Some simple facts about our current and future Supreme Court

[hadit]

Fact 6 Obamas nominees must pass a vetting process by the Senate before being confirmed.

Just like every Justice in the past

========
That is partially true.

The Constitution does NOT specify that the Senate VOTES ... only that they CONSENT.

This consent has, in the past, been determined by voting === but it could be argued that if they don't even vote THAT is consent.

If Obama nominates and 90 days later they have not even voted then it is consent in absentia.

Voting is the only way they can decline his nominee. So if they don't vote then they consent.

Where does the Constitution specify that not voting is consent in absentia for SC nominations?

========
There are only two options. They must either Consent or Deny. If they refuse to do either then they have abdicated their responsibility under the Constitution and it can be considered Consent because they did not deny.

If they refuse to do their job and take votes they should face impeachment charges to for dereliction of duty.

So there is no 90 day limit in the Constitution.

 

[Soggy in NOLA]

No one denied Bork's brilliance. But as a circuit judge he had the duty to follow precedent. During his confirmation hearings he not only called into question Roe, but also the prohibition on states to prevent any sale of contraceptives.

He questioned Roe as flawed reasoning... many have the same impression. And the Supreme Court can overturn itself.. stare decisis is a matter if policy at that level.

 

[hadit]

No one denied Bork's brilliance. But as a circuit judge he had the duty to follow precedent. During his confirmation hearings he not only called into question Roe, but also the prohibition on states to prevent any sale of contraceptives.

Since when are those decisions immune to future review?

Stare decisis

The 2nd Amendment has been revisited many times and will continue to be so. Previous court decisions are not so sacred that they cannot be overturned. It happens, and a justice noting that it can is not horrifying.

 

[hadit]

Fact 6 Obamas nominees must pass a vetting process by the Senate before being confirmed.

Just like every Justice in the past

========
That is partially true.

The Constitution does NOT specify that the Senate VOTES ... only that they CONSENT.

This consent has, in the past, been determined by voting === but it could be argued that if they don't even vote THAT is consent.

If Obama nominates and 90 days later they have not even voted then it is consent in absentia.

Voting is the only way they can decline his nominee. So if they don't vote then they consent.

Where does the Constitution specify that not voting is consent in absentia for SC nominations?

========
There are only two options. They must either Consent or Deny. If they refuse to do either then they have abdicated their responsibility under the Constitution and it can be considered Consent because they did not deny.

If they refuse to do their job and take votes they should face impeachment charges to for dereliction of duty.

The gop can filibuster. That would allow a few vulnerable gop senators to vote for cloture, or end the filibuster, but never actually invoke cloture.

Thanks to Harry Reid, the precedent has been set to change the rules around the filibuster. The Republicans can make it easier, harder, or impossible to prevent hearings. They could, for instance, change the number of votes required to invoke cloture to a ridiculously high number to make it trivially easy to filibuster until Obama is nothing more than a fading bad memory.

 

[bendog]

No one denied Bork's brilliance. But as a circuit judge he had the duty to follow precedent. During his confirmation hearings he not only called into question Roe, but also the prohibition on states to prevent any sale of contraceptives.

He questioned Roe as flawed reasoning... many have the same impression. And the Supreme Court can overturn itself.. stare decisis is a mater if policy only at that level.

Even if it's wrongfully decided, and I think it was, stare decisis still applies .... unless the result is unworkable or societal changes make it obsolete. In 1988, it was inconceivable (-:to most of us that the constitution and BOR would allow a state to say "no condoms ever" because God's in charge of your bodies.

If the bible bangers would stay out of a woman's choice to obtain drugs near conception that might become nearer. The state's only interest is protecting the health of the woman and viable outside the womb life. And probably if it came to it, there might be a state interest in parital birth, but the doctors themselves have pretty much culled as much inhumanity out of that as is possible.

 

[Soggy in NOLA]

Fact 6 Obamas nominees must pass a vetting process by the Senate before being confirmed.

Just like every Justice in the past

========
That is partially true.

The Constitution does NOT specify that the Senate VOTES ... only that they CONSENT.

This consent has, in the past, been determined by voting === but it could be argued that if they don't even vote THAT is consent.

If Obama nominates and 90 days later they have not even voted then it is consent in absentia.

Voting is the only way they can decline his nominee. So if they don't vote then they consent.

Where does the Constitution specify that not voting is consent in absentia for SC nominations?

========
There are only two options. They must either Consent or Deny. If they refuse to do either then they have abdicated their responsibility under the Constitution and it can be considered Consent because they did not deny.

If they refuse to do their job and take votes they should face impeachment charges to for dereliction of duty.

Oh brother....

 

[Arizona Willie]

Really?

and if a bill sits on the presidents desk over a certain amount of time without him signing it, it automatically becomes law, because he did not deny it?

========
YES IT DOES.

 

[bendog]

No one denied Bork's brilliance. But as a circuit judge he had the duty to follow precedent. During his confirmation hearings he not only called into question Roe, but also the prohibition on states to prevent any sale of contraceptives.

Since when are those decisions immune to future review?

Stare decisis

The 2nd Amendment has been revisited many times and will continue to be so. Previous court decisions are not so sacred that they cannot be overturned. It happens, and a justice noting that it can is not horrifying.

Not to call you a liar by any means, but your statement is simply not true, but it is a good illustration of what stare decisis should do.

The issue in Heller was whether or not there was an individual right. That WAS unsettled law, because the last scouts case was Miller v. US, which came down before WWII. Miller held the 2nd only protected military type weapons appropriate for state militias.
United States v. Miller - Wikipedia, the free encyclopedia

Militas were essentially folded into the state Natl Guard post WWII, with military training and arming being federally regulated (and paid for) to ensure uniformity in case we had another war requiring full mobilization, so Miller was an anachronism. It was also sort of a cop-out on the question of individual ownership as well.

In Heller, a 5-4 decision should put the personal right question to rest. Some on the liberal side (and even those fearing a third Obama justice) think that the Court would reverse itself. It should not. The Heller decision is workable, and it still applies to the facts of how guns are owned in the US.

I think Citizens United is in some danger, because the assumptions Kennedy made about money in politics and people's actions have proven naively mistaken. And Citizens United itself overturned long standing precedent.

 

[Arizona Willie]

Fact 6 Obamas nominees must pass a vetting process by the Senate before being confirmed.

Just like every Justice in the past

========
That is partially true.

The Constitution does NOT specify that the Senate VOTES ... only that they CONSENT.

This consent has, in the past, been determined by voting === but it could be argued that if they don't even vote THAT is consent.

If Obama nominates and 90 days later they have not even voted then it is consent in absentia.

Voting is the only way they can decline his nominee. So if they don't vote then they consent.

Where does the Constitution specify that not voting is consent in absentia for SC nominations?

========
There are only two options. They must either Consent or Deny. If they refuse to do either then they have abdicated their responsibility under the Constitution and it can be considered Consent because they did not deny.

If they refuse to do their job and take votes they should face impeachment charges to for dereliction of duty.

So there is no 90 day limit in the Constitution.

========
True but logic says there must be some time limit. They can't wait 5 more years for another try at a Republican President who would nominate an ultra-conservative. The Constitution doesn't authorize that either.

And if they refuse to do their duty under the Constitution they are violating their Oath of Office and it's dereliction of duty. They COULD be impeached and charges should absolutely be brought by Democratic Senators.

 

[hadit]

No one denied Bork's brilliance. But as a circuit judge he had the duty to follow precedent. During his confirmation hearings he not only called into question Roe, but also the prohibition on states to prevent any sale of contraceptives.

Since when are those decisions immune to future review?

Stare decisis

The 2nd Amendment has been revisited many times and will continue to be so. Previous court decisions are not so sacred that they cannot be overturned. It happens, and a justice noting that it can is not horrifying.

Not to call you a liar by any means, but your statement is simply not true, but it is a good illustration of what stare decisis should do.

The issue in Heller was whether or not there was an individual right. That WAS unsettled law, because the last scouts case was Miller v. US, which came down before WWII. Miller held the 2nd only protected military type weapons appropriate for state militias.
United States v. Miller - Wikipedia, the free encyclopedia

Militas were essentially folded into the state Natl Guard post WWII, with military training and arming being federally regulated (and paid for) to ensure uniformity in case we had another war requiring full mobilization, so Miller was an anachronism. It was also sort of a cop-out on the question of individual ownership as well.

In Heller, a 5-4 decision should put the personal right question to rest. Some on the liberal side (and even those fearing a third Obama justice) think that the Court would reverse itself. It should not. The Heller decision is workable, and it still applies to the facts of how guns are owned in the US.

I think Citizens United is in some danger, because the assumptions Kennedy made about money in politics and people's actions have proven naively mistaken. And Citizens United itself overturned long standing precedent.

"Should" does not infer "Must". Yes, the court DOES consider precedent, but that does NOT make overturning a previous decision impossible. Nothing is so sacred that it cannot be revisited.

 

[hadit]

Fact 6 Obamas nominees must pass a vetting process by the Senate before being confirmed.

Just like every Justice in the past

========
That is partially true.

The Constitution does NOT specify that the Senate VOTES ... only that they CONSENT.

This consent has, in the past, been determined by voting === but it could be argued that if they don't even vote THAT is consent.

If Obama nominates and 90 days later they have not even voted then it is consent in absentia.

Voting is the only way they can decline his nominee. So if they don't vote then they consent.

Where does the Constitution specify that not voting is consent in absentia for SC nominations?

========
There are only two options. They must either Consent or Deny. If they refuse to do either then they have abdicated their responsibility under the Constitution and it can be considered Consent because they did not deny.

If they refuse to do their job and take votes they should face impeachment charges to for dereliction of duty.

So there is no 90 day limit in the Constitution.

========
True but logic says there must be some time limit. They can't wait 5 more years for another try at a Republican President who would nominate an ultra-conservative. The Constitution doesn't authorize that either.

And if they refuse to do their duty under the Constitution they are violating their Oath of Office and it's dereliction of duty. They COULD be impeached and charges should absolutely be brought by Democratic Senators.

That would take even longer, and would ultimately be fruitless, because it would launch a bloody civil war between the parties. There are a LOT of things that they tacitly tolerate because they know the tide will turn in the future and the balance of power switch. Remember when Harry Reid went nuclear to prevent the Republicans from filibustering court nominations? They allowed him to get away with it, because they knew they could then do the same. If democrats tried to impeach Republican Senators for partisan actions, they would have a nasty fight on their hands and few would survive. Ergo, no impeachment attempts, just a lot of angst and wailing to the cameras.

 

[Arizona Willie]

========
That is partially true.

The Constitution does NOT specify that the Senate VOTES ... only that they CONSENT.

This consent has, in the past, been determined by voting === but it could be argued that if they don't even vote THAT is consent.

If Obama nominates and 90 days later they have not even voted then it is consent in absentia.

Voting is the only way they can decline his nominee. So if they don't vote then they consent.

Where does the Constitution specify that not voting is consent in absentia for SC nominations?

========
There are only two options. They must either Consent or Deny. If they refuse to do either then they have abdicated their responsibility under the Constitution and it can be considered Consent because they did not deny.

If they refuse to do their job and take votes they should face impeachment charges to for dereliction of duty.

So there is no 90 day limit in the Constitution.

========
True but logic says there must be some time limit. They can't wait 5 more years for another try at a Republican President who would nominate an ultra-conservative. The Constitution doesn't authorize that either.

And if they refuse to do their duty under the Constitution they are violating their Oath of Office and it's dereliction of duty. They COULD be impeached and charges should absolutely be brought by Democratic Senators.

That would take even longer, and would ultimately be fruitless, because it would launch a bloody civil war between the parties. There are a LOT of things that they tacitly tolerate because they know the tide will turn in the future and the balance of power switch. Remember when Harry Reid went nuclear to prevent the Republicans from filibustering court nominations? They allowed him to get away with it, because they knew they could then do the same. If democrats tried to impeach Republican Senators for partisan actions, they would have a nasty fight on their hands and few would survive. Ergo, no impeachment attempts, just a lot of angst and wailing to the cameras.

========
In case you hadn't noticed ( apparently you haven't ) we are already in a Civil War that is rapidly becoming uncivil.

We have 24 hour a day hate radio preaching against the Dems.

We have militias seizing Federal Properties and pointing guns at Federal Agents and threatening to shoot them, and one even tried and died for the attempt.

The country is deeply divided much like during the Civil War.

 

[bendog]

No one denied Bork's brilliance. But as a circuit judge he had the duty to follow precedent. During his confirmation hearings he not only called into question Roe, but also the prohibition on states to prevent any sale of contraceptives.

Since when are those decisions immune to future review?

Stare decisis

The 2nd Amendment has been revisited many times and will continue to be so. Previous court decisions are not so sacred that they cannot be overturned. It happens, and a justice noting that it can is not horrifying.

Not to call you a liar by any means, but your statement is simply not true, but it is a good illustration of what stare decisis should do.

The issue in Heller was whether or not there was an individual right. That WAS unsettled law, because the last scouts case was Miller v. US, which came down before WWII. Miller held the 2nd only protected military type weapons appropriate for state militias.
United States v. Miller - Wikipedia, the free encyclopedia

Militas were essentially folded into the state Natl Guard post WWII, with military training and arming being federally regulated (and paid for) to ensure uniformity in case we had another war requiring full mobilization, so Miller was an anachronism. It was also sort of a cop-out on the question of individual ownership as well.

In Heller, a 5-4 decision should put the personal right question to rest. Some on the liberal side (and even those fearing a third Obama justice) think that the Court would reverse itself. It should not. The Heller decision is workable, and it still applies to the facts of how guns are owned in the US.

I think Citizens United is in some danger, because the assumptions Kennedy made about money in politics and people's actions have proven naively mistaken. And Citizens United itself overturned long standing precedent.

"Should" does not infer "Must". Yes, the court DOES consider precedent, but that does NOT make overturning a previous decision impossible. Nothing is so sacred that it cannot be revisited.

Well it should be settled. The entire concept of uniformity and predictability rests on not changing things that were considered by reasonable Justices unless facts change to make the thing unworkable or unnecessary. The whole point of confirmation hearings is to make sure Judges and Justices will be reasonable. Bork candidly admitted he had no intention on this. Thomas and Scalia would (have) probably reversed Roe in a heartbeat, but they knew better.

Affirmative action ins college admissions is something that's changing because, while poor and oftentimes minority students get poorer schools, there's no concerted effort to keep them out of college or professions. Whether southern states have to get DOJ approval for re-districting is getting a look. No doubt dem appointed judges are not so fast to move on this.

The best example of something maybe not deserving stare decisis is, imo, birth right citizenship. Dante was unpleasant on this issue, but when Kim Wong Ark was decided, there was no open border with China. There was no dispute that the Congress could pass a law saying Chinese could work here, but they eventually had to go home. I think there are easier and faster way to deal with illegal immigration, but I'm not sure that the 14th amendment grant of citizenship to those born here contemplated 12 million illegal aliens.

 

[hadit]

Where does the Constitution specify that not voting is consent in absentia for SC nominations?

========
There are only two options. They must either Consent or Deny. If they refuse to do either then they have abdicated their responsibility under the Constitution and it can be considered Consent because they did not deny.

If they refuse to do their job and take votes they should face impeachment charges to for dereliction of duty.

So there is no 90 day limit in the Constitution.

========
True but logic says there must be some time limit. They can't wait 5 more years for another try at a Republican President who would nominate an ultra-conservative. The Constitution doesn't authorize that either.

And if they refuse to do their duty under the Constitution they are violating their Oath of Office and it's dereliction of duty. They COULD be impeached and charges should absolutely be brought by Democratic Senators.

That would take even longer, and would ultimately be fruitless, because it would launch a bloody civil war between the parties. There are a LOT of things that they tacitly tolerate because they know the tide will turn in the future and the balance of power switch. Remember when Harry Reid went nuclear to prevent the Republicans from filibustering court nominations? They allowed him to get away with it, because they knew they could then do the same. If democrats tried to impeach Republican Senators for partisan actions, they would have a nasty fight on their hands and few would survive. Ergo, no impeachment attempts, just a lot of angst and wailing to the cameras.

========
In case you hadn't noticed ( apparently you haven't ) we are already in a Civil War that is rapidly becoming uncivil.

We have 24 hour a day hate radio preaching against the Dems.

We have militias seizing Federal Properties and pointing guns at Federal Agents and threatening to shoot them, and one even tried and died for the attempt.

The country is deeply divided much like during the Civil War.

Maybe you didn't notice that I was referring to the factions within the Senate?

 

[hadit]

Since when are those decisions immune to future review?

Stare decisis

The 2nd Amendment has been revisited many times and will continue to be so. Previous court decisions are not so sacred that they cannot be overturned. It happens, and a justice noting that it can is not horrifying.

Not to call you a liar by any means, but your statement is simply not true, but it is a good illustration of what stare decisis should do.

The issue in Heller was whether or not there was an individual right. That WAS unsettled law, because the last scouts case was Miller v. US, which came down before WWII. Miller held the 2nd only protected military type weapons appropriate for state militias.
United States v. Miller - Wikipedia, the free encyclopedia

Militas were essentially folded into the state Natl Guard post WWII, with military training and arming being federally regulated (and paid for) to ensure uniformity in case we had another war requiring full mobilization, so Miller was an anachronism. It was also sort of a cop-out on the question of individual ownership as well.

In Heller, a 5-4 decision should put the personal right question to rest. Some on the liberal side (and even those fearing a third Obama justice) think that the Court would reverse itself. It should not. The Heller decision is workable, and it still applies to the facts of how guns are owned in the US.

I think Citizens United is in some danger, because the assumptions Kennedy made about money in politics and people's actions have proven naively mistaken. And Citizens United itself overturned long standing precedent.

"Should" does not infer "Must". Yes, the court DOES consider precedent, but that does NOT make overturning a previous decision impossible. Nothing is so sacred that it cannot be revisited.

Well it should be settled. The entire concept of uniformity and predictability rests on not changing things that were considered by reasonable Justices unless facts change to make the thing unworkable or unnecessary. The whole point of confirmation hearings is to make sure Judges and Justices will be reasonable. Bork candidly admitted he had no intention on this. Thomas and Scalia would (have) probably reversed Roe in a heartbeat, but they knew better.

Affirmative action ins college admissions is something that's changing because, while poor and oftentimes minority students get poorer schools, there's no concerted effort to keep them out of college or professions. Whether southern states have to get DOJ approval for re-districting is getting a look. No doubt dem appointed judges are not so fast to move on this.

The best example of something maybe not deserving stare decisis is, imo, birth right citizenship. Dante was unpleasant on this issue, but when Kim Wong Ark was decided, there was no open border with China. There was no dispute that the Congress could pass a law saying Chinese could work here, but they eventually had to go home. I think there are easier and faster way to deal with illegal immigration, but I'm not sure that the 14th amendment grant of citizenship to those born here contemplated 12 million illegal aliens.

When an actual constitutional amendment gets revisited, or is assumed to be revisited with nearly every change in the court's makeup, a simple court decision can be as well. We can disagree on whether an issue should be settled or not, but very little really is, and will continue to be as long as there are "living document" proponents.

 

[nat4900]

No one denied Bork's brilliance. But as a circuit judge he had the duty to follow precedent. During his confirmation hearings he not only called into question Roe, but also the prohibition on states to prevent any sale of contraceptives.

Quite a few fascists in the 1930s were also "brilliant".....

 

[nat4900]

I say we write the senate and demand that the members of the Judiciary committee failing to do their jobs have their salaries frozen and health care benefits withheld -- because that's what happens when you don't do your job.

...and, sometimes, when you refuse to do your job, you also get fired. (thanks)

 

[whitehall]

Speaking of simple, currently there is a widely circulated video of former senator Joe Biden in 1992 emphatically stating that the democrat controlled senate will not consider a supreme court nominee during Bush Sr.'s term.

 

[bendog]

No one denied Bork's brilliance. But as a circuit judge he had the duty to follow precedent. During his confirmation hearings he not only called into question Roe, but also the prohibition on states to prevent any sale of contraceptives.

Quite a few fascists in the 1930s were also "brilliant".....

I don't thing Bork was a fascist. He simply didn't believe in any right that was not specifically identified in the BoR. I doubt he thought congress had the power to force southern restaurants to contract with African americans for food. He believed that the political process, and not the judicial process, should work out stuff like what abortions are legal. But he also did not believe in stare decisis, at least for issues that may be wrongfully decided but which the decision is more or less working.

 

[blackhawk]

Thank you for stating the obvious many here seem to have that same talent.