Gorsuch It Is
- Thread starter BedellBrave
- Start date
Oklahomahawk
Boras' Client
Welcome to my world Beds. I've been here since the late 80s. Still hoping but not expecting that one party or the other will give a crap about me and what I think........not holding my breath though.
Julio3000
<B>A Chip Off the Old Rock</B>
OK, fair enough.
Also fwiw, I agree with you about the nominee. It grinds my gears royally to say so, but I don't want to see the process further undermined.
Julio3000
<B>A Chip Off the Old Rock</B>
pffffttttt
Julio3000
<B>A Chip Off the Old Rock</B>
I think that's likely. I'm not happy about it, but it's ultimately for the best.
Oklahomahawk
Boras' Client
Now now, you know that doesn't count!!!
striker42
Well-known member
This sounds about right. You'll see a lot of grandstanding in the confirmation process and a lot of Dems will vent their anger by voting against confirmation but I don't see them risking the nuclear option and trying to prevent a vote. They lose the moral high ground they gained in the Garland antics, they lose the ability to try to delay a later, more objectionable SCOTUS nominee, and they gain nothing but a little personal relief from venting their frustration.
No, they'll take their swipes and play things up in the press but they wont dig in their heels and shouldn't.
A few Senator's saying that and the Senate leadership letting it happen are two different things. When Garland was nominated there was a lot of talk about that being the result of a deal between Obama and the Senate leadership. After closed door discussions the Republicans agreed that if Garland was the nominee then he would be confirmed in the lame duck session if Clinton won. I think that would have been the result.
Oklahomahawk
Boras' Client
Well they knowingly did it for 290+ days, why do you think they would change their mind once they got away with their previous actions?
striker42
Well-known member
I think if Trump loses they probably confirm Garland just to avoid Hillary picking a justice. You can say they could try to avoid confirming a Hillary nominee but that only works as long as you have power and you'll eventually lose power. Garland is probably more moderate than anyone Hillary would have picked so I think if Hillary wins you would have seen Garland confirmed.
Oklahomahawk
Boras' Client
Let's be honest that's what they SHOULD have done anyway. This whole "I'm going against the rules, the Constitution, etc., because I love America so much is BS. It's just the crap you read here about how well Repubs took Obama getting elected TWICE. They honestly don't remember how they acted, what they said and so on. The level of selective memory is like living with a teenager.
chop2chip
Well-known member
I agree with you that they should have confirmed Garland, but the constituencies that they represent would likely argue otherwise. At that point it becomes an interesting theological discussion about the role of the legislative branch.
Modern day politics is disgusting and depressing, but dammit if that whole concept of "checks and balances" isn't serving its intended purpose
Oklahomahawk
Boras' Client
What I really should have said is they should have given him a hearing and an up/down vote. I don't think he was a bad nominee but had they gone through the process, even gone through the motions if they want to be the obstructionist c*cksucker there were/are IMO, at least then they would have been abiding by their constitutional charges. They don't, legally speaking, have the option of just waiting until the next election to let someone else pick somebody they like better. This whole "eh we're making up the rules as we go" crap is one of the main things that makes politics so "disgusting and depressing", isn't it?
57Brave
Well-known member
Thanks, wouldn't have seen this otherwise
striker42
Well-known member
Sadly, legally speaking, they do have the option of just waiting and not confirming anyone. If they wanted to they even could have eliminated the seat all together (little known fact, the number of SCOTUS justices is set by statute, not the Constitution).
Practically speaking the SCOTUS seats should not be politicized. But that's where we're at. I personally liked the idea of removing a seat and leaving the court at 8. It leaves you with a SCOTUS that has to build coalitions and reach more of a consensus. That usually means more restrained decisions.
Oklahomahawk
Boras' Client
I'm not as familiar with these things as an attorney so I will yield to your expertise on the "they can just wait indefinitely" part. I think we would agree that's not what the founding fathers wanted and then we could get into the whole "obstructionist come hell or high water" thing which I am positive the founding fathers didn't want. You are certainly correct about just eliminating the seat, which was done back during the Andrew Johnson administration because Congress hated him so much they weren't going to let him nominate anyone. The thing about that is they eliminated 2 seats, right? So there still be an odd number until Grant gets elected then they went in and re-added those 2 seats. Correct me if I'm wrong on any of this.
Maybe leaving it at 8 would be an OK idea. The SCOTUS certainly needs to learn how to build a consensus, as do Congress, but what I'm afraid would happen is a LOT of 4-4 ties and whatever the lower courts decided would simply be upheld, good, bad, or indifferent. As you said the level of politicization of all our government is a horrible development and until that runs its course or until somebody finds a way around it I don't see things getting better any time soon. What about you?
striker42
Well-known member
IIRC, the SCOTUS has always had an odd number of seats to eliminate ties. One of the professors at the law school I graduated from wrote an article advocating an 8 man court which has merit. As you mention there would be a lot of 4-4 ties which would lead to a jumble of different interpretations of the Constitution depending on where you are in the country. That would be a problem. But if an 8 man court was the reality I would hope the justices would start working within the confines of that.
I also don't see the politicization getting better anytime soon. It will take something like a constitutional convention that really shakes the system up to break the cycle at this point.
jpx7
Very Flirtatious, but Doubts What Love Is.
Not that I'm a fan of Gorsuch per se—regardless of issues/policy ideology, I believe (as I have stated on here before) that the sort of originalism and legal textualism preached (if not always practiced) by Scalia and, it appears, Gorsuch is fundamentally hermeneutically flawed. I think that system of interpretation simply misunderstands, or misrepresents, what text is, and how texts work.
Having said that, this almost feels like the President throwing a bone to both the Cruz-wing Republicans and establishment Democrats. He does appear legally qualified; and if he holds to so-called "strict" interpretations of the law, his decisions should at least be fairly predictable, and he should moreover be constrained in his decisions in a way a far-right "activist" judge wouldn't be.
There's a good chance, because of my politics, I wouldn't have liked any potential pick by a Republican President; and like I said, irrespective of my politics, I think the "strict interpretation", context-ignoring methodology is flawed on hermeneutic and epistemological grounds. But, considering I'd been bracing for a nominee way out of right-field, this feels like an unexpectedly-competent maneuver by Mr Trump.