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Saturday, 22 December 2018

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I wish the lady no ill but I still cannot understand why "the cousins" in their founding wisdom did not set an upper age limit on judicial appointments to their Supreme Court. Or any court for that matter.

At 85 she may still have all her marbles but that's not to say some of her predecessors and successors will not be approaching the stage of dribbling in their pottage some time before 85.

Time to pack your robe and make a break for it.

"majesty surrounding the office and any occupant of the White House"

The Democrats have destroyed this approach. I wonder if they ever wonder what will happen if they win the 2020 presidential election? Do they expect the Trump voters to just play nice and stick to the old rules?

The Supreme Court along with the rest of the Federal Judiciary needs to be stuffed back in the box where they are meant to be. This current bout of 'over judiciousness' began in 1973 when the Black Robes 'discovered' a right to kill unborn babies and it has gotten worse since. We are not supposed to be governed by judges. There is all out war over each High Court seat and smaller wars over lower court nominees. None of this is proper. We have one Federal Court Circuit, the 9th, that ignores the Constitution as needed because its only function regarding national issues is to backstop Liberalism.

We will either be governed by law decided by our elected representatives, or we will be governed by men not of our choosing. Rule by men always sinks to rule by gun. That's where we are headed.

Some days ago a commenter wrote that US Democrats are to the right of UK conservatives, and Republicans are to the right of Democrats. The writer thought that had changed. It has not. That rabble-rousing weasel Nigel Farage, after a Trump rally, said it was the first time in his life he felt like a left winger. Because our political spectra don't really line up, your comments often miss the mark, David. Of course you were an akk-torrr, so it's possible you're just aping performance artists like your darling Scarecrow Ann.

You also misunderstand the history of the Supreme Court. It is not immune to politics or the spirit of the times. The part of "originalist" nonsense that isn't PR is fringe ideology. Once appointed, it's nearly as hard to remove a justice as a president, and they often defy expectations. For example, Kavanaugh is probably not the anti women's rights puppet many had hoped for:

https://www.washingtonexaminer.com/opinion/brett-kavanaugh-sides-with-liberal-justices-in-declining-to-hear-planned-parenthood-defunding-case

President Tailspin, on the other hand, is becoming less funny and more up to the expectations of those who always considered him unfit for office. You military guys should read this and consider what Mattis is implying:

https://www.documentcloud.org/documents/5656065-Resignation-Letter-From-Defense-Secretary-James.html

AussieD?

"I still cannot understand why "the cousins" in their founding wisdom did not set an upper age limit on judicial appointments to their Supreme Court."

In 1787 (when the Constitution was writ) life-expectancy was, I seem to remember, about 38. Maybe a bit more for females.

There was at the Constitutional Convention some discussion of term limiting Judges but at the time courts jurisdictions looked to be exceedingly smaller than it turned out to be.

https://dailytimewaster.blogspot.com/2018/12/blog-post_22.html#comment-form

Bob, my remarks may well "miss the mark" from time to time but rarely for the reasons you produce! For example, Farage was not a "rabble-rousing weasel", he was a decent man who articulated the desires of many Brits to be rid of the German yoke which hides under the cloak of the European Imperium.

Also, I read and judge Ms. Coulter on the content of her exceedingly sharp columns which, unsurprisingly, often draw blood from whimpering Democrat liberals. For goodness sake, Bob, man-up and take it on the chin!

Finally, I am not so naïve as to believe that the SCOTUS is "immune to politics". It is precisely because it is political that it is essential that another Justice who bases his/her judgments **on the Constitution** is quickly chosen to replace Mrs. Ginsburg. And, by the way, I never assumed Kavanaugh was "anti-womens' rights", just the opposite provided, of course, that they do not infringe the Constitution!

I hope you and yours enjoy a super Xmas.

JK, I enjoyed that one!

The executive appointing the judges?

Never been sure how that one flew under the radar of the constitution.

I mean, wtf is that all about? It's nuts. Separation of powers, anyone?

And when the US applies to join the EU y'all will have to ditch that anti-enlightenment nonsense otherwise Brussels will have to slap you down, like they just did with Poland.

SoD

SoD,
It is the "Enlightenment" that may have baked in the defect that is causing the crack up of Western culture.

House controls the purse and statutes originate there SoD. Senate considers whatever the House has originated, reconciles to conform any portending/complicating issues and also, has the power of confirming cabinet appointees and judges. The Courts of Justice are a function of the Executive and the Executive commands the armed forces - back then there was great concern about "standing armies" You do remember SoD, "quartering troops" the way your side did made things complicated for the citizenry?

Its actually pretty simple if you've ever bothered to read Miracle at Philadelphia by Catherine Drinker Bowen.

"The Courts of Justice are a function of the Executive" - JK

vs

https://en.m.wikipedia.org/wiki/Separation_of_powers

"Montesquieu did actually specify that the independence of the judiciary has to be real, and not merely apparent.[13] The judiciary was generally seen as the most important of the three powers, independent and unchecked,[14] while also likely to claim to be the least dangerous one.[13]"

"Were it (the judiciary) joined to the executive power, the judge might behave with violence and oppression." - Montesquieu

I would say "Madison's expediency" is the very source in the framing if the US Constitution that is it's undoing in this respect ...

"Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them." - Madison

Well Madison has clearly been proved wrong. The "qualifications and permanent tenure" safeguards doesn't seem to stop the executive going into a frenzy of "let's fix the jury" opportunism everytime a judge pops his or her clogs or retires.

You can't give the bastards an inch - they will take it a mile.

Montesquieu knew that. Madison didn't.

EU 1, USA 0.

SoD

David,

I particularly dislike Farage because he's a smarmy opportunist who works with extreme nationalists and others in countries beside the UK. Besides campaigning with Trump, he also made trouble, and a tidy sum, lending support to a ridiculous movement for California to secede from the union. He's probably mixed up with Wikileaks and Russian propagandists and is a prime example of what's wrong with politics in the West: There are too many cynical con men on the make, posing as leaders of contrived social movements, making money and grabbing power at any cost to politics, government and society. Ann Coulter and her like are the pundit equivalents. It's highly instructive that she, Rush Limbaugh, Fox and Friends and others can dictate policy to Trump. There's a twist Orwell didn't foresee!

The whole idea Supreme Court justices can cling strictly to the original intent of the constitution is utter nonsense. There's a long history of varying interpretations, reversals (as with prohibition), and judges moving left or right after appointment. There are also mechanisms built into the constitution to revise it. The founders knew better than to think the world would never change.

Best holiday wishes to you and yours in our unpredictable world.

Dammit SoD, you've made me hunt the whole house over trying to find my bifocals and then waste even more time after that. That Montesquieu feller doesn't appear in any of Madison's attendance records and sure as hell didn't sign the bloody thing.

David, I concur with Bob. To illustrate:

" ... Because a false denial fits the unqualified language of 18 U. S. C. § 1001, I concur in the affirmance of Brogan's conviction. I write separately, however, to call attention to the extraordinary authority Congress, perhaps unwittingly, has conferred on prosecutors to manufacture crimes. I note, at the same time, how far removed the "exculpatory no" is from the problems Congress initially sought to address when it proscribed falsehoods designed to elicit a benefit from the Government or to hinder Government operations.

At the time of Brogan's offense, § 1001 made it a felony "knowingly and willfully" to make "any false, fictitious or fraudulent statements or representations" in "any matter within the jurisdiction of any department or agency of the United States." 18 U. S. C. § 1001 (1988 ed.). That encompassing formulation arms Government agents with authority not simply to apprehend lawbreakers, but to generate felonies, crimes of a kind that only a Government officer could prompt.

This case is illustrative. Two federal investigators paid an unannounced visit one evening to James Brogan's home. The investigators already possessed records indicating that Brogan, a union officer, had received cash from a company that employed members of the union Brogan served. (The agents gave no advance warning, one later testified, because they wanted to retain the element of surprise. App. 5.) When the agents asked Brogan whether he had received any money or gifts from the company, Brogan responded "No." The agents asked no further questions. After Brogan just said "No," however, the agents told him: (1) the Government had in hand the records indicating that his answer was false; and (2) lying to federal agents in the course of an investigation is a crime. Had counsel appeared on the spot, Brogan likely would have received and followed advice to amend his answer, to say immediately: "Strike that; I plead not guilty." But no counsel attended the unannounced interview, and Brogan divulged nothing more. Thus, when the interview ended, a federal offense had been completed-even though, for all we can tell, Brogan's unadorned denial misled no one.

As these not altogether uncommon episodes show, § 1001 may apply to encounters between agents and their targets "under extremely informal circumstances which do not sufficiently alert the person interviewed to the danger that false statements may lead to a felony conviction." United States v. Ehrlichman, 379 F. Supp. 291, 292 (DC 1974). Because the questioning occurs in a noncustodial setting, the suspect is not informed of the right to remain silent. Unlike proceedings in which a false statement can be prosecuted as perjury, there may be no oath, no pause to concentrate the speaker's mind on the importance of his or her answers. As in Brogan's case, the target may not be informed that a false "No" is a criminal offense until after he speaks.

It is doubtful Congress intended § 1001 to cast so large a net. First enacted in 1863 as part of the prohibition against filing fraudulent claims with the Government, the false statement statute was originally limited to statements that related to such filings. See Act of Mar. 2, 1863, ch. 67, 12 Stat. 696-697. In 1918, Congress broadened the prohibition to cover other false statements made "for the purpose and with the intent of cheating and swindling or defrauding the Government of the United States." Act of Oct. 23, 1918, ch. 194, § 35, 40 Stat. 1015-1016. But the statute, we held, remained limited to "cheating the Government out of property or money." United States v. Cohn, 270 U. S. 339, 346 (1926).

In sum, an array of recommendations has been made to refine § 1001 to block the statute's use as a generator of crime while preserving the measure's important role in protecting the workings of Government. I do not divine from the Legislature's silence any ratification of the "exculpatory no" doctrine advanced in lower courts. The extensive airing this issue has received, however, may better inform the exercise of Congress' lawmaking authority."

GINSBURG, J concurring in judgment

SCALIA, J., delivered the opinion of the Court, REHNQUIST, C. J., and O'CONNOR, KENNEDY, THOMAS, GINSBERG JJ., joined, and in which SOUTER, J., joined in part.

https://supreme.justia.com/cases/federal/us/522/398/#tab-opinion-1960239

Geez, JK, test pilot, lawyer (?), investigator, inventor of hillbillanese and someone who agrees with me. You won't fool the Brits forever.

I'll have none of that Bob, ain't especially dismissive or overfond of the way some things just happen in the hills, youll've never I think, maybe, took me for an out an out braggart have ye?

Neither the sort that some, especially in these days'd call a Doctor Google 'cause mainly, especially for someone such as yourself being, neither of us fail to appreciate, misunderestimate context a rocket scientist and me really, whenevers thays appeared to be an out and out connection either by trade or ultimate outcome something else is said that throws whatever conclusion's been reached into doubt.

Your lights Bob I can't allow myself too much concerned for and for my lights, I had to get over a long time ago, nothing much matters ... as bonds ... at least the sorts of bonds I been lucky enough to get much less, keep, have only it turns out been "enjoyable" through this marvel we now call the internet.

Folks such as yourself Bob, and folks at the other extreme end of the spectrum don't, generally speaking, concern theyselves with whether there's people "out there" who started out just like everybody else new to the world and curious then, baffled at why a goodly portion turns off playing jacks or hopscotch then abit later somebody's Grandmother you've been told is been on and on to the rest of the family during holidays that, "I am not superstitious!"

Exile, of a particular sort eventually occurs to the youngish mind who started out like everybody else, curious, and only if the "to one degree or another individuals" corrupt the exile's path it looks then after awhile that it'll be possible to get along in the world that is.

There's only the one thing Bob you haven't a clue about. Exile is, for the most part, forever.

There is however however Bob you decide (and that's actually crucial Bob, "decide" I mean) to treat this nonsense I've just typed - however whatever the concerned individual's conception of "Reconciled" has been settled upon - that's the only thing that matters.

"Fooling the Brits forever"?

The least of my problems I think you'll agree.

Well, JK, I know what you mean, but there's a reason growing up in a city might be more generally beneficial earlier than the hills then. There're a bigger number of folks of all kinds, some with very different backgrounds and looks, but a number of whom have lights as bright as anyone's; some a lot brighter than mine, who, if you must insist, are those of a rocket scientist, though what I did was not really rocket science at all, only supporting work in electronics.

By fooling Brits being the least of your problems do you mean it's too easy to take much effort? In that case you'll do well to remember you're operating undercover of the aforementioned internet which, no matter how much that avaricious twit Mark Zuckerberg tries, still imbues a modicum of anonymity that can be used for purposes of amusement by communicating with people you find interesting.

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