Justice Ginsburg has died; McConnell vows to fill the vacancy

[Metal god]

I don't see how Trump's coronavirus changes anything. The nomination has already been made, so (other than back room arm twisting) the White House is out of the picture. The game is now in the Senate.

Now that 2 Rep members of the judiciary committee have tested positive , would you like to change your last statement It may not even get out of committee

This is just the beginning . What was it , Wed we had one case now we are pushing 10+ . There's a 14 day incubation period that is really like 3 to 11 days but still the number of positive cases from this one community outbreak is likely far from over . I'm calling it here first , she does not get a vote before the election .

It's looking more and more likely the rose garden ceremony for her nomination was were this all started . Notre Dame President Rev. John I. Jenkins where Amy Barret taught law attended the ceremony and he also now has tested positive for Covid 19 along with several other attendee's .

This is not over by a long shot and it's going to get crazy as far as politics goes .

 

[Tom Servo]

If I was a senator I wouldn’t be comfortable voting for her without at least speaking with her.

Most probably have by now. Even if they haven't, she's been on the Federalist Society list for almost four years, and she's been the presumptive nominee for nearly that long. They've had a chance to review her record and philosophy.

 

[zukiphile]

I don't see how Trump's coronavirus changes anything. The nomination has already been made, so (other than back room arm twisting) the White House is out of the picture. The game is now in the Senate.

Now that 2 Rep members of the judiciary committee have tested positive , would you like to change your last statement It may not even get out of committee

People having a virus doesn't suspend government functions. DJT's sole role was to set forth a nominee. That some people test positive for the virus should not prevent a committee quorum or a senate vote.

 

[44 AMP]

People having a virus doesn't suspend government functions.

I wish more people could wrap their head around this. It doesn't matter WHAT government position you're talking about, there is a process in place to replace the individual holding the office if they become incapable of performing the duties of the office, no matter WHAT the cause is.

With everyone in the country who is required/forced to work from home, avoid face to face meetings and such do you think they will shut down Congress if they can't meet face to face with safety?

Some might want that, maybe even some in Congress, but it shouldn't be allowed to happen. A Supreme Court judge dies, we appoint another. Should any of the Congress die or medically retire, we will appoint/elect their replacement. Life goes on, and so does the business of government.

 

[Metal god]

I wish more people could wrap their head around this. It doesn't matter WHAT government position you're talking about, there is a process in place to replace the individual holding the office if they become incapable of performing the duties of the office, no matter WHAT the cause is.

With everyone in the country who is required/forced to work from home, avoid face to face meetings and such do you think they will shut down Congress if they can't meet face to face with safety?

Some might want that, maybe even some in Congress, but it shouldn't be allowed to happen. A Supreme Court judge dies, we appoint another. Should any of the Congress die or medically retire, we will appoint/elect their replacement. Life goes on, and so does the business of government.

44 I agree 100% however doesn't those same rules apply for everything . I'll admit I don't know all the committee rules but her nomination needs to be voted out of committee correct ? The republicans are down two votes right now and if they stay down those two votes how does it get out of committee ? Then take it to the next step , If they can't vote in the committee they won't be voting on the floor either .

People having a virus doesn't suspend government functions.

Again I agree 100% but that does not mean that work is done by people with a highly contagious disease . Those people say home while the rest of the workers do the work .

I don't remember which bills earlier this year this came up in but I believe a few votes were closer then they would have been because law makers were either sick or quarantined . To vote don't the members need to be present ? What mechanism are you speaking of that will allow someone else to vote for a sitting senator if they are to sick or contagious to be on the floor ?

I get it , the government is as essential as it gets . How ever there is no job so essential to put other lives at risk to do . Doctors are pretty important but would you want a Dr that has covid working on your teeth or other medical issues . There is no reason to purposefully place a person with a highly contagious dieses in a room with healthy people . Do you want the covid positive checker at the store coughing all over your groceries , no . Yes the store stays open but that checker stays home until they test negative for how ever many times the experts say is safe .

I want this to go through just as much as the next guy but I don't think we are all looking at the same picture . This is a highly fluid situation and to just blindly plow forward is not wise .

That all said I don't have an issue with where everything stands at this very moment but I'll say it again , this ain't over by a long shot .

 

[zukiphile]

Again I agree 100% but that does not mean that work is done by people with a highly contagious disease . Those people say home while the rest of the workers do the work .

I don't remember which bills earlier this year this came up in but I believe a few votes were closer then they would have been because law makers were either sick or quarantined . To vote don't the members need to be present ? What mechanism are you speaking of that will allow someone else to vote for a sitting senator if they are to sick or contagious to be on the floor ?

There are instances in which a member on the other side of an issue will abstain in recognition of an opponent's inability to be present.

How ever there is no job so essential to put other lives at risk to do .

Anyone who drives a car to the office puts lives at risk to do his job. How we weigh those risks is highly variable, especially over the last seven months. We had people die in the invasion of Grenada for a result less substantive and consequential than Barret's confirmation.

I want this to go through just as much as the next guy but I don't think we are all looking at the same picture . This is a highly fluid situation and to just blindly plow forward is not wise .

What is the wiser alternative?

 

[44 AMP]

I'll admit I don't know all the committee rules but her nomination needs to be voted out of committee correct ?

Understand there is a difference between the law, and Senate procedure.

The Constitution requires the Senate to "advise and consent" but nothing specific beyond that. Generally we accept that means a vote, but HOW the Senate goes about having that vote depends on the Senate's internal rules, which the Senate can, and has changed many times over the years.

As others have said, a committee approval is only a step the Senate is CURRENTLY requiring due to their internal rules and not a requirement of law.

IF they CHOOSE to, the Senate leadership can simply put her name out for a general floor vote, yay or nay, up or down, no committee involved. They have that authority. How they CHOOSE to do their business is another matter.

And, I never said, or meant to imply that people who have the virus should continue in their jobs affecting/possibly infecting people they contact. What I said was that there is a process in place to replace those people (with non-infectious ones) so that the job still gets done.

 

[Metal god]

44 , I understand all that . My point was all about the votes , if the member is not there his or her vote does not count , more specific they don’t get to vote . I don’t know maybe mitch changes the rules like Nancy did and allows proxy voting . I did not like it then and I would not like it now .

 

[raimius]

I'm rather surprised there hasn't been a push toward off-site voting.
POTUS can run WWIII from virtually anywhere. Why can't a Senator vote via an encrypted, ID verified method?

 

[Metal god]

Oh they can . The dems are freaking out that the hearing likely will be over zoom . Something tells me they realize their grandstanding doesn’t play as well over video chat .

 

[zukiphile]

Confirmed, 52-48.

 

[5whiskey]

Indeed she is confirmed. I am pleased, though I fear the side opposing ACB may actually try some of the backlash nonsense they’ve threatened (pack the court, suspend all forms of the filibuster, etc). Alas I think those threats are way overblown.

Anyone who drives a car to the office puts lives at risk to do his job. How we weigh those risks is highly variable, especially over the last seven months. We had people die in the invasion of Grenada for a result less substantive and consequential than Barret's confirmation.

Very well said, and an argument I’ve made for quite some time. There is no promise that this goes away any time soon (or ever), or that a vaccine will be any more effective than a yearly flu shot. As a matter of fact, not just no promises... it’s not even a likelihood. So we are left with the risk of coronavirus. I’m sure our odds are radically better than soldiers during d-day or Marines at Iwo Jima. I hope nothing so important, yet gruesome and costly, is ever asked of this generation. All of Europe would speak German and Jews wouldn’t exist.

 

[JERRYS.]

I hope she follows the constitution, remember how Roberts bent us over.

 

[Metal god]

Well I feel I should say , "I was wrong" . I thought for sure she would not get a vote before the election . I don't think she's going to be a Roberts type , meaning making thing up that aren't there like a tax rather then a mandate . I do believe both political sides will be surprised at times on how she will vote .

Next question is , what cases can she be a part of ? Does she need to be sworn in and be part of a hearing from the beginning or can she simply look through and read up on a current case that has been heard but not yet ruled on and be a part of that ruling ?

 

[zukiphile]

Metal God, one bad exchange with a senator, one moment of impatience, one slip of the tongue, or any of a number of other small events could have made thing turn out differently. I retired my crystal ball in 2016.

I was pleased to see Thomas appearing healthy and vital. When his voice is lost, I doubt his view will be replicated by any successor.

 

[Aguila Blanca]

I was pleased to see Thomas appearing healthy and vital. When his voice is lost, I doubt his view will be replicated by any successor

Despite the fact that we are supposed to be a color blind society (wink, wink -- nudge, nudge), it's probably a given that when Thomas leaves the court he will have to be replaced by another person of [a specific] color or we'll have more riots in all the major cities. The direction that person of color leans will, of course, be determined by which party is in power at the time because, as we have seen, qualifications and dedication to the Constitution have become secondary to poitical optics.

 

[zukiphile]

The direction that person of color leans will, of course, be determined by which party is in power at the time because, as we have seen, qualifications and dedication to the Constitution have become secondary to poitical optics.

That's true, but I meant even more than that.

Thomas is really alone in his commitment to an analytical school that has the text of the COTUS as its foundation. His concurrence in McDonald and his dissent in Raich both answer the question "what does the language of the COTUS as understood at the time of enactment say about this question?", and work from that point. If he concludes that accumulated precedent is in error, he gives it very little weight, if any.

The others of the Heller majority are typically more lawyerly in a manner I mean to be pejorative. Their commitment to originalism, or textualism, involves an effort to bring the tradition of constitutional case law closer to the text, but they don't as boldly repudiate error.

Aside from the fact of my affinity to the substance of Thomas' approach, I think it is important for the Court's social and political authority in the long term. Laymen can find constitutional discussion offputting in part because the answer may involve strings of Sup Ct cases that may or may not bear any intuitive connection to the text of the COTUS. The Court's real authority should be greater where the basis of its calls of "balls and strikes" is the text of COTUS.

The alternative is for the court to develop tests and doctrine of its own creation. That is almost necessarily more partisan, and less forthright and persuasive.

My fingers are crossed that ACB's willingness to question whether a felony for medicare fraud should automatically deprive an individual of his 2d Am. signals a possibility that some of the prior century's innovation could be peeled back.

 

[Aguila Blanca]

Thomas is really alone in his commitment to an analytical school that has the text of the COTUS as its foundation. His concurrence in McDonald and his dissent in Raich both answer the question "what does the language of the COTUS as understood at the time of enactment say about this question?", and work from that point. If he concludes that accumulated precedent is in error, he gives it very little weight, if any.

I have always considered Antonin Scalia to be of that textual school, but perhaps I have been mistaken? Barret clerked for Scalia, and it appears that she has a more-or-less textual approach, so it will be interesting to see how she leans once she is in place and gets involved in cases.

Roberts, in particular, seems to me to place too much importance on stare decisis, and to be unwilling to overturn precedent even when the precedent is obviously and blatantly wrong.

 

[Double K]

Looking back at the posts when this thread was started there was an enormous amount of pessimism, good thing Donald Trump isn't wired that way.

 

[zukiphile]

I have always considered Antonin Scalia to be of that textual school, but perhaps I have been mistaken?

No, you aren't mistaken. The difference is in degree of application and whether they write with an eye toward gathering a majority.

The Scalia/Thomas split is illustrated in Raich. Scalia upholds a federal exercise of power over purely local conduct as within the Commerce Clause power because Congress targeted the conduct in question as part of a detailed regulatory scheme about a product in interstate commerce. He defers to Congress, and congressional findings, which is very conventional, and builds on the Wickard observation of an attenuated link to interstate commerce. Where Scalia accepts Wickard, Thomas addresses the underlying issue of what "interstate" and "commerce" mean.

I enjoy Scalia's decisions for the qualities of his writing; they can be sharp and funny, much like the man, and a great read if you enjoy that sort of thing. Scalia wrote for the majority in that case.

Thomas wrote a one man dissent, and has written lots of one man concurrences and dissents. They aren't inspiring rhetoric, but they do demonstrate an independent path less influenced stare decisis.

Does Thomas write that way because he doesn't have even a chance of getting a majority behind him on close controversies? Is that kind of internal political calculus behind Roberts' failures? I think both can plausibly be answered "yes". Maybe ACB will change some of the patterns we've seen from both Roberts and Thomas.