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Post by jimmyjiggles on Jun 29, 2018 3:15:07 GMT -5
Rather than lament the popular vote outcome, and the result on the USSC, as Harp does, I would point out that the goal of balance in the court was pretty blantalty subverted by the Rs with the Merrick Garland debacle. I think the popular vote issue is a remarkable one and one that should really give us pause to consider whether we truly value democratic institutions. I could go on and on, but I will pivot back to the above point. That seat was stolen, plain and simple. I will never, ever get over that. The refusal to even meet with Garland was unforgivable. Both of our kids share names with remarkable SCOTUS justices, and I have joked with my husband that if our third is a boy, we should name him Merrick. It was indeed. No one with any principle defends that as anything as a naked power grab (though they would probably say this was great political strategy - ie the opposite of principled opposition).
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Post by kylearan on Jun 29, 2018 3:30:29 GMT -5
Well if the cert doesn't get issued soon, I'm going to polish up my resume and email it to Donald! Honestly, why not? Provoke the imminent constitutional crisis and get it over with. Hey there may not be a OHO commish, but a certificate signed by POTUS is even better, right?
Hahah well I was thinking he could appoint me to the Supreme Court! You have to admit I'd certainly liven things up around there! ![:)](//storage.proboards.com/forum/images/smiley/smiley.png)
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Post by jimmyjiggles on Jun 29, 2018 3:35:02 GMT -5
To be clear, Breyer and Ginsburg were also appointed by someone who wasn't chosen by the majority of the voting population. But Clinton was chosen by a plurality of voters. There was not a candidate that the voters clearly preferred, which is a marked contrast to 2000 and 2016, when the losing candidate actually got more votes than the winner. Yes, I obviously understand the electoral college, but I still think it's pretty remarkable that 40 percent of the presidential elections I've voted in have been won by a candidate who got fewer votes than another candidate. (And to be fair in the representation of the facts, when Roberts and Alito were appointed, Bush 43 had won the popular vote once - it's just doubtful that he would have been president at that point had he not won in 2000, when he didn't win the popular vote.) The electoral college is actually not a historical anomaly. It was deliberately designed the way it is. Our Founders were perhaps the greatest group of geniuses ever gathered in one place in the history of humankind. They could do math. Not only is it not a historical oddity. In substance, it's not even a modern oddity. Modern English-style parliamentary systems essentially elect their prime ministers the way the American Speaker of the House is elected. The majority-party members of the lower house elect him or her after the members of the lower house have been elected by the public in single-member districts (like congressmen). So in England (and countries with similar systems), one party might get more popular votes in parliamentary elections but not get a majority of members in Parliament, meaning the PM can be elected by the members of Parliament of the party that got fewer popular votes. It happens often. Honestly you are killing the persuasiveness of your arguments with staments like “the founders were the greatest group of geniiuses ever assembled.” GMAFB (I know you don’t like abbreviations in “adult” Chatrooms such as this). This is ridiculous myth making. Pretty good, if spoiled, bunch, with completely unique historical circumstances that allowed them to embark on an journey of country making. I’m glad they did (maybe less slaughter and enslavement would be nice), and Franklin was probably a verifiable genius, but to mythologize them is to dismiss their most important contribution to humanity - the idea (but god knows not practice) that people who are not geniuses or rich have as much say as those who (think they)!are. .
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Post by Deleted on Jun 29, 2018 5:28:54 GMT -5
Well if the cert doesn't get issued soon, I'm going to polish up my resume and email it to Donald! Yeeeeeah, might want to watch this first before following through with that idea: Frontline, examining how he attacked fellow Republicans and used inflammatory rhetoric that rallied his base and further divided the country in his first year as president. www.pbs.org/wgbh/frontline/film/trumps-takeover/
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Post by Pixie on Jun 29, 2018 7:10:10 GMT -5
The electoral college is actually not a historical anomaly. It was deliberately designed the way it is. Our Founders were perhaps the greatest group of geniuses ever gathered in one place in the history of humankind. They could do math. Not only is it not a historical oddity. In substance, it's not even a modern oddity. Modern English-style parliamentary systems essentially elect their prime ministers the way the American Speaker of the House is elected. The majority-party members of the lower house elect him or her after the members of the lower house have been elected by the public in single-member districts (like congressmen). So in England (and countries with similar systems), one party might get more popular votes in parliamentary elections but not get a majority of members in Parliament, meaning the PM can be elected by the members of Parliament of the party that got fewer popular votes. It happens often. Honestly you are killing the persuasiveness of your arguments with staments like “the founders were the greatest group of geniiuses ever assembled.” GMAFB (I know you don’t like abbreviations in “adult” Chatrooms such as this). This is ridiculous myth making. Pretty good, if spoiled, bunch, with completely unique historical circumstances that allowed them to embark on an journey of country making. I’m glad they did (maybe less slaughter and enslavement would be nice), and Franklin was probably a verifiable genius, but to mythologize them is to dismiss their most important contribution to humanity - the idea (but god knows not practice) that people who are not geniuses or rich have as much say as those who (think they)!are. . Don't get him stirred up. I don't want to have to deal with the vituperative back and forth today. Pixie
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Post by JudgeKnot on Jun 29, 2018 7:11:02 GMT -5
I think this page is fascinating. It's on the subject of unsuccessful nominations to SCOTUS, going back to Washington. It's a bit sparse on details as to why nominees were unsuccessful, but there is a long history of this happening. I've just been skimming through it, but it's worth a look. en.wikipedia.org/wiki/Unsuccessful_nominations_to_the_Supreme_Court_of_the_United_StatesOn January 9, 1844, John Tyler nominated John Spencer. His nomination was defeated January 31, 1844. Tyler nominated Reuben Walworth on March 13, 1844, and a resolution to table the nomination passed on a 27–20 vote on June 15, 1844. The nomination was withdrawn from the Senate on June 17, 1844. Edward King was nominated on June 5, 1844. A resolution to table the nomination passed by a vote of 29–18 on June 15, 1844. No other action was taken on this nomination. The same day that Walworth's nomination was withdrawn, Spencer was re-submitted, but there is no record of debate and a letter from the President withdrawing the nomination was received on the same day. Walworth was then re-nominated later that same day, but the motion to act on the nomination in the Senate was objected to, and no further action was taken. Walworth and King were re-nominated on December 10, 1844, but both nominations were tabled on January 21, 1845. Walworth's nomination was withdrawn on February 6, 1845, and King's two days later. John M. Read was nominated on February 8, 1845, and there was a motion to consider the nomination in the Senate on January 21, 1845, but the motion was unsuccessful and no other action was taken. On February 14, 1845, the Senate voted to confirm Samuel Nelson. In the end, it took more than 14 months to get a nominee confirmed. Millard Fillmore, a Whig, made three nominations (another source says four) to replace John McKinley between August 16, 1852, and February 14, 1853, but the Senate did not take action on any of the nominees. President Franklin Pierce filled the vacancy with John Archibald Campbell. Campbell was nominated March 21, 1853, and confirmed March 22, 1853. It's kind of interesting to me that Pierce, a northern Democrat sympathetic to slavery, became President on March 4, 1853. The point: in the months leading up to an election, a Whig was President. He had a vacancy to fill and he had three (or four) candidates, none of whom even were considered in the Senate, and within three weeks the new President had the seat filled. The Merrick Garland nomination was not unique. Early in 1881, President Rutherford B. Hayes nominated Thomas Stanley Matthews for the position of Associate Justice. Matthews was a controversial nominee due to his close ties to the railroad industry, and as the nomination came near the end of Hayes's term, the Senate did not act on it. However, upon succeeding Hayes, incoming President James A. Garfield (who, like Hayes, was a Republican) renominated Matthews, and the Senate confirmed him by a vote of 24 to 23, the narrowest confirmation for a successful U.S. Supreme Court nominee in history. Prior to Garfield's election, the Democrats had 42 Senate seats, and the Republicans had 32. After the election of 1881, each party had 37 seats.
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Post by JudgeKnot on Jun 29, 2018 7:14:26 GMT -5
Pixie I was in the midst of putting my post together while you made your comment about stirring the pot. Stirring the pot isn't my intention, but I'll apologize now if that's the result.
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Post by Pixie on Jun 29, 2018 7:29:08 GMT -5
I don't think your last post will get him stirred up, but who knows?
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Post by neufenland on Jun 29, 2018 7:29:43 GMT -5
We've been back in the Lochner era since Obergefell was decided. Hmmm I don’t see any discussion of the right to substantive economic due process upon which almost all the Lochner cases relied, so please enlighten me. Wasn’t Lochner the first usage of the idea of substantive due process? The implied “right to contract” in the liberty interest of the 14th? It was used to overturn progressive labor legislation, and is gone now, of course, but the substantive due process idea comes from there, I thought. Griswold, Roe, Lawrence, etc. use the same idea, just for personal autonomy as opposed to economic rights. I should point out that I’m not getting into whether that’s right or wrong, but if Lochner stands for the idea of “inventing” a substantive right outside of enumerated ones, then logically, that argument could be made for the more progressive cases of the 1960s onward. That’s really the essence of the core debate between the “living” document people and the so-called “originalist” interpretation, no?
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Post by Deleted on Jun 29, 2018 11:13:15 GMT -5
The electoral college is actually not a historical anomaly. It was deliberately designed the way it is. Our Founders were perhaps the greatest group of geniuses ever gathered in one place in the history of humankind. They could do math. Not only is it not a historical oddity. In substance, it's not even a modern oddity. Modern English-style parliamentary systems essentially elect their prime ministers the way the American Speaker of the House is elected. The majority-party members of the lower house elect him or her after the members of the lower house have been elected by the public in single-member districts (like congressmen). So in England (and countries with similar systems), one party might get more popular votes in parliamentary elections but not get a majority of members in Parliament, meaning the PM can be elected by the members of Parliament of the party that got fewer popular votes. It happens often. Honestly you are killing the persuasiveness of your arguments with staments like “the founders were the greatest group of geniiuses ever assembled.” GMAFB (I know you don’t like abbreviations in “adult” Chatrooms such as this). This is ridiculous myth making. Pretty good, if spoiled, bunch, with completely unique historical circumstances that allowed them to embark on an journey of country making. I’m glad they did (maybe less slaughter and enslavement would be nice), and Franklin was probably a verifiable genius, but to mythologize them is to dismiss their most important contribution to humanity - the idea (but god knows not practice) that people who are not geniuses or rich have as much say as those who (think they)!are. . That kind of anti-American, not to mention counter-historical, attitude is why the left is losing. Trump is appointing Kennedy's replacement, and he will probably appoint 1 or 2 more. The real work to right the constitutional ship, i.e., separation of powers, property rights, constrained federal powers, etc., is just beginning. And the most important contribution of the Framers was the separation of powers in government. If Pixie wants to close the thread, that's fine with me. But as long as it's open, if someone writes this kind of thing, there's going to be a response.
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Post by Deleted on Jun 29, 2018 11:35:58 GMT -5
Hmmm I don’t see any discussion of the right to substantive economic due process upon which almost all the Lochner cases relied, so please enlighten me. Wasn’t Lochner the first usage of the idea of substantive due process? The implied “right to contract” in the liberty interest of the 14th? It was used to overturn progressive labor legislation, and is gone now, of course, but the substantive due process idea comes from there, I thought. Griswold, Roe, Lawrence, etc. use the same idea, just for personal autonomy as opposed to economic rights. I should point out that I’m not getting into whether that’s right or wrong, but if Lochner stands for the idea of “inventing” a substantive right outside of enumerated ones, then logically, that argument could be made for the more progressive cases of the 1960s onward. That’s really the essence of the core debate between the “living” document people and the so-called “originalist” interpretation, no? "Substantive due process" is the notion that "due process of law" doesn't just mean what it actually means (that the government has to follow the law if it's going to take your life, liberty, or property), but also that some particular liberty or property rights are so important (in the judge's own philosophical/moral view) that the government simply can't legislate against them no matter what procedures are given. The concept is controversial, mainly because it's intellectual garbage. It was first applied in the Dred Scott case, where the Court ruled that it didn't matter that the law of a state provided that once a slave set foot in the state he was free. He had to be returned to his owner because it was a fundamental principle, that no state legislature could disturb, that a black person could not be a citizen but was property. It was later applied to strike down various labor laws under the theory that no legislature could interfere with employers' and workers' right to contract. The " Lochner Era" cases. It was later applied in Griswold to rule that the right to privacy was very important, so a mere state legislature could not penalize the sale of condoms. It was later applied in Lawrence to rule that the right to privacy meant that sodomy could not be criminalized. It was most recently applied in Obergefell. It has been applied in other cases. Every time it has been applied, the doctrine has been salvaged in dissents. And the doctrine has been rejected in multiple cases in every gap between its applications. But the human urge the justices share with everyone else on earth to rule according to their moral preferences gets the best of them once in a while. Human nature isn't going to change anytime soon, so the doctrine is never going to go away. And the human frailty of rationalization causes the justices to recognize the problem when their moral opponents succumb to it, but not when they themselves do. Just read Roberts' dissent in Obergefell and Kagan's dissent in Janus. When on the losing side, they both complain of the other side taking what they think should be a legitimate democratic issue away from the people via the courts.
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Post by gary on Jun 29, 2018 11:46:24 GMT -5
Honestly you are killing the persuasiveness of your arguments with staments like “the founders were the greatest group of geniiuses ever assembled.” GMAFB (I know you don’t like abbreviations in “adult” Chatrooms such as this). This is ridiculous myth making. Pretty good, if spoiled, bunch, with completely unique historical circumstances that allowed them to embark on an journey of country making. I’m glad they did (maybe less slaughter and enslavement would be nice), and Franklin was probably a verifiable genius, but to mythologize them is to dismiss their most important contribution to humanity - the idea (but god knows not practice) that people who are not geniuses or rich have as much say as those who (think they)!are. . That kind of anti-American, not to mention counter-historical, attitude is why the left is losing. Trump is appointing Kennedy's replacement, and he will probably appoint 1 or 2 more. The real work to right the constitutional ship, i.e., separation of powers, property rights, constrained federal powers, etc., is just beginning. And the most important contribution of the Framers was the separation of powers in government. If Pixie wants to close the thread, that's fine with me. But as long as it's open, if someone writes this kind of thing, there's going to be a response. Pixie, I think with the play of the “anti-American” card, this thread has achieved exit velocity and should be locked.
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Post by Pixie on Jun 29, 2018 12:12:03 GMT -5
Yep, we had leveled out and were going along pretty good until that came up. Pixie
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