slatten49 Loc: Lake Whitney, Texas

By ADAM LIPTAK MARCH 21, 2016

WASHINGTON — Last month, Chief Justice John G. Roberts Jr. delivered some blunt remarks about the Supreme Court confirmation process. The Senate should ensure that nominees are qualified, he said, and leave politics out of it.

The chief justice spoke 10 days before Justice Antonin Scalia died, and he could not have known how timely and telling his comments would turn out to be. They now amount to a stern, if abstract, rebuke to the Republican senators who refuse to hold hearings on President Obama’s nominee, Judge Merrick B. Garland.

Some people are hoping that the chief justice will speak out again, and more directly, addressing the actual nomination of an actual nominee.

It was not long ago that qualified nominees coasted onto the court, Chief Justice Roberts said last month, in a speech at New England Law, a private law school in Boston. In 1986, Justice Scalia was confirmed by a v**e of 98 to 0. In 1993, Justice Ruth Bader Ginsburg was confirmed by a v**e of 96 to 3.

These days, Chief Justice Roberts said, “the process is not functioning very well.”

The last three justices should have sailed through, too, he said. He was referring to Justice Samuel A. Alito Jr., appointed by President George W. Bush, and Justices Sonia Sotomayor and Elena Kagan, appointed by Mr. Obama. Forty-two senators v**ed against Justice Alito, 31 against Justice Sotomayor and 37 against Justice Kagan.

“Look at my more recent colleagues, all extremely well qualified for the court,” Chief Justice Roberts said, “and the v**es were, I think, strictly on party lines for the last three of them, or close to it, and that doesn’t make any sense. That suggests to me that the process is being used for something other than ensuring the qualifications of the nominees.”

If Justices Sotomayor and Kagan were “extremely well qualified for the court,” it is a safe bet that Chief Justice Roberts has a similarly high regard for Judge Garland, with whom he served on the United States Court of Appeals for the District of Columbia Circuit.

“Anytime Judge Garland disagrees, you know you’re in a difficult area,” Chief Justice Roberts said at his own 2005 confirmation hearing.

In last month’s remarks in Boston, the chief justice raised a second concern: Ugly confirmation fights damage the Supreme Court’s legitimacy and authority.

“When you have a sharply political, d******e hearing process, it increases the danger that whoever comes out of it will be viewed in those terms,” he said. “If the Democrats and Republicans have been fighting so fiercely about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process.”

“We don’t work as Democrats or Republicans,” the chief justice said, “and I think it’s a very unfortunate impression the public might get from the confirmation process.”

Chief Justice Roberts was speaking in general terms, of course, and he has not addressed Judge Garland’s nomination or the possibility that the Supreme Court may have just eight members for a year or more. Perhaps he should.

“That would be a John Marshall moment,” said Akhil Amar, a law professor at Yale, referring to the chief justice most responsible for the Supreme Court’s surpassing stature and central role in American life.

A statement from Chief Justice Roberts, who was appointed by Mr. Bush, could demonstrate in a concrete way that the court is not, as he put it in Boston, made up of Democrats and Republicans.


“He’d be crossing party lines, so to speak,” Professor Amar said, “and this would be a third extraordinary moment of John Roberts showing that he is no partisan.” (The first two moments, Professor Amar said, were Chief Justice Roberts’s v**es to sustain the Affordable Care Act, Mr. Obama’s signature legislative achievement.)

Professor Amar added that “nothing prevents the chief justice from expressing his very high regard” for Judge Garland. Indeed, he said, there is recent precedent for judicial endorsements of a Supreme Court nominee. In 2006, seven appeals court judges testified on Justice Alito’s behalf at his confirmation hearings.

Barry Friedman, a law professor at New York University, said Chief Justice Roberts could play a singular role. “It’s the chief justice’s job to guard the institutional integrity of the court,” he said. “It would be appropriate for the chief justice to remind the coordinate branch of government that they are leaving the Supreme Court in an awkward state for a couple of terms if they don’t act.”

A long confirmation fight without so much as a hearing would hurt the Supreme Court by elevating political considerations over the rule of law, said Lori A. Ringhand, a law professor at the University of Georgia and an author of “Supreme Court Confirmation Hearings and Constitutional Change.”

“Law matters to the court, and it is the law that is going to get lost in the media frenzy,” she said. “Interest groups and partisans will dive in with no holds barred, but neither the nominee nor the senators will have the opportunity to talk through important issues at stake in the relatively more disciplined format the confirmation hearings can provide.”

In 2007, speaking to a bar group in Memphis, Justice Scalia reflected on what he said had become “a controversial, bitter confirmation process.”

“I was confirmed 98 to 0,” he said. “I was known as a conservative then, but I was perceived to be an honest person. I couldn’t get 60 v**es today.”

PeterS

In 2007, speaking to a bar group in Memphis, Justice Scalia reflected on what he said had become “a controversial, bitter confirmation process.”

“I was confirmed 98 to 0,” he said. “I was known as a conservative then, but I was perceived to be an honest person. I couldn’t get 60 v**es today"

Well, he certainly knew what he was talking about...

bmac32 Loc: West Florida

Have to agree with that, today God Almighty would receive many rejections, the real process is broken, ideology has wormed it's way in.

PeterS

None bigger than Scalia

Loki Loc: Georgia

Face it; Supreme Court nominations today have less to do with qualifications than with getting activist judges on the bench. Judges who want to make law, rather than rule on it's Constitutionality. We are inundated today with legal "decisions" which are basically judge made law.

PeterS

When you rule on the constitutionality of law are you not in the process of making it too? District of Columbia vs Heller the supreme court ruled that people had the right to self defense. Did that not make law were none had stood before? After all, they ruled that the Second Amendment protects an individual right to possess a firearm unconnected with service in a m*****a, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

I am assuming that you are really pissed off at this ruling because they ruled for something even though no where in the constitution is the right to bear arms connected with self defense.

Yes, we are inundated by decisions made by Judges but have you noticed that when we like them they are constitutionally correct and when we don't then the SOB of a Judge is making laws from the bench, eh Loki...

Loki Loc: Georgia

Read the Federalist Papers, and the comments of the men who actually wrote the Amendment. There is NO Doubt that they considered possessing arms to be an individual right. Every one of the first ten Amendments is an individual right.
Confirming the intent of the authors is not making law, nor is declaring a law to be unConstitutional making law. If anything, it is unmaking one.

PeterS

Read the debate that took place when the the amendment was amended. And if the second was an individual right why bother in putting the first clause in there?

The right to bear arms was pursuant to a "Well Regulated M*****a" which was supposed to take the place of a free standing army. If the second amendment was about an individual right the first clause would never have been added.

Below is the language before ratification.

>>snip<<

The Second Amendment by the select committee on the Bill of Rights, July 28th 1789. AoC pp. 669).

A well regulated m*****a, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.

>>end<<

The second amendment is being read the way those who are most rabid in this country are wanting it read.

And I am not trying to start a debate over the second--the language speaks for itself--but simply to point out the hypocrisy of conservatives who blast Judges who interpret the constitution when they are doing the exact same thing themselves. You are a hypocrite loki, using the constitution to defend your ideology without any concern for what the founders were trying to do when they wrote the amendment, or do you really think 'the right to bear arms for self defense' a clause that is that hard to write...

Loki Loc: Georgia

George Mason, co-author of the Second Amendment

“I ask, Sir, what is the m*****a? It is the whole people. To disarm the people is the best and most effectual way to ens***e them.” – Speech in the Virginia Ratifying Convention, June 14, 1778

“That a well-regulated m*****a, composed of the body of the people, trained to arms, is the proper, natural and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.” – Virginia Declaration of Rights, June 12, 1776

Richard Henry Lee, Anti-Federalist

“A m*****a when properly formed are in fact the people themselves… and include all men capable of bearing arms. . . To preserve liberty it is essential that the whole body of people always possess arms… The mind that aims at a select m*****a, must be influenced by a truly anti-republican principle.” – Letters From the Federal Farmer to the Republican, Letter XVIII, January 25, 1788

“(W)hereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select m*****a, must be influenced by a truly anti-republican principle and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it.” – Federal Farmer, Anti-Federalist Letter, No.18, The Pennsylvania Gazette, February 20, 1788

Samuel Adams

“And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless necessary for the defense of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances; or to subject the people to unreasonable searches and seizures of their persons, papers or possessions.” – Debates of the Massachusetts Convention of February 6, 1788; Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, 1788 (Pierce & Hale, eds., Boston, 1850)

"No free man shall ever be debarred the use of arms."
- Thomas Jefferson, Virginia Constitution, Draft 1, 1776


"The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes.... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."
- Thomas Jefferson, Commonplace Book (quoting 18th century criminologist Cesare Beccaria), 1774-1776


"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the m*****a officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of."
- James Madison, Federalist No. 46, January 29, 1788


"Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined.... The great object is that every man be armed. Everyone who is able might have a gun."
- Patrick Henry, Speech to the Virginia Ratifying Convention, June 5, 1788


"This may be considered as the true palladium of liberty.... The right of self defense is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction."
- St. George Tucker, B****stone's Commentaries on the Laws of England, 1803

"The supposed quietude of a good man allures the ruffian; while on the other hand, arms, like law, discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The balance ofpower is the scale of peace. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside. And while a single nation refuses to lay them down, it is proper that all should keep them up. Horrid mischief would ensue were one-half the world deprived of the use of them; for while avarice and ambition have a place in the heart of man, the weak will become a prey to the strong. The history of every age and nation establishes these t***hs, and facts need but little arguments when they prove themselves."
- Thomas Paine, "Thoughts on Defensive War" in Pennsylvania Magazine, July 1775


"The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms."
- Samuel Adams, Massachusetts Ratifying Convention, 1788



"The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."
- Joseph Story, Commentaries on the Constitution of the United States, 1833



"As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."
- Tench Coxe, Philadelphia Federal Gazette, June 18, 1789



You were saying........?

Defense against illegal government actions is self-defense. The right of self-defense was considered to be unalienable. The language of times past is sometimes misconstrued today. Sometimes deliberately.
If the Founders' m*****a, in part to defend against a tyrannical government, was subject to disarmament by that government, what good would it be?