Seth Barrett Tillman: The Supreme Court Temptation

Making a nomination to the Supreme Court to fill the Scalia seat is easy, and it will permit Trump to control the news cycle. Trump will be tempted to make this his first substantial order of business, but it is a temptation to which the future president ought not succumb, even if he risks losing some political popularity while delaying the eventual nomination.

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10 thoughts on “Seth Barrett Tillman: <i>The Supreme Court Temptation</i>”

  1. I agree, keep it an even number as long as possible, hopefully permanently. A 4-4 tie is a powerful statement in and of itself. It signifies the issue is too critical to be decided by the court.

  2. >this election was not about the past: it was not about abortion, affirmative action, gun rights, states rights, etc, etc.
    Oh yes it freaking was. It was about LGBT’s disgusting fetishes being rammed down our throats 24/7 and disenfranchisement through disarmament and illegal immigration and — oh! all the corrosive BS that the deconstructionist Left has injected our society and our institutions and fouled our airwaves with since well before Chocolate Nixon got elected.

    >That past is dead.
    You wish, you puling little worm. We have a lot of muck to rake out of the Augean stables the SJW Brownshirts have turned our country into. At a civilized minimum we need to be allowed to salvage something of decency and normalcy and sensible government at the local level, and if you don’t like it here, take the medicine you’ve been pushing at us for the past decade and FREAKING MOVE.

    Pack the Court with Scalia clones. With a vengeance. Do it now.

  3. Too much work to do to delay starting. To much at stake to not do what everyone knows must get done. Actions speak louder than words. Forget Scalia clones; find Thomas clones.

    Trump must make no attempt to avoid the absolutely certain forthcoming attempt to portray his SCOTUS choice as unbalanced, vindictive, or whatever. Instead, he must completely ignore that attempt, realizing it as a delaying action of those who don’t want to face their having lost the election and who, as Phil intimates, realize at stake is a no-compromise culture war. Those opponents, TWANLOC, will hate him anyway. Trump must use his office to accomplish what he promised. May he demonstrate that his opponents cannot reduce him to bloviation because they witness the reality of his actions. Let them deal with results rather than words.

  4. He shouldn’t name a name, he should do the GOOD thing which should change the standard for nomination. Do not name ONE person to the court, submit a LIST, and allow the committee’s to review those names, and then vet them openly and then return their ADVISED choices to the President, from which he chooses the one he most favors.

    Making the process a PROCESS rather than a rally point would IMMEDIATELY improve the civic process, and show what the process is actually supposed to be about. THAT I think would change things for the better over all.

    As for waiting to kiss some ass or play some number game, I say nay. I like the idea of an even numbered court, but first the court must be returned to what the legacy of the court has been, and first order is to restore that. After, I suggest adding a Justice, in fact, I suggested making the court an even 12, but that it be expanded at a rate of 1 per 3 years, that way it won’t look like a court packing, but a timed expansion that doesn’t make it a one party effort, like Roosevelt wanted.

    Overall, this link is just bad advice.

  5. As was stated even numbers can split in a tie. That leaves bad lower court rulings in place or conflicting lower court rulings applying to different jurisdictions. The 9th and the DC appeals courts are the current source of bad decisions that will be left standing until we get a clear majority. That needs to start as soon as possible with a 5-4 beginning. Trump has some implied bargaining power to start based on his HUGE victory. My advice is get a good one nominated and confirmed before making nice with the progressives in both parties on anything. Having Republicans in the majority in each house means almost nothing given who they are unless they are kept under popular pressure. A great win on a SC nomination would serve to energize that type of motivation. Not to say cleaning out the executive orders glut (bonfire in the Rose Garden) and other items shouldn’t be done concurrently. Any legislation will take time, much more than greasing the skids for a court nominee. Start work on those things, but get a quick big win to show fidelity and effectiveness.

    I don’t know exactly what restoring the court to its legacy means or how you can make any changes in how the court functions except by seating judges who will behave differently that they have since at least Warren. The federal courts are eaten up with progs who will be continuing to issue any number of rulings contrary to the original intent of the Constitution. It will be a long time before they are replaced and only the SC can keep them in check.


  6. A lot of the problems that were coming down the pike from the appeals court will be resolved simply because Trump was elected

    President Obama’s administration has been defined by executive actions issued in response to congressional gridlock. At every stage, conservatives challenged those actions as violations of the separation of powers, and with the election of Donald J. Trump, each of them can now easily be rescinded. Though the Supreme Court will expand with a Trump nominee to replace Justice Scalia, its docket will get a lot smaller. What Obama’s pen-and-phone giveth, Trump’s Sharpie-and-Twitter will taketh away.

    I know everybody is anxious to get this show on the road and shove it all right back in their faces. However, we need lasting reform that will transcend the actions of one man or the other. For one thing, the ninth circus needs to be split up into at least three smaller circuits. It’s a monster.

    Another idea – change jurisdictions to be based more on specializations rather than geography like the Federal Circuit. That will help reduce the power of a few people in one small corner of the world influencing the rest of our lives.

    Or maybe loosen jurisdictions altogether to encourage more circuit splits. Everybody knows competition is good for business. It would be great for courts too if justices have to be concerned about how their peers in other courts will react. Never underestimate the beneficial power of gridlock.

  7. Given the current 8, it can not be assumed to be 4-4 and has already proved to be 5-3 in important decisions. Take out Scalia’s vote over the past eight years and see how many of the toxic 5-4’s would have been 5-3 and how many refusals to consider important toxic appeal courts’ decisions resulted from those five who upheld ACA, etc. It is only 4-4 on occasion and some of those just result in punting it back to an appeals ruling that was already toxic. Good cover for the fifth of the five.

    We may not like the intrusion of the SCOTUS into legislative and executive judgements, but that horse is currently free and could only be returned to the barn by a sustained clearly original-intent court majority. The activist momentum can only be slowed in the immediate term by getting a solid judge on board. If Trump can not get one on his list confirmed soon after taking office, he won’t get any of his replacements confirmed.

    An end to the filibuster is a prerequisite to any meaningful action by the senate on this or any meaningful issue.


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