In the race for control of the Senate, the elephant and the donkey are neck and neck in the home stretch. As of 7:45 am PST, Nate Silver has the probability at 50.1 to 49.9.
There is something to be said for having the Senate and the White House in control of opposing parties. We will get more moderate judges that way. Yet due to a quirk in the U.S. Constitution, there is a decent chance that His Superfluous Majesty will be anything but superfluous for the next two years and will actually determine control the other way.
There is something to be said for having the Senate and the White House in control of opposing parties. We will get more moderate judges that way. Yet due to a quirk in the U.S. Constitution, there is a decent chance that His Superfluous Majesty will be anything but superfluous for the next two years and will actually determine control the other way.
Silver's bell-shaped probability curve, about half-way down the page, skews slightly to the Republicans in actual Senate seats. He gives the GOP a 44.3% shot at having an absolute majority of Senators to the Democrats' 39.4%. That leaves a 16.2% probability of a 50-50 split. Given his 64-36 estimate of the presidential race, that yields about a 10% chance that Vice President Kaine breaks the tie for the Democrats and about a 6% that Vice President Pence breaks the tie for the Republicans.
America's Founding Fathers established a government with a greater degree of separation of powers than Britain had at the time, but they didn't go the whole hog. Even though the Vice President is placed in the executive branch by the Constitution, his only constitutional authority and duty is to be President of the Senate with a tie-breaking vote.
The Veep has so little to do that Benjamin Franklin suggested he be titled His Superfluous Majesty. John Nance Garner, FDR's first Veep, expressed it more colorfully by saying that the office wasn't worth a pitcher of warm spit. This time could be different.
In my view, having the Dems in control of both is a far greater danger than having the Reps in control of both. We in the Far West saw during the Carter Administration how a court can be disastrously changed for an entire generation in a single term. It was Jimmy Carter who made the Ninth Circuit into the Ninth Circus, and a few of his appointees continue to wreak injustice on us to this day.
America's Founding Fathers established a government with a greater degree of separation of powers than Britain had at the time, but they didn't go the whole hog. Even though the Vice President is placed in the executive branch by the Constitution, his only constitutional authority and duty is to be President of the Senate with a tie-breaking vote.
The Veep has so little to do that Benjamin Franklin suggested he be titled His Superfluous Majesty. John Nance Garner, FDR's first Veep, expressed it more colorfully by saying that the office wasn't worth a pitcher of warm spit. This time could be different.
In my view, having the Dems in control of both is a far greater danger than having the Reps in control of both. We in the Far West saw during the Carter Administration how a court can be disastrously changed for an entire generation in a single term. It was Jimmy Carter who made the Ninth Circuit into the Ninth Circus, and a few of his appointees continue to wreak injustice on us to this day.
If HRC is POTUS and GOP retains control of the Senate, you think we will get "more moderate judges" like _________ (Kennedy?).
Who would you classify as "moderate"?
We would be less likely to get judges like Carter-appointee to the Ninth Harry Pregerson, who said at his confirmation hearing that he would vote for his own view even when the law pointed the other way and was confirmed anyway.
It would also slow down the appointments too.
We know who the Leftists are. But who would you classify as moderate?
I decline to make a list.
The purpose of the comments section is for commenters to state their views. If you want to post a list here, feel free.
I understand. I only asked because I read your post to suggest that getting more moderates on the bench was a good thing. So I thought you had some examples.
FWIW, I believe the term "moderate judge" is something of a misnomer because sometimes they will be to the left and sometimes to the right, depending on the issue at hand.
I think Justice Kennedy is an example as he votes with the so-called liberal justices on some highly controversial issues. But he also votes with the conservative block on issues that are very important to liberals.
From what I can tell, Judge Garland would also fit the definition of "moderate," if Justice Kennedy is the template.
Like you (?), I think it would be a good thing to have a more "moderate" judiciary. If HRC as POTUS with. GOP Senate helps bro that about, I like that result.
Whether more moderate is good or bad is partly in the eye of the beholder, partly a function of what the alternative is, and partly a function of where we stand in terms of dangers to the Constitution.
Judge Garland is a good example of a nominee who is more moderate than President Obama would have appointed if his own party had control of the Senate. In my opinion, he would make a better justice than those who would have been nominated otherwise.
However, the situation is not symmetrical because there is presently little danger to the Constitution from the conservative direction. Some academics are having a jolly good time talking about bringing back Hammer v. Dagenhart, but there isn't a snowball's chance in hell of that happening.
Of course, speaking in terms of liberal, conservative, and moderate is an oversimplification. The late Justice Scalia did not hesitate to vote for criminal defendants (generally considered the "liberal" side) when he thought the Constitution as originally understood so required. That includes the Apprendi and Crawford lines and substantive Fourth Amendment cases as distinguished from exclusionary rule cases.
I would like a judiciary that upholds and enforces the real Constitution, however the chips may fall politically.
For whatever it's worth:
"Moderates" would include O'Connor, Potter Stewart and Byron White.
Better than William O. Douglas and Abe Fortas, for sure, but we can and should do better still.
I prefer justices who believe in fidelity to the text of the Constitution, understand the separation of powers and the primacy of democratic self government, and prefer a dead Constitution and a live Congress to the other way around. Examples: Scalia, Thomas, Alito.