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Should Brett Kavanaugh SCOTUS Nomination Continue?

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Should Brett Kavanaugh SCOTUS Nomination Continue?

Yes 53 47.32%
 
No 41 36.61%
 
Trump should pick a new canidate 18 16.07%
 
Total:112

While Schumer is getting some play here, I thought this Twitter post from him in regards to CJ Roberts saying there aren't any Republican or Democrat judges (which, honestly, is naive at best) in response to Trump attacking a judge as a partisan kinda says it all about Schumer:

I don’t agree very often with Chief Justice Roberts, especially his partisan decisions which seem highly political on Citizens United, Janus, and Shelby.

But I am thankful today that he—almost alone among Republicans—stood up to President Trump and for an independent judiciary.

Basically he's like, "See, even the partisan, highly political judge Roberts agrees that there aren't any political or partisan judges."  And apparently no one in his staff felt the need to point out the contradiction that he was basically saying exactly the same thing Trump did.



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—Appointment wars: When thinking of the Bork confirmation fight, I haven't ever gone much farther than "the guy who kowtowed to Nixon's firing of the special prosecutor", but maybe there's some more nuance there.

When you say the escalation "all happened on the Democratic side", how far back does the game go of holding up the lower court appointments? I haven't heard of it going back farther than Clinton but you seem to have done more research here.

—"What you highlighted is a proactive defense to the objection that this would put the seat off to the new president. Nothing more."
Okay, so if you agree he's proactively defending against said objection, to me that clearly means that he is saying that said objection does not accurately reflect his position. So would you agree that his "proactive defense" included a denial that his proposal "would put the seat off to the new president"? If so, what could that possibly mean other than that the current president would get a chance after all to nominate someone?

I interpret his talk of "if Gov. Clinton wins" as saying "in that case Bush should tailor his nominee to the will of the people, i.e. someone friendlier to Democrats than would be the case if Bush wins re-election". In other words, "if Bush wins, then you get a normal appointment outside of the highly charged campaign season; if Clinton wins, we want you to name a relatively liberal justice." I would agree that the "or else" is not exactly hard to find in such an interpretation, but it's still not the same as your interpretation.

—"Democrat nominees that can squint and find a right an abortion in the 14th Amendment, but can't find a right to bear arms in the 2nd" example please.



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Final-Fan said:
—Appointment wars: When thinking of the Bork confirmation fight, I haven't ever gone much farther than "the guy who kowtowed to Nixon's firing of the special prosecutor", but maybe there's some more nuance there. 

Yeah, Bork got put in a lousy situation.  The top two guys at Justice were already gone and the department was basically facing a decapitation at a pretty important time.  Later that year he said that he was going to resign immediately after carrying out the president's order, if for no other reason than to protect his own reputation, but was talked into staying.

I think he could have survived that.  What Bork's real problem was, was that he was Scalia before Scalia.  He helped create the foundations of originalism.  I don't think there's any doubt that Bork was qualified.  His contribution to legal theory is unmatched in modern times by other nominees outside of Marshall and Ginsburg before they reached the court.  And even those two didn't quite have the breadth of influence as their achievements were largely focused on individual aspects of the law while Bork help shepherd a legal philosophy that has grown into the preeminent conservative jurisprudence.

What set Bork's nomination apart, though, was that for years presidents were generally given a the viciousness of the attacks against him and the quasi-political campaign nature of them.  It was warned that he'd take America back to segregation and make evolution illegal.  It set several precedents.  For one, it became the template that all future Republican nominees would have to deal with.  The talking point you hear "take us back to..." became set and would be used pretty much reflexively.

Bork was candid about his judicial philosophy with the judiciary committee.  This was used against him as nuanced legal reasoning was simplified for public consumption.  Additionally, he did not play well on television.  As a result, judicial nominees largely say nothing of interest during their confirmation hearings and are reduced to meaningless soundbites that are repeated over and over.

Generally, presidents were allowed their judicial nominations previously as long as they were qualified.  I don't want to oversell that point because sometime they didn't get their way, but most judicial nominees were passed with little to no opposition.  Bork's nomination process really set things in motion to the point where I doubt I'll ever see a judicial nominee with 80+ votes again in my lifetime.

When you say the escalation "all happened on the Democratic side", how far back does the game go of holding up the lower court appointments? I haven't heard of it going back farther than Clinton but you seem to have done more research here. 

Well, if it went back further than Clinton, it would have to be on the Democrat side, wouldn't it?  Clinton was the first Democrat to have to deal with a Republican Senate since Truman's first term.

Anyway, here's a list of George H.W. Bush circuit court nominees that sat in committee and were never acted on until Clinton took over.

  • Franklin Stuart Van Antwerpen
  • Jay Waldman
  • Terrence Boyle
  • Lillian BeVier
  • Sidney A. Fitzwater
  • John Smietanka
  • Frank Keating
  • Federico Moreno
  • John Roberts

That's just the circuit court nominees I could find.  I'm not going to research the district level.  But here's a page showing all the failed court nominees and showing the ones that never received a vote and the explosion of them in recent years.  Though not receiving a vote could just mean the nomination was withdrawn.

https://www.fjc.gov/history/judges/unsuccessful-nominations-and-recess-appointments

—"What you highlighted is a proactive defense to the objection that this would put the seat off to the new president. Nothing more."
Okay, so if you agree he's proactively defending against said objection, to me that clearly means that he is saying that said objection does not accurately reflect his position. So would you agree that his "proactive defense" included a denial that his proposal "would put the seat off to the new president"? If so, what could that possibly mean other than that the current president would get a chance after all to nominate someone? 

Incorrect.  Biden never denies that he was putting off his seat until the next president (assuming Bush lost).  All he denied wast that it was MOTIVATION for doing so.  You see, Biden says, it is all about keeping dignity for the process.

McConnell basically did the same thing.  He swore up and down with a straight face that he wasn't keeping Scalia's seat open because he hoped a Republican president would fill it.  He used the paper-thin excuse that he just wanted to let the American people have a say.  This was rotgut of course.  But it gave him some bit of deniability (I suppose).  Biden did the same thing.  Biden was saying his motives in this are pure despite the reason proffered, that he doesn't think the Senate can behave itself, is quite possibly even thinner than McConnell's lame excuse.

This was a prepared speech.  If Biden were offering to allow Bush to nominate and confirm someone after the election he could have and would have said so.  It would have made his speech much less controversial.  He chose not to.  Instead, you're parsing.

And, again, Biden knew that there was no realistic way Bush would get in a nomination as a lame-duck president.  Our realistic choices come down to either Republicans are correct and Biden said that the winner of the election would decide.  Or Biden was lying and he was out to accomplish the same thing in a misleading manner.

—"Democrat nominees that can squint and find a right an abortion in the 14th Amendment, but can't find a right to bear arms in the 2nd" example please. 

<scratches head>

I thought those were examples.  Here's a couple recent-ish cases on the controversies if you like.

https://www.law.cornell.edu/supct/html/07-290.ZS.html

https://www.law.cornell.edu/supct/html/05-380.ZS.html



—Bork: I'd take that bet (not even one 80% passage in my or your lifetime after 2018)
—Escalation: that is what I meant by before Clinton, yes.
—Biden: I think we've taken this as far as it's going.

—Example: I was looking for examples of "Democrat nominees" who fit both of your other stated conditions. Based on your cases cited, can I take it that you mean specifically Ruth Bader Ginsburg?



Tag (courtesy of fkusumot): "Please feel free -- nay, I encourage you -- to offer rebuttal."
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My advice to fanboys: Brag about stuff that's true, not about stuff that's false. Predict stuff that's likely, not stuff that's unlikely. You will be happier, and we will be happier.

"Everyone is entitled to his own opinion, but not his own facts." - Sen. Pat Moynihan
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Final-Fan said:
—Example: I was looking for examples of "Democrat nominees" who fit both of your other stated conditions. Based on your cases cited, can I take it that you mean specifically Ruth Bader Ginsburg?

https://en.wikipedia.org/wiki/Whole_Woman%27s_Health_v._Hellerstedt

https://en.wikipedia.org/wiki/McDonald_v._City_of_Chicago

Don't think Kagan's made a specific ruling on the 2nd Amendment, but the rest of them all have (and I rather doubt she'll buck the trend).  And I probably should have said liberal instead of Democrat nominee.

Last edited by NightlyPoe - on 27 November 2018

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NightlyPoe said:
Final-Fan said:
—Example: I was looking for examples of "Democrat nominees" who fit both of your other stated conditions. Based on your cases cited, can I take it that you mean specifically Ruth Bader Ginsburg?

ttps://en.wikipedia.org/wiki/Whole_Woman%27s_Health_v._Hellerstedt

https://en.wikipedia.org/wiki/McDonald_v._City_of_Chicago

Don't think Kagan's made a specific ruling on the 2nd Amendment, but the rest of them all have (and I rather doubt she'll buck the trend).  And I probably should have said liberal instead of Democrat nominee.

I'm looking at the opinions you cited, but it might take me a while.  In the meantime, here are some of my preliminary thoughts: 
—What I'm seeing so far in the McDonald dissent seems more focused on the 14th amendment than the 2nd.  Are you just criticizing them for being inconsistent in their level of enthusiasm in applying the 14th amendment to things?  Or are you actually focused on the 2nd amendment as such? 
—Going back to when you say, "squint and find a right [to] an abortion", I don't want to put words in your mouth but it sounds like you may think that the constitution when properly read should not guarantee the right to an abortion or at least not where Roe v. Wade found such protection.  Could you elaborate on your thoughts on this issue? 

If you'd rather wait until I've finished reading, feel free to do so.  Although the second question doesn't seem likely to be affected by what I find here. 



Tag (courtesy of fkusumot): "Please feel free -- nay, I encourage you -- to offer rebuttal."
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My advice to fanboys: Brag about stuff that's true, not about stuff that's false. Predict stuff that's likely, not stuff that's unlikely. You will be happier, and we will be happier.

"Everyone is entitled to his own opinion, but not his own facts." - Sen. Pat Moynihan
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I have the most epic death scene ever in VGChartz Mafia.  Thanks WordsofWisdom! 

Final-Fan said:

I'm looking at the opinions you cited, but it might take me a while.  In the meantime, here are some of my preliminary thoughts: 
—What I'm seeing so far in the McDonald dissent seems more focused on the 14th amendment than the 2nd.  Are you just criticizing them for being inconsistent in their level of enthusiasm in applying the 14th amendment to things?  Or are you actually focused on the 2nd amendment as such? 

That's weird, I thought I cited the actual cases, not the Wiki articles.  Guess I'm tired.  Anyway, here you go.

https://supreme.justia.com/cases/federal/us/561/742/#tab-opinion-1963367

That's Breyer's dissent signed by the other 2 Democrat justices at the time.  It includes a re-litigation of Heller in part 1.

—Going back to when you say, "squint and find a right [to] an abortion", I don't want to put words in your mouth but it sounds like you may think that the constitution when properly read should not guarantee the right to an abortion or at least not where Roe v. Wade found such protection.  Could you elaborate on your thoughts on this issue?  

I've already proven it's getting late and my mind isn't working all that well.  But it's basically what I said.  Abortion isn't there in the text.  It's not implied in the text.  A reasoned reading could not get you there.  Instead, it's basically an outcome in search of an excuse and legal scholars generally consider the decision to be rather poor even if they do like the outcome.

Frankly, there's a better argument to be made that the 14th Amendment demands that abortion be illegal than it does that it demands it be legal via the Equal Protections Clause.  It has its own flaws, chief among them being that it fails originalist tests, but at least you can make a real argument that legal abortion separates humans into different classes, one of which is so far beneath the other that legalized homicide is allowed at the mere whim of the superior class.  That is certainly not protecting equally.  And the concept of Equal Protections is clearly written within the 14th Amendment.

Again, I'm not saying that view would or should prevail.  I'm saying that it's a much stronger argument within the confines of the actual text.

I'd be content just to restore the question back to the populace where it has belonged this whole time.  I do not believe any of the "because we say so" type of judgments that liberal justices say come from the due process clause are compatible with an honest judiciary.  It was true back in the Lochner era when conservative judges were performing their own innovative interpretations to get the results they wanted for their preferred economic theory by maintaining substantive due process for contracts and it's still true now.

Last edited by NightlyPoe - on 27 November 2018

I think it’s a stain that will remain in people’s mind for as long as he’s in the seat. Even though it is a life long position, he can be removed through impeachment. I think they should replace him with any other conservative judge.



Final-Fan said:

Is it your position that smears against nominees in a confirmation hearing are more corrosive to the process than entirely blocking nominees from getting a confirmation hearing in the first place? 

On that note, I think it would be a problem for the process if serious criminal accusations were ignored if it may stain someone's name. Though publicly outing the name of an accuser who wished to remain anonymous is going to make future potential victims/witnesses more hesitant in coming forward, even anonymously.