Unelected

#127
#127
volinbham said:
Here's the thing - I don't recall a POTUS ever making this type comment; particularly as said in the Rose Garden while a case was under review by the court.

After a ruling comes down perhaps but not during the deliberations - it definitely came across as telling the courts how they are supposed to decide this case and attempting de-legitimize the outcome if they don't rule the way he says they should. That is why many court watchers saw this as an attempt to intimidate the court.

For a guy that loves the word "unprecendented" he certainly showed an example here.

The same is true for the Citizen's United case. The POTUS simply does not call out the court during the SOTU speech. It was unprecedented. Didn't help that his interpretation of what the ruling meant was wrong as well.
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I don't remember it, either, since it hasn't happened on this scale in about 80 years.


I do, however, recall many GOP leaders over the years publicly condemning the Court, individual justices, and the entire judiciary whenever some law they liked got struck down.

As I, and many others have said, the loser always complains that judicial activism is why they lost.
 
#128
#128
I'll have to see if there is still video of it, but it's happened.

Again, the way Obama goes about it is highly tactless, but there are portions of the SOTU citizens united comments and the episode the other day that I don't disagree with. There were other conservative federal judges that wrote op-eds prior to the Rose Garden presser the other day saying the SCOTUS striking down the ACA would be an act of judicial activism. I personally don't know enough about judicial history to say whether or not that's accurate, but the comments have been out there.

As for the Citizens United comments, Obama did bring up my biggest issue with that. If own a foreign corporation or if I'm a wealthy foreigner, I can now spend as much money as I like to affect US elections without telling anybody, because of that ruling. I think that's a very serious issue.
 
#129
#129
lawgator1 said:
I don't remember it, either, since it hasn't happened on this scale in about 80 years.


I do, however, recall many GOP leaders over the years publicly condemning the Court, individual justices, and the entire judiciary whenever some law they liked got struck down.

As I, and many others have said, the loser always complains that judicial activism is why they lost.
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I think the difference here is calling out the SCOTUS after they've made decisions vs calling them out while they're still deliberating, and there is a big difference between the two.

But, for better or worse, the justices live in a bubble and tend to be unaffected one way or the other by these sort of comments. Obama is posturing to make the court a major part of his platform in anticipation of the mandate being struck down. It may turn out to be a useful political tool.
 
#130
#130
milohimself said:
I think the difference here is calling out the SCOTUS after they've made decisions vs calling them out while they're still deliberating, and there is a big difference between the two.

But, for better or worse, the justices live in a bubble and tend to be unaffected one way or the other by these sort of comments. Obama is posturing to make the court a major part of his platform in anticipation of the mandate being struck down. It may turn out to be a useful political tool.
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They could give a rat's azz what he says. They know why he's saying it and could not careless. It will have no influence, if that is what people are worried about, that somehow he will shame them into upholding it.

The reality is that the Commerce Clause is, and has been interpreted, very broadly. There is very little direction out there on any limits to it. This case may present an opportunity for the Court to set some.

And if so, the irony is that I can easily see ten years from now some Republican President complaining that the Court is going to declare unconstitutional some law he managed to push through.
 
#131
#131
lawgator1 said:
I don't remember it, either, since it hasn't happened on this scale in about 80 years.


I do, however, recall many GOP leaders over the years publicly condemning the Court, individual justices, and the entire judiciary whenever some law they liked got struck down.

As I, and many others have said, the loser always complains that judicial activism is why they lost.
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The bold is what I was discussing with Milo - after it's struck down is distinct from doing it while under deliberation.
 
#132
#132
volinbham said:
The bold is what I was discussing with Milo - after it's struck down is distinct from doing it while under deliberation.
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Yeah, I understand.

Why do you think that distinction is meaningful? As I say, he could stand at the front steps and threaten to light himself on fire, it won't change any of the votes.
 
#133
#133
lawgator1 said:
.

And if so, the irony is that I can easily see ten years from now some Republican President complaining that the Court is going to declare unconstitutional some law he managed to push through.
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And if VN is still around you'll start an angry thread about it.
 
#135
#135
lawgator1 said:
Yeah, I understand.

Why do you think that distinction is meaningful? As I say, he could stand at the front steps and threaten to light himself on fire, it won't change any of the votes.
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It is meaningful because it is an attempt to influence the outcome (whether successful or unsuccessful) that is outside the bounds of the process.

I'm quite sure a defendent's attorney calling out the jury and telling them the negative consequences of ruling against his/her clients while they are deliberating would not be viewed as appropriate.
 
#136
#136
volinbham said:
It is meaningful because it is an attempt to influence the outcome (whether successful or unsuccessful) that is outside the bounds of the process.

I'm quite sure a defendent's attorney calling out the jury and telling them the negative consequences of ruling against his/her clients while they are deliberating would not be viewed as appropriate.
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That analogy sucks.

And the SCOTUS doesn't care what Obama says in some speech. The notion that he is trying to influence their vote is laughable.

The issue was in the news because many observers were saying it will be struck down and Obama responded by laying the groundwork for the judicial activisim claim he will then have to make down the line.

He shouldn't have only because he gave the GOP an easy target on the whole "Obama doesn't respect the Constitution (because he's really a foreign Muslim agent) (and wants to eat your children, too)" theory.
 
#137
#137
lawgator1 said:
That analogy sucks.

And the SCOTUS doesn't care what Obama says in some speech. The notion that he is trying to influence their vote is laughable.

The issue was in the news because many observers were saying it will be struck down and Obama responded by laying the groundwork for the judicial activisim claim he will then have to make down the line.

He shouldn't have only because he gave the GOP an easy target on the whole "Obama doesn't respect the Constitution (because he's really a foreign Muslim agent) (and wants to eat your children, too)" theory.
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It wasn't just GOPrs that found the comments questionable/objectionable.
 
#138
#138
volinbham said:
It is meaningful because it is an attempt to influence the outcome (whether successful or unsuccessful) that is outside the bounds of the process.

I'm quite sure a defendent's attorney calling out the jury and telling them the negative consequences of ruling against his/her clients while they are deliberating would not be viewed as appropriate.
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I don't think the intent was to influence the ruling, I'm pretty sure Obama knows as well as anyone that whatever he or anyone else says won't influence the ruling one way or the other. He's starting to posture to make a SCOTUS nomination part of his platform and will likely point to Bush v. Gore and Citizens United (both decisions poll very poorly) in addition to a possible striking down of the ACA as the result of a 5-4 conservative majority. Obama getting re-elected would likely flip that, at least in the short term depending on when Ginsburg and Breyer retire.
 
#140
#140
#141
#141
#142
#142
#143
#143
milohimself said:
I don't think the intent was to influence the ruling, I'm pretty sure Obama knows as well as anyone that whatever he or anyone else says won't influence the ruling one way or the other. He's starting to posture to make a SCOTUS nomination part of his platform and will likely point to Bush v. Gore and Citizens United (both decisions poll very poorly) in addition to a possible striking down of the ACA as the result of a 5-4 conservative majority. Obama getting re-elected would likely flip that, at least in the short term depending on when Ginsburg and Breyer retire.
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I'm not saying he was trying to influence or seriously trying to do so. It's more the appearance of interference with the judiciary.

I agree 100% that it is a political ploy aimed at shielding himself from an overturn. My beef is that politicians being overtly political doesn't make it right and is nothing to be admired. I think he shows a lack of leadership and gravitas in this situation. That is the primary complaint.

With regard to replacing justices - it's hard to imagine he could put a more liberal justice than Ginsberg in to replace here. Breyer is a bit different but I don't see him have a major impact on the composition of the court.

If Romney wins and he gets a shot at replacing either of those I hope he replaces them with like-minded justices. I prefer a balanced court and think it is "right" to replace with like minded rather than taking the opportunity to change the balance dramatically.
 
#144
#144
It could happen that way, but loading the judiciary one way or another is a time-honored tradition that started with FDR, which allowed him to start passing New Deal policies. The effect of it lasted up through the Nixon admin from everything to the New Deal, Civil Rights, bussing, etc. and the Republicans reactively adopted the same technique. I would also like to see Romney, if elected, try and maintain balance but my bet is that we'd wind up with a 6-3 conservative majority.
 
#145
#145
milohimself said:
It could happen that way, but loading the judiciary one way or another is a time-honored tradition that started with FDR, which allowed him to start passing New Deal policies. The effect of it lasted up through the Nixon admin from everything to the New Deal, Civil Rights, bussing, etc. and the Republicans reactively adopted the same technique. I would also like to see Romney, if elected, try and maintain balance but my bet is that we'd wind up with a 6-3 conservative majority.
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I don't know all the history - just what I've seen over the last 30 + years or so but I don't recall many appointees that were that different on the surface than the person they were replacing.

cons replaced with cons, moderates replaced with moderates, libs replaced with libs
 
#146
#146
milohimself said:
It could happen that way, but loading the judiciary one way or another is a time-honored tradition that started with FDR, which allowed him to start passing New Deal policies. The effect of it lasted up through the Nixon admin from everything to the New Deal, Civil Rights, bussing, etc. and the Republicans reactively adopted the same technique. I would also like to see Romney, if elected, try and maintain balance but my bet is that we'd wind up with a 6-3 conservative majority.
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And I will be jumping up and down and popping the champagne.
 
#147
#147
volinbham said:
I don't know all the history - just what I've seen over the last 30 + years or so but I don't recall many appointees that were that different on the surface than the person they were replacing.

cons replaced with cons, moderates replaced with moderates, libs replaced with libs
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If I'm not mistaken, since FDR, SCOTUS appointees have more or less fallen ideologically in line with whoever was in office at the time. IIRC most presidents prior to FDR have made at least one appointment of a justice of at least a somewhat opposing ideology.
 
#148
#148
meanwhile, the Obama administration is challenging the constitutionality of DOMA, asking a federal court to find it, wait for it, unconstitutional.
 
#149
#149
milohimself said:
If I'm not mistaken, since FDR, SCOTUS appointees have more or less fallen ideologically in line with whoever was in office at the time. IIRC most presidents prior to FDR have made at least one appointment of a justice of at least a somewhat opposing ideology.
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It may have just been dumb luck then that the positions opened at the time were already held by that ideology. I just don't recall an instance (over the time I've paid attention) where a con retired and a lib took his/her place or vice versa. There may have been some room around the margin - say a right-moderate replacing a left-moderate or vice versa.

As I say - may have just been dumb luck or a combo of luck of who retired and composition of the Senate at the time.

Whichever (Sotomayor or Kagan) that replaced Souder was a bit of a change but not too drastic.
 
#150
#150
Dont think the country was polar opposite back then as it is now.


Yes we had a civil war but I think the country as a whole was more on the same page.
 
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