2016 US Presidential Elections | Trump Wins

[naturalized]

http://www.motherjones.com/politics...things-said-written-about-homosexuality-court

http://www.msnbc.com/rachel-maddow-show/antonin-scalias-spirited-defense-torture

Also, pure ugh.

That's not anything he ever said, and it's a very misleading paraphrase of what he actually did say. He's making a procedural point, not a substantive one.

https://en.wikipedia.org/wiki/Herrera_v._Collins.

Moreover, that's a principle of many legal jurisdictions that I'm aware of - that you are not constitutionally entitled, subsequent to conviction and close of proceedings, to federal habeas relief merely on the basis of a bare claim of factual innocence. The procedurally correct approach is either to seek clemency relief or to recommence proceedings in state proceedings on the basis of newly discovered evidence.

Ed: RIP Scalia. Came down and spoke at my uni a few weeks ago. Sad.

 

[berbatrick]

That's not anything he ever said, and it's a very misleading paraphrase of what he actually did say. He's making a procedural point, not a substantive one.

https://en.wikipedia.org/wiki/Herrera_v._Collins.

Moreover, that's a principle of many legal jurisdictions that I'm aware of - that you are not constitutionally entitled, subsequent to conviction and close of proceedings, to federal habeas relief merely on the basis of a bare claim of factual innocence. The procedurally correct approach is either to seek clemency relief or to recommence proceedings in state proceedings on the basis of newly discovered evidence.

It's a paraphrase but an accurate one. The quote is written in full in the replies to the tweet.

I know since Scalia it's not fashionable to be a consequentialist but, as a lay person, that's the easiest way to judge a decision. I will let another SC judge, no fan of overreach, sum up what this case meant (from your link):

Chastising the majority for its circumspection, Blackmun wrote, "We really are being asked to decide whether the Constitution forbids the execution of a person who has been validly convicted and sentenced, but who, nonetheless, can prove his innocence with newly discovered evidence," and he took note of "the State of Texas' astonishing protestation to the contrary."

 

[naturalized]

It's a paraphrase but an accurate one. The quote is written in full in the replies to the tweet.

I know since Scalia it's not fashionable to be a consequentialist but, as a lay person, that's the easiest way to judge a decision. I will let another SC judge, no fan of overreach, sum up what this case meant (from your link):

It is inaccurate. This is the entire case: https://supreme.justia.com/cases/federal/us/506/390/case.html. This is what he actually said, at 427-8:

There is no basis in text, tradition, or even in contemporary practice (if that were enough) for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction. In saying that such a right exists, the dissenters apply nothing but their personal opinions to invalidate the rules of more than two-thirds of the States, and a Federal Rule of Criminal Procedure for which this Court itself is responsible.

The issue in the case was whether new evidence purporting to demonstrate factual innocence was an independent ground for a new trial seeking federal habeas relief (i.e., release).

The point of your paraphrase is clear. It is obviously meant to imply that Scalia couldn't care less if we executed a factually innocent (in the sense that he really didn't do it) person so long as he was legally guilty (in the sense that a guilty verdict was properly reached). That is simply wrong. Scalia is pointing out that there has never been any kind of constitutional right allowing legally guilty defendant to obtain a fresh federal trial every time he alleged new evidence proving his factual innocence. Their remedy lies either in seeking executive action (clemency relief), or requiring a state court (not a federal one) to rehear.

You bring up consequentialism being a fair basis for a layperson to assess a judicial decision and I agree. So here's the consequentialist problem here - the SCOTUS makes all kinds of decisions constantly, rejects leave to appeal to it in the vast majority of cases, and in general is incredibly busy. I'm sure you can imagine that if any time someone alleges new evidence, SCOTUS has to stop what it's doing and analyze this new case, the wheels of justice would immediately grind to a halt. Obamacare would constantly remain in limbo. Gay marriage would never be legalized nationwide. Things would simply be impossible to get done.

Again I stress that this is not a Scalia issue or an American issue. It is an element of the law all over the world. The British liberal hero and "people's judge", Lord Denning, took the same position as regards the Birmingham Six - in fact, a position substantially closer to the one in your paraphrase.

Denning remarked that if the Guildford Four had been hanged "They'd probably have hanged the right men. Just not proved against them, that's all". His remarks were controversial and came at a time when the issue of miscarriage of justice was a sensitive topic. He had expressed a similar controversial opinion regarding the Birmingham Six in 1988, saying: "Hanging ought to be retained for murder most foul. We shouldn't have all these campaigns to get the Birmingham Six released if they'd been hanged. They'd have been forgotten, and the whole community would be satisfied... It is better that some innocent men remain in jail than that the integrity of the English judicial system be impugned."

 

[kps88]

What happens if both sides can't agree upon a replacement for Scalia or the Republicans just keep delaying things until the election?

 

[InfiniteBoredom]

What happens if both sides can't agree upon a replacement for Scalia or the Republicans just keep delaying things until the election?

Then the next president gets to choose, although the Dems can use it to their advantage - GOP Congress not fulfilling their duty.

 

[Revan]

I like what Trump said for war on Iraq. Probably will not go well with the voters, but he said exactly what happened there.

 

[sun_tzu]

What happens if both sides can't agree upon a replacement for Scalia or the Republicans just keep delaying things until the election?

Isn't about half of the judges aged circa 80 years old?
If so it would seem likely that this process will have to be repeated many times over the next two terms.

 

[Neutral]

I like what Trump said for war on Iraq. Probably will not go well with the voters, but he said exactly what happened there.

The crowd booed him for daring to tell the truth

 

[The Law of Denis]

I present to you the greatest political ad of our time

 

[InfiniteBoredom]

Amateurs, should have wiped it with a cloth or something

 

[Ubik]

Isn't about half of the judges aged circa 80 years old?
If so it would seem likely that this process will have to be repeated many times over the next two terms.

RBG is 83 next month (liberal), Kennedy is 79 (middle), Breyer is 77 (liberal). The two liberal ones were Clinton appointees, funnily enough.

 

[Revan]

Can really GOP delay the new appointment for a year? I know that theoretically they can do this, but won't that affect their chances of winning the election? Especially if Obama nominates someone from the middle-center, not a left wing judge.

 

[Revan]

Yeah, one minute slamming GW for going to war in Iraq, and then the next minute saying he is going to go after ISIS hard and take all their oil. How exactly does one go about taking someones oil without sending in a massive ground force? And wouldn't that be destabilising the region once again? And causing more problems with other countries?

He hasn't thought that one through properly, more worrying is nobody on stage called him out on it.

To be fair to him, there is a lot of difference between Saddam's Iraq and ISIS.

 

[langster]

To be fair to him, there is a lot of difference between Saddam's Iraq and ISIS.

Yeah, I will agree with him on that, and he was right about Iraq, but his so called "foreign policy" ideas stink, and sending people in to steal oil............ well I think I've heard that one before, i'm sure it didn't end well. I also stick to my point about how exactly do you take oil without a massive ground force? Or without destabilising the region more? Quite simply, you can't. The same as "just bombing the shit out of them" wouldn't work either because ISIS are surrounded by thousands upon thousands of innocent civilians. He's also mental If he thinks he could stroll in, take down ISIS and then overthrow Assad without Putin saying something about it. Not forgetting he also went after China pretty hard too, for threatening the National Security of the USA, and saying he would bring back water boarding and worse. Jeez, he could end up pissing off half the world if he got his way.

You can tell he just says what people want to hear, he has no idea how he would solve any of it, and you can see his game plan is to just say what everyone wants him to say and hear and then he will worry about it later if he gets elected.

 

[InfiniteBoredom]

..

The idea of taking the oil and ISIS will be gone pronto is infantile anyway. It'll hurt them, sure, but they have many sources of income, donations, drugs, human trafficking, sale of stolen goods (antiques, jewellery etc...). The Donald is just a blowhard.

He's promised to be chummy with Putin though, so maybe he'll give him a free hand in Ukraine in exchange for the Middle East, ending up pissing off Western Europe instead.

 

[Frasbul]

Rubio is such an idiot. He seems like a reasonable person, but then you start to listen to the things he says.
The part about the constitution having to be interpreted in its original meaning. It shows that he has absolutely no clue about the functions of law.

 

[Raoul]

Rubio is such an idiot. He seems like a reasonable person, but then you start to listen to the things he says.
The part about the constitution having to be interpreted in its original meaning. It shows that he has absolutely no clue about the functions of law.

That's what is frustrating about him. He seems to have a brain and just when you think he is on the cusp of impressing you, he veers into a bizarre set of canned talking points.

 

[Raoul]

BTW, Jeb is going to be making some appearances with Dubya in the coming days, who is very popular down in SC. I wouldn't be surprised to see Jeb nick 2nd next week.

 

[Ubik]

SC looking like a repeat of NH for the GOP with Trump way out ahead and the rest battling in the low teens. Hillary retains her massive lead (+38).

 

[Raoul]

Yeah can't see anything unexpected on the Hillary/Bernie front, she should win comfortably. I'm guess Nevada will be much closer.

I am sensing that Trump is not happy with the shenanigans at the debate, from the crowd booing to Jeb and Cruz going after him the way they did. I think the candidates are finally realizing that the way to beat Trump is to beat him at his own game by going on the attack, which at least last night seemed to clearly rattle him. I wouldn't be surprised to see him drop a bit after that, which will help Jeb and Cruz for sure.

 

[Ubik]

Nevada looks tough to call, Harry Reid looks like he's playing it to perfection strategically though. She's lucky that SC comes after it really as if she has a bad result in NV, a massive win the next week would allow her a momentum narrative, "comeback kid" and such, going into Super Tuesday.

Would be very interesting if Jeb beat Rubio again.

 

[Ole's_toe_poke]

So after all the entertainment of the last few months we might yet end up where everyone thought we'd be at the start.

That is, Clinton Vs Bush II.

 

[Ubik]

So after all the entertainment of the last few months we might yet end up where everyone thought we'd be at the start.

That is, Clinton Vs Bush II.

It's almost like all the time and money spent on campaigns is worthless.

Though I still think Bush can't beat Trump.

 

[naturalized]

By the way, how ARE the audience for these debates selected? Is there any truth to Trump's claim that they're just lobbyists etc?

 

[Red Dreams]

http://www.nydailynews.com/news/national/obama-shortlist-new-supreme-court-justice-article-1.2530851

 

[Raoul]

Rubio's hair is looking increasingly like a toupe as the campaign progresses.

 

[berbatrick]

It is inaccurate. This is the entire case: https://supreme.justia.com/cases/federal/us/506/390/case.html. This is what he actually said, at 427-8:

The issue in the case was whether new evidence purporting to demonstrate factual innocence was an independent ground for a new trial seeking federal habeas relief (i.e., release).

Yes, I understand that. I think it should be enough when looking at death penalty cases. Unlike prison cases, there is no worthwhile exoneration once the sentence has been errrr... executed.

You bring up consequentialism being a fair basis for a layperson to assess a judicial decision and I agree. So here's the consequentialist problem here - the SCOTUS makes all kinds of decisions constantly, rejects leave to appeal to it in the vast majority of cases, and in general is incredibly busy. I'm sure you can imagine that if any time someone alleges new evidence, SCOTUS has to stop what it's doing and analyze this new case, the wheels of justice would immediately grind to a halt. Obamacare would constantly remain in limbo. Gay marriage would never be legalized nationwide. Things would simply be impossible to get done.

SCOTUS is not a tenth as overworked as the Indian SC which is not just the constitutional court but also the court of final appeal. Recently there have been 2 death penalty cases where lawyers very cynically used precedent to file appeal after appeal and got 1 of them reduced to life.
In both cases the SC constituted a bench at 1 AM of the morning of the execution; in one case a stay was granted. I don't think any non-death case would have got the same treatment. I would shudder to think of what "brilliant" disparaging remarks Scalia would have made if asked for an appeal in those circumstances.

Both the Indian and US courts have death on their books, though the Indian criteria is much narrower. (and I don't agree with either).
I feel that an insane amount of appeals comes with that territory since what's basically at stake is the (hopefully mistaken) killing of an innocent person(for which there is a much shorter word.)

It is better that some innocent men remain in jail than that the integrity of the English judicial system be impugned.

Was the continuation of that quote from Lord Denning. Fair to say I don't agree. For an equally (IMO) reprehensible view, check this out (from the Indian SC):

The Supreme Court said: “The collective conscience of the society will be satisfied only if the death penalty is awarded"

http://www.thehindu.com/opinion/lead/a-perfect-day-for-democracy/article4397705.ece

 

[Adisa]

Shouldn't there be term limits in the Supreme Court.
I also can't understand how the republicans can say the invasion of Iraq was nothing shot of a disaster. Unless the crow at the debate doesn't reflect the base.

 

[Raoul]

Shouldn't there be term limits in the Supreme Court.
I also can't understand how the republicans can say the invasion of Iraq was nothing shot of a disaster. Unless the crow at the debate doesn't reflect the base.

How can there be term limits if there are no terms ?

 

[naturalized]

@berbatrick
The paraphrase your tweet referenced would never have gotten any currency were it not for the inflammatory turn of phrase used. "Mere factual innocence", etc, is clearly meant to incite all those who think Scalia is a cruel, reprehensible judge with zero empathy by implying that he couldn't care less about the factual innocence of the accused. If he did not actually use that phrase, why are you going after him and not the five other SCOTUS justices that joined him in that decision, or any of the jurisdictions in the world that observe similar practice? For that matter, is anyone aware of any jurisdiction where you can simply waltz into the apex court of the land and demand fresh consideration of your trial every time you allege new evidence? (Genuine question - there may well be.)

Let me point out something else as well. Again, I stress that Scalia was not condemning the defendant to hang, but redirecting him to a lower court. SCOTUS, like all other common-law apex courts, are primarily finders of law, not finders of fact. Turning them into Serial every time someone alleges new factual evidence - what's so wrong about the suggestion that they try a lower court first to see if their probable-cause application has any traction? Why are they in a less good position than SCOTUS to analyze this new, primarily factual, allegation?

I think it should be enough when looking at death penalty cases. Unlike prison cases, there is no worthwhile exoneration once the sentence has been errrr... executed.

I feel that an insane amount of appeals comes with that territory since what's basically at stake is the (hopefully mistaken) killing of an innocent person(for which there is a much shorter word.)

That's an defensible position and completely respectable opinion. That's also, respectfully, only your opinion. I don't share it. I'm not aware of any common-law jurisdiction that shares it (as a general rule and constitutional/legal entitlement, not on an ad hoc basis - again, though, if you know of one, please correct me). It seems rather preposterous to condemn Scalia for not sharing it.

SCOTUS is not a tenth as overworked as the Indian SC which is not just the constitutional court but also the court of final appeal.

Nitpick: Unless I'm very much mistaken, SCOTUS is both of these things as well. To my knowledge, specialist constitutional courts that hear constitutional cases and ONLY constitutional cases only exist in civil-law jurisdictions, like the German BVerfG.

Was the continuation of that quote from Lord Denning. Fair to say I don't agree.

On this we are 100% agreed.

 

[Will Absolute]

"It is better that some innocent men remain in jail than that the integrity of the English judicial system be impugned."

I realize it has to be understood in context, but that is a mighty unsettling quote. In my opinion there are no circumstances in which a Justice System should place its own reputation above the life of an innocent person. It's too much to expect any judicial system to align perfectly with natural justice, but it should never knowingly accept injustice.

 

[Grinner]

What the feck was that nonsense from Robiot about the Constitution?

 

[naturalized]

"It is better that some innocent men remain in jail than that the integrity of the English judicial system be impugned."

I realize it has to be understood in context, but that is a mighty unsettling quote. In my opinion there are no circumstances in which a Justice System should place its own reputation above the life of an innocent person. It's too much to expect any judicial system to align perfectly with natural justice, but it should never knowingly accept injustice.

I don't think there was much context, was there? It was a terrible thing to say, by a judge who was aging rapidly and nearing the end of a brilliant career, and if I'm not mistaken he was - rightly - retired shortly after. Jumped before he was pushed kind of thing.

 

[Will Absolute]

I don't think there was much context, was there? It was a terrible thing to say, by a judge who was aging rapidly and nearing the end of a brilliant career, and if I'm not mistaken he was - rightly - retired shortly after. Jumped before he was pushed kind of thing.

Thanks for the info; I didn't know the circumstances. Quite a shocker!

 

[barros]

Trump hates Jeb more than Cruz............. only just though...

loving it!!!!

I can't stand Jeb

 

[berbatrick]

@berbatrick

Let me point out something else as well. Again, I stress that Scalia was not condemning the defendant to hang, but redirecting him to a lower court. SCOTUS, like all other common-law apex courts, are primarily finders of law, not finders of fact. Turning them into Serial every time someone alleges new factual evidence - what's so wrong about the suggestion that they try a lower court first to see if their probable-cause application has any traction?

He (even Rehnquist's less absolute opinion) didn't.

Rehnquist’s opinion also held that Texas courts’ refusal to even consider Herrera’s newly discovered evidence did not violate due process and suggested that Herrera file a clemency petition with the Texas Board of Pardon and Paroles.

http://www.slate.com/articles/news_...scalia_s_embarrassing_question_is.single.html
is a good example of the dangers.

 

[Red Dreams]

I can't stand Jeb

He is an entitled cretin. The RNC is alienating its voters by giving out tickets to all Trumps rivals. very stupid move.

 

[barros]

So after all the entertainment of the last few months we might yet end up where everyone thought we'd be at the start.

That is, Clinton Vs Bush II.

Do you see any difference between the 2? I don't.

 

[fishfingers15]

I like what Trump said for war on Iraq. Probably will not go well with the voters, but he said exactly what happened there.

Trump didn't hold back at all. Probably the first after Nancy Pelosi.

The crowd booed him for daring to tell the truth

Tickets are bought for these events and probably lobbyists doing the booing.

Yeah can't see anything unexpected on the Hillary/Bernie front, she should win comfortably. I'm guess Nevada will be much closer.

I am sensing that Trump is not happy with the shenanigans at the debate, from the crowd booing to Jeb and Cruz going after him the way they did. I think the candidates are finally realizing that the way to beat Trump is to beat him at his own game by going on the attack, which at least last night seemed to clearly rattle him. I wouldn't be surprised to see him drop a bit after that, which will help Jeb and Cruz for sure.

He definitely let Bush get under his skin from the start and looked rattled at Cruz as well, but he gave back as good as he got and came away in the end looking stronger. The results from South Carolina will be telling though. If you can come to a hawkish state where Bush clan is still popular, accuse him of lying and have a go at the entire Bush family telling Barbara Bush to run instead, declare he's going to save social security, claim Planned Parenthood does good things for women and call another candidate a liar and a nasty guy and win on a republican ticket, then Trump is Batman or something.

It's like Corbyn coming to Liverpool on a labour party ticket and claiming Thatcher did great things.

 

[naturalized]

He (even Rehnquist's less absolute opinion) didn't.

http://www.slate.com/articles/news_...scalia_s_embarrassing_question_is.single.html
is a good example of the dangers.

That's precisely the point. It's for the Texas court to determine whether there was probable cause to retry (or whatever the Americans call it there), and the Texas governor (who I suddenly realized, at this time should be GWB?) to offer clemency, or failing which the President. That they refused to do so is on the Texas court, and also not very surprising, according to your article:

By no stretch of the imagination could these biased affidavits—which conveniently blamed the murders on a dead man—prove Herrera’s innocence of the Carrisalez and Rucker murders, the latter of which he flat out admitted to committing. Herrera’s innocence claim, quite simply, was a farce.

So the system worked. A defendant with "new evidence" that was plainly an afterthought insisted that, in defiance of all known laws of procedure, SCOTUS should rehear his case because he had cooked up some new affidavits that exonerated him. SCOTUS redirected him to a lower court, the lower court told him where to go, clemency was refused, and sentence was duly carried out. It should be obvious that if Herrera had gone the other way, EVERYBODY who had ever been condemned would have shown up tomorrow at SCOTUS' door cap-in-hand and insisted on their new constitutional right to a new hearing, because, hey presto, they have new affidavits, too. It'd be opening the floodgates. We'd maybe just have gotten round to hearing Bush v Gore.

Tbh, I think we've reached the point where I think you've put your case forward well, but we need to agree to disagree - our priors are too far apart. The system has flaws, as I'm sure we can agree - I'm fairly sure that not every single Texas case is as clear-cut as this one, nor is every refusal to grant a rehearing going to be as uncontroversial. But when something is broke, I don't think the solution is to break another thing to cannibalize parts for the first one.