Amy Coney Barrett's nomination
Likely, Trump is going to nominate Amy Coney Barrett. https://www.nytimes.com/2020/09/25/us/politics/amy-coney-barrett-supreme-court.html
The Supreme Court plays an increasingly large—and increasingly questionable—role in America's social, economic, and political life. The control of this institution is at stake now. Compared with Brett Kavanaugh's confirmation, do the Dems have leverage and power to effectively oppose Trump's pick for Supreme Court Justice? Will there be the confirmation battle again?
The Supreme Court plays an increasingly large—and increasingly questionable—role in America's social, economic, and political life. The control of this institution is at stake now. Compared with Brett Kavanaugh's confirmation, do the Dems have leverage and power to effectively oppose Trump's pick for Supreme Court Justice? Will there be the confirmation battle again?
Comments (106)
The Democrats had leverage against Kavanaugh because there was a credible sexual assault charge against him, but they had no power to actually stop his nomination by a majority Republican senate. Assuming Amy Coney Barrett hasn't murdered someone she will quickly be confirmed by the senate (although they'd probably confirm her regardless).
As Maw rightly suggests the "confirmation" is a fait accompli.
https://thephilosophyforum.com/discussion/comment/453745
Quoting Maw
Ford had made her case publicly to a friendly press. From a prosecutor's perspective, that was a doubtful way to handle allegations. The allegations were made without first going through extensive investigation to determine the accuser's credibility, whether there was corroborating evidence, and whether there was contrary evidence. Since the media played a crucial role, we cannot exclude a similar pattern.
My post from 9 days ago.
None of that matters when the only reason she's on there is because she's a religious nut who's gonna 100% vote against abortion. Everything else is irrelevant. They're gonna rush the filling of one of the most important positions in the country in record time and the American people may have to live with that for decades to come.
You're just annoyed that she's 10 times smarter than you. :razz:
Let's not kid ourselves that Republicans care about much other than ideological loyalty.
Edit: Or what @Mr Bee said.
Well, there are some other things that impact actual people as well, you see, and she'll be on there for them as well.
I never kid myself, particularly not about the sad politics of our Glorious Union.
I thought that the appointment of Neil Gorsuch went easily by US standards. I may be wrong...
I argued a case before the 7th Circuit a few years ago. Them Judges ain't so smart.
There you have it, the antithesis of justice. For anyone who seriously wants to look into this topic in depth (law as ideology) there are some superb Marxist resources on it. Marxism is a comprehensive analysis of society and its ideals, one doesn't have to be a Marxist to benefit from its analysis. PM if you want a link. :smile:
I'm curious about Neil Gorsuch in this regard. Is he really that bad?
Could you expand your apprehention of law as ideology?
"Just weeks before President Donald Trump reportedly selected her to fill the new Supreme Court vacancy, Judge Amy Coney Barrett delivered a ruling that could help corporations evade long-standing laws requiring them to provide overtime pay to their workers.
That ruling was one of a number of cases in which Barrett helped corporate interests prevail over workers. Her highest-profile business-focused actions on the federal bench have limited the enforcement of age-discrimination laws, restricted federal agencies’ power to punish companies that mislead consumers, and reduced consumers’ rights against predatory debt collectors, according to a recent report from the Alliance for Justice."
A corporate rat.
It's a concept that a power-class can make use of in order to control society. Law gives a class the ability to use violence.
Question: if RBG knew she could affect the make up of the court by retiring earlier, why didn't she? Was it because she didn't want to play politics? The notion that it was because of arrogance makes no sense.
I really don't know, I'm afraid. Many of us (lawyers) have a tendency to practice too long, I think. I saw someone who was an outstanding trial lawyer in his prime make a fool of himself in court when in his 80s, to the dismay of his admirers. Many larger firms put great pressure on older lawyers to retire, fearing malpractice claims. I may die with my boots on, but don't intend to practice after the next few years, just to avoid humiliation (I regularly commit the sin of pride--pridefully, I might add--and so prefer to be remembered as competent).
She may have thought she had more to contribute, and wanted to do so while she could.
And herein lies the problem. You've not presented any argument that her ruling was legally wrong. Assuming the assessment of the Alliance for Justice (an openly liberal organization) is completely accurate, it might well be the case that the law in question was written by Congress to allow corporate interests to prevail over workers, which would mean your ire ought be directed at Congress instead of the judge who accurately interpreted the law.
And now let's assume you take me up on my challenge, and actually go back to her written opinion and cite from points of her legal analysis you find so flawed that no reasonable judge could so rule, how could I ever take that seriously without thinking you're now just trying to justify your previously stated knee jerk disdain for corporations? That is to say, you seem results oriented, less concerned about the legal analysis than in whether your political ideology is advanced. Is that how nominees are to be judged, as to whether their rulings help those you wish to help, instead of whether they are legally accurate?
The reason she provided suggests that she didn't believe a Republican Senate would have approved someone as liberal as she was, so she felt she was protecting a liberal seat. https://www.marketwatch.com/story/ruth-bader-ginsburg-reveals-why-she-didnt-retire-during-obamas-term-2019-09-19
I think she hoped to make it to a Democratic President and Senate, or, maybe, she just loved going to work every day.
Weirdest of all, the vast majority of Trump supporters are working class and cheer at her nomination.
Do you believe that those whose economic position would improve under a Marxist system are logically compelled to believe in the virtue of Marxism? It seems people on both sides are more ideological than that and not entirely concerned about how a particular policy might or might not work to their immediate financial advantage. If that weren't the case, every rich person would be logically compelled to believe in the virtue of laissez-faire capitalism, yet they don't.
I'm just saying that if manipulating the system for political reasons was a high priority for her, she would have retired when Obama had a chance to replace her with a liberal. She was intelligent. She knew her course of action would allow the American electorate have a say regarding her replacement. That's the way it's supposed to work (ideally).
People are nuanced, complicated, and not entirely consistent in their thinking or actions, so I don't think you can really figure people out that accurately. Why she held on until the undertaker carried her out is going to require some speculation, and it's doubtful she fully knew exactly what drove her.
Er, yes. Quite literally fuck the law and all involved in upholding it if it leads to bad outcomes.
Yes, the human heart is all unfathomable and what not. You cant deny that when she had a chance to bypass the electorate and act for political reasons, she chose not to.
I’d simply like a SC that doesn’t favor the rich and powerful. I’m a dreamer.
As Trump (and others) might say, I suspect. But perhaps you're being ironic. If not, there's nothing like honesty.
Ah well. But you can't be accused of dissembling, that's for certain.
I haven't read any of her opinions, but I doubt she's written more than a few for a majority of the court in the three years she's been a judge. I'd guess she's written more dissents, though, or joined in them. People of Praise, forsooth.
Except that she specifically said her dying wish was survive the Trump presidency so that her successor could be named by hopefully Biden.
Interesting philosophy. Not sure why we really need a legislature, since the Court under your system is permitted to make the law whatever it is it thinks will lead to the best outcome.
Perhaps that’s true. We cannot know until we read her SC opinions, but she herself claims to be an originalist.
Actually all she said was "My most fervent wish is that I will not be replaced until a new president is installed.'”
You added the "hopefully Biden". So all we can expect from you is a politically biased response. Good to know.
I stand corrected. I should have said, "hopefully Biden or Jorgenson," since it is possible the "new" president may not be Biden, but there exists the possibility that Libertarian powerhouse might take the nation by storm in the next few weeks.
She said "new," which I take to be distinct from "old," as in when I get a new car, I'm no longer driving the old one, like if the old president was Trump, the new one would be Biden, although I concede they're both old in terms of age.
But, sure, maybe she meant that she had a fervent wish for her appointment to be named by Trump in his second term because for some reason that was her oddball dream, to have a second term president name her successor and not a first term one because that makes a whole lot of sense.
People are nuanced and complicated arent they?
You're the only person with that strained interpretation, but it is worthy to note your belief that if she did mean what the rest of the world thinks she meant that she's an underhanded amoral slug.
It came to me while trying to fit the pieces together in a way that made sense. I don't really know why she didn't retire earlier.
Quoting Hanover
Why is it worthy to note that judges aren't supposed to be politically biased? Is that a new idea for you?
I noted that it was worthy to note that is what you believed, not what ought be believed. At any rate, you've left yourself with little room in between. Either RBG is scum of the earth or she speaks in hieroglyphics but is best understood once deciphered that she is entirely apolitical and above the fray.
I think there's another way to interpret her words and actions, though. I don't see that you have any reasonable grounds to rule out that other way. It's just that you want her to be a slug?
I just don't believe that's what she meant. She has made prior comments that were negative about Trump:
From https://www.foxnews.com/politics/ginsburg-says-she-regrets-comments-on-trump:
"Ginsburg had given an interview to The New York Times saying she didn’t “even want to contemplate” the country and court under a President Trump.
She later called him a “faker” in a separate interview with CNN.
"He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. ... How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that," she said."
Her more recent comments are consistent with that. What she said was ""My most fervent wish is that I will not be replaced until a new president is installed.'” New means different in this context and no amount of generosity of interpretation changes that.
She understood that her brand of liberalism would not be replaced by the current president and so she wanted a new one to be there prior to her death.
True. The source I saw said "next." Nina Totenberg says "new," so I was mistaken there, and I can see how you would interpret that as: "I don't want Trump to nominate the next justice."
So I take it back that you can't be unbiased. I guess I'm just sick to death of people not even trying to be truthful. I thought that's what you were doing.
Still, if she was particularly condemning Trump with that statement, that doesn't necessarily mean she was playing politics. John Bolton has said similar things about him, so you can be anti-Trump without being a liberal slug. You might just be one of those crazy America-lovers.
Please correct me if I am wrong: probably, for the majority of people, judge Barrett’s professional or personal qualities almost do not matter. Maybe, some reject her due to pure ideological reasons: she is a conservative, and the Constitution is a “conservative” document. To defend the Constitution, to judge according to the Constitution would mean to preserve the existing system rather than swiftly and dramatically change it. Yet, likely, the current political conjuncture matters more than ideological reasoning: it is about the upcoming elections calculus. Both sides will try to benefit from the confirmation process. The Dems will try to discredit Barrett, the whole confirmation process, and Trump’s authority as a legitimate POTUS. For Trump and GOP, it could be a chance to represent their platforms better, and attract additional voters: women, Catholics, etc. Therefore, even if ACB is a brilliant and virtuous judge, she will be seen primarily through partisan glasses.
Just a few marginal groups or individuals embrace such a radical perspective on Law. The waste majority of people do not take The Supreme Court, the Rule of Law, the nomination and confirmation of Supreme Court Justice, etc. as merely disguising violence and control of society. On the contrary, they consider them as necessary and useful parts of the whole system. If so, you have to explain how the subordinated groups (classes) are induced to mistake their own interests for the mirage of the ‘general’ interest. How are they duped into affectively investing in power mechanisms that oppress them without ever noticing the contradiction?
Senator Feinstein: "This well could mean that if Judge Barrett is confirmed, Americans stand to lose the benefits that the ACA provides… More than 130 million Americans with pre-existing conditions could be denied coverage or charged more to obtain health insurance." At the same time, the GOP's position is the independence of the field of justice of the current political issues.
Since what's good for the goose is good for the gander, you must be suggesting that if Barrett isn't confirmed in time, then the Republicans should await the next opportunity they're in power to pack the court.
I was actually about to vote for Biden (true story) until he took the stance that he didn't have to take a stance on the court packing issue, which he took after declaring the Barrett nomination was unconstitutional. Nothing like a good dodge and lie to distinguish himself from Trump.
So what's the principle you advocate here, that the 9 Justices act as philosopher kings and either re-write or strike down every law that, in their opinion, results in a bad consequence? Perhaps the ACA is unconstitutional, but perhaps it is not, but what difference does it make for the analysis to look at how many Americans will be lose coverage when making that determination?
But I like having originalists around to temper that sort of thing.
Well, you're suggesting that the originalists temper the meaning and the liberals expand the meaning, which is to concede that what's occurring is judicial activism and not judicial interpretation. I think even the liberalist of liberals would argue that their interpretation is based upon textual support at some level. They wouldn't come out and admit, for example, that gay marriage isn't addressed by the Constitution, but that they find its prohibition personally offensive, so they allow it. They cite to the text for their propositions. Activism can happen on both sides, and it's just as possible for a conservative to be results oriented as a liberal. For example, the conservatives found a right to corporate free speech in the 1st Amendment that the liberals could not locate, yet the liberals were able to find the right to abortion in the 14th Amendment and they still cannot find the right to bear arms in the 2nd Amendment. More on conservative activism: https://harvardlpr.com/wp-content/uploads/sites/20/2015/04/9-1_Whitehouse.pdf
Quoting Hanover
Correct. The Court has circumvented a crippled congress in some cases. You're saying some mud slipped through the bypass they created. I think the form of the US government is a breeding ground for corruption. History shows that every time American ideals have found a way forward, some greedy bastards found a way to pull the country back into the dirt, sometimes using the very apparatus created to help the poor or whomever.
BTW, can you explain if the Dred Scott decision came from an originalist perspective or a living constitution one?
That's why Dems should pack the court. Republicans either a) blocked legitimate hearings on Garland or b) are pursuing an illegitimate process now. You can't have it both ways.
Quoting Hanover
What mostly distinguishes him from Trump is he's not so cozy with neo-nazis and white supremacists. Having said that, I'm not a fan of his and I probably wouldn't vote for him either (though at this point I wouldn't criticise anyone who would).
It is a fundamental ambivalence here. In principle, the field of justice is autonomous and independent. Likely, when philosopher-kings in SCOTUS impose the final decisions in the most divisive political and social disputes, no one (even themselves) can be certain about the 'real' reasons for their choices. Consciously, they may think that they judge exclusively based on Law and The Constitution. Yet, unconsciously, they may be led by their partisan (liberal or conservative) values. So, the ACA's constitutionality can function as a rationalization for disguising the favourable perspectives.
I've not read it in a while, so I'm not sure I can comment on that specifically. I think it's held out as a terrible decision from a legal analysis perspective, not to mention its political ramifications (like it being a precursor to an attempted overthrow of the US government). https://www.britannica.com/event/Dred-Scott-decision
Had the original Constitution contained the 13th Amendment prohibiting slavery, then the civil war would likely have been averted, so you could argue that it's original form did lead to the civil war. Of course, had it contained that amendment in the original, the south would have never signed the Constitution and entered the union in the first place, so there'd never have been a civil war.
But, to the general proposition, if you can create a hypothetical that results in such massive death and destruction as we saw in the civil war and that can be averted by an unprincipled and illogical Constitutional interpretation, I'm in favor of intellectual dishonesty over mass death. My fidelity to the law and logical reasoning has its bounds..
I think we agree, then. Since the court could find itself with the future of the USA in its hands, we wouldnt want to create an extremely rigid court.
I'm ok with Coney-Barrett because she was a fan of Scalia's and based on the writings he left behind, he was awesome.
I wouldnt want all the justices to be like her though.
Read the "original" US Constitution (1787). Stop. Okay, add the "original" 10 Amendments (1791). Stop.
Unless I'm profoundly mistaken, this is how Judge Barrett and her mentors / heroes such as the late Justice Scalia, Justice Thomas, and their (extremist) Federalist Society ilk frame questions of constitutional (& statutory) interpretation - even when considering later Amendments or SCOTUS precedents:
• no popular elections of President (elected by Congress) or Senators (elected by State Legistlatures)
• the Electoral College is weighted heavily in favor of slave-holding southern states (which was its manifest function at the time of Ratification)
• all non-whites are "3/5ths Persons"; therefore they are NOT CITIZENS and LACK STANDING in the courts of law (re: Dred Scott)
• SLAVERY IS LEGAL AND PROTECTED BY PROPERTY RIGHTS LAWS & CUSTOMS
• no voting rights for non-whites & women - VOTING RIGHTS ONLY FOR WHITE MALES
• no "Miranda" rights ...
• no "Privacy" rights ...
• no "Labor" rights ...
etcetera.
So, yeah, pack the effin' courts, President Biden. The 117th Congress ought to expand the SCOTUS from 9 to 12 seats (minimum) AND then, after Biden picks 3 new justices, legistlate that no more than 1 new justice can be appointed per 4-year presidential term regardless of how many vacancies occur during that term. This 18th century anti-democratic slaveholder hangover has got to end (IMO) to avert another civil war.
Just my 2 bit(coin)s. :mask:
wut
yup.
I would make that exactly 1, no more no less, regardless of vacancies. Otherwise the Senate could just block appointment like they did to Obama.
Originalists dont disregard the amendments.
When you examined a standard definition of "originalist" and interpreted it thereby, you were being constructionalist.
If you were being originalist, you would anchor yourself in the vantage point of the people who speak in terms of constitutional originalism and interpret according to their viewpoint at the appropriate level of generality.
It's super easy to imagine a case where the nation's values would be best preserved by an originalist court, like if neonazis decided to build Krakow II in your backyard. An neonazi originalist would say, 'Even though I'm a neonazi, I have to put that aside and interpret the law as written.
1. legislative historic interpretation, you look at the recorded discussion of legislators with respect to that specific law
2. legal historic interpretation, this is broader and also takes into account the social history or even ancient legal systems (like Roman law)
3. legal systemic interpretation, the law is probably related to other laws and the meaning of the law can become clear if its position in the broader legal system is understood
4. teleological interpretation, what did the legislator intend to prohibit or stimulate with the law
5. anticipating interpretation (to be exercised with caution), new laws are expected to be passed and the judge could interpret existing law to match upcoming laws
All methods of interpretation should be employed, compared and then weighted. Judging is about deciding what is the correct answer between alternatives. If you do not allow alternatives because of a self-imposed bias, you're not judging, you're just imposing pre-conceived notions on existing text.
In other words, originalists are bad judges by definition.
As to Amy, I find her non-commital to the point of being untrustworthy. The woman pretends to have no opinions on important subjects by claiming ignorance.
:100:
I feel like that is the major issue from the perspective of the judiciary. It must re-establish it's independence from day-to-day politics.
Consideration needs to be given to the democratic mandate, but the interpretation and application of legal texts is practiced with that in mind in many different settings in many different countries. The standard canon of interpretative techniques is usually considered adequate for the task.
It's also important to recognise that the judiciary always goes slightly beyond the democratic mandate, because the legislative body does not (and in fact often isn't allowed to) consider individual cases. It's a complex process of cross-pollination.
There is a particular principle that motivates American devotees to originalism. You may be right in other contexts, but the title of this thread narrows the context to Amarica.
Also, it's rather ludicrous to claim American exceptionalism in this area.
Originalism is not a subset of textualism.
Textualism has no "intent" involved, it doesn't question what the lawgiver intended, it's solely concerned with what the text to a reasonable person is supposed to mean. Or to put it bluntly: "Fuck the lawgiver". Given that, I don't see in what world originalism can be a subset of textualism if the principle of intent is paramount in one and to be totally ignored in the other.
EDIT: subsuming originalism under textualism is of course a political play. Textualism is a primary interpretation technique; if a law is clear the other interpretative techniques aren't going to move the interpretation. That's why a textual (or as we call it in thet Netherlands "grammatical") interpretation is paramount and considered the most pure; a clear law only needs textual interpretation. By pretending that including the intent of the lawgiver is still a textual interpretation, the suggestion is it is as pure as an actual textual interpretation. It isn't. Originalism is just a bunch of regressives worrying that a static text will necessarily affect a changing world differently than a bunch of wig-wearing racist scumbags could predict.
Scalia's method was to ask what the text would have meant to an ordinary person at the time it was passed.
He believed that only the text of the law became operative, not the intent behind it, but that the text needed to be viewed in it's historical context. He was an originalist in outlook, but originalism is not a specific technique.
From Wiki:
"The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be. Most originalists, such as Antonin Scalia, are associated with this view."
"Bret Boyce described the origins of the term originalist as follows: The term "originalism" has been most commonly used since the middle 1980s and was apparently coined by Paul Brest in The Misconceived Quest for the Original Understanding.[1] It is often asserted that originalism is synonymous with strict constructionism.[6][7][8][9]
Supreme Court Justice Antonin Scalia was a firm believer in originalism
Both theories are associated with textualist and formalist schools of thought, however there are pronounced differences between them. Scalia differentiated the two by pointing out that, unlike an originalist, a strict constructionist would not acknowledge that he uses a cane means he walks with a cane (because, strictly speaking, this is not what he uses a cane means).[10] Scalia averred that he was "not a strict constructionist, and no-one ought to be"; he goes further, calling strict constructionism "a degraded form of textualism that brings the whole philosophy into disrepute".[11]"
https://en.wikipedia.org/wiki/Originalism
I take this to mean that it's impossible to interpret text without some reference to what the original meaning of the terms are. I also see Scalia's distinction between textualism and strict constructionism to mean he does allow for contextualizing any law with other bodies of law and making sense of the whole.
I find adhering to a mode of interpretation as the interpretation idiotic. And originalism in particular has been a sorry excuse to push regressive interpretations with judges overestimating their ability to understand language and history. Prefatory clause indeed. :lol:
You've got to choose some mode, and you ought to be consistent, not jumping from mode to mode as the whim hits you, unless you choose to adhere to the whimsical mode, which is good because it leaves them guessing.
What the mode ought to be is a matter of debate, but I assume you have to provide some reason for your preference, and whatever those reasons, you ought be able to defend them. The basis for a restrictive method of interpretation is in protecting the democracy from an overly ambitious group of 5 people who wish to impose their wisdom on the entire populace. I don't think that reasoning is stupid, and I think there is some wisdom in letting the citizens decide. Even though the democracy does drag its feet in bringing about change, I'd submit its the legitimate way to do it.
Edit: or even combine them. But these things are obvious if you're trained in the Netherlands. A judge here is expected to research the different interpretations.
How is the zeitgeist determined that will dictate which interpretative scheme you use? This sounds like you're getting close to allowing public sentiment to enter the judge's decision making process, which seems antithetical to the concept of objective justice.
Quoting Benkei
I know, things are soooo much better in the Netherlands.
Objective justice. :rofl:
And no, we're not talking about public sentiment, we're talking about the dictates of public conscience or, if you prefer, ordre public.
These dictates do not inform interpretation, they are employed to distinguish between the different interpretations and select the most appropriate one.
The idea is that you figure out what the law is, in a given situation. Laws are after all made for real people in real life. They're not some kind of artefact to carefully preserve in a glass case. They're made to be applied.
It's not an algorithm that you input some facts into and it'll spit out the result. You weigh different aspects, you decide which ones are the most important ones, and you make a decision. The constraining factor is that you have to be able to justify your decision, and that justification has to obey a bunch of rules. Acting as if there was one single rule which solves cases is merely obfuscating the actual decision making process.