Supreme Court of the United States

[metalhead]

In all due respect, it is not in the Constitution - especially a textualist's Constitution. Feel free to correct our so-called obtuseness and ignorance by quoting the relevant text though. If you can't then you may want to look in the mirror next time you start using words like obtuse and ignorant.

Article II, Section 3, the "Making America Great Again" clause. You're probably not aware of it because your copy of the constitution is fake news.

 

[Sommerswerd]

The image is of scales balancing. Ideology is one of the weights. Apolitical should be the ideal.

There's that phrase again... "should be"... The Senate majority is in the best position to make things how they "should be", so maybe the Senate Republicans "should" be the "bigger people" and apologize for their lack of collegiality and partisan politicizing of the SCOTUS... then announce that they are requesting that Garland is reconsidered, and promise to give him a vote. This would be an excellent overture to restoring an apolitical spirit to SCOTUS nominations... It would also be a great opportunity for them to then ask that in return that the Democrats agree that Gorsuch will be first in line for the next opening in the SCOTUS, regardless of the party of the President when the vacancy arises.

That reduces the politicization of the entire process and restores a measure of good faith and collegiality in a way that only the Senate majority can. However, as we both know, this wont happen, because the Court is political and the Republicans would never give up their political advantage in the name of some "apolitical ideal." Bringing that up as a reason Democrats should cave is just rank child psychology, and not the least bit persuasive.

 

[onejayhawk]

So your position is also that the 9th circuit court has overstepped its legal authority in ruling against Trump's executive order?

I did not say that. I said that you have to quote the whole Constitution to prove the lack of empowering language.

J

 

[metalhead]

The whole notion of an apolitical SCOTUS is utterly laughable anyways. It's not like in previous decades Senators said to themselves, "Well we could gain more by voting against these nominees, but we'll vote for them anyways because we want to be nice." The process is simply a reflection of the state of the electorate, and always has been. Decisions to vote for/against nominees, to offer consent or not, have always been based on political considerations. I don't know why people assume that there was some idealized apolitical past, but that seems to be an absurdly naive point of view.

 

[onejayhawk]

There's that phase again... "should be"... The Senate majority is in the best position to make things how they "should be", so maybe the Senate Republicans "should" be the "bigger people" and apologize for their lack of collegiality and partisan politicizing of the SCOTUS... then announce that they are requesting that Garland is reconsidered, and promise to give him a vote. This would be an excellent overture to restoring an apolitical spirit to SCOTUS nominations... It would also be a great opportunity for them to then ask that in return that the Democrats agree that Gorsuch will be first in line for the next opening in the SCOTUS, regardless of the party of the President when the vacancy arises.

That reduces the politicization of the entire process and restores a measure of good faith and collegiality in a way that only the Senate majority can. However, as we both know, this wont happen, because the Court is political and the Republicans would never give up their political advantage in the name of some "apolitical ideal." Bringing that up as a reason Democrats should cave is just rank child psychology, and not the least bit persuasive.

That's funny. Democrats introduced "partisan politicizing" so Republicans should apologize. It's consistent, at least.

The whole notion of an apolitical SCOTUS is utterly laughable anyways. It's not like in previous decades Senators said to themselves, "Well we could gain more by voting against these nominees, but we'll vote for them anyways because we want to be nice." The process is simply a reflection of the state of the electorate, and always has been. Decisions to vote for/against nominees, to offer consent or not, have always been based on political considerations. I don't know why people assume that there was some idealized apolitical past, but that seems to be an absurdly naive point of view.

It did not used to be. That changed in 1987. So, take anything prior to that as your standard.

I am curious, who would you suggest as a bipartisan nominee, ie could be ratified in a Democratic controlled Senate? From where I sit, Gorsuch could have been nominated with hopes of passage in 2007.

J

 

[JollyRoger]

1987? You are aware of Abe Fortas, right?

 

[Sommerswerd]

That's funny. Democrats introduced "partisan politicizing" so Republicans should apologize. It's consistent, at least.

The onus is always on the party in power to be gracious, magnanimous, etc... saying "you started it", is predictably countered with "no you", which of course illicits "no you!", and so on.

So "Democrats started it" is your position... that's fine... the beatings will continue until morale improves.

 

[metalhead]

It did not used to be. That changed in 1987. So, take anything prior to that as your standard.

J

You missed the point entirely. Anything you perceive as "apolitical" previously wasn't. It was every bit the product of political considerations that today's decisions are.

But since you asked, John Rutledge's nomination to the Supreme Court was rejected by the Senate in 1795, because - wait for it - he had previously spoken out against a treaty that both Washington and the Senate approved of, and eventually ratified. Roger Taney was first nominated for a seat by Jackson in 1835, as an F U to the Senate for rejecting him as Treasury Secretary. They effectively tabled his nomination for over a year, until John Marshall died, and then Taney's appointment got re-upped for Chief Justice, and Jackson had enough Democrats to get him confirmed.

How exactly do you sit there and claim the Supreme Court only started to be political in 1987? It has been a political body since the founding.

 

[Agent327]

The Executive branch has the authority for all decisions concerning foreign policy as per the Constitution. A similar "ban" was implemented by President Carter with Iran and with President Obama*. The Judicial branch does not have the Constitutional authority to make rulings on foreign policy. The case should have been thrown out on its legal merits.

The Ninth circuit court basically ruled against due to the Executive Order being vaguely worded with respect to green card holders. A DOJ clarification was written but the Ninth circuit court did not consider that clarification as being part of the Executive Order and it was thus why they ruled the way they did.

Here is a much better explanation http://insider.foxnews.com/2017/02/...suspension-trump-immigration-order-travel-ban

Yes. Instead of tweeting in caps lock the administration should have gone back to the drawing board, so to speak.

*The latter is incorrect. There was no travel ban instituted: there was, however, enhanced screening being enforced in at least 35,000 instances.

 

[Gori the Grey]

I don't know why people assume that there was some idealized apolitical past, but that seems to be an absurdly naive point of view.

Probably because of the stretch, still in living memory, from 1970-90 during which nominees routinely got 89+ votes,.

We're not in that era now, but that doesn't mean it never existed.

 

[metalhead]

Right, but it would be naive to conclude that the conduct and votes of Senators in that era were any less motivated by political considerations than what we see today. And it's downright nutty to think that things having been a certain way from 1970 to 1987 also represents the way things were from 1789-1970, when that is quite clearly not the case.

 

[Zkribbler]

That's funny. Democrats introduced "partisan politicizing" so Republicans should apologize. It's consistent, at least.

Actually, it was the Federalists in 1801, when Adams packed the judiciary with his "midnight judges" on his way out of office...including the appointment of former head of the Federalist party, John Marshall, to be Chief Justice. In Marshall's most celebrated decision Marberry v Madison, he spent the first 95% of it flaying the newly elected party of Jefferson before he concluded that, oops, it was unconstitutional for Congress to give original jurisdiction of the case to the Supreme Court and thus, the Court couldn't rule on the dispute.

 

[Camikaze]

One would have to cite the whole amended Constitution to show something is not in it.

Perhaps you can cite the empowering section.

J

Whereas certain powers in the US Constitution are enumerated, the judicial power to engage in judicial review is not limited to specific heads. It would require an explicit exception to the axiomatic capacity for judicial review for the judiciary to be unable to engage in judicial review in relation to a specific topic.

What might be being referred to is the 'political questions' doctrine. This is not really about a limitation within the US Constitution on the power of the judiciary. It's more about discretionary justiciability (which, frankly, is cop out used by a weak judiciary to avoid their responsibilities under the separation of powers).

 

[onejayhawk]

Whereas certain powers in the US Constitution are enumerated, the judicial power to engage in judicial review is not limited to specific heads. It would require an explicit exception to the axiomatic capacity for judicial review for the judiciary to be unable to engage in judicial review in relation to a specific topic.

What might be being referred to is the 'political questions' doctrine. This is not really about a limitation within the US Constitution on the power of the judiciary. It's more about discretionary justiciability (which, frankly, is cop out used by a weak judiciary to avoid their responsibilities under the separation of powers).

The claim is that there is no specific empowerment. Lexicus took exception and demanded a citation to prove the negative.

You missed the point entirely. Anything you perceive as "apolitical" previously wasn't. It was every bit the product of political considerations that today's decisions are.

But since you asked, John Rutledge's nomination to the Supreme Court was rejected by the Senate in 1795, because - wait for it - he had previously spoken out against a treaty that both Washington and the Senate approved of, and eventually ratified. Roger Taney was first nominated for a seat by Jackson in 1835, as an F U to the Senate for rejecting him as Treasury Secretary. They effectively tabled his nomination for over a year, until John Marshall died, and then Taney's appointment got re-upped for Chief Justice, and Jackson had enough Democrats to get him confirmed.

How exactly do you sit there and claim the Supreme Court only started to be political in 1987? It has been a political body since the founding.

I cite you list evidence in support of the claim. Were it otherwise there would hundreds of examples.

J

 

[Cutlass]

From the Constitution.

Seriously you think that some random judge has the authority to make rulings on what the President does with regards to foreign policy? Not sure if you are just being obtuse or are actually that ignorant of how the US government is supposed to function.

No part of the Constitution gives the president authority to violate law.

 

[JollyRoger]

I cite you list evidence in support of the claim. Were it otherwise there would hundreds of examples.

J

Prior to Gorsuch, there have been only 152 nominations. 30 nominations did not make it to the bench on that nomination and many of the 122 (including pre-Bork) did not get an automatic free pass - there was opposition. So if by hundreds of examples, you mean at least 200, that is impossible and it would behoove you to learn a little bit about what you are spouting off about.

 

[Sommerswerd]

Prior to Gorsuch, there have been only 152 nominations. 30 have not made it to the bench and many of the 122 (including pre-Bork) did not get an automatic free pass - there was opposition. So if by hundreds of examples, you mean at least 200, that is impossible and it would behoove you to learn a little bit about what you are spouting off about.

Oooooooooh! Busted! Whatcha got to say about that J?

 

[metalhead]

"If you don't cite evidence that can't possibly exist, then you're wrong."

A recipe for fruitful discussion if ever there was one. I feel like J would be right at home working in the Trump administration. Perhaps he should change his handle to "Kellyanne Con-J"

 

[KmDubya]

Please cite the specific part of the Constitution.

Two can play this game

Please cite where any judge has the authority to rule on matters of foreign policy.


Wow this is a lot easier than defending my opinion. Thanks for showing me how this works.

 

[Lexicus]

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority

Don't see a 'foreign policy' exemption in here and the inclusion of Treaties makes it clear the framers didn't intend the judiciary's authority to be confined to domestic policy.

Two can play this game

Two can play, perhaps, but can they both play well?