Scalia the Bold Leader for Originalism

Mark. J. Fitzgibbons  . . . "He gave conservatives hope that the Constitution would not be lost for a lack of honesty or standing by principle, the shortage of which are trademarks of Washington and government.

"Scalia understood that American constitutional law is based in the morality that civil society should be structured such that we should do no harm to others. The “we” includes government. The Constitution is structured to limit government’s harm to individuals and our God-given rights. Scalia understood the need for judicial fidelity to that structure. . . Read more:

Who Benefits From A Brokered Convention?

Ben Shapiro

"The Republican race further descends into chaos, more and more commentators foresee the possibility of a brokered convention. The Republican primary process is designed for an establishment candidate – it breaks down when there is no true establishment candidate with the capacity to reach out to the base. The Republicans send 2,472 delegates to the convention. To win the nomination outright, the Republican candidate must have won 1,236 delegates. Only candidates who have won a majority of support in eight different states are eligible for the nomination. That last rule – the eight-state rule, Rule 40 – was designed in order to prevent Ron Paul from making a mess of the 2012 convention.
"This means that there is a high likelihood that there will only be three candidates with that many states. Remember, in 2012, Rick Santorum only won 11 states, while Newt Gingrich only won 2; Mitt Romney carried the rest, and won 1,462 delegates. In 2008, Mitt Romney won 11 states, and Mike Huckabee won 8; John McCain won 1,378 delegates. It’s difficult to imagine a scenario in which Donald Trump, Ted Cruz, Marco Rubio and John Kasich win 8 states, for example." . . . Full article here

NY Times Writer: White Men Propose Denying President His Constitutional Right To Name SCOTUS Nominee

Weasel Zippers    "Can anyone be this dumb?"

Democrats, Trump may be the man for you

Regarding Iraq, Trump should campaign with Bernie Sanders as his campaign manager  . . . "The leading GOP candidate was visibly and vocally incensed as he responded to Dickerson's question about impeachment, 'You do whatever you want, you call it whatever you want.

Did We Just See A Trump-Killer Moment?  . . . "We saw Trump embracing and advocating two related positions that only Ron Paul’s more extreme libertarian conspiracy-theory supporters -- or Michael Moore bomb-throwing Democrats -- had previously adopted. Trump’s 9/11-bombshell was a one-two punch that either won the support of really unhappy Republicans -- or completely put-off conservative Republicans. 
This potential Trump-Killer incident began with Trump once again asserting that he did not support the Iraq invasion in 2003, which he deemed a mistake.  That, in itself, is not a problem.  Many Republicans now see that attempts at nation-building, such as President Bush tried in Iraq, are a mistake.
"But then Trump issued a pair of charges that may well have gone too far.  Maybe way too far." . . .

 But now he -- as a Republican -- has blamed a terror attack on a Republican President.
That may be more than Republican primary voters can tolerate.  That might indeed by the Trump-Killer.

Saturday's GOP Debate: Lies and Liars   . . . "But was the GOP destroying itself last night?  I say no.  The back-and-forth felt cathartic.
"All the debaters are strong after nine debates."

So who was booing Trump in Saturday’s debate?

Europe's Convinced U.S. Won't Solve Its Problems

Obama may be gone, but the American people are the ones who chose him and could support other leftists.

Bloomberg View  . . . “ 'The question of war and peace has returned to the continent,” German Foreign Minister Frank-Walter Steinmeier told the audience, indirectly referring to Russian military interventions. “We had thought that peace had returned to Europe for good."

"What was missing from the conference speeches and even the many private discussions in the hallways, compared to previous years, was the discussion of what Europe wanted or even expected the U.S. to do.

"Several European officials told me that there was little expectation that President Barack Obama, in his last year in office, would make any significant policy changes to address what European governments see an existential set of crises that can’t wait for a new administration in Washington.

“ 'There’s a shared assessment that the European security architecture is falling apart in many ways,” said Camille Grand, director of the Foundation for Strategic Research in Paris. “There is a growing sense that this U.S. administration is focused on establishing a legacy on what has already been achieved rather than trying to achieve anything more. Yet the problems can get much worse.”

"During the first day of the conference, the U.S. role in Europe was hardly mentioned in the public sessions. In the private sessions, many participants told me that European governments are not only resigned to a lack of American assertiveness, they also are now reluctantly accepting a Russia that is more present than ever in European affairs, and not for the better." . . .

And I have no confidence in our millennials to grasp the significance of what is happening in the world nor the dangers inherent in events. Try to teach them differently and it seems they hear a trigger warning telling them to go to their safe spaces. I do not see this changing until disaster comes to America, something other than the now forgotten 9/11 attacks. The Tunnel Dweller

thefederalistpapers.org/

Pray that this Congress will not let Obama and Democrats fill this Supreme Court vacancy

The timing, in some ways, is awful for conservatives, but in other ways it is perfect.  Do this one thing – let the next president and next Senate fill this seat – and we will begin to trust you again.  Fail, and there is no reason for conservatives to ever trust Washington Republicans again. Bruce Walker 

Don't Let Obama Fill Scalia's Seat   "Congress has frittered away virtually every constitutional power save one:  the power of the Senate to deny presidential appointments to the federal bench.  If Senate Republicans expect conservatives to ever trust them on anything, then they must decline to consider Obama's nominee to replace Justice Scalia." 

Thomas Lifson; Dems in Senate passed a resolution in1960 against election year Supreme Court appointments   "Read it and weep, Democrats. The shoe is on the other foot. David Bernstein at the Washington Post’s Volokh Conspiracy blog:" . . .

The impact of Scalia's death on the major court cases to be decided this term   . . . "There are enough Senate Republicans who will be absolutely adamant that no justice be confirmed before the next president takes office so that no matter what some other Republicans may want, there is no chance that Obama will get to name Scalia's replacement - unless the president uses his recess appointment powers (Note: Republicans have foiled several Obama recess appointments by technically keeping the Senate in session.) But with that comforting thought comes the realization that the damage to conservative causes will be significant because of the 8 justice court and the lost voice of a great jurist whose impact on history would only have grown if he lived."

Democrats are fundraising big time over the loss of Scalia

Leading candidates to replace Justice Scalia on the Supreme Court
. . . "Srinivasan is probably the only acceptable candidate to some Republican Senators among the names mentioned above. But regardless of what the makeup of the Senate is after the 2016 election, it's probable that there won't be enough GOP supporters to confirm any nominee named by a Democratic president unless the Senate flips and Dems take control.
"No doubt the president will make competence and temperment secondary considerations to the color of the skin and sex of a candidate. Obama is a slave to "diversity" and we shouldn't expect him to change now.
"Is this the most important presidential election in history? Considering the stakes, it's hard to argue otherwise."

FLASHBACK: In 2007, Schumer Called For Blocking All Bush Supreme Court Nominations    . . .  "When George W. Bush was still president, Schumer advocated almost the exact same approach McConnell is planning to pursue. During a speech at a convention of the American Constitution Society in July 2007, Schumer said if any new Supreme Court vacancies opened up, Democrats should not allow Bush the chance to fill it “except in extraordinary circumstances.' ” . . .

Discussing the import of losing Justice Scalia and his role in the Supreme Court

Volokh Conspiracy: Politico symposium on Justice Scalia

Politico has posted a symposium on the late Justice Antonin Scalia and his legacy, with contributions by numerous prominent legal scholars, including Laurence Tribe, Michael McConnell, Gillian Metzger, Geoffrey Stone, my co-blogger Orin Kerr, and others. Not surprisingly, there is much disagreement about the controversial aspects of his jurisprudence, as well as over his tone and style, which sometimes included harsh rhetorical attacks on opposing views.

 

. . . "Scalia was one of the most important and influential Supreme Court justices of the last several decades. His passing is a great loss to the nation.

"His most significant contribution was his powerful defense of originalism in constitutional theory and textualism in statutory interpretation. When he was first appointed to the court, most judges and legal scholars tended to ignore the original meaning of the Constitution, and often assumed that legislative history was a more important guide to the meaning of a law than actual wording of the law itself. Scalia helped change that. Today, both textualism and originalism enjoy widespread acceptance. Some of that support even cuts across ideological lines…. 

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" and "Democracy and Political Ignorance: Why Smaller Government is Smarter."

Excerpts listed below; read more on each at the link.

The symposium: How Antonin Scalia Changed America

"19 top legal thinkers on the justice’s legacy for the court, the law and the public."

"Scalia was above all a giant in the conservative legal movement, one whose intellectual influence has extended downward through law schools and outward to a newly energized American conservative politics. He stood in defense of gun rights and capital punishment, while resisting gay rights, abortion and affirmative action. And his rigorous attention to the text of the Constitution and of laws has changed the way liberals as well as conservatives conceive of the role of the highest court." Read more...

‘While deriding the very idea of a living Constitution, he did so much to give it life’ . . .  Laurence H. Tribe, Carl M. Loeb University Professor and professor of constitutional law at Harvard Law School

‘Scalia shaped many, many minds and hearts—perhaps more so than he shaped the doctrine itself’   Dahlia Lithwick, Slate legal writer. . . 

‘Scalia reminded, admonished and scolded his colleagues and the entire legal community that modern law is all about public text’. . . 
William N. Eskridge Jr., John A. Garver Professor of Jurisprudence at Yale Law School
‘He transformed the court, as well as the national conversation about the Constitution’ . . . Jeffrey Rosen, President & CEO, National Constitution Center and Professor of Law, George Washington University
‘The best judicial stylist since Oliver Wendell Holmes’ . . .Richard H. Pildes, Sudler Family Professor of Constitutional Law at New York University School of Law
‘Critics argued that he did not always consistently follow his own methodology’ . . . Ilya Somin, professor of law at George Mason University and blogger for the Volokh Conspiracy
‘Scalia had many great victories in his 30 years as a justice, but the bold effort to reinvent constitutional interpretation was not one of them’. . . Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law at The University of Chicago

‘Few justices have done as much to elevate ideas in popular discourse’ . . . Eugene Kontorovich, professor at Northwestern University School of Law

While Scalia was driven profoundly by interpretive principles, he always understood that stare decisis—adherence to precedent—is itself an important part of the Anglo-American legal system, and a constraint on judges. In practice, this means unfaithful interpretations of the Constitution that have become enmeshed in the national system for a long enough time, cannot be completely or immediately reversed, only controlled at the margins and prevented from metastasizing. 

‘He brought originalism to the constitutional mainstream’ . . .
Gillian Metzger, Stanley H. Fuld Professor of Law at Columbia Law School
‘Scalia traded the ability to express himself independently for real power’ . . .Barry Friedman, Jacob D. Fuchsberg Professor of Law at New York University School of Law
‘He helped play a role in the growing polarization of American public discourse’ . . .Daniel Farber, professor constitutional and environmental law at the University of California, Berkeley. Remember: Berkeley

‘On every one of the most controversial issues to come to the court for three decades, it was Scalia who articulated the conservative vision’. . . Erwin Chemerinsky, dean and distinguished professor of law and Raymond Pryke professor of First Amendment law at the University of California, Irvine School of Law

‘He changed the way the public sees the court and the law’ . . .
Kermit Roosevelt, Professor of Law at University of Pennsylvania Law School

‘Profoundly uncivil’ . . .John Culhane, professor of law and co-director of the Family Health Law and Policy Institute at Widener Law Delaware
"A few examples will suffice. During oral argument on Lawrence v. Texas, the 2003 decision that recognized that same-sex couples enjoy a fundamental right to engage in private, sexual intimacy, Scalia caused gasps in the courtroom by asking whether there was also a fundamental right to sit on flagpoles. The metaphor wasn’t lost on anyone. In 2013, he questioned an interpretation of affirmative action that protected only “the blacks.' ”
‘A major influence on how the last generation thinks about law’  . . .
Orin S. Kerr, Fred C. Stevenson Research Professor at George Washington University Law School
‘He made the job look fun’ . . . Noah Feldman, Felix Frankfurter Professor of Law at Harvard Law School and columnist for Bloomberg View (where he wrote an article from which this is adapted)

Scalia was one of the best of justices and one of the worst of justices. His philosophy of constitutional interpretation, based on the law as a set of rules that should be applied in accordance with the original meaning of the document, ranks as great.

. . . "Scalia was an original. His stinging dissents will be read, and his humor remembered. More than any other justice in my lifetime, he made the job look fun. In an era of politicized confirmations, someone with a personality like his can’t get on the court—for better or worse. We shall not see his like again."

Dave Barry’s 8 funniest lines from the New Hampshire primaries

Miami’s favorite funny man was in New Hampshire

Miami Herald  “On the Republican side, Ted Cruz won in Iowa. Donald Trump, who came in second, made an uncharacteristically low-key and gracious concession speech, but then the tranquilizer dart wore off and Trump fired off a series of semi-grammatical attack tweets claiming that Cruz is a liar and a fraud and by the way a Canadian who won Iowa by cheating. So he’s back in form.”

"Read the whole column: Tinkling on Iowa: It’s the New Hampshire primaries!"

. . . 

“ 'As for the debate itself: The high point, without question, was the introduction of the candidates, in which the process of getting seven guys to walk out onto a stage in a specific order somehow became more complicated than the Normandy invasion.”

"Read the whole column: Brain chips, porn, good food ... and, oh, yeah, the candidates"

Read more here: http://www.miamiherald.com/living/liv-columns-blogs/dave-barry/article59343083.html#storylink=cpy

Legal disarray after shock death of Justice Scalia: Abortion, immigration and gay rights decisions in doubt as Obama and Senate prepare to go head-to-head over successor

UK Daily Mail  "While the nomination battle for Justice Antonin Scalia's vacant seat has just begun, the repercussions of his death on the Supreme Court will be immediate.

"The absence of Scalia, who died from natural causes at a hunting ranch in Texas on Saturday, has left the Supreme Court split with four Democratic and Republican appointees each.

"Now a number of pending cases on abortion, immigration and affirmative action, among others, could be left with a 4-4 tie with the loss of conservative Scalia tipping the majority." . . . 

"He wasn't feeling well and went to bed early, CNN reported.

"When he did not show up for breakfast in the morning, a person associated with the ranch went to check on him and found his body in his room.

" 'The US Marshal Service, the Presidio County sheriff and the FBI are investigating Scalia's death but there was no evidence of foul play, a federal official told My San Antonio.

"'A gray Cadillac hearse, coming from Alpine Memorial Funeral Home, arrived at the ranch on Saturday afternoon. An El Paso priest was also called to Marfa on Saturday, KVIA reported.

" 'Scalia leaves behind his wife of 55 years, Maureen, as well as their nine children and 28 grandchildren. ' "

. . . 

"A 4-4 tie would also uphold the federal court's ban on Obama's 2014 executive action to protect four million undocumented immigrants from deportation.

"But it would not allow the Court to put broader limits on the authority of the president, a possibility they discussed in January, according to Bloomberg. 

""Unlike with the abortion and immigration cases, Scalia's absence will make a tie impossible in an upcoming affirmative action decision. " 

Read more:

• Scalia's Death Undercuts Conservative Hopes on Unions, Abortion - Bloomberg Politics

• Antonin Scalia’s death could lead to more 4-4 ties. Here’s what happens if it does. - Vox

• U.S. Supreme Court Justice Antonin Scalia found dead at West Texas ranch - San Antonio Express-News

• upreme Court Justice Scalia dies during hunting trip in Marfa | News - Home

Supreme Court Justice Antonin Scalia Dies. America is no longer voting just for a President, we will be selecting a Supreme Court Justice

Do Republicans in Congress have the courage to deny Obama his choice for Justice? Expect a lot of liberal demagoguery this year and we must listen to what our Republican candidates say on this. Already Trump has indicated he will not fight for a Constitutional judge. The Tunnel Dweller.

Newsmax

. . . "President Barack Obama was informed of Scalia’s death Saturday afternoon, and his lame-duck status triggered immediate calls by Republicans to defer the nomination of a new justice until the next president’s term begins in 2017.

I'd say the left is rejoicing right now. TD

"Known for his sarcasm and combative style, Scalia was a polarizing force on the court and across the country. He called the 2015 decision that legalized gay marriage a “threat to American democracy,” said a 1992 abortion-rights opinion “cannot be taken seriously,” and predicted a 2008 ruling favoring Guantanamo Bay inmates “will almost certainly cause more Americans to be killed.”

Scathing Dissents:  "In 2002, Scalia blasted a decision that invoked the constitutional ban on cruel and unusual punishment to bar executions of mentally disabled killers. “Seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members,” Scalia said in his dissent." . . .

Justice Scalia, Political Philosopher and Political Football  . . . "In a sense, Cruz and Rubio must speak for the very thing Scalia dedicated his life to: replacing the gut-level right-wing instincts of earlier brands of judicial conservatism with a philosophy in which ideas had consequences, means mattered as much as ends, and We The People was more than just the handy slogan of the demagogue." . . .

Supreme Court Justice Antonin Scalia, RIP.  . . . "Scalia’s death leaves a vacancy on the court. The court can operate with eight justices, but any decisions that result in a 4-4 split among the justices leave the lower court decision unchanged: 

Although rare, 4-4 ties are hardly unheard-of—justices do recuse themselves from time to time. A split decision effectively upholds the ruling of the lower court (presumably a state supreme court). In the event of such a tie, the court typically issues what’s known as a per curiam decision. The opinion in such a decision is issued under the court’s name, as opposed to consisting of a majority and a minority opinion. Justices, however, may attach dissenting opinions to the per curiam decision if they like—as happened in Bush v. Gore. When a 4-4 deadlock does occur, the case is not deemed to have set any sort of precedent. Tradition holds that the court’s per curiam opinion in such ties is usually very, very terse, often consisting of no more than a single sentence: “The judgment is affirmed by an equally divided court.' ” . . .

. . . "Ed Whelan, among others, argues that the Republican Senate should not confirm an Obama nominee."

WaPo: Antonin Scalia and the Fortas Precedent   "My Twitter feed is filled with Democrats loudly protesting that despite statements to the contrary by Senate Republican leaders, Senate Republicans wouldn’t dare to refuse to confirm a suitably qualified Supreme Court nominee in a presidential election year. I suspect they would dare, partly because the “base” would go nuts if they did otherwise, and partly because President Lyndon Johnson’s failed 1968 nomination of Abe Fortas to be Chief Justice provides a close enough analogy that it would be difficult to accuse the Senate GOP of acting in an unprecedented obstructionist manner." . . .

Next US president should nominate Scalia successor: Republican

Yahoo  via Drudge

"President Barack Obama should not nominate a successor to fill the critical vacancy in the US Supreme Court left by conservative Justice Antonin Scalia's death, the Senate Republican majority leader said Saturday. 

" 'The American people‎ should have a voice in the selection of their next Supreme Court Justice," Mitch McConnell said in a statement, referring to the upcoming November general election.

" 'Therefore, this vacancy should not be filled until we have a new president."

"McConnell mourned the loss of "an unwavering champion of a timeless document that unites each of us as Americans," referring to Scalia's fidelity to the US Constitution." . . .

Sanders: We Must End Over-Policing in African-American Neighborhoods

How'd that all work out in David Dinkins' New York? Anybody ride his subways back then?

CNS News  "Democratic presidential candidate Sen. Bernie Sanders (I-Vt.) called for an end of “over-policing” in black neighborhoods during the PBS Democratic presidential debate in Milwaukee, Wis., on Thursday night.

“ 'What we have to do is end over-policing in African-American neighborhoods. The reality is that both the African-American community and the white community do marijuana at about equal rates,” Sanders said. “The reality is four times as many blacks get arrested for marijuana. Truth is that far more blacks get stopped for traffic violations.' ” . . .

“But, here is a pledge I've made throughout this campaign, and it's really not a very radical pledge. When we have more people in jail, disproportionately African American and Latino, than China does, a communist authoritarian society four times our size,” Sanders said.