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Evil Fluffy posted:A law specifically passed to prevent Romney from replacing Kerry if he'd won in 2004 I believe. They ran Martha Coakley, that's reason enough. Guess who the current Republican governor beat for the seat
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Jun 10, 2016 17:34
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I'd forgotten there's a special election to replace the interim Senator, but I was technically correct 
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Jun 10, 2016 17:35
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Antti posted:I'd forgotten there's a special election to replace the interim Senator, but I was technically correct They have run two actually. One for Kennedy and one for Kerry.
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Jun 10, 2016 17:38
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exploding mummy posted:They have run two actually. More than two --- there were also primaries involved... (And then more primaries and a special election to replace Markey...)
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Jun 10, 2016 17:56
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VitalSigns posted:What does this interpretation mean for state laws regulating concealed carry, like for example prohibitions on carrying in bars, courtrooms, and such. Deteriorata posted:Well, I can agree with the general principle. A convicted prisoner could make up continuous false claims of exoneration, and requiring a new trial for every one becomes an abuse of the system. Dead Reckoning fucked around with this message at 18:58 on Jun 10, 2016 |
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Jun 10, 2016 18:05
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Discendo Vox posted:The actual quote from Scalia, in context, is highly defensible. He was concurring with the majority on the case, and it was 6-3. The actual quote from that case was arguably defensible, but then Scalia went and confirmed that the detractors were correct when he dissented in In re Davis and whipped this out: quote:This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. http://www.scotusblog.com/wp-content/uploads/2009/08/Scalia-opin-Davis.pdf (the italics are in the original) Scalia did not argue that a mere claim of innocence is enough to postpone an execution. He dissented to say that even if you convince a court you are actually innocent there is no constitutional problem with executing you. evilweasel fucked around with this message at 18:13 on Jun 10, 2016 |
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Jun 10, 2016 18:10
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Dead Reckoning posted:I think it's also defensible in the larger sense: the role of the courts is to give people due process in accordance with the law, not to find absolute truth. It's pretty uncontroversial that someone who is factually guilty, but who was found not guilty by a jury, or whose conviction was overturned due to prosecutor errors, does not have to be subjected to retrial. The reverse is not true. The Constitution specifically provides that you can't be prosecuted for a crime you're acquitted of even if it's later determined you were guilty. The Constitution does not specifically provide (and sane people do not believe) that the Constitution forbids reversing a guilty sentence once you know that the convicted party is innocent. Sane people realize the Constitution forbids punishing someone who is actually innocent, regardless of the hoops that have been properly jumped through, once you know they're innocent. evilweasel fucked around with this message at 18:20 on Jun 10, 2016 |
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Jun 10, 2016 18:16
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I'm mindful of the practicality issues but it still sucks to know stuff like scientific methods can advance while you're headed to the proverbial gallows but your right to appeal is finite.
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Jun 10, 2016 18:33
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evilweasel posted:The actual quote from that case was arguably defensible, but then Scalia went and confirmed that the detractors were correct when he dissented in In re Davis and whipped this out: Again, you're stripping it of context. There's an actual mechanism of appeal available, and Davis wasn't able to meet its standards. "convincing a court" (in the case, an irrelevant court) should not be sufficient. quote:JUSTICE STEVENS says that we need not be deterred by the limitations that Congress has placed on federal courts’ authority to issue the writ, because we cannot rule out the possibility that the District Court might find those limitations unconstitutional as applied to actual- innocence claims. Ante, at 2 (concurring opinion). (This is not a possibility that Davis has raised, but one that JUSTICE STEVENS has imagined.) But acknowledging that possibility would make a nullity of §2254(d)(1). There is no sound basis for distinguishing an actual-innocence claim from any other claim that is alleged to have produced a wrongful conviction. If the District Court here can ignore §2254(d)(1) on the theory that otherwise Davis’s actual innocence claim would (unconstitutionally) go unaddressed, the same possibility would exist for any claim going beyond “clearly established Federal law.” evilweasel posted:The reverse is not true. The Constitution specifically provides that you can't be prosecuted for a crime you're acquitted of even if it's later determined you were guilty. The Constitution does not specifically provide (and sane people do not believe) that the Constitution forbids reversing a guilty sentence once you know that the convicted party is innocent. Sane people realize the Constitution forbids punishing someone who is actually innocent, regardless of the hoops that have been properly jumped through, once you know they're innocent. The "you know" is doing all the work here, and it's not really a valid approach to evidence or appeals.
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Jun 10, 2016 18:42
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evilweasel posted:Here, there's a question what "bear arms" means. What the 9th Circuit is doing is adopting Stevens' interpretation: that (the individual/collective right issue aside) that the 2nd Amendment specifically says that it's about a militia, not personal self-defense. That's helpful here because part of the definition of a lawful combatant is carrying arms openly. So under this interpretation there's a possible argument that open carry is mandated by the Constitution (which I'd vehemently disagree with, but that's an issue for another thread going to the "well-regulated" part), there's no room for an argument that the 2nd bars states from restricting the concealed carrying of weapons. Your post goes to the rather inherent dishonesty in the position, specifically that you feel all carry should be illegal, but find it more convenient to argue against open and concealed individually (and your argument against open carry seems to rest on a hilariously tenuous "it's totally a right for the militia" argument) because having to argue that people have no right to bear arms outside their homes under the 2nd is ridiculous. Dead Reckoning fucked around with this message at 07:59 on Jun 12, 2016 |
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Jun 12, 2016 07:50
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Dead Reckoning posted:You're right about the second part, not the first. The decision was a narrow one that the 2nd doesn't enshrine a right to concealed carry. The justices implied that there may be a right to open carry, but that question wasn't before them, so they declined to address it. They also declined to address the fact that California completely bans open carry, effectively banning carry outside the home except on the whims of the county sheriff (and raising the rather obvious question of what the heck "bear arms" means if you have neither a right to carry weapons openly nor concealed) because the case did not address that question directly. In the narrow sense, I can't get too mad, because on the merits it's a defensible decision, and regulation of concealed carry on a may issue basis has a fairly extensive legal history, but in the larger sense, punting on the effects of the decision under California's laws, until such time as someone is willing to be an open carry test case is a cop-out. (Especially given that the state has argued in the past that it could ban open carry because concealed was still an option.) It would be extremely inappropriate, regardless of what your views are on guns, for a court to randomly invalidate open carry laws when they were not at all at issue in the case. It's not a cop-out, it is a constitutional requirement that a court decide only actual cases and controversies, they were entirely correct to note it was a question they were not deciding just to make it clear. And nobody cares about your paranoia that my posts on the subject are actually a conspiracy instead of sticking to the actual legal issue for this thread to avoid idiots like you who cant resist whining about your guns from ruining the thread.
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Jun 12, 2016 14:18
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If a Clinton presidency ends up nominating somebody other than Garland, is there some plum position they can offer him to make up for jerking him around?
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Jun 12, 2016 15:47
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Bubbacub posted:If a Clinton presidency ends up nominating somebody other than Garland, is there some plum position they can offer him to make up for jerking him around? He's already reached the apex of the non-SCOTUS federal judiciary .
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Jun 12, 2016 15:49
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Bubbacub posted:If a Clinton presidency ends up nominating somebody other than Garland, is there some plum position they can offer him to make up for jerking him around? Well, he'll already be an associate justice, so he should be good. Or do you actually think Republicans aren't going to confirm him with all speed the second Hillary wins in November? They'd much rather get Garland than taking the chance Hillary chooses Scalia's replacement.
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Jun 12, 2016 16:02
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The people deserve a Supreme Court Justice nominated by a president with the same party as the party that the people chose to sit in the House. Holding a hearing on Clinton's nominee would be a perversion of justice.
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Jun 12, 2016 16:25
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Bubbacub posted:If a Clinton presidency ends up nominating somebody other than Garland, is there some plum position they can offer him to make up for jerking him around? Attorney General, perhaps, but that would be a non-judicial position and not necessarily a promotion. If he wants to stay a judge, he's about topped out.
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Jun 12, 2016 16:54
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Bubbacub posted:If a Clinton presidency ends up nominating somebody other than Garland, is there some plum position they can offer him to make up for jerking him around? IANAL but for a man in his position I don't think that any position in the government is a step up from his current one besides the SCOTUS. Leaving to be AG or some other non-judicial role would be unlikely and honestly it'd be a step down from his current role. If Hillary wins in November they're almost certain to confirm him since stonewalling for 4 years might be more than even they can pull off, especially if it'd piss off moderates enough to make the midterms not be their usual GOP landslide. If she wins and the Democrats take the senate they are absolutely going to confirm him as fast as possible because everyone knows that a Democrat majority senate is going to kill the filibuster as soon as the GOP uses it against a nominee for pretty much anything. Plus the GOP will be afraid that Hilary with a Dem senate means she'll appoint the most ultra-left justice possible. She probably wouldn't, but it'd be cool if she did.
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Jun 12, 2016 17:23
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Deteriorata posted:Attorney General, perhaps, but that would be a non-judicial position and not necessarily a promotion. They could make him a judge.
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Jun 12, 2016 17:26
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Did Judge Dredd ever cry?
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Jun 12, 2016 17:27
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Yeah he's already set for life in his current spot. https://www.youtube.com/watch?v=53XThNjW6pY
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Jun 12, 2016 17:33
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Discendo Vox posted:They could make him a judge. Street Judges are punished more severely than regular people when they break the law since they're expected to know better. That alone is reason enough they'd never exist in America.
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Jun 12, 2016 17:47
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Dead Reckoning posted:I think it's also defensible in the larger sense: the role of the courts is to give people due process in accordance with the law, not to find absolute truth. It's pretty uncontroversial that someone who is factually guilty, but who was found not guilty by a jury, or whose conviction was overturned due to prosecutor errors, does not have to be subjected to retrial. A point of correction: There is no procedural/prosecutor error during the course of a criminal trial that prohibits the government from retrying you on whatever charge led to the conviction reversed on appeal. (And if there was a defect in the charging instruments that led to reversal of a conviction, then the government can go back even further in time and redo the entire process over from the get-go by attempting to get the charging documents correct, then going through the trial proceedings.) The only criminal holding on appeal that bars retrial as a matter of law is if the appellate court finds that the evidence introduced at trial was insufficient to support the conviction. Which is essentially saying "hey the jury should have found not guilty on this evidence, and no reasonably jury would ever in a million years disagree." As you can imagine, courts don't reverse on this point all that often; and, typically, that type of appellate holding is the result of the court finding that, as a matter of law, a certain type of evidence introduced at trial is not actually probative of whatever element the government wanted it to be. (E.g., eyewitness testimony that defendant was in the same town as the crime the night of the crime is not probative of the defendant being at the scene of the crime at the time of the crime, and therefore that evidence alone cannot establish that the defendant was the criminal agent; thus, if this was the only evidence introduced at trial to prove that the defendant committed the crime, then there was insufficient evidence to convict and the conviction must be vacated and the Double Jeopardy Clause precludes retrial) Of course, there are some appellate holdings that effectively (but not, as a matter of law or any affirmative legal principles) bar retrial. For example, the failure to suppress certain evidence under the 4th Amendment, if reversed on appeal, might leave the government without any admissible evidence to prove a certain element of the crime, and therefore as a matter of practicality there won't be another trial. Only tangentially relevant but appeals stuff is fun.
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Jun 12, 2016 18:34
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Bubbacub posted:If a Clinton presidency ends up nominating somebody other than Garland, is there some plum position they can offer him to make up for jerking him around?
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Jun 12, 2016 18:39
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Discendo Vox posted:Again, you're stripping it of context. There's an actual mechanism of appeal available, and Davis wasn't able to meet its standards. "convincing a court" (in the case, an irrelevant court) should not be sufficient. The context does not save Scalia's position: Scalia's Davis Dissent posted:The Georgia Supreme Court rejected petitioner's “actual-innocence” claim on the merits, denying his extraordinary motion for a new trial. Davis can obtain relief only if that determination was contrary to, *3 or an unreasonable application of, “clearly established Federal law, as determined by the Supreme Court of the United States.” It most assuredly was not. This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable. See Herrera v. Collins, 506 U.S. 390, 400–401, 416–417, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993); see also House v. Bell, 547 U.S. 518, 555, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006); District Attorney's Office for Third Judicial Dist. v. Osborne, ––– U.S. ––––, ––––, 129 S.Ct. 2308, 2321–2322, 174 L.Ed.2d 38 (2009). A state court cannot possibly have contravened, or even unreasonably applied, “clearly established Federal law, as determined by the Supreme Court of the United States,” by rejecting a type of claim that the Supreme Court has not once accepted as valid. Setting aside all of the other issues with the habeas process, Scalia was saying that "actual innocence" is not a basis for habeas relief. This is not a matter of appeal, where claims of actual innocence are typically given a shrug by the appellate court because the jury weighs the evidence. Scalia was saying that, even if you are actually innocent, you cannot use the habeas process to get yourself out of jail--even though (my editorializing here) the habeas process is all about freeing people who should not be imprisoned. Further compounding the issue is that Scalia then went a step further to say that even if "actual innocence" was a basis for habeas relief, and a state court failed to provide such habeas relief on that actual innocence, a federal court could not reverse (even if the habeas petitioner was actually innocent) because SCOTUS has yet stated that actual innocence is a basis for habeas relief. Which very much puts the cart before the horse because of the normatively bad double deference standard SCOTUS has imposed for habeas appeals.
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Jun 12, 2016 18:55
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You've ignored that pesky word "alleged" from the argument again.
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Jun 12, 2016 19:37
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And Scalia is saying that a habeas court should not consider whether those allegations of actual innocence have merit.
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Jun 12, 2016 19:38
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Evil Fluffy posted:IANAL but for a man in his position I don't think that any position in the government is a step up from his current one besides the SCOTUS. Leaving to be AG or some other non-judicial role would be unlikely and honestly it'd be a step down from his current role. And why would Obama ever let that happen? Why wouldn't he just un-nominate him on November 8 and say "OK guys, you win, I withdraw Garland from contention L A T E R S "
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Jun 12, 2016 21:11
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Evil Fluffy posted:Plus the GOP will be afraid that Hilary with a Dem senate means she'll appoint the most ultra-left justice possible. She probably wouldn't, but it'd be cool if she did. Yeah, remember the last time when the Clintons nominated super conservative Ruth Bader Ginsberg? Fuschia tude posted:And why would Obama ever let that happen? Why wouldn't he just un-nominate him on November 8 and say "OK guys, you win, I withdraw Garland from contention Unless Obama pulls the nomination before the election and puts someone else up, he's not going to pull his nomination just so Hillary can make one in January. He'll take his 3rd Judge, flipping the court Liberal, and the tears of conservatives for his own legacy.
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Jun 12, 2016 21:42
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Discendo Vox posted:You've ignored that pesky word "alleged" from the argument again. If the defendant convinces the habeas court he is actually innocent it is not "alleged" for the purposes of this discussion. The constitution does not permit the execution of people who are factually innocent and to hedge around that with mutterings over proper procedure is the exact sort of nonsense that the original fake quote excoriated him for - a fetishization of procedure to the extent you never consider how down the rabbit hole you've gone. The idea that the federal courts can be not open to a claim of factual innocence, however strong, is insanity. You keep harping on 'but what if hes not actually innocent' but Scalia's rationale doesn't actually care about the strength of his claim.
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Jun 12, 2016 21:46
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Bubbacub posted:If a Clinton presidency ends up nominating somebody other than Garland, is there some plum position they can offer him to make up for jerking him around? He's not being jerked around. He got given the best shot he can get, given the reality of his age, at reaching the apex of his profession. Every judge knows that getting one of those spots is not pure merit: you have to be good enough, but then the politics need to line up just right for you to get it. Given his age he was very lucky to get a shot but he knows as well as anyone else that his age is a real downside - it should not be, but that's the reality of the system.
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Jun 12, 2016 21:52
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evilweasel posted:If the defendant convinces the habeas court he is actually innocent it is not "alleged" for the purposes of this discussion. The constitution does not permit the execution of people who are factually innocent and to hedge around that with mutterings over proper procedure is the exact sort of nonsense that the original fake quote excoriated him for - a fetishization of procedure to the extent you never consider how down the rabbit hole you've gone. The idea that the federal courts can be not open to a claim of factual innocence, however strong, is insanity. No, he cares about what court the petition is brought to, and under what standard. The exhaustion of claims remains a thing that exists, as does appropriate venue. Otherwise the habeas procedure becomes a fount of structural abuse.
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Jun 12, 2016 22:41
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Discendo Vox posted:No, he cares about what court the petition is brought to, and under what standard. The exhaustion of claims remains a thing that exists, as does appropriate venue. Otherwise the habeas procedure becomes a fount of structural abuse. The habeas procedure simply remains something that the courts can dismiss if sufficient evidence is not presented to make it worth a hearing like they do every day of the week. There is no structural abuse here, merely defending the idea that the Constitution is indifferent to actual innocence. Exhaustion of claims is not a "thing that exists", it is one thing to make it so that a court need not hold a hearing or issue a stay without compelling evidence, it is quite another to declare after a certain point factual innocence is no reason not to carry out a death sentence if the procedures have been followed. evilweasel fucked around with this message at 01:00 on Jun 13, 2016 |
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Jun 13, 2016 00:57
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Discendo Vox posted:Again, you're stripping it of context. There's an actual mechanism of appeal available, and Davis wasn't able to meet its standards. "convincing a court" (in the case, an irrelevant court) should not be sufficient. §2254(d)(1) posted:(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— You have got to be loving kidding me. (Shut up Thomas, nobody cares.)
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Jun 13, 2016 02:31
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Fuschia tude posted:And why would Obama ever let that happen? Why wouldn't he just un-nominate him on November 8 and say "OK guys, you win, I withdraw Garland from contention I would've done that the day Trump clinched the nomination. Call Mitch McConnell into the Oval Office, tell him you're withdrawing Garland and for him to go gently caress himself, and then laugh maniacally as you chase him out the door.
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Jun 13, 2016 14:14
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Well, Puerto Rico lost across the board in both cases. This is probably going to be a good thing for them in the long run, because it completely undercuts the arguments that some people in PR were making for the status quo and against statehood. They have basically been saying that PR has this unique, wonderful status where they have the best of all worlds and are a partner with the US, and they get most of the benefits of being a state without all the burdens. The supreme court basically said "nope, you are just a territory, congress runs your life, and you don't have a vote", so these decisions are a slap in the face for those people. The current situation where they are basically still a colony is unacceptable, they need to choose independence or join as a state.
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Jun 13, 2016 16:58
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Oh good Thomas filed a concurring opinion in Bryant saying that we need to reevaluate how the Federal government treats Native Americans slamming Congress and the SCOTUS for having an overly paternalistic approach
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Jun 13, 2016 17:10
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Deteriorata posted:Attorney General, perhaps, but that would be a non-judicial position and not necessarily a promotion. Similarly he could be shuffled over to ambassador to a friendly nation as an apology
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Jun 13, 2016 17:43
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They also threw out the seagate test used for determining treble damages in patent infringement cases because it was too rigid and instead it is now purely discretionary at the trial level.
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Jun 13, 2016 17:50
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mdemone posted:I would've done that the day Trump clinched the nomination. Call Mitch McConnell into the Oval Office, tell him you're withdrawing Garland and for him to go gently caress himself, and then laugh maniacally as you chase him out the door. There's no upside to Obama withdrawing Garland's nomination at this point. At the very least having Garland sit unconfirmed (or voted down) in the coming months allows the Democrats to hammer the GOP on it repeatedly and especially in senate races that could be close in states where a lot of people believe Garland should get a hearing. Pull his nomination and you lose all of that. There's literally no upside for Obama or the Democrats by pulling Garland's nomination. UberJew posted:Similarly he could be shuffled over to ambassador to a friendly nation as an apology That's still a demotion from his current position of "most powerful non-SCOTUS judge in the country."
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Jun 13, 2016 17:52
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exploding mummy posted:Oh good Thomas filed a concurring opinion in Bryant saying that we need to reevaluate how the Federal government treats Native Americans slamming Congress and the SCOTUS for having an overly paternalistic approach Of course in that same concurrence he said he would reconsider exclusion of convictions obtained in violation of 6th amendment from consideration in further proceedings...
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Jun 13, 2016 17:54
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