5 ms·

Unlikely to be correct re: nomination, though it's difficult to know how the election will effect the confirmation process, and vice versa. Kagan was nominated

by nbadg 11y ago

Unlikely to be correct re: nomination, though it's difficult to know how the election will effect the confirmation process, and vice versa. Kagan was nominated May 2010 and confirmed August 2010; Sotomayor was nominated May 2009 and confirmed August 2009. I'm inclined to expect a nomination sooner rather than later, potentially of a candidate with very strong Democratic support. If Republicans oppose the nomination, that could be used as political leverage against them during the election. Edit for some further thoughts: I could see this play out several different ways. Dems could potentially stall on the nomination, to maximize the "gamesmanship" rhetoric leverage of any Republican opposition to the nomination. But if the nominee were confirmed by June, the whole thing might be largely forgotten by the election in November. So potentially, we could see a very quick confirmation. This definitely is a massive boon to the Democratic party; they've just been handed a wildcard and have every ability to choose exactly how to play it. I'm no fan of dehumanizing death, but Scalia's death will have enormous ramifications. Keep in mind: 1. Burwell v Hobby Lobby (private corporate responsibility for birth control re: Obamacare) was 5-4 2. Legal pragmatism arguments against criminal justice matters under equal protections grounds have already been very close to succeeding (or actually have). Could mean the end of the death penalty in the US. 3. Scalia opposed Guantanamo inmates' ability to challenge their detention in US Courts in the Boumediene v Bush decision 4. Scalia consistently opposed expansion of national healthcare 5. Citizens United was 5-4 with Scalia supporting the decision (this is what created superPACs), so potentially this could result in a limitation of corporate personhood 6. Potential liberalization and modernization of intellectual property rules, particularly in context of software (see: denial of certiorari of https://en.wikipedia.org/wiki/Oracle_America,_Inc._v._Google,_Inc. https://en.wikipedia.org/wiki/Oracle_America,_Inc._v._Google...) Further edit: SCOTUSblog analysis on the political situation: http://www.scotusblog.com/2016/02/first-reactions-on-the-passing-of-justice-scalia/ http://www.scotusblog.com/2016/02/first-reactions-on-the-pas...

PKop 11y ago
OK, but if they do not oppose, their supporters will not support them in the election. They have a duty and obligation to oppose.
- themartorana 11y ago
  They may find themselves between a rock and a hard place.
- sangnoir 11y ago
  > They have a duty and obligation to oppose Which is why they are likely to put up token opposition - enough to placate their supporters. Everyone panders to the center when election time comes, because that's where most of the voters are. This is why the rhetoric is extreme during the primaries, but is significantly toned afterwards.
  - tptacek 11y ago
    They have a majority of Senate. They don't need token opposition. They can just decide, as Mitch McConnell has already said, that this is a rare opportunity for the people to vote directly on the direction they want to take the court, and that's that. This isn't unprecedented. Obama is a lame-duck President facing a majority opposition party in both Houses of Congress. His influence is close to its nadir. Scalia is a lion of the GOP. It would have been hard to replace him in 2015. It's probably impossible in 2016.
    - krallja 11y ago
      Obama is not a lame duck president until his replacement is nominated and then elected. That happens in November.
      - tptacek 11y ago
        That depends on whose definition you use, but this discussion is mostly about precedent; look up the "Thurmond Rule" to see why technical strictness about the term "lame duck" isn't really an issue here.
        krallja 11y ago
        The Thurmond Rule, which is amorphous and inconsistently applied, only applies when an incumbent has "six months or so" remaining in his term. We are still several months away from that excuse being valid.
gk1 11y ago
> If Republicans oppose the nomination, that could be used as political leverage against them during the election. "Them" being Republicans, or Democrats? Trying to understand.
- trobertson 11y ago
  It will be interpreted as Republicans shutting down the government... again. Moderates and Independents, and Centrists on both sides tend to strongly dislike that, and it could swing the election to a Democrat victory.
  - vcarl 11y ago
    That might be the case, but stalling a justice nomination isn't as severe or visible as a government shutdown and might not get the same level of attention.
  - lotharbot 11y ago
    I think it's far easier to sell the argument that the voters should decide on who gets to nominate a replacement for Scalia, than that we should shut down national parks or whatever. These aren't remotely the same type of "shutdown".
    - akilism 11y ago
      wait didnt the voters decide when obama got reelected? he's still the president right?
      - waterlesscloud 11y ago
        They also decided when they gave Republicans control of the senate.
  - tptacek 11y ago
    No it won't. The Supreme Court will function just fine with one open seat. Ties affirm whatever the lower court decided. Whole Supreme Court terms have elapsed, within the last 50 years, with empty seats.
x0x0 11y ago
Of course, the fear that democrats may take both the presidency and the senate might motivate senate republicans to make a deal now, since there's a nonzero chance an immediate deal comes with maximal leverage.
- spinlock 11y ago
  I just don't see republicans as that cautious.
  - x0x0 11y ago
    Nor do I in general, but Mitch McConnell is. He strongly prefers a nominee constrained by Grassley rather than by Manchin. For the immediate future, even a 4-4 court is a marked improvement from the pov of democrats.
marcoperaza 11y ago
>5. Citizens United was 5-4 with Scalia supporting the decision (this is what created superPACs), so potentially this could result in a limitation of corporate personhood I think that phrasing is deceptive. The question isn't whether corporations are people with rights, but whether people retain their rights when they coordinate the exercise thereof through a corporation, which includes non-profit groups. It should be a red flag that abolishing that right would abolish the free press without some special exemption. That requires the government to start defining who is press and who is not, which if anything is a quickly fading distinction. The distinction between MSNBC/Fox News and a SuperPAC is not so clear. (Thankfully, we have such an exemption because the first amendment particularly protects the freedom of the press, in addition to the general freedom of speech. There's a lot of examples of redundant provisions in the Constitution, and I think this is one of them. The freedom of the press flows naturally from all of the other freedoms in the Constitution.) The particular case was actually about a political group that made a film criticizing Hillary back in 2008 during the primary season. The government wanted to ban them from promoting it during the two months leading up to the election. How can anyone think that's proper? Let's say that you and I shared a passion for a political idea. We want to convince people of it and effect change through the political process. What would we do? We'd set up a non-profit (a corporation), convince donors of our cause, spend their money on pamphlets, broadcast ads, internet ads, discussion forums, etc. We'd support candidates that back our idea, and oppose those who oppose it. That is freedom at work and it's exactly what the Citizens United decision protects.
- deleted 11y ago
  [deleted]
- dhj 11y ago
  > whether people retain their rights when they coordinate as a corporation. You are incorrect. Citizens United was decided based on the notion of corporate personhood -- the notion that corporations themselves have rights as if they are a person. There are very succinct and upheld limitations on individual monetary contribution to campaigns. However CU broke that by giving people the ability to launder political money through a corporation. Also, most non-profits (those 501c3s that want tax exemption) can not do any sort of campaigning. Those that do are subject to taxes. CU said specifically that corporations are people that can "say" (aka spend) whatever they want to get their message across. People can make individual donations to support this effort essentially getting around existing campaign restrictions. Money does not equal speech and there was a good reason monetary donations were restricted. By removing the restrictions they have reduced the ability of the average person to be heard because they now have to buy a bigger megaphone than the billionaires. You really do need to read up on corporate personhood and election law. Let me guess... FOX News fan?

by nbadg 11y ago

PKop 11y ago

OK, but if they do not oppose, their supporters will not support them in the election. They have a duty and obligation to oppose.

themartorana 11y ago
They may find themselves between a rock and a hard place.
sangnoir 11y ago
> They have a duty and obligation to oppose Which is why they are likely to put up token opposition - enough to placate their supporters. Everyone panders to the center when election time comes, because that's where most of the voters are. This is why the rhetoric is extreme during the primaries, but is significantly toned afterwards.
- tptacek 11y ago
  They have a majority of Senate. They don't need token opposition. They can just decide, as Mitch McConnell has already said, that this is a rare opportunity for the people to vote directly on the direction they want to take the court, and that's that. This isn't unprecedented. Obama is a lame-duck President facing a majority opposition party in both Houses of Congress. His influence is close to its nadir. Scalia is a lion of the GOP. It would have been hard to replace him in 2015. It's probably impossible in 2016.
  - krallja 11y ago
    Obama is not a lame duck president until his replacement is nominated and then elected. That happens in November.
    - tptacek 11y ago
      That depends on whose definition you use, but this discussion is mostly about precedent; look up the "Thurmond Rule" to see why technical strictness about the term "lame duck" isn't really an issue here.
      - krallja 11y ago
        The Thurmond Rule, which is amorphous and inconsistently applied, only applies when an incumbent has "six months or so" remaining in his term. We are still several months away from that excuse being valid.

gk1 11y ago

> If Republicans oppose the nomination, that could be used as political leverage against them during the election. "Them" being Republicans, or Democrats? Trying to understand.

trobertson 11y ago
It will be interpreted as Republicans shutting down the government... again. Moderates and Independents, and Centrists on both sides tend to strongly dislike that, and it could swing the election to a Democrat victory.
- vcarl 11y ago
  That might be the case, but stalling a justice nomination isn't as severe or visible as a government shutdown and might not get the same level of attention.
- lotharbot 11y ago
  I think it's far easier to sell the argument that the voters should decide on who gets to nominate a replacement for Scalia, than that we should shut down national parks or whatever. These aren't remotely the same type of "shutdown".
  - akilism 11y ago
    wait didnt the voters decide when obama got reelected? he's still the president right?
    - waterlesscloud 11y ago
      They also decided when they gave Republicans control of the senate.
- tptacek 11y ago
  No it won't. The Supreme Court will function just fine with one open seat. Ties affirm whatever the lower court decided. Whole Supreme Court terms have elapsed, within the last 50 years, with empty seats.

x0x0 11y ago

Of course, the fear that democrats may take both the presidency and the senate might motivate senate republicans to make a deal now, since there's a nonzero chance an immediate deal comes with maximal leverage.

spinlock 11y ago
I just don't see republicans as that cautious.
- x0x0 11y ago
  Nor do I in general, but Mitch McConnell is. He strongly prefers a nominee constrained by Grassley rather than by Manchin. For the immediate future, even a 4-4 court is a marked improvement from the pov of democrats.

marcoperaza 11y ago

>5. Citizens United was 5-4 with Scalia supporting the decision (this is what created superPACs), so potentially this could result in a limitation of corporate personhood I think that phrasing is deceptive. The question isn't whether corporations are people with rights, but whether people retain their rights when they coordinate the exercise thereof through a corporation, which includes non-profit groups. It should be a red flag that abolishing that right would abolish the free press without some special exemption. That requires the government to start defining who is press and who is not, which if anything is a quickly fading distinction. The distinction between MSNBC/Fox News and a SuperPAC is not so clear. (Thankfully, we have such an exemption because the first amendment particularly protects the freedom of the press, in addition to the general freedom of speech. There's a lot of examples of redundant provisions in the Constitution, and I think this is one of them. The freedom of the press flows naturally from all of the other freedoms in the Constitution.) The particular case was actually about a political group that made a film criticizing Hillary back in 2008 during the primary season. The government wanted to ban them from promoting it during the two months leading up to the election. How can anyone think that's proper? Let's say that you and I shared a passion for a political idea. We want to convince people of it and effect change through the political process. What would we do? We'd set up a non-profit (a corporation), convince donors of our cause, spend their money on pamphlets, broadcast ads, internet ads, discussion forums, etc. We'd support candidates that back our idea, and oppose those who oppose it. That is freedom at work and it's exactly what the Citizens United decision protects.

deleted 11y ago
[deleted]
dhj 11y ago
> whether people retain their rights when they coordinate as a corporation. You are incorrect. Citizens United was decided based on the notion of corporate personhood -- the notion that corporations themselves have rights as if they are a person. There are very succinct and upheld limitations on individual monetary contribution to campaigns. However CU broke that by giving people the ability to launder political money through a corporation. Also, most non-profits (those 501c3s that want tax exemption) can not do any sort of campaigning. Those that do are subject to taxes. CU said specifically that corporations are people that can "say" (aka spend) whatever they want to get their message across. People can make individual donations to support this effort essentially getting around existing campaign restrictions. Money does not equal speech and there was a good reason monetary donations were restricted. By removing the restrictions they have reduced the ability of the average person to be heard because they now have to buy a bigger megaphone than the billionaires. You really do need to read up on corporate personhood and election law. Let me guess... FOX News fan?