NightlyPoe said:
They might say the same thing, but they would be wrong. The judiciary is a LOT more dangerous to Republicans going forward than to Democrats. At worst, Democrats will have to face winning on the ballot more often. Conservative judges are much less apt to be activist because their internal philosophy is not activist. Perhaps they're not pure, but they at least have ethics.
Democrat judges have no ethics beyond result-oriented rulings.
And this is not a flaw. Democrats often state that as what they want in a judge. Whether it be an empathy standard, or standing up for the "little guy", or "not taking us back to" whatever decade. Go back and watch Obama or Clinton's answer on judges during the debate. That's the type of rhetoric you see, and no mention of actually following the law.
| Also, I will skip over your assertions on the legality of the gun ownership and abortion, as I feel like that is a tangent for another post. |
It is not a tangent. It is very important. One is in the Constitution, in the Bill of Rights at that, and the liberal wing was in lockstep in pretending it doesn't exist despite explicit inclusion. Abortion is nowhere to be seen, but is treated as sacrosanct. Same thing with many other hot-button issues.
That's the difference here. Republicans now aren't allowed to vote on many of these issues. They cannot change people's minds. They just have to live with what a few people on a court said despite there being no justification for it.
| This could also be used as evidence as to how right leaning the court actually is. Statistically, the justices are all more likely to agree with the majority vote, and all justices cross party lines from time to time. In the 2018 season, which just happened to be the first one that popped up, after Kavanaugh and Roberts, the next two judges were Alito and Kagan in terms of "crossing the aisle". All the other judges were effectively tied. |
Not particularly. This may be surprising, but modern liberal social doctrine wasn't written into documents 160-240 years ago.
| Statistically, the justices are all more likely to agree with the majority vote, and all justices cross party lines from time to time. |
That's due to the number of unanimous decisions every session.
| In the 2018 season, which just happened to be the first one that popped up, after Kavanaugh and Roberts, the next two judges were Alito and Kagan in terms of "crossing the aisle". All the other judges were effectively tied. |
So, there's one liberal judge that was a little more willing to cross the line.
But that one was Kagan, who has become the court's liberal shepherd. The one who works the moderates into her court.
| This seems a bit revisionist to me. Supreme court justice appointments were meant to be bipartisan, but the filibuster was an option for most of US history. Just because it was not needed, doesn't make it new. While I don't know the exact history of its use for judicial appointments, I do know the opposition to judgeships was typically rare. The significance of 2005 was actually that when Republicans (annoyed with Democrats blocking their judges) wanted to eliminate the filibuster, a coalition of Republican and Democratic senators banded together to prevent the Republican majority from enacting the "nuclear option". |
That would be revisionist history. As I stated, filibusters were never used to block judicial appointments. Fortas is the only example and, as stated, that was engineered by Johnson to save face for his nominee.
The filibuster went from not being used, to being used routinely starting in 2005. Just when Bush won re-election. And when Republicans held a very solid 10-vote majority.
| I have vague memories of the political climate back in those days, as I was a pretty clueless teenager, so I'm not gonna assert whether the actions of the Republicans or the Democrats were justified. But I think it speaks volumes as to how are political climate has changed, that back in 2005 a bipartisan group of the senators crossed party lines to save the filibuster and ensure a semblance of bipartisanship in judicial appointments. No one was there to save us this time. |
Yes. In 2005, a Republican group allowed Democrats to wield the filibuster thinking that Republicans would use it in the future.
When Republicans did, Democrats nuked.
| It is not about Gorsuch's voting record, or whether or not he was qualified. It's a perception thing. I will admit I haven't hated Gorsuch as a judge. But it's more about the population opinion writ large. |
It was press you mean. Narrative. Democrats would have certainly done the same thing (and did), but the problem is that Republicans did it first.
| No, I'm asking for bipartisan judges. I don't want revisionists. I don't want judicial activism. |
Then you need to vote Republican. Sorry, but that's just the truth. There's only one party interested in judges that even try to read the law as it is and not as they wish. Democrats long abandoned this notion and they have gotten only more demanding that judges vote their way.
Anyway, I'm going to work soon, so I'll leave the rest of your post for later.
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Sorry, life got busy, but I did not forget about this post, and I feel like it's a topic worth diving into further. I know the conversation may have drifted from the topic of supreme court justices, but I felt like the contents of this post were more suited to remain in this forum rather than a PM.
So I want to start off by stating very simply that I do not want to get into a fisticuffs about which justices are more ethical, and which party's judges interpret the law more correctly, because that is a manner of opinion and is frankly a stupid discussion. I've already shared my opinion. So I am going to ignore any comments that are blatantly partisan.
The crux of issue is a disagreement in how the constitution is interpreted. This is where I will call you out specifically. You disagree with Democratic judges because of how you philosophically believe the text of the constitution should be interpretted under different circumstances. In reality there are four schools of thought (well five, but the last one is a real yikes):
- textualism: literal interpretation of the text
- originalism: focuses on the intent at the time of writing, which cannot change or evolve over time
- intentionalism: focuses on the intent at the time of writing, which was written to address unforeseen political issues
- pragmatism: focuses on the consequences of legal interpretations to promote stability and public good
- natural law: higher moral law trumps the text (what people fear Amy Coney Barret is, re: religious rulings)
Often textualism and originalism are used interchangably, while intentionalism and pragmatism are often lumped together as a "living interpretation". This is obviously an over-simplification. I will let you speak for yourself in regards to your beliefs, but first I want to get my digs in against the various forms of interpretation of the Constitution. This is where I am going to break my own rules for a moment.
Firstly, textualism... there isn't really much to say. It's pretty straightforward. What the laws says is what it means. It's convenient, and I am sympathetic to this line of thinking. I imagine most law makers write laws with the hope they catch every loop hole and address every relevant issue. But a good law maker also knows they can't foresee everything. This means that in some form a law is inevitably going to be up for interpretation. And the person doing the interpreting will not be the ones who wrote it, even if they are still alive. For more modern laws, this is probably the de facto best way to read law, but most of the Constitution is pretty old, so this is not a good way to interpret the Constitution, in my opinion.
The second two, originalism and intentionalism, are effectively exact opposites, even if they apply the same logic. Originalism is that intent only matters for what that law was addressing at the time of writing and intentionalism is that the law was written to address unforeseen circumstances. Originalism is bullarkey. Do we really believe the Founding Fathers, or any subsequent politician, to be as dumb as to write the Constitution to only be relevant in 1776? Amending the Constitution is INCREDIBLY political and difficult (for good reason). They knew what they were writing needed to be future-proof in order to make the nation be a success long after they were dead.
Intentionalism is the best way, in my opinion, to interpret laws from before our time. A good example would be Obergefell v Hodges ruling that legalized gay marriage. The fourteenth amendment established both state and federal law must treat people equally. Marriage is a legal matter. Discrimination on who can get married is very clearly a violation of this statute from an intentionalist perspective, even if it was not the issue that was being addressed at the time it was written. The rationale is that if the writer's wanted to specify that the intention was to make former slaves citizens, then that wording would have been more explicit. Instead the wording specifically states "citizens of the United States" and "any person".
Intentionalism is not without it's own flaws though. Interpretations can still fall into the trap of authoring law for when there really is nothing in the Constitution to base law on. For example, the ruling can be based on an intentionalist interpretation, but the official opinion of the court can get... creative with the details. Alternatively, one interpretation can seemingly come in conflict with another perceived right (which I will elaborate on later).
If it's not clear, I consider myself to be more of an intentionalist, with very textualist leanings (especially for more recent law).
Fourthly with pragmatism, while I find it in some cases admirable, it is ultimately dangerous. It is essentially making up law either because Congress has failed to act (a legal bandaid) or because the law is inconvenient (a political trojan horse). I'd consider Citizens United v FEC to be the most damaging pragmatic interpetation of the law. But more interesting to you, I'd consider modern gun law to be another example of pragmatic interpretation of the law.
A literal interpretation of the Constitution's wording makes it very clear that it specifies that the right to bear arms only extends to the militia. It does not state that citizens have the right to keep those arms in their homes or on their person. But it does preserve the right of the people to organize as a militia. But it even goes a step further to establish that the "militia" can be and should be regulated. An originalist interpretation would not even consider individual gun rights, because the issue in question was the legality of a militia to exist to protect the freedom of the State. An intentionalist could be convinced by a pragmatist to buy into the gun rights argument, but the phrasing "well regulated Militia" and "people" (plural) make it pretty clear the authors meant the opposite of the modern interpretation.
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
In fact, the interpretation of the second amendment to indicate the right for citizens to own their own arms was not a common interpretation until the mid-20th century. The pragmatist basis is that the founders knew that one day weapons might be regulated and intended this amendment to prevent that regulation.
Last, and certainly least, natural law... I am hoping we can both agree that anyone who believe in natural law has no business being a judge.
With that being stated, I did want to touch on abortion as well, as that seems to be another major issue that you wanted me to elaborate on.
Abortion is a tricky legal subject because it gets into the legal question of "my rights vs your rights". This is where you get away from the ideology of how to interpret the written law, and get into the gray area of what right supercedes another. Generally, my opinion is that the party who is most harmed should win. For example, my right to be able to buy groceries even though I'm gay supercedes a shopkeeper's religious freedom to deny me business because he does not agree with my life. Why? Because his discomfort does not outweigh my right to exist. Going to another store is not a reasonable solution to my problem because that would put the burden on knowing which grocer's are not bigoted on me, and potentially denies me access to food if I lived in a place with few grocery's and no reliable transportation. This is why I generally disagree with ANY religious freedom case that involves some religious person's comfort vs another person just existing in a secular society.
Tangent aside, the reason why this applies to Roe v Wade is because we must weigh the rights of the mother vs the child. This is kind of the ultimate example of this scenario, and that's probably why it's the most contentious political question in the US. The potential damages to both parties are HUGE. A pregnancy and raising a child causes financial, emotional, mental, and physical stress on the body and can be fatal to the mother and child. Unwanted pregnancies can doom a woman to raising a child in poverty. On the other hand, does a mother have the right to deny the child life? And when is the child a child and not just a part of the mother? I think everyone agrees that the child's death is the greater harm, this is why the question becomes "when is a person their own person?".
Look, disagree all you want, but from a textualist and intentionalist perspective, what a woman does with her body is protected by the constitution, as is her right to life, liberty, and happiness. It's the same reason state's cannot criminalize masturbation or watching porn. That's why questions in the courts always devolve into questions of viability and whether or not the child was wanted. If you believe that abortion is murder from the moment of conception, then... no one can tell you that you are wrong. And likewise, you can't tell someone who doesn't think a child is a person until they can survive outside the womb is wrong either. The law isn't equipped to answer this question. This is where the pragmatist is needed. When posed with a legal question that has seemingly no right answer, you pick the one that does less damage to society. And abortion does a LOT of good.
I am fine with judges sticking to a philosophical interpretation of the Constitution as long as they are consistent. When a judge flip-flops on Constitutional interpretation depending on how they feel politically about various issues, that is when I find a judge to be bad. That's not to say that I think interpretting some laws textually and other laws intentionally is hypocracy. It's about context, consistency, and honesty. Not politics.
Anyway, ultimately the point I am trying to make is that I hear people claim that they are "originalists" or "textualists", but most of the time it's just political theater, because the lay person does not understand law. But I'm not a lawyer either, so I am sure my views are flawed as well. I'm just trying to do the best I can and I will vote with my conscious 9/10 times when faced with limited information.
Last edited by IvorEvilen - on 06 October 2020
