Scalia's dead! Now what?

[Brian Howell]

Cruz, McConnell, and other right ideologues are calling for Obama to let his successor name the next SCOTUS justice. GOP senators have already stated their intentions to stonewall any nomination until the next president takes office.

In a formal statement issued from his office, McConnell said,

The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.

It should be noted that McConnell has already refused to hold confirmation hearings for a record number of federal court nominees during his term—notwithstanding is comments made in 2005: (during the nomination of John Roberts)

The Constitution of the United States is at stake. Article II, Section 2 clearly provides that the President, and the President alone, nominates judges. The Senate is empowered to give advice and consent. But my Democratic colleagues want to change the rules. They want to reinterpret the Constitution to require a supermajority for confirmation.

Obama has already said that he will fulfill his "constitutional responsibility" to nominate Scalia's replacement. And it could be very problematic for the GOP, in a critical election year, should McConnell and his GOP senate colleagues refuse to fulfill their constitutional responsibility.

So, what happens now? 

[Brian Howell]

And then there's this: (source of the second McConnell quote in my original post)

http://thinkprogress.org/justice/2013/11/08/2915251/gop-senator-2005-filibuster-presidents-judicial-nominee-period/

[Larry Rosenthal]

The Framers were silent on the question of timing.
And rightly so.
The Senate enjoys "Advice and Consent" power.
The confirmation process comprises the consent feature.
Recommending that the White House stand down for now is clearly a form of "advice."
The rest is politics.
On that, Edward Snowden's tweet yesterday provides the soundest read:

[Matt Fish]

My guess is that republicans will delay, delay, delay. The question is, if a dem wins and is sworn in in January, what then? Why would a successful tactic of delay delay delay not continue to work? I could imagine eight justices for years, then a retirement, and then seven justices. Nowhere is it written that there has to be nine SC justices. (Correct me if I'm wrong.)

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[Richard Perlman]

Which begs the question: If less than a year remaining in the president's term is not enough for him to "fairly" nominate a Justice, what is the minimum allowable time? One full year, two years four years? I suspect the real answer is, no period of time is sufficient if the president is not a republican.

[Craig Good]

> On Feb 14, 2016, at 18:29 PM, Richard Perlman <r...@yikes.com> wrote:
>
> I suspect the real answer is, no period of time is sufficient if the president is not a republican.

s/republican/member of our party/

I think people often lose sight of the idea that the constitution was designed to make things hard to do. This is a feature, not a bug.



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--Craig WWSJD?
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Yo no soy Marinero, soy Capitan.

[vince koloski]

I suspect Craig is right and the political denomination of the president determines the required timing of nominations. It also, as per an earlier comment, is the determinant of confirmations. 

Personally, I will be waiting for the location of his grave for both dance numbers and urination upon it. 

 

Vince Koloski 415-822-8194

---

From: Craig Good <clg...@me.com>
To: Richard Perlman <r...@yikes.com>
Cc: Ipse-...@googlegroups.com
Sent: Sunday, February 14, 2016 7:19 PM
Subject: Re: [Ipse Dixit] Re: Scalia's dead! Now what?

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[Richard Perlman]

It is convenient to think in homilies, like the truth lies half way between right and wrong and all political parties play the same games. But, in fact, in recent years the GOP have demonstrated a stridency and singularity of direction with disregard for the consequences far beyond that shown by the Democrats.

> On 15 Feb 2016, at 00:17, 'vince koloski' via Ipse Dixit <Ipse-...@googlegroups.com> wrote:
>
> I suspect Craig is right and the political denomination of the president determines the required timing of nominations....

[Craig Good]

Is that the kind of ad hom we should be expecting here?

I think Ruth Bader Ginsberg set a better example for the left.

> On Feb 15, 2016, at 00:17 AM, 'vince koloski' via Ipse Dixit <Ipse-...@googlegroups.com> wrote:
>
> Personally, I will be waiting for the location of his grave for both dance numbers and urination upon it.
>

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Good sky you've got here, McIntyre. Well done.

[Matt Fish]

I agree. Here's a post that contains RBGs full statement about Scalia.

http://m.greenwichtime.com/technology/businessinsider/article/Ruth-Bader-Ginsburg-reveals-the-most-6415156.php

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[Brian Howell]

No, it isn't. From Ipse Dixit's Welcome Message: (shown at the top of its topics page in Google Groups)

Please refrain from ad hominem attacks and avoid stereotyping.

On Mon, Feb 15, 2016 at 7:31 AM, Craig Good <clg...@me.com> wrote:

Is that the kind of ad hom we should be expecting here?

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[Larry Rosenthal]

I beg to differ, Craig & Brian, and I stand with brother Vince's colorful obloquy. (Though I would only partake of the acts he describes as spectator. Especially the piss part - stand clear!)

Ad hominem, post mortem* ought well lie outside the request in our Welcome Message, as might other ad hominem aimed at non-ipse-dix participants. "Churchill was a slob" is not a violation of any community principle I would urge upon us. "Obama's a putz" is lowbrow, to be sure; that said, I would be warmed and entertained by it. Indeed, we might be sorry about inviting Oscar Wilde and H.L. Mencken to this group were any of us later to be profoundly slighted by those new members as a result. But to allow the miracle of including Wilde and Mencken - that they might wondrously and artistically deride those third-parties arguably most deserving of it - would be grounds enough to amend or interpret the Welcome Message accordingly if necessary.

Besides, graveside displays of terpsichorean or excretory character are wholly symbolic. Ad hominem utterances typically are far more direct.

If I say "Forget Scalia's reasoning - he was an idiot," this would certainly be ad hominem. And it would be an attack.

If I say "Forget Scalia's reasoning - he was a pig," this would likewise be a direct ad hominem attack, though metaphorical in nature.

I am free to judge such utterances and their speakers as I wish. However, I for one would not elevate principle in an attempt to squelch them.

Our Welcome Message policy should be intended to maintain the constructive tenor of these discussions, not to insulate non-participants from personal disrespects. In the case of the examples above, we likely would discourage such name-calling not because it is unkind or uncalled for, but rather because it is intellectually vapid. And that shared value would appear to be discouragement enough.

If Vince were to dance or urinate on or near Scalia's grave - assuming there will be such a site (cremation is possible) - this act would be entitled amongst us to both a presumption of respect and due effort at comprehension. We owe that to one another regarding any post to this list. Calling a rules-violation should be a last resort (though it is entirely likely that good Craig's doing so here was at least partially tongue-in-cheek :-) ).

I stand by Vince's right to say such things amongst us, despite the fact that it may take our decorum down a peg. It matters not whether his utterance was well-reasoned or substantiable. It was ardent. And I take it to be a denunciation neither logical nor intellectual in nature. These would be moral acts.

Community principles are not to be lightly bandied about simply because one might find another's utterances distasteful. Even absent hard and fast rules of speech invited and otherwise, we always can respect one another and cosponsor the sanctity of this space. For now, I hereby advance a within-group interpretation for the ad hominem rule we should share.

Meaning, I should be free to proclaim, verily, in this mixt though no less august company, that Cam Newton is a fucking cry-baby.

LR

*Ad hominem, post mortem here refers to attacks upon the dead. These are to be distinguished from the logical fallacy involving anachronistic declarations attributed to the dead, e.g., "Were Joe McCarthy alive, he'd hesitate to call Bernie Sanders a communist, for fear the good Vermonter would feel complimented by it. But he'd have no such reservation about hauling your sorry socialist ass before the HUAC."

[jack saunders]

The Republican senate, in principle, could hang united and never take up any Supreme Court nominees.  Just don't schedule the hearings.  But that tactic would be construed by voters as egregious, in-your-face obstuctionism -- not how they want to campaign this fall.  The GOP would become Issue One -- and not for any policy preference, but for not showing up for work.  Poison.

 

---

From: Matt Fish <mattfi...@gmail.com>
To: Larry Rosenthal <l...@berkeley.edu>; Ipse-...@googlegroups.com
Sent: Sunday, February 14, 2016 6:13 PM

Subject: Re: [Ipse Dixit] Re: Scalia's dead! Now what?

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[jack saunders]

What do the odd makers on ipse dixit think of the chances Obama might send up the name of Richard Posner?  Chicago school conservative, it is said.  But from what I've read of the man's writings (obviously a small sample, probably selected for their eccentricity) he's a practical man first.  Could be a surprise.

 

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[Larry Rosenthal]

Posner is a brilliant and eminently acceptable candidate.

While it is certainly no disqualifying factor, Posner is 77 years of age, more than a decade older than the eldest SCOTUS first-time associate-justice appointee in history.

POTUS may care about duration of impact, cynical though that may be.

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[jack saunders]

The Republican demand is pure political bullshit -- of no stronger historical heft a hard left demand for a national plebiscite before sending troops to war.  Of course Americans want a say.  They get that say through their representatives.

It works awkwardly for Cruz -- the strict constructionist constitutional lawyer.  Yet he's also styled himself as a revolutionary conservative, and he's a canny politician.  Net-net, he figures this works well at the C student level.  His audience, apoplectic about Obama, will see the move as a practical Obama blocking tactic pushed in "the people's" name.  

 

Nobody is going to arrest the Senate leadership for not coming to meetings.  They can get away with as much as they can steal.  But if Hillary wins, the game is over.  The first woman president will not be allowed to name any SC justices.  You see how that sounds.  Game over.

---

From: Brian Howell <bdho...@gmail.com>
To: Ipse Dixit <Ipse-...@googlegroups.com>
Sent: Sunday, February 14, 2016 9:51 AM
Subject: [Ipse Dixit] Scalia's dead! Now what?

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[Craig Good]

I've been unfriending people on Facebook for this kind of tasteless gloating. Perhaps I'm done here as well.

--
--Craig
clg...@me.com http://www.craig-good.com

[jack saunders]

Unfriended?  How does that happen?  It sounds awful.  Is there due process?

 

---

From: Craig Good <clg...@me.com>

To: Larry Rosenthal <l...@berkeley.edu>
Cc: "Ipse-...@googlegroups.com" <Ipse-...@googlegroups.com>
Sent: Monday, February 15, 2016 12:58 PM
Subject: Re: [Ipse Dixit] Re: Scalia's dead! Now what?

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[Craig Good]

It's a couple of mouse clicks. Quite painless. No due process.

It's like pruning a rose bush, but bloodless. 

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    --Craig

    clg...@me.com       http://www.craig-good.com

[Larry Rosenthal]

Deep breath here, dear Craig, esteemed ipse-dixit-er?

Ditching us over matters of taste would be the most ad hominem
expression imaginable. Please pause and reconsider.

Obviously you're seriously miffed. As a group we should assemble
promptly and direct ourselves toward the grievance.

I've had my say on it - one intended to be playful, inclusive and
tolerant. Apologies if you read it differently, Craig.

Others are welcome to share their views, on Scalia, on gloating, on the
value of the artful slight toward outside parties living or dead, and on
where we stand relative to our principles of community. Friendly debate
and discussion can be fragile, and we're at our best when we renew our
commitments anytime someone's feeling alienated.

LR

[Craig Good]

> On Feb 15, 2016, at 14:12 PM, Larry Rosenthal <l...@berkeley.edu> wrote:
>
> Ditching us over matters of taste would be the most ad hominem expression imaginable. Please pause and reconsider.

Or it could just be trying to tweak the S/N ratio of my life.

>
> Obviously you're seriously miffed. As a group we should assemble promptly and direct ourselves toward the grievance.

No need.

There are plenty of people I’ll happily make fun of. I just don’t like doing it while the corpse is still cooling. Jumping on tragedy to make cheap political points is one of my hot buttons. If someone reprehensible to me dies then I’m done with them anyway. When, for example, Oprah finally kicks it I will be quietly relieved that her influence will be waning. But I’m not going to chase the hearse in a fit of retromingent zeal.

My tribe is a very small one, and I’m often left feeling unwelcome on the left. (Also on the right sometimes, to be fair.) That’s why I’ve stopped doing politics on Facebook altogether. I don’t want to spoil anybody’s fun, but there are things I just don’t find fun at all, such as longing to piss on the grave of the recently departed.

I’ll pause. But this group finds politics more fun than I do, and I’m clearly far from the middle of its bell curve.

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"To split or decentralize power is necessarily to reduce the absolute
amount of power, and the competitive system is the only system
designed to minimize by decentralization the power exercised by man
over man."
--Fredrich August von Hayek

[jack saunders]

Bloodless perhaps, yet unfriendly by definition.

And, I suspect, needlessly unfriendly much of the time.

If I could work my will, we would weed the world of needlessly unfriendly statements and by that one act harvest a bright, sunny new day.

(Usually I make this recommendation at a modest starting point -- my own household.  To date, success has been, well, modest.  But I just know I'm on the right track.)

 

---

From: Craig Good <clg...@me.com>

To: jack saunders <jack...@pacbell.net>
Cc: Larry Rosenthal <l...@berkeley.edu>; "Ipse-...@googlegroups.com" <Ipse-...@googlegroups.com>
Sent: Monday, February 15, 2016 1:37 PM

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[Scott Hotes]

On Mon, Feb 15, 2016 at 2:12 PM, Larry Rosenthal <l...@berkeley.edu> wrote:

Deep breath here, dear Craig, esteemed ipse-dixit-er?

Ditching us over matters of taste would be the most ad hominem expression imaginable. Please pause and reconsider.

Obviously you're seriously miffed. As a group we should assemble promptly and direct ourselves toward the grievance.

I've had my say on it - one intended to be playful, inclusive and tolerant. Apologies if you read it differently, Craig.

Others are welcome to share their views, on Scalia, on gloating, on the value of the artful slight toward outside parties living or dead, and on where we stand relative to our principles of community. Friendly debate and discussion can be fragile, and we're at our best when we renew our commitments anytime someone's feeling alienated.

Yes, Craig, it would be quite a shame for you to ditch us over this!

If people feel passionately about something, I think it should be encouraged for them

to express those things on this list.  We would lose something valuable if that were to

stop.  Larry, I thought your comments along these lines were well said.

I can certainly see how someone might have strong feelings about Scalia, and in 

particular the direction he has helped lead our country.  His position and actions in

the Citizens United case would be more than enough to engender such feelings.

Yes, I agree it is crass to refer to spitting on someone's grave and whatnot, but it is

visceral.  In fact I'm reminded of Costello's "Tramp the Dirt Down" in reference to 

another influential political figure:

Well I hope I don't die too soon

I pray the lord my soul to save
Oh I'll be a good boy, I'm trying so hard to behave
Because there's one thing I know, I'd like to live
Long enough to savor
That's when they finally put you in the ground
I'll stand on your grave and tramp the dirt down

 -- Elvis Costello

Scott 

[Craig Good]

> On Feb 16, 2016, at 10:59 AM, Scott Hotes <sah...@gmail.com> wrote:
>
> Yes, Craig, it would be quite a shame for you to ditch us over this!
>

It turns out my reaction was milder than Penn Jillette’s. Interested parties may want to listen to this last weekend’s episode of Penn’s Sunday School. (http://pennsundayschool.com/). The executive summary is that he cut off contact with anybody celebrating Scalia’s death. And I tend to agree with his reasons: It’s thoughtless tribalism.

Having strong opinions about Scalia’s decisions is a good thing. Celebrating the man’s death, or pretending that he was the Wicked Witch of the West is not. Nobody should infer from what I’ve said what I agree or disagree with Scalia about. I’m obviously going to vehemently disagree with the things his religion biased him on. But he was smart, a great writer, and could actually make an argument.

--
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clg...@me.com http://www.craig-good.com

"The death of dogma is the birth of morality."
--Immanuel Kant

[jack saunders]

Craig -- agreed.

And, to add a comment from this morning's Times:  He made constitutional law sexy.  

That's no cheap feat.

 

---

From: Craig Good <clg...@me.com>

To: Scott Hotes <sah...@gmail.com>

Cc: Larry Rosenthal <l...@berkeley.edu>; "Ipse-...@googlegroups.com" <Ipse-...@googlegroups.com>

Sent: Tuesday, February 16, 2016 11:14 AM

Subject: Re: [Ipse Dixit] Re: Scalia's dead! Now what?

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[Larry Rosenthal]

I LOVED SCALIA.

One of the most engaging and thoughtful judicial writers in the history of the republic.

I'll miss the literary jewels guaranteed to arrive late in the month every June ... even recently, at a time when most agree his powers of reasoning were well on the wane. Gems lodged in his magical vocabulary died with him and that's just sad. His creativity as a writer is what I'll miss most. A master of judicial rhetoric.

I'll miss the sad squirmings of mere mortals appearing as attorneys before him.

A GIANT of the law. Truly a unique character in the American story. His death was a shock despite his age, mostly because he was such an immovable force in the public life of our nation. His persona ascended to the mythic. He was our Oliver Wendell Holmes, Jr., so singular was his presence. Brennan and Marshall are heroes of mine. And the court's never seen leadership like that of Chief Justice Warren. But the conservative cause had no such soaring hero during my life. Until Scalia. Sure, part of it was his pizazz. But the numbers don't lie.

I will miss him in so many ways. I wish I agreed with him more. Now, so soon, it really doesn't seem to matter much.

I've been enriched in my life in the law by the challenges he placed before me: to read him, comprehend his vision, and try to undermine the logic and integrity of opinions I found myself unable to accept. He's the touchstone of what constitutional conservatism has become. The strength of his positions has always been a moderating influence on my own. I thank him for that. It is clear that many arguments over what the Constitution compels and tolerates are simply moral pretensions. Though I agree with many of the rights-claims upheld by the Warren and Burger courts, and few of those advanced under Rehnquist and Roberts, the constitutional premises of the rights-revolution of the Sixties and Seventies are sometimes inventive at best. And that should give no one great comfort. (Scalia was constantly hounded by questions about how he would have voted on Brown v. Board. See this article for an interesting critical exploration.)

In the end, Scalia was perhaps far more confident in the resilience of our democracy than most of us are. He certainly was a profound realist about such matters. His cynicism about the limits of federal power is well founded. We'll cite him every time it's our rights imperiled by an administration we distrust. That said, his writings often give shorter shrift to the rights of minorities in our politics than I would have liked. It was a pleasure to part ways with him on such issues, because the burden of securing positions opposed to his, based on sound reasoning, was a high one to overcome. "I think even Scalia would agree ...." is a weighty and meaningful assertion. It is a statement fitting very few justices I've had the pleasure of reading.

Scalia consistently argued that the Constitution did not allow the Court to be the sole defender of liberty, because that would invariably traipse upon the rights of the people, their states, and the other branches of government. Choosing the circumstances when the judiciary simply must save us from politics remains a rather arbitrary exercise, I'm afraid. But we find our way. And the stability of the balance we strike depends on purposeful wisdom from all sides.

Personally I'm thankful those Scalian limits lose the argument as often as they do. And maybe they should, for the good of all. But he'll always be with me, reminding me that defenders of liberty at every turn must carefully watch out what they ask for, lest next time they be on the losing end of what he saw as judicial excess. Those projecting political bias and moral evil upon him treated him unfairly, particularly so soon post mortem.

It must be said, by anyone serious about the law and the Constitution, that the quality of American jurisprudence is for now greatly impoverished by the passing of Antonin Scalia.

[Jack Saunders]

Larry -- publish it.  I read the article re: Brown as originalism.  OK...then Originalism means the document signed by the framers...plus all amendments up to the minute.  That's a different thing than "original text" and I would think the Federalist Society would go to greater lengths to stress that.  Makes them sound less like doctrinaire flat-earthers (which I have understood them to take a devilishly impudent delight in suggesting.)

 I have read that the Supreme Court was put in the Constitution to address the obvious considerations that would occur to the richest men in the colonies when signing on to any one-man, one-vote government supported by taxes.  Even where men were frugal by fashion, that Court had to be mighty powerful to calm the salient objections.  

I'm glad they made it -- and we've kept it -- important.

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