[excon]

Hello:

Souter retiring.. I hope he picks Ayers.

excon

[spitvenom]

Ex we can lobby together!

[tomder55]

He will replace a lib with a lib .same thing when Ruth Buzzy Ginsberg retires. If he gets to replace Kennedy then there will be no swing vote. If he gets to replace Roberts ,Thomas ,Alito or Scalia it will be a game changer. Thankfully all are well and appear ready to serve throughout Obama's term.

[excon]

Hello tom:

You're right about THIS pick, but Thomas ain't going to make it to the end. Maybe then, he'll pick Ayers.

I think Scalia will go too, and I WANT the Jewish seat back.

excon

[tomder55]

Thomas is 60 and in fine shape. Scalia is older at 73 .

Here are the ages of the leftys on the bench
Stevens 89
Bryer 70
Ginsberg 76 but sick and probably retiring
Souter 69 but already retiring

He will most likely replace some in this pool.

My concern is Kennedy 72... his retiring would leave no apparent swing vote. (not that he's much of one now)

But you know my opinion of the court .Even Scalia gets it wrong sometimes on major decisions. The problem is that they don't answer to anyone once seated .

[spitvenom]

Sheds some light on something for me. Why can a SCJ stay on until they basically retire or die? That seems wrong to me.

[excon]

Hello spit:

ALL federal judges have lifetime tenure. It's done, so as to avoid political pressure being put upon them.

I like it.

excon

[spitvenom]

Good point never thought about it like that.

[ETWolverine]

A non-issue. A lib will replace a lib. The status quo will remain the same. Only this time, the lib will admit to being a lib BEFORE they are confirmed... not like Souter who claimed to be a moderate and then revealed his true colors after being confirmed.

Elliot

[speechlesstx]

If Republicans will stay the GOP course this could be a real thorn in the Dem's side

Specter Defection Will Haunt Dems On Souter Replacement

News is breaking that Supreme Court Justice David Souter is retiring. There will be a fight over his replacement, for sure. And Arlen Specter switching may have given Republicans a trump card to block an unacceptable replacement.

Everyone, including me, has been blogging about how Specter defecting to the Democrats puts the Democrats close to a filibuster proof majority in the Senate, potentially allowing Obama to push through his agenda. And this seems true on most subjects.

But ironically, Specter's defection may give Republicans the ability to filibuster judicial nominees at the Judiciary Committee level, so the nominees never get out of committee.

Huh, you say. Here's the explanation, from Professor Michael Dorf of Cornell Law School at his excellent blog, Dorf on Law, written two days ago before Souter's retirement was in play:

Does Arlen Specter's defection from R to D strengthen the President's hand in Congress? Perhaps overall but not on judicial appointments because breaking (the equivalent of) a filibuster in the Senate Judiciary Committee requires the consent of at least one member of the minority. Before today, Specter was likely to be that one Republican. Now what?

The link in Dorf's post is to Congress Matters, which has the Senate Judiciary Committee rule:

IV. BRINGING A MATTER TO A VOTE

The Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote. If there is objection to bring the matter to a vote without further debate, a roll call vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with ten votes in the affirmative, one of which must be cast by the minority.

Now this is interesting. Specter could allow a nominee out of committee if Specter was a member of the Republican minority, but as part of the majority, he's just another vote. Here are the other Republicans: Orrin Hatch, Chuck Grassley, Jon Kyl, Jeff Sessions, Lindsey Graham, John Cornyn, and Tom Coburn.

The weak link is Lindsey Graham, who was a member of the Gang of 14. If Graham says the course, the Republicans may not be able to stop runaway spending, military retrenchment, and an interrogation witch hunt. But Specter may have handed Republicans a gift.

And how fitting that Joe Biden arranged it all by convincing Specter to switch. Thanks, Joe. I'm sure your boss will appreciate your service as he ponders who he will nominate for the Supreme Court.

Imagine that, Snarlin' Arlen's defection could pose a problem when it comes to judges.

[tomder55]

I'll stand by my opinion about judicial accountability . Short of term limits then the next best thing would be legislative over ride.

Why not ? NOTHING in the Constitution gave the courts final arbiter. That was something seized by the court in Madison v Marbury.

[tomder55]

I don't know which way Specter will go (no surprise there ) . He led the fight against Bork but was a big defender of Justice Thomas . So it is conceivable ,but not likely,that Specter could be a fly in the ointment . Don't count on Dorf's scenario . Lindsey Graham is on the committee. He's more concerned with comity than principle.

[speechlesstx]

Lindsey Graham is on the committee. He's more concerned with comity than principle.

That's why I said "if." The irony would be so delicious, though.

[tomder55]

Here is what Jefferson said about how the Supreme Court evolved

"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches."
Thomas Jefferson to W. H. Torrance

"The Constitution.. . Meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." Thomas Jefferson to Abigail Adams

"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. "Thomas Jefferson to William C. Jarvis

"This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt."Thomas Jefferson to Edward Livingston


...

The Supreme Court today is a black robed oligachy that takes upon itself the role of an ongoing Constitutional Convention amending the Consititution at will and usually by the opinions of 5 of the 9 justices. Many of them plot to transform the nation through the judiciary without the consent of the people or regard to the Constitution... often citing foreign laws in their opinions.

Souter was one of the worse in that regard . Good riddence to him. He sat quitely by while his friend John Sunnunu touted him to President GW Bush as an originalist justice ,knowing that he was in fact an activist judge who would broadly interpret the Constitution as a 'living breathing' document.He deceived his friend ,the man who nominated him,and the nation during the nomination process .At least Ginsberg ,Stevens ,and Breyer were upfront in their beliefs.