[Winstonm]

We are all biased, no doubt; however, from my point of view what separates the political sides now is a a type of extremism: extremes in rationalization. I submit that these people do not attempt to interpret the Constitution but instead search for a reading of the Constitution that fits their ideology. This is a rather fine distinction, and it can be argued that everyone does the same, and that may well be the case to a degree, but I also submit that the truly self-honest person double and triple checks to make certain his understanding is non-biased and is willing to change his viewpoint if actuality and ideology disagree.

[kenberg]

PassedOut, on 2016-February-17, 09:10, said:

For a simple example, if a crime is committed in one place and a person cannot have been at that place at that time, then the person is innocent of the crime committed there.

Let me focus on this one for a moment. From the Wikipedia:

Quote

Davis denied shooting Cooper and denied shooting MacPhail. Davis testified to having seen Coles assault Young, and Davis said that he had fled the scene before any shots were fired and, therefore, did not know who had shot MacPhail.^[35][36]

Six witnesses, including Davis, testified at trial for the defense.^[32] Davis's mother testified that Davis had been at home on August 19, 1989, until he left for Atlanta with his sister at about 9 pm.^[35]

There appears to be a problem. Davis said he fled the scene, his mother said he was at home. Perhaps theese two stements can be reconciled. Maybe he was at his home until 9, left with his sister, dumped her somewhere, went to the scene, fled the scene, picked up his sister. It's possible. The jury is to listen, and decide.

The decision of a jury is not beyond review, many people have been released after exonerating evidence has been uncovered. But I think it goes roughly like this: A person, at the start, is legally entitled to a presumption of innocence. After a jury trial at which he is found guilty, the legal presumption is that he is guilty. The conclusion can change, but until then the presumption is that he is guilty.

Jury decisions are not holy writ, but they are not to be overturned lightly either. My guess, after reading the wik, is that he did ot. But my guess is, and should be, of no importance.

If someone wants to argue that the possibility of error is one reason not to impose the death penalty, I agree. And I regard sitting on judgment of anyone as most onerous. But we do so, and in fact we must. I seriously doubt that anyone is ok with an innocent person being executed.

[Zelandakh]

Flem72, on 2016-February-17, 07:52, said:

So you don't think that that rather obvious fact -- heard of an alibi defense? -- wouldn't come out at the first trial?

It might be that a vital piece of evidence such as a photo or video only comes to light after the original trial. Yes it would be unusual but it is hardly impossible.

hrothgar, on 2016-February-17, 08:09, said:

Step 1: Lean on Ginsburg to resign
Step2: Try to craft an agreement around a pair of candidates

Have you been re-watching the West Wing, Richard?

[hrothgar]

Zelandakh, on 2016-February-17, 09:56, said:

Have you been re-watching the West Wing, Richard?

There is a reason why I used the word "Sorkinesque" in the original posting... (I readily admit the idea was lifted from the West Wing)

[barmar]

Flem72, on 2016-February-16, 21:16, said:

Correct. Nor does it say that the Senate has a duty to confirm; confirmation is generally viewed as a political concession to the president, which, in turn, does not mean that the Senate must confirm just any nominee. "Bork" is not a verb.

No one is expecting them to "confirm just any nominee". But they should at least be willing to consider the merits of the nominee, not refuse to participate in the constitutionally-mandated process.

There's nothing in the Constitution requiring legislators to vote on any particular bill. But if one of them missed a significant number of votes, they're obviously not doing their job.

[mike777]

I like Bill James comment here:

"Well. . .there certainly has to be some limit as to the extent at which the Senate can ignore nominees. The system breaks down if the Senate SYSTEMATICALLY ignores nominees, so the question that now confronts us is "What exactly is the limit of the Senate's right to ignore a nominee?" "
---------------

I hope the President nominates whoever he prefers for whatever reasons.

I am not sure what the issues or concerns are if we get a "liberal" court. We lose our religious liberty? We lose our guns or get unrestricted abortion? The unions seize control of the workforce? The EPA takes control of the economy in the name of saving the planet? 15 million illegal immigrants get the vote?

Is the above what people "hear" when the phrase "liberal court" is spoken? I don't know.

[akwoo]

PassedOut, on 2016-February-17, 09:10, said:

I have to say, though, that it's interesting to see the way people who rationalize positions like Scalia's actually think.

Let me attempt to fully rationalize one version of Scalia's position.

One way to understand his view is that the law is supposed to act like a computer program.

We all know computer programs have bugs. They do the wrong thing sometimes. Occasionally they even completely fail and crash. But Scalia says that when the law has a bug, even a hideous bug that executes an innocent person, the computer program keeps running until there is a software update in the form of a legislative or constitutional fix to laws or legal procedures.

What is the argument behind this? It goes that there is no difference in principle between one exception and another exception. Hence, if one exception can be made for what seems like a very good reason, other exceptions can equally be made for what seem like good reasons, and we go down the slippery slope of exceptions for less and less obviously good reasons, and pretty soon there is no longer law.

[akwoo]

There is nothing in the Constitution to prevent the Senate from trying to turn the US into the parliamentary-type democracy, insisting on approving only the nominees for courts and for the Cabinet that they have signaled in advance and turning the President into a figurehead like the British monarch. The major difference is that Supreme Court decisions and an impeachment case during the administration of Andrew Johnson affirmed the prerogative of the President to dismiss Cabinet secretaries without the approval of the Senate, but the Senate could attempt to take this right away from the President using the power of the purse, or by refusing to confirm any successor.

[mike777]

I suppose there are two ways to use the constitution to try and overcome this problem.

1) the voting booth
2) recess appts and the entire legal arguments over what are or are not "legal" recess appts.


Of course the constitution set up checks and balances and competing power centers so over the decades the power flows and ebbs between the branches of power.


At some point the voting public will decide just how angry or not angry they are over the whole issue. No one really knows at this point the level of anger.

-----------------------
----------------------


Another way to phrase the whole issue of the purpose of the courts is that the trial is not about finding truth or justice or right or wrong it is about following the law.
Many people hate this idea.

If you follow the law you can execute whoever. If you don't like that, change the law. When the law is in conflict with other law, SOCTUS weighs and decides.

[hrothgar]

mike777, on 2016-February-17, 17:11, said:

If you follow the law you can execute whoever. If you don't like that, change the law.

"If you follow the law, you can keep blacks as slaves. If the blacks don't like this, they can change the law"

[Flem72]

PassedOut, on 2016-February-17, 09:10, said:

Usually, but once in a while evidence is missing, unavailable, or suppressed. That's a good reason for having a system to correct injustices.

I have to say, though, that it's interesting to see the way people who rationalize positions like Scalia's actually think.

I don't think you understand Scalia's position or the law in this area. We're talking about the source of the "right" to a new trial are we not? It is statutory, not constitutional. The usual rubric is that a defendant is entitled to a fair trial, not an error-free one.

You are no doubt familiar with the "system" that has allowed convicted persons to get out of prison b/c of bad -- falsified or just plain botched -- evidence, usually of the DNA variety? or newly discovered evidence? or inadequate representation? It can be done, but it is a matter of procedural rule, generated for the federal courts by SCOTUS pursuant to statutory duty, and not a constitutional matter. If you think it's source should be the Due Process clause -- and it is not -- you will find that 99.9% of the process that is due comes before verdict.

If you want to see what the standards are -- and there is a requirement of diligence placed upon defendants and their counsel-- check out FRCrP 33 and the (hundreds of) case annotations.

[mike777]

Of course there is another way to change the law and that is War. War is just politics by another name.

Lets hope we can avoid Armageddon.

[Flem72]

Winstonm, on 2016-February-17, 09:31, said:

We are all biased, no doubt; however, from my point of view what separates the political sides now is a a type of extremism: extremes in rationalization. I submit that these people do not attempt to interpret the Constitution but instead search for a reading of the Constitution that fits their ideology. This is a rather fine distinction, and it can be argued that everyone does the same, and that may well be the case to a degree, but I also submit that the truly self-honest person double and triple checks to make certain his understanding is non-biased and is willing to change his viewpoint if actuality and ideology disagree.

I would put the matter this way:

Cases that reach SCOTUS are hard cases, on the far outskirts of decided law; that's why the Court exists. Agreed? If you are familiar with the process of SCOTUS decision making, you will know that preliminary drafts of opinions AND dissents, sometimes several versions, are circulated among the justices, so that the final publication is as highly refined as possible.

I believe it is difficult for a judges to be intellectually dishonest ("twisty" to the point of sham) when extensive written opinions are required and support for their reasoning, based upon a preexisting body of "received wisdom", must be provided for all to see. This requirement is the essence of a judicial action as opposed to a legislative or executive one. But I think that, when a case reaches the far outskirts, and a reasoned answer is required, a judge will fall back upon his/her fundamental view of the constitution to reach a final conclusion. I don't see this as a bias as much as it is a philosophical position. If we are debating the existence of precognition, or the possibility vel non of true AI, your view of the mind/brain problem will inform all arguments that go beyond the data.

[barmar]

Flem72, on 2016-February-17, 17:39, said:

But I think that, when a case reaches the far outskirts, and a reasoned answer is required, a judge will fall back upon his/her fundamental view of the constitution to reach a final conclusion. I don't see this as a bias as much as it is a philosophical position. If we are debating the existence of precognition, or the possibility vel non of true AI, your view of the mind/brain problem will inform all arguments that go beyond the data.

I think the complaint people have had with some court decisions is that they don't start with their view of the Constitution. They start with what they think is "right", and then try to find some way to justify it in the words of the Constitution.

For instance, in the Obamacare case, they recognized that the Constitution allowed taxation (depite what many tax protesters claim), so they just had to get enough of the justices to agree that the individual mandate is a tax, not a fine.

Then there are cases where the Court has to determine the intent of the Constitution, like Citizens United and same-sex marriage. There's nothing in the Constitution that says whether corporations should be treated like people when determining what rights they have, so SCOTUS had to decide the intent given the lack of explicit guidance (it's kind of like trying to decide what's alertable in ACBL, considering the vague wording in our Alert Procedure).

[PassedOut]

barmar, on 2016-February-18, 09:46, said:

I think the complaint people have had with some court decisions is that they don't start with their view of the Constitution. They start with what they think is "right", and then try to find some way to justify it in the words of the Constitution.

Exactly the way that religious people use the Bible or the Quran...

[Winstonm]

barmar, on 2016-February-18, 09:46, said:

I think the complaint people have had with some court decisions is that they don't start with their view of the Constitution. They start with what they think is "right", and then try to find some way to justify it in the words of the Constitution.

For instance, in the Obamacare case, they recognized that the Constitution allowed taxation (depite what many tax protesters claim), so they just had to get enough of the justices to agree that the individual mandate is a tax, not a fine.

Then there are cases where the Court has to determine the intent of the Constitution, like Citizens United and same-sex marriage. There's nothing in the Constitution that says whether corporations should be treated like people when determining what rights they have, so SCOTUS had to decide the intent given the lack of explicit guidance (it's kind of like trying to decide what's alertable in ACBL, considering the vague wording in our Alert Procedure).

I agree but also believe there is a considerable difference between "view of the Constitution" and "political views". This is where Scalia had trouble justifying his bias, IMO. He argued originalism - but there is no way that it can be construed that in the 1700's speech and money meant the same thing. The Constitution gives a right to free speech. Somehow Justice Scalia "interpreted" this to mean that preventing corporations from influencing politics by unlimited campaign contributions had an original intent equal to the writers' understanding of "freedom of speech".

IMO his ruling was based on his political views, and he compromised the strict originalism he often cited when it did not comply with his political beliefs.

[y66]

Guest post by Linda Greenhouse via today's NYT:

Quote

In the days since Justice Antonin Scalia’s death, there has been plenty of talk about the substantial impact his absence will have on the Supreme Court’s docket. I’d like to shift the focus to the Roberts court itself.

Fate has handed the justices a chance to hit reset.

If that seems an uncharitable, even tasteless observation, so be it. I’ve become increasingly concerned, as my recent columns have suggested, that the conservative majority is permitting the court to become an agent of partisan warfare to an extent that threatens real damage to the institution. Justice Scalia’s outsize role on and off the bench contributed to that dangerous development to an outsize degree.

I’m not claiming that he was completely responsible. Given the Supreme Court’s place in American life, there is no way it can avoid getting singed by the polarizing politics of the day. Nor was Justice Scalia solely to blame for the court’s drop in public esteem as demonstrated by a Gallup Poll in September showing that more people disapprove of the Supreme Court (50 percent) than approve of it (45 percent). While this is a notable departure from the historic trend, other governmental bodies have fared far worse (Congress has a 16 percent approval rating), and the court is to some degree caught in the back draft of generalized public mistrust of government.

It’s a situation that nonetheless calls for concern and exquisite care. Chief Justice John G. Roberts Jr. appeared to reflect that concern, and not for the first time, when he spoke earlier this month at New England School of Law in Boston. Contrary to the impression created by highly partisan Senate confirmation hearings, he said, Supreme Court justices are not in pursuit of an agenda and “don’t work as Republicans or Democrats.”

Maybe not, but two weeks before the chief justice’s visit to Boston, the court, acting on its own motion, turned a statutory case into a major constitutional one when it expanded its review of President Obama’s deportation-deferral program to include the question of whether the president has violated his constitutional duty to “take care that the laws be faithfully executed.” And a few days after the Boston visit, the court took the astonishing step of blocking the administration’s major climate-change initiative before a lower court had even had a chance to review it.

The “take care” question mapped perfectly onto the dissent that Justice Scalia read from the bench in June 2012 when the court struck down portions of Arizona’s anti-immigrant statute. (Chief Justice Roberts was in the majority.) Justice Scalia took the occasion to excoriate the Obama administration for an earlier version of its deportation-deferral program — a policy that was not at issue in the Supreme Court case and had not even been announced when the case was argued.

“Are the sovereign states at the mercy of the federal executive’s refusal to enforce the nation’s immigration laws?” Justice Scalia demanded, in a public performance that was as inappropriate as it was attention getting.

The Feb. 9 order blocking the president’s Clean Power Plan was issued without explanation and over the dissents of the court’s four liberals. I don’t know whether Justice Scalia was the driving force behind this highly unusual intervention in an ongoing regulatory review. But clearly it couldn’t have happened without him. Neither could the court’s other recent destabilizing interventions, including the 5-to-4 decision in Shelby County v. Holder to gut the Voting Rights Act of 1965.

The voting rights decision was a pet project of Chief Justice Roberts, an opponent of the Voting Rights Act since his days as a young lawyer in the Reagan administration. But Justice Scalia was much more than just a passenger. His behavior during the oral argument gave a public face to the ugliness behind the attack on the foundational civil rights law, which both houses of Congress had reauthorized by overwhelming margins.

Addressing Solicitor General Donald B. Verrilli Jr. during the argument on Feb. 27, 2013, Justice Scalia referred to the 2006 reauthorization and observed:

“And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don’t think there is anything to be gained by any senator to vote against continuation of this act. And I am fairly confident it will be re-enacted in perpetuity unless — unless a court can say it does not comport with the Constitution.”

A “phenomenon that is called perpetuation of racial entitlement”? “It’s been written about”? I must have missed that reading assignment.

Then, two months ago, Justice Scalia’s comment during the argument in the University of Texas affirmative-action case embraced the so-called mismatch theory beloved by opponents of affirmative action when he said that some minority students would benefit from “a less advanced school, a slower-track school where they do well.” I can only assume that somewhere out there is a tract that equates protection of the right to vote with perpetuation of racial entitlement.

His frequent parroting of right-wing talking points in recent years may have reflected the contraction of his intellectual universe. In an interview with the writer Jennifer Senior (now a New York Times book critic) in New York magazine in 2013, Justice Scalia said he got most of his news from the car radio and from skimming The Wall Street Journal and the conservative Washington Times. He said he stopped reading The Washington Post because it had become so “shrilly, shrilly liberal” that he “couldn’t handle it anymore.”

And while earlier in his Supreme Court tenure, he prided himself on hiring one politically liberal law clerk among his four clerks every year, he abandoned that practice at least a decade ago. In a recently completed (and as yet unpublished) study, Neal Devins, a law professor at William and Mary, and Lawrence Baum, a political scientist at Ohio State, calculated the percentage of each justice’s law clerks over the past 11 years who had previously clerked for a Democratic-appointed judge on a lower court. (This is a measure that scholars deem an acceptable proxy for the ideological orientation of a justice’s chambers.) Justice Ruth Bader Ginsburg ranked the highest, with 76.7 percent of her clerks having earlier clerked for Democratic-appointed judges. The figure for Chief Justice Roberts was 16.3 percent. Justice Scalia and Justice Clarence Thomas were tied for the lowest, at 2.3 percent each.

In their paper, “Split Definitive: How Party Polarization Turned the Supreme Court Into a Partisan Court,” the authors offer their observations about the elite social networks in which Supreme Court justices, no less than other power players in Washington, spend their lives. They note “a growing ideological divide among affluent, well-educated Democrats and Republicans,” with the result that “Democratic elites are more liberal than other Democrats; Republican elites are more conservative than other Republicans.” For the Supreme Court, they conclude, “justices on both the left and right are part of social networks that reinforce conservatism for Republican justices and liberalism for Democratic justices.”

These insights might help explain why someone as smart as Antonin Scalia seemed so un-self-conscious about his inflammatory rhetoric. He was simply giving voice to those he spent his time with. His world was one that reinforced and never challenged him.

About 10 years ago, I attended a gathering of Canadian judges and lawyers at Cambridge University. Justice Scalia gave his stump speech there about how his Constitution was not “living” but “dead,” with legitimate constitutional interpretation limited to the words and original understanding of the document’s authors. He may or may not have known that in Canada, constitutional interpretation starts from the premise that “the Constitution is a living tree.” In any event, his speech fell flat; rather than greeting his remarks with the appreciative chuckles and applause he usually received, the audience sat on its hands. I remember his disconcerted expression.

Justice Scalia received relatively few opinion assignments in major cases, either from Chief Justice Roberts or Chief Justice William H. Rehnquist, with whom he served for 19 years. The reason was obvious: He refused to compromise, a trait that put him at risk of losing a majority in close cases. I used to wonder why he didn’t value effectiveness over perfection, why he would not rather compromise than lose. But I came to realize that Justice Scalia wasn’t playing the inside game. No matter that he never persuaded a majority of his fellow conservatives on the court to sign up for his brand of originalism.

What mattered was his ability to invoke originalism as a mobilizing tool outside the court, in speeches and in dissenting opinions. The message was that courts have no business recognizing “new” rights. (Except, evidently, new rights of which Justice Scalia approved, such as an unconstrained right for corporations to spend money in politics.) The audience for his dissents, he told Ms. Senior in the New York magazine interview, was law students. The mission he set for himself was cultivating the next generation.

For a long time, he did a good job of addressing the public outside the court’s marble walls. In 2003, his dissenting opinion in the gay rights case Lawrence v. Texas warned that the court’s declaration of constitutional protection for same-sex relationships would lead to protection for same-sex marriage. State after state heeded the warning and enacted same-sex marriage bans.

Ten years later, when he dissented from the court’s overturning of the Defense of Marriage Act in United States v. Windsor, which found that married same-sex couples were entitled to federal benefits, he warned that the decision made the constitutional right to same-sex marriage inevitable. “No one should be fooled; it is just a matter of listening and waiting for the other shoe,” he wrote.

Within a matter of months, federal district judges around the country invoked Justice Scalia’s dissent in striking down same-sex marriage bans. The much less polemical dissent in Windsor by Chief Justice Roberts, describing the decision as a narrow one based on principles of federalism, went uncited.

Had Justice Scalia overreached? Lost his touch? Or had times changed so that not even the most mild-mannered dissent could have stemmed the tide? Hard to say. Still, people listened, just as they did last June when the court ruled for same-sex marriage in Obergefell v. Hodges and Justice Scalia wrote that before he would ever join such an opinion “I would hide my head in a bag.”

Since everyone who ever met Justice Scalia is telling Scalia stories, I’ll tell mine. The last conversation we had took place in the spring of 2013, on a Washington-bound Amtrak Acela. I noticed him sitting across the aisle from me, wearing headphones and working. He didn’t notice me, and I didn’t bother him. But when we stood to collect our things, we found ourselves face to face. “So, Linda,” he said, “what do you think of the new pope?”

This was such an unexpected conversation opener that I didn’t know what to say. Pope Francis had been chosen just a few days earlier. I was hardly qualified to discuss the first Jesuit pope with a Jesuit-trained Supreme Court justice. “I’m surprised they picked someone so old,” I finally managed.

“Well, he’s a transitional figure,” Justice Scalia said.

I was too nonplused to ask him what he meant: transition from what to what? (I can only imagine how the deeply traditional, Latin Mass-attending Justice Scalia came to regard Pope Francis as time went by.) Our train pulled into Union Station and the moment passed.

Antonin Scalia was, as everyone has noted, a unique figure on the Supreme court. Will he prove to have been a transitional one as well? Will originalism, having served its purpose, now leave the stage?

For the court and the country, this is an important moment in every possible respect. As Justice Scalia’s colleagues gather later this week for the ceremonial marking of his passing, they will be taking stock of a life. Some of them, perhaps, will also be taking stock of the court, where it has been and where it goes now.

A situation that calls for concern and exquisite care vs reflexive, polarizing rhetoric by men and women in positions of responsibility and leadership everywhere? Indeed. No doubt, this applies just as much to Mr. Grassley and his colleagues in the U.S. Senate as it does to posters here in the water cooler. Perhaps more.

[Winstonm]

Quote

Nor was Justice Scalia solely to blame for the court’s drop in public esteem as demonstrated by a Gallup Poll in September showing that more people disapprove of the Supreme Court (50 percent) than approve of it (45 percent). While this is a notable departure from the historic trend, other governmental bodies have fared far worse (Congress has a 16 percent approval rating), and the court is to some degree caught in the back draft of generalized public mistrust of government.

I don't see this as quite on target. It is only a spillover from the mistrust of government insofar as the Court has shown itself to be politically biased in its rulings and actions. Justice Scalia did not help quiet this concern.

[Flem72]

y66, on 2016-February-18, 10:32, said:

Guest post by Linda Greenhouse via today's NYT:

A “phenomenon that is called perpetuation of racial entitlement”? “It’s been written about”? I must have missed that reading assignment.

https://scholar.goog...QIOAIUQgQMIGzAA

Must be missing her keyboard also. Is this good faith journalism?

[Winstonm]

Flem72, on 2016-February-18, 16:11, said:

https://scholar.goog...QIOAIUQgQMIGzAA

Must be missing her keyboard also. Is this good faith journalism?

I didn't see anything in the lists you linked that was about perpetuation of racial entitlement. Maybe I missed it but it looked to me as if the articles refuted the position taken by Scalia concerning the voting rights act.