Unless Something Is Done, Future Supreme Court Decisions Will Be More Ideologically Driven And More Political Than Ever , by John Russell

johnrussell
By:  @johnrussell, 5 months ago
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by John Russell

It was announced a little while ago that at least 41 Democrats will vote to allow Neal Gorsuch's Supreme Court nomination to be filibustered in the Senate. This would mean that barring a change in Senate rules Gorsuch would need 60 votes to be confirmed. 

Republican Senate majority leader Mitch McConnell has said at that point he will call a vote to change the rules and confirm Gorsuch with a simple majority of 51, invoking the so-called "nuclear option''.  

I suspect most Americans are not following this story all that closely, and I admit I am not either. As far as I can see, these events have been set in motion long before today, so the end result is not in question. 

People should understand though that this result signals a profound and possibly long lasting change in the way Supreme Court justices are confirmed, and will almost certainly lead to more 'extreme' justices on the high court in the future. 

If Trump understands that all it will take is 51 votes to confirm his next selection, he is much more free to pick someone who may want to repeal Roe v Wade.  Or sides more with corporate interests, or is less sturdy on protecting civil rights or privacy rights. Should Trump be out in four years and a Democrat in, the Democrats would then be able to put a left leaning extremist in with just 51 votes when they have the majority. 

We don't need ideologues or partisans on the Supreme Court, those whose decisions can be predicted before the arguments before SCOTUS are even heard. It seems that is the case with Gorsuch, as it also is with even some of those already on the Court. 

We need the two political parties to come to consensus on Supreme Court appointments, and the Court should be dominated by moderates that truly decide cases on the law and on the arguments presented to the Court and not because individual justices have a preset ideology they have to adhere to. 

Required 60 vote majorities at least have the chance to lead to a consensus nominee. Having a nominee confirmed with 51 votes makes moderation far less likely. 

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JohnRussell
link 04/03/17 01:51:02PM @johnrussell:

I think they should even require 70 votes to approve a SCOTUS nominee. 

That would fix the problem fast. 

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Sean Treacy
link 04/03/17 02:24:48PM @s:

 

what judge anywhere  could possibly get 70 votes today? It's not 1996,  Republicans don't roll over nominees like they used to. 

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Spikegary
link 04/03/17 02:27:41PM @spikegary:

Didn't the Democrats (when they were in control) remove the super-majority requirement for some appointments, because the Republicans were filibustering?  I said then, I thought that is was a bad, precedent setting idea, that would come back and bite them in the ass.  And now, here we are.  I disagree with moving these to a simple majority, BTW.

 

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96WS6
link 04/04/17 09:50:46AM @96ws6:

Right.  No more supreme court justices....problem solved./s

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Sean Treacy
link 04/03/17 02:22:26PM @s:

Well, yeah. When one party is committed to the idea that the constitution and laws passed by congress "evolve" and mean whatever the policy preferences of five judges say they do, then of  course the courts will be politicized.

Until  Judges act like judges are supposed to and stop acting Like a super legislature, then the process will be politicized.

yet another fruit off the row verse wade tree.

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TTGA
link 04/03/17 02:40:55PM @ttga:

yet another fruit off the row ve wade tree.

Much, much more than just Roe v Wade.  The title of the article includes the phrase:  "More Ideologically Driven and More Political Than Ever".  Not even close.  The Warren Court, as a whole, is the most ideological Court since the Civil War and will retain that title for a lot longer than the present or near future. 

 

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JohnRussell
link 04/03/17 02:48:16PM @johnrussell:

When one party is committed to the idea that the constitution and laws passed by congress "evolve" and mean whatever the policy preferences of five judges say they do, then of  course the courts will be politicized.

EVERY Supreme Court decision is an interpretation that includes "modern" developments. The most conservative decision you can name is an interpretation. 

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Sean Treacy
link 04/03/17 03:54:14PM @s:

That is silly. 

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No Fear
link 04/03/17 07:31:04PM @no-fear:

crazy

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1ofmany
link 04/04/17 08:10:19PM @1ofmany:

When one party is committed to the idea that the constitution and laws passed by congress "evolve" and mean whatever the policy preferences of five judges say they do, then of  course the courts will be politicized.

EVERY Supreme Court decision is an interpretation that includes "modern" developments. The most conservative decision you can name is an interpretation. 

That doesn't mean the law, itself, evolves simply because the court applies it to a current situation. All the court should be doing is determining what the legislature intended not stepping into the shoes of the legislature to legislate from the bench. Legislating from the bench politicizes the court and this ridiculous confirmation process is the result. 

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Randy
link 04/04/17 08:15:02PM @randy:

However the court is not a legislation rubber stamp. Just because the legislation passes a law it is not up to the court to enforce it, but to also interpret if it is or is not Constitutional. If the law itself is legal.

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1ofmany
link 04/04/17 09:01:35PM @1ofmany:

However the court is not a legislation rubber stamp. Just because the legislation passes a law it is not up to the court to enforce it, but to also interpret if it is or is not Constitutional. If the law itself is legal.

The law is not unconstitutional just because they don't like it. They should be interpreting the intent of the legislature (if a statute) or the intent of the drafters (if the constitution) whether they personally like the result or not. If they can't do that, then they should resign or be impeached. 

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Randy
link 04/04/17 09:13:12PM @randy:

I agree that a law is not unconstitutional if they don't like it, but it is their job to decide if the law passed by the legislature is Constitutional. The legislature is a co-equal branch of government, not a more powerful one.

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Perrie Halpern R.A.
link 04/03/17 02:56:24PM @perrie-halpern:

Personally, I would like to see judges appointed not by idology, but by qualifications, and move more towards moderation, or at least, independence of thought. I am not sure if this is possible in the hyperbolic political world we live in, but as an independent, that would be my choice.

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JohnRussell
link 04/03/17 03:01:06PM @johnrussell:

If someone like Gorsuch has made decisions time after time that favor corporate interests over the claims of individual citizens, would you agree that his future SCOTUS votes on such cases may be predictable?

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Sean Treacy
link 04/03/17 03:42:26PM @s:

Can you point to the part of the oath where a judge is supposed to decide his rulings by the category party before it

unless you can show a pattern of a judge rewriting the law to support corporations, your problem is with the law itself, not the judge. 

Win an election and write the laws you want. Don't expect a judge to ingore his oath to implement the policies you prefer.

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Perrie Halpern R.A.
link 04/03/17 04:02:55PM @perrie-halpern:

John,

To answer your question, I would say, if the law says that the corporation was in the right, then that is the law. If the law isn't specific and he had a strong record of doing that, then the justice is interpreting the law in a specific way and you would have a case. 

In the case of this specific justice, I don't know his voting record, so I can't make a judgement call on him. 

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sixpick
link 04/04/17 01:12:58AM @sixpick:

John has two cases, but it sounds much better to say time after time.

Even I didn't agree with him on the truck driver as it was presented and neither did the SCOTUS.  I want to know when the SCOTUS has published a consensus about a ruling in the past?  That in itself should make us aware we need diversity in the SCOTUS, but most of all we need Justices who interpret laws, not write them.

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TTGA
link 04/03/17 05:07:44PM @ttga:

If someone like Gorsuch has made decisions time after time that favor corporate interests over the claims of individual citizens, would you agree that his future SCOTUS votes on such cases may be predictable?

Not necessarily John.  In 1942 the Republican Attorney General of California, acting in concert with an Army General Officer, initiated the rounding up of Japanese Americans along the coast and sending them to what were, essentially, concentration camps.  Sounds pretty right wing, almost racist, doesn't he?  He later was appointed Chief Justice of the US Supreme court by President Eisenhower.  His name was Earl Warren.  You know, the Earl Warren who inspired the Supreme Court to approve the Civil Rights Acts of 1964 and 1968 and Roe v Wade.  They don't always stay in the same political spectrum where they started.

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jwc2blue
link 04/03/17 03:05:22PM @jwc2blue:

Gorsuch has refused to meet with some reps. and refused to answer questions from others.

He has no place on the court.

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Sean Treacy
link 04/03/17 03:46:30PM @s:

of course, you don't know this since you probably didn't pass eight grade, but senators confirm judges, not "reps". 

All judges refuse to answer some questions. They pretty much have to ethically. Look at Justice Ginsburgs confirmation hearings for the model of  a nominee refusing to answer questions on ethical grounds. 

Anyone who know anything about this understands that judges cannot answer questions about controversies that may cod before them as a justice. 

 

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jwc2blue
link 04/03/17 05:45:27PM @jwc2blue:

. If the institution you're shut away in had recent news instead of Sesame Street, you would know that I'm right.

 

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Sean Treacy
link 04/04/17 12:58:48AM @s:

I often wonder why democrats bother to peddle such stupid propaganda. Surely, I think, there is no one so ignorant, so lacking in basic knowledge of recent history,  so intellectually isolated as to never  read a normal news source, to believe such transparent bullshit, yet you always prove my instincts wrong, 

my god how have you survived into adulthood, assuming you are an adult, believing such tripe? Your ability to be manipulated is truly amazing, 

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Hal A. Lujah
link 04/03/17 05:55:20PM @hal-a-lujah:

I think Lawrence O'Donnell deftly put this into perspective.

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Sean Treacy
link 04/04/17 12:51:08AM @s:

Yes, when you want something in perspective, ask a crazy Knee jerk left winger for his opinion.

odonnell is a less rational left wing version of rush Limbaugh. he discredits himself.

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Hal A. Lujah
link 04/04/17 06:16:31AM @hal-a-lujah:
Lol.  That's the least accurate comparison I've ever seen.

Sean, it's clear that you will say anything in an effort to overturn RvW. What you won't say is where you think the line should be drawn on when abortion is appropriate.
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Sean Treacy
link 04/04/17 07:47:01AM @s:

Not at all. I actually assume gorsuch will be closer to his mentor Kennedy than Scalia on the abortion. I assume he will follow the line that roe is  unsupported by the constitution but is owed deference as precedent that has been relied on.

my problem is the democrats filibuster of a perfectly qualified justice with bipartisan support is insane. The first partisan filibuster in history, another feather in the cap of democrats who've turned the judiciary into a poisonous political battleground the last thirty years to protect a single ruling,

make no mistake, if roe had been correctly decided and left the abortion issue to the states, democrats wouldnt  care about  gorsuch and he would probably be unanimously confirmed, given his impeccable qualifications and suppprt from democratic legal heavy hitters. 

 

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Hal A. Lujah
link 04/04/17 08:46:59AM @hal-a-lujah:

Two things:

1 - It's almost as if you've never heard of Merrick Garland.

2 - If a state gets to choose to outlaw abortion, does that mean that horrific birth defects and pregnancies that endanger mothers will stop happening there?  Does it mean that victims of brutal rapes will have a new source of funding to help raise their unwanted child?

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Randy
link 05/19/17 04:36:59AM @randy:

1 - It's almost as if you've never heard of Merrick Garland.

He'd make a perfect choice for Director of the FBI. He'd be approved by a landslide. Lieberman is going to run into a buzz saw in the Senate. He's way too political with no real law enforcement experience.

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Randy
link 04/03/17 11:35:52PM @randy:

Supreme Court nominations are too special to drop the 60 vote majority rule. Most of the Justices appointed and approved in modern times have gone past the required 60 votes. This has been a bi-partisan decision always in the past and needs to stay as one.

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Sean Treacy
link 04/04/17 12:48:09AM @s:

There is no such thing as a 60 vote rule. Anyone who claims that is either a fool, or thinks the person they are telling that to is,a fool. Take your choice.

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Cerenkov
link 04/04/17 08:59:46AM @cerenkov:

If the nuclear option is used, you have only the Democrats to blame.

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96WS6
link 04/04/17 09:53:27AM @96ws6:

The nuclear option is a bad idea.  Remember how short sighted the Dems were in giving BO new powers.   This will eventually come back to bite us all in the ass.   Not that the Dems wouldn't do the same if they could.

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sixpick
link 04/04/17 10:07:44AM @sixpick:

The nuclear option is a bad idea.

Of course it is, but the Democrats are not going to allow Trump to confirm any Supreme Court Justices otherwise.  Allowing it when Harry Reid enforced it, although it is not in the Constitution, may have bit them in the ass, but they have filled the courts with Liberal Politicians, masquerading as judges by doing so and we will be suffering for a long time ourselves for that decision.  

When a party's objective is to destroy the other party as it is with the Democrat Party by overloading the entitlement roster, importing voters from all over the world and making them dependent on the government, thereby assuring Democrat rule over the people and making Republican or any other party completely mute in the governance of this country, you must accept and acknowledge who the enemy of this country is and fight them with all your might.

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Randy
link 04/04/17 03:29:39PM @randy:

Of course it is, but the Democrats are not going to allow Trump to confirm any Supreme Court Justices otherwise.

But the Republicans did to allow President Obama to confirm any Supreme Court Justice in his last year otherwise.

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Randy
link 04/04/17 03:45:20PM @randy:

There is no such thing as a 60 vote rule.

All it actually involves is changing the rules of the Senate so that a nominee like Gorsuch can be confirmed with a simple majority of 51 votes. Under current rules, 60 votes are needed to foil any attempt by the minority party to block a vote by use of the filibuster.

http://www.nbcnews.com/politics/congress/nuclear-option-what-it-why-it-matters-n742076

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Sean Treacy
link 04/04/17 05:20:59PM @s:

Yes,  my point is that standard has never been applied.   Supreme court justices have been confirmed with less than 60 votes in the past. A Supreme Court nominee has never been blocked by a partisan filibuster of forty one, and have been  confirmed with as few as fifty two votes.

It's yet another new conceit of the democrats that one party can block a Supreme Court confirmation  with forty one votes. The idea that a nominee historically required sixty votes is a fantasy. 

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Randy
link 04/04/17 05:33:45PM @randy:

The idea that a nominee historically required sixty votes is a fantasy.

However it is still a Senate rule. As it stands now, unless they make a very radical change to the Senate rule on this, a Supreme Court Nominee must get at least 60 votes in the Senate.

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Sean Treacy
link 04/04/17 05:59:03PM @s:

If that's so, how were Supreme Court judges confirmed with less than 60 votes despite your statement that a rule requires nominees to  get sixty votes.

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Randy
link 04/04/17 06:04:44PM @randy:

If that's so, how were Supreme Court judges confirmed with less than 60 votes despite your statement that a rule requires nominees to  get sixty votes.

They weren't. All who were confirmed got 60 votes or more.

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Randy
link 04/04/17 06:14:14PM @randy:

I stand corrected. Some were.

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Mark in Wyoming
link 04/04/17 06:20:01PM @mark-in-wyoming:

lol beat me to posting randy , not all justices got a 60% confirmation vote.

In fact, six nominees to be Supreme Court Justices, including two members of the current Court, have been confirmed with less than 60% of the vote: In 2006, Samuel Alito was confirmed 58-42. In 1991, Clarence Thomas was confirmed 52-48. In 1888, Lucius Lamar was confirmed 32-28. In 1881, Stanley Matthews was confirmed 24-23. In 1858, Nathan Clifford was confirmed 26-23. In 1837, William Smith was confirmed 23-18 (Smith ended up declining to serve).

Read more at: http://www.nationalreview.com/corner/446133/chuck-schumer-says-gorsuch-needs-60-votes-hes-wrong

 

all passed without using the so called nuclear option.

 

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Randy
link 04/04/17 06:27:51PM @randy:

You're right Mark. This is where I got confused. It was between confirmation and cloture.

Under current Senate rules, it takes 60 votes to end debate.

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sixpick
link 04/04/17 09:52:17AM @sixpick:

Obama confirmed two Supreme Court Justices during his two terms.  George W Bush confirmed two.  Bill Clinton confirmed two.  George WH Bush confirmed two.  Reagan confirmed four under a Democrat Congress all but his last year in office.

Obama took a bill written to help military personnel with mortgages and turned it into Obamacare.  Biden and other Democrats rejected the idea of George Bush nominating a Supreme Court Justice during the last year of his term.  Harry Reid brought the so-called Nuclear Option into the picture after the Senate had already approved two of Obama's nominations for Supreme Court Justices.  So far everything we told the Left has come true.  They certainly must have one sore ass.

The Supreme Court has lost its way.  They somehow now think it is their job to write the laws, not just interpret them. 

If policy is made at the Supreme Court level, then why do we need a Constitution?  We need a Constitution in order to maintain a country based on laws written by Congress and voted on by Congress.  Otherwise we can accept we are nothing more than a Oligarchy, ruled by a small number of people who are able to rule as they please.

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Randy
link 04/04/17 11:39:39PM @randy:

If policy is made at the Supreme Court level, then why do we need a Constitution?  We need a Constitution in order to maintain a country based on laws written by Congress and voted on by Congress.

Congress does make the laws and policy. However the court system is not subservient to the Congress. It is and equal branch of government and it is up to the courts, especially the Supreme Court, to decide if the law Congress has passed is Constitutional. It is not a rubber-stamp there just to interpret and enforce what the legislature wants or the laws they pass.

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pat wilson
link 04/04/17 11:33:24PM @pat-wilson:

 we are nothing more than a Oligarchy, ruled by a small number of people who are able to rule as they please.

Bingo !

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Sean Treacy
link 05/19/17 08:29:12AM @s:

If you want decisions not driven by ideology, don't let the Democrats appoint another President. Anyone who has paid the slightest bit of attention to the Court knows its the "conservative" judges who will vote against their supposed "side." Kennedy on gay marriage, Roberts on Obamacare, Scalia on religious freedom, etc etc.. the four democrats will never switch "sides" and provide a meaningful vote on an issue with partisan overtones.  They simply follow whatever the current policy preference of the Democratic party is, Constitution or statute be damned. 

You can replace any of the 4 liberal justices with a ward committeeman from the south side of Chicago and the votes wouldn't change. Ginsburg will always vote the same way as a half illiterate partisan democrat who knows which way the party's ideological winds are blowing. Thus Obama and Kagan can publicly state that's there no constitutional right to gay marriage, only to claim it appeared, as if by magic, months later. 

But that's what adherence to the disastrous concept of a "living Constitution" get you, judges who are party hacks who will change the laws or the Constitution itself to satisfy the whims of their party. When, like Democrats believe, the actual text of the Constitution and laws passed by Congress are meaningless, then we've traded a constitutional republic for an oligarchy that decides each day anew what the laws mean.

It's just funny to see someone who supports the living constitution and the most ideological judges complain that results are driven ideologically. What did you think would happen when Democrats appoint judges whose whole theory of jurisprudence is ideological in nature?

It's how you get liberal judges claiming that certain act are constitutional if certain Presidents take them, but illegal if done by others.  That's an ideological nuclear bomb that will destroy the country, if not checked by rational judges immediately.   

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1ofmany
link 05/19/17 09:57:57AM @1ofmany:

Democrats have been undone by their own arrogance. They invoked the "nuclear" option to remove the filibuster on lower court appointments so they could run roughshod over republicans. They threatened to invoke it for Supreme Court nominees as well. But this was all based on an assumption that they would retain control over the senate and the White House. 

Ginsberg could have retired and let Obama appoint another liberal like herself, who legislates from the bench, but she refused to do so. She assumed that the next president would be a democrat and that she could continue for another 4 years rewriting the constitution under the guise of interpreting it. 

Both Ginsberg and Harry Reid gambled and they lost. The voters drove democrats out of the White House and the senate, in part, to prevent the appointment of another justice like Ginsberg. The republicans extended the democrats' nuclear option to Supreme Court nominees, effectively blowing democrats up in their own blast. Ginsberg, at 83, is now compelled to hang on by her fingernails hoping that God removes Trump before he removes her. If God picks Ginsberg first, then Trump can appoint another conservative justice to the court to help undo the damage done by the judges like Ginsberg. That would be great. 

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