Another Retirement: Justice Stevens just announced he will step down

[wmenorr67]

I'm not really sure how Republicans can stop any nominee anyway.  Nominations aren't something you're supposed to be able to filibuster. 

Unless you are a Democrat.

[Northwoods]

Nominations aren't something you're supposed to be able to filibuster. 

Donks did that to at least one of W's nominees, and I thought to quite a few of them.

[roo_ster]

Zackly!(not to be confused with "zackly breath").

And Souter was nominated by Bush 41. At least 43 did a halfway decent job with his picks.

GWB needed a little help on one of his <cough>Harriet Miers<cough>

[Sergeant Bob]

GWB needed a little help on one of his <cough>Harriet Miers<cough>

Was he really serious about that?  I thought she was just a throwaway candidate anyway. 

[Headless Thompson Gunner]

Donks did that to at least one of W's nominees, and I thought to quite a few of them.

Yep, they did.  Doesn't mean the practice is legit.

I'm not sure whether we should try to reciprocate.

[makattak]

Yep, they did.  Doesn't mean the practice is legit.

I'm not sure whether we should try to reciprocate.

So what's your opinion on unilateral nuclear disarmament?

[Headless Thompson Gunner]

I think a better example would be mutual nuclear escalation.  I don't like where it leads.  Can you fight unconstitutionality by perpetrating unconstitutionality yourself?  Even if you succeed, where does that leave you?

On the flip side, we're at war, and the fate of our country is at stake.  There isn't much that I would take off the table or rule out as a possibility.  Many honorable men have given everything so that we would have this country.  I'm ill-inclined to hand it over so easily.

So what's the answer?

A lot of people have criticized Lincoln for doing some pretty nasty, unconstitutional stuff in order to preserve the country and the constitution.  We're nowhere near that level here and now, but it's the same basic moral dilemma.  Should we break the constitution to preserve it?

I dunno.

[kgbsquirrel]

If you break the constitution to preserve it, it is already gone.

[Headless Thompson Gunner]

If you break the constitution to preserve it, it is already gone.

Aye, but if you don't do anything Obama will put a young anti-American on the supreme court.  The constitution is gone then, too.

[kgbsquirrel]

True. If you don't do anything.. But you also do not need to destroy the Constitution in process of acting.

Perhaps you should revisit the preamble of the Declaration of Independence.

[Headless Thompson Gunner]

Are you proposing revolution as the solution?

No thanks, personally.  I'll filibuster a SC judge in a heartbeat if revolution is the alternative.

[Waitone]

I think a better example would be mutual nuclear escalation.  I don't like where it leads.  Can you fight unconstitutionality by perpetrating unconstitutionality yourself?  Even if you succeed, where does that leave you?

On the flip side, we're at war, and the fate of our country is at stake.  There isn't much that I would take off the table or rule out as a possibility.  Many honorable men have given everything so that we would have this country.  I'm ill-inclined to hand it over so easily.

So what's the answer?

A lot of people have criticized Lincoln for doing some pretty nasty, unconstitutional stuff in order to preserve the country and the constitution.  We're nowhere near that level here and now, but it's the same basic moral dilemma.  Should we break the constitution to preserve it?

I dunno.

Well expressed dilemma.  Your musings brought to mind a quotation I once read which was attributed to one Adolph Hitler.  It went something like this: "You stand there with your law books and I'll stand here with my bayonet.  We will see who prevails".

I don't have any answers, just another question.  At what point does a principled stand morph into being played a chump?

[Headless Thompson Gunner]

Having thought about it a bit, my own personal take on it becomes pretty clear.  You filibuster.  It's the least unconstitutional option, and as a pragmatic matter this is the route that has the highest probability of turning out well in the end.

Recall that the constitution requires the "advice and consent" of the Senate for SC nominees, but does does not specify exactly how the Senate must arrive at its decision or what proportion of the members must agree.  And the constitution explicitly states that each house of congress may choose the rules of its proceedings (subject to certain requirements, none of which apply to judicial nominations).

So it seems that a clear argument can be made that filibustering a SC judge is constitutional.  It's then a question of whether Senate rules allow for such.  I don't think the rules do, but I'm not a trained parliamentarian so I wouldn't really know for sure.  But at worst, the matter comes down to a question of violating arbitrary internal Senate rules vs undermining the constitution.  Seems like a pretty easy decision to make. 

At least, that's my take.  I'd be interested to hear from others.

[kgbsquirrel]

You just hit on the crux of the constitution there HTG. Again, the law says what a person can not do, and they may do all else. It is the opposite with regards to the government, the law (Constitution) says what they may do and they may NOT do all else. If the Constitution does not explicitly state that a filibuster is prohibited, it is not automatically allowed. Of course because the Constitution does explicitly say they may create their own rules of proceedings, they may make it legal under those.

So, do their rules of proceedings allow it?

[Headless Thompson Gunner]

So, do their rules of proceedings allow it?

That's the question.  I suspect the rules do not allow it, but I don't know for sure.

Hypothetically, let's say it is disallowed.  Should we have any problems breaking the rules and filibustering anyway?

[kgbsquirrel]

That's the question.  I suspect the rules do not allow it, but I don't know for sure.

Hypothetically, let's say it is disallowed.  Should we have any problems breaking the rules and filibustering anyway?

There's the rub. I would say no. And if you did something illegal like that on the senate floor I'm sure they would have no problem having Capitol police haul you butt out of there.

I always did wonder though what would happen if a supreme court justice or even a nominee was disbarred for ethical violations. You know, blatant bias in their rulings due to say, gender, race, etc.

[Headless Thompson Gunner]

 

I'd say there's no way the Capitol police would arrest Senators for filibustering a judge.

It is possible ti impeach a SC judge, but I doubt you could do it over something as "minor" as a bad ruling.

I've heard it said that some of the reason for all of the questions the Senators ask nominees during the hearings is so that they're on the record, under oath, as being for or against certain policies.  The idea is that if a judge ever rules differently after making statements in a hearing, he could possibly be charged with perjury and impeached for the crime.

I don't know if that would actually hold up, though.  Besides, most judges are smart enough to qualify their answers in hearing with "it depends on the specifics of the case" or somesuch, so that they always have an out.

[kgbsquirrel]

I'd say there's no way the Capitol police would arrest Senators for filibustering a judge.

It is possible ti impeach a SC judge, but I doubt you could do it over something as "minor" as a bad ruling.

I've heard it said that some of the reason for all of the questions the Senators ask nominees during the hearings is so that they're on the record, under oath, as being for or against certain policies.  The idea is that if a judge ever rules differently after making statements in a hearing, he could possibly be charged with perjury and impeached for the crime.

I don't know if that would actually hold up, though.  Besides, most judges are smart enough to qualify their answers in hearing with "it depends on the specifics of the case" or somesuch, so that they always have an out.

If someone on the senate floor did something explicitly not allowed I have no doubt they would be removed (not necessarily arrested). An example would be someone going to the podium and yelling about their issue without being recognized first.

Removing SC's is and should be hard, and I'm not saying to remove them for something minor. Then again I don't consider something like racial/gender/any bias (read bigotry) minor. If you can show that a particular judge ruled one way than they would have otherwise ruled, because, say, the defendant was a hispanic female, why shouldn't they be called to answer for it?