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Q. Another Konspiracy Korner, after Spring Training has started?
A. Dr. D launches another stub with, for the first time, a skosh of trepidation. Last week's discussion became, at a few moments, rather (1) peevish. Therefore (2) partisan. Therefore ... (3) UNINTERESTING.
The stimulating portions of the conversation come in the attempts to find middle ground, in the resources that each poster can allocate to the Think Tank while wearing a mediator-style hat. If we were just going to grumble that 'this channel shouldn't exist' or 'that candidate's supporters are Troglodytes' we can do that at the dinner table. :- )
But ... yet another 'discussion' broke out in the Shout Box. The Think Tankers are simply irrepressible. So here's a stub. As y'know, we live to serve.
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Q. This seems to be Dr. D's blog, kinda. What does he think of the Senate's brazen statement that they're not going to vote on any Judicial nominees in an election cycle?
A. LEGAL: the Constitution seems to allow this. Barely.
SPIRITUAL: President Obama has regretted the way that the government has become 'more polarized' over the last 7 years. This is a 'natural' ramification of what politicians on both sides have worked towards with such vigor. Careful what you ask for! You might get Sanders vs Trump, and that to decide the fate of the Union.
Bill James has been warning darkly about an impending Civil War. We trust that all SSI Think Tankers recognize that the harsh rhetoric has not been limited to one side or the other. Comedians, politicians, talk show hosts, 98% of them are pushing us towards the goal line here.
LET'S BE STRAIGHT: President Obama and the Senate Judicial Committee weren't going to get anywhere NEAR a mutually agreeable nominee. There isn't any chance that Obama is going to nominate a Justice who is middle-of-the-court and there is none that the Senate will confirm another Ginsburg.
(Correct me if I'm wrong. Would it be feasible for Obama to nominate a judge who might later vote pro-life, pro-marriage, pro-gun rights etc? Someone whose decisions on 'litmus' issues was unpredictable? Dr. D could very well be underestimating the possibility of a mutually-agreeable nominee. If so, he welcomes a correction.)
PRACTICAL: President Obama / Candidate Hillary suffer no consequences from pushing a nominee. Some GOP Senators might face modest voter repercussions - which are trivial in view of the stakes.
That, however, is from a HERD mentality, survival of the species. It surprises Dr. D that some INDIVIDUAL Senator hasn't been issuing pro-nomination statements for the purpose of winning his own race.
POLITICAL: It is totally opaque to me why McConnell chooses to be so unpleasantly confrontational, and so quickly. He could have said, for instance, "Let's take a week and mourn Justice Scalia," and then he could have proceeded toward evaluation of any nominee with the idea "If this person is a dyed-in-the-wool liberal, we'll go through the motions and then reject." Perhaps some SSI Think Tanker -- who is not emotionally engaged on the issue :- ) -- could explain to me why this isn't being done?
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Q. What is originalism? What is textualism?
A. Rick opined that "a living, breathing Constitution is no Constitution at all." Dr. D doesn't know exactly what people mean by "living and breathing," but if it means "We have to deal with unforseen circumstances as we believe best," he applauds it. If "living and breathing" means anything similar to "Those guys in the 18th century have no say in what we do now," he aligns more with Rick.
The U.S. Constitution has done pretty good. For a pretty long time. If there's such a thing as "settled law" at all, one might suspect the Constitution would be it?
At which point we hand back over to James. There are about 30 Q-and-A's up the last two days on the general issue of originalism. Here's one:
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I find it hilarous that so many of your readers are confused by Scalia and consevative jurisprudence in general. They all seem to believe that it's "let's use 18th-century philosophy to interprtet 21st-century problems". When in fact it's "all we have is the actual words on this pieace of paper, and if these words have nothing to do with the issue before us, we shouldn't take this case." That essentially sums up Scalia's opinion on a host of issues he's been villified for.
Asked by: Riceman1974
Answered: 2/24/2016
Exactly. There is a counter-tradition that argues that the meaning of the constitution evolves over time, which became--in Scalia's opinion, and mine, a tradition of reading into the Constitution stuff which simply isn't there. People are certain that they know what the founders WOULD have said about this issue, so they will say it for them.
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As far as Dr. D can see, it ISN'T a question of being fettered by Alexander Hamilton's worldview. In Dr. D's dumbed-down view of the legal world, we face a question of whether we're going to REALLY use this document as the Supreme law of the land, whether we are going to show authentic deference to it.
And, for that matter, to the Declaration of Independence. Mojician can correct me if I'm wrong, but I'd thought that the DOI set forth the moral and philosophical principles on which the U.S. was founded - and was, in that sense, 'superior' to the Constitution.
It could be that the Constitution has outlived its purpose, and that we should switch to another system. I'm warming to giving the dictatorship to whoever steps forth in a farcical aquatic ceremony.
Enjoy,
Jeff
