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View Diary: In off-the-bench spew, Scalia makes clear where he'll come down in ruling on Voters Rights Act (160 comments)

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  •  Obama Can't Replace Anyone nt (2+ / 0-)
    Recommended by:
    TomP, blue aardvark

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Thu Apr 18, 2013 at 12:33:48 PM PDT

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    •  Why not? (3+ / 0-)
      Recommended by:
      blue aardvark, Philby, Matt Z

      I know he can't remove Scalia.  But if Scalia "moves on", Obama can choose a nominee to the "moved on" Scalia.  

    •  I hope you mean that he can't replace anyone (11+ / 0-)

      since every choice would be filibustered (unless it were someone just like Scalia, in the interest of being "fair" by keeping the balance of the court the same, and even then I'm sure there would be 41 votes against the nominee just because it's Obama naming the replacement).  Or are you meaning Obama couldn't replace Scalia with himself?  I would find that very interesting - a President nominating himself to fill a vacancy.  I think it's even been done before, but I'm not going to go look that up.  That would leave Joe Biden as President, which might be interesting and would throw the 2016 election into a turmoil.

      •  I like ^ because it makes me go 'bwahahaha take (3+ / 0-)
        Recommended by:
        mmacdDE, ColoTim, ozsea1

        that Scaliawag, Fox Fiends, Breitbutt, et al!'  Oh the amusement that would be created by the dilemma of filibustering and having Obama stay on as president or meekly accepting and he ends up a justice. Until then, well, I suppose I'll just go back to waiting for the Tea Party to start demanding Real American grown tea.

        When life gives you wingnuts, make wingnut butter!

        by antirove on Thu Apr 18, 2013 at 01:14:29 PM PDT

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      •  I think he can. (7+ / 0-)

        The president's nominating power is, so far as I know, limited only by the Constitution's requirements for the office he's filling, plus statutory limits for offices created by Congress. (This is why the SecDef can't have been in the military sooner than 10 years ago... Congress added that rule when they created the Department of Defense.)

        The Constution does not list "not currently serving as President" as a qualificaton for Supreme Court Justices. In fact, there aren't any at all. So, yes, he could nominate himself. It's not even clear that he would have resign... all the Constitution says is that the President can't get a paycheck from any other part of the government, or from the government of any state. So if he nominated himself and got confirmed, he could keep being president as long as he didn't get paid as a justice.

        --Shannon

        "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
        "Dissent is patriotic. Blind obedience is treason." --me

        by Leftie Gunner on Thu Apr 18, 2013 at 01:49:35 PM PDT

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      •  President Nominating Himself for Chief Justice (3+ / 0-)
        Recommended by:
        ColoTim, Calamity Jean, ozsea1

        To the best of my knowledge no President has ever nominated himself to the Supreme Court.  I assume you're likely referring to Pres. and Chief Justice Taft who is the only man to have been both President and Chief Justice of the United States.  He didn't nominate himself to the Court though.  Pres. Harding nominated him to the Court, and subsequently Taft became Chief Justice of the United States in 1921, eight years after he left the White House.

        Leftie Gunner is likely correct about the President being able to nominate himself.  I say likely not because I believe the analysis to be wrong, but rather because there really isn't much historical discussion or precedent relating to that specific issue.  But as Leftie Gunner points out, traditionally, the President's authority to nominate someone is extremely broad, and the Constitutional requirements to hold the office of Justice are non-existent.

        The Constitution does prohibit members of Congress from serving simultaneously as a member of Congress and a member of the Executive or Judicial branches, and vice versa. (Ineligibility Clause- Art. I Sec. 6 Clause 2).  

        But this prohibition doesn't apply to members of the Executive or Judicial branches.  This is what allowed Chief Justice John Jay to negotiate the Jay Treaty while Chief Justice, and allowed Chief Justice Earl Warren to chair the Warren Commission.

        Regarding the same person serving in both roles simultaneously, I happen to think that a strong argument could be made that since the President can't accept pay from any other office of the United States (Art. II, Section 1, Clause 7), simultaneous service in both offices would violate the prohibition on decreasing judicial salaries during time in office (Art. III, Sec. 1).  This whole topic sounds like something my Con Law prof would have put on our final exam since there are arguments on both sides.

        From a personal standpoint, I think that even if it were permissible to be President and Chief Justice simultaneously, it would be a terrible idea.  As a lawyer it strikes me as a blatant violation of our system of checks and balances and a violation of fundamental legal ethics.  While I know that the Judicial Conference's Code of Conduct doesn't apply to Supreme Court Justices (an entirely separate discussion), think of how many cases would be tainted by the appearance of bias if the President/Chief Justice didn't recuse themself.  Not that this appearance of impropriety ever stops Scalia or Thomas of course, but this is a hypothetical we're talking about here.

        If there must be trouble, let it be in my day, that my child may have peace.- THOMAS PAINE

        by Crazycab214 on Thu Apr 18, 2013 at 03:06:22 PM PDT

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        •  Thanks. I think the Taft situation was what (4+ / 0-)
          Recommended by:
          ichibon, Calamity Jean, ozsea1, steveannie

          I was fuzzily remembering.

          I used to think it would be a great deal if President Obama were to make a deal with Joe Biden at some point where he would resign and Joe Biden would then appoint him to the Supreme Court.

          Now, however, given his resistance to prosecute anyone responsible for torture, war crimes, banking fraud and many situations while his Justice Department goes hard after Whistleblowers and deporting people in this country illegally and he continues to maintain drone strikes, and probably still maintains the violations of privacy from the Patriot Act instead of challenging them in court - well, I no longer wish to have him on the USSC on a lifetime appointment.  Sure, maybe that would release him from having to grovel for approval from Republicans and fat Wall Street banksters, but he could do so now and the country would support him.  Instead, he continues to push policies that hurt the country and I think he would continue to side with the 1% in his judgements on the court.

          Pure speculation at this point.

        •  Not to mention (2+ / 0-)
          Recommended by:
          Crazycab214, ColoTim

          ... the fact that both jobs actually require a lot of work to be performed responsibly. One person could never handle them both in terms of sheer volume of work.

          "Unseen, in the background, Fate was quietly slipping the lead into the boxing glove." P.G. Wodehouse

          by gsbadj on Thu Apr 18, 2013 at 05:19:08 PM PDT

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        •  Wow... I made a legal argument and got props (1+ / 0-)
          Recommended by:
          Crazycab214

          From a real lawyer!

          (I are not a lawyer)

          Yea me!!

          --Shannon

          "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
          "Dissent is patriotic. Blind obedience is treason." --me

          by Leftie Gunner on Thu Apr 18, 2013 at 07:15:07 PM PDT

          [ Parent ]

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