Justice Kennedy Retiring

[ShockerPrez]

What does being liberal as a judge mean?

[wufan]

Like how Thomas is more of a conservative outlier from a truly "neutral" judge than any liberal in the last thirty years:

I can follow the graph, but don’t understand what I’m supposed to draw from it. I guess what I was asking is, what sort of right wing decisions did he make that added greater interpretation of the constitution? I’m sure it’s happened, and I should be more aware of it.

[jdshock]

I can follow the graph, but don’t understand what I’m supposed to draw from it. I guess what I was asking is, what sort of right wing decisions did he make that added greater interpretation of the constitution? I’m sure it’s happened, and I should be more aware of it.

What do you mean "added greater interpretation" of the constitution? It sounds like you're bringing this back to your point that the absolute most conservative viewpoint of the constitution is the centrist view. I guess I just don't agree or see how that could possibly be true. If that's the neutral viewpoint than what even is the conservative viewpoint? It's just factually not accurate. Thomas is the most conservative judge, whether you agree with him or not.

But, for example, his feelings on unenumerated rights vary based on the political issue. When he was getting confirmed, he said he felt that the 14th Amendment gave people a right to privacy. Yet in Lawrence v. Texas, (a case about a law that made homosexual sex illegal) he dissented by saying he couldn't find a right to privacy anywhere in the Constitution or Bill or Rights. He wrote a concurring opinion in Troxel v. Granville where he explained that he agreed with precedent that "parents have a fundamental constitutional right to rear their children." On the one hand, he clearly finds a right that is not explicitly stated in the Constitution in Troxel. On the other, he says the right has to be explicitly stated in the Constitution or else he can't use it to protect individuals.

[Aargh]

Can you clarify what you mean by right-leaning conservative judges and how their decisions are similarly partisan to left-leaning judges?

This is all relative based on one's own viewpoint.

Take a look at Roe v. Wade, which is likely to be overturned.

Those who think abortion should be allowed will view the judges who strike it down as activist right-leaning conservative judges. Those who think abortion should not be allowed blame it's current legality on left-leaning activist judges.

An activist judge is one who does not support your opinion.

Another example. It's pretty clear that the Constitution clearly and ambiguously states that all men are created equal. A recent court decision clearly violates that by granting a right to discriminate against gay men. To those who support gay rights, that decision was made by activist judges.

The Second Amendment clearly and unambiguously provides for a well-regulated militia as the basis of a citizen's right to bear arms. Any effort to apply any regulation to the citizens' right to bear arms is viewed as activist by those who oppose such regulations.

It's an easy step to just say that those who oppose your viewpoint are wrong. Period. the end. There shall be no discussion. At that point we're all screwed because our entire method of government is based on people with differing viewpoints getting together and hammering something out that works best for the most people. The "all or none" approach and the "it's my way or the highway" approach we're currently seeing in government is a road best not traveled.

[wufan]

This is all relative based on one's own viewpoint.

Take a look at Roe v. Wade, which is likely to be overturned.

Those who think abortion should be allowed will view the judges who strike it down as activist right-leaning conservative judges. Those who think abortion should not be allowed blame it's current legality on left-leaning activist judges.

An activist judge is one who does not support your opinion.

Another example. It's pretty clear that the Constitution clearly and ambiguously states that all men are created equal. A recent court decision clearly violates that by granting a right to discriminate against gay men. To those who support gay rights, that decision was made by activist judges.

The Second Amendment clearly and unambiguously provides for a well-regulated militia as the basis of a citizen's right to bear arms. Any effort to apply any regulation to the citizens' right to bear arms is viewed as activist by those who oppose such regulations.

It's an easy step to just say that those who oppose your viewpoint are wrong. Period. the end. There shall be no discussion. At that point we're all screwed because our entire method of government is based on people with differing viewpoints getting together and hammering something out that works best for the most people. The "all or none" approach and the "it's my way or the highway" approach we're currently seeing in government is a road best not traveled.

Your first example is hypothetical, so I won’t except it as evidence of partisanship.

In on your second example, the constitution doesn’t prohibit discrimination, except in the case of protected classes. Homosexuality is not a protected class. I believe a leftist judge might interpret that to be the case, but there’s no reason to do so. If you want to add homosexuality to the group of protected classes, pass an amendment.

For your third example, the well regulated militia part of the clause is not the part of the 2nd amendment that allows the people to own firearms. It is the operative clause, “the right of the people to keep and bear arms shall not be infringed.”

I don’t have any issue with disagreement, in fact I quite enjoy hearing new perspectives. What I don’t like is an oligarchy court creating new law when the constitution has mechanisms for which these things can happen. I feel the same about executive orders.

[wufan]

What do you mean "added greater interpretation" of the constitution? It sounds like you're bringing this back to your point that the absolute most conservative viewpoint of the constitution is the centrist view. I guess I just don't agree or see how that could possibly be true. If that's the neutral viewpoint than what even is the conservative viewpoint? It's just factually not accurate. Thomas is the most conservative judge, whether you agree with him or not.

But, for example, his feelings on unenumerated rights vary based on the political issue. When he was getting confirmed, he said he felt that the 14th Amendment gave people a right to privacy. Yet in Lawrence v. Texas, (a case about a law that made homosexual sex illegal) he dissented by saying he couldn't find a right to privacy anywhere in the Constitution or Bill or Rights. He wrote a concurring opinion in Troxel v. Granville where he explained that he agreed with precedent that "parents have a fundamental constitutional right to rear their children." On the one hand, he clearly finds a right that is not explicitly stated in the Constitution in Troxel. On the other, he says the right has to be explicitly stated in the Constitution or else he can't use it to protect individuals.

Thank you for the examples and links! That was extremely helpful. My views on the constitution are originalist, not conservative, although many conservatives are also originalist. I do not believe that the courts should create law. I believe that is the role of the legislation. Because that is the way in which our government was set up, I don’t understand why it isn’t centrist. There’s no reason that liberals, those that are concerned with individual freedoms, should believe that laws should be created by justices rather than by elected officials.

[jdshock]

Thank you for the examples and links! That was extremely helpful. My views on the constitution are originalist, not conservative, although many conservatives are also originalist. I do not believe that the courts should create law. I believe that is the role of the legislation. Because that is the way in which our government was set up, I don’t understand why it isn’t centrist. There’s no reason that liberals, those that are concerned with individual freedoms, should believe that laws should be created by justices rather than by elected officials.

I stumbled back on this post and realized I never responded because I couldn't figure out the best way to say what I think needs to be said.

The issue is what do you mean by laws" "created by justices rather than by elected officials?" If elected officials pass a bill limiting gun rights, the justices are saying that law is unconstitutional. What law was created by the justices in that scenario? It's all the same. Whether they're saying segregation is illegal, saying bans on gay marriage are illegal, or bans on handguns, it's all an interpretation of Constitutional rights.

If we're just talking about reading things into the constitution that you don't believe are in the text, I would wager that there are many rights that you support that are not directly in the text, or at least arguably not in the text. Unenumerated rights broadly, for example. Or even the gun laws I mentioned before. The First Amendment says "Congress" shall make no law. It takes a specific reading of the 14th Amendment to say that states also cannot infringe on First Amendment rights. And maybe more importantly, if elected officials pass a law saying people who don't use their turn signal should be tarred and feathered, courts would say that's cruel and unusual. "Cruel and unusual" necessarily requires interpretation from judges, and it necessarily requires an understanding of what today's norms are.

Lastly, you have said "I don't understand what it isn't centrist." I have a couple of issues with that. First, I don't think there are a lot of people saying the Supreme Court should be legislating laws. The gay marriage stuff for example: while you might think it was the Supreme Court creating a new "law," the majority found that the Constitution and prior Supreme Court precedent required gay marriage to be lawful. That's not a new legislated law. But if you more broadly mean that you don't understand why originalism isn't centrist, then I think that's probably the first thing we have to deal with before moving forward. That's like me saying I don't know why socialism isn't the centrist opinion, since it's clearly the best economic model. It's not the centrist opinion since I'm much much closer to the far edge of the spectrum.

[wufan]

Thanks for the strong rebuttal of a poorly articulated argument.

From an originalist/centrist perspective; the constitution is the document on which this country was founded, and the rights of the people are enumerated within it. Any significant deviation (right or left) from the constitution should be considered a radical position; whereas originalism should be a centrist position as it utilizes the axioms on which the nation was founded in order to protect the rights of the citizens.

Should it be found that the constitution is lacking in fulfilling all self-evident rights, then an amendment should be passed to rectify the situation. For instance, perhaps a new amendment should be passed that states the marriage shall be allowed between any two humans of consenting age. That would be better than interpreting discrimination by a state that doesn’t support this stance.

[jdshock]

From an originalist/centrist perspective; the constitution is the document on which this country was founded, and the rights of the people are enumerated within it. Any significant deviation (right or left) from the constitution should be considered a radical position; whereas originalism should be a centrist position as it utilizes the axioms on which the nation was founded in order to protect the rights of the citizens.

But what does that mean? What would a deviation to the "right" be? Here's a good article from a few years back by Richard Posner (a conservative judge) that does a good job explaining why originalism is not centrist: https://newrepublic.com/article/1064...al-originalism

textualism hobbles legislation -- and thereby tilts toward 'small government' and away from 'big government,' which in modern America is a conservative preference.

Just a key snippet, but I recommend reading the whole thing if you're interested in this topic.

Should it be found that the constitution is lacking in fulfilling all self-evident rights, then an amendment should be passed to rectify the situation. For instance, perhaps a new amendment should be passed that states the marriage shall be allowed between any two humans of consenting age. That would be better than interpreting discrimination by a state that doesn’t support this stance.

This would be a radical departure from 200 years of Supreme Court rulings. What role would you envision the Supreme Court even having?

But the bigger issue is how do you decide if the language is lacking? In the gay marriage case, the majority of justices decided the language was not lacking. They relied on the language in the Constitution and in prior Supreme Court cases to find that there was a right to marriage. With all Supreme Court interpretation, we can sit and wonder if the language was clear enough or if there should've been an Amendment. Think about "speech" for example. "Speech" as it would have been commonly understood at the time of the founding of the country would almost certainly have been limited to verbal speech. But we have 200 years of broad interpretation of the word "speech" such that actions are a type of speech. So do we decide "speech" is fundamentally lacking in definition and require an Amendment?

The Constitution is not clear. It is not a slam dunk argument. "Cruel and unusual" is not a clear phrase that can be parsed to say definitively if something is cruel or unusual. It is subjective and requires interpretation. And today we might say hanging is cruel and unusual but we wouldn't have in 1800. Both times we would've used the exact language in the document.

[jdshock]

Also, re: Brett Kavanaugh -

I'm sure we're all already aware, but it hadn't been mentioned yet, so I think it's worth pointing out.

Early 90's - Active participant in Ken Starr's investigation
Early 2000's - Worked in the Bush administration
2009 - Wrote a law review article suggesting presidents should not be criminally investigated until they are done with their presidency

I suppose that's why Trump can get behind a swamp-era civil servant.

[ShockingButTrue]

Then maybe Mueller needs to get busy?

Get the evidence out there.

[Shoxfan11]

Which is exactly what he's been doing? Do you think the investigation is like a Judge Judy episode where it's wrapped up in 30 minutes?

[Kung Wu]

I wonder if Kavanaugh has a long memory?

https://news.grabien.com/story-kavanaugh-hearings-kick-belligerent-shrieking-hecklers

[C0|dB|00ded]

Savages.


T


...:cool:

[pinstripers]

Could we be heading for a civil war?

[WuDrWu]

Maybe they should just confirm him so they can find out what's in the 42K pages? You know, like health care?

[wufan]

Interesting developments in the Kavanaugh confirmation. Not sure where this goes.

[shockfan89_]

Interesting developments? A liberal professor from a liberal college accuses a SCOTUS nominee of something that allegedly occurred 35 years ago without a shred of evidence. Doesn't know where it occurred (city/address), when, or even why she was there. The two people she named, vehemently deny the accusations. Why would this change anything?

What this is, is an attempt to get more women to come forward and make similar claims. If that happens, this might go somewhere, but as of now, this is desperate democrats trying the Roy Moore approach since it seemed to work last time.

[ShockingButTrue]

Didn't work in 16. It might now, because it's not the people voting on this one.

[jdshock]

Interesting developments in the Kavanaugh confirmation. Not sure where this goes.

Kavanaugh was always a silly choice. He wasn't on the original list Trump put out. He has so much baggage, and McConnell knew it and specifically asked for someone else.

So why did he get nominated if he was never on the list in the first place? Two reasons: (1) he wrote a dissent last year which seems to suggest he'd overturn Roe if given the chance; and (2) he, despite playing a key role in the investigation of Clinton, now believes it might be better if presidents weren't allowed to be investigated. As for the first point, it's so strange to me that we have to dance around this issue. Do Murkowski and Collins actually gain anything because Kavanaugh said "oh, it's settled precedent." Are there people out there that support the holding in Roe, and are going to re-elect Murkowski or Collins when they act ignorant after it gets overturned? As to the second, I truly believe this is the most disgraceful thing about the whole ordeal. Trump, someone who is at least fringe connected to an ongoing federal investigation, appears to have selected a nominee that he never mentioned before. A nominee that is one of very few legal scholars who support the idea that the president should not be able to be investigated. Not to mention that the nominee was someone involved in a hugely political investigation against Clinton.

But as for the allegations - it seems like there are a couple of options: (1) The vote gets delayed for a few weeks, and republicans can act as if they've vetted the allegations enough to jam a vote through. (By the way, they had the letter saying he's a great guy signed by 65 women very fast. I'd hope there are 65 people in my life who'd vouch for me, but I definitely don't think I'd have a letter signed by 65 female high school acquaintances ready to go tomorrow morning.... and I didn't even go to an all boys school like Kavanaugh). Personally, this seems most likely to me; (2) The vote gets indefinitely delayed as it becomes more politically perilous closer to the elections. They decide they can get anything they want done after the November election; (3) Kavanaugh withdraws his name. I just don't see a scenario where he is put up for a vote and he is blocked at that point.

[Kel Varnsen]

So they're telling us that this incident occurred when:

- It comes out at the eleventh hour
- Feinstein could have shared it two months ago
- There's not a shred of real evidence
- The "evidence" that exists could be completely fabricated and there's really no way to prove its validity

[ShockingButTrue]

There doesn't even appear to be a shred of false evidence.

[shockfan89_]

No, no false evidence other than the fact that it wasn't reported at the time, she doesn't know where they were, who lived there, or why they were there, the story can't be corroborated by anyone else, and it just happens to surface when he is a nominee for SCOTUS, and she happens to be of the opposing party and hates the President that appointed him. Other than that, you're right, not a shred of false evidence.

[ShockingButTrue]

Yes. The most relevant evidence is she's a pink p**** hatter. But heey, what's wrong with a little bias, since they're morally superior.

[SHOCKvalue]

Beto O’Rourke still a great guy though, right?

Just updating my morals definitions for the week. Hard to keep up sometimes.