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Supreme Court -- 2011 and beyond discussion

Old 05-12-11, 01:56 PM
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Supreme Court -- 2011 and beyond discussion

We're coming up on the end of the term. But what's most interesting is that there is no retirement scuttlebutt. It's a non-election year, so you'd figure Ginsburg would want to get out while the Dems still have full control (although not filibuster-proof) of the process.

This Harvard professor is telling Ginsburg and Breyer to get the hell out.

http://www.cbsnews.com/stories/2011/...20058147.shtml

Why Justices Ginsburg and Breyer should retire now
If they remain and Obama loses in 2012, a judicial disaster awaits the Supreme Court

By Randall Kennedy

Justices Ruth Bader Ginsburg and Stephen Breyer should soon retire. That would be the responsible thing for them to do. Both have served with distinction on the Supreme Court for a substantial period of time; Ginsburg for almost 18 years, Breyer for 17. Both are unlikely to be able to outlast a two-term Republican presidential administration, should one supersede the Obama administration following the 2012 election. What's more, both are, well, old: Ginsburg is now 78, the senior sitting justice. Breyer is 72.

Is such a suggestion an illicit politicization of the Court? No. It is simply a plea for realism, which is often difficult to muster in the face of the idolatry that suffuses popular thinking about the justices and their role in American democracy. There is no question that the justices are often strategic in deciding when to depart the bench, even if they are quiet about their aims.

One can confidently assume, for instance, that Justice Antonin Scalia would be especially loath to retire during Obama’s presidency. The special reluctance would stem from an apprehension that Obama’s nominee as a successor would likely harbor juridical views antagonistic to those that Scalia cherishes. That apprehension will prompt Scalia to make a special effort to hold on to his seat until a very different sort of politician occupies the White House—a president more likely to nominate a jurist more in keeping with Scalia’s conservative outlook.

There is nothing wrong in principle with such a calculation. A justice should have a deep, even passionate, commitment to his or her judicial philosophy and therefore act within his or her lawful powers to advance that perspective. Cloaked with lifetime tenure, federal judges have a unique power to determine when their judicial careers should end and thus possess an important, though oft-overlooked, way of influencing the trajectory of the federal bench. Many federal judges exercise this power by retiring or taking senior status (a form of semi-retirement) when a president sharing their political-juridical values is in office.

Thus it is that liberal-leaning justices such as Harry Blackmun, John Paul Stevens, and David Souter retired during the Clinton and Obama presidencies, while more conservative-leaning justices such as Sandra Day O’Connor, Lewis Powell, and Warren Burger retired during the Reagan, Bush I, and Bush II presidencies.

If Ginsburg or Breyer (or both) announced retirement at the end of this Supreme Court term (pending the confirmation of successors), they could virtually guarantee that President Obama would get to select their replacements. Senate Republicans have shown themselves to be willing to stymie the process of judicial confirmation and leave vacancies open for long periods of time. The Supreme Court, however, occupies a different status than federal trial and appellate courts. Even the most recalcitrant Republican senators seem to acknowledge that Supreme Court vacancies should be filled without undue delay. That is why Ginsburg and Breyer need to act soon. If they wait much beyond the end of this Supreme Court term, the Republicans will delay confirmation, praying for an upset in the presidential election.

If Ginsburg and Breyer abjure retirement and Obama wins, the justices’ subsequent departures will be relatively harmless. On the other hand, if Obama loses, they will have contributed to a disaster. The career of Justice Thurgood Marshall is a cautionary tale. When asked about the prospect of retiring, he remarked on several occasions that his appointment was for life and that he intended to serve out his term fully. We now know, of course, that the end of Marshall’s time at the Court was less dramatic than that but deeply saddening nonetheless. Plagued by failing health, he retired on June 27, 1991, setting the stage for President George H. W. Bush to replace “Mr. Civil Rights” with Clarence Thomas, who has become, ideologically, the most retrograde justice since World War II. It must have been agonizing for Marshall to witness his seat pass to the ministrations of a man whose views on the most pressing issues of our time were so balefully hostile to his own. Now, if Justice Ginsburg departs the Supreme Court with a Republican in the White House, it is probable that the female Thurgood Marshall will be replaced by a female Clarence Thomas.

Justices Ginsburg and Breyer have enriched the nation with long, productive, admirable careers. They have propounded a moderately liberal jurisprudence that, at its best, has defended civil liberties, protected the rights of the marginalized, and asserted the authority of the federal government against invocations of reactionary originalism. Their estimable records will be besmirched, however, if they stay on the bench too long. They should announce their retirements this spring, effective upon the confirmation of successors. Those, like me, who admire their service might find it hard to hope that they will soon leave the Court—but service comes in many forms, including making way for others.
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Old 05-12-11, 01:58 PM
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Re: Supreme Court -- 2011 and beyond discussion

His discussion of the difference btwn Justice Marshall and Justice Thomas leads me to post this story. Once again, Justice Thomas is not the right kind of black man to certain folks.

http://legaltimes.typepad.com/blt/20...ntroversy.html

Justice Thomas' Planned Speech in Georgia Draws Controversy

Supreme Court Justice Clarence Thomas heads to his home state of Georgia next week to help dedicate a new courthouse, but not everyone there is eager to see him.

News stories in Augusta here and here report that several local officials and lawyers are upset that Thomas will be the guest speaker May 18 at the opening of a court building named for John Ruffin Jr., a local civil rights lawyer who became the first black judge on the Georgia Court of Appeals. Ruffin died in 2010.

“It’s not [Thomas’] fault, but his judicial philosophy is the antonym of what Judge Ruffin’s was and what it is in the vast majority of the minority community,” Richmond County State Court Judge David Watkins was quoted as saying in The Augusta Chronicle. The paper also quoted a close friend of Ruffin as saying, “I know of no way we could dishonor John Ruffin more than to have Clarence Thomas speak for this occasion.”

Ken Foskett, author of a 2004 biography of Thomas and now opinions editor at the Atlanta Journal-Constitution, said the controversy "really speaks to the local politics of Augusta," a city that he describes as "very racially charged."

In an interview last week, Judge Watkins said, “Reasonable minds can disagree” over the appropriateness of inviting Thomas in light of the “divergent judicial philosophies” of Thomas and the late judge Ruffin. The first black member of the Augusta bar, Ruffin was “a real icon within the minority legal community here,” said Watkins.

The method for picking Thomas as the speaker at the dedication was as polarizing as the choice itself, Watkins added, because minority lawyers were not consulted. “The way the issue came up was very divisive,” he said. “In this neck of the woods, it echoes the good old boy way of doing things. It came off as disrespectful and condescending.”

Others defended the choice of Thomas, if for no other reason than that he is the circuit justice for the 11th circuit, which includes Georgia. When Thomas first accepted the invitation last fall, City Administrator Fred Russell said, “He seemed like a logical choice. He’s the Supreme Court justice. That’s pretty classy. I didn’t realize that would be a problem.” Former Richmond County State Court Solicitor Harold Jones was quoted as saying, “He is a Supreme Court justice. He’s from Georgia. He pulled himself up with his own bootstraps,” he said. “I think it's a great choice. I think he shows what a justice should be.” Thomas is also scheduled to speak before the Augusta Bar Association May 17.

The controversy recalls past incidents in which Thomas’s Georgia appearances caused a stir. In 2002 and 2008, some faculty members and students at the University of Georgia protested his appearances.

Judge Watkins said he plans to attend the Augusta courthouse dedication despite his misgivings about the process. “I’m former military, and there the person is important, but the rank is more important. You don’t have to love the person to respect the rank.”

Foskett, the Thomas biographer, said it was not surprising that Thomas, nearing his 20th anniversary on the high court, still attracts controversy when he gives speeches. "Among many black folks, his opposition to affirmative action and other racial preference programs was a line in the sand that most of them cannot accept, and they won't forgive him for it."

Eventually, Foskett predicted, that opposition will subside, and it is even possible that "someday, people will look back and say, 'he had it figured out'" and was correct on the issue. "But we're not there yet."
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Old 05-12-11, 10:58 PM
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Re: Supreme Court -- 2011 and beyond discussion

I saw that wiki said Ginsburg's husband died last year, so Ruth probably will retire first. I'm sure the two have thought about retirement and how much longer they can "balance" the court.

Breyer should hold on and roll the dice and hope Obama gets a second term.
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Old 05-12-11, 11:13 PM
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Re: Supreme Court -- 2011 and beyond discussion

I have started to reply to the second post a couple of times and haven't. I just don't know how to formulate my words.

I can only describe the rationale behind the controversy as obscene.
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Old 05-13-11, 08:06 AM
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Re: Supreme Court -- 2011 and beyond discussion

Everything I've read about Justice Thomas leads me to the conclusion that he is an intellectually incurious ideologue who barely participates in the process. Race aside, he's certainly seems to be the wrong "kind" of man for the job.
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Old 05-13-11, 08:11 AM
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Re: Supreme Court -- 2011 and beyond discussion

'He participates very little in verbal questioning. Therefore, he is an intellectually incurious idealogue in the process.'

You talk about jumping to conclusions - that's a leap to conclusions.

The nerve of the man - actually believing The Constitution means what it says.
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Old 05-13-11, 08:18 AM
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Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by Jason View Post
Everything I've read about Justice Thomas leads me to the conclusion that he is an intellectually incurious ideologue who barely participates in the process. Race aside, he's certainly seems to be the wrong "kind" of man for the job.
Ah yes, his silence during oral arguments. That absurd knock on him never seems to go away. Maybe you should read something he writes instead of the opinions of others, who are strictly motivated by politics.

Have you ever read his opinions? Have you read his autobiography? Are you familiar with his background at all?
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Old 05-13-11, 09:01 AM
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Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by Red Dog View Post
Ah yes, his silence during oral arguments. That absurd knock on him never seems to go away. Maybe you should read something he writes instead of the opinions of others, who are strictly motivated by politics.

Have you ever read his opinions? Have you read his autobiography? Are you familiar with his background at all?
Oh no, all I know is what katie couric and the media tell me. Why would I ever want to think for myself?

Thanks for turning me around. Obviously, Clarence Thomas is god with a better haircut.
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Old 05-13-11, 09:46 AM
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Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by Jason View Post
Oh no, all I know is what katie couric and the media tell me. Why would I ever want to think for myself?

Thanks for turning me around. Obviously, Clarence Thomas is god with a better haircut.
It's refreshing to see you admit it. Now if we can get the other Jason - JasonF - to admit it - we've accomplished something.
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Old 05-13-11, 12:21 PM
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Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by Jason View Post
Everything I've read about Justice Thomas leads me to the conclusion that he is an intellectually incurious ideologue who barely participates in the process. Race aside, he's certainly seems to be the wrong "kind" of man for the job.
If Obama were nominated to the SCOTUS I would say he's the wrong kind of man for the job as well. But somehow I don't think I'd be allowed to use the line "race aside" without being blasted...

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Old 05-13-11, 12:35 PM
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Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by classicman2 View Post
It's refreshing to see you admit it. Now if we can get the other Jason - JasonF - to admit it - we've accomplished something.
I know I'll never get you to stop posting nonsense, but could you at least do me the courtesy of not posting nonsense directed to me by name? Thanks.
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Old 05-16-11, 06:04 PM
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Re: Supreme Court -- 2011 and beyond discussion

Flushing a toilet means you give up your 4th amendment rights:

http://www.nytimes.com/2011/05/17/us/17scotus.html
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Old 05-16-11, 06:40 PM
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Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by mosquitobite View Post
If Obama were nominated to the SCOTUS I would say he's the wrong kind of man for the job as well. But somehow I don't think I'd be allowed to use the line "race aside" without being blasted...

FWIW, I don't think Obama would work on the SCOTUS either.
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Old 05-16-11, 08:06 PM
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Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by RoyalTea View Post
Flushing a toilet means you give up your 4th amendment rights:

http://www.nytimes.com/2011/05/17/us/17scotus.html
Wow. I can see both sides, but I have to side with Ginsberg!
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Old 05-16-11, 08:28 PM
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Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by mosquitobite View Post
Wow. I can see both sides, but I have to side with Ginsberg!
Yeah, no kidding. The only exception should be imminent danger to a persons life; chasing some guy that bought a bit of crack shouldn't make it ok.
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Old 05-16-11, 08:44 PM
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Re: Supreme Court -- 2011 and beyond discussion

It's fascinating how the conservatives on the Supreme Court have such a "liberal" view of the Fourth Amendment.

For an ideology that claims to hate and distrust the government, they certainly don't mind finding new and creative ways to let the police kick in your front door and storm into your home.

The really sad part is that it was 8-1 decision.
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Old 05-16-11, 10:39 PM
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Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by RoyalTea View Post
Flushing a toilet means you give up your 4th amendment rights:

http://www.nytimes.com/2011/05/17/us/17scotus.html
That's been the law. The holding of this case was that the cops can bang on your door and, if they hear noises that sound like evidence being destroyed, they can go in without a warrant. Some lower courts had held that the cops could not create the exigency by knocking on the door, but the Supreme Court disagreed with that.
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Old 05-16-11, 11:03 PM
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Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by mosquitobite View Post
Wow. I can see both sides, but I have to side with Ginsberg!
I have to side with her as well.
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Old 05-16-11, 11:16 PM
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Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by TruGator View Post
That's been the law. The holding of this case was that the cops can bang on your door and, if they hear noises that sound like evidence being destroyed, they can go in without a warrant. Some lower courts had held that the cops could not create the exigency by knocking on the door, but the Supreme Court disagreed with that.
Doesn't make it right. Cops can now just wander through apartment buildings, and if they smell the slightest hint of weed just start knocking on doors, and "hear" stuff being destroyed and just ransack places.
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Old 05-16-11, 11:19 PM
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Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by TruGator View Post
That's been the law. The holding of this case was that the cops can bang on your door and, if they hear noises that sound like evidence being destroyed, they can go in without a warrant. Some lower courts had held that the cops could not create the exigency by knocking on the door, but the Supreme Court disagreed with that.
Furthermore, they have not ruled that the police entry was lawful, only that exigent circumstances created as a result of police action, at least in this case, do not automatically rule out the possibility that the entry was consistent with the Fourth Amendment so long as the police behavior that caused the circumstances was not itself in violation of the Fourth Amendment. The case is remanded back for further determination.
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Old 05-17-11, 01:09 AM
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Re: Supreme Court -- 2011 and beyond discussion

On the retirement issue raised by the OP. If I was a lib I would want the justices to remain on the bench until after the election. If Obama is forced to make a nomination before the election he will do so by courting the center/right vote with a moderate nomination. Odds are Obama will be reelected, though the Senate my be more of an issue after 2012.
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Old 05-17-11, 07:00 AM
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Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by Dave99 View Post
Doesn't make it right. Cops can now just wander through apartment buildings, and if they smell the slightest hint of weed just start knocking on doors, and "hear" stuff being destroyed and just ransack places.
They don't even need to smell the slightest hint of weed. Why can't they just knock on doors indiscriminately and then explain why after they've found something?

The problem to me seems to not be with this ruling. After all, if the police knock and as a result hear someone scream, "Please save me!" you would certainly want them to be able to enter without a warrant, right? Someone is apparently in danger; that's an exigent circumstance. My issue is calling "sounds like destruction of evidence" an exigent circumstance. ANY sound (or no sound) could be spun as the potential destruction of evidence, thereby eliminating any real meaning to the 4th amendment.
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Old 05-17-11, 07:49 AM
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Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by Duran View Post
My issue is calling "sounds like destruction of evidence" an exigent circumstance. ANY sound (or no sound) could be spun as the potential destruction of evidence, thereby eliminating any real meaning to the 4th amendment.
I've never had a problem with the destruction of evidence being labeled an exigent circumstance as long as it's obvious evidence is about to be destroyed. For example, if the cops knock on someone's door after establishing probable cause that something illegal is going inside and then they hear tables being overturned and people running wildly, I have no problem with the cops entering then.

I suppose the issue most people have is that they think cops will make stuff up and the courts will believe them, basically giving the cops carte blanche to do whatever they want without a warrant. I agree that would be troubling. But assuming there are some actual honest cops out there, I'm sure there is case law where courts have said, for example, that simply hearing a flushed toilet without other noises being heard is not sufficient to think evidence is about to be destroyed.
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Old 05-17-11, 08:02 AM
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Re: Supreme Court -- 2011 and beyond discussion

Flushing a toilet is a pretty common way of getting rid of stuff, but there is no way to know if that is was happening or someone just ate a 7-11 burrito. In a case like this, these people were not really the target and would only start destroying evidence once they knew the cops where coming for them. If the cops thought they were smelling pot, they could have sat on the place and called in a warrant.
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Old 05-17-11, 09:35 AM
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Re: Supreme Court -- 2011 and beyond discussion

Breaking down a door for any drug activity is wrong. If they want to enforce the law where the breaking of the law is fully in the open and observable, that's one thing.
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