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Liberal Supreme Court Justice Stephen Breyer Retiring

 
 
Lash
 
Reply Wed 26 Jan, 2022 11:32 am
Who thinks Biden will nominate someone appreciably more conservative to replace him?

(raises hand)

I’d be very happy to be wrong, but I anticipate Biden’s conservative leanings will be apparent in his nomination.

What do you think?
 
engineer
 
  3  
Reply Wed 26 Jan, 2022 11:42 am
@Lash,
I think Biden will nominate a significantly more liberal candidate, perhaps another woman. No way Biden looks at the current majority and nominates a moderate.
Lash
 
  0  
Reply Wed 26 Jan, 2022 11:57 am
@engineer,
Hope you’re right. I’ll be watching this process.

I’d like to point out for anyone reading along that the nomination of a woman — or a ‘minority’ — doesn’t equate to liberal opinions—as Clarence Thomas ably shows.

I guess we all remember Biden championing Thomas during his bizarre nomination process and taking part in the attacks on Anita Hill.

Time will tell.
0 Replies
 
Lash
 
  0  
Reply Wed 26 Jan, 2022 12:00 pm
Just fyi for anyone unaware of Biden’s behavior during a notable SCJ nomination process.

https://www.politico.com/story/2015/09/biden-anita-hill-women-senate-clarence-thomas-213864
0 Replies
 
edgarblythe
 
  1  
Reply Wed 26 Jan, 2022 12:05 pm
Just have to wait and see. I expect him to attempt to mollify a couple of Democratic Senators.
Lash
 
  0  
Reply Wed 26 Jan, 2022 12:16 pm
@edgarblythe,
Haha. At first, I took your statement to mean you had hope that Biden would choose a liberal—then, almost immediately, ‘a couple of Democratic Senators’ became Sinema and Manchin in my mind…
edgarblythe
 
  3  
Reply Wed 26 Jan, 2022 12:19 pm
@Lash,
He has said it will be a black woman, I believe. But color doesn't at all define her beliefs. He knows by now that the two mentioned Democrats don't mind blocking practically everything he does.
0 Replies
 
jcboy
 
  3  
Reply Wed 26 Jan, 2022 01:08 pm
I wouldn't mind seeing this lady.


Biden promised to nominate a Black woman to the Supreme Court. Now he has his chance.


Quote:
Judge Ketanji Brown Jackson is considered a potential candidate for President Joe Biden’s Supreme Court shortlist.

Nearly all recent justices previously served on a federal appeals court before getting promoted to the high court. Of the nine current justices, only Justice Elena Kagan did not. But, when Biden took office, only five of the nearly 300 sitting federal appellate judges were Black women, according to the Federal Judicial Center. Biden has doubled that number, placing five more Black women on the federal appellate bench.


https://cdn.vox-cdn.com/thumbor/pIoxPEeEB5JHCwxNsElwnVjWw1A=/0x0:4425x3798/920x613/filters:focal(1713x1129:2421x1837)/cdn.vox-cdn.com/uploads/chorus_image/image/70435444/1230995190.0.jpg
Lash
 
  0  
Reply Wed 26 Jan, 2022 08:46 pm
@jcboy,
Does she have any liberal credentials?
0 Replies
 
Lash
 
  0  
Reply Wed 26 Jan, 2022 09:01 pm
I just read that she had an affiliation with a school whose ‘statement of faith’ included protection of the rights of the unborn’ and support ‘the sanctity of a marriage between a man and a woman.’

Just preliminary info. It would need to be verified.
edgarblythe
 
  2  
Reply Wed 26 Jan, 2022 09:22 pm
Some on Twitter are putting out Susan Rice, Kamala and others in a similar vein.
0 Replies
 
roger
 
  -1  
Reply Wed 26 Jan, 2022 09:42 pm
@Lash,
Oh, my goodness!
Lash
 
  0  
Reply Wed 26 Jan, 2022 10:05 pm
@roger,
Obviously, a lot of people would be thrilled with a Supreme Court Justice who would make it harder to get a safe, legal abortion or for people to marry who they love, but I am very, very not one of them.
0 Replies
 
hightor
 
  2  
Reply Thu 27 Jan, 2022 04:48 am
HCR wrote:
Today’s big news is that Supreme Court Justice Stephen Breyer plans to announce this week that he will step down from the court at the end of the term. He is expected to make the announcement tomorrow at an appearance with President Joe Biden. Breyer is 83 years old; he took his seat on the court on August 3, 1994.

While the recent extremes to which Senate Republicans have gone to dominate the Supreme Court have made the seats seem simply to reflect political parties, in fact Breyer’s history on the court shows how American democracy and, with it, the Supreme Court, have become partisan since the 1980s.

Breyer has always been adamant that the court must not be political. Instead, he has advanced a strong defense of democracy, arguing that the main achievement of the Constitution was to set up a system that would accommodate the changing needs of the American people. To that end, he is a scholar of administrative law, examining the detailed ways in which our system works.

Democratic President Bill Clinton appointed Breyer to a seat formerly held by Harry Blackmun, who had been appointed by Republican President Richard Nixon. Blackmun was a justice in the days when it made sense for a Republican to support measures that defended civil rights: he was the author of the 1973 Roe v. Wade decision protecting a woman’s right to choose an abortion. So the seat, itself, has been characterized by pragmatism and moderation, rather than political affiliation, since the 1960s.

Clinton appointed Breyer to the court after President Ronald Reagan had set out to change the Supreme Court to reorder the nature of the country. From 1954 until 1987, the prevailing principle of the court was that it must protect civil rights, especially when state legislatures discriminated against certain populations. Using the Fourteenth Amendment’s declaration that all Americans should enjoy equal protection under the law and receive due process of the law before losing any rights, the Supreme Court stepped in to try to make sure that all Americans were treated equally before the law.

Americans who resented the court’s protection of equal rights insisted that the justices protecting civil rights were “legislating from the bench,” or were exercising “judicial activism” by changing laws that the people’s elected representatives had enacted. They insisted that the court must return to enforcing the letter of the law, simply interpreting what the Framers had written in the Constitution, as they had written it. That view of the Constitution would erase the expansion of civil rights—desegregation, interracial marriage, access to birth control, and so on—that the post–World War II Supreme Court had enshrined into law. Those who embraced this literal version of the Constitution called themselves “originalists” or “textualists,” and their intellectual representative was Justice Antonin Scalia, appointed to the Supreme Court in 1986 by Republican President Ronald Reagan.

Breyer is an intellectual counterpoint to Scalia. In a book Breyer wrote in 2005, he took on originalism with his own interpretation of the Constitution called “Active Liberty.” Breyer explained that we should approach constitutional questions by starting at the beginning: what did the Framers intend for the Constitution to do? Their central goal was not simply to protect liberties like free speech or gun ownership, he argued; their goal was to promote democracy. All court decisions, he said, should take into consideration what conclusion would best promote democracy.

The conviction that the point of the Constitution was to promote democracy meant that Breyer thought that the law should change based on what voters wanted, so long as the majority did not abuse the minority. Every decision was complicated, he told an audience in 2005—if the outcome were obvious, the Supreme Court wouldn’t take the case. But at the end of the day, justices should throw their weight behind whichever decision was more likely to promote democracy.

That idea honored the changing necessities of the modern world and thus stood against the originalists. Although that vision was not always aligned with the Democratic Party, it was firmly rooted in the idea that the point of the Constitution was to anchor a nation in the voice of its people.

Now, of course, thanks to the three justices former president Donald Trump added to the Supreme Court, originalists have a strong majority of six of the nine seats on the court. Biden will undoubtedly try to counter those originalists with a justice who embraces a vision more like Breyer’s, but it would be a mistake to see this as a question of partisanship so much as a question of what, exactly, the American government should look like.

Should the federal government be able to protect equality before the law, or should state legislatures be able to do as they wish? In the last year, the right-wing majority on the Court has allowed the state of Texas to undermine the constitutional rights of women, established by Blackmun’s decision in Roe v. Wade, and has indicated it will challenge the ability of Congress to delegate power to regulatory agencies in the executive branch, thus hamstringing the modern government.

Breyer’s successor will, almost certainly, stand against such “originalism.”

Already, Republican voices are opposing the idea of Biden appointing a Supreme Court justice. During his campaign, Biden vowed he would appoint a Black woman to a position on the Supreme Court, and today White House press secretary Jen Psaki said he would keep that promise. There are a number of truly exceptional candidates for the post. Nonetheless, Fox News Channel personality Sean Hannity tonight called Biden’s promise “unconstitutional discrimination.”

And yet, University of Texas law professor Stephen Vladeck noted that representation on the Supreme Court has been wildly skewed. Of the 115 Supreme Court justices we have had in our history, we have had 108 white men, 2 Black men, and 5 women (4 white; 1 Latina).

Breyer has pointed out that there is almost always a tension in our laws. In this case, should we adhere to the ideal that the law should be race and gender blind, or should we work to remedy past wrongs? This seems an excellent example of where the principles of “Active Liberty” are useful: addressing the obvious skewing of representation on the Supreme Court seems like a good way to promote democracy.

There is other legal news today, as well.

In matters close to Representative Matt Gaetz (R-FL), we learned that Florida shock jock Joe Ellicott has been cooperating with federal prosecutors. Ellicott is friends with Joel Greenberg, the Florida tax official who was friends with Gaetz and who has pleaded guilty to fraud and to sex trafficking of a minor. Greenberg has also been talking to prosecutors, and so has Gaetz’s ex-girlfriend. Tonight the Daily Beast reported that Ellicott could confirm that Greenberg told Gaetz that they had sex with a minor (Gaetz has denied any such knowledge).

Former assistant U.S. attorney for the Southern District of New York Richard Signorelli tweeted that the apparent delay in charging Gaetz in the sex-trafficking case may come from the fact that Greenberg was such a problematic witness that the Department of Justice wanted everything corroborated. The news that both Ellicott and Gaetz’s girlfriend have testified might relieve that concern.

substack
0 Replies
 
bobsal u1553115
 
  0  
Reply Fri 28 Jan, 2022 10:28 am
@Lash,
She's allowed to believe anything she wants. What she can't do is allow the Constitution to be colored by her personal beliefs.
Lash
 
  1  
Reply Fri 28 Jan, 2022 07:08 pm
@bobsal u1553115,
bobsal u1553115 wrote:

She's allowed to believe anything she wants. What she can't do is allow the Constitution to be colored by her personal beliefs.


That would be a purist’s idealistic opinion—and I’ve definitely been there—but I have watched and learned. Justices DO base their ideas AND judgements on their moral ideas of right and wrong and as a result, we ABLY AND CLEARLY see that justices DO decide based on their own personal beliefs.
0 Replies
 
 

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