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Thread: The Supreme Court and Judicial Appointments

  1. #1

    Default The Supreme Court and Judicial Appointments

    Okay, I'm a Canadian who lives in a part of the country where we won't have any federal, provincial, or municipal elections coming up for at least several years (yawn) so I've been spending more time watching American politics, which is by far more entertaining anyway. While it's always fun reading and writing posts bashing all the political leaders and presidential hopefuls (and hopeless) I wanted to talk about another topic which has become a focal point in the American and our recent Canadian election.

    The political appointment process of judges to the Supreme Court was an issue in our last Canadian election (more on that later) and it is even more significant now in the US due to the passing away of conservative judge Antonin Scalia in the middle of an election year. One perspective is that Obama now has the opportunity to swing the balance of power from conservative to liberal. Republicans have already declared they won't approve Obama's choice and argued the vacancy shouldn't be filled until the next president is in office, nearly a year from now!

    With the passing of Scalia, there is an evenly divided court with four liberals and four conservatives. The next appointed judge theoretically could determine which group will have a majority for the foreseeable future.


    Some Questions for Your Consideration (or just throw in whatever you want):

    Looking at recent history, is it really a 'no-brainer' to assume that a judge with political beliefs or ideology will rule in accordance with political values or morality? Are judges simply political hacks beheld to the President and party to do his bidding? Or will the judicial decisions be based on jurisprudence, case law, and thoughtful interpretation of the issues that stand before them, regardless of personal beliefs? How much of it depends on the issue and how much depends on who is appointed?


    Over the last two years many of the Supreme Court's decisions have been unanimous, even with a conservative majority. In 2014, nearly two thirds of the cases brought before the court were decided unanimously. In 2014-2015 the number dropped to 40 percent. So I'm not totally convinced that one more judge, conservative or liberal, will make a significant difference in the voting pattern.


    Appointments during an Election Year:

    First of all, I don't buy the Republican argument that the appointment should be put on hold until after the next President is elected. I believe it is clearly his prerogative to appoint the next justice. I think the excuse that he is a 'lame duck' President really doesn't carry much weight considering the next President won't take office for eleven months from now. It's also possible this strategy could do more harm to the Republicans than the Democrats. For one thing, by refusing to allow Obama to replace Scalia for an extended period, the divided court may leave liberal lower rulings in place.

    Secondly, conservatives would be more likely to get a more moderate appointment from Obama now than they would get from Sander's or Clinton if they were to win, so there's some risk. If the Republicans think they'll win the White House, they should stall the process. But if there's a good chance of losing, they could end up with a better justice being appointed now.


    Issues To Be Decided By The Next Court:

    Right now, environmental protection and affirmative action are on the docket. In addition, abortion, gun rights, and campaign financing are perennial favourites that touch along ideological lines. If the shift is perceived to have gone liberal, there will be mounting pressure from progressives for the court to take up issues that have been treated conservatively throughout the years.


    The Recent Canadian Experience:

    In 2006, Canada elected a hard core right wing government under the leadership of Stephen Harper. There were fears he would stack the courts with more conservative judges and our hard fought victories around abortion rights and same sex marriage would be rescinded. After nine years and four conservative appointments to the Supreme Court, Harper found that the Court did what it always did: it rendered decisions based on its interpretation of the law and the facts. It acted with integrity and without influence of political interference.

    Harper appealed a number of federal court rulings to the Supreme Court. His government brought forward misguided, badly flawed legislation which was designed to appeal to his core conservative base. He lost to the Supreme Court on badly written laws concerning prostitution, tough-on-crime laws, assisted suicide, Senate reform, among other things. By the end of Harper's last term, the Conservative government wasted 4.7 million dollars on fighting useless legal battles and appeals to the Supreme Court where he consistently lost. His own appointed judges consistently ruled against his government. Harper found out that the judges he appointed had more integrity than he possessed, and that they were not there to do his bidding.

    http://www.cbc.ca/news/politics/cons...ases-1.3042725

    Harper showed his disdain for the appointment process by attempting to nominate a federal court judge, Marc Nadon, who technically wasn't eligible for the position. When the Chief Magistrate of the Court, Beverly McLaughlin, challenged Harper, he went on the offensive, attacking her credibility,, ironically accused her of interfering with the nomination process and running a clandestine campaign to keep his choice off her bench. His war against Canada's most respected judge backfired and Harper was rebuffed for his unfounded, paranoid accusations at the election polls, even by his own conservative supporters.

    http://www.cbc.ca/news/politics/beve...-say-1.2718342.


    So what do you think? How important is the next appointment to the Supreme Court? How much difference will the next judge make in future decisions? Is there a better way of appointing judges? What are your thoughts?
    Last edited by Starrunner; 19-Feb-2016 at 13:05.

  2. #2

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    I am registered as Republican, think like Libertarian, and still vote for who I think the best candidate is. With that said, I am truly appalled that arguments are being made to stall the appointment of a Supreme Court Justice until the next President takes office. I have seen a lot of the cases and rulings that were made by our Supreme Court over the last several years and I feel that they are fully deciding based on case law, the Constitution of the United States, and thoughtful interpretation of the issues. I have not seen a single place where I feel the Supreme Court has acted like 'flunkies' for the President or other political figure.

    Yes, there are justices who act more 'conservative' and others who are more 'liberal' but I really feel that they are actively trying to avoid basing their decisions on their own personal feelings, religious beliefs, or other bias. If you think about it, 'conservative' is often seen at odds with things like gay marriage, yet that decision went through with a 'conservative' court.

    With certain Republicans coming out to threaten to hold off allowing a nomination until the next President takes office, I see it being a place where they are just tying the rope around the gallows for themselves. Cases cannot be decided with just eight justices, the ninth is to be there to avoid having a deadlock in our highest court. Refusing to allow such an important part of our government to operate for the next year is ludicrous. I'm hoping that this tactic will get many of those representatives thrown out of office when they are next up for election.

  3. #3

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    The big bell ringer/ red flag to me is that people obviously do not remember there civics classes from grade school, especially the political machines.

    I checked this out and also asked my Brother that is a history major to make sure.

    The president has 90 days to appoint a nomination for the supreme court. Any other changes have to go through congress.

    The theory that I have seen is that if he nominates a justice that has been already approved by this congress (and there is evidently 4 of them), then it is going to make the powers to be look worse then they already do.

    IT does not matter what the make up of the court is now. It is Obama job to appoint one and that is that. Period.

  4. #4

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    Wouldn't mind someone like Ron Paul on the bench though I should ask, do they have to actually be a judge to be eligable, or could the president theoretically nominate anyone who was of age and a natural born citizen?

  5. #5

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    The entire Republican Party does not have a constitutional argument to stand on.
    It is President Obama's job to appoint a replacement.
    They have no right whatsoever to tell him to not do his job.

  6. #6

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    For all of the Republican's rant, I read in The Washington Post that Ronald Reagan appointed Anthony Kennedy in the last year of his presidency. It sounds like the Republican obstructionists are hypocritical. Not all Republicans are on board to vote no to anyone Obama nominates, as it may adversely effect their reelection runs.

  7. #7

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    Quote Originally Posted by Starrunner View Post
    Some Questions for Your Consideration (or just throw in whatever you want):

    Looking at recent history, is it really a 'no-brainer' to assume that a judge with political beliefs or ideology will rule in accordance with political values or morality? Are judges simply political hacks beheld to the President and party to do his bidding? Or will the judicial decisions be based on jurisprudence, case law, and thoughtful interpretation of the issues that stand before them, regardless of personal beliefs? How much of it depends on the issue and how much depends on who is appointed?
    It depends on the justice. In most countries, judges will solely base their rulings on their interpretation of the law. In the U.S however, there is WAY more partisan politics being played than people want to admit. I know people will scream bloody murder at suggesting this, "HOW DARE YOU!!! THESE ARE HIGHLY RESPECTED JUDGES AND YOU ARE SLANDERIZING THEM!!!". But they totally will vote on party lines and abandon their principles. For instance, Antonin Scalia, who everyone is claiming now, was a brilliant legal mind who always voted his conscious, proudly sticking up to how he interpreted the Constitution. Funny how we totally was in favor of the Commerce Clause when it came to crushing states rights when it came to the issue of Medical Marijuana in Gonzales v Raich. Then would later throw the Commerce Clause under the bus when it came to the Individual Mandate in the Affordable Care Act, saying that the federal law doesn't trump the states right to reject Obamacare. He was a principled judge my ass, and many more of the judges are deeply partisan. That's how we came to such insane conclusions as the idea that "Money is Speech". LOL, what a joke.



    Quote Originally Posted by Starrunner View Post
    So what do you think? How important is the next appointment to the Supreme Court? How much difference will the next judge make in future decisions? Is there a better way of appointing judges? What are your thoughts?
    The next appointment to the Supreme Court is incredibly important as it will swing which way the court rules. Lots of important cases will be coming through our court and will probably end up 5-4, in which direction, that all depends on who Obama nominates. The actual process of appointing judges is pretty good. The problem isn't with the process. The problem is that our Senate is filled with obstructionist jackasses who want to block every possible nomination. They'll put up one hell of a fight, but I don't think they can obstruct Obama from nominating someone for 11 months. My guess is that Obama will nominate someone similar to Sotomayer and Kagan. Someone who is a moderate, but thanks to how extreme the Conservative Judges are and how we have a Conservative Media, they will be painted as a liberal judge.

  8. #8

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    They Senate can not prevent the President from nominating someone. However, the Senate can prevent that person from being confirmed. Multiple judicial, include supreme court, nominees have been non-confirmed. The reason there is a verb to bork, is from the Senate under Democrat control denigrating and non-confirming Robert Bork (who while conservative was a recognized constitutional scholar and a Federal Appeals court judge) for the Supreme Court. The President and the future Democrat leader (Senator Schumer) both filibustered against the nomination of Justice Alito. Harry Reid had to modify the rules of the Senate to confirm a large number of lower court nominees. The Senate under Democrat control refused to confirm some of LBJs selections. Whether we like it or not, the confirmation process is political and the party in charge of the Senate has the constitutional right to not confirm (and in fact to not even hold confirmation hearings).

    As far as Justice Scalia's reputation, he will be considered one of the finest minds on the court and was respected by most legal scholars even if they disagreed with his reading of the Constitution and insistence on "Originalism" . Before one looks for inconsistencies in his opinions, you need to understand that every case has different facets to it and what may look inconsistent is just a reflection of the nuances of a particular case. His understanding of the Constitution had him joining the liberal group on the court in many criminal cases. He will be missed (if for nothing else, the fluency of his dissents).

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    Quote Originally Posted by howiebabe View Post
    They Senate can not prevent the President from nominating someone. However, the Senate can prevent that person from being confirmed. Multiple judicial, include supreme court, nominees have been non-confirmed. The reason there is a verb to bork, is from the Senate under Democrat control denigrating and non-confirming Robert Bork (who while conservative was a recognized constitutional scholar and a Federal Appeals court judge) for the Supreme Court. The President and the future Democrat leader (Senator Schumer) both filibustered against the nomination of Justice Alito. Harry Reid had to modify the rules of the Senate to confirm a large number of lower court nominees. The Senate under Democrat control refused to confirm some of LBJs selections. Whether we like it or not, the confirmation process is political and the party in charge of the Senate has the constitutional right to not confirm (and in fact to not even hold confirmation hearings).

    As far as Justice Scalia's reputation, he will be considered one of the finest minds on the court and was respected by most legal scholars even if they disagreed with his reading of the Constitution and insistence on "Originalism" . Before one looks for inconsistencies in his opinions, you need to understand that every case has different facets to it and what may look inconsistent is just a reflection of the nuances of a particular case. His understanding of the Constitution had him joining the liberal group on the court in many criminal cases. He will be missed (if for nothing else, the fluency of his dissents).
    I was going to say something, but Howie has it pretty well covered.

    As for my personal feelings, we've had more than enough of Obama. We don't need the odor to linger any longer than it has to.

  10. #10

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    The nominee does not have to be an attorney.

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