Justice Stevens retiring, who will Obama choose to replace him?

[hotatlboi]

This could get interesting.

Will it be another woman?

Whoever it is I sure hope it is a social progressive who will support gay marriage when it gets to the SC.

 

[grantt]

Since whom ever he choses will not change the balance of the court, expect him to chose far left of center as it could be his last chance at stacking the court. As to what it could do to the elections, he could care less. This is his time.

 

[NickCole]

Since whom ever he choses will not change the balance of the court, expect him to chose far left of center as it could be his last chance at stacking the court. As to what it could do to the elections, he could care less. This is his time.

I sure hope that's the case.

But I doubt it.

 

[Jack Springer]

It would be interesting if Obama choose a moderate who after joining the group - leaned hard to the right.

I suppose he'll chose another minority, probably a woman . . . maybe even a black woman, who believes that the goal of the supreme court is not to interpret the constitution but level out the playing field between the have's and the have-not's.

 

[palemale]

I never said that I wanted another Scalia on the court. Although Scalia firmly believes in strict constructionism, his dissenting opinion in Lawrence v. Texas was heavily weighted by his views of stare decisis. Stare decisis is a very complex judicial approach. One one hand, it preserves consistency of interpretation, something that our court system (on all levels) needs. But, if the court is too consistent, if the court is too focussed on stare decisis, unconstitutional laws and prior interpretations might never be seriously examined. If our Supreme Court focussed too heavily on stare decisis, we would still have segregation in our schools. So, on this matter, I disagree with Scalia's approach to Lawrence v. Texas. I even feel that the majority opinion didn't focus enough on the Equal Protection Clause. If I recall, only O'Connor gave much weight to this. The majority justices focussed on reversing Bowers v. Hardwick, focussing on due process and privacy issues. I don't see DOMA being decided on those issues, but rather on the Equal Protection Clause. What would hinder DOMA being found unconstitutional would not be strict constructionism, but other judicial philosophies, such as when stare decisis is of major import. Each justice seems to have his/her own view of when stare decisis is of major import. For example, many current justices that support Roe v. Wade support it based on stare decisis.

Another thing that would affect DOMA being found unconstitutional is political and personal bias. And, I believe that I've clearly stated previously that I am against that. This bias occurs on the left and right as an FYI. To argue that only Scalia, Thomas, Alito and Roberts are the only ones guilty of bias does not hold any credibility. Both democrats and Republicans have their political and personal leanings. As we know, justices often choose to retire when their favored political party is in office.

In regards to the 2000 election, it was Gore that started the judicial fight by challenging the results of the election. He is the one that wanted to change the rules by having Florida law (a deadline in counting ballots) challenged. Harris was simply applying the written law in saying that the election deadline had come and gone. Gore challenged this and the Florida Supreme Court set arbitrary deadlines. I don't want any court writing ex post facto laws via their rulings. The US Supreme Court decided correctly in pointing out what the Florida court had done. The Florida court had basically tossed equal protections and established law (a deadline as to when the election should be certified) and re-wrote the law. That's judicial activism. Can you imagine the implications of this if it were widespread? We'd have judges in every state changing state law after each election. I support upholding written law, unless it be deemed unconstitutional. And, having an election deadline is hardly unconstitutional. (Of course, it's much more complex that this because of the varying ballots in each county. Many scholars believed that this aspect alone warranted judicial involvement. I, however, disagree with the Florida court's remedy, something that never would have addressed unfairness unless ALL counties had been recounted and in identical ways).

The challenging thing regarding interpreting law is that every person is biased, including myself and everyone else. I believe that DOMA can be deemed unconstitutional based on the Equal Protection Clause AND while upholding a strict constructionist standard. But, as we know, interpreting law is not as simplistic as I've made it out to be (in my above paragraphs). There are often varying dissenting opinions and rationale concerning how an end result is reached. Concerning Bush v. Gore, many US Supreme Court justices agreed that Equal Protection Laws were being violated. But, they disagreed on how to remedy it. Thus, going back to what I mentioned earlier, I tend to favor a balance of justices. Although I may appreciate Scalia's strict constructionism philosophy, I will disagree with him on other issues, including how he elevated stare decisis above equal protection in Lawrence v. Texas. Just because someone is a strict constructionist does NOT mean they must lean right politically. To assume this would be akin to saying that there can only be two political parties in the US. O'Connor and Kennedy are more like Independents at times. Although I can't say that I always agree with them (or any justice always), I appreciate this about them.

It would be nice if the Conservatives on the Supreme Court were actually strict constructionists. They are in fact the most activist judges in recent memory. They strike down more laws of Congress, probably since any court since the New Deal.

Bush v. Gore is the essence of judicial activism and the absence of strict constructionism. It was a disgraceful, outcome determinative decision that was widely criticized even by many conservative legal scholars. The Constitution, in Article 2, Sec. 1, gives the states the power to appoint electors to the Electoral College. The 12th Amendment provides a process for electing the president if no candidate gets a majority of electoral votes, which conceivably could have happened if Florida hadn't gotten its act together. Instead, the Supreme Court ignored the Constitution, and discovered a new found use for the equal protection clause, which they seemed to be blissfully unaware of any time an employment discrimination case came before them.

The conservatives on the Supreme Court are only strict constructionists if they like the outcome. If applying the doctrine of strict constructionism results in a decision the conservatives don't like, they ignore it.

 

[palemale]

I agree with you that the court is inconsistent in their application of various constitutional provisions, including the Equal Protection Clause. But, I argue that both sides are guilty of this. It's not exclusive to either side.

Pertaining to Florida, scholars fall on both sides of this issue. Scholars don't take just one side.

Only the conservatives claim to be strict constructionists, but rule as activists.

I'm not aware of any scholars, save partisans maybe, who believe Bush v. Gore was correctly decided.

 

[IllgetyouHackman]

It would be interesting if Obama choose a moderate who after joining the group - leaned hard to the right.

I suppose he'll chose another minority, probably a woman . . . maybe even a black woman, who believes that the goal of the supreme court is not to interpret the constitution but level out the playing field between the have's and the have-not's.

I have to agree there.

 

[Yuki Sohma]

Elena Kagan current Solicitor General of the United States.

Interesting out of the box kinda' thinkin' would be--

Mrs. Clinton
Former US President Jimmy Carter
Former New York State Governor Mario Cumo
Former Washington State Governor Gary Locke
Federal Appeals Court Judge Gordon Liu

 

[MidnightPrism]

I would be all for Hillary and I imagine some her judgements would surprise a Democrat or two.

 

[Yuki Sohma]

^

Yepp, MP I too would like to see Hillary on the bench...hard confirmation but good stuff...but she does want to be Prez we must remember

As for her potential decisions--yeah Hillary would surprise her felow Democrats. The Clinton's...oops Hillary...is very into it and all over it (shall we say)

 

[Yuki Sohma]

... gotta be a 50 something yo openly gay constitutional legal scholar (judge) with gravitas ...

RR double but

I gotta' go do some home decorating...my nephew is visiting for Spring Break & I gotta' get his room ready & then there's still shopping to do...but first a bit of Vanilla Chai....great thread hotatlboi !!

 

[Jack Springer]

I think it's hilarious to think that Jimmy Carter would be considered. But . . . then again, we are currently in the second Carter administration.

 

[Kulindahr]

Strict constructionism? You really want another Scalia on the Supreme Court?

Scalia isn't a constructionist by any leap of the imagination. The closest thing around to a strict constructionist would be a libertarian, who knows that the best way to read the Constitution is in the light of two things: secondarily, the papers written in debating it; primarily, the Declaration of Independence.

The constitution was written 200+ years ago. No document can stand the test of time without some modernization. We didn't have computers, technology and were only a few years past the Salem witch trials when the thing was written. Our politicians are pussys and only do what is politically beneficial to them at any given moment. Consequently, we need to take what is written in the constitution and apply it to today's problems via the judicial system.

The Constitution isn't about our technological toys or our social movements, it's about basic principles about the nature of human beings. Thus it is to be read according to the meaning it had when written.

And it provides for that "standing the test of time", with the amendment process. If they'd had any grasp of the Constitution and any balls, they would have amended it to allow for Social Security rather than slipping it in by mangling some existing clause... or ignoring it.

The job of the judicial branch is not simply to repeat what is written in the constitution, it is to interpret the original document and render verdicts based on that interpretation. Alas, Alito, Roberts, Thomas and Scalia have shown no interest in that. They're interest has largely been in advancing the interest of the Republican party. How do you think the founders would have felt about the Supreme Court taking the 2000 election out of the hands of a state and placing it in the hands of the judicial branch? They would not have been pleased. It was the constructionists who found this to be A-OK, despite centuries of case law and a pretty clear argument against it in the constitution. Granted Alito and Roberts weren't on the bench at the time, but I think we can all agree how they would have voted.

Thank you -- you just showed that you do in fact understand that Scalia in not a constructionist. When it comes down to it, he's a semi-reactionary moralist.

In addition, replacing Stevens with someone who is a "strict constructionist" is not going to do ANYTHING to advance gay rights causes. It was the "strict constructionists" who tried to put the breaks on civil rights legislation. After all, were we to go with the "original text," in the minds of the right side of the court, consensual acts between consenting adults (anything gay!) would be completely illegal. Just ask Thomas or Scalia, who are both "constructionists," who voted to continue sodomy laws across the country.

There's nothing in the original text that makes any act between consenting adults illegal. In fact there's something in the text that makes such acts always legal: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Scalia doesn't believe that's in there. If you follow any of his opinions, it doesn't take long to realize that he's in the position that believes any right which isn't enumerated doesn't exist.

This is why we need libertarians on the court. When it comes to marriage, they'd look at the Constitution, not find marriage listed as something the government can regulate, and throw out all the marriage laws. It wouldn't be up to the government to say who could or couldn't get married, it would be left to "the people", where all rights rest.

If you want DOMA overturned on constitutional grounds? You should revise your desires, because there is no chance in hell that the conservative block of the court would agree with such an analysis. Just look back at Lawrence vs. Texas.

A true constructionist would do what I just outlined above. Being a constructionist myself, I'd argue that freedom of association is a basic human right, and thus covered under the Ninth. Since it's a basic human right, government has no authority to enact laws which show preference toward one sort of association over any other. Thus the government can't forbid anyone from being married, because marriage is a form of association, which must be free.

Justice Stevens largely considered himself to be a conservative. One who would not make laws, or be a judicial activist, but rather interpret the constitution based on an abstract definition. We need more justices like him.

Stevens may be the closest thing to a constructionist on the Court. I wouldn't mind another like him... if we can get a gay Asian on the Court, even better.

Your idea of a "constructionist" is ideal. However to find a justice who would most likely agree with the mentality you are looking for, especially as it relates to DOMA and other "gay" cases, it would be best to revise your definition and look towards the left side of the court.

Better a bit left than over-the-cliff right! But best to look for a candidate who has stuck to the Constitution and not ideology.

 

[Kulindahr]

Since whom ever he choses will not change the balance of the court, expect him to chose far left of center as it could be his last chance at stacking the court. As to what it could do to the elections, he could care less. This is his time.

If he does... God help us all!

A "far left" choice would just be a mirror of Scalia, slamming his personal prejudices down on the Constitution. Scalia may use standard legal modes or whatever in writing his decisions, but at root those are just tools to him; whatever standard he picks, he picks because it will get him the result he wants.

It would be nice if the Conservatives on the Supreme Court were actually strict constructionists. They are in fact the most activist judges in recent memory. They strike down more laws of Congress, probably since any court since the New Deal.

The conservatives on the Supreme Court are only strict constructionists if they like the outcome. If applying the doctrine of strict constructionism results in a decision the conservatives don't like, they ignore it.

Quoted for excellence.

honestly and all j/k aside

gotta be a 50 something yo openly gay constitutional legal scholar (judge) with gravitas

shock the fucking world OBAMA!!!

You forgot Asian.

 

[Kulindahr]

You are correct on both counts.

It still shocks me to this day that the Florida Supreme Court thought that it could rewrite Florida law and set new dates for the recount deadline. These dates were already established by law. The US Supreme Court essentially told the Florida courts that they must stick within the law vs. changing it. In short, the US Supreme Court didn't decide the election. They essentially told Florida to obey the written law. Gore had an opportunity to fight it further (within Florida) and decided not to. Gore knew that there were no legal merits in challenging the dates set forth by Florida law. It's all a matter of legal and public record, even if many want to ignore that fact, twist the story, etc.

Absolutely correct. From a certain point of view, SCOTUS didn't "hear" the case at all, just told Florida to grow up and obey its own laws.

Other names to imagine: Simon Cowell, Bill Clinton and Oprah.

Are you out of your mind??????

 

[Kulindahr]

Just some humor.

I'd rather have Regis Philbin.

 

[Kulindahr]

There's also nothing in the original text which makes it expressly legal, so therefore most constructionists would defer to congress and state legislatures, which, according to the constitution, have the right to pass such laws.

It doesn't have to make it expressly legal -- that's what the Ninth is talking about!

If it hasn't been forbidden to citizens, it's legal, if it can be called a right.

What these so-called "strict constructionists" are doing is exactly what people feared: inverting the principles of the Constitution in order to stifle rights.

Or maybe we have Supreme Court Justices who haven't read the Federalist Papers (and their opposites).

 

[JB3]

It would be nice if the Conservatives on the Supreme Court were actually strict constructionists. They are in fact the most activist judges in recent memory. They strike down more laws of Congress, probably since any court since the New Deal.

Bush v. Gore is the essence of judicial activism and the absence of strict constructionism. It was a disgraceful, outcome determinative decision that was widely criticized even by many conservative legal scholars. The Constitution, in Article 2, Sec. 1, gives the states the power to appoint electors to the Electoral College. The 12th Amendment provides a process for electing the president if no candidate gets a majority of electoral votes, which conceivably could have happened if Florida hadn't gotten its act together. Instead, the Supreme Court ignored the Constitution, and discovered a new found use for the equal protection clause, which they seemed to be blissfully unaware of any time an employment discrimination case came before them.

The conservatives on the Supreme Court are only strict constructionists if they like the outcome. If applying the doctrine of strict constructionism results in a decision the conservatives don't like, they ignore it.

[removed by moderator]

In Bush v. Gore, the Supreme court decided 7-2 that the recounting scheme the Florida Supreme Court put together violated the Equal Protection clause of the Federal Constitution. There was no doubt in the minds of seven of the nine justices that the Florida supreme court had violated the law by allowing unequal counting methods to occur in each county in question. There was no judicial activism there.

Where they differed was the remedy for the situation, and whether the date of December 12th (established by the Florida legislature) should be held firm, thus disallowing any further recount. THAT was the issue that most criticize, not the main part of the judgement.

If there was any judicial activism, it occurred in Florida before it even reached the US Supreme Court.

 

[01solara]

This could get interesting.

Will it be another woman?

Whoever it is I sure hope it is a social progressive who will support gay marriage when it gets to the SC.

He should appoint himself he is far more qualified to be a Supreme than the president. I thought for a while he would be the next Carter but he is more likely to be the next Hoover. The only problem is that Joe Biden is a buffoon and an embarrassment.

 

[palemale]

honestly and all j/k aside

gotta be a 50 something yo openly gay constitutional legal scholar (judge) with gravitas

shock the fucking world OBAMA!!!

Kathleen Sullivan, constitutional law professor from Stanford has been on many short lists, but it appears that Obama will appoint her to the 9th Circuit Court of Appeals in San Francisco instead.

P.S. She's a 50 something out lesbian.