Trump's Supreme Court nominee

[Stavros]

I am not saying the allegations of sexual assault are not important, but it seems extraordiary to me that when Kavanaugh was asked questions on matters of law, which is why he is being interviewed, he declined to answer, but is it acceptable for someone nominated for the Supreme Court not to answer such questions?

Kavanaugh had no problem making political points and insulting Senator Klobuchar by answering her questions on his drinking habits by tossing the question back at her, which to me undermined his credibility as a Justice for the Court. I would suggest that Kavanaugh is in effect the Political Commissar for the President on the Court. His primary obligation will be to protect the President from any prosecution arising out of the Mueller Enquiry or any other revelation of criminal activity. I don't know if so junior a person will have much influence over the others who, one hopes, will resist the attempt to make the Supreme Court an obedient tool of the White House much as the judiciary in countries like Turkey, Egypt and Russia, so admired by this President, long ago set the law aside to protect the Top Dog with his snout in the public trough.

[Stavros]

Is it the case that sitting members of the Court have no say in who joins them? Do they interview the candidate in private and forward their assessment to the Senate? It would be odd if the one body that had no say in the process was the Supreme Court itself. More pertinently, could they reject a candidate on legal grounds?

[buttslinger]

https://www.washingtonpost.com/local...=.2384ebf81273


If you asked the Supreme Court if they have any say in this the result would be a 4-4 tie.

[Stavros]

If there is a difference between 'then and now', it is the fear that the retirement of Justice Kennedy, who was considered a 'swing voter', removes any neutrality on the Court, that it is either Republican or Democrat, and that votes on laws follow that party loyalty.

But this is not what the Supreme Court is supposed to do, which is to asses in an objective manner the judicial consequences of political decisions using the Constitution as a a guide. Superficially, one could argue that both Neil Gorsuch and if chosen, Brett Javanaugh could abandon party loyalty if their judicial view compels them to do so, but few have the confidence in those two because of their existing record and their stated preferences.

It may be that the days when Warren Burger could start out in life opposed to abortion, but as a Supreme Court Justice was willing to defend Roe -v- Wade, and William Rehnquist, who opposed Miranda in the 1970s but came to see it as standard police procedure and voted to uphold it (much to Scalia's disgust) -that those days are over and the Court now reflects the bitter divisions in American society transposed to its Supreme Court.

But if that is the case, this is not really law at all, but politics, and Supreme Court Justices, instead of being intellectuals concerned to fine tune legislation, are just unelected politicians with loyalties to party and or individuals, and in some cases may even believe the Bible is more important than the Constitution. If Kavanaugh is chosen, it may mark the begining of, if not a crisis of confidence in the Court, a belief that its reform may be necessary if it is to survive as a branch of government not locked into partisan battles.

[broncofan]

https://twitter.com/JuddLegum/status/1047135850197344256

Brett Kavanaugh lied under oath about when he heard about the Ramirez accusations. He said he had never heard about them before the New Yorker article was printed but was quoted in the New Yorker article discussing them.

Stavros, I think part of the problem is that originalism makes it difficult for a Judge to have an awakening. They believe they can divine the intent of the authors of the Constitution and are not trying to understand where each clause fits into a scheme of government. Part of the problem also dovetails with character and fitness. Does Kavanaugh seem like he has the personal qualities that would allow him to amend his views? Does he seem like he has the integrity to admit that the way he looked at a particular issue was wrong? I don't know what the solution to a bad judicial philosophy is. Or the types of personalities attracted to it.

[buttslinger]

Elena Kagan: 63 to 37 (2010)
Sonia Sotomayor: 68 to 31 (2009)
Samuel A. Alito Jr.: 58 to 42 (2006)
John G. Roberts Jr.: 78 to 22 (2005)
Stephen G. Breyer: 87 to 9 (1994)
Ruth Bader Ginsburg: 96 to 3 (1993)
Clarence Thomas: 52 to 48 (1991)
Anthony M. Kennedy: 97 to 0 (198

[Stavros]

Stavros, I think part of the problem is that originalism makes it difficult for a Judge to have an awakening.

Originalism is something I think I understand, intellectually, but which at the same time seems illogical. I am asked to believe not only that liberty was an established concept in 1781, but that it is has not changed since 1781, in spite of the fact that since then the Constitution has been changed, or there would not have been so many amendments to it. If Scalia is an originalist, surely the Articles of Confederation are the source of all American law, and every subsequent amendment to it is, as it were, 'contestable' because they may be construed as being poltical rather than legal? If Amendment 2 is valid, why not the 14th? Or, why would an originalist accept either the 2nd or the 14th Amendment?

More to the point, and this is an agument in the link, if Scalia was an originalist, why is his 21st Century opinion more valid than a 19th century one?

One may argue about whether a right to be personally armed is so fundamental to a scheme of ordered liberty that it should be applied to the states. But even a justice who thinks the right is fundamental should find it hard to conclude that the drafters of the 14th Amendment read their amendment this way, since in 1876, just ten years after the amendment’s passage, the Supreme Court held that portions of the Bill of Rights, including the Second Amendment, did not bind the states. One might think that particular Court had a better grasp on the 14th Amendment’s framers’ intent than any recent Court could. Yet Justice Scalia, the original originalist, cast a deciding vote in favor of incorporation, disregarding both the 1876 decision and its affirmation with respect to the Second Amendment issue in a later Supreme Court case.
https://www.brookings.edu/blog/fixgo...st-impossible/

It seems to me that the issue is similar to if not as profound as the 'Category Mistake' that Gilbert Ryle argues is the critical flaw in Cartesian philosphy. The mistake is to assume that someone in 2011 can interpret the intentions of a framer of the Constitution in 1781 when it is a matter of record that the same Article of Confederation was changed in 1791 (2nd Amendment) or 1868 (14th Amendment) -though I understand that Scalia, as well as the 'rapper' (?) Kanye West (I know next to nothing about this man) are 'unhappy' with the 14th.

In other words, far from being originalist, it seems Constitutional Amendments are matters of contemporary politics as remote from the date of their origin as the contestant is, be he or she alive in 1791, 1981, or 2011.

An article in the New Yorker allows me to relay what I think is a core point about the Supreme Court:

Anyone involved in constitutional law must confront the fact that the Supreme Court is no ordinary bench but the third branch of government, and the least democratic one. When the Court declares a law or other government action unconstitutional, it is substituting the judgment of nine élite lawyers for that of Congress and other elected officials. The problem is not academic. Scalia himself furnished a critical fifth vote in two cases that have had a marked effect on this year’s election: Citizens United v. Federal Elections Commission, which allowed unlimited campaign spending by individuals and unions, and Shelby County v. Holder, which ended the Department of Justice’s supervision of Southern voting laws under the Voting Rights Act and inspired a wave of new laws restricting ballot access.

The same article makes a telling point with regard to same-sex marriage, inconceivabe in the 18th century, perfectly acceptable to a lot of people in the 21st, just as we are told slavery and racial discrimination were 'acceptable' at one time and indeed enshrined in law, but not at other times:

Constitutional law is always controversial because judges encounter gaps in giving meaning to terms like “liberty,” “equality,” or “arms.” They must fill those gaps by deciding whether constitutional guarantees of liberty and equality offer same-sex couples the right to marry, as the Court did last year, in a ruling that seemed simple decency to many observers, outraged others, and would never have occurred to the people who ratified the Fourteenth Amendment
https://www.newyorker.com/news/news-...ry-originalism

Presidents nominate judges they think will support their policies, it is as simple as that. Perhaps this is why the most obvious flaw in the Oiginalist and Living Constitutionalist concepts of constitutional law, is that the key person in the process, the incumbent President does not care one way or the other what Jefferson or Madison thought was right for America, they are thinking of themselves and their legacy. More Id than ego.

[filghy2]

Originalism is something I think I understand, intellectually, but which at the same time seems illogical.

The obvious illogicality is that it assumes implicitly that a small group of people 240 years ago represented the acme of thinking about constitutional matters. This view is not applied to other areas of law - eg common law is based on rules of precedent, but these rules have still allowed interpretations of the law to evolve over time in response to changing circumstances. I'm pretty sure there would be little support for originalism if it didn't happen to support conservative views on limiting the role of government.

I know these decisions are inherently political, but surely is must be possible to design a selection process that is less based on 'winner takes all' majoritarianism. There is nothing democratic about a passing majority being able to determine the court's composition for potentially decades ahead. Rather than choosing the person favoured by the majority, perhaps the principle should be to choose the person most acceptable to both sides.

One obvious change would be to have term limits as many other countries do rather than lifetime appointments. Another would be that all nominees must come from a list recommended by a bipartisan panel of judges. I'm not sure about requiring a super-majority for confirmation - in a hyper-partisan environment that might just lead to gridlock.

Of course, nothing will change as long as one party thinks that it benefits more from the status quo. Republicans will only accept the need for change if they go through a period where Democrats have the upper hand, which would in turn make the latter less likely to agree. Therein lies the dilemma.

[broncofan]

The issue I have with originalism is that it fails to distinguish between the principles the founding fathers had in mind and the application of those principles. When those who drafted the 14th amendment included an equal protection clause it does not matter whether they had same sex marriage in mind. It doesn’t matter whether they think that same sex marriage was something the principle of equal protection should apply to had they considered it. What matters is what the principle is.

If equal protection prevents discrete groups of people from being treated arbitrarily under the law, there can be a shift in what we consider arbitrary. What equal protection represents is the protection of people’s right not to be singled out without good cause and subjected to a separate set of laws or excluded from our institutions.

If substantive due process ensures that the government cannot pass laws that deprive us of a liberty interest unless they have a compelling reason, there can be a shift in what Justices consider a liberty interest as well as what constitutes a compelling reason. A principle was ratified. The application of the principle or the particular intentions of the ratifiers was not ratified.

Does this idea of having a fluid document that responds to changing mores mean that nothing is fixed and Justices are free to make it up as they go along? No, because they have principles that guide them. They have a document that embodies those principles and they have a civilization made up of people who have gotten things wrong or failed to consider one thing or another and have an awakening on certain issues.

The example of the common law provided by filghy is a good one. Does the evolution of common law lead to improvisation that causes the resulting body of law to be completely unmoored to any principle or concept of justice? Or does it allow Judges to refine the principles when difficult fact patterns challenge them and make the contemporary law more intricate and refined as a result? I would say the latter.

[Stavros]

I agree with both posts above. Whether or not the Supreme Court can be reformed is not something I can discuss, in the UK it took 600 years to reform the hghest court in the land, removing it from the House of Lords to a specially designated 'Supreme Court' but without reforming the practice of the top layer of justices appointing each other. I am going to assume that if the US does reform its Court, it won't take 600 years!

That the President can nominate may be something that can be changed; allowing sitting Justices on the Court to have their input another. An independent panel a third, and so on. It may be that precisely because so many Americans do not trust the current President, and that it is his poor judgement and personally rancid character that will prompt change.

That he has publicly mocked the woman who gave evidence at the Senate hearing will not surprise anyone, but still remains a stark example of the man's absence of moral depth and intelligence, as if insulting people will always be a plus in his playbook. Hard to believe that this display of venom and spite could be the work of 'God's chosen one', if this film is anything to go by-

https://www.theguardian.com/us-news/...on-mark-taylor