Article: Judge Richard Posner for SCOTUS?

[Aim1]

Judge Posner is the one who wrote the majority opinion on Moore vs. Madigan in Illinois and wrote:


http://www.slate.com/articles/news_...concealed_weapons_ban_goes_down_in_court.html

A little background: In District of Columbia v. Heller, the Supreme Court ruled in 2008 that the Second Amendment protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” The question before Judge Posner and two other appellate judges—which the Supreme Court has not yet addressed—was whether the Second Amendment also protects a right of self-defense outside the home.

Judge Posner said yes, stressing the part of Heller that says the Second Amendment guarantees people the right to possess and carry weapons “in case of confrontation.” After all, confrontations are not limited to the home. Posner turned to the text of the Second Amendment to buttress this argument, positing that the right to “bear” arms (as opposed to “keep” them) takes on a strange meaning if the amendment’s application is limited to the home.

Posner also addressed Illinois’ argument that keeping loaded weapons out of public spaces is good for public safety and welfare. Reviewing studies about the relationship between allowing versus restricting concealed weapons and firearm violence, Posner said it’s a wash—there’s no clear evidence that fewer concealed guns means fewer shootings, or vice versa. He also noted that “if the mere possibility of allowing guns to be carried in public would increase the crime or death rates sufficed to justify a ban,” Heller would have come out the other way. In other words, perhaps even strong empirical evidence justifying the wisdom of Illinois’ law wouldn’t save it.

http://www.cnn.com/2016/02/22/opini...homepage_10-test_featured_pool&iref=obnetwork

Here's who should replace Antonin Scalia

By Michael J. Broyde

Updated 1:46 PM ET, Mon February 22, 2016

I want to suggest a third option: The President should appoint a leading legal mind at the end of his career. In particular, the President should nominate Judge Richard Posner to the Supreme Court. Posner is a leading intellectual light of the past half-century in law. He is the author of more than 40 books -- many of them landmarks and classics in diverse fields.

He has been a judge on the 7th U.S. Circuit Court of Appeals since 1981. The Journal of Legal Studies found Posner to be the most-cited legal scholar of all time by a considerable margin. He is respected by judges, law professors and lawyers alike. He is the modern "Albert Einstein" of American law, and it has always been an embarrassment to the legal system that he is not a member of the Supreme Court. Imagine the NBA Hall of Fame without Michael Jordan: Richard Posner is the Michael Jordan of Law.

Three additional factors are important in supporting Posner's selection. The judge is not a moderate but an iconoclast, with unique positions that neither political party fully supports: He supports same-sex marriage, is a conservative on economic matters, opposes the war on drugs, minimizes privacy and is famous for undertaking economic analysis of many issues. Everybody agrees with him sometimes and almost no one all the time. Second, Posner is already 77 and is unlikely to serve for many decades given his age. The next President could conceivably name Posner's successor.

So, what would you think of Judge Posner being Obama's SCOTUS pick?

 

[Red Wind]

Negative. The next President should nominate Justice Scalia's replacement, IMO.

 

[srtolly]

Negative. The next President should nominate Justice Scalia's replacement, IMO.

I have to start by saying that I think Obama has been a poor excuse for a president.

I support our Constitution and everything that has made our country great.

I do believe it is the job of the POTUS to nominate Scalia's replacement. Whether we like it or not it is Obama's job, not the next POTUS.

I'm sure I will be chastised for this so "flame on".

 

[Vern Humphrey]

The Senate should definitely consider anyone Obama appoints, and give him a fair hearing.

But they should NOT confirm any candidate unless he can really fill Scalia's shoes.

 

[danez71]

I believe it's Obamas responsibility to nominate an ATF Director but that hasn't happened.... in fact, didn't the Interim Director get demoted back down and still no nominee?

But I do agree it's his job. And it's Senate's to vet and confirm the nominee.


I think if Posner is nominated by anyone, the R's would be foolish to not seriously consider him.

 

[OilyPablo]

What is the scoop on this Brian Sandoval character?

 

[Red Wind]

The Senate has the absolute Constitutional right NOT to consider any Obama choice as a nominee.

A Kagan and Sotomayor are MORE than enough. No more, thank you.

 

[old lady new shooter]

The Senate has the absolute Constitutional right NOT to consider any Obama choice as a nominee.

A Kagan and Sotomayor are MORE than enough. No more, thank you.

I recently read that Scalia introduced Kagan to hunting and she was quoted as proudly saying after the last trip "I got myself a deer." No idea what if anything she's ever said about guns for self-defense but at least she's actually shot one.

 

[vamo]

Negative. The next President should nominate Justice Scalia's replacement, IMO.

Considering how unelectable the current republican front runner is in a general election careful what you wish for. It might be a good idea to give someone who isn't a complete democratic yes man consideration. We are concerned with one single issue on this board, a "moderate" nominee that obama picks as a compromise could possibly be way more sympathetic to our side on gun issues than someone that will be appointed by Clinton/Sanders knowing full well that they have 4-8yrs to ram them through.

 

[legaleagle_45]

Judge Posner would vote to overturn Heller if he was on the Supreme Court. He was a leading critic of the decision when it came out in 2008, calling it judicial activism at its worst in an article published in the New Republic. The fact that he upheld Heller in Moore v Madigan only means he understands the decision in Heller and will faithfully abide by it even though he strenuously disagrees with it.

 

[jimbo555]

Brian Sandoval was endorsed by the Nra for reelection.

 

[danez71]

I'm going to walk back my statement a bit.

I still say who ever gets nominated, the Senate should consider.


The link is to an article written bt Posner about the Heller case and brings up McDonald and a few others cases too.

Its a good perspective into his way of thinking.

He may be a loose canon.

https://newrepublic.com/article/62124/defense-looseness

 

[v35]

I recently read that Scalia introduced Kagan to hunting and she was quoted as proudly saying after the last trip "I got myself a deer." No idea what if anything she's ever said about guns for self-defense but at least she's actually shot one.

Bully for her. 2A is completely unrelated to hunting.

 

[Red Wind]

Considering how unelectable the current republican front runner is in a general election careful what you wish for. It might be a good idea to give someone who isn't a complete democratic yes man consideration. We are concerned with one single issue on this board, a "moderate" nominee that obama picks as a compromise could possibly be way more sympathetic to our side on gun issues than someone that will be appointed by Clinton/Sanders knowing full well that they have 4-8yrs to ram them through.

Sorry. With our Presidents record, No Cigar.

Judge Posner would vote to overturn Heller if he was on the Supreme Court. He was a leading critic of the decision when it came out in 2008, calling it judicial activism at its worst in an article published in the New Republic. The fact that he upheld Heller in Moore v Madigan only means he understands the decision in Heller and will faithfully abide by it even though he strenuously disagrees with it.

Fact.

 

[Jim K]

Odd, but all those offering opinions in the media share a common theme - the president must appoint, and the senate must approve, someone who agrees with the opinionator. Only those people are suitable; those who do not share the views of the "talking head" are not suitable even for continued existence, let alone a seat on SCOTUS.

Jim

 

[Red Wind]

Good old, Jim. He's got a mind.

 

[Sebastian the Ibis]

Posner is too old. He is at least 75-80. Obama wants to appoint someone who can last a generation. Indeed, I'd be thrilled at any 80 year old Democrat appointment as there is only so much damage they can do. Also, Posner made a name for himself as a law and economics type- this is not what Democrats are after.

This is the time everyone fills the air with rumors, to support their agenda or their buddy, because there is no real news to report. We could start talking about Alan Gura and John Yoo being vetted for Scotus on this board and some network wold pick it up.

Sandoval is not real. His name is being floated to get political sound bytes for later. The Dems are floating his name so that: (1) they can trick some republicans into saying they would allow a vote- so they can stick it to them later, or (2) claim that republicans are so extreme they wouldn't even allow a vote on a moderate republican.

My guess is that Obama will eventually pick a member of a minority demographic so that the members of that group vote against the republicans for blocking their guy. At the end of the day, it's all politics.

 

[roscoe]

Considering how unelectable the current republican front runner is in a general election careful what you wish for. It might be a good idea to give someone who isn't a complete democratic yes man consideration. We are concerned with one single issue on this board, a "moderate" nominee that obama picks as a compromise could possibly be way more sympathetic to our side on gun issues than someone that will be appointed by Clinton/Sanders knowing full well that they have 4-8yrs to ram them through.

Exactly. McConnell is very much overplaying a weak hand.

 

[Red Wind]

Exactly. McConnell is very much overplaying a weak hand.

Not at all a weak hand. The strongest hand. And when you got that, you don't fold em', you hold 'em.

You don't let all those ,"But these things could happen!" , the end of the world scenarios, get in your way.

You stay at the table and destroy your enemies. Read that?

We don't want Chamberlain. We want Churchill.

 

[OilyPablo]

Sandoval is not real. His name is being floated to get political sound bytes for later. The Dems are floating his name so that: (1) they can trick some republicans into saying they would allow a vote- so they can stick it to them later, or (2) claim that republicans are so extreme they wouldn't even allow a vote on a moderate republican.

I posted on a local forum: "bait and switch"

 

[TimSr]

The Senate should definitely consider anyone Obama appoints, and give him a fair hearing.

But they should NOT confirm any candidate unless he can really fill Scalia's shoes.

I agree completely in theory. This is the way it should work. I also realize that when two sides play by different rules, the side the ignores the rules wins. I think it would be wise to hold hearings on Obama's nominees, and expose them to illustrate WHY they should not be conformed. My biggest concern is that the senate majority will run like rats and hide when the media cameras come out (except for Cruz), instead of defending their constituents' mandate for a Constitutionalist judge, and ultimately fold. If they fold, we can be assured that they will lose the senate, and even if a republican wins the presidency, we can also be assured that a Democrat senate will hold the line and Bork any Constitutionalist nominee.

As far as Posner for a judge, even if he came down to the right decision on Heller, his reasoning for arriving at that conclusion is dead wrong.

He also noted that “if the mere possibility of allowing guns to be carried in public would increase the crime or death rates sufficed to justify a ban,” Heller would have come out the other way.

The Constitutional merits of laws are not conditional on statistical consequences. If a Constitutional amendment is flawed, the only way to "correct" it is with another Constitutional amendment (prohibition) and not by the whims of the legislature of the day.

 

[v35]

... even if a republican wins the presidency, we can also be assured that a Democrat senate will hold the line and Bork any Constitutionalist nominee.

Although I don't believe you explicitly intended that comment to defend Robert Bork, you should know that he was not the kind of 2A advocate I would approve of. Nor would anyone else on this site, if I may be so bold as to say that.

From Wikipedia (emphasis mine):

Although an opponent of gun control, Bork denounced what he called the "NRA view" of the Second Amendment, something he described as the "belief that the constitution guarantees a right to Teflon-coated bullets." Instead, he argued that the Second Amendment merely guarantees a right to participate in a government militia.

It's obvious to me that Bork would have dissented from the Scalia-led majority opinion on Heller. In his place, we got Kennedy, who supported it.

What that means is that there is no guarantee of how a particular justice might rule one way or another. Confronted with vicious criticism from what 2A advocates generally consider our sworn enemies, Robert Bork did us all a favor by withdrawing himself from nomination.

 

[TimSr]

v35, my point was that that was the turning point for senate Democrats to begin toppling qualified nominees for political reasons, and the republican quest to find judges who didn't stand for anything so they could get through a conformation hearing. It took republicans a lot longer to catch on and use the same standards.

I don't know how Bork would have stood on Heller. There was an entirely different atmosphere concerning the 2A in the 80's, and an awful lot of ignorance about the capabilities of "cop killer" bullets. Your quote is not dated, but I suspect it was in answer to a question brought up in his confirmation hearings. I don't know how he would have ruled today. Either way, the criteria for confirming a justice was changed completely to a political process with his case.

 

[danez71]

This is part of what scares me about Posner now that i did into ithe a bit..

He basically saying Scalia isn't an Originalist... and that he is the real Originalist.

He says he framers intended for the Constitution to be loose and reinterpreted.

He is an iconoclast so he likes to blow things up.

Posner quote from the link above.

My analysis to this point has been "originalist"--and it has led to the opposite conclusion from that of the majority of the Supreme Court. It has been a narrow originalism, like that of Scalia's majority opinion, because it has ignored the interpretive conventions of the legal culture in which the Second Amendment was drafted and ratified. The reigning theory of legislative interpretation in the eighteenth century was loose (or flexible, or nonliteral) construction. This is explicit in William Blackstone's Commentaries on the Laws of England, on which the majority opinion in Heller ironically relies. In the Commentaries we read that a medieval law of Bologna stating that "whoever drew blood in the streets should be punished with the utmost severity" should not be interpreted to make punishable a surgeon "who opened the vein of a person that fell down in the street with a fit." Blackstone explained that "the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law.... As to the effects and consequence, the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them" (emphasis added). John Marshall, the greatest Supreme Court justice of the generation that wrote the Constitution and the Bill of Rights, was also a loose constructionist.


Originalism without the interpretive theory that the Framers and the ratifiers of the Constitution expected the courts to use in construing constitutional provisions is faux originalism. True originalism licenses loose construction. And loose construction is especially appropriate for interpreting a constitutional provision ratified more than two centuries ago, dealing with a subject that has been transformed in the intervening period by social and technological change, including urbanization and a revolution in warfare and weaponry.

 

[v35]

v35, my point was that that was the turning point for senate Democrats to begin toppling qualified nominees for political reasons, and the republican quest to find judges who didn't stand for anything so they could get through a conformation hearing. It took republicans a lot longer to catch on and use the same standards.

I totally understand your point but I don't think Republicans will ever catch on. I find the collectivist left's strategies generally deplorable but if our side is going to win we have to learn to fight dirty, just as they do. The alternative is defeat, and to continue down the same well-worn path to statist misery that we're on.