SCOTUS-Watch: It's Gorsuch!

[Person Man]

Not gonna make much difference with a Scalia vacancy. Watch Senate elections in 2018 and presidential race in 2020 for Kennedy and Ginnsberg replacement

Ginsberg will die before Nov. 2020. She might make it to Jan. 2020 though, which would make the appointment fall under the last year rule, which dems need to enforce.

How can you foretell her lifedates with such certainty?

Seriously. JPS was 90 when he left the Court. This is pretty much the same situation. If he checked out before Democrats had enough votes to at least to force a compromise with Bush, it would have been Game Over. Same here.

And if Trump nominates some nut obsessed with abortion or suicide, the Democrats have enough votes to block him for a few months a buy enough time for the ACA and to run on saving it in 2018.

[KingSweden]

Gorsuch is right-wing nutjob and I'm not sure what would make anyone think otherwise.  If anything he'd shift the court to the right.

Are you implying that Gorsuch is to the right of Scalia?

Are you implying that's impossible or even difficult? Sure, Scalia was right wing on many things, but he consistently advocated a view touting the legislature's supremacy over the courts in the making of policy. While I don't know Gorsuch's views, there are plenty of right wing jurists who want the Court to take a much more activist role in advancing conservative policies than Scalia did. The Supreme Court emphatically does not operate on the exact same left-right axis that other branches do. A judge whose personal views are less right wing could have a view of the constitution that leads them to even more radical decisions.

Well put, though Gorsuch seems to take a limited view of executive authority, a good thing in a potential Trump administration. Being more like Scalia than Alito is a positive in my book.

Also think your point about SCOTUS justices not operating on same axis is good though misses point that a big thing is how broad or narrow a justice believes a ruling should be. More activist judges tend to aim for broad rulings

[The Other Castro]

Forgot to update this before, but Trump tweeted the announcement will be on Thursday (though there's a pretty good chance the name will leak before then).

As in tomorrow or next Thursday?

Next Thursday.

[Bleach Blonde Bad Built Butch Bodies for Biden]

Gorsuch is right-wing nutjob and I'm not sure what would make anyone think otherwise.  If anything he'd shift the court to the right.

Are you implying that Gorsuch is to the right of Scalia?

Are you implying that's impossible or even difficult? Sure, Scalia was right wing on many things, but he consistently advocated a view touting the legislature's supremacy over the courts in the making of policy. While I don't know Gorsuch's views, there are plenty of right wing jurists who want the Court to take a much more activist role in advancing conservative policies than Scalia did. The Supreme Court emphatically does not operate on the exact same left-right axis that other branches do. A judge whose personal views are less right wing could have a view of the constitution that leads them to even more radical decisions.

Yeah, that's probably true.  Certainly if Trump appointed a Roy Moore type to the seat, he would move the court significantly to the right.  But if Trump appoints some nutcase who incorporates Dominion Theology into their judicial philosophy, then they might not even make it past the whole Senate, filibuster or no filibuster.

[MarkD]

Gorsuch is right-wing nutjob and I'm not sure what would make anyone think otherwise.  If anything he'd shift the court to the right.

Are you implying that Gorsuch is to the right of Scalia?

Are you implying that's impossible or even difficult? Sure, Scalia was right wing on many things, but he consistently advocated a view touting the legislature's supremacy over the courts in the making of policy. While I don't know Gorsuch's views, there are plenty of right wing jurists who want the Court to take a much more activist role in advancing conservative policies than Scalia did. The Supreme Court emphatically does not operate on the exact same left-right axis that other branches do. A judge whose personal views are less right wing could have a view of the constitution that leads them to even more radical decisions.

Well put, though Gorsuch seems to take a limited view of executive authority, a good thing in a potential Trump administration. Being more like Scalia than Alito is a positive in my book.

Also think your point about SCOTUS justices not operating on same axis is good though misses point that a big thing is how broad or narrow a justice believes a ruling should be. More activist judges tend to aim for broad rulings

First of all, yes, it is possible to be to the right of Scalia. If Gorsuch IS to the right of Scalia, that would mean one less vote on the Court for the view that flag-burning is "a form of protected speech." It might also mean one less vote for the view that an accused child molester has an absolute right to directly confront, face-to-face, the children who testify against them in court.

But that's not my main point. I would have thought that the definition of being a judicial activist is not whether their rulings are broad or narrow, but that their rulings are based on their own values rather than an objective discovery of the intent of the lawmakers. Prof. John Hart Ely was excellent on the point of explaining what an "activist" is when he elaborated on what is  a "noninterpretivist" in his seminal book Democracy and Distrust, published 37 years ago. An "interpretivist," according to Ely, is an advocate for the idea that the text and original intent of the text of the Constitution should be what guides judges to conclusions about whether the Constitution has been violated, while a "noninterpretevist" advocates that judges should go beyond the text and history of the Constitution to decide the cases that involve a constitutional dispute. Ely linked the word "activist" to the concept of a "noninterpretevist."

[Greedo punched first]

Gorsuch is right-wing nutjob and I'm not sure what would make anyone think otherwise.  If anything he'd shift the court to the right.

Are you implying that Gorsuch is to the right of Scalia?

Are you implying that's impossible or even difficult? Sure, Scalia was right wing on many things, but he consistently advocated a view touting the legislature's supremacy over the courts in the making of policy. While I don't know Gorsuch's views, there are plenty of right wing jurists who want the Court to take a much more activist role in advancing conservative policies than Scalia did. The Supreme Court emphatically does not operate on the exact same left-right axis that other branches do. A judge whose personal views are less right wing could have a view of the constitution that leads them to even more radical decisions.

Well put, though Gorsuch seems to take a limited view of executive authority, a good thing in a potential Trump administration. Being more like Scalia than Alito is a positive in my book.

Also think your point about SCOTUS justices not operating on same axis is good though misses point that a big thing is how broad or narrow a justice believes a ruling should be. More activist judges tend to aim for broad rulings

If Gorsuch has this more limited view of executive authority, that is a positive. Would Trump actually pick a Dominionist like Roy Moore or Rick Santorum?

[GLPman]

I'm hoping it'll be Gorsuch, but I have a hunch it'll be Hardiman.

[KingSweden]

I'm hoping it'll be Gorsuch, but I have a hunch it'll be Hardiman.

If his sister is pushing him...

[The Other Castro]

Philip Rucker ‏@PhilipRucker  2h2 hours ago
Hearing from WH that Trump's plan to announce SCOTUS pick on Thurs is not definite. Could come sooner -- really, whenever he feels like it.

[daveosupremo]

What are the odds he throws a curveball and nominates someone off of the list of 21, but not one of the reported top tier, like Thomas Lee, David Stras, Don Willett, etc. 

[100% pro-life no matter what]

Crazy hypothetical:

Let's say that Scalia is replaced by Pryor or Gorsuch.  Kennedy decides to retire under a Republican president and is replaced by the other or Pryor and Gorsuch.  Then, either Ginsburg or Breyer retire and gets replaced by, say, Mike Lee.  Obviously, Roe v. Wade is history.  But, would Alito, Thomas, Pryor, Gorsuch, and Lee overturn Obergefell too?

[The_Doctor]

There's no obvious about Roe being history. There's four decades of precedent behind Roe, Roe is popular, and the Court wouldn't willingly toss it without careful consideration. The blue states would need to retain the right to have abortion legal within their borders while red states would be allowed to ban it. The most likely scenario is that the 20 week ban is upheld, the whole gamut of abortion restrictions upheld, but abortion within the first 10-15 weeks remain on the books as a legal procedure.

Remember, any restriction to Roe that makes it difficult for white women (a core constituency in the GOP) gets political backlash that threatens the GOP's majority. So, Roe will remain legal in some contexts and within the first couple of weeks, no matter what.  

And gay marriage would not be rolled back. It took 40 years for abortion restrictions to become part of the legal and political landscape; gay marriage is a new right and it has wide and popular backing within the public. The public isn't about to go back to the times of gay marriage being banned in Alabama. That might not be a bad decision but honestly, the popular will to keep gay marriage legal will ensure that Obergefell remains legal.

The justices wouldn't overturn BOTH Roe and gay marriage. That just hands the Left huge ammunition and a bazooka to blow up the Right with impunity and galvanizes the Democratic base while depressing elements of the GOP base. Justices don't like writing opinions that could be overturned by the next election. They'll be more circumspect. Roe will remain partially legal and definitely legal up to the first 20 weeks while gay marriage remains legal.

[○∙◄☻¥tπ[╪AV┼cVê└]

There's no obvious about Roe being history. There's four decades of precedent behind Roe, Roe is popular, and the Court wouldn't willingly toss it without careful consideration. The blue states would need to retain the right to have abortion legal within their borders while red states would be allowed to ban it. The most likely scenario is that the 20 week ban is upheld, the whole gamut of abortion restrictions upheld, but abortion within the first 10-15 weeks remain on the books as a legal procedure.

Remember, any restriction to Roe that makes it difficult for white women (a core constituency in the GOP) gets political backlash that threatens the GOP's majority. So, Roe will remain legal in some contexts and within the first couple of weeks, no matter what. 

And gay marriage would not be rolled back. It took 40 years for abortion restrictions to become part of the legal and political landscape; gay marriage is a new right and it has wide and popular backing within the public. The public isn't about to go back to the times of gay marriage being banned in Alabama. That might not be a bad decision but honestly, the popular will to keep gay marriage legal will ensure that Obergefell remains legal.

The justices wouldn't overturn BOTH Roe and gay marriage. That just hands the Left huge ammunition and a bazooka to blow up the Right with impunity and galvanizes the Democratic base while depressing elements of the GOP base. Justices don't like writing opinions that could be overturned by the next election. They'll be more circumspect.

Roe has already been weakened, and I'm sure if 5 anti abortion justices were on the court, they'd completely toss it. But they'd probably keep SSM.

[The_Doctor]

5 anti-abortion justices will not uphold a heartbeat bill that guts Roe at 6 weeks. They'll uphold state restrictions on abortion clinics, and the onerous regulations about the clinics, the specifics of running one, blah blah blah. But no.

Essentially, blue states will be allowed to have free rein on abortions up to the third trimester (where it's illegal federally anyway). Red states will keep the procedure heavily restricted as white women within the red states take plane/train trips to their sister in law or cousins or whatever to have an abortion in the blue states.

A blanket ban is just a massive political nightmare for the GOP and the conservative justices know it. They know that they can't get away with that level of restriction.

[Heisenberg]

Crazy hypothetical:

Let's say that Scalia is replaced by Pryor or Gorsuch.  Kennedy decides to retire under a Republican president and is replaced by the other or Pryor and Gorsuch.  Then, either Ginsburg or Breyer retire and gets replaced by, say, Mike Lee.  Obviously, Roe v. Wade is history.  But, would Alito, Thomas, Pryor, Gorsuch, and Lee overturn Obergefell too?

How about Hardiman or Thomas Rex Lee (Mike's older brother). Please, no Senators on the court. They are obvious judicial activists. Activism can come from either side, though I'm obviously far more scared when it comes from the left. No way does Mike Lee make confirmation, even with the nuclear option. Collins and Murkowski are probably "no" votes, and Lee would probably have to abstain from the vote.

Short answer: I think if they go too aggressive, it will backfire big time, and at least with SSM, there will be far more backlash, as opinion on that issue has been moving hard left very quickly, while with abortion, it has been, if anything, moving right.

[Chancellor Tanterterg]

Crazy hypothetical:

Let's say that Scalia is replaced by Pryor or Gorsuch.  Kennedy decides to retire under a Republican president and is replaced by the other or Pryor and Gorsuch.  Then, either Ginsburg or Breyer retire and gets replaced by, say, Mike Lee.  Obviously, Roe v. Wade is history.  But, would Alito, Thomas, Pryor, Gorsuch, and Lee overturn Obergefell too?

How about Hardiman or Thomas Rex Lee (Mike's older brother). Please, no Senators on the court. They are obvious judicial activists. Activism can come from either side, though I'm obviously far more scared when it comes from the left. No way does Mike Lee make confirmation, even with the nuclear option. Collins and Murkowski are probably "no" votes, and Lee would probably have to abstain from the vote.

Short answer: I think if they go too aggressive, it will backfire big time, and at least with SSM, there will be far more backlash, as opinion on that issue has been moving hard left very quickly, while with abortion, it has been, if anything, moving right.

Can we please not pretend "judicial activist" means anything more than "makes rulings I don't agree with?"  Thanks!

[Heisenberg]

Crazy hypothetical:

Let's say that Scalia is replaced by Pryor or Gorsuch.  Kennedy decides to retire under a Republican president and is replaced by the other or Pryor and Gorsuch.  Then, either Ginsburg or Breyer retire and gets replaced by, say, Mike Lee.  Obviously, Roe v. Wade is history.  But, would Alito, Thomas, Pryor, Gorsuch, and Lee overturn Obergefell too?

How about Hardiman or Thomas Rex Lee (Mike's older brother). Please, no Senators on the court. They are obvious judicial activists. Activism can come from either side, though I'm obviously far more scared when it comes from the left. No way does Mike Lee make confirmation, even with the nuclear option. Collins and Murkowski are probably "no" votes, and Lee would probably have to abstain from the vote.

Short answer: I think if they go too aggressive, it will backfire big time, and at least with SSM, there will be far more backlash, as opinion on that issue has been moving hard left very quickly, while with abortion, it has been, if anything, moving right.

Can we please not pretend "judicial activist" means anything more than "makes rulings I don't agree with?"  Thanks!

My definition of judicial activism also includes judges who are insiders to the partisan electoral system (Senators, Governors, Representatives, etc.).

[True Federalist (진정한 연방 주의자)]

It's still early to sound the deathknell of Roe, considering that there are at most two sitting justices on the court who would support an outright reversal of it. That will likely soon return to three, but even if Trump gets two more chances before 2020, it's still far from certain that all three of his nominees will be that doctrinaire.

[Chancellor Tanterterg]

Crazy hypothetical:

Let's say that Scalia is replaced by Pryor or Gorsuch.  Kennedy decides to retire under a Republican president and is replaced by the other or Pryor and Gorsuch.  Then, either Ginsburg or Breyer retire and gets replaced by, say, Mike Lee.  Obviously, Roe v. Wade is history.  But, would Alito, Thomas, Pryor, Gorsuch, and Lee overturn Obergefell too?

How about Hardiman or Thomas Rex Lee (Mike's older brother). Please, no Senators on the court. They are obvious judicial activists. Activism can come from either side, though I'm obviously far more scared when it comes from the left. No way does Mike Lee make confirmation, even with the nuclear option. Collins and Murkowski are probably "no" votes, and Lee would probably have to abstain from the vote.

Short answer: I think if they go too aggressive, it will backfire big time, and at least with SSM, there will be far more backlash, as opinion on that issue has been moving hard left very quickly, while with abortion, it has been, if anything, moving right.

Can we please not pretend "judicial activist" means anything more than "makes rulings I don't agree with?"  Thanks!

My definition of judicial activism also includes judges who are insiders to the partisan electoral system (Senators, Governors, Representatives, etc.).

You must really hate Pryor then

[100% pro-life no matter what]

It's still early to sound the deathknell of Roe, considering that there are at most two sitting justices on the court who would support an outright reversal of it. That will likely soon return to three, but even if Trump gets two more chances before 2020, it's still far from certain that all three of his nominees will be that doctrinaire.

I think there are three sitting justices who would vote to overturn Roe.

[Pandaguineapig]

It's still early to sound the deathknell of Roe, considering that there are at most two sitting justices on the court who would support an outright reversal of it. That will likely soon return to three, but even if Trump gets two more chances before 2020, it's still far from certain that all three of his nominees will be that doctrinaire.

I think there are three sitting justices who would vote to overturn Roe.

Despite him saving obamacare Roberts has maintained a very pro-life record on the supreme court

[100% pro-life no matter what]

It's still early to sound the deathknell of Roe, considering that there are at most two sitting justices on the court who would support an outright reversal of it. That will likely soon return to three, but even if Trump gets two more chances before 2020, it's still far from certain that all three of his nominees will be that doctrinaire.

I think there are three sitting justices who would vote to overturn Roe.

Despite him saving obamacare Roberts has maintained a very pro-life record on the supreme court

Plus, Roberts has always seemed to side with leaving things to the states (note the part of Obamacare he struck down), and that is what overturning Roe would do.  Now, unlike Alito and Thomas, Roberts wouldn't go a step further by finding a constitutional right to life.

[True Federalist (진정한 연방 주의자)]

It's still early to sound the deathknell of Roe, considering that there are at most two sitting justices on the court who would support an outright reversal of it. That will likely soon return to three, but even if Trump gets two more chances before 2020, it's still far from certain that all three of his nominees will be that doctrinaire.

I think there are three sitting justices who would vote to overturn Roe.

Despite him saving obamacare Roberts has maintained a very pro-life record on the supreme court

Plus, Roberts has always seemed to side with leaving things to the states (note the part of Obamacare he struck down), and that is what overturning Roe would do.  Now, unlike Alito and Thomas, Roberts wouldn't go a step further by finding a constitutional right to life.

Roberts is conservative, but not just in the sense of holding certain positions on social issues.  He's fully aware of the need for stability in the law and the need for the court to be widely respected.  He won't want Roe overturned on a narrow 5-4 decision that would shred the few remaining shreds of illusion that the court is a judicial body and not a political body.  The same impetus that led him to his convoluted finding that the ACA was a tax is likely to lead him to find some flaw in cases that come before the court when it would be a narrow ruling.

[Pandaguineapig]

It's still early to sound the deathknell of Roe, considering that there are at most two sitting justices on the court who would support an outright reversal of it. That will likely soon return to three, but even if Trump gets two more chances before 2020, it's still far from certain that all three of his nominees will be that doctrinaire.

I think there are three sitting justices who would vote to overturn Roe.

Despite him saving obamacare Roberts has maintained a very pro-life record on the supreme court

Plus, Roberts has always seemed to side with leaving things to the states (note the part of Obamacare he struck down), and that is what overturning Roe would do.  Now, unlike Alito and Thomas, Roberts wouldn't go a step further by finding a constitutional right to life.

Roberts is conservative, but not just in the sense of holding certain positions on social issues.  He's fully aware of the need for stability in the law and the need for the court to be widely respected.  He won't want Roe overturned on a narrow 5-4 decision that would shred the few remaining shreds of illusion that the court is a judicial body and not a political body.  The same impetus that led him to his convoluted finding that the ACA was a tax is likely to lead him to find some flaw in cases that come before the court when it would be a narrow ruling.

He would probably not overturn the holding of roe 5-4 but he would be willing to gut it by giving states a large amount of deference on restrictions and regulations. If both Kennedy and Ginsburg die/retire he would probably join the other conservatives to overturn roe albeit a ruling that would send the issue back to the states rather than create a constitutional right to life

[The Other Castro]

Update: Announcement may be coming Monday or Tuesday. Down to Gorsuch and Hardiman.

Jonathan Karl ‏@jonkarl  56m56 minutes ago
Senior administration official tells me @realDonaldTrump's SCOTUS short list is down Neil Gorsuch & Thomas Hardiman.

Jonathan Karl ‏@jonkarl  59m59 minutes ago
WH SOURCE: The WH is preparing for an earlier announcement of @realDonaldTrump's pick for Supreme Court - likely Tues, possibly tomorrow