Political Commentary: Scalia’s Most Important Legacy and the Clintons

[berserkfan]

Scalia:

This is a must read for anyone who does not like Scalia. This includes you, Fohat!

http://www.nytimes.com/2016/02/16/us/politics/what-would-antonin-scalia-want-in-his-successor-a-dissent-offers-clues.html

I just want to say, guys, please, don’t just hate the guy because he was an uncompassionate old fogey. I don’t like Scalia too, but he does have important points to make, and I think the arguments he made in that dissent could very well be the best points he made in his life.

The US Supreme Court is very unrepresentative of the population. I consider that unconscionable and undemocratic.

You may not like the law graduates from Ole Miss, champion of States’ Rights or evangelical Christians or small time judges from the bible belt or mid sized law firms in the Midwest. But ultimately there is no arguing against the reality that the Supreme Court is drawn from too few law schools, too restrictive a region, too narrow an intellectual demographic, and draws on an overly constrictive career background. When you want fresh blood, you need someone very different.

Maybe a Korean American, born again Christian, from Milwaukee who has been practicing all his life defending Hmong immigrants.

How about that staunch evangelical from Texas, lifetime practice in the oil industry who has jet-setted all over the Middle East, Nigeria and Kazakhstan.

I don’t like the Republican view most of the time, but it is clearly not fair to drop in another Jewish academic who graduated from Yale, resident of New York. Republicans would be obstructing like crazy, and they would be right. It’s not representative. The US Supreme Court is not the New York Appellate Court (I think that’s what they call their supreme court but feel free to correct me.).


Clintons:
The Clintons irk me so much. For them, ‘public service’ is really a Business.
http://fortune.com/2016/02/15/hillary-clinton-net-worth-finances/?xid=timehp-popular
Anyone who supports that family, speak out now. I think Trump voters seem to be Geekhack’s biggest demographic.

[fohat.digs]

This includes you, Fohat!

I will read this article later, but I will say that I have done considerable study of the Founding Fathers and the society and events surrounding the creation of the US Constitution in recent years, and I can state, clearly and unequivocally, that their intent was that the Constitution was absolutely intended to be a living, evolving thing and that their vision was that amendments would be relatively easy and come quickly when needs arose. (Jefferson, in particular, was probably too zealous in this emotion).

Scalia's attitude that the Constitution was "dead" (his own word) and eternally set in stone was the antithesis of how the writers intended the document to be framed and interpreted.

[kurplop]

I make no claim to be any kind of constitutional expert but isn't it the legislature's responsibility to initiate the amendment process and then it's sent to the states for ratification?

I think the issue many have with the modern SCOTUS is that, while interpreting the law (which they are to do), they are getting dangerously close to making law (the role of the legislature).

After hearing an unpopular decision, I remember a Justice saying something like, " If you don't like the decision, have Congress change the law" .   Well said!  While it may be expedient to sidestep the rules, each  branch of gov't  need to respect  the roles of the others.

[fohat.digs]

isn't it the legislature's responsibility to initiate the amendment process and then it's sent to the states for ratification?

There were multiple paths for amendments, to ensure that they could be initiated when needed.

They can come down from the national Congress to the states, or come up from the states to the national level.

Either way, it takes significant effort and ironclad majorities all around to consummate them.

[berserkfan]

isn't it the legislature's responsibility to initiate the amendment process and then it's sent to the states for ratification?

There were multiple paths for amendments, to ensure that they could be initiated when needed.

They can come down from the national Congress to the states, or come up from the states to the national level.

Either way, it takes significant effort and ironclad majorities all around to consummate them.

Fohat, it is never the judges' job to make the law. It is their job to interpret the law and apply it. Even if the law takes a lot of effort to change, it must be the job of the legislature.

I can't tell you how important this is.

Almost every committed Democrat loves activist judges. But that's a very bad path to keep treading. It erodes the legal tradition. If in future the law has become very liberal, then conservative judges would also be 'liberally' applying interpretations to suit their political view.

[katushkin]

From my limited knowledge of SCOTUS, I actually think it's quite a good representation of the people. Being on it is for life, and I know it's a bit morbid, but the judges on there seem to die at relatively regular intervals. This gives chance for the incumbent POTUS to nominate his own judge who supports his way of thinking (the people's way of thinking you would like to believe) and trying to balance out the red vs blue on the bench.

I think of it like the way the senate gets created, but in a much more long winded and indirect way. People choose president, and if one of them dies, their president chooses a SCJ. Sometimes you might be "lucky" and one dies, sometimes you might not get to nominate one at all.

[fohat.digs]

I can't tell you how important this is.

Don't lecture me.

The underlying recent problem is that the US Legislative branch is so egregiously derelict in its duty to foster and guide the course of US law. Particularly since the disastrous election of Reagan and the ascendance of the Radical Right since 1980, there has been a "vast right-wing conspiracy" (although I dislike Hillary Clinton she is precisely correct on this point) to cripple and dismantle the Federal government at every turn. This effort has continued unabated through 2 temporary Democratic presidencies and a few periods of Democratic majorities in Congress. Personally, I see any person who acts to obstruct or handicap the lawful operation of the elected government as an enemy of my country, and, if that person is an elected official who has sworn an oath to uphold the law, then he is guilty of malfeasance at the minimum.

The world of 1787 was vastly different although human nature - perhaps not so much. By today's standards, and those of the time, the Federalists were certainly elitist and pushed hard to promote the fortunes of the wealthy class, but the Democratic-Republicans generally prevailed after Adams. While Hamilton saw the Federal government as a mechanism to promote the proper interests of the wealthy elites, today the tables have turned 180 degrees and a modern government could (and should) be the mechanism through which the robber barons are restrained. The last Republican president to embrace this concept was Roosevelt.

Technological limitations in the pre-Industrial Age where both communication and travel were absolutely limited to the speed of a fast horse or a fast boat (not so different) made for a society that could hardly dream of near-universal participation in an egalitarian democracy.

Perhaps the most demonstrative and challenging example today is that modern US society is nowhere close to agreement on what a "person" is. Although traditionally there were "classes" of human persons with differing rights (black/white, male/female, etc) everyone accepted that a creature's life began when it took its first breath and ended when its heart stopped beating. And the concept of corporate personhood would have been absurd. Today's technology has blurred the definition of the endpoints of "life" and a Reconstruction-era decision by a corrupt Supreme Court began the inexorable but unconscionable process of initiating corporations into personhood. In the pre-Industrial age gay people were invisible, life began at birth and ended at death, marriage was between men and women, guns were every day working tools, and most governments, even monarchies, were usually limited overseers and arbiters of generally tranquil (if hardly pleasant) societies except when temporary conflagrations erupted and were extinguished.

I wholeheartedly agree that the judiciary would be better and cleaner if it could never be accused of "activism" but in the absence of any reasonable guidance from the legislative it is forced to do the best it can with what it has, and it is charged with being the final arbiter of ambiguous mandates. A good start would be some very simple and straightforward fixes as proposed by someone of immense knowledge and experience:

http://www.businessinsider.com/john-paul-stevens-six-amendments-2014-6

But until the American public steps up and elects representatives with the will and the mandate to clarify these divisive questions through legislation or Constitutional amendment, the judiciary will have no choice but to apply its own interpretations in the absence of clear definitions and instructions from those appropriate sources. Although the Radical Right loves to scream and cry about how *nothing* would be better than *anything* in most aspects of governance (with glaringly incongruous exceptions for military spending and meddling in religion), at certain junctures somebody has to step in and do something to keep modern society smoothly operating for the benefit of its citizens. With the Legislative willfully disengaged or ideologically incapacitated, that ugly and divisive task necessarily falls to the Executive and the Judicial by default.