#SCt There is very little actual law that applies. Basically that the POTUS has the authority to make the nomination & the Senate has the authority to advise & consent on the nomination. That’s it. See @AndrewCMcCarthy’s good article about this. /1
Beyond that, the process is entirely political. This is contemplated by the Constitution itself. The branches are supposed to work out power struggles between themselves. There is nothing wrong with that. Each branch has moves it can make. Making those moves is constitutional. /2
Elected officials serve during the entirety of their term. Suggesting they should voluntarily not exercise their power at some point during their term is just that - a suggestion. Suggestions can be rejected or ignored. And there’s nothing wrong with doing exactly that. /3
History about how this situation was handled before is interesting. It’s not binding in any way, but it does speak to our political norm. History shows that when faced with this situation in the past, the politicians have acted like politicians & done what favored their party./4
I see no reason why the Republicans shouldn’t nominate & confirm a justice as they have the authority & power to do so. There’s no rule saying you have to, or should, do things the way your opponents want you to do them if you don’t want to. Anyone saying otherwise is a child. /5
To the contrary, a significant reason imo to seat the justice now is the threats of violence & norm breaking (packing the courts, eliminating the Electoral College) from Dems if the Republicans do seat a justice. Threats of this type are unacceptable & must always be rejected. /6
Anyone who tries to coerce behavior by threatening violence or adverse retaliation is unfit for leadership & must be opposed vigorously. They cannot be placated. Rather they must be shown that such threats produce exactly what it is that they don’t want.Repeat until they learn./7
The only question I really have is whether the confirmation vote should be scheduled before or after Nov 3. I’m not sure yet which helps the election efforts of DJT & Republican Senators chances the most. It sounds like this is where McConnell is too for now. /8
It may not make much difference for right of center voters, but I am not sure that the same is true for left of center voters or independents. It bears thinking on for a bit & observing people over the next week or so. /9
A relevant consideration on this, however, is the AZ election. McSally holds the seat currently by appointment, not election. If she loses the election on Nov 3, the Dem (Kelly) can probably force being sworn in before Jan 3. That would change the Senate count to 52R-48D. /10
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Now that we all know what DEI is, I want to talk to the Right of Center about reclaiming the correct meaning of “equity.”
Equity is a legal word. It is contrasted with “law” in legal understanding.
The English common law developed the concept of “equity” as a means of avoiding the harsh and unjust outcomes that a strict application of “the law” sometimes produces.
This would be stuff like a lease where a couple made all payments except the last one was one day late because the husband died & the widow could not access to their account for a few days and the landlord would foreclose on the entire property. Technically allowed; still BS.
Ruling impartially on a case is a judge’s official duty. Taking money to rule for one side is not. But notice that the judge doesn’t benefit from the ruling, but from the bribe. Same for public officials.
Similarly, where a public official does benefit directly and personally from their own official act, esp if that is not disclosed, we’ve deemed that a conflict of interest, which is also private conduct that invalidates the public act.
These private acts are entirely different from cases where a govt official receives no personal financial benefit but gets an indirect non-monetary benefit - popularity, future votes, legacy - and (like everyone else) may benefit from the substantive official act (eg tax cuts.)
The test for whether spoken words are free speech or not is called the Brandenburg test from a SCOTUS case in 1969. It is also called the "imminent lawless action" test. ONLY if the speech rises to that level does it fall outside of the protection of the First Amendment.
In essence the speech must be the kind that does or inexorably is known to lead to "imminent disorder." (This standard is from another SCOTUS case in 1973, Hess.)
This is a very high bar & effectively renders almost all speech that doesn't actually result in violence, protected.
The "speech" in Brandenburg took place at a KKK rally, disparaged Blacks & Jews, suggested "revengance" should be had against the Congress for "suppressing" whites, & explained there would be a "march on Congress" on July 4th of 400,000, followed by marches in FL & MS.
The US govt needs to & is going to spy on foreigners overseas & also here, in our security defense.
FISA or no FISA, that will happen.
The only questions are who “gate keeps” it & how & what the standards are & whether the standards differ inside the US.
There is no question in my mind, at all, that the federal govt has unlimited power to spy on foreigners overseas for our national security intelligence purposes.
None. Zero. Zip. Nada.
Domestic spying- of foreigners here & of US persons here & abroad- present different issues.
And there is an age old problem of whether/if/when/how information obtained from intelligence can be used in the criminal process.
These issues must be debated vigorously & our rights as US persons jealousy guarded.