The question is one of Senate rules.

I am fairly sure that the wording is 'a simple majority of those present'. It is necessary to have 51 present for a quorum, so I think Owl#s is spot on.

The wording allows both for quorum issues *and* for unfilled seats (kind of like what will happen when McCain kicks off.....)

(07-01-2018 02:00 PM)Owl 69/70/75 Wrote:  

(07-01-2018 10:57 AM)OptimisticOwl Wrote:  Question for the Constitutional scholars among us.

It has occurred to me that a lot of the Dem Senators in Trump states who are up for election might not vote either way, but instead find compelling reasons to not be there.

Is 51 a requirement, or just a majority of those voting? Could a Justice be confirmed 48-46?

Not an expert on the subject, but I think it could be 26-25. I think you'd have to have a quorum, which I believe is 51, but once you have that then I believe it's just a majority.

That is the default rule for parliamentary organizations: a quorum for an assembly is more than half of the assembly; while voting majorities are relative to the number of votes cast.

It's pretty simple, but for some reason, every organization I've ever been a part of has not quite understood it.

It's not often that I am happy to lose a bet but after Gorsuch, I bet with tanqtonic that Trump would not nominate another acceptable-to-conservatives SCOTUS justice if he got the chance, and I am happy to be proven wrong. Kavanaugh has been endorsed this morning by editorials in both National Review and the WSJ, and that was our agreed-upon measuring stick. Tanq, PM me regarding your beer winnings!

I did not think Trump would go back to the Federalist Society/Heritage Foundation "list" for a second justice; I thought that campaign promise would at best only be honored a maximum of once, since it was reportedly almost broken out of the gate. And I still don't have a lot of confidence that he'd use it again if the opportunity arose (say, if Kavanaugh fails, or for any new opening on his watch), but I guess what distrustful conservatives like me have in our favor, ironically, is the *lack* of ideology in this self-proclaimed smartest president ever. I think he enjoys more than anything wielding the power and trappings of the office, but oddly enough this particular lever -- one of the most powerful at a president's disposal -- just is not one that interests him personally; else why would he outsource it? I guess it also helps that he is not a lawyer and former law professor like his last two Democratic predecessors, both of whom most certainly lusted after the chance to reshape the Court to their ideological preference. Trump certainly has his lusts, but they aren't ideological, and that, ironically, has turned out to be the key to getting unassailably conservative justices on the bench.

I have never seen a President so intent on keeping campaign promises. Even the promises I don't like.

(07-10-2018 09:16 AM)illiniowl Wrote:  It's not often that I am happy to lose a bet but after Gorsuch, I bet with tanqtonic that Trump would not nominate another acceptable-to-conservatives SCOTUS justice if he got the chance, and I am happy to be proven wrong. Kavanaugh has been endorsed this morning by editorials in both National Review and the WSJ, and that was our agreed-upon measuring stick. Tanq, PM me regarding your beer winnings!

I did not think Trump would go back to the Federalist Society/Heritage Foundation "list" for a second justice; I thought that campaign promise would at best only be honored a maximum of once, since it was reportedly almost broken out of the gate. And I still don't have a lot of confidence that he'd use it again if the opportunity arose (say, if Kavanaugh fails, or for any new opening on his watch), but I guess what distrustful conservatives like me have in our favor, ironically, is the *lack* of ideology in this self-proclaimed smartest president ever. I think he enjoys more than anything wielding the power and trappings of the office, but oddly enough this particular lever -- one of the most powerful at a president's disposal -- just is not one that interests him personally; else why would he outsource it? I guess it also helps that he is not a lawyer and former law professor like his last two Democratic predecessors, both of whom most certainly lusted after the chance to reshape the Court to their ideological preference. Trump certainly has his lusts, but they aren't ideological, and that, ironically, has turned out to be the key to getting unassailably conservative justices on the bench.

Take this with a grain of salt, but I saw rumblings this morning that the pick was made weeks ago, prior to Kennedy's retirement. That Kennedy was basically guaranteed that his former clerk would be selected, should he retire. And that this guarantee, made Kennedy comfortable enough to retire.

I imagine Trump would have been happy enough to, even if the pick wasn't truly his own, tie his name to the selection of a seat that potentially remolds the court in a more conservative way for decades to come.

(07-10-2018 09:57 AM)RiceLad15 Wrote:  

(07-10-2018 09:16 AM)illiniowl Wrote:  It's not often that I am happy to lose a bet but after Gorsuch, I bet with tanqtonic that Trump would not nominate another acceptable-to-conservatives SCOTUS justice if he got the chance, and I am happy to be proven wrong. Kavanaugh has been endorsed this morning by editorials in both National Review and the WSJ, and that was our agreed-upon measuring stick. Tanq, PM me regarding your beer winnings!

I did not think Trump would go back to the Federalist Society/Heritage Foundation "list" for a second justice; I thought that campaign promise would at best only be honored a maximum of once, since it was reportedly almost broken out of the gate. And I still don't have a lot of confidence that he'd use it again if the opportunity arose (say, if Kavanaugh fails, or for any new opening on his watch), but I guess what distrustful conservatives like me have in our favor, ironically, is the *lack* of ideology in this self-proclaimed smartest president ever. I think he enjoys more than anything wielding the power and trappings of the office, but oddly enough this particular lever -- one of the most powerful at a president's disposal -- just is not one that interests him personally; else why would he outsource it? I guess it also helps that he is not a lawyer and former law professor like his last two Democratic predecessors, both of whom most certainly lusted after the chance to reshape the Court to their ideological preference. Trump certainly has his lusts, but they aren't ideological, and that, ironically, has turned out to be the key to getting unassailably conservative justices on the bench.

Take this with a grain of salt, but I saw rumblings this morning that the pick was made weeks ago, prior to Kennedy's retirement. That Kennedy was basically guaranteed that his former clerk would be selected, should he retire. And that this guarantee, made Kennedy comfortable enough to retire.

I imagine Trump would have been happy enough to, even if the pick wasn't truly his own, tie his name to the selection of a seat that potentially remolds the court in a more conservative way for decades to come.

"Decades to come" may be as short as two years. I know the Democrats are interested in putting a far left liberal in the WH in 2020. Some of the more conservative justices are in their 70's. Do the math.

The liberal angst is way overblown. Even if RVW is reversed, the issue will just then become a matter for the states, and we will in short order have 35-50 states with abortion laws. So all this wailing about losing rights and the end to democracy is just greek theatre.

(07-10-2018 10:10 AM)OptimisticOwl Wrote:  

(07-10-2018 09:57 AM)RiceLad15 Wrote:  

(07-10-2018 09:16 AM)illiniowl Wrote:  It's not often that I am happy to lose a bet but after Gorsuch, I bet with tanqtonic that Trump would not nominate another acceptable-to-conservatives SCOTUS justice if he got the chance, and I am happy to be proven wrong. Kavanaugh has been endorsed this morning by editorials in both National Review and the WSJ, and that was our agreed-upon measuring stick. Tanq, PM me regarding your beer winnings!

I did not think Trump would go back to the Federalist Society/Heritage Foundation "list" for a second justice; I thought that campaign promise would at best only be honored a maximum of once, since it was reportedly almost broken out of the gate. And I still don't have a lot of confidence that he'd use it again if the opportunity arose (say, if Kavanaugh fails, or for any new opening on his watch), but I guess what distrustful conservatives like me have in our favor, ironically, is the *lack* of ideology in this self-proclaimed smartest president ever. I think he enjoys more than anything wielding the power and trappings of the office, but oddly enough this particular lever -- one of the most powerful at a president's disposal -- just is not one that interests him personally; else why would he outsource it? I guess it also helps that he is not a lawyer and former law professor like his last two Democratic predecessors, both of whom most certainly lusted after the chance to reshape the Court to their ideological preference. Trump certainly has his lusts, but they aren't ideological, and that, ironically, has turned out to be the key to getting unassailably conservative justices on the bench.

Take this with a grain of salt, but I saw rumblings this morning that the pick was made weeks ago, prior to Kennedy's retirement. That Kennedy was basically guaranteed that his former clerk would be selected, should he retire. And that this guarantee, made Kennedy comfortable enough to retire.

I imagine Trump would have been happy enough to, even if the pick wasn't truly his own, tie his name to the selection of a seat that potentially remolds the court in a more conservative way for decades to come.

"Decades to come" may be as short as two years. I know the Democrats are interested in putting a far left liberal in the WH in 2020. Some of the more conservative justices are in their 70's. Do the math.

The liberal angst is way overblown. Even if RVW is reversed, the issue will just then become a matter for the states, and we will in short order have 35-50 states with abortion laws. So all this wailing about losing rights and the end to democracy is just greek theatre.

OO, you may want to do the math yourself...

One of the more conservative justices is in their 70s. Thomas is the oldest conservative Justice at 70 years old (born in June '48). Alito is 68 (April '50) and then Roberts is 63 (Jan 55). Breyer and Ginsburg are both older that Thomas, and 80 and 85, respectively. Kennedy has been someone who has swung back and forth over the years and was not a reliable vote for either block of the Court - he is now being replaced by someone who appears to be a reliably conservative voice.

So, we now have 4 reliably conservative Justices under the age of 70, and one at 70. Kennedy is retiring at 82, and I don't think it's a stretch to assume that Thomas has another 10 years in him (to 80), which is a decade with a 5 conservative block.

The only way for a liberal president to change that, is if one of the conservative justices retires early, which likely won't happen, or if Roberts decides to start toeing the ideological divide. If a liberal president follows Trump and gets to replace any Justices, they'll likely get to replace Ginsburg and Breyer, but that won't reshape how the Court leans at all, because you'll still have the conservative block of 5 voters.

And if Thomas does hang on for 10 more years, that's about into the first term of a new POTUS, that may come on the heals of a Democrat's term, or in other words, a likely Republican term (since POTUS often switches parties on an 8-yr basis). That means he would be getting replaced with a conservative voice.

I mean, do you disagree that the selection of Kavanaugh is not one that pushes the Court in the conservative direction? This is purely an observation, not a critique, IMO.

(07-10-2018 09:57 AM)RiceLad15 Wrote:  

(07-10-2018 09:16 AM)illiniowl Wrote:  It's not often that I am happy to lose a bet but after Gorsuch, I bet with tanqtonic that Trump would not nominate another acceptable-to-conservatives SCOTUS justice if he got the chance, and I am happy to be proven wrong. Kavanaugh has been endorsed this morning by editorials in both National Review and the WSJ, and that was our agreed-upon measuring stick. Tanq, PM me regarding your beer winnings!

I did not think Trump would go back to the Federalist Society/Heritage Foundation "list" for a second justice; I thought that campaign promise would at best only be honored a maximum of once, since it was reportedly almost broken out of the gate. And I still don't have a lot of confidence that he'd use it again if the opportunity arose (say, if Kavanaugh fails, or for any new opening on his watch), but I guess what distrustful conservatives like me have in our favor, ironically, is the *lack* of ideology in this self-proclaimed smartest president ever. I think he enjoys more than anything wielding the power and trappings of the office, but oddly enough this particular lever -- one of the most powerful at a president's disposal -- just is not one that interests him personally; else why would he outsource it? I guess it also helps that he is not a lawyer and former law professor like his last two Democratic predecessors, both of whom most certainly lusted after the chance to reshape the Court to their ideological preference. Trump certainly has his lusts, but they aren't ideological, and that, ironically, has turned out to be the key to getting unassailably conservative justices on the bench.

Take this with a grain of salt, but I saw rumblings this morning that the pick was made weeks ago, prior to Kennedy's retirement. That Kennedy was basically guaranteed that his former clerk would be selected, should he retire. And that this guarantee, made Kennedy comfortable enough to retire.

I imagine Trump would have been happy enough to, even if the pick wasn't truly his own, tie his name to the selection of a seat that potentially remolds the court in a more conservative way for decades to come.

Meh, I'm not saying Kennedy was completely apolitical in his decision (obviously he retired with a Republican president in charge and in a nonpresidential election year) but he strikes me as having too much respect for the separation of powers and the dignity of his office as co-head of a coequal branch to basically try and arrogate to himself the selection of his replacement. Besides, any such "promise" from Trump would have been completely unenforceable and worthless.

I will give Trump this: He has consistently said he wants to appoint judges who will uphold the Constitution. The question in my mind, though, has always been whether that's really his "philosophy" -- given that the man espousing it is likely the most nonphilosophical man to ever hold this office, certainly in modern times -- or whether it was a cynically calibrated dog whistle to the right (and many moderates) to entice their votes but that would then turn out to mean something quite different in practice. After all, I'm sure Obama, Clinton, et al. could easily say (and probably did many times) that they, too, wanted judges who would uphold the Constitution . . . meaning of course the "living Constitution," as interpreted by "wise Latinas" and such.

(07-10-2018 11:36 AM)illiniowl Wrote:  

(07-10-2018 09:57 AM)RiceLad15 Wrote:  

(07-10-2018 09:16 AM)illiniowl Wrote:  It's not often that I am happy to lose a bet but after Gorsuch, I bet with tanqtonic that Trump would not nominate another acceptable-to-conservatives SCOTUS justice if he got the chance, and I am happy to be proven wrong. Kavanaugh has been endorsed this morning by editorials in both National Review and the WSJ, and that was our agreed-upon measuring stick. Tanq, PM me regarding your beer winnings!

I did not think Trump would go back to the Federalist Society/Heritage Foundation "list" for a second justice; I thought that campaign promise would at best only be honored a maximum of once, since it was reportedly almost broken out of the gate. And I still don't have a lot of confidence that he'd use it again if the opportunity arose (say, if Kavanaugh fails, or for any new opening on his watch), but I guess what distrustful conservatives like me have in our favor, ironically, is the *lack* of ideology in this self-proclaimed smartest president ever. I think he enjoys more than anything wielding the power and trappings of the office, but oddly enough this particular lever -- one of the most powerful at a president's disposal -- just is not one that interests him personally; else why would he outsource it? I guess it also helps that he is not a lawyer and former law professor like his last two Democratic predecessors, both of whom most certainly lusted after the chance to reshape the Court to their ideological preference. Trump certainly has his lusts, but they aren't ideological, and that, ironically, has turned out to be the key to getting unassailably conservative justices on the bench.

Take this with a grain of salt, but I saw rumblings this morning that the pick was made weeks ago, prior to Kennedy's retirement. That Kennedy was basically guaranteed that his former clerk would be selected, should he retire. And that this guarantee, made Kennedy comfortable enough to retire.

I imagine Trump would have been happy enough to, even if the pick wasn't truly his own, tie his name to the selection of a seat that potentially remolds the court in a more conservative way for decades to come.

Meh, I'm not saying Kennedy was completely apolitical in his decision (obviously he retired with a Republican president in charge and in a nonpresidential election year) but he strikes me as having too much respect for the separation of powers and the dignity of his office as co-head of a coequal branch to basically try and arrogate to himself the selection of his replacement. Besides, any such "promise" from Trump would have been completely unenforceable and worthless.

I will give Trump this: He has consistently said he wants to appoint judges who will uphold the Constitution. The question in my mind, though, has always been whether that's really his "philosophy" -- given that the man espousing it is likely the most nonphilosophical man to ever hold this office, certainly in modern times -- or whether it was a cynically calibrated dog whistle to the right (and many moderates) to entice their votes but that would then turn out to mean something quite different in practice. After all, I'm sure Obama, Clinton, et al. could easily say (and probably did many times) that they, too, wanted judges who would uphold the Constitution . . . meaning of course the "living Constitution," as interpreted by "wise Latinas" and such.

Obviously I think it's much more of a dog whistle than a coherent philosophy. Both in his campaign and presidency, Trump seems to have a limited understanding of the fundamental slowness of our democracy that is basically due our separation of powers, and regularly pines for the kind of powers that strong men and dictators have. The only core "philosophy" that Trump appears to have, is on trade - which he has been preaching for years and years and years.

The cynic in me thinks that Kavanaugh's writings on how POTUS's should not be able to be indicted while in office weighted on Trump's mind. That does seem more plausible than Kennedy stepping down to get his heir into the Court.

(07-10-2018 11:01 AM)RiceLad15 Wrote:  I mean, do you disagree that the selection of Kavanaugh is not one that pushes the Court in the conservative direction? This is purely an observation, not a critique, IMO.

Kavanaugh is 53 right?

Kagan was 50 or so when nominated, replacing a judge nominated by Republican Gerald Ford... who replaced a judge nominated at only age 40
Sotomayor was 54 or so when nominated, replacing a judge nominated by George Bush who retired at around 60... arguably could have hung around for 2+ more decades.

Didn't they similarly push the court in a liberal direction? Not a critique either. I think the whole idea is that these things have a way of evening themselves out over time, especially given the confirmation process. Had Hillary won, the court would have clearly moved left since scalia was being replaced.... would that have been a 'good' thing and if so, why? Not saying you said that... just noting that 'this is what happens' in a democracy. Elections have consequences. The fact that this guy clerked for Kennedy should give the left a tiny bit of comfort. Obviously he's not 'left', but he's likely not a Scalia either. He's probably a lot closer to Kennedy than many on the right would want.

(07-10-2018 12:56 PM)Hambone10 Wrote:  

(07-10-2018 11:01 AM)RiceLad15 Wrote:  I mean, do you disagree that the selection of Kavanaugh is not one that pushes the Court in the conservative direction? This is purely an observation, not a critique, IMO.

Kavanaugh is 53 right?

Kagan was 50 or so when nominated, replacing a judge nominated by Republican Gerald Ford... who replaced a judge nominated at only age 40
Sotomayor was 54 or so when nominated, replacing a judge nominated by George Bush who retired at around 60... arguably could have hung around for 2+ more decades.

Didn't they similarly push the court in a liberal direction? Not a critique either. I think the whole idea is that these things have a way of evening themselves out over time, especially given the confirmation process. Had Hillary won, the court would have clearly moved left since scalia was being replaced.... would that have been a 'good' thing and if so, why? Not saying you said that... just noting that 'this is what happens' in a democracy. Elections have consequences. The fact that this guy clerked for Kennedy should give the left a tiny bit of comfort. Obviously he's not 'left', but he's likely not a Scalia either. He's probably a lot closer to Kennedy than many on the right would want.

Yep, those selections sure did. And that's why I'm not sure why I got push back on stating that this nomination did the opposite...

I think this nomination will be particularly contentious due to what occurred with regards to Scalia's replacement. The statement you made about if Hillary had won shouldn't even be something we discuss - that seat was meant to be filled by Obama, and sat vacant for 422 days. Dems look to be growing a back bone and will likely fulfill the role OO sees them as playing in everything (The Resistance). There are hundreds of thousands of emails that Kavanaugh sent during his time in the W White House, and it's looking like they'll be pored over during confirmation.

And I keep seeing different takes on Kavanaugh's stance - some suggest he'll be almost as conservative as Thomas and Scalia-like in regards to how he interprets the text, while others think he may hedge closer to the middle. Will be interesting to see.

(07-10-2018 12:09 PM)RiceLad15 Wrote:  

(07-10-2018 11:36 AM)illiniowl Wrote:  

(07-10-2018 09:57 AM)RiceLad15 Wrote:  

(07-10-2018 09:16 AM)illiniowl Wrote:  It's not often that I am happy to lose a bet but after Gorsuch, I bet with tanqtonic that Trump would not nominate another acceptable-to-conservatives SCOTUS justice if he got the chance, and I am happy to be proven wrong. Kavanaugh has been endorsed this morning by editorials in both National Review and the WSJ, and that was our agreed-upon measuring stick. Tanq, PM me regarding your beer winnings!

I did not think Trump would go back to the Federalist Society/Heritage Foundation "list" for a second justice; I thought that campaign promise would at best only be honored a maximum of once, since it was reportedly almost broken out of the gate. And I still don't have a lot of confidence that he'd use it again if the opportunity arose (say, if Kavanaugh fails, or for any new opening on his watch), but I guess what distrustful conservatives like me have in our favor, ironically, is the *lack* of ideology in this self-proclaimed smartest president ever. I think he enjoys more than anything wielding the power and trappings of the office, but oddly enough this particular lever -- one of the most powerful at a president's disposal -- just is not one that interests him personally; else why would he outsource it? I guess it also helps that he is not a lawyer and former law professor like his last two Democratic predecessors, both of whom most certainly lusted after the chance to reshape the Court to their ideological preference. Trump certainly has his lusts, but they aren't ideological, and that, ironically, has turned out to be the key to getting unassailably conservative justices on the bench.

Take this with a grain of salt, but I saw rumblings this morning that the pick was made weeks ago, prior to Kennedy's retirement. That Kennedy was basically guaranteed that his former clerk would be selected, should he retire. And that this guarantee, made Kennedy comfortable enough to retire.

I imagine Trump would have been happy enough to, even if the pick wasn't truly his own, tie his name to the selection of a seat that potentially remolds the court in a more conservative way for decades to come.

Meh, I'm not saying Kennedy was completely apolitical in his decision (obviously he retired with a Republican president in charge and in a nonpresidential election year) but he strikes me as having too much respect for the separation of powers and the dignity of his office as co-head of a coequal branch to basically try and arrogate to himself the selection of his replacement. Besides, any such "promise" from Trump would have been completely unenforceable and worthless.

I will give Trump this: He has consistently said he wants to appoint judges who will uphold the Constitution. The question in my mind, though, has always been whether that's really his "philosophy" -- given that the man espousing it is likely the most nonphilosophical man to ever hold this office, certainly in modern times -- or whether it was a cynically calibrated dog whistle to the right (and many moderates) to entice their votes but that would then turn out to mean something quite different in practice. After all, I'm sure Obama, Clinton, et al. could easily say (and probably did many times) that they, too, wanted judges who would uphold the Constitution . . . meaning of course the "living Constitution," as interpreted by "wise Latinas" and such.

Obviously I think it's much more of a dog whistle than a coherent philosophy. Both in his campaign and presidency, Trump seems to have a limited understanding of the fundamental slowness of our democracy that is basically due our separation of powers, and regularly pines for the kind of powers that strong men and dictators have. The only core "philosophy" that Trump appears to have, is on trade - which he has been preaching for years and years and years.

The cynic in me thinks that Kavanaugh's writings on how POTUS's should not be able to be indicted while in office weighted on Trump's mind. That does seem more plausible than Kennedy stepping down to get his heir into the Court.

Lad,

the true power of the Executive lies in the shaping of the Administrative agenda, not in 'passing laws'. The Chevron Doctrine as practiced in the Federal courts has only magnified that power.

If you want to point to another chief executive who not only 'pined for the powers' of a strongman, but fundamentally exercised them as such one only need look back at the Obama Administration. DACA, DAPA, AFFH, rulemaking and non-rule 'directives' under Title IX (see the 'Dear colleague' letters as for the scope), unilaterally rewriting Obamacare to fund, unilaterally handing out exemptions for AHA like cotton candy to a bunch of greedy carnival kids, and literally a score of other administrative 'programs' were initiated under Obama that fundamentally changed practices not through legislation but through agency fiat or executive order fiat that made agency fiat.

Your paean to the Trump just wanting to be a strongman just doesnt ring true with me considering the scope and depth of Obama administrative 'coups', and the reality of the administrative power of the Executive branch of the Federal government.

With all respect, look at the current hot-button issues with appellate court judges and SCOTUS justices and you *will* see lots of references to Chevron Doctrine and the impact that has had in the stupendous growth of Executive power overall since it has been deigned the law of the land. And to be blunt, the Obama administration was master at using that doctrine to its fullest in terms of agency perogative, purpose, and action.

(07-10-2018 09:16 AM)illiniowl Wrote:  It's not often that I am happy to lose a bet but after Gorsuch, I bet with tanqtonic that Trump would not nominate another acceptable-to-conservatives SCOTUS justice if he got the chance, and I am happy to be proven wrong. Kavanaugh has been endorsed this morning by editorials in both National Review and the WSJ, and that was our agreed-upon measuring stick. Tanq, PM me regarding your beer winnings!

I did not think Trump would go back to the Federalist Society/Heritage Foundation "list" for a second justice; I thought that campaign promise would at best only be honored a maximum of once, since it was reportedly almost broken out of the gate. And I still don't have a lot of confidence that he'd use it again if the opportunity arose (say, if Kavanaugh fails, or for any new opening on his watch), but I guess what distrustful conservatives like me have in our favor, ironically, is the *lack* of ideology in this self-proclaimed smartest president ever. I think he enjoys more than anything wielding the power and trappings of the office, but oddly enough this particular lever -- one of the most powerful at a president's disposal -- just is not one that interests him personally; else why would he outsource it? I guess it also helps that he is not a lawyer and former law professor like his last two Democratic predecessors, both of whom most certainly lusted after the chance to reshape the Court to their ideological preference. Trump certainly has his lusts, but they aren't ideological, and that, ironically, has turned out to be the key to getting unassailably conservative justices on the bench.

I think he has outsourced much of that functionality due to his sister and to his sister. She has rather deep ties to the Federalist society and Heritage, iirc.

(07-10-2018 02:03 PM)RiceLad15 Wrote:  

(07-10-2018 12:56 PM)Hambone10 Wrote:  

(07-10-2018 11:01 AM)RiceLad15 Wrote:  I mean, do you disagree that the selection of Kavanaugh is not one that pushes the Court in the conservative direction? This is purely an observation, not a critique, IMO.

Kavanaugh is 53 right?

Kagan was 50 or so when nominated, replacing a judge nominated by Republican Gerald Ford... who replaced a judge nominated at only age 40
Sotomayor was 54 or so when nominated, replacing a judge nominated by George Bush who retired at around 60... arguably could have hung around for 2+ more decades.

Didn't they similarly push the court in a liberal direction? Not a critique either. I think the whole idea is that these things have a way of evening themselves out over time, especially given the confirmation process. Had Hillary won, the court would have clearly moved left since scalia was being replaced.... would that have been a 'good' thing and if so, why? Not saying you said that... just noting that 'this is what happens' in a democracy. Elections have consequences. The fact that this guy clerked for Kennedy should give the left a tiny bit of comfort. Obviously he's not 'left', but he's likely not a Scalia either. He's probably a lot closer to Kennedy than many on the right would want.

Yep, those selections sure did. And that's why I'm not sure why I got push back on stating that this nomination did the opposite...

I think this nomination will be particularly contentious due to what occurred with regards to Scalia's replacement. The statement you made about if Hillary had won shouldn't even be something we discuss - that seat was meant to be filled by Obama, and sat vacant for 422 days. Dems look to be growing a back bone and will likely fulfill the role OO sees them as playing in everything (The Resistance). There are hundreds of thousands of emails that Kavanaugh sent during his time in the W White House, and it's looking like they'll be pored over during confirmation.

And I keep seeing different takes on Kavanaugh's stance - some suggest he'll be almost as conservative as Thomas and Scalia-like in regards to how he interprets the text, while others think he may hedge closer to the middle. Will be interesting to see.

Funny how Scalia is wrapped in a whole cloth of 'conservative'. He was very much the antithesis of that in many areas and in the outcome of many opinions that he wrote and joined.

He was undoubtedly the 'textualist' rock on the Court; and that textualism led his vote to be unabashedly 'liberal' in terms of 1st amendment and 4th amendment cases in their outcome.

His opinions, to be blunt, were never paeans to outcome (like Sotomayors recent screed in Janus where her sole 'legal' point is that public unions will lose a big source of income), and almost always paeans to the written law and Constitution.

The best quote ever, and one which can sum his philosophy up in one paragraph, came an interview with New York Magazine in 2013:

Quote:Q: Flogging?
A: And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT ­CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT ­CONSTITUTIONAL! Whack! ­STUPID BUT ­CONSTITUTIONAL … [Laughs.] And then somebody sent me one.

http://nymag.com/news/features/antonin-scalia-2013-10/

(07-10-2018 02:33 PM)tanqtonic Wrote:  

(07-10-2018 12:09 PM)RiceLad15 Wrote:  

(07-10-2018 11:36 AM)illiniowl Wrote:  

(07-10-2018 09:57 AM)RiceLad15 Wrote:  

(07-10-2018 09:16 AM)illiniowl Wrote:  It's not often that I am happy to lose a bet but after Gorsuch, I bet with tanqtonic that Trump would not nominate another acceptable-to-conservatives SCOTUS justice if he got the chance, and I am happy to be proven wrong. Kavanaugh has been endorsed this morning by editorials in both National Review and the WSJ, and that was our agreed-upon measuring stick. Tanq, PM me regarding your beer winnings!

I did not think Trump would go back to the Federalist Society/Heritage Foundation "list" for a second justice; I thought that campaign promise would at best only be honored a maximum of once, since it was reportedly almost broken out of the gate. And I still don't have a lot of confidence that he'd use it again if the opportunity arose (say, if Kavanaugh fails, or for any new opening on his watch), but I guess what distrustful conservatives like me have in our favor, ironically, is the *lack* of ideology in this self-proclaimed smartest president ever. I think he enjoys more than anything wielding the power and trappings of the office, but oddly enough this particular lever -- one of the most powerful at a president's disposal -- just is not one that interests him personally; else why would he outsource it? I guess it also helps that he is not a lawyer and former law professor like his last two Democratic predecessors, both of whom most certainly lusted after the chance to reshape the Court to their ideological preference. Trump certainly has his lusts, but they aren't ideological, and that, ironically, has turned out to be the key to getting unassailably conservative justices on the bench.

Take this with a grain of salt, but I saw rumblings this morning that the pick was made weeks ago, prior to Kennedy's retirement. That Kennedy was basically guaranteed that his former clerk would be selected, should he retire. And that this guarantee, made Kennedy comfortable enough to retire.

I imagine Trump would have been happy enough to, even if the pick wasn't truly his own, tie his name to the selection of a seat that potentially remolds the court in a more conservative way for decades to come.

Meh, I'm not saying Kennedy was completely apolitical in his decision (obviously he retired with a Republican president in charge and in a nonpresidential election year) but he strikes me as having too much respect for the separation of powers and the dignity of his office as co-head of a coequal branch to basically try and arrogate to himself the selection of his replacement. Besides, any such "promise" from Trump would have been completely unenforceable and worthless.

I will give Trump this: He has consistently said he wants to appoint judges who will uphold the Constitution. The question in my mind, though, has always been whether that's really his "philosophy" -- given that the man espousing it is likely the most nonphilosophical man to ever hold this office, certainly in modern times -- or whether it was a cynically calibrated dog whistle to the right (and many moderates) to entice their votes but that would then turn out to mean something quite different in practice. After all, I'm sure Obama, Clinton, et al. could easily say (and probably did many times) that they, too, wanted judges who would uphold the Constitution . . . meaning of course the "living Constitution," as interpreted by "wise Latinas" and such.

Obviously I think it's much more of a dog whistle than a coherent philosophy. Both in his campaign and presidency, Trump seems to have a limited understanding of the fundamental slowness of our democracy that is basically due our separation of powers, and regularly pines for the kind of powers that strong men and dictators have. The only core "philosophy" that Trump appears to have, is on trade - which he has been preaching for years and years and years.

The cynic in me thinks that Kavanaugh's writings on how POTUS's should not be able to be indicted while in office weighted on Trump's mind. That does seem more plausible than Kennedy stepping down to get his heir into the Court.

Lad,

the true power of the Executive lies in the shaping of the Administrative agenda, not in 'passing laws'. The Chevron Doctrine as practiced in the Federal courts has only magnified that power.

If you want to point to another chief executive who not only 'pined for the powers' of a strongman, but fundamentally exercised them as such one only need look back at the Obama Administration. DACA, DAPA, AFFH, rulemaking and non-rule 'directives' under Title IX (see the 'Dear colleague' letters as for the scope), unilaterally rewriting Obamacare to fund, unilaterally handing out exemptions for AHA like cotton candy to a bunch of greedy carnival kids, and literally a score of other administrative 'programs' were initiated under Obama that fundamentally changed practices not through legislation but through agency fiat or executive order fiat that made agency fiat.

Your paean to the Trump just wanting to be a strongman just doesnt ring true with me considering the scope and depth of Obama administrative 'coups', and the reality of the administrative power of the Executive branch of the Federal government.

With all respect, look at the current hot-button issues with appellate court judges and SCOTUS justices and you *will* see lots of references to Chevron Doctrine and the impact that has had in the stupendous growth of Executive power overall since it has been deigned the law of the land. And to be blunt, the Obama administration was master at using that doctrine to its fullest in terms of agency perogative, purpose, and action.

I don't at all see how Obama's use of the executive power has any bearing on, or relation to, Trump's desire to be a strongman. Perhaps there is a relation if I was trying to make a comparison between the two, but I wasn't. I've said before that Obama used the executive power too much - it became a crutch for him when he could not work with Congress to pass legislation.

But looking just at what Trump has said in the past, it's clear that he really doesn't understand the limits of his power, and wishes there were less. During his debates with Clinton, he regularly asked her why she didn't get things done in Congress, without realizing that she was one of 100 senators in the Senate - hardly a person who could just will change into place.

Trump has routinely praised strongmen for their actions in their home countries, and even congratulated Xi on being made president for life, stating "And look, he was able to do that. I think it’s great. Maybe we’ll give that a shot some day." Most importantly, he fails to criticize these people when they abuse their power - llike Duterte and his murderous campaign again drug dealers.

Trump has routinely talked about getting rid of the fillibuster so that legislation can be passed, and as good as it would be to get Congress working again, it's clear that the nuclear option was an awful idea for the Dems when they used it for judge positions.

Trump has suggested that Congress give him line-item veto powers.

(07-10-2018 02:56 PM)tanqtonic Wrote:  

(07-10-2018 02:03 PM)RiceLad15 Wrote:  

(07-10-2018 12:56 PM)Hambone10 Wrote:  

(07-10-2018 11:01 AM)RiceLad15 Wrote:  I mean, do you disagree that the selection of Kavanaugh is not one that pushes the Court in the conservative direction? This is purely an observation, not a critique, IMO.

Kavanaugh is 53 right?

Kagan was 50 or so when nominated, replacing a judge nominated by Republican Gerald Ford... who replaced a judge nominated at only age 40
Sotomayor was 54 or so when nominated, replacing a judge nominated by George Bush who retired at around 60... arguably could have hung around for 2+ more decades.

Didn't they similarly push the court in a liberal direction? Not a critique either. I think the whole idea is that these things have a way of evening themselves out over time, especially given the confirmation process. Had Hillary won, the court would have clearly moved left since scalia was being replaced.... would that have been a 'good' thing and if so, why? Not saying you said that... just noting that 'this is what happens' in a democracy. Elections have consequences. The fact that this guy clerked for Kennedy should give the left a tiny bit of comfort. Obviously he's not 'left', but he's likely not a Scalia either. He's probably a lot closer to Kennedy than many on the right would want.

Yep, those selections sure did. And that's why I'm not sure why I got push back on stating that this nomination did the opposite...

I think this nomination will be particularly contentious due to what occurred with regards to Scalia's replacement. The statement you made about if Hillary had won shouldn't even be something we discuss - that seat was meant to be filled by Obama, and sat vacant for 422 days. Dems look to be growing a back bone and will likely fulfill the role OO sees them as playing in everything (The Resistance). There are hundreds of thousands of emails that Kavanaugh sent during his time in the W White House, and it's looking like they'll be pored over during confirmation.

And I keep seeing different takes on Kavanaugh's stance - some suggest he'll be almost as conservative as Thomas and Scalia-like in regards to how he interprets the text, while others think he may hedge closer to the middle. Will be interesting to see.

Funny how Scalia is wrapped in a whole cloth of 'conservative'. He was very much the antithesis of that in many areas and in the outcome of many opinions that he wrote and joined.

He was undoubtedly the 'textualist' rock on the Court; and that textualism led his vote to be unabashedly 'liberal' in terms of 1st amendment and 4th amendment cases in their outcome.

His opinions, to be blunt, were never paeans to outcome (like Sotomayors recent screed in Janus where her sole 'legal' point is that public unions will lose a big source of income), and almost always paeans to the written law and Constitution.

The best quote ever, and one which can sum his philosophy up in one paragraph, came an interview with New York Magazine in 2013:

Quote:Q: Flogging?
A: And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT ­CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT ­CONSTITUTIONAL! Whack! ­STUPID BUT ­CONSTITUTIONAL … [Laughs.] And then somebody sent me one.

http://nymag.com/news/features/antonin-scalia-2013-10/

I don't think it's funny that someone who subscribes to conserving the original meaning of a text ends up being labeled as a conservative, when people discuss whether or not they are a liberal or a conservative judge. Inherently, isn't being a textualist almost the epitome of being a conservative Supreme Court Justice?

I do wonder, when looking at the more politicized cases, how often did Scalia fall in line with the more liberal judges, versus the more conservative judges?

To the extent Trump wishes aloud for more unchecked power, well, I think his ego is such that he believes that he, more than anyone alive, knows what's best for the country. Obama, however, had the same self-regard, and was only marginally more circumspect about it. Really, what president has ever fundamentally thought differently? Not Clinton . . . nor Reagan . . . Nixon . . . LBJ . . . JFK . . . FDR . . . Wilson (probably the worst offender on this list in terms of actually *fulfilling* and *exercising* his power wishes) . . . TR . . . Lincoln . . .

(07-10-2018 11:01 AM)RiceLad15 Wrote:  

(07-10-2018 10:10 AM)OptimisticOwl Wrote:  

(07-10-2018 09:57 AM)RiceLad15 Wrote:  

(07-10-2018 09:16 AM)illiniowl Wrote:  It's not often that I am happy to lose a bet but after Gorsuch, I bet with tanqtonic that Trump would not nominate another acceptable-to-conservatives SCOTUS justice if he got the chance, and I am happy to be proven wrong. Kavanaugh has been endorsed this morning by editorials in both National Review and the WSJ, and that was our agreed-upon measuring stick. Tanq, PM me regarding your beer winnings!

I did not think Trump would go back to the Federalist Society/Heritage Foundation "list" for a second justice; I thought that campaign promise would at best only be honored a maximum of once, since it was reportedly almost broken out of the gate. And I still don't have a lot of confidence that he'd use it again if the opportunity arose (say, if Kavanaugh fails, or for any new opening on his watch), but I guess what distrustful conservatives like me have in our favor, ironically, is the *lack* of ideology in this self-proclaimed smartest president ever. I think he enjoys more than anything wielding the power and trappings of the office, but oddly enough this particular lever -- one of the most powerful at a president's disposal -- just is not one that interests him personally; else why would he outsource it? I guess it also helps that he is not a lawyer and former law professor like his last two Democratic predecessors, both of whom most certainly lusted after the chance to reshape the Court to their ideological preference. Trump certainly has his lusts, but they aren't ideological, and that, ironically, has turned out to be the key to getting unassailably conservative justices on the bench.

Take this with a grain of salt, but I saw rumblings this morning that the pick was made weeks ago, prior to Kennedy's retirement. That Kennedy was basically guaranteed that his former clerk would be selected, should he retire. And that this guarantee, made Kennedy comfortable enough to retire.

I imagine Trump would have been happy enough to, even if the pick wasn't truly his own, tie his name to the selection of a seat that potentially remolds the court in a more conservative way for decades to come.

"Decades to come" may be as short as two years. I know the Democrats are interested in putting a far left liberal in the WH in 2020. Some of the more conservative justices are in their 70's. Do the math.

The liberal angst is way overblown. Even if RVW is reversed, the issue will just then become a matter for the states, and we will in short order have 35-50 states with abortion laws. So all this wailing about losing rights and the end to democracy is just greek theatre.

OO, you may want to do the math yourself...

One of the more conservative justices is in their 70s. Thomas is the oldest conservative Justice at 70 years old (born in June '48). Alito is 68 (April '50) and then Roberts is 63 (Jan 55). Breyer and Ginsburg are both older that Thomas, and 80 and 85, respectively. Kennedy has been someone who has swung back and forth over the years and was not a reliable vote for either block of the Court - he is now being replaced by someone who appears to be a reliably conservative voice.

So, we now have 4 reliably conservative Justices under the age of 70, and one at 70. Kennedy is retiring at 82, and I don't think it's a stretch to assume that Thomas has another 10 years in him (to 80), which is a decade with a 5 conservative block.

The only way for a liberal president to change that, is if one of the conservative justices retires early, which likely won't happen, or if Roberts decides to start toeing the ideological divide. If a liberal president follows Trump and gets to replace any Justices, they'll likely get to replace Ginsburg and Breyer, but that won't reshape how the Court leans at all, because you'll still have the conservative block of 5 voters.

And if Thomas does hang on for 10 more years, that's about into the first term of a new POTUS, that may come on the heals of a Democrat's term, or in other words, a likely Republican term (since POTUS often switches parties on an 8-yr basis). That means he would be getting replaced with a conservative voice.

I mean, do you disagree that the selection of Kavanaugh is not one that pushes the Court in the conservative direction? This is purely an observation, not a critique, IMO.

I think we cannot and should not assume that every selectee will live a long life and never retire. O'Connor is still alive, for example. None of us choose the length of our lives or the day of its termination. People develop health problems, or have a desire to retire. At 73, I am well aware of this.

Ginsburg may be holding on for 2020. I wouldn't have been surprised to see her retire in the event Hillary had won.

In any case, I think "decades to come" is way overblown. Certainly justices will sit for as long they want and can, but over the next thirty years we will have a lot of turnover, and some will come when Democrats are in power, and also as has been pointed out, a strict textualist will not favorr the right in every case. There will still be a lot of 5-4 decision you guys like.

You may not have liked the politicking that resulted in Gorsuch, but that is exactly what the Dems are trying to do now, delay until hopefully they have a Democrat president and/or a Democratic Senate. Both sides playing by the same rules, what is the problem with that? It was your guy Reid who opened this door.

As for the Resistance, just open your eyes.

https://www.bbc.com/news/world-us-canada-39788317

"I'm now back to being an activist citizen and part of the resistance," - Hillary Clinton

(07-10-2018 03:28 PM)illiniowl Wrote:  To the extent Trump wishes aloud for more unchecked power, well, I think his ego is such that he believes that he, more than anyone alive, knows what's best for the country. Obama, however, had the same self-regard, and was only marginally more circumspect about it. Really, what president has ever fundamentally thought differently? Not Clinton . . . nor Reagan . . . Nixon . . . LBJ . . . JFK . . . FDR . . . Wilson (probably the worst offender on this list in terms of actually *fulfilling* and *exercising* his power wishes) . . . TR . . . Lincoln . . .

Point taken.

Perhaps then, it's just that it's so jarring and disconcerting to hear these wishes made aloud. And because of that, it stays at the forefront of many's minds that he has such fondness of unchecked power.

(07-10-2018 03:44 PM)RiceLad15 Wrote:  Perhaps then, it's just that it's so jarring and disconcerting to hear these wishes made aloud.

What did he say aloud?