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posted by on Thursday April 13 2017, @02:03PM   Printer-friendly
from the proven-solutions dept.

The Center for American Progress reports

After Senate Majority Leader Mitch McConnell's (R-KY) decision to prevent a president of the opposite party from nominating anyone to the Supreme Court, it's doubtful that any justice will ever be confirmed again when the presidency is controlled by a different party than the Senate. That means America will lurch back and forth between extended periods with a understaffed Supreme Court, followed by massive shifts in the law as one party fills a backlog of vacancies.

[...] Several states have shown that there is a better way [than what, it appears, will happen at the federal level from now on].

The Missouri plan

As America struggled through the Great Depression, Missouri's courts were a den of partisanship and corruption. As former Chief Justice of Missouri Michael Wolff explains, judges were "selected in elections in which nominees were chosen by political parties under a patronage system." In much of the state, judges were selected by a single machine party leader, "Boss" Tom Pendergast. Throughout Missouri, "judges were plagued by outside political influences, and dockets were congested due to the time the judges spent making political appearances and campaigning."

Frustrated with their politicized judiciary, the people of Missouri passed a ballot initiative replacing the state's corrupt process with a non-partisan coalition--at least for the state's top judges.

When a vacancy arises on the state's supreme court, a seven person commission consisting of "three lawyers elected by the lawyers of The Missouri Bar . . . three citizens selected by the governor, and the chief justice" submits three candidates to fill that vacancy to the state's governor. The governor then has 60 days to choose among those three names. If the governor fails to meet this deadline, the commission selects one of the three.

Finally, after a year of service, the newly appointed judge must survive a retention election, where a majority of the electorate can cast them out of office--though this only happens rarely.

This method of judicial selection, as well as variants upon it, was adopted by many states since its inception in Missouri.


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  • (Score: 4, Insightful) by DannyB on Thursday April 13 2017, @02:21PM (10 children)

    by DannyB (5839) Subscriber Badge on Thursday April 13 2017, @02:21PM (#493385) Journal

    The house and senate openly display that they no longer care what the people think. They don't even try to hide it any more.

    The Republicans have shown that they no longer have even a pretense of fair play. (Not that I think the Democrats are angels.)

    So expect this to go exactly nowhere.

    Our government no longer functions. It is broken. IMO it is beyond the point where it can be fixed. It will spiral out of control. Count on it.

    It is because (most) people celebrate and embrace ignorance. Reject science. Embrace conspiracy theories and reality TV. Will vote for whoever tells them the best lies. The biggest lies. I promise. Trust me. Using the language of a con man. Believe me.

    --
    People today are educated enough to repeat what they are taught but not to question what they are taught.
    • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @02:28PM (9 children)

      by Anonymous Coward on Thursday April 13 2017, @02:28PM (#493390)

      The word you want to use is 'whomever'.

      • (Score: 1) by DannyB on Thursday April 13 2017, @02:35PM

        by DannyB (5839) Subscriber Badge on Thursday April 13 2017, @02:35PM (#493397) Journal

        Thank you.

        --
        People today are educated enough to repeat what they are taught but not to question what they are taught.
      • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @02:38PM (1 child)

        by Anonymous Coward on Thursday April 13 2017, @02:38PM (#493401)

        The word you want to use is 'whomever'.

        Whatever.

        • (Score: 1) by DannyB on Thursday April 13 2017, @02:44PM

          by DannyB (5839) Subscriber Badge on Thursday April 13 2017, @02:44PM (#493407) Journal

          Yes, "whatever" would work in that sentence. :-)

          > Will vote for whoever tells them the best lies.
          Will vote for whomever tells them the best lies.
          Will vote for whatever tells them the best lies.

          Please vote for your favorite corporate controlled robot candidate today! (And I'm talking present day, not some future technology.)

          --
          People today are educated enough to repeat what they are taught but not to question what they are taught.
      • (Score: 1, Informative) by Anonymous Coward on Thursday April 13 2017, @03:18PM (5 children)

        by Anonymous Coward on Thursday April 13 2017, @03:18PM (#493434)

        Actually whoever is correct. It is the subject of the verb "tells" and that entire clause is then the object of the preposition.

        • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @06:37PM

          by Anonymous Coward on Thursday April 13 2017, @06:37PM (#493544)

          The preceding comments are owned by whoever posted them.

        • (Score: 2) by DeathMonkey on Thursday April 13 2017, @08:04PM (3 children)

          by DeathMonkey (1380) on Thursday April 13 2017, @08:04PM (#493606) Journal

          Yep.

          Simple rule of thumb: If the answer is He, use Who. If the answer is Him, use Whom.

          Q: Who tells the best lies?
          A: He tells the best lies.

          • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @09:41PM (2 children)

            by Anonymous Coward on Thursday April 13 2017, @09:41PM (#493644)

            The word 'whoever' is being used as the indirect object of the encompassing clause, which is incorrect.

            It should be 'whomever'.

            • (Score: 0) by Anonymous Coward on Friday April 14 2017, @02:33AM (1 child)

              by Anonymous Coward on Friday April 14 2017, @02:33AM (#493787)

              Nope, the indirect object of the clause "whoever tells them the biggest lies" is them as they are the recipients of the direct object (the biggest) lies.

              Action: tells
              Subject (aka noun that performs the action): whoever
              Direct object (aka what is being ed): lies are what are being told
              Indirect object (aka recipient of the action): them

              • (Score: 0) by Anonymous Coward on Friday April 14 2017, @12:50PM

                by Anonymous Coward on Friday April 14 2017, @12:50PM (#493932)

                (most) people... will vote for whoever tells them the best lies.

                That 'whoever' should be 'whomever': Most people will vote for whomever tells them the best lies.

  • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @02:25PM (16 children)

    by Anonymous Coward on Thursday April 13 2017, @02:25PM (#493386)

    There's no problem that can't be solved by one more level of indirection, amirite?

    Maybe the organizational structure of society is fundamentally broken.

    • (Score: 2) by The Mighty Buzzard on Thursday April 13 2017, @02:37PM (11 children)

      by The Mighty Buzzard (18) Subscriber Badge <themightybuzzard@proton.me> on Thursday April 13 2017, @02:37PM (#493400) Homepage Journal

      That was a given the first time any man made a decision for another man. All government is an exchange of practicality for liberty; there is no possibly way for it to be anything but. Our founding fathers understood this and tried to keep the destruction of liberty minimized but government will always slide towards corruption if not held in check by sufficient threat of consequence.

      --
      My rights don't end where your fear begins.
      • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @02:53PM (10 children)

        by Anonymous Coward on Thursday April 13 2017, @02:53PM (#493413)
        • Contracts provide agreement on the rules of the game before the game begins.
        • Checks and balances, and a separation of powers, is achieved by competition within a market of voluntary interaction (where "voluntary" is defined by the contracts to which people agreed in advance).

        The United States Government is just a primitive, naive attempt to create a culture of contracts ("law") based around some kind of separation of powers; the one wrinkle is that the United States Government is still based around the principle of imposition, rather than being based around agreement in advance.

        • (Score: 2) by The Mighty Buzzard on Thursday April 13 2017, @02:58PM (9 children)

          by The Mighty Buzzard (18) Subscriber Badge <themightybuzzard@proton.me> on Thursday April 13 2017, @02:58PM (#493416) Homepage Journal

          Works in theory. And even then for only those already of an age to agree to a contract. Children born into said government would have no choice at all, exactly as they don't now.

          --
          My rights don't end where your fear begins.
          • (Score: 0, Disagree) by Anonymous Coward on Thursday April 13 2017, @03:13PM (8 children)

            by Anonymous Coward on Thursday April 13 2017, @03:13PM (#493429)

            A child chooses to be subordinate to his parents (and others), if only because he knows no other way to exist. Eventually, he may choose to interact with his parents (and others) in a way that is not subordinate, and this process of transition is itself a matter of [perhaps implicit] contract negotiation, dispute-resolution, and enforcement.

            That is, there is no inherent need for some arbitrary "age of consent".

            --

            Now, it's probably necessary to point out that a notion such as sexual consent still survives this view: A 35 year old man might well be in breach of some contract (explicit, or implicit in culture), or might be engaging in poorly defined (and therefore personally dangerous) behavior by engaging in an affair with a 13 year old girl; it doesn't matter that the girl consented, because the man has other constraints that he, too, must meet.

            • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @03:38PM (4 children)

              by Anonymous Coward on Thursday April 13 2017, @03:38PM (#493447)

              it doesn't matter that the girl consented, because the man has other constraints that he, too, must meet.

              Help me to understand. What "other constraints" might bind MikeeUSA for example?

              • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @06:54PM (1 child)

                by Anonymous Coward on Thursday April 13 2017, @06:54PM (#493557)

                I don't fully understand what confuses you.

                • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @07:05PM

                  by Anonymous Coward on Thursday April 13 2017, @07:05PM (#493567)

                  I should have explained.

                  What kinds of agreements would a girl child enter into voluntarily that would preclude marriage to a 40-year old video game developer?

              • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @07:11PM (1 child)

                by Anonymous Coward on Thursday April 13 2017, @07:11PM (#493573)

                Help me to understand. What "other constraints" might bind MikeeUSA for example?

                Micropenis? The fact that 13 years old is too old for his taste?

                More seriously, I can't really speak for our contract-loving libertrollian, but I think when he says "constraints", he's just referring back to the "might well be in breach of some contract (explicit, or implicit in culture)" bit; that is, our culture may have an implicit contract that says "Any adult caught fucking 13 year olds gets shot in the head, and the shooter gets to keep his stuff." or some such; MikeeUSA will then behave, because if he doesn't, a swarm of law contract enforcement agencies will competing for the honor and profit of killing him.

                (Sure, once you bring up the idea that a contract can be "implicit in culture", it sounds like Locke-meets-Robocop, but I'm sure there's a difference. I can't see it -- to my mind, using force to uphold a contract I have never consented to, and yet am held to have violated, looks exactly like the "imposition by violence" that he keeps complaining about -- but I'm sure he'll be along to explain how his implicit contracts are different.)

                • (Score: 2) by bob_super on Thursday April 13 2017, @07:40PM

                  by bob_super (1357) on Thursday April 13 2017, @07:40PM (#493586)

                  > our contract-loving libertrollian

                  If an AC posts a gem such as libertrollian, is that implicitly declaring that they will not pursue a contract for the future use of said word by others?

            • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @07:07PM (2 children)

              by Anonymous Coward on Thursday April 13 2017, @07:07PM (#493568)

              A 35 year old man might well be in breach of some contract (explicit, or implicit in culture)

              Implicit cultural contracts are not well-defined and therefore you cannot expect people to actually follow them. There isn't much freedom in a society where you agree to poorly-defined contracts just by existing in said society.

              • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @09:46PM (1 child)

                by Anonymous Coward on Thursday April 13 2017, @09:46PM (#493649)

                In much of the world, shaking hands when greeting people is well defined.

                If there is some aspect that is in dispute, then it is by definition not well defined; it requires dispute resolution, negotiation, and further enforcement of any agreement.

                So, what could your point possibly be?

                • (Score: 0) by Anonymous Coward on Friday April 14 2017, @01:16AM

                  by Anonymous Coward on Friday April 14 2017, @01:16AM (#493747)

                  By your definition, reality is not well-defined.

    • (Score: 2) by DannyB on Thursday April 13 2017, @02:39PM (3 children)

      by DannyB (5839) Subscriber Badge on Thursday April 13 2017, @02:39PM (#493402) Journal

      The indirections can form an infinite loop. The governor selects one of the three candidates. That candidate is then approved by the same process that selected the three candidates. That is, the panel approves the candidate and sends it to the governor who then sends it on to the panel again.

      Or try a deadlock. The governor selects one of the three candidates, and then waits for a fully staffed court to give its final approval. The court is not fully staffed until one or more of these candidates are approved by a full court that has no vacant seats and thus no need for a candidate.

      --
      People today are educated enough to repeat what they are taught but not to question what they are taught.
      • (Score: 2) by Immerman on Thursday April 13 2017, @03:48PM (2 children)

        by Immerman (3985) on Thursday April 13 2017, @03:48PM (#493456)

        Umm, that doesn't sound like the process in the summary:
        1) Commission members are selected by different groups - no approval necessary
        2) Commission selects three candidates - no outside approval necessary
        3) Governor selects one of the three candidates, or abdicates the responsibility back to the Commission
        4) (implied) Selected candidate is appointed.

        I'm not seeing any potential for loops or deadlock. Nor any mention of judicial approval.

        • (Score: 1) by DannyB on Thursday April 13 2017, @04:25PM

          by DannyB (5839) Subscriber Badge on Thursday April 13 2017, @04:25PM (#493474) Journal

          You are correct. But you mistook my indirections and deadlocks as an observation about the process. They were intended as a proposal for congress to fix the process so that it will never work. Sorry for the confusion.

          --
          People today are educated enough to repeat what they are taught but not to question what they are taught.
        • (Score: 1) by toddestan on Sunday April 16 2017, @02:27PM

          by toddestan (4982) on Sunday April 16 2017, @02:27PM (#494809)

          The only potential loop I can see if a judge fails the retention election, then commission puts that judge again on the list sent to the governor, who then selects that judge to serve again, who must then withstand another retention election.

          I would assume that anyone who fails the retention election should be disqualified from being picked again, but I don't actually see that explicitly spelled out.

  • (Score: 4, Insightful) by AthanasiusKircher on Thursday April 13 2017, @02:30PM (20 children)

    by AthanasiusKircher (5291) on Thursday April 13 2017, @02:30PM (#493393) Journal

    Regardless of the merits (or problems) of this alternate system, it makes little sense to propose something that would require a Constitutional amendment to implement as an alternative to partisan action.

    If we had a supermajority who could agree on procedure in a reasonably non-partisan way, we wouldn't have ended up where we are now in the first place. Supposedly, the Senate requires a 2/3 supermajority to change the Rules of the Senate, but the "nuclear option" has now set a precedent twice that that's really not required -- and that's how we've ended up in our current situation.

    Meanwhile, Constitutional amendments definitively require a 2/3 supermajority in both houses to get on the path to ratification. Why would both parties agree on a plan like this when, as the summary clearly explains, they're happier playing partisan roles even if it creates significant disruption?

    Don't get me wrong -- it's fun to debate alternative systems. But claiming this is a "simple plan" to end confirmation wars when it would require even more unanimity in procedure than it would have taken to prevent the mess we're currently in (or prevent the continuation of said "mess" in future nominations) -- that's not "simple"... that's "unrealistic."

    (And before anyone starts off on the possibility of an Article V convention doing something like this -- I'd say that's even more unrealistic than getting Congress to pass it.)

    • (Score: 2) by The Mighty Buzzard on Thursday April 13 2017, @02:40PM (10 children)

      by The Mighty Buzzard (18) Subscriber Badge <themightybuzzard@proton.me> on Thursday April 13 2017, @02:40PM (#493403) Homepage Journal

      It's still possible, though unlikely. States can amend the constitution directly, bypassing the federal government entirely. See Article V of the Constitution.

      --
      My rights don't end where your fear begins.
      • (Score: 2) by AthanasiusKircher on Thursday April 13 2017, @02:45PM (9 children)

        by AthanasiusKircher (5291) on Thursday April 13 2017, @02:45PM (#493408) Journal

        First, please re-read the last sentence of my post, which DIRECTLY addresses what you said. Second, it's not that simple -- state legislatures can call for a convention to amend the constitution; they cannot amend it "directly." And said convention needs to be allowed by Congress, who determines whether the criteria have been met to call it. And since there's no precedent for any of this, it's unclear exactly how said convention might conduct business or how it might be governed by the wishes of the states or perhaps the constraints imposed by Congress or the federal courts.

        Anyhow, claiming that "states can amend the constitution directly" grossly oversimplifies what might actually be required to make that happen.

        • (Score: 2, Disagree) by The Mighty Buzzard on Thursday April 13 2017, @03:09PM (8 children)

          by The Mighty Buzzard (18) Subscriber Badge <themightybuzzard@proton.me> on Thursday April 13 2017, @03:09PM (#493426) Homepage Journal

          I did read it. It was just insane, so I ignored it. Saying the states are less likely than the federal government to pull power back to the states from the federal government is patently absurd.

          Secondly, there is precedent that predates both the constitution and Congress.

          Thirdly, if two thirds of the states call for an article 5 convention, woe betide a federal government that tries to stand in the way. There are no outcomes of doing so that work out well for them.

          I'm not saying it's easy but it isn't complicated either.

          --
          My rights don't end where your fear begins.
          • (Score: 2) by AthanasiusKircher on Thursday April 13 2017, @04:40PM (7 children)

            by AthanasiusKircher (5291) on Thursday April 13 2017, @04:40PM (#493484) Journal

            Saying the states are less likely than the federal government to pull power back to the states from the federal government is patently absurd.

            We had a notable attempt at that before. It was called the Civil War. I think we all know how that turned out.

            Ultimately, after everything else, the question comes down to -- who has the bigger army?

            Thirdly, if two thirds of the states call for an article 5 convention, woe betide a federal government that tries to stand in the way.

            Well, first you seem to completely ignore the fact that our state governments are generally about as divided in partisan warfare as the federal government, so you seem to be overlooking the fact that it's probably an equivalently difficult partisan threshold to get over on the state level as on the federal level to summon a convention.

            Second, you completely ignored my point about Congress certifying the convention to begin with. By many arguments, we ALREADY have had enough petitions from states to call a convention, yet we have none. Why? Because Congress effectively gets to make the rules here -- are states allowed to withdraw their support? (If so, as seems to be the current interpretation, getting the state threshold is a lot higher, because a change in party or whatever in a particular state could lead to flip-flopping making it difficult to get a simultaneous occurrence of enough active petitions.) How similar do the requests for conventions have to be? Do they all have to deal with the same issue? Etc.

            Believe me, I'd be THRILLED if we could actually get an Article V convention going. Do I think it has ANY chance of happening in my lifetime, barring some complete insurrection or breakdown of civil order or something? No.

            • (Score: 2) by AthanasiusKircher on Thursday April 13 2017, @05:01PM (2 children)

              by AthanasiusKircher (5291) on Thursday April 13 2017, @05:01PM (#493494) Journal

              By the way, I misread the first statement you quoted, and now I get what you were trying to say. I just don't think this is a federal power issue, though. We're talking about changing the mechanics of federal court appointments. That's not removing federal power. And yes, I do think it's less likely that states will get to dictate that process in an Article V convention than for Congress to accomplish reform internally (though I think both are unlikely).

              In any case, I think this whole discussion is beginning to get far afield from my original point -- which is that we'd actually need a lower threshold of bipartisanship to just prevent future "confirmation wars" than any of these proposed Constitutional amendment scenarios. Why will we get to the Constitutional amendment when we could just "behave better" with much less bipartisan agreement required?

              • (Score: 2) by The Mighty Buzzard on Thursday April 13 2017, @09:36PM (1 child)

                by The Mighty Buzzard (18) Subscriber Badge <themightybuzzard@proton.me> on Thursday April 13 2017, @09:36PM (#493642) Homepage Journal

                Getting politicians to behave better is not an option. You have a choice between two pieces of shit. Every single time.

                Personally, I think a constitutional amendment would just be re-amended by congress to put things back the way they were; or worse. The only thing that's going to save this nation is watering the tree of liberty with the blood of tyrants and patriots.

                --
                My rights don't end where your fear begins.
                • (Score: 0) by Anonymous Coward on Friday April 14 2017, @02:48AM

                  by Anonymous Coward on Friday April 14 2017, @02:48AM (#493791)

                  No, you just believed the lie that you only had two choices. There are third party candidates who are at least much less shitty than the two main party candidates for most positions. Everyone says they dislike partisan politics, but the only way to change things is to stop voting for these parties!

            • (Score: 2) by jmorris on Thursday April 13 2017, @07:28PM (3 children)

              by jmorris (4844) on Thursday April 13 2017, @07:28PM (#493579)

              We had a notable attempt at that before. It was called the Civil War. I think we all know how that turned out.

              Politically it worked exactly as it should, the dissenting States pulled out and were successful in forming a new government.

              Ultimately, after everything else, the question comes down to -- who has the bigger army?

              Yup, When Lincoln lost the political argument he appealed to the sword and won. And set the precedent that defying Washington could and would be punished with atrocities against civilian populations. Meaning any future attempt either needs overwhelming odds, i.e. not so much secession but an expulsion of the Blue Rump, or the states leaving need enough WMD in weaponized form to instantly pose a credible MAD deterrent. Note that the scenario under discussion, a supermajority of States voting for an Article 5 convention and being denied by Congress would be an "expel the rump" situation where the swamp in DC would be simply discarded.

              Btw, the nomenclature of "Civil War" is itself Union propaganda intended to disguise their crimes. A "civil war" is when two or more factions contend for control of a nation state. A "war of independence" is when one portion of a political entity declares independence from the rest. But saying the Union smashed the South's claim for independence in exactly the same was as King George failed to do to His former colonies doesn't sound nearly as noble. Once you notice the language trick you begin seeing it everywhere; control the language used to discuss a thing and you are usually 90% of the way to winning the argument.

              • (Score: 2) by tangomargarine on Thursday April 13 2017, @09:36PM (1 child)

                by tangomargarine (667) on Thursday April 13 2017, @09:36PM (#493643)

                It's too bad that the question of states' rights had to get caught up in a war over owning slaves.

                I suppose some would argue that states' rights only comes up when states want to be assholes and the feds won't let them. But if the UK can leave the EU, why can't a state leave the U.S.? (other than "because we'll beat your ass if you try")

                --
                "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
                • (Score: 2) by dry on Friday April 14 2017, @04:47AM

                  by dry (223) on Friday April 14 2017, @04:47AM (#493820) Journal

                  The other question is how large a majority should decide on secession? 50%+1? Personally I think it should take some sort of super majority so to not end up like the UK where the election might have gone the other way on a different day.

              • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @11:22PM

                by Anonymous Coward on Thursday April 13 2017, @11:22PM (#493697)

                You write this as if we should be having our slaves attend to the details as to why Mr. Lincoln had chosen to follow his social justice war.

    • (Score: 2) by Immerman on Thursday April 13 2017, @04:02PM (1 child)

      by Immerman (3985) on Thursday April 13 2017, @04:02PM (#493462)

      (And before anyone starts off on the possibility of an Article V convention doing something like this -- I'd say that's even more unrealistic than getting Congress to pass it.)

      Why? It's worked several times before. Congress has a wonderful track record of suddenly getting their act together and implementing something themselves whenever there's the threat of an imminent constitutional convention to do so. They're in no hurry to surrender their power to the states.

      Now, whether this specific goal would be able to build sufficient momentum to pose such a threat... I don't know. I think it would depend largely on how well funded the PR campaign was.

      • (Score: 2) by AthanasiusKircher on Thursday April 13 2017, @04:53PM

        by AthanasiusKircher (5291) on Thursday April 13 2017, @04:53PM (#493488) Journal

        Now, whether this specific goal would be able to build sufficient momentum to pose such a threat... I don't know.

        That was actually my main issue. Yes, I'm aware that threats of a convention have been helpful in pushing movements before. I know I got bogged down in another reply about the mechanics of proposing a convention, but realistically state politics don't seem more likely to me to coalesce around pushing this issue than Congress is.

        I think it would depend largely on how well funded the PR campaign was.

        That's actually a big problem -- WHO would be in favor of this enough to throw huge monetary support behind it? Almost all special interests would prefer a particular kind of justice appointee, and almost all of those special interests are aligned more with one party than another. A vote for "moderation" in the process will just mean to most of them that they're less likely to see a nominee who would seem solidly on their side (or perhaps on any side). Unless the court comes to slant firmly in one direction in the future, I'd bet most special interests would rather "roll the dice" in Presidential elections and Congressional majorities and be sure they have nominees who are likely to go their way, rather than the "wildcards" of open-minded jurists who might rule either way!

    • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @06:41PM (2 children)

      by Anonymous Coward on Thursday April 13 2017, @06:41PM (#493546)

      Meanwhile, Constitutional amendments definitively require a 2/3 supermajority in both houses to get on the path to ratification.

      Or alternatively, it requires one low-level judge to overturn centuries of precedent by claiming that we have a "living Constitution" and say that all states and commercial institutions are now required to follow new rules that are the opposite of what the law has been since the 1600s.

      This is why Republicans are so angry.

      • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @10:06PM (1 child)

        by Anonymous Coward on Thursday April 13 2017, @10:06PM (#493660)

        Hey, Congress: Don't like what another branch is doing?
        Form a supermajority and override that branch.
        It's right there in the founding documents.

        What's that you say? You guys aren't in consensus?
        Well, get your shit together.
        Start by reading Ralph Nader's book. [google.com]

        ...and, hey, you think things are weird in USA?
        Check out Venezuela in recent weeks. [mintpressnews.com]

        Since January 2016, the Supreme Court ruled that the National Assembly was in contempt of the constitution [...] over fraud charges involving opposition deputies from the state of Amazonas. The officials were caught in a recording illegally offering sums of taxpayer money to citizens, encouraging them to vote for opposition candidates.

        When the Supreme Court ordered the National Assembly to hold elections to replace the corrupt leaders, the legislative body refused.

        ...at which point the Venezuelan Supreme Court said that until the legislature was no longer in contempt, the legislature couldn't make any more laws.

        -- OriginalOwner_ [soylentnews.org]

        • (Score: 2) by dry on Friday April 14 2017, @04:49AM

          by dry (223) on Friday April 14 2017, @04:49AM (#493822) Journal

          I think Andrew Jackson set the precedent when the Supreme Court ruled against him with the observation that he had the army, not them.

    • (Score: 2) by BK on Thursday April 13 2017, @08:51PM (2 children)

      by BK (4868) on Thursday April 13 2017, @08:51PM (#493620)

      Or we could keep the current system as described in the US Constitution and have all the same benefits.

      he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court...

      I swear that lawyers don't read English. Lawyers see a single word -- 'adviceandconsent' -- and I see a list of two steps 1) Advice and 2) Consent. In practice, the Advice stage has been skipped all along until now. The stakes were low for nearly 200 years and the Senate was happy to Consent to just about anyone that wasn't obviously inappropriate. This was deemed to be the 'adviceandconcent'.

      Now the stakes are higher and due to a quirk in the US system, it is possible, and even likely that the Senate may be run by a party different from the President's. The Senate may want to offer some 'Advice' -- they may even be entitled to do so.

      If BHO had wanted to follow the Constitution nominate a Justice that the Senate might Consent to, he could have approached the Senate and asked for a list that might be acceptable... He might have had some parameters of his own -- must be lawyers or current judges (wouldn't want to let someone in from outside) -- but it seems to me that a list might have been forthcoming. Heck, they could have just given him DJT's list.

      You might not be happy with this approach. Certainly, Garland would have been left off any such list. But if you look at the Missouri plan as proposed by the Center for Propaganda above, it bears some similarity. The appointed has to go to another body for advice as to who may be nominated. A choice is made about who to nominated. And there is a process after that ultimately leads to full appointment.

      Before we start a process of amending this constitution, why not try doing what it says in the plain text first?

      --
      ...but you HAVE heard of me.
      • (Score: 0) by Anonymous Coward on Friday April 14 2017, @12:35AM (1 child)

        by Anonymous Coward on Friday April 14 2017, @12:35AM (#493730)

        Note that while the Senate, as a body, doesn't currently offer advice as such, that doesn't mean the President doesn't have communications with Senate leadership about what nominees they're likely to consent to; in some sense this could be taken to fulfill the Advice stage anyway, and I believe this has happened sometimes in the past.

        If BHO had wanted to follow the Constitution nominate a Justice that the Senate might Consent to, he could have approached the Senate and asked for a list that might be acceptable... He might have had some parameters of his own -- must be lawyers or current judges (wouldn't want to let someone in from outside) -- but it seems to me that a list might have been forthcoming. Heck, they could have just given him DJT's list.

        Sen. Orrin Hatch, days before Garland was nominated:

        [Obama] could easily name Merrick Garland, who is a fine man. He probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the [liberal Democratic base] wants.

        See, the Garland thing was never about the candidate. It was about the Republicans' determination to prevent any nominee, no matter how qualified, from being confirmed until after the election was settled, preferring to roll the dice on winning the election. (And maybe, once they saw Obama had nominated a compromise candidate, to quickly confirm him if the Ds won.) I'm sure they could have come up with a list, but as they were completely uninterested in compromise candidates, such a list would have just put the shoe on the other foot, where Obama wouldn't nominate any of them, preferring to roll the dice on winning the election. (Both parties were pretty confident they would win; there was enough doubt that they might rationally have gone for a compromise candidate, but neither considered their situation anywhere near bad enough to merit picking the "least bad" from the opposition's top-five list.)

        • (Score: 2) by BK on Friday April 14 2017, @01:31AM

          by BK (4868) on Friday April 14 2017, @01:31AM (#493752)

          Note that while the Senate, as a body, doesn't currently offer advice as such, that doesn't mean the President doesn't have communications with Senate leadership about what nominees they're likely to consent to

          Sure. And the constitution is spectacularly vague as to just what 'advice' might mean. But my point is that the outline of a suitable mechanism exists... If amending the constitution is impractical in the short term, there is another way.

          See, the Garland thing was never about the candidate. It was about the Republicans' determination to prevent any nominee, no matter how qualified, from being confirmed until after the election was settled [...] but as they were completely uninterested in compromise candidates, such a list would have just put the shoe on the other foot, where Obama wouldn't nominate any of them

          Perhaps. I think it's fair that the BHO and the congress had effectively no working relationship by the 2016. Both had grievances they couldn't get around and both had at least a measure of just cause.

          Still, I think that if a solution is going to exist short of an improbable amendment, it is going to be one that is driven by the Senate.

          --
          ...but you HAVE heard of me.
    • (Score: 2) by Common Joe on Sunday April 16 2017, @04:27AM

      by Common Joe (33) <{common.joe.0101} {at} {gmail.com}> on Sunday April 16 2017, @04:27AM (#494670) Journal

      it makes little sense to propose something that would require a Constitutional amendment to implement as an alternative to partisan action.

      it's fun to debate alternative systems. But claiming this is a "simple plan" to end confirmation wars when it would require even more unanimity in procedure than it would have taken to prevent the mess we're currently in (or prevent the continuation of said "mess" in future nominations) -- that's not "simple"... that's "unrealistic."

      This is both simple and unrealistic. There is also some sense in it.

      This isn't about those the nut jobs in office who refuse to vote for anything logical or good for the common man. It's about common people showing other common people how broken the system is and how these politicians don't care for anyone but themselves.

      When I was a kid, my Dad told me how he shared left over cake between him and his sibling when there was just a single piece left. One would cut the piece and the other would choose which piece to take. It virtually ensured equality. Simple, effect, and fast. Then one day, his jealous sibling got out a ruler and measured both pieces very carefully for a long time...

      You're right. It's not realistic with these people involved. But I learned something about people that day: There are those who would prefer to see the world burn than do something that benefits everyone.

  • (Score: 3, Funny) by tangomargarine on Thursday April 13 2017, @02:42PM (8 children)

    by tangomargarine (667) on Thursday April 13 2017, @02:42PM (#493406)

    "three lawyers elected by the lawyers of The Missouri Bar . . . three citizens selected by the governor, and the chief justice"

    So as long as the majority party has the chief justice on their side, all the governor has to do is appoint 3 citizens of the same party and we're right back at a 4-3.

    Finally, after a year of service, the newly appointed judge must survive a retention election, where a majority of the electorate can cast them out of office

    Now we're talking.

    --though this only happens rarely.

    Well never fucking mind then.

    --
    "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
    • (Score: 3, Insightful) by Thexalon on Thursday April 13 2017, @03:15PM (3 children)

      by Thexalon (636) on Thursday April 13 2017, @03:15PM (#493432)

      Finally, after a year of service, the newly appointed judge must survive a retention election, where a majority of the electorate can cast them out of office

      Now we're talking.

      Are we, though? Election of judges has all sorts of unpleasant effects on our judicial system: Lawyers who don't donate to a judge's campaign tend to lose cases in front of that judge to lawyers who did donate. And judges facing election working on criminal cases routinely favor prosecutors over defendants because otherwise they will be accused of being soft on crime. Meanwhile, judges facing election working on civil cases where an ordinary person is suing a company will strongly favor the defendant because that defendant can donate to their campaign (or their opponent's campaign) in far higher amounts than the ordinary person can.

      Appointment of judges definitely has its problems. I'm not convinced elections are the solution.

      --
      The only thing that stops a bad guy with a compiler is a good guy with a compiler.
      • (Score: 2) by DannyB on Thursday April 13 2017, @03:28PM (1 child)

        by DannyB (5839) Subscriber Badge on Thursday April 13 2017, @03:28PM (#493442) Journal

        What if you put forces in place to reach a consensus?

        The president appoints a judge who must be confirmed by the opposing party. (The rules need more refinement. What about other parties. What if I really mean by all congress critters who are NOT of the president's party? But what if that is the null set? etc.)

        The hope would be to find an appointee who everyone could support. But the likely result, especially in today's climate, is that we would end up with an empty supreme court because nobody would ever be confirmed ever again.

        --
        People today are educated enough to repeat what they are taught but not to question what they are taught.
        • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @11:16PM

          by Anonymous Coward on Thursday April 13 2017, @11:16PM (#493695)

          As things stand today in the US Senate, confirmation of judges is easier than ever before.

          In previous years, The Blues removed the supermajority requirement for lower judges and this year The Reds did that for SCOTUS.

          Should the Blues gain a majority in the Senate again, they can change that back.
          (Logic says that that's unlikely.)
          ...or if there is another Blue president and a Blue majority in the Senate, they can shove through their nominees.

          ...and the GOP doing worse in elections seem to have some legs.
          Trump took Congressman Mike Pompeo from very Red Kansas for his CIA Director.
          The special election to re-fill that empty seat was very interesting.

          Compared to Pompeo's numbers, Ron Estes, the Republican candidate, lost 20 percentage points [google.com] to political neophyte, Democrat James Thompson who got essentially zero support from the Democratic Nation Committee.

          Trump appears to be having an effect on voters--but it's not the effect that The Reds would like.

          -- OriginalOwner_ [soylentnews.org]

      • (Score: 2) by Immerman on Thursday April 13 2017, @03:53PM

        by Immerman (3985) on Thursday April 13 2017, @03:53PM (#493459)

        Not saying you're completely wrong, but a retention election is a very different beast than a normal election - you're not running against anyone but your own track record. Even if you get voted out, it just starts the appointment process again the same as if you died.

    • (Score: 2) by Immerman on Thursday April 13 2017, @04:22PM (3 children)

      by Immerman (3985) on Thursday April 13 2017, @04:22PM (#493471)

      How about augmenting the process with randomly selected citizens? Add two citizens, and you'd have to convince at least one to side with the governor in your scenario.

      While we're dreaming, I'd love to see "legislative juries" - if you can't convince a (super?)majority of randomly selected citizens that a newly signed law is in the best interests of the nation, then it's back to the drawing board.

      • (Score: 2) by DannyB on Thursday April 13 2017, @04:30PM (1 child)

        by DannyB (5839) Subscriber Badge on Thursday April 13 2017, @04:30PM (#493480) Journal

        It sounds good. The problem is human greed and lust for power. But mostly greed. Corporations.

        It won't happen instantly. Not overnight to be sure. But they will find a way to be able to legally bribe these legislative juries. Count on it. Too much money and power is at stake. And everyone has their price. They will find a way. What it is may not even be obvious to us today.

        --
        People today are educated enough to repeat what they are taught but not to question what they are taught.
        • (Score: 2) by Immerman on Thursday April 13 2017, @05:20PM

          by Immerman (3985) on Thursday April 13 2017, @05:20PM (#493502)

          True, we'd need to guard against that. But I suspect it would be far more difficult and less cost-effective to corrupt a one-shot jurist than a career politician. Especially if the penalties for such corruption were severe (treason?)

          Nothing is going to eliminate the influence of the ultra-wealthy, our goal should simply to make sure they don't gain unrestricted control over the government. Well, and perhaps try to prevent the development of such gross wealth inequality in the first place.

      • (Score: 0) by Anonymous Coward on Friday April 14 2017, @12:18AM

        by Anonymous Coward on Friday April 14 2017, @12:18AM (#493723)

        You would have loved ancient Athens.
        Democracy: What Would It Be Like? [googleusercontent.com] (orig) [dissidentvoice.org]
        That compares the democracy of 500 BCE to USA's early representative gov't.
        The difference in the numbers is staggering.

        -- OriginalOwner_ [soylentnews.org]

  • (Score: 5, Interesting) by Thexalon on Thursday April 13 2017, @03:09PM (34 children)

    by Thexalon (636) on Thursday April 13 2017, @03:09PM (#493425)

    Ross Douthat laid out the argument for why Mitch McConnell just had to pull both of his shenanigans (refusing to even consider Garland, and shoving Gorsuch through) in his column [nytimes.com] yesterday. And his argument was, in a nutshell, that it was all Justice David Souter's fault. See, when Souter was appointed, the conservative wing of the Republican Party thought that he was a right wing ideologue pretending to be a fair and principled jurist. When he got onto the court, that wing of the Republican Party discovered, to their horror, that they had put into power a fair and principled jurist, i.e. he was exactly what he'd been saying he was all along (I'm basing this in part on second-hand knowledge as to Souter's actual character, because my mother argued in front of him regularly before he was promoted). And this, to Mr Douthat and the people he claims to speak for, is a problem that demanded the solution of pushing through the most right-wing ideologue they could get their hands on by any and all means necessary.

    In other words, the US political system is having exactly the same kind of problem the USSR had back in the day: When you decide who's in charge of things based on political loyalty rather than competence, you end up with incompetent sycophants in charge. Who in turn put more incompetent sycophants below them, and so on down the hierarchy of power. And then you're doomed.

    --
    The only thing that stops a bad guy with a compiler is a good guy with a compiler.
    • (Score: 3, Insightful) by Anonymous Coward on Thursday April 13 2017, @03:41PM (29 children)

      by Anonymous Coward on Thursday April 13 2017, @03:41PM (#493450)

      Unless you mistakenly take "conservative" to mean "wants a Christian theocracy and unrestricted corporations", "fair and principled" is conservative. It is really important that the Supreme Court follow our constitution literally, using the meanings of words at the time they were written, in the most obvious and boring way. Alternatives, like the "living document" idea preferred by liberals, turn the Supreme Court into an all-powerful unelected legislative body.

      We don't benefit from a racist justice who considers herself a special "wise latina" (her actual words) making somewhat unpredictable decisions based on shit like relative victimhood status.

      • (Score: 2) by Thexalon on Thursday April 13 2017, @03:48PM

        by Thexalon (636) on Thursday April 13 2017, @03:48PM (#493457)

        Unless you mistakenly take "conservative" to mean "wants a Christian theocracy and unrestricted corporations", "fair and principled" is conservative.

        It certainly could be, but the kinds of people I was talking about wanted a Christian theocracy and unrestricted corporations, and became incensed at David Souter because he didn't give them that.

        --
        The only thing that stops a bad guy with a compiler is a good guy with a compiler.
      • (Score: 3, Informative) by julian on Thursday April 13 2017, @04:15PM (1 child)

        by julian (6003) Subscriber Badge on Thursday April 13 2017, @04:15PM (#493467)

        Christian theocracy and unrestricted corporations

        That is precisely what most US conservative voters want, along with a couple orthogonal issues like absolutely no restrictions on the ownership of firearms--although this could be articulated as yet another manifestation of unrestricted corporations (arms makers)

        • (Score: 2) by dry on Friday April 14 2017, @04:52AM

          by dry (223) on Friday April 14 2017, @04:52AM (#493824) Journal

          Of course the conservatives want restrictions on ownership of firearms. Obvious one is the felon thing whereas the 2nd just says people, not honest right thinking white folk.

      • (Score: 2, Informative) by evil_aaronm on Thursday April 13 2017, @04:18PM (23 children)

        by evil_aaronm (5747) on Thursday April 13 2017, @04:18PM (#493468)

        The "literally" argument in nonsense. Just take one aspect - arms, for example. The FF could not have envisioned the firepower we have, nowadays, or will have in the future. If they had an inkling that one individual could wield enough weaponry, by himself, to take out an entire city block, they might have reconsidered the right to bear arms. We can not base our judgements literally, today, on standards that were developed over 200 years ago. Interpretations and adaptations to the current situation are required. Now, I agree that "interpretations" can be taken too far, to the point of nearly creating new laws from the bench. That's not good, either. Ideally, we'd have a bench full of sensible, moderate judges who understood that their rulings had to comport with the spirit of the Constitution as applied to current times.

        • (Score: 3, Interesting) by tangomargarine on Thursday April 13 2017, @05:20PM (13 children)

          by tangomargarine (667) on Thursday April 13 2017, @05:20PM (#493503)

          How many times do we keep having to explain that "arms" refers to man-portable weapons. We're not talking about right to bear nukes.

          Hell, back around the Revolutionary War "one individual could wield enough weaponry, by himself, to take out an entire city block" (of people). Give him a musket, line up all the people, and give him about a half hour.

          We can not base our judgments literally, today, on standards that were developed over 200 years ago.

          So the bedrock principles our country was founded on are no longer to be taken seriously. Marvelous.

          I'll point out that it took a hell of a long time for people to pay attention to the "created equal" clause, and I'm sure you wouldn't complain about that being taken literally.

          --
          "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
          • (Score: 2) by vux984 on Thursday April 13 2017, @06:28PM (10 children)

            by vux984 (5045) on Thursday April 13 2017, @06:28PM (#493538)

            How many times do we keep having to explain that "arms" refers to man-portable weapons. We're not talking about right to bear nukes.

            So? What happens when we have man-portable nukes?

            Oh wait... we do have those...
            http://www.businessinsider.com/9-facts-about-the-uss-backpack-nukes-2014-2?op=1 [businessinsider.com]

            Hell, back around the Revolutionary War "one individual could wield enough weaponry, by himself, to take out an entire city block" (of people). Give him a musket, line up all the people, and give him about a half hour.

            That requires quite a bit of cooperation from the people being taken out. That's kind of precisely why the comparison fails.

            I'll point out that it took a hell of a long time for people to pay attention to the "created equal" clause, and I'm sure you wouldn't complain about that being taken literally.

            And we're still up shit creek when it comes to realizing that most of the constitution talks about "persons"; yet most American's including much of the law evidently think most of the rights only apply to "citizens"; despite only a very few specific clauses applying to citizens.

            • (Score: 2) by tangomargarine on Thursday April 13 2017, @06:33PM (3 children)

              by tangomargarine (667) on Thursday April 13 2017, @06:33PM (#493543)

              And we're still up shit creek when it comes to realizing that most of the constitution talks about "persons"; yet most American's including much of the law evidently think most of the rights only apply to "citizens"; despite only a very few specific clauses applying to citizens.

              Sounds like you're arguing against yourself here: if we took the Constitution at face value of what it literally said, this wouldn't be a problem.

              --
              "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
              • (Score: 2) by vux984 on Thursday April 13 2017, @06:50PM

                by vux984 (5045) on Thursday April 13 2017, @06:50PM (#493555)

                Sounds like you're arguing against yourself here:

                I'm not 'arguing' a point; I'm simply observing that we (collectively, including the courts) aren't all that consistent in how we've interpreted the constitution, and we never have been. The literalists seem to have some pretty big blind spots too.

              • (Score: 2) by dry on Friday April 14 2017, @05:09AM (1 child)

                by dry (223) on Friday April 14 2017, @05:09AM (#493828) Journal

                Nobody wants to take the Constitution at face value. Everyone wants some speech outlawed and everyone wants some people prevented from owning and bearing arms.
                No one wants to declare that all electronic stuff isn't covered by the bill of rights either. A printer is not a press, a keyboard is not a pen and electronic documents are not papers. A strict reading says that they're not covered as they weren't even thought of.
                No one seems to seriously want to amend the Constitution either. Take the illegal Air Force, no where does the Constitution give the government the right to form the Air Force and passing an amendment to allow it would have been easy, instead the conservatives just mutter about the Constitution allowing for defence without stopping to think that it actively discouraged even a standing Army while encouraging a Navy.

                • (Score: 2) by tangomargarine on Friday April 14 2017, @02:50PM

                  by tangomargarine (667) on Friday April 14 2017, @02:50PM (#493997)

                  Hey, speak for yourself.

                  Everyone wants some speech outlawed

                  Not this guy.

                  everyone wants some people prevented from owning and bearing arms.

                  Well mentally ill, sure. Otherwise not really. Of course the problem is how one defines mental illness.

                  No one wants to declare that all electronic stuff isn't covered by the bill of rights either. A printer is not a press, a keyboard is not a pen and electronic documents are not papers.

                  That a lot of people seem to believe this disturbs me. I would say those things you listed are equivalent and should be treated the same.

                  No one seems to seriously want to amend the Constitution either. Take the illegal Air Force, no where does the Constitution give the government the right to form the Air Force and passing an amendment to allow it would have been easy,

                  Heh. Okay, that's fair.

                  it actively discouraged even a standing Army while encouraging a Navy.

                  Yeah, it's an interesting discussion about how much military thought has changed since then. IIRC even until WWI there wasn't a standing U.S. peace-time military?

                  --
                  "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
            • (Score: 2) by tangomargarine on Thursday April 13 2017, @06:39PM (5 children)

              by tangomargarine (667) on Thursday April 13 2017, @06:39PM (#493545)

              Oh wait... we do have those...
              " rel="url2html-6455">http://www.businessinsider.com/9-facts-about-the-uss-backpack-nukes-2014-2?op=1

              According to Wikipedia they were taken out of circulation in 1968. So "have" in the sense of "maybe there are some sitting in a secure warehouse somewhere that haven't completely decayed yet."

              --
              "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
              • (Score: 2) by vux984 on Thursday April 13 2017, @06:56PM (4 children)

                by vux984 (5045) on Thursday April 13 2017, @06:56PM (#493560)

                " So "have" in the sense of "maybe there are some sitting in a secure warehouse somewhere that haven't completely decayed yet."

                The point is the technology already exists and is 50 years old. So there is really no reason some prepper can't build one himself right? Or for a private group of citizens to place an order with a weapons supplier. Just because the government isn't actively using them, doesn't mean private citizens can't. I mean, the US military doesn't use LOTS of weapons that a private citizen is welcome to procure...

                • (Score: 2) by tangomargarine on Thursday April 13 2017, @07:00PM (3 children)

                  by tangomargarine (667) on Thursday April 13 2017, @07:00PM (#493563)

                  So there is really no reason some prepper can't build one himself right? Or for a private group of citizens to place an order with a weapons supplier.

                  For a nuke? I'm not going to assume nuclear weapons are things you can easily build in your garage (and not irradiate yourself in the process, and have the thing actually work) or buy from a dude in a 7/11 parking lot at midnight.

                  --
                  "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
                  • (Score: 2) by vux984 on Thursday April 13 2017, @08:24PM (2 children)

                    by vux984 (5045) on Thursday April 13 2017, @08:24PM (#493612)

                    You are focused on the wrong question; its really not a question of difficulty to do in ones garage.* The point is we have the tecnhology and it qualifies as 'man portable'.

                    Do you think individuals should be allowed to procure one? It doesn't really matter for the sake of this discussion HOW they procure it. Whether they build it themselves, or order it from Amazon, or if walmart stocks them is immaterial. If we are entitled to have them under the constitution then presumably some sort of supply chain should be legal.
                     

                    • (Score: 2) by tangomargarine on Thursday April 13 2017, @09:42PM (1 child)

                      by tangomargarine (667) on Thursday April 13 2017, @09:42PM (#493646)

                      I suppose the same question would apply if a guy decided to build his own battleship. I'm not familiar with what rules cover private military contractors.

                      --
                      "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
                      • (Score: 2) by vux984 on Friday April 14 2017, @12:08AM

                        by vux984 (5045) on Friday April 14 2017, @12:08AM (#493716)

                        I suppose the same question would apply if a guy decided to build his own battleship.

                        Or a hand grenade. Which is also prohibited.

          • (Score: 3, Informative) by DeathMonkey on Thursday April 13 2017, @08:22PM (1 child)

            by DeathMonkey (1380) on Thursday April 13 2017, @08:22PM (#493611) Journal

            How many times do we keep having to explain that "arms" refers to man-portable weapons.

            That's not the literal definition of "arms" though. You can't advocate a literal interpretation while using a non-literal definition.

            arms
            ärmz/Submit
            noun
            1.
            weapons and ammunition; armaments.
            "they were subjugated by force of arms"
            synonyms: weapons, weaponry, firearms, guns, ordnance, artillery, armaments, munitions, matériel
            "the illegal export of arms"

            • (Score: 3, Informative) by tangomargarine on Thursday April 13 2017, @09:32PM

              by tangomargarine (667) on Thursday April 13 2017, @09:32PM (#493639)

              That's the *current* dictionary definition. "Gay" didn't mean "homosexual" in the 1770s either.

              (4) The U.S. Constitution does not adequately define "arms". When it was adopted, "arms" included muzzle-loaded muskets and pistols, swords, knives, bows with arrows, and spears. However, a common- law definition would be "light infantry weapons which can be carried and used, together with ammunition, by a single militiaman, functionally equivalent to those commonly used by infantrymen in land warfare." That certainly includes modern rifles and handguns, full-auto machine guns and shotguns, grenade and grenade launchers, flares, smoke, tear gas, incendiary rounds, and anti-tank weapons, but not heavy artillery, rockets, or bombs, or lethal chemical, biological or nuclear weapons. Somewhere in between we need to draw the line. The standard has to be that "arms" includes weapons which would enable citizens to effectively resist government tyranny, but the precise line will be drawn politically rather than constitutionally. The rule should be that "arms" includes all light infantry weapons that do not cause mass destruction. If we follow the rule that personal rights should be interpreted broadly and governmental powers narrowly, which was the intention of the Framers, instead of the reverse, then "arms" must be interpreted broadly.

              http://www.constitution.org/leglrkba.htm [constitution.org]

              --
              "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
        • (Score: 2) by Immerman on Thursday April 13 2017, @05:23PM (3 children)

          by Immerman (3985) on Thursday April 13 2017, @05:23PM (#493504)

          >Interpretations and adaptations to the current situation are required.

          Right, and we have a name for such adaptations: constitutional amendments. If the legislature doesn't see the need to change the law, then it's not the place of the judiciary to do so.

          • (Score: 2) by NotSanguine on Thursday April 13 2017, @07:39PM

            by NotSanguine (285) <NotSanguineNO@SPAMSoylentNews.Org> on Thursday April 13 2017, @07:39PM (#493585) Homepage Journal

            >Interpretations and adaptations to the current situation are required.

            Right, and we have a name for such adaptations: constitutional amendments. If the legislature doesn't see the need to change the law, then it's not the place of the judiciary to do so.

            Actually, that's incorrect. The federal judiciary is not a subordinate branch of government. It is a co-equal to the legislative and executive branches.

            In fact, it is the primary role of the judiciary to interpret and validate/invalidate Federal (and after the 14th amendment, state) law.

            If the legislature passes a bill that is signed by the president, the judiciary (with SCOTUS being the court of last resort) is empowered to determine the legality and constitutionality of such a law, assuming that suit has been filed by someone with standing to do so.

            N.B. IANAL.

            --
            No, no, you're not thinking; you're just being logical. --Niels Bohr
          • (Score: 2) by dry on Friday April 14 2017, @05:12AM (1 child)

            by dry (223) on Friday April 14 2017, @05:12AM (#493831) Journal

            So you think it is wrong to expand the meaning of papers to include electronic documents or expand presses to include laser printers?

            • (Score: 2) by Immerman on Friday April 14 2017, @02:35PM

              by Immerman (3985) on Friday April 14 2017, @02:35PM (#493980)

              Tell me, in context, does "papers" refer to the information on the sheets, or the specific material it's printed on? Would a lambskin scroll be included in "papers"? A wood-plank book? A clay tablet? I'd say it would be an uphill argument to say no, and that including more modern mediums too is well within their powers of interpretation.

        • (Score: 3, Insightful) by Anonymous Coward on Thursday April 13 2017, @07:08PM (3 children)

          by Anonymous Coward on Thursday April 13 2017, @07:08PM (#493569)

          The "literally" argument in nonsense. Just take one aspect - arms, for example.

          Great example!

          The FF could not have envisioned the firepower we have, nowadays, or will have in the future.

          You might be surprised, actually; repeating arms were known in their day, though they were generally impractical curiosities. With the rapid advances then being made towards practicality of breech-loading arms, I think they might have anticipated more than you think. But certainly, if you go far enough in the future, their vision is bound to fail, so there's no harm in supposing we've already passed that horizon.

          If they had an inkling that one individual could wield enough weaponry, by himself, to take out an entire city block, they might have reconsidered the right to bear arms.

          They might have, but so what? Without such weaponry they had no need to reconsider it; they left a mechanism for people living with inconceivable future weaponry to change the Constitution if/when they need to.

          We can not base our judgements literally, today, on standards that were developed over 200 years ago.

          Of course not -- we have a duty to keep our government up to date, making what changes are needed.

          Interpretations and adaptations to the current situation are required.

          "Interpretations", no. "Adaptations", yes. You're trying to handle those adaptations in the wrong layer. (And you're not alone in this -- a lot of problems we have with government is because, as a nation, we've been handling things in the wrong layer for at least a century or so.)

          The Supreme Court is to interpret what the Constitution says; if we don't like what it says, we amend it until we do.

          • If there's a strong enough consensus, amending the Constitution shouldn't be a problem; then Congress can pass a law implementing whatever changes they were unable to before.
          • Even though a law passing both houses of Congress is an indication that there is consensus, if that consensus is not strong enough to amend the Constitution to actually give Congress that power, the law gets struck down. If it's a real problem, and can't be fixed without an amendment, you'll get your 2/3 majority soon enough.

          If the Supreme Court lets unconstitutional laws stand by interpreting the Constitution as "what I'd like to believe the founders would have written and ratified, if only they'd known about $MODERN_THING", then Congress has no incentive to be careful of constitutionality in the laws they pass, and neither Congress nor the states have motivation to actually amend the constitution. If you keep this up, the Constitution falls farther and farther behind, and more and more power is progressively handed to the Supreme Court, as they're the ones letting laws stand or fall based on constitutional fanfic.

          One side effect of this accumulation is getting locked in battles over what flavor of ideologues to pack the Supreme Court with -- but that's not the real problem.

          Since the Supreme Court, Congress, and the Presidency all run on some variation of strict-majority rules, there's a tremendous stability problem -- something gets changed, the other party takes over, and it gets changed back. In Congress, at least, you do get good responsiveness to the electorate, so it's not all bad. (The Supreme Court only changes rarely, so it doesn't even have that benefit -- it was never designed to be an instrument of political expression, and it's poorly suited to do so.) A supermajority system (such as the 2/3 to amend the Constitution), on the other hand, has hysteresis -- that means it's much harder to change in the first place, so it tends to lag the actual will of the people, but once you change it, it won't be changed back as things teeter-totter between 51-49 and 49-51. These systems complement each other, which is why we're supposed to have the overall shape of government -- what things the government can do, what things it must do, and what things it can't do -- defined in the Constitution, and not capable of being changed lightly. Meanwhile, big and small tweaks within that shape can be quickly and easily changed by Congress to reflect the everchanging will of the people.

          But when you transfer all the power to hysteresis-less branches, you're long on responsiveness, short on stability -- you pass a huge health-insurance thing, and a few years later as everyone's just getting the hang of it, we're kinda-sorta set to repeal and replace it with something completely different. And in 4 or 8 years, when the other party is back in power, you can bet it'll be changed again -- no matter which (or neither) party's vision for healthcare is your ideal, surely we can agree that this seesawing is harmful, and we'd be better off with some version 2/3 of the people can live with and it stops changing?

          And if this approach doesn't work well because there's too much hysteresis in the Constitutional amendment process, maybe we should have something like 3/5 or 55% (or pick a number); it should be easy to amend the Constitution to change the amendment procedure -- you can build support from left and right, as they'll each have their own amendments they'd like, but can't quite get passed by 2/3. But this goes back to the Court doing its job -- as long as they let unconstitutional laws stand, there's no incentive to make amendments, much less to make amendments about the amendment process.

          • (Score: 2) by NotSanguine on Thursday April 13 2017, @07:48PM

            by NotSanguine (285) <NotSanguineNO@SPAMSoylentNews.Org> on Thursday April 13 2017, @07:48PM (#493589) Homepage Journal

            If there's a strong enough consensus, amending the Constitution shouldn't be a problem; then Congress can pass a law implementing whatever changes they were unable to before.
                    Even though a law passing both houses of Congress is an indication that there is consensus, if that consensus is not strong enough to amend the Constitution to actually give Congress that power, the law gets struck down. If it's a real problem, and can't be fixed without an amendment, you'll get your 2/3 majority soon enough.

            This should give you some idea as to why it's difficult to amend the constitution [youtube.com].

            As an aside, in addition to a 2/3 majority in both houses of Congress, 3/4 of state legislatures must also pass an amendment as well.

            --
            No, no, you're not thinking; you're just being logical. --Niels Bohr
          • (Score: 1) by charon on Friday April 14 2017, @04:50AM (1 child)

            by charon (5660) on Friday April 14 2017, @04:50AM (#493823) Journal
            Thank you. This is the strongest argument in favor of originalism I've ever read. The only drawback is that eventually the constitution becomes a stub with hundreds of amendments that modify and negate earlier sections and amendments. It's manageable with its current 27, but eventually we'd need a new Convention to refactor the code, so to speak.
            • (Score: 2) by Immerman on Friday April 14 2017, @02:39PM

              by Immerman (3985) on Friday April 14 2017, @02:39PM (#493984)

              Don't even need a convention.

              Amendment 83: The constitution and all previous amendments are hereby null and void, and replaced by the following text:

        • (Score: 1, Insightful) by Anonymous Coward on Thursday April 13 2017, @11:07PM

          by Anonymous Coward on Thursday April 13 2017, @11:07PM (#493687)

          The FF had cannons. Including the effects of fire, or a lengthy barrage with exploding shells, a cannon is enough to take out a city block.

          Our constitution offers two ways to restrict arms. The first is a new amendment. The second, which is easy to abuse and currently covers nukes, is a treaty.

          Judges are supposed to follow what is written. If we don't like what is written, we can change what is written. Begging justices to abuse their position is not good for the long-term stability of our government.

      • (Score: 2) by LaminatorX on Thursday April 13 2017, @08:12PM (1 child)

        by LaminatorX (14) <laminatorxNO@SPAMgmail.com> on Thursday April 13 2017, @08:12PM (#493610)

        The framers were willing to accept slavery and fractionally count said slaves enslaved persons toward congressional representation, and only thought white men who owned land should have the right to vote. Spare us the strict constructionism, their intent and meaning were far from perfect paragons worthy of such idolatry.

        • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @09:08PM

          by Anonymous Coward on Thursday April 13 2017, @09:08PM (#493626)

          There is a defined system for amending the constitution.

    • (Score: 2) by AthanasiusKircher on Thursday April 13 2017, @05:25PM (1 child)

      by AthanasiusKircher (5291) on Thursday April 13 2017, @05:25PM (#493506) Journal

      While it's fun to try to pin down a primary "cause," I don't think there's a strong case for Souter than there is for any of a dozen other explanations, depending on how far back in history you want to go. Yes, Souter was a disappointment to the conservative base, but his appointment followed a number of other contentious battles, from Robert Bork to Abe Fortas. And let's not forget that the quest to "seed the Supreme Court" with nominees who will be driven primarily by political ideology was arguably an artifact of the rising role of SCOTUS decisions in determining important national policies, particularly during the Warren Court years and after.

      It's tough to imagine the much more constrained world of U.S. politics before the Great Depression, but that's arguably where things really "got going." (Yes, we could trace it back even further, but going back before the party realignments of the 1930s makes it much less relevant to today's politics.) Before the 1930s era, a lot of federal law didn't apply to states, and federal laws were still really limited by the Constitutional enumerated powers. The New Deal changed all of that, bringing a lot more power to the federal government. SCOTUS fought this valiantly (and sometimes unfairly), until FDR threatened to enlarge the size of the court and pack it with his cronies.

      Before the 1930s era, the scope of federal jurisprudence was a lot smaller. Even a number of basic rights (like from the Bill of Rights) hadn't yet been officially "incorporated" to function against the states. We don't often remember this now, but it used to be up to the states whether they wanted to restrict freedom of speech or the press or make widespread searches or allow suspects to remain silent and not incriminate themselves. SCOTUS gradually took over these issues and made them subject to federal law, instead of state law -- thus raising the stakes for federal interpretation of all of these rights.

      And then, of course, under the Warren court SCOTUS started finding new powers and new rights -- involving itself directly with Civil Rights era issues, creating a new "Right to Privacy" which ultimately lead to the abortion decisions, etc.

      When Eisenhower was President back in the 1950s, he could still hold to a general idea of "balance" in SCOTUS appointments, even going so far as to appoint some more liberal justices himself in a deliberate attempt to balance out some of his earlier appointments. Back then, SCOTUS still could at least theoretically be viewed as having limited purview.

      By the time of the Abe Fortas controversy in the late 60s, no rational person could see it that way anymore. SCOTUS was now the center of federal power, which had taken over many issues which were traditionally viewed as left to the states (whether state courts or legislatures). Thus, an appointment to the Supreme Court was a huge political act that would have much greater national ramifications on all areas of law and life.

      That's not to say that SCOTUS justices weren't important in earlier periods. But the politicization of appointments was basically inevitable with the rising powers of the court from the 1930s to the 1960s. The fact that these things finally came to a head over people like Bork and Thomas and Souter is just a later stage of escalation.

      • (Score: 2) by Thexalon on Thursday April 13 2017, @06:05PM

        by Thexalon (636) on Thursday April 13 2017, @06:05PM (#493520)

        Before the 1930s era, the scope of federal jurisprudence was a lot smaller. Even a number of basic rights (like from the Bill of Rights) hadn't yet been officially "incorporated" to function against the states. We don't often remember this now, but it used to be up to the states whether they wanted to restrict freedom of speech or the press or make widespread searches or allow suspects to remain silent and not incriminate themselves. SCOTUS gradually took over these issues and made them subject to federal law, instead of state law -- thus raising the stakes for federal interpretation of all of these rights.

        I don't know what your source is for that claim, but it's completely wrong. What changed the rights of states to restrict the freedom of speech and such was the Fourteenth Amendment, ratified in 1868, specifically the clause in section 1 that reads:

        No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

        The Supreme Court first presented the opinion that this allowed them to overturn state laws that infringed on the Bill of Rights in the Slaughter-House Cases of 1873.

        As for Bork, I have no sympathy for him whatsoever: A guy who tried to kill the Watergate investigation by firing the prosecutors putting together the case is not somebody I see as deserving of a Supreme Court seat. And yes, I'd feel the same way about somebody who tried to protect a Democratic president using the same maneuver.

        --
        The only thing that stops a bad guy with a compiler is a good guy with a compiler.
    • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @08:01PM

      by Anonymous Coward on Thursday April 13 2017, @08:01PM (#493603)

      Ross Douthat laid out the argument for why Mitch McConnell just had to pull both of his shenanigans (refusing to even consider Garland, and shoving Gorsuch through) in his column yesterday. And his argument was, in a nutshell, that it was all Justice David Souter's fault.

      Frankly, I'm getting mighty tired of Republicans blaming all their woes on someone else. Now that they have full control of the Executive and Legislative branches of government, it is well past time for them to step up and start taking responsibility for their actions. Come on, guys! Put your big-boy pants on and actually start governing!

      See, when Souter was appointed, the conservative wing of the Republican Party thought that he was a right wing ideologue pretending to be a fair and principled jurist. When he got onto the court, that wing of the Republican Party discovered, to their horror, that they had put into power a fair and principled jurist, i.e. he was exactly what he'd been saying he was all along....

      Ah, yes. David Souter. "B-b-but, we didn't want you to be a fair and impartial judge! We wanted you to ram our agenda through the courts!"

      And this, to Mr Douthat and the people he claims to speak for, is a problem that demanded the solution of pushing through the most right-wing ideologue they could get their hands on by any and all means necessary.

      And this, right here, is my one last glimmer of hope for Justice Gorsuch. I am hoping that he will actually decide to be an impartial jurist and not just another partisan hack. It would serve the Republicans right if they got hoisted on their own petard. We will have to wait and see.

    • (Score: 1) by khallow on Friday April 14 2017, @12:11PM

      by khallow (3766) Subscriber Badge on Friday April 14 2017, @12:11PM (#493919) Journal

      Ross Douthat laid out the argument [...] And his argument was, in a nutshell, that it was all Justice David Souter's fault.

      So Ross Douthat is an idiot. I'm not seeing the relevance to the current story.

  • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @03:30PM (1 child)

    by Anonymous Coward on Thursday April 13 2017, @03:30PM (#493443)

    Let retired lawyers choose by approval voting.

    To qualify to vote, the lawyer must permanently divest from all legal firms and disbar himself. Family and friends must not currently be lawyers or have investments in law firms. These qualifications are to discourage bias in favor of making our legal system bigger and more bloated, dragging down our economy with legal action.

    • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @04:45PM

      by Anonymous Coward on Thursday April 13 2017, @04:45PM (#493486)

      How could a retired lawyer not have any friends that are involved in the law?
      Most people tend to become friends with the people the work with, and stay acquainted after they move on.
      How do you define a friend? If you know their children's first names are you a friend?

  • (Score: 2, Interesting) by All Your Lawn Are Belong To Us on Thursday April 13 2017, @03:45PM

    by All Your Lawn Are Belong To Us (6553) on Thursday April 13 2017, @03:45PM (#493454) Journal

    Or, more accurately, just because something works for a state or states does not automatically imply it is therefore good for the Federal government, too.

    I thought people would have learned this lesson well from the opposite direction - that which works for the Feds doesn't always apply to the states, despite the Fed try to shove it up their bunghole.

    Or is the article really trying to stupidly suggest that Supreme Court Justices should face reconfirmations and that the President should be limited to whom he can advance (the article being silent on whether confirmation is necessary.) Whatever - it's a stupid idea to think of applying that to the Supreme Court and/or believe that such a system will not be also gamed.

    --
    This sig for rent.
  • (Score: 2) by cmdrklarg on Thursday April 13 2017, @04:23PM (1 child)

    by cmdrklarg (5048) Subscriber Badge on Thursday April 13 2017, @04:23PM (#493472)

    No need for more complexity, just some simple rules.

    In the event of a SCOTUS vacancy:

    1. POTUS currently in office chooses and submits a candidate. Not the POTUS-elect, the guy currently occupying the Oval Office.
    2. Senate MUST go through confirmation process. None of this refusing to hold hearings bullshit. No waiting until after the elections.

    --
    The world is full of kings and queens who blind your eyes and steal your dreams.
    • (Score: 2) by bob_super on Thursday April 13 2017, @09:42PM

      by bob_super (1357) on Thursday April 13 2017, @09:42PM (#493645)

      I was hoping that SCOTUS would have the balls to hold the Senate Majority Leader in contempt for refusing to take a vote on the President's nominee, as explicitly required by the constitution.

  • (Score: 2, Troll) by jmorris on Thursday April 13 2017, @04:44PM (1 child)

    by jmorris (4844) on Thursday April 13 2017, @04:44PM (#493485)

    Lets examine the plan that the Minions of Soros at CAP are promoting.

    Three from the Bar, which is and always will be so much a part of the Democratic Party (trial lawyers compose a large enough majority) that they would always start with three of seven votes banked. So if they have the Chief Justice, which once they ever did they would be unlikely to lose under this system, or the Governor they would rule forever. Yup, pretty much what one would expect. Replace the voters with a One Party rule by the machine.

    You guys are never going to get over being butthurt over having the Biden Rule thrown back at you, are you?

    • (Score: 1) by charon on Friday April 14 2017, @05:00AM

      by charon (5660) on Friday April 14 2017, @05:00AM (#493826) Journal
      So you're saying that lawyers, the class of citizens from which judges are chosen, cannot be impartial. I thought impartiality was pretty much the whole point of having judges.
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