Here's @HillaryClinton's January oped on Supreme Court appointments https://t.co/MaxFxidYI1
— Adam Smith (@asmith83) February 13, 2016
In the week before Scalia died, Dahlia Lithwick published a Slate post asserting that “Ted Cruz Won’t Prevent the Next John Roberts”:
… Speaking at a town hall meeting in Iowa last month, Cruz shared his diagnosis of what is known as conservative ideological drift: “Many of the most liberal justices in this country—Earl Warren, Bill Brennan, John Paul Stevens, David Souter, Harry Blackmun, the author of Roe v. Wade—all of those were Republican appointees. … And the reason is simple. Over and over again we keep electing Republican presidents for whom the court is not a priority. And when it comes to a nomination, they take the easy road out.”…
It’s established fact that, over their careers, more justices drift to the ideological left than to the right. Oliver Roeder at FiveThirtyEight points to the Martin-Quinn score, which measures judicial ideology across time. Data compiled since 1937 reflects the fact that most justices—up to and including one of Cruz’s favorites, Antonin Scalia—tend to move to the left over the course of their judicial careers…
Professor Michael Dorf has argued, maybe even more provocatively, that justices drift left because “constitutional law itself has a ‘liberal bias.’ ” Dorf cites a quote from Justice Benjamin Nathan Cardozo, who once wrote that a legal principle has a “tendency . . . to expand itself to the limit of its logic.”…
Andrea Mitchell actually said today "we've had balance on the Supreme Court for the last 40 years with 5 cons & 4 libs" @Arianna8927
— Steve D (@Steverocks35) February 15, 2016
21st Century GOP: The Supreme Court gets to pick presidents, the president doesn't get to pick the Supreme Court.
— Bob Schooley (@Rschooley) February 15, 2016
Today, the Washington Post found a couple of wonks to argue that “If Obama appoints Scalia’s successor, the Supreme Court will really jump leftward”:
Republicans and Democrats are already sharply divided over picking a successor to Justice Antonin Scalia. In fact, the divisions are far greater than they were, especially this early in the process, for Obama’s previous two nominees, Sonia Sotomayor and Elena Kagan. In part, this is because the nomination fight is happening in an election year. Yet there’s also another, more fundamental question at stake. The nomination of a successor to Scalia may shift politics on the Supreme Court in ways that the Sotomayor and Kagan nominations did not.
To understand why, you need a bit of background about the politics of the Supreme Court and Supreme Court nominations. In an article published by the American Journal of Political Science, Bryon Moraski and one of us (Shipan) set out a basic framework for understanding these nominations. The central idea is pretty straightforward. Presidents will try to select nominees who, if confirmed, will pull the court closer to their own preferences. But presidents can’t act alone. As Sarah Binder already has noted, presidents are constrained in their choices by the Senate, which needs to confirm any nominee.However, they also are constrained by what political scientists would call “the distribution of ideological preferences” of the justices themselves. In more everyday language, we might think of the nine justices as being arrayed on a left-right scale, with the most liberal justice at the leftmost point, and the most conservative justice at the rightmost point. When the justices vote according to their ideological positions, then the median justice – the one at the middle – is the one who is most influential. If he or she decides to agree with colleagues to the left, then he or she gives a victory to the left. When he or she votes with colleagues on the right, then they win. The median justice is the swing voter….
What Moraski and Shipan first pointed out was that even if a president was not constrained by the Senate, he or she could move the median only as far as the next closest justice. That is, all he or she can do is shift the swing vote one justice to the left, or one justice to the right. In the current context, if Obama could get a nominee approved who shared his ideology, then the new median would be Kagan. Obama might want to move the xourt even further to the left, but he just can’t do it. Again, even if he could nominate and somehow get approved a strongly liberal nominee, the median (at least in the short term) could move over only one position to the left – that is, to Kagan, the first justice to the left of the current median…
There is no tradition of leaving a Supreme Court seat vacant because of an impending presidential election https://t.co/Qj57VS8Om0
— SCOTUSblog (@SCOTUSblog) February 14, 2016
Conservatives will be happy to make a new tradition. Because they're conservatives. Wait… https://t.co/P76K3vSFA9
— Daniel Drezner (@dandrezner) February 14, 2016
tybee
is scalia still dead?
Corner Stone
For The Better!!
FUCK THAT FUCKING FUCK!
Schlemazel (parmesan rancor)
@tybee:
I don’t know, have they driven an oak stake through his “heart” and stuffed his mouth with garlic? If not do not leave your windows open at night.
Baud
Color me skeptical.
The Thin Black Duke
@Schlemazel (parmesan rancor): Remember, vampires have to be invited.
Baud
Moving from Kennedy to Kagan would be HUGE.
Omnes Omnibus
@Baud: Blackmun.
Mike in NC
Is there a bigger Village Idiot hack on TV than Andrea Mitchell? Just looking at her makes me ill.
benw
The LIGO interferometer detects infinitesimally small ripples in the space-time continuum, and shortly thereafter Scalia is found dead, sending ripples through the American political establishment. COINCIDENCE!?
Baud
@Omnes Omnibus: I agree about Blackmun. Color me skeptical about Scalia moving to the left.
Omnes Omnibus
@Baud:
A BFD.
@Baud: I agree.
Schlemazel (parmesan rancor)
@The Thin Black Duke:
I thought when they were bats they could just fly in
Mandalay
Since this is an “Ever get the feeling you’ve been cheated thread”….Trump is getting a recurrence of thirdpartyitis:
The only way the shit show can get better is for Trump to walk, and fly solo.
schrodinger's cat
@Schlemazel (parmesan rancor): Wasn’t Vlad good looking?
raven
Rachel is going over conspiracy theories.
dr. bloor
Scalia’s “movement” over the last sixteen years on the court most closely resembled the driving of a belligerent drunk.
Cacti
@Corner Stone:
Seconded.
Botsplainer, Cryptofascist Tool of the Oppressor Class
Watch Roberts – I’ve felt that he’s got a lot of Earl Warren to him, and may well be interested in an actual legacy. It’ll take some time.
Jim, Foolish Literalist
@Mandalay: If Trump did go third party when he seems to be winning, couldn’t that only be because he never really wanted the job? Which wouldn’t surprise me a bit– if anything’s that clear-cut in that bat-infested belfry
Omnes Omnibus
@schrodinger’s cat: You tell me.
schrodinger's cat
@Mike in NC: She has competition from Gwen Ifill and Amy Walters who are always giggly no matter how important the topic, everything is a fucking joke for them.
Baud
@Botsplainer, Cryptofascist Tool of the Oppressor Class: Roberts cares about his legacy and big business. He’ll compromise to the extent necessary to be a player to advance those two interests.
schrodinger's cat
@Omnes Omnibus: I was think of the young Frank Langella
David ?Canadian Anchor Baby? Koch
South Carolina Poll — PPP — Feb 13 thur 15
Trump…………35%
Cruz……………18%
Rubio………….18%
Kasich…………10%
Carson………… 7%
¿Jeb?…………….7%◄ (BAM!)
ahahahhahahahahhahahhahaahahahaahhahahahhahahahahhahha
Cacti
@Botsplainer, Cryptofascist Tool of the Oppressor Class:
I don’t see Roberts having some principled change of heart. But I do think he’s very preoccupied with his historical place as a Chief Justice, and doesn’t want to spend the next 20-years writing impotent dissents.
The Thin Black Duke
@Schlemazel (parmesan rancor): I guess there are no hard rules, just–guidelines.
raven
@schrodinger’s cat:Everything is a fucking joke.
Mandalay
@Mike in NC:
Yes. Gloria Borger.
After Trump said “I could stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose voters” she pompously opined that she took him at his word that he was joking.
I defy you to find anyone who is a more stupid, self-important, worthless hack than Gloria Borger.
raven
Scalia was the most favorable justice to Bob McDonald. If it’s a tie it reverts and he goes up the river!
geg6
I’m totally cool with making Kagan the swing vote. I doubt there would be many cases where she’d want to swing the other way, no pun intended.
Keith P.
When you say it out loud, Trump’s sister’s name sounds kind of like ‘Marion Barry’. Heh.
SenyorDave
@Jim, Foolish Literalist: The one constant that I’ve always heard about Trump is that he REALLY doesn’t like to work too hard. Even lazy presidents (Reagan?) have to work pretty hard.t wonder whether Trump will say to himself one day that screw this I just wanted to show the bastards. Besides, in the general election he’ll actually have to spend days preparing for the debates, and learn some of that boring foreign policy crap. Even our pathetic media won’t give the nominee for president a pass if he screws up royally during the debates.
Baud
@raven: Hahahahaha.
MikeBoyScout
http://rudepundit.blogspot.com/2016/02/dead-judge.html
jl
What is it going to do to us, that is the question. The media has gone mad with the ‘ironic’ contrasts. I can’t take one more stupid commentary and ‘news analysis’.
” Even before the TRADITIONAL SOLEMNITY of ceremonies for the late Justice Scalia are planned, the CHAOTIC APOCALYPSE of the struggle for his replacement begins. Will this be the SUPREME test of the LAST CHAPTER of the Obama administration, or will the LAST CHAPTER of Scalia be the FIRST CHAPTER of an epic battle in the Senate.”
Please, stop it, media.
Omnes Omnibus
@Mandalay:
Isn’t she the one who said that Obama is “technically” president for 11 more months?
Schlemazel (parmesan rancor)
@schrodinger’s cat:
I know Legousi was a matinee idol in his home country & supposed to be very hansom. If I remember the original book vampires could cloud minds & people thought they were very good looking. I don’t know if Vlad Drăculea was considered a looker or not but I am sure everyone told him he was.
geg6
@raven:
OMG, hadn’t even thought about that. Hahaha! Good!
Schlemazel (parmesan rancor)
@dr. bloor:
Scalia’s movement on the court was a lot like the dogs movement I have to clean out of the lawn before mowing.
MikeBoyScout
Throw Hilz or Bernie a bone. Nominate Sarah Palin knowing she quit in less than a year
I'mNotSureWhoIWantToBeYet
@raven: McDonnell going to prison would be excellent. He and his wife sold the VA Governorship for all sorts of stupid, petty stuff stuff, and he thought he could throw her under the bus and walk. He’s so very, very slimy – not least for his Master’s Thesis at Pat Robertson’s “university”.
Cheers,
Scott.
jl
Local CBS news is doing good work counterbalancing the national corporate media repetition of bogus GOP talking points. Not sure what others are hearing around the country.
Of course, I live in commie SF Bay.
So far it has been worth listening to the juvenile word play (Edit: WTF, journalists think they are writing for the BJ blog comment section?) and trite filler of the national news to get some actual historians and legal experts on the local fill me on the facts. But I figure I’ve learned enough and not sure I want to hear anymore about the upcoming SUPREME APOCALYPSE!
Baud
@MikeBoyScout: She wouldn’t quit. She’d just take the lifetime salary without doing any work.
Citizen Alan
@Mike in NC:
You know what I hate most about Andrea Mitchell? It’s the fact that she uses her maiden name. Not that there’s anything wrong in the abstract with a married woman keeping her maiden name. But when her husband (Alan Greenspan) was a long-serving conservative Fed Chairman? Who was also a personal acolyte of Ayn Rand? And when Mrs. Greenspan agrees wholeheartedly with her husband’s political and economic views but uses her maiden name in order to maintain a veneer of “journalistic impartiality”? IMO, it’s almost fraudulent.
Jim, Foolish Literalist
@Omnes Omnibus: Poppy Harlow of CNN, I think.
catclub
@Mandalay:
Trump demands $500M (or even One BILLION dollars) from Sheldon Adelson and the Koch Brothers to not run third party.
Then he takes the money and runs anyway.
Then he says Bill Clinton convinced him to do it.
Baud
@Citizen Alan: Or Greenspan could change his name to Mitchell, since she’s the only one still in the public eye.
raven
@I’mNotSureWhoIWantToBeYet: I went to a conference last year where Regents and Liberty had representation and they acted like they were just regular schools. I told my boss I would have nothing further to do with the organization.
Schlemazel (parmesan rancor)
@SenyorDave:
You give our media way too much credit.
Baud
@catclub: I would take that deal. Cough it up, Soros.
Mandalay
@David ?Canadian Anchor Baby? Koch:
More BAM! tweeting from Trump:
Cacti
“The President should not appoint a new Supreme Court Justice for the sake of national unity.”
-No journalist ever, prior to February 14, 2016
catclub
@SenyorDave:
George W Bush in debate with Kerry 2004.
raven
@Citizen Alan: WTF, she’s used her real name through both of her marriages.
Baud
@Cacti: Corollary
“The Senate should confirm the President’s Supreme Court nominee for the sake of national unity.”
-No journalist ever.
jl
@Mandalay: So Trump starts winning primaries and he keeps hinting a third party run anyway? Or is this just his way of further wreaking destruction on his enemies, just to hear the cries of their wounded and the lamentation of their women (or whatever the Conan quote is).?
SiubhanDuinne, Annoying Scoundrel
O/T, but this is pretty damn fuckin cool.
Schlemazel (parmesan rancor)
@Cacti:
Wait till President Clinton or Sanders takes office & journalists decide that Presidents really shouldn’t appoint USSC justices in the first 3 years of their term as it would be unseemly.
jl
@Schlemazel (parmesan rancor): Really should wait until the midterms, so the People can speak again, with final authority.
Baud
@jl: Wait until the voters get it right.
SiubhanDuinne, Annoying Scoundrel
@Citizen Alan:
Alan Greenspan’s first wife also had the last name of “Mitchell.”
catclub
@jl: Finally, the death of Nino Scalia will be Obama’s Katrina.
The other 14 were just thaaat close.
Jim, Foolish Literalist
@jl: I’d say he just wants to humiliate Reince Priebus but, as with the death of Calvin Coolidge, how could anyone tell?
Fair Economist
@Botsplainer, Cryptofascist Tool of the Oppressor Class:
Earl Warren was a liberal as soon as he was appointed. But Roberts does seem to genuinely believe in proper judicial process, and according to the 538 link he has drifted left some. Seeing the Republicans refuse to even hold hearings on whatever highly qualified nominee Obama proposes might be just the ticket to accelerate the process.
I'mNotSureWhoIWantToBeYet
@raven: Any “university” that claims to teach biology/”biophysical sciences” by arguing against evolution isn’t a university and should not be accredited by any sensible organization. Kids that are going to school there are being cheated.
Good for you for refusing to have nothing to do with them!
Cheers,
Scott.
LosGatosCA
@SenyorDave:
You wish – Bush lost two debates to Gore and wore a wire to the debate he lost to Kerry.
Consequences? The media wanted to have a beer with Bush
Cacti
@Schlemazel (parmesan rancor):
It’s also always chapped my ass that the media regards Robert Bork as someone who was denied a deserved seat on SCOTUS.
Bork was the only member of the Nixon administration who was unethical enough to fire Archibald Cox, rather than resign in disgust.
jl
@catclub: Sometimes I think if they spent less time writing crap like that, and less time practicing their professional journalist intonation and cadence (which helpfully points out all the obvious bogus ‘ironicality’ and leaden trivial contrasts and parallels, like someone beating you to death with a mallet), they might have room for facts and history and news.
But, whatever, they are pros and I am a mere corporate news information product consumer. I should know my place.
Nominus
@Mandalay: The way it gets better is wait until he can trash the GOP convention on his way out. Going 3rd party now doesn’t cause enough damage. His slap fights with Cruz and Jeb! have gotten to the point that he wants to stomp on them before he’s done. Being the petty and petulant man child that he is, he will be sure to leave a yooge hole when he goes.
SiubhanDuinne, Annoying Scoundrel
@Baud:
Alan Greenspan’s first wife also had the last name of “Mitchell.”
Cacti
@LosGatosCA:
Yeah, but Gore sighed and Kerry looked French!
Baud
@SiubhanDuinne, Annoying Scoundrel: Now I’m curious what his next wife’s last name will be.
Cckids
@MikeBoyScout: That was awesome. I need a cigarette.
Mandalay
@Citizen Alan:
Seriously?
She was well known for years before she married Greenspan. Why the fuck should she have to change her name? That’s as absurd as arguing that her husband should have changed his name to Alan Mitchell.
Iowa Old Lady
@Mandalay: What’s Trump complaining about now with regard to the Republican party? How are they treating him badly today?
Adam L Silverman
I know Bryon Moraski. He was an assistant professor of political science at UF when I was doing my post-doc there. Sharp guy.
PaulW
The shift from Kennedy as the center to someone like Kagan is huge in several ways:
1. abortion goes from a limited legal-with-restrictions to easier access for women to abortion and birth control as health care options.
2. the conservative fight to suppress voter turnout ends the second those cases reach SCOTUS.
3. the choices of donuts brought in every morning goes from cream-filled powdered to blueberry cake. …what?
PaulW
@Adam L Silverman:
go Gators
Marc McKenzie
“If Obama appoints Scalia’s successor, the Supreme Court will really jump leftward”
But…but I thought that Obama was really a Republican, or a “tactical Republican” according to some comments I’ve seen in Balloon Juice over the past few months…
Gin & Tonic
@Baud: He turns 90 in about three weeks. I don’t think there’s another Mrs in his future.
jl
@Iowa Old Lady: They are lying and saying mean things about Trump.
Cruz in particular.
I heard Trump on the news where (I think, as far as I could figure it out) saying he will personally file a lawsuit challenging Cruz’s eligibility if Cruz doesn’t stop the lying and the mean talk.
amk
@David ?Canadian Anchor Baby? Koch:
¿Jeb? will bring out his dad next?
Citizen Alan
@raven:
My point is that when Greenspan was still chairman, the fact that they were married is something that should have been disclosed. I mean, every single time Steve Benen at MaddowBlog writes the words “Planned Parenthood” he mentions in the last paragraph that his wife works there.
PaulW
@David ?Canadian Anchor Baby? Koch:
The Bushes can’t even get South Carolina’s smear machine working right?!
…it’s not that Jeb sucks at campaigning. it’s that his handlers suck at campaigning.
Cacti
@PaulW:
4. The line drawn through the following Second Amendment clause “A well regulated militia, being necessary to the security of a free state,” gets erased.
jl
@MikeBoyScout:
IMHO, Scalia was so confused about his judicial philosophy, even the quotes they are playing on the news make no sense. So, for me, it is jarring, what is said about him, and then to hear his bizarre quotes.
Some of them make sense, like one I heard today about the Constitution has to stay the same in some sense, while laws can change. But that is a pretty obvious and trite observation. Most of them are incoherent. But, IANAL, and I am a liberal that Ted Cruz says is evil and out to change our country into something people will not even recognize anymore.
Howard Beale IV
@Mike in NC: Just remember who she goes to bed with every night.
Schlemazel (parmesan rancor)
@efgoldman:
Thank you, that was beautiful
Davebo
I love you Anne but this isn’t really blogging, it’s news/tweet aggregating.
And I think you can do better than Matt Drudge.
jl
@Cacti:
” A well regulated militia, being necessary to the security of a free state,”
That is just throat clearing for the important point, that everyone gets the all the weapons and ammo they want. It could have said “Since a guy can make a lot of money collecting guns” or “Might be a day when you can shoot whoever you want” or:”Duck hunting passes the time so well”.
I think Scalia, Originalist Constitutional Scholar was all on board for that idea.
Edit: I think Scalia Originalist Constitutional Scholar superhero stuff would be a hit and make a lot of money. I’ll work up a pitch for the reactionaries. Get some product out in time for the Senate fight.
Edit2: Silverman can be a the body double. He lifts weights and is interested in Second Amendment. Adam Silverman, you around? You interested in a new gig?
JPL
@jl: Years ago, in order to make a point, Scalia quoted from the magna carta cuz of the founding fathers. He reached a conclusion and then just winged it. I’m not sure he ever made sense.
SiubhanDuinne, Annoying Scoundrel
@Baud:
Also mildly (very mildly) interesting is that both husbands of his first wife, Joan Mitchell, had the first name of Alan (Greenspan and Blumenthal, respectively).
JPL
So why am I having thunder storms? The dog is not happy.
gratuitous
Well, when people start considering whether the rights in the Constitution apply to all citizens or just some of them, you either have to come up with new and interesting reasons to deny people their rights, or you say “Yep, the Constitution applies even to them.” It does tend to move a person leftward.
Mandalay
@SiubhanDuinne, Annoying Scoundrel:
Dubya’s niece Lauren married the son of Ralph Lauren, to become Lauren Lauren, which is a pretty cool handle.
PhoenixRising
@Baud: hahhahahahahaa you’re killing me. Republicans doing the right thing for the country to promote citizens’ faith in our democracy?
On the national unity front: I’m so old, I can remember when SCOTUS appointees named by one candidate’s father stopped vote counting in a tropical province run by that candidate’s brother to award the Presidency to that candidate…and I was so naive, I assumed that the selected individual would govern in a national unity promoting fashion, simply because that would be how Republicans from 1960 would have done it.
I’m also so old that I recall how badly W was screwing up his job on 9/10/2001.
Baud
@SiubhanDuinne, Annoying Scoundrel: All of this nominal incest talk is creeping me out.
gogol's wife
@LosGatosCA:
I’m glad there’s someone else who’s convinced he wore a wire.
Baud
@SiubhanDuinne, Annoying Scoundrel: I tried to respond but got moderated because of my naughty language.
Adam L Silverman
@Cacti: I wrote this as a reply to jl in the previous thread in regards to Senator Cruz’s cry that a Democratic president’s appointment to the Supreme Court would wipe out the 2nd Amendment:
“The Supreme Court cannot declare an enumerated right in the Bill of Rights unconstitutional or wipe it out. The most they can do, if they get the right case, is roll back Heller to the prior to 2008 status quo. This would mean that there is an explicit right to keep and bear arms in relation to service in the well regulated militia, which has been surpassed/replaced by the National Guard, and an implicit right to keep and bear arms for individual use. While this will inconvenience folks in DC, as well as Chicago as it would wipe out the McDonald ruling, and the folks in California suing to get their county sheriffs to actually issue their concealed carry permits, it isn’t going to over rule the 2nd Amendment. Nor is it going to mean anyone has to turn in their firearms.”
Howard Beale IV
@Gin & Tonic: He probably needs a crane to get it up.
Germy
@gogol’s wife:
He had a definite bulge. And not in a nice way.
Baud
@JPL: Maybe the dog needs a dog wedding.
jl
@PhoenixRising: Important we wait to after the election for the next nominee, then. We want to keep that kind of judicial independence.
Obama appoints somebody, and confirmed, it will be corrupt. Maybe will grant Obama unconstitutional discounts to shaved ices during Hawaii vacations. We just don’t know!
Fred Fnord
Not entirely sure why we are so sure that Obama would nominate someone to the left of Kagan, though. Certainly several of the names being floated are to her right.
burnspbesq
@jl:
If Democrats continue to control the Presidency and Republicans continue to control the Senate, the actuarial tables suggest that by around 2023, Roberts will be the sole remaining Justice. Did someone say “long game?”
JPL
@efgoldman: Just wait until tomorrow when you are sixty degrees warmer. Will you be singing Hallelujah or expressing wtf.
jl
@Baud:
” I tried to respond but got moderated because of my naughty language. ”
You campaigning in the BJ blog comments again? This is family blog and doesn’t allow that kind of language, or imagery, or anything in that general unsavory direction.
Jim, Foolish Literalist
@Marc McKenzie: You rang?
@Fred Fnord: they’re….. here!
Baud
@Adam L Silverman: My guess is that if we get a liberal court, they won’t overrule Heller directly but give the feds and the states a great amount of discretion in deciding how best to regulate firearms.
amk
@David ?Canadian Anchor Baby? Koch:
ben & jeb – getting iced & creamed.
Mandalay
@Iowa Old Lady:
Trump’s beef is that the RNC is not taking action against Cruz for telling lies about Trump.
You’d roll your eyes at a seven year old kid pulling that kind of nonsense, and it’s coming from someone who has a genuine chance of becoming our next president.
jl
@burnspbesq: The Roberts passes and all current lower court rulings stand forever. Originalist Constitutional Nirvana ensues.
Sounds like a plan to me. I’ll wait for the GOP to announce it though and listen to pundits praise it as the next step in nonpartisan balance. IANAL, you know.
Baud
@jl:
Yeah, I’m surprised I haven’t been banned outright yet.
El Caganer
@amk: Didn’t have my glasses on. I thought you were suggesting that he bring out the dead. Well, that might work, too.
The Lodger
@jl: Sounds like the Judge Scalia recurring feature in Tom the Dancing Bug. Using my phone so no link.
Adam L Silverman
@jl: I’m not an unwell, 79 year old, cigar smoking, grossly obese, Italian American lawyer. So I’m out on those scores. As for the 2nd Amendment: I’m just well read on it because the topic interests me. In 40 years, through a concerted effort of scholars, academics, researchers, policy advisors, lobbyists, and politicians, the plurality, if not bare majority view, of Americans understanding the 2nd Amendment has been shifted closer to Associate Justice Scalia’s. As someone who is professionally interested in the power of ideas, using them to achieve one’s objectives, and identity – this is fascinating. Right now I’m reading Michael Waldman’s The Second Amendment: A Biography. I’m only a couple of chapters in, but its very well done so far. I also highly recommend Adam Winkler’s Gun Fight on the politics, politicking, and jurisprudence of the Heller decision.
jl
@Adam L Silverman: Silverman is some kind of liberal, he is trying to trick you.
And BTW, is Adam interested in doing some work in my upcoming Scalia, Originalist Constitutional Scholar superhero project? We’ll have a lot of product placement tie-ins for the SUPREME APOCALYPTIC battle coming up. $$$$$!
Adam L Silverman
@Baud: you’re free now.
Germy
@The Lodger:
http://boingboing.net/2015/07/08/tom-the-dancing-bug-judge-sca-3.html
RSA
I haven’t actually read the work, but if this is the argument, it seems to be based on some pretty strong assumptions. More specifically, this is how you’d describe a set of nine voters who don’t know each other and don’t talk to each other, who just vote based on their personal preferences. But some Supreme Court justices apparently persuade each other to vote in different ways… I think having a powerful liberal voice on the court could make more of a difference than just changing the median.
Germy
Scalia advises Clarence Thomas on ethics:
http://boingboing.net/2011/02/16/tom-the-dancing-bug-36.html
SiubhanDuinne, Annoying Scoundrel
The last ~50 hours of commentary on Scalia makes me more eager than ever for Cheney to finally shuffle off, just to see what people will say.*
*(Not the only reason)
jl
@Adam L Silverman: I just need a good workout type body to put a Scalia head on top of through the magic of computer animation. GOP needs to get product tie-ins to go with their roll-outs and this one will be supremely apocalyptic, I hear that all the time on the news.
Edit: and yes the virtual Baud! 2016! campaign has greatly influenced how I think about these things. I hope Baud is proud of the influence he has had on young impressionable minds.
Germy
Onion headline:
Obama Compiles Shortlist Of Gay, Transsexual Abortion Doctors To Replace Scalia
Adam L Silverman
@Baud: Heller already allows that. Scalia kept the reasonable regulation interpretation that is in every pre Heller 2nd Amendment ruling. The issue, of course, is what exactly is a reasonable regulation? And some of that is in the eye of the beholder.
trollhattan
@SiubhanDuinne, Annoying Scoundrel:
Maybe Liz will smother him with a pillow at a huntin’ camp so she can harvest the Wyoming sympathy vote. “So sorry your
daddyVoldemort done kicked it.”a hip hop artist from Idaho (fka Bella Q)
@raven: Thank you for not endorsing the term “maiden name.”
We’re actual people both before and after marriage, so I prefer “real name,” or “birth name.”
I'mNotSureWhoIWantToBeYet
@Germy: They forgot “atheist, Muslim, Liberal” also, too.
;-)
Cheers,
Scott.
Adam L Silverman
@jl: please see comment 123.
SiubhanDuinne, Annoying Scoundrel
@Cacti:
“The Impotent Dissents” would be a good name for a band.
Adam L Silverman
@jl: You all do know that Obamacare covers mental health screenings, right? I read it in a Mayhew post.
Mandalay
@Nominus:
I’m pretty sure it’s just business with Cruz, who presents a real threat to his success.
But it is purely personal with Jeb. I’m not alone in wondering whether Governor Jeb did something to shaft Trump’s business plans in Florida years ago, and that Trump’s sole reason for joining the race was to fuck Jeb up, and hurt him really badly.
If so, he is succeeding.
Adam L Silverman
@a hip hop artist from Idaho (fka Bella Q): pre and post formalized cohabitation transition nomenclature?
ThresherK (GPad)
@Germy: I’m among those who want to know what an xray would show there, too.
jl
@Adam L Silverman: IANAL, abut from what I understand, Scalia claimed he kept a reasonable regulation interpretation, but did not do much to explain what that would be. That does not make up for how the way the majority parsed the phrasing of the whole Second Amendment opened it up to all sorts of interpretative problems.
And, in my humble IANAL opinion, divorced from the original intention of the Second Amendment, it is really hard to describe what a reasonable regulation would be in an operational way.
For people who don’t want to create all these unenumerated rights for the lesser people, seems like their interpretation created a lot of unspecified rights that could be enforced with a gun, with no real test. (Edit: To clarify, created a lot of unspecified rights that where a gun was so convenient or necessary for enforcement, would be hard to characterize a test).
But, maybe I don’t understand, and a lawyer can explain it to me.
PhoenixRising
@a hip hop artist from Idaho (fka Bella Q): However, a real name and a birth name are 2 different things.
Let’s leave the ‘rules, not human beings with their own ideas, decide what people answer to’ logic to the self-styled ‘conservatives’, shall we?
Adam L Silverman
@jl: To get a full treatment you’ll need to read Winkler’s book. Short of that give these a twirl:
http://www.theatlantic.com/magazine/archive/2011/09/the-secret-history-of-guns/308608/
http://www.chicagotribune.com/lifestyles/books/ct-books-gunfight-review-story.html
https://newrepublic.com/article/90832/gunfight-adam-winkler
Anoniminous
@a hip hop artist from Idaho (fka Bella Q):
Speaking as a computer professional a first name, a space, and then a twenty digit number would save a whole lot of foo-foo.
Corner Stone
@Adam L Silverman:
I always thought those were purely performance art. Are you saying people are supposed to read those?
Adam L Silverman
@Corner Stone: Yes. They deal with one of the most important public policy issues of our time. The refereeing ones are okay too. There will be a quiz later. You best get cracking on the archives.
Corner Stone
@jl: Listen, we get it that Valentine’s Day can be difficult for single people. But, really. Stressing that you were open to sodomy twice in the same post, in all caps mind you, just seems a touch of the desperate.
schrodinger's cat
@a hip hop artist from Idaho (fka Bella Q): Thank you sister friend! I agree as someone who did not change their last name. There are many reasons to hate Mitchell but not changing her last name is not one of them.
Adam L Silverman
@schrodinger’s cat: She’s married to Alan Greenspan, isn’t that punishment enough? There’s no telling what he caught from sleeping with Ayn Rand.
Corner Stone
@Adam L Silverman: Ho-leee sheeitt. That was real? They were all fucking real?
schrodinger's cat
@Adam L Silverman: Eeww brain bleach plz. Do not want to imagine that.
Adam L Silverman
@Corner Stone: Yes, yes they were.
Suzanne
@Corner Stone:
QFGDMGT.
(Quoted for goddamn motherfucking truth.)
So this takedown of David Brooks is one of the greatest things I have ever read.
More GDMF truth.
Adam L Silverman
@schrodinger’s cat: I’m not recommending it, I’m just reporting the sad, historical reality.
And his doctorate in economics is one of the most dubiously awarded PhDs in the history of the degree:
https://books.google.com/books?id=2X-n45AY_ZsC&pg=PA9&lpg=PA9&dq=questions+about+alan+greenspan%27s+phd&source=bl&ots=9xaM09wivE&sig=Y0b1S0in1j4919NbbCxy-4Y1r50&hl=en&sa=X&ved=0ahUKEwjA0IHDr_vKAhUBlh4KHQ-wCXs4ChDoAQgsMAM#v=onepage&q=questions%20about%20alan%20greenspan's%20phd&f=false
See pages 9 and 10 of Chapter 2.
jl
@Corner Stone: I am not admitted to the bar of any state (IANATTBOAS), so I don’t know whether I can sue you for defamation.
I expect a BJ lawyer to appear and tell me that I can at any moment. Or maybe Baud! 2016! will make it law on day one. Either is fine with me.
Howard Beale IV
@efgoldman:
Regular or atomic?
jl
@Adam L Silverman: Shhh. You’re going to blow our cover. My dissertation was on home economics and consisted of clippings of my budget recipes!
Also, thanks for the links. The one by Winkler had some interesting historical facts, that indicated to me that there was a lot of historical material available to write a reasonable test for when unenumerated rights that required a gun over ruled the interests of the community, but the conservative justices did not try very hard to do that. But, I will do more reading on it, or try to, before I shoot my keyboard off again.
? Martin
Democrats need to get their shit together about winning the Senate back. Congress goes into session 2 weeks before the inauguration, which means that Obama gets two weeks under the next congress to get his nominee through – provided Dems win Senate back.
J R in WV
@efgoldman:
Good job, EFG. Don’t leave any doubt as to where you stand with regards to the Republicans, and Senator Cruz in particular. They are almost all traitors to their oath. Vile is a word embarrassed to be associated with Cruz.
I stand with you on this issue!!
Adam L Silverman
@jl: I highly recommend his book. He did a good job. It basically has three themes that are interwoven. The first is the judicial history of the Heller case and decision. It includes the infighting among the different 2nd Amendment groups, as well as a brief, but interesting treatment of just how bad research into firearms and their use in the US is. The second is a history of the 2nd Amendment beginning with the Founding. The third is a history of gun control/2nd Amendment restrictions.
jl
@Adam L Silverman: Going on what I read in Posner’s article, not sure I agree with Winkler’s conclusion on the Heller case, but if he presents reliable research on second and third items, I will read the book.
Edit: thanks again for mentioning it.
J R in WV
@gogol’s wife:
It was so fuckin obvious that Bush needed a wire to help him tell what day it was that no one even bothered to deny it.
The man is brain dead. Has been for decades. That’s why he did something as stupid as to tell a CIA wonk, after being warned that bin Laden was planning to attack the US using airliners, “All right, you’ve covered your ass, now go away!” or words to that effect.
And now the Republicans are calling the obvious fact that bin Laden’s successful attack happened while Shrub was president a slur, and so on.
Disgusting.
cokane
Per the WaPo article, it actually seems the most likely outcome is a justice between Kennedy and Kagan, which would be an enviable job to get, becoming essentially the new median justice, quite a powerful position at least until the Court changes.
danielx
@Mike in NC:
Not on television now, but yes – David Gregory.
J R in WV
We need to keep it in mind that the Republicans control the behemoth corporations that rule the world’s economy. They have already forced the price of oil down below any reasonable price, which has apparently ruined most giant corporations’ chances of making a profit for decades to some, somehow.
I always thought that lower costs of production always yielded a higher profit, but what do I know?
Anyway if a Democrat appears likely (or even an outside chance of) to win the Presidency, the Republican Masters of the Universe can always create another Great Depression, or Great Recession, or whatever they decide to name their next pride and joy.
And we all know that in a Depression, or Recession, the incumbent political party gets the bums-rush out the door into the gutter. So no more liberal safety-net bullshit for us, no, no, no!
Back to the hobo-camps and soup-kitchens, if the churches still want to do that kind of thing.
No one will be able to afford a lawyer, so the courts will be redundant.
dww44
@raven: This is o/t but just a few minutes after your post a bulldog (still an English bulldog to me) won her group, Non-Sporting, at the Westminster Kennel Club Dog Show. Annabelle, whose owners, I believe, are up the road from you in Lawrenceville, will be in the Best of Show competition tomorrow evening. I ‘m actually surprised that the standard Standard Poodle didn’t win, although standard poodle placed third behind Annabelle’s First.
catclub
@J R in WV:
Well they did in 2008 when it looked like a Democrat was likely to get elected. Is that what you meant?
They seem to have forgotten to do so in 2012. Unemployment fell the entire year and was below the deadly 8% by election time. I guess they considered Romney untrustworthy.
dww44
@Mandalay: I’m with your there. I opined on Saturday evening when news of Scalia’s death had just hit, how obnoxious I found her gleeful remark that “Republicans won’t approve any Obama nominee so who’s he gonna find that is willing to put himself/herself through a meat grinder for the next few months……?”
@Omnes Omnibus: Even if she didn’t say it, ( I think Dana Bash who was on the same panel did), she pretty much implied that Obama was a lame duck. It was evident who has that lady’s ear when she’s not on camera. It ain’t no left of center politician for sure.
SFAW
@J R in WV:
Almost?
Jay C
@? Martin:
To coin a phrase: AB-SO-FUCKIN-LUTELY!!!!!
A nice thought, but probably an unlikely scenario: assuming the Republicans manage to carry through on their threat to keep any SC nomination of President Obama’s completely out of the Senate – even a Democratic-controlled Upper House is not going to be able to process a nomination in just two weeks: much of which will, as customary, be taken up with organizational matters. And also (while I would love to be proved wrong on this) , even the most (Dem-) optimistic reading of polls re this year’s Senate races only indicate a potential Democratic Majority of a few seats – few enough that the GOP Minority can make things awkward – as we know they will….
Soylent Green
Well, that beats Ralph Lauren’s real last name, which is Lifschitz.
NotoriousJRT
Please. Bush 41 replaced Thurgood Marshall with Clarence Thomas. Under this calculus we should get a flaming liberal Italian-American nominee. Frig the gotta balance the spectrum BS.
NotoriousJRT
@Botsplainer, Cryptofascist Tool of the Oppressor Class:
Sorry, I don’t see it or won’t see it. I’ll be dead before he wakes up and dies right.
Matt McIrvin
@Cacti:
Over the years that’s been blown up into the greatest political crime of the century, and it justifies every single act of constitutional hardball played by Republicans.
Robert Bork got hearings and debate, and he was rejected in a majority up-or-down vote because the consensus was that he was a far-right whackjob and the Senate majority didn’t approve of him. There was no filibuster, no procedural trickery, no attempt to keep anyone from even talking about him or voting for him, no assumption that anyone Reagan appointed would be a priori ineligible.
And he was a far-right whackjob, as he proved in countless statements and opinion columns after that.
Somehow, the blanket refusal to hold a vote on any nominee from Barack Obama is the same thing as this.
Matt McIrvin
…Here’s Robert Bork, refusing to withdraw his nomination after the Senate Judiciary Committee recommended rejecting him:
And he got his full debate and final Senate decision. Since it went the wrong way for Bork, it’s generally regarded as shady and illegitimate.
Reagan followed up by nominating Douglas Ginsburg, who withdrew for kind of bullshit smoked-pot reasons, then Anthony Kennedy, who was of course confirmed.
Matt McIrvin
@efgoldman: I thought the filibuster should have been eliminated even back when Harry Reid was cutting deals to preserve it. They should nuke it completely.
Republicans and Democrats who complain about the expanding power of the executive branch (which I think is a legitimate concern) should realize that the more Congress becomes a mechanism for pure obstruction, the more the White House is going to find ways around it. Elections in which the same party takes Congress and the Presidency should at the very least have consequences.
Matt McIrvin
@catclub: I don’t think there are bad guys controlling the business cycle by pulling a giant lever, but I do think the chances of starting a new recession are higher now than they were in 2012. The latest Silicon Valley startup bubble seems to be bursting, and there’s a lot of new international economic trouble. We could have a big crash this year and go back into recession, without the recovery from the last one really being finished for a lot of people.
Even if it doesn’t happen this year, I think the chances of it happening during the first term of the next President, and fouling the political situation for whichever party wins, are high.
Grumpy Code Monkey
So, random thoughts…
First, I hadn’t realized that Scalia and RBG were such close friends; apparently the only thing they really disagreed on was their view of the Constitution and the courts. So now I am sad for RBG, because she’s lost someone she really cared about.
Secondly, Ars Technica has a retrospective of some of Scalia’s opinions and dissents, and I have to say in those cases that when it came to personal liberty he was on the right side – Maryland v. King, Jones v. United States, Kyllo v. United States, Florida v. Jardines, etc.
I think Heller was unfortunate, and his dissents in Obergefell and Lawrence were clearly not grounded in the law, but on balance I don’t think he was 100% the monster he’s been portrayed as.
Would I prefer a more “liberal” justice in his place? I honestly don’t know.
I feel pretty confident that McConnell will hold the line; Obama will not get another SC nominee confirmed. Yes, it will bite them in the ass, but having kept the Negro in his place will have been worth it for them. So winning the Senate has to take priority this go round.
Matt McIrvin
@Grumpy Code Monkey: I actually think Scalia was only the third worst justice in the current Supreme Court. But he was the noisiest of the hard-right contingent.
The other thing I learned recently is that Scalia was actively pulling for the nomination of Elena Kagan, not just when it happened but all the way back when Sotomayor was nominated.
gorram
@Baud: Someone else may have already responded to this but the article shows that happening (under their definitions of “right” and “left” that I’m not sure if I agree with*). The trick is that he did that after galloping to the right in the first ten to fifteen years as a justice, so it’s barely a net leftward trend.
My read of it is that the general rule that justices drift leftward doesn’t really apply to Scalia. He was an ideologue who drifted right when he was at his peak of influence and power and only started to skew leftwards due to increasing scrutiny/pressure as he stopped being the Reaganite Young Thing on the court and more Old Man Yells At Cloud.
*Hello Overton Window anyone?
gorram
@Botsplainer, Cryptofascist Tool of the Oppressor Class: We don’t have time, sorry.
Groucho48
I just came across this rather long article on the 2nd Amendment and found it interesting and informative:
Groucho48
Heh. My link disappeared. trying again
http://thesantosrepublic.com/2015/12/06/guns-the-founding-fathers-and-the-real-second-amendment-americans/
dy
If Republicans are going to refuse to consider and confirm a qualified liberal nominee, why shouldn’t Democrats promise to do the same thing should any Republican win the presidency? Why do we need to suddenly have Democrats surrender the moment Republicans win? Obviously to successfully prevent a confirmation, Democrats will need to win back the Senate (unlikely in the event Republicans win the presidency), but Democrats should still be entitled to use the filibuster or individual holds to prevent any nomination from getting through. I’d like to see more Democrats and liberals publicly stating this threat–if Republicans are going to change the rules, then so are we.