutional interpretation, which is to apply to legal situations today a Constitution that was written more than two centuries ago. For one thing, it often requires justices, even after thorough and detailed research, to guess (infer, intuit) what the Framers might have thought about what’s happening today. But how do you do that? In the strictest sense, the Framers imagined almost nothing that we are dealing with today, since our world is so different. So rigorous methodological originalism would make the Constitution irrelevant to the law today.

It is tempting to say that, since strict or what we might call methodological originalism removes the Constitution from current legal disputes, then must we not follow the living Constitution model? In that just-linked (and now-archaic, though still-relevant) article, Jack Balkin of Yale Law School writes, “We are all living constitutionalists now. But only some of us are willing to admit it.” But that’s true only if the “living Constitution” model is the only alternative to methodological originalism.

If the problem with methodological originalism is that it renders the Constitution effectively nugatory in current legal disputes … well, that’s the problem with the living Constitution model too. Because in practice what makes the Constitution “living” is that it says what we want it to say. Scholars like Balkin more-or-less explicitly endorse this stance: “There’s something deeply wrong with a theory of constitutional interpretation that treats some of the key civil rights decisions of the 20th century as mistakes that we are stuck with.” That is, those “key civil rights decisions” produce immensely valuable and just results — a point I absolutely agree with — and therefore must be good decisions.

As I commented in an earlier post on Scalia, Balkin’s essential jurisprudential principle might be summarized thus:

If a law produces, or seems likely to produce, an outcome that right-thinking people deem socially desirable, then that law is ipso facto constitutional; by contrast, if that law produces, or seems likely to produce, an outcome that right-thinking people deem socially undesirable, then that law is ipso facto unconstitutional.

But it’s hard to see how a “living Constitution” that is alive in this way is anything more than a re-animated corpse controlled by a console in the hands of SCOTUS. Balkin has tried to square this circle, but in a way that it seems to me makes virtually no concessions to the originalist view it claims to be taking seriously. And Tribe simply grasps the nettle: “I see [Scalia], with great respect, as a worthy adversary—but an adversary all the same—of the just and inclusive society that our Constitution and laws should be interpreted to advance rather than impede.” First you decide what you think a “just and inclusive” society is, and then you interpret the Constitution so that it endorses your views. In such a scheme the Constitution, and therefore our own national history, is rendered incapable of speaking back to us — of having its own voice rather than a dim echo of our own.

I confess to much ambivalence on this score. In a very important sense it would have been far, far better for the key social and legal decisions of the Civil Rights era to have been made by legislative rather than the judicial system. But our legislators, especially on the state level, were moving very slowly or not at all. And when I think about those who in those days counseled patience, I always hear the voice of Martin Luther King, Jr.:

We have waited for more than three hundred and forty years for our God-given and constitutional rights. The nations of Asia and Africa are moving with jetlike speed toward the goal of political independence, and we still creep at horse-and-buggy pace toward the gaining of a cup of coffee at a lunch counter. I guess it is easy for those who have never felt the stinging darts of segregation to say “wait.” But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick, brutalize, and even kill your black brothers and sisters with impunity; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she cannot go to the public amusement park that has just been advertised on television, and see tears welling up in her little eyes when she is told that Funtown is closed to colored children, and see the depressing clouds of inferiority begin to form in her little mental sky, and see her begin to distort her little personality by unconsciously developing a bitterness toward white people; when you have to concoct an answer for a five-year-old son asking in agonizing pathos, “Daddy, why do white people treat colored people so mean?”; when you take a cross-country drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading “white” and “colored”; when your first name becomes “nigger” and your middle name becomes “boy” (however old you are) and your last name becomes “John,” and when your wife and mother are never given the respected title “Mrs.”; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of “nobodyness” — then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over and men are no longer willing to be plunged into an abyss of injustice where they experience the bleakness of corroding despair. I hope, sirs, you can understand our legitimate and unavoidable impatience.

A long passage, but one that can’t be reflected on too deeply or too often. The extended, throbbing sentence in the middle of that paragraph is as powerful an embodiment as I know of the pain of waiting, waiting, waiting, for a remediation of the grossest of injustices.

So I get what Balkin is saying when he notes that few of us, on the Left or on the Right, would want to undo “the key civil rights decisions” of the 20th century. But not all the decisions, not most of the decisions, made under the living-Constitution model have been as just or as commendable. Indeed, some of them have made a mockery of the Constitution and cannot possibly be defended in terms of legal reasoning, however desirable one might think the outcome.

So this is why discplinary originalism matters. Disciplinary originalism understands that methodological originalism is unworkable because it makes the Constitution useless. But it also wants to allow the Constitution to speak to us, and to force us, when we are departing in some significant way from its principles, to go back to our legislators and change the laws — and amend the Constitution itself when necessary. Disciplinary originalism keeps us honest. It forces us to know what we’re doing, and not to console ourselves with the pretense that we are somehow in the Great Tradition of the Framers when we are in fact repudiating much of what they believed. It doesn’t tell us we can’t or shouldn’t dissent from the beliefs of the Framers; it just asks us to admit it openly when we do so.

Critics of Justice Scalia often accused him of inconsistency. And insofar as he was a methodological originalist he sometimes was inconsistent. But I think the heart of his jurisprudence was disciplinary originalism, and with his death the most powerful embodiment of that vital principle was lost. I do not think we shall look upon his like again. And that means that our Supreme Court will continue to make the kinds of decisions it has been making for decades, but will have no one on its bench to remind it of what it’s really doing. Antonin Scalia was the conscience of SCOTUS, and I don’t see how it’s going to get another one.

And he followed that up today with one titled "The Value of Disciplinary Originalism, Revisited":

To understand why I think disciplinary originalism is valuable, let’s take a look at one of the most widely condemned of SCOTUS decisions, Korematsu vs. the United States. In Korematsu the court allowed the practice of evicting United States citizens, often native-born citizens, from their homes and moving them away from the West Coast simply because they were of Japanese descent. The vote was 6-3, and each of the justices who voted in favor of the executive order that mandated the evictions was appointed by President Roosevelt, the man who issued that order. (In a separate but closely related case, the Court ruled that such citizens could not be “detained,” thus depriving the internment camps for Japanese-Americans of legal sanction.)

The chief interest of Korematsu, for today’s reader of the history, is the dissent by Justice Robert Jackson, later to become the Chief Prosecutor at the Nuremberg Trials. In the first stage of his dissent — which you may see in full by going here and scrolling about three-fourths of the way down — Jackson points out that Fred Korematsu was a natural-born citizen of the United States whose loyalty to his country had never been questioned by anyone. He was merely living and working in the place of his birth, but was by the Executive Order obliged to turn himself in to military authorities — an obligation that he would not have faced had he been even “a German alien enemy, an Italian alien enemy, [or] a citizen of American-born ancestors, convicted of treason but out on parole.” Yet he was different from those others “only in that he was born of different racial stock.” Jackson continues:

Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one’s antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that ‘no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.’ Article 3, 3, cl. 2. But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign.

This point would have been sufficient in itself to declare Roosevelt’s order unconstitutional, but Jackson discerned a larger and greater issue at stake:

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more [323 U.S. 214, 246] subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens.

Jackson’s point here is exceptionally acute: this is not a matter of “rationalizing” — giving an implausible intellectual account of — the order, but rationalizing the Constitution. Which is a far more dangerous move.

The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as ‘the tendency of a principle to expand itself to the limit of its logic.’ A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case.

People are often automatically dismissive of “slippery-slope” arguments, as though no slopes are ever slippery; but once a metaphor is dead it’s dead. Justice Cardozo’s phrasing may be more useful: “the tendency of a principle to expand itself to the limits of its logic.” This tendency is almost inevitable in SCOTUS decisions, because of the power of precedent: only rarely is a decision walked back; rather, a “passing incident” very easily and naturally “becomes the doctrine of the Constitution” when justices see different situations in which it can be applied. All the pressure is on one side, towards expansion rather than contraction of the principle.

Such expansion of a principle is all the more likely to happen when popular opinion, especially elite popular opinion, is also strongly on one side. FDR’s decision to move Japanese-Americans from their homes was quite popular (as were the internment camps) and eight of the Justices had the further pressure of owing their positions on the Court to the Roosevelt. What they needed — but what only three of them had — was a jurisprudential principle substantial enough to make a counterweight to those pressures. All three of the dissenting judges had that principle, but it was most fully developed in and articulated by Jackson.

Just a few months ago Justice Antonin Scalia was asked, by law students at Santa Clara University, which Supreme Court opinion he most admired. He named Jackson’s dissent in Korematsu.

 

[BGIF]

Attorney General Loretta Lynch pulls herself from SCOTUS consideration - CNNPolitics.com

By Eli Watkins, CNN
Updated 7:17 PM ET, Tue March 8, 2016

Attorney General Loretta Lynch has asked not to be nominated to the Supreme Court, a Department of Justice spokeswoman said Tuesday.

"The Attorney General determined that the limitations inherent in the nomination process would curtail her effectiveness in her current role," DOJ spokeswoman Melanie Newman said in a statement.

Lynch's decision marked another person ruling themselves out for an opening on the high court created by the death of Justice Antonin Scalia.

Lynch rose to her current position after a tumultuous confirmation in the Senate ended with a vote largely along partisan lines.

Republican leadership in the Senate has stressed they will not consider any Supreme Court nominee from President Barack Obama. Leading Republican Sen. John Cornyn told reporters on Monday that a potential nominee would "bear some resemblance to a piñata."

Some court observers, including CNN, had previously viewed Lynch as an unlikely, but possible, nominee.

Last month, Nevada Gov. Brian Sandoval removed himself for consideration of Scalia's replacement.

 

[BGIF]

First on CNN: Top name withdraws from Supreme Court consideration - CNNPolitics.com

By Manu Raju, Kevin Liptak and Ariane de Vogue, CNN
Updated 2:11 PM ET, Wed March 9, 2016

Washington (CNN)Adalberto Jordan, a federal judge in Miami seen as a top contender for the Supreme Court vacancy, has withdrawn his name from contention, a lawmaker told CNN on Wednesday.

"He pulled himself out of consideration," Sen. Bill Nelson, D-Florida told CNN. Nelson said Jordan made the decision because of a "personal, family situation" involving his mother.

"I talked to him ... I think that's unfortunate because he is squeaky clean," Nelson said, citing Jordan's long judicial record and his overwhelming confirmation by the Senate in 2012.

Jordan, who would have fit the bill of another Obama appellate nominee who has an engaging personal story, was recently vetted for a federal judgeship and won a large majority in the Senate when confirmed.

Born in Havana, Cuba, Jordan came to the United States as young child. He clerked for Justice Sandra Day O'Connor, was a federal prosecutor in south Florida and appointed to the bench in Southern District of Florida by President Bill Clinton in 1999.

President Barack Obama nominated Jordan to the 11th U.S. Circuit Court of Appeals in 2011, and while a vote on his nomination was delayed due to an unrelated fight between the GOP and White House over recess appointments, Jordan was eventually confirmed 94-5 in February 2012.

Jordan is the second potential nominee to drop out of consideration in the past 24 hours. Attorney General Loretta Lynch said through a spokesman on Tuesday night she was focused on finishing her tenure at the Justice Department.

Previously, Republican governor of Nevada, Brian Sandoval, said he had told the White House he wasn't interested in the post after his name was floated as a potential pick.

Obama has begun interviewing remaining candidates for the court vacancy, NPR reported on Tuesday.

Sources have told CNN that federal judges Sri Srinivasan, Merrick Garland, and Jane Kelly are all being vetted by the FBI ahead of Obama's announcement.

The White House has refused to provide details of Obama's interview schedule, or specify which names he's considering as a replacement for the late Justice Antonin Scalia.

"I'm not going to be in a position to give you a heads-up when the President has begun interviewing potential Supreme Court nominees," White House press secretary Josh Earnest said Tuesday. "In the past, when filling vacancies, the President has interviewed potential candidates. I would assume that he would do so in this case. But I won't be able to provide much information about the timing or who would be included in that process."

Squabbling on the Hill
Democrats were expected to use a Thursday business meeting of the Senate Judiciary Committee -- the first such session since Scalia's death -- to rail against Republicans on the panel for refusing to consider Obama's eventual nominee. Sen. Chuck Grassley, the committee's Republican chairman, said Wednesday he expected a "full blown debate" on the matter.

The squabbling didn't wait for Thursday's meeting, however. Grassley and the Democratic Ranking Member Patrick Leahy began an oversight hearing Wednesday sparring over the matter.

"The Republican Committee members met behind closed doors to unilaterally decide, without any input from Democrats, decided this committee and the Senate as a whole would simply refuse to consider a Supreme Court nominee this year," Leahy said, calling the decision a "dereliction of duty" for lawmakers.

Grassley, who has come under scrutiny in his role as a gatekeeper for Obama's nominee, responded that the debate over the Supreme Court was important -- but said the Senate retained a prerogative to forgo hearings for a president's selection.

"It isn't any different if the President of the United States notifies Congress well in advanced of a piece of legislation that he's going to veto it," Grassley said, suggesting that many of his Iowa constituents have expressed anger at the Supreme Court itself for taking an activist role in the law.

"Whether it's today or tomorrow or whether it's for the next seven or eight months, this is a very important debate that we ought to have about the constitution and about not only who's going to be a replacement for Justice Scalia but about the role of the Supreme Court," Grassley added. "At the grassroots of America, there's a real feeling of 'Is the Supreme Court doing what the Constitution requires?'"

 

[Emcee77]

All great judges mentioned in there.

Merrick Garland is the ultimate compromise pick, imo. He has ties to both Republicans and Democrats, he has a reputation as a moderate, and he is eminently qualified based on his long experience on the DC Circuit.

He's also a great compromise pick because he is relatively old, at 63, so he probably won't be on the bench as long as most of the other candidates, who are closer to 50. So even if someone were staunchly opposed, an argument in favor could be made along the lines of, "just vote for Garland to get someone in the position and resolve the stalemate, and then your party may have a chance to make a pick when he retires in as little as 10 years ... this isn't a 49 year old like Srinivasan who will be on the court for 30 years."

 

[Bogtrotter07]

Here's an interesting article wherein a Dominican canon lawyer contrasts the legal philosophies of Scalia and Aquinas:

Good article, but for me it reinforces my opinion that Justice Scalia left a lot to be desired as a judge. And that puts a finger on my problems with Scalia.

Your article compares Scalia to Aquinas; that is as far as we need to go.

Everyone is familiar with the myth that Aquinas got so rapped up in the Summa Theologica that he rarely left his tower chamber, and that he was so consumed with his work that he paid little attention to anything else, including his health. So that when he died, eight strong men were required to carry him from his chamber and that doors had to be widened to let the girth of his corpse pass.

Don't know if that is true. But one truth is that he admitted his attempt at framing completing his work was a futile attempt at best, and he had abandon his goal. And he encouraged others to scrap using his work. (ST)

So ST is a great reference book, as it had a great influence on western civilization from the Middle Ages, to the Age of Enlightenment, under feudal and aristocratic governances.
But it fails under democracy.

By the way, did you know that the scholars he quoted were well represented by members of the Jewish, and Islamic faith? And that most of the Christian Theologians were from the fourth through sixth century?

His principle philosophical source was Aristotle, and therein lie one of the flaws of his work. Interestingly enough, not only does it help cement the comparison, but it results in the same weakness of the entirety of Justice Scalia's career.

"To will is nothing else than a certain inclination toward the object of the volition which is the universal good."

Aquinas believed the universal good was all God's will, subject to change at his whim, and was devoid of any hint of human will, desire, or being.

We can delve into Aristotelian philosophy in depth, but I think this summary stands.

Aquinas borrowed Aristotle's concept of an eternal unmoved mover, without dealing with the critical flaw Aristotle found in the concept. That for something that always was to create something different than itself, it would have to be an efficient cause, in other words something else. And that would render universal principles meaningless. Under this kind of system, there could be no 'rights' for mankind, only 'God's Will.'

Aristotle never reconciled this; Aquinas and other Church theologians ignored this logical flaw.

So that prompted the move toward a human, more involved God, one that was involved in man's daily activities. That and the fact that man had such a poor understanding of the causes for what happened in the world around him. Of course, in reality, if this supernatural explanation is true, we cannot claim to fathom the thoughts and motivations of such a powerful entity. But that clearly cements the ideal of a super will, apart from the will of humankind, or each of us individually, which would then be inconsequencial.

So in that case it is appropriate to act on behest of God's will, even if that requires murder, mutilation, or genocide.

If this isn't clearly the crux of mental illness, here is where it gets worse. A judge that believes in a living constitution, and the will of God, separate from, and above the will of man, is a destructive influence on a constitution such as ours.

In other words, if this Constitution is an evolving work, changing it should be approached like every other activity with which the government is charged. Namely, further protection of citizens, aiding in the pursuit of their unalienable rights, and interpreting new technologies and circumstances in these lights.

Two good examples are Women's rights and Civil rights.

A bad example is prohibition. After all prohibition was passed to protect everyone, but it was based upon a very narrow moral code, which actually interfered with more peoples rights that it provided protections for anyone.

And so it goes with everyone that thinks they need to change the US Constitution, to help it more reflect "God's Law."

I mean, we can go back and talk about Christian founders of this country, all you want, but the fact is that the majority were un-orthodox Christians, or deists, who saw man's law as just that, and tried to protect it from anyone, (even of their own spiritual beliefs) affecting it, or changing it based upon a moral authority of anything, other than what is right universally for mankind.

In that I think we see Scalia's legacy. Scalia felt he could change or interpret the constitution in any way he desired, as long as he could justify he was doing it in God's name.

So finally, I believe there is a comparison between Aquinas and Scalia, but it isn't one of merit for either one.

 

[BGIF]

White House narrows search to three for Supreme Court | Reuters

WASHINGTON/AUSTIN, TEXAS | BY JULIA EDWARDS AND JEFF MASON
Fri Mar 11, 2016 6:40pm EST

The White House has narrowed its search for a Supreme Court nominee to three federal appeals court judges, Sri Srinivasan, Merrick Garland and Paul Watford, a source familiar with the selection process said on Friday.

Srinivasan, an Indian-American who served under presidents of both parties before President Barack Obama named him as an appellate judge, and Garland, considered but passed over for the Supreme Court twice before by Obama, are considered the leading contenders, according to the source and two other sources close to the process.

...

It was unclear whether the other two other candidates who had been expected to be interviewed by Obama, federal appeals court judge Jane Kelly and federal trial judge Ketanji Brown Jackson, were now out of the running altogether.

...

 

[wizards8507]

https://www.whitehouse.gov/blog/201...ma-ive-made-my-decision-supreme-court-nominee

Obama Picks Merrick Garland for SCOTUS - The Daily Beast

 

[woolybug25]

Sen. Orrin Hatch (R-UT), the longest serving Republican on the Senate Judiciary Committee, offered his own thoughts on who President Obama should nominate to fill the seat left open by the death of Justice Antonin Scalia last week. “[Obama] could easily name Merrick Garland, who is a fine man,” Hatch told the conservative news site Newsmax, before adding that “he probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the [liberal Democratic base] wants.”

Bluff called...

 

[wizards8507]

Bluff called...

Brilliant political strategery. Also, Orrin Hatch is a squat cobbler.

 

[woolybug25]

The other thing, is that at 63 years old, this isn't a generational pick by Obama. He literally picked the most qualified, most experienced, centrist candidate he could. One that wouldn't have a super long tenure to boot.

Not vetting him would be ignorant.

 

[pkt77242]

Whiskey, what are your thoughts on Garland's nomination?

 

[Whiskeyjack]

Whiskey, what are your thoughts on Garland's nomination?

• Obama is much better at politics than the mouth-breathers running the GOP;
• Garland's stances on the areas most important to me are virtually unknown, but odds are good he'll vote reliably with the court's Progressive bloc;
• Regardless, Garland is likely much preferable to any nominee that Clinton or Trump would put forward next year.

 

[wizards8507]

<blockquote class="twitter-tweet" data-lang="en"><p lang="en" dir="ltr">Garland's "moderation" seems to be an affinity with the left on gov. power to regulate, and the right on gov. power to police/incarcerate.</p>— Radley Balko (@radleybalko) <a href="https://twitter.com/radleybalko/status/710121676458037249">March 16, 2016</a></blockquote>
<script async src="//platform.twitter.com/widgets.js" charset="utf-8"></script>

Sounds like the worst of both worlds.

 

[Bogtrotter07]

Brilliant political strategery. Also, Orrin Hatch is a squat cobbler.

The other thing, is that at 63 years old, this isn't a generational pick by Obama. He literally picked the most qualified, most experienced, centrist candidate he could. One that wouldn't have a super long tenure to boot.

Not vetting him would be ignorant.

Whiskey, what are your thoughts on Garland's nomination?

Three interesting posts in a row!

Wiz, I don't know fo' sho' what a squat cobbler is; I can only imagine; but, we have probably finally found some common ground in the political arena.

Wooly, isn't a candidate like this ripe for becoming an all time great? Don't the best, most influential candidates come out of the middle? And couldn't this guy sit on the bench for another 25 to 30 years? To me that is powerful long enough! In fact, I might not be around to see his replacement if he lives as long as some recent justices. Or if I do, I might just not care!

I am surprised someone hasn't had a problem with Garland's faith, with the first possible Jewish President winning this falls election! Conspiracy and enslavement by God's cursed race! (Certainly not talking about you Wiz or Wooly!)

PKT, You should have ask Wooly. Your facetiousness would have been so funny because no one on this site is quicker or more overt in expressing his feelings or point of view that the Woolmeister! I would only dream of an opportunity to make a post like that; and in my dream, I would be drooling!

Instead, you asked Whiskey! Someone who has a background and knowledge of the subject, unlike the rest of us schmucks!

 

[wizards8507]

Wiz, I don't know fo' sho' what a squat cobbler is; I can only imagine; but, we have probably finally found some common ground in the political arena.

<iframe width="560" height="315" src="https://www.youtube.com/embed/DdBo0iEjewU" frameborder="0" allowfullscreen></iframe>

Hoboken squat cobbler. Full moon moon-pie. Boston cream splat. Simple Simon the ass man. Dutch apple ass. Hellman's mayonnaise.

 

[woolybug25]

Hoboken squat cobbler. Full moon moon-pie. Boston cream splat. Simple Simon the ass man. Dutch apple ass. Hellman's mayonnaise.

When it comes to the verbiage of the rectum, you sir... are a poet.

 

[wizards8507]

When it comes to the verbiage of the rectum, you sir... are a poet.

I can't take credit. Watch the clip (with headphones on).