Posted on 11/19/2016 11:31:22 AM PST by Kaslin
Now that the election has settled the question of who will appoint the next Supreme Court justice, we have spent a considerable amount of time analyzing who might get Donald Trump’s appointment. Perhaps a better way to look at that question will be to recall the context in which it gets made. Earlier this week, Justice Samuel Alito laid out the potential agenda for a court in which an originalist replaces the late Antonin Scalia — and reminded the Federalist Society of the bullet conservatives dodged in the election:
Justice Samuel Alito on Thursday laid out a possible agenda for the U.S. Supreme Court if it regains its conservative majority as expected after Donald Trump takes office, citing gun rights and religious freedom as among key issues it will tackle in the coming years.Alito, one of the court’s two most conservative justices along with Clarence Thomas, pointed to freedom of speech and a disruption of the U.S. Constitution’s separation of powers caused by federal agencies expanding their authority at the expense of the U.S. Congress as other “constitutional fault lines” that could come before the court.
Alito offered a sense of what a right-leaning court could accomplish on a number of issues, including free-speech challenges on college campuses, religious freedom, and protecting earlier victories such as Citizens United. Alito got specific on the danger to Heller and McDonald, and suggested that the next right-leaning court could tackle executive-agency overreach:
In reference to gun rights, Alito mentioned Justice Stephen Breyer’s dissent in the 2008 case District of Columbia v. Heller, in which the court found an individual right to bear arms for self defense. Breyer’s dissent, in which he argued that the Constitution’s Second Amendment protects militia-related and not self-defense-related gun rights and it does not absolutely bar government action on guns, gave a “roadmap” to those who would seek to undermine the ruling, Alito said.Alito also assailed federal agencies including the U.S. Environmental Protection Agency for seeking to expand their power beyond what was allowed under laws passed by Congress
Certainly those earlier gains were put at risk with the passing of Scalia. However, it’s not terribly clear that simply replacing Scalia with another originalist will lead to a conservative renaissance on the Supreme Court. It’s a return to the status quo ante that produced the blessing of ObamaCare — twice. Even the gains made in some of these cases turned out to be more incremental than breakthrough, although they were all happily received. It could have been worse.
The key isn’t the upcoming appointment, at least now that the election has been decided. It’s the next appointment after that, especially if one of the liberal seats on the bench open up for Trump to fill. Anthony Kennedy and to some extent John Roberts will still determine the swing on the court. A second appointment, assuming that scenario, will be the one that pushes the court to the right significantly enough to make originalism more dominant in the outcomes.
For that reason, it seems more likely that Democrats will keep their powder dry on the upcoming nomination to replace Scalia. They need to save their remaining political capital to really go to the mattresses if Trump gets to replace Ruth Bader Ginsburg or Stephen Breyer (and of course we all hope through retirement in health). They can’t afford to burn the SCOTUS filibuster on this first choice, but need to play for time and hope Trump’s political capital gets expended on other issues. If they’re smart and thinking long-term, they’ll organize a nay vote to make their point on the upcoming nominee and bide their time for the real nightmare scenario. Otherwise, flush with the success of the election and Democrats’ tone-deaf obstructionism, Republicans will bury the SCOTUS filibuster, blame it on Harry Reid, and give Trump carte blanche for at least four years on Supreme Court nominations.
Once we get another originality on the court I wouldn’t mind seeing Thomas as Chief Justice.
I forced myself to watch an interview between Bill Press and Sotomayor.
Not one time did she mention the constitution, everything fell into the category of what a super legislator would say and do.
It was insane.
God Blessed America with Trump. No question.
Make Alito chief justice. He is the best we got on SCOTUS right now.
The “wise Latina” will educate us on what is best for us?
Roberts is a gutless backbone less coward. Enough conservatives on the court will scare him intoconformity. Kennedy is a waffling gun going off in all directions. It’s time for him to retire along with Bader-Ginsburg
BTTT!
Just replacing Scalia, won’t be all you might expect. IMHO, SCOTUS fell short on 2a rights. Heller and McDonald were landmark decisions, but didn’t go far enough. After reading Heller, one wonders if they really do have 2a rights outside the home.
We need a firm majority, not some hope that there is a swing voter.
Can someone tell me how the selection of Chief Justice works? And can Roberts be dumped out of the position?
|
Name |
Age |
When Appointed |
Appointed By |
|
Anthony Kennedy |
(age 80) |
18-Feb-88 |
Ronald Reagan |
|
Clarence Thomas |
(age 68) |
23-Oct-91 |
George H. W. Bush |
|
Ruth Bader Ginsburg |
(age 83) |
10-Aug-93 |
Bill Clinton |
|
Stephen Breyer |
(age 78) |
03-Aug-94 |
Bill Clinton |
|
John Roberts (Chief Justice) |
(age 61) |
29-Sep-05 |
George W. Bush |
|
Samuel Alito |
(age 66) |
31-Jan-06 |
George W. Bush |
|
Sonia Sotomayor |
(age 62) |
08-Aug-09 |
Barack Obama |
|
Elena Kagan |
(age 56) |
07-Aug-10 |
Barack Obama |
I hope President Trump (my President) will assign Secret Service guys to all of the conservatives on the SCOTUS. The snowflakes are a little off right now and very dangerous characters.
Lifetime appointment, just like the associate justice. Some FReepers are in serious denial, thinking that Trump can change judges who have life tenure.
Way to be 2015, Ed. Political capital don't matter for shit. In four years, Trump makes top 3 picks stick: 1, 2, 3
Declare 922(o) unConstitutional, Justice Alito. Please.
To reinforce: No, a Chief Justice isn’t ever likely to be demoted. If a CJ is a big enough problem, he can be impeached and completely removed.
Little is to be gained by demoting a CJ anyway if he would still be on the Court. And he’d likely have a grudge against the party that did it. Not good!
I can’t believe Thomas is only 68. I remember watching his confirmation in college. He must have been in his early 40s.
If they didn’t impeach Earl Warren, they won’t impeach any of them.
The Chief Justice is nominated by the President of the United States and confirmed to sit on the Court by the United States Senate. The U.S. Constitution states that all justices of the court "shall hold their offices during good behavior," meaning that the appointments end only when a justice dies in office, resigns, or is impeached by the United States House of Representatives and convicted at trial by the Senate.
And if they think Chief Justice Roberts can be impeached for agreeing one time with that arrogant pos occupant of 1600 Pennsylvania Ave they gonna be dissapointed
Agreed. Some seem to believe Trump can mouth the words and it will happen. Some things, yes, such as rescinding executive orders, but lots of things will take 60 votes in the Senate since it appears they are not going to do away with the filibuster.
You did not read the article or if you did, you did not understand it.
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