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Drudge Retort: The Other Side of the News
Wednesday, June 09, 2021

Richard L. Hasen: The New York Times reported last month that Supreme Court Justice Stephen Breyer, age 82, has been resisting calls for his retirement from fellow progressives. The reason?

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That this is even coming up is a result of a massive Obama screwup.

Moscow Mitch could have been overridden on Garland. And Biden would have been the one to do it. As vice president, he was president of the senate. He could have walked in, taken control, and called the vote.

Now, this year's reality is that Moscow Mitch stands a near-zero chance of ever being majority leader again. PA and WI are very likely to flip D, there's a good chance NC will too, and Warnock will almost certainly hold GA given his current approval rating.

But if it does, Kamala can still bring a nom to the floor, just like Biden could have in 2016 if Obama hadn't been a wimp.

Break with tradition? Sure. Legal? Absolutely.

#1 | Posted by DarkVader at 2021-06-09 06:52 PM | Reply | Newsworthy 3

#1 - I understood why Obama didn't want to test the limits of his power and trample on the Senate's turf, he got enough flack for stupid things like wearing a tan suit and eating fancy mustard, can you imagine the screaming and gnashing of teeth about that stupid "N" word if he had forced a vote in the Senate? Heads all over Reichwing media would have exploded. I agree with your point, and I wish President Obama had been more forceful, but he was already battling a high 40's approval rating, and could not afford to lose any more swing voters. Now Biden, being teflon right now could get away with something like that. It seems like everything he does is polling well with everybody but Joe Manchin and the GQP on Capitol Hill. I fully expect that when he gets back from Europe, Uncle Joe will start pushing his own members harder to get his agenda moving. I think he believes he's shown Manchin during these infrastructure negotiations that the GQP is intractable, they're simply trying to run out the clock until the midterms, and have no intent to negotiate in good faith or even vote for anything they negotiate. POTUS has learned from the Obama years, and now it's time get it done with reconciliation.

#2 | Posted by _Gunslinger_ at 2021-06-09 08:03 PM | Reply | Newsworthy 3

That said, I wish Breyer would retire, and that the Biden Administration would start sending names of well-qualified, left-leaning judges to Schumer so they can start pushing them through to votes. The Dems have less than two years to balance the courts, after that, although I too believe the Dems stand a good chance of holding onto the Senate, nobody can be positive, and we know McTurtle would hold up Biden's judges for six years if he had to so Dems can't undo Moscow Mitch and Dotard's wicked legacy. Tick tock Dems!

#3 | Posted by _Gunslinger_ at 2021-06-09 08:33 PM | Reply | Newsworthy 2

The Court is and will remain highly partisan no matter what Breyer does. All he can do is hand more control to Rs.

#4 | Posted by SomebodyElse at 2021-06-09 09:36 PM | Reply

Breyer should retire for the good of the nation but apparently he enjoys his position of power too much to give it up. I am rapidly losing respect for him. He needs to retire and allow Joe Biden to appoint a younger replacement who could serve to defend the rights of Americans for decades. In truth, I think the SC lost all credibility in Marbury vs. Madison. It was never intended to be the venue to decide about the constitutionality of laws enacted by Congress, it was supposed to be the highest court to decide on cases brought before it. It has polluted our system ever since. When they wrongly decided to throw out most of the Voting Rights Act of 1965 I lost all respect for that court and just look at the efforts of Republicans since to suppress voting and slant elections in favor of Republicans.

#5 | Posted by danni at 2021-06-10 09:14 AM | Reply

Breyer will pull an RBG and we will be down 7-2. We are screwed.

#6 | Posted by byrdman at 2021-06-10 09:46 AM | Reply

[The Supreme Court] was never intended to be the venue to decide about the constitutionality of laws enacted by Congress, ...

Some fifty odd signers of the Constitution were either practicing lawyers or, at least, educated in law. They knew exactly what the words "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts ..." and "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ..." But you, and your arrogant ignorance, just "know" they didn't. Here, learn something.

Although it was first asserted in Marbury v. Madison727 to strike down an act of Congress as inconsistent with the Constitution, judicial review did not spring full-blown from the brain of Chief Justice Marshall. The concept had been long known, having been utilized in a much more limited form by Privy Council review of colonial legislation and its validity under the colonial charters,728 and there were several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions.729

Practically all of the framers who expressed an opinion on the issue in the Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation,730 and prior to Marbury the power seems very generally to have been assumed to exist by the Justices themselves.731 In enacting the Judiciary Act of 1789, Congress explicitly provided for the exercise of the power,732 and in other debates questions of constitutionality and of judicial review were prominent.733 Nonetheless, although judicial review is consistent with several provisions of the Constitution and the argument for its existence may be derived from them, these provisions do not compel the conclusion that the Framers intended judicial review nor that it must exist. It was Chief Justice Marshall's achievement that, in doubtful circumstances and an awkward position, he carried the day for the device, which, though questioned, has expanded and become solidified at the core of constitutional jurisprudence.

www.law.cornell.edu

[... the Supreme Court] was supposed to be the highest court to decide on cases brought before it.

Given your view, just what, exactly, is an Article III court supposed to do with a proper case brought before it that asserts that an act of Congress is not within the powers granted Congress under Article I? What, Danni, is the court to do? What was Chief Justice Marshall to do? Throw up his hands and say I can't decide that, ya'll go figure it out. I suggest footnote 730 before you mouth off.

#7 | Posted by et_al at 2021-06-10 07:01 PM | Reply | Newsworthy 1

"Given your view, just what, exactly, is an Article III court supposed to do with a proper case brought before it that asserts that an act of Congress is not within the powers granted Congress under Article I?"

Good question and my answer is this, the House of Representatives was supposed to be the deciding body on such issues not the Supreme Court. Show me where, in the Constitution, that the Supreme Court was given the authority to strike down laws enacted by Congress. That right was taken in Marbury vs. Madison and it has served to enable them to rule as Kings ever since, negating the power of the People's House which was definitely not the intention of the Founders.
Even if I am mistaken, it is still wrong to let people, appointed not elected, to negate the will of the people. It is an abomination and we need to correct it. Look at our democracy today. Money over powers the people all the time. That is because of SC decisions that do not improve democracy but harm it in many ways.
I am certainly not alone in this belief. It is well founded by just reading the Constitution. Show me the article within that document that grants a small number of appointees, who have lifetime appointments, to overrule the elected representatives of our nation.
I respect many of your opinions but not that one. We formed our original government as a democracy and allowing a small court to overrule our elected representatives has caused horrible results throughout our history. It's time to put our nation back under the rule of the people as it was intended by the founders of this nation.
We do not need to honor this tradition which was never the intention of the founding fathers. Because that is all it is, a tradition, not supported by any words in the Constitution. It is a power they assumed for themselves that the authors of the Constitution never intended them to have.

#8 | Posted by danni at 2021-06-11 06:19 AM | Reply

"What, Danni, is the court to do? What was Chief Justice Marshall to do? Throw up his hands and say I can't decide that, ya'll go figure it out. I suggest footnote 730 before you mouth off."

They should look at the case brought before it an adjudicate it according to the laws passed by Congress. Pretty simple really. They should not have the power to decide the validity of those laws but simply to decide cases on the laws of our nation. The Supreme Court is not a superior authority over our Congress, no, they were intended to adjudicate cases according to the laws passed by our Congress. Not a perfect system but it is a democratic system, allowing Judicial review is not a democratic process and has been wrong since Marbury vs. Madison. Why even have a Congress if 9 people appointed for life can overrule anything that Congress does?
Folks like you pretend to believe in democracy but you seem to think some lifetime appointees should have the power to overrule anything that Congress does.
Definitely not the actual intention of the Founders. The whole belief in Judicial Review is just b*****t.
The United States was created to get rid of the power of royalty and the SC is just a vessel that has tried to continue such power via life time appointments. Today, we are faced with a very slanted court that can decide on all sorts of issues but it is only slanted because of the duplicity of the Republican Majority Leader several years ago so the decisions made are obviously politically motivated. Pretend otherwise and you will reveal you obvious political bias but it won't serve to prove your case that the Founders ever intended the court to have such powers, more likely it undermines your argument.
According to your view, if the one party has the majority and packs the court then they have the power to negate the efforts of the Congress previously, such as in the Voting Rights Act of 1965 and allow all sorts of voter suppression laws and prevent the other side from passing new laws to prevent voter suppression.
The court, in your view, is really just another house of Congress with the conservative ability to prevent even a majority in Congress from changing anything.
That really is the crux of your argument and the Founders would have disagreed with you completely.
The basis of our democracy is Congress, even more precisely, the House of Representatives which is the only body that actually reflects the will of the majority in this country.
To pretend that a small body of lifetime appointees was intended to have more power than the House of Representatives is not just ridiculous but totally undemocratic.
The SC was never intended to have such power.

#9 | Posted by danni at 2021-06-11 06:37 AM | Reply

Every Legal Office in the land should have an age cap of 70 or 75.
Period. No one older (despite their best [or worst] intentions)
should be allowed to serve.

Call it the "Get Rid of the Old Fuddy Duddy Dullards" Clause.

(cue some old fart complaining now about how this violates
his rights to 'lord over the younger generations').

Well I've seen the job you Old Farts have done,
and you don't have much to brag about...

#10 | Posted by earthmuse at 2021-06-11 07:31 AM | Reply

#'s 8 and 9

Marbury involved a dispute between the President and Congress. How does that get resolved? What if both parties refuse to accede to others view? What happens? Does that dispute of Constitutional power continue to this day? Do you really want such a dispute "resolved" by Pelosi, McConnell and Trump? The better choice is invoking the "judicial power of the United States" to adjudicate the dispute "arising under this Constitution, the laws of the United States."

Show me where, in the Constitution, that the Supreme Court was given the authority to strike down laws enacted by Congress.

You assume the Constitution is a comprehensive playbook on governance. It most assuredly is not. It is an outline for forming a government not a comprehensive playbook for governance. As the article I linked demonstrates, the Founders knew full well what the "judicial power" could do with cases "arising under this Constitution, the laws of the United States." That knowledge was demonstrated in Marbury. Congress enacted a statute that 1) was not within the powers granted under Article I and 2) purported to alter the "judicial power" set forth in Article III. Chief Justice Marshall did the right thing for the long terms health and welfare of the country.

#11 | Posted by et_al at 2021-06-11 07:11 PM | Reply

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