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Old 08-08-2018, 02:33 AM
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The "liberal case" for Kavanaugh is nonsensical

So Yale Law Professor Akhil Reed Amar wrote a lovely Op-Ed endorsing Kavanaugh from the liberal perspective. Here's one example. Lisa Blatt, a "liberal feminist", wrote a similar piece for Politico. A quite frankly embarrassing fluff piece in the Washington Post about his character. In short, there are some liberals playing with the idea that Bret Kavanaugh is a fine pick for supreme court.

This is really, really stupid.

Let's dispense with the idea that Judges exist, first and foremost, as unbiased, non-participatory referees of the law. Despite what some here might insist, that has literally never been true, and it's especially untrue in contentious supreme court cases surrounding issues that the constitution is at best unclear on. Textualism doesn't help us much either - the constitution contains nothing on segregation, nothing on unions, and nothing on workplace safety. And in fact, Kavanaugh has had several dissents where his take seemed clearly not based on what the law actually said - so we're not even dealing with consistent textualism:
For starters, Kavanaugh just got the law wrong. Even in his ESPN extreme courtroom, the law would require a skydiving outfit to provide backup parachutes, for example.
And once you dispense with that fantasy, it starts to become clear what kind of person Kavanaugh is. There are three primary things that spring to mind when examining Kavanaugh's legal record.

Firstly, that he almost never goes to bat for the weak or against the powerful. He is very consistently on the side of the bigger fish, against unions, against protecting the rights of workers, et cetera.

Secondly, that he never shows any awareness of how power disparities can impact things like working relationships (consider how he describes arbitration in the Epic Systems decision).

Thirdly, that he does not seem to care about the harm caused by his decisions, or really harm at all, consistently downplaying the harm done in cases where his decision would have led to people getting off the hook for torture, unsafe work environments which lead to people's death, and more.

CurrentAffairs has a tour de force article on this which I would be remiss to not post here. To quote from it:
Kavanaugh, then, is both a bad judge and a bad person. He is a bad judge because, in Saleh v. Titan, he joined an opinion that, even though Congress had never given contractors immunity from being held accountable for torturing people, found a way to shield these contractors, and did so while misleadingly presenting the alleged facts of Abu Ghraib and casting doubt on the claims before they had been litigated. He is a bad judge because he suggested the very explicitly-defined term “employee” in the National Labor Relations Act doesn’t apply to undocumented people, and he’s a bad judge because he can’t tell when a company is obviously trying to pull the wool over the court’s eyes for the purpose of subverting its labor agreements.

More importantly, though, he’s a bad person. He is a bad person because, well, he needlessly kept a group of Iraqis from litigating important claims against companies that had allegedly committed horrific atrocities. He’s a bad person because, in multiple cases, he has shown himself uninterested in harms inflicted on workers by employers. When the question is whose judgment to defer to, he readily defers to the reasoning and position of corporations over workers, and the executive branch over victims. Whether or not he’s aware that he’s doing this, it’s evident from his work that he considers those players more credible, more honest, and more worthy of protection. (As a purely empirical matter he has “written almost entirely in favor of big businesses, employers in employment disputes, and against defendants in criminal cases.”) And he’s a bad person because, well, he’s a “textualist,” and textualism involves shedding morality and being blind to the stakes and consequences of one’s decision-making. (To see why a judge who simply “applies the law as written” and excises every ounce of human compassion from their work will end up being a horrible person, take our “You Be The Judge!” quiz.)
(Emphasis mine.)

There is no liberal case for Kavanaugh. The only case to be made is if you believe this fantasy that there is such a thing as a purely textualist judge, then ignore Kavanaugh's actual record. Or, alternatively, if you don't actually believe that, but support the values he puts forward. But I'm still not convinced that anyone with a shred of decency or integrity could support him.

Last edited by Budget Player Cadet; 08-08-2018 at 02:33 AM.
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Old 08-08-2018, 07:00 AM
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The reason to oppose Kavanaugh is that he is being appointed by an illegitimate president and filling a vacancy that was illegitimately left open by a Senate that abdicated its duties under the Constitution. Justices Kavanaugh and Gorsuch are illegitimate members of the Court, and if the mood in this country shifts radically in their favor, I would submit that Democrats either pack the Court or vote to impeach and remove them.
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Old 08-08-2018, 07:27 AM
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The reason to oppose Kavanaugh is that he is being appointed by an illegitimate president and filling a vacancy that was illegitimately left open by a Senate that abdicated its duties under the Constitution. Justices Kavanaugh and Gorsuch are illegitimate members of the Court, and if the mood in this country shifts radically in their favor, I would submit that Democrats either pack the Court or vote to impeach and remove them.
Honestly, that's just the cherry on top of the shit sundae that is basically any nominee the republican party would put forward. But yeah, it bears mentioning. It really doesn't help that Kavanaugh seems to think the president is above the law - an opinion of his which clearly evolved since the Clinton administration.
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Old 08-08-2018, 09:52 AM
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The reason to oppose Kavanaugh is that he is being appointed by an illegitimate president and filling a vacancy that was illegitimately left open by a Senate that abdicated its duties under the Constitution. Justices Kavanaugh and Gorsuch are illegitimate members of the Court, and if the mood in this country shifts radically in their favor, I would submit that Democrats either pack the Court or vote to impeach and remove them.
What? I understand your position about Gorsuch, but why Kavanaugh? Is every GOP appointee from now until the end of time going to be bitched about because of Garland?
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Old 08-08-2018, 10:17 AM
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What? I understand your position about Gorsuch, but why Kavanaugh? Is every GOP appointee from now until the end of time going to be bitched about because of Garland?
The president is "illegitimate", so everything he does is the same. I thought everyone knew that!
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Old 08-08-2018, 10:21 AM
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Is every GOP appointee from now until the end of time going to be bitched about...?
Yes.

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Old 08-08-2018, 10:24 AM
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What? I understand your position about Gorsuch, but why Kavanaugh? Is every GOP appointee from now until the end of time going to be bitched about because of Garland?
Nobody said that. The point was about this President and this vacancy being illegitimate. Can you address that?
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Old 08-08-2018, 10:26 AM
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Nobody said that. The point was about this President and this vacancy being illegitimate. Can you address that?
Sure. That's nonsense. We did the "illegitimate" thing already. Not going to do it again.

Last edited by John Mace; 08-08-2018 at 10:26 AM.
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Old 08-08-2018, 10:28 AM
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UltraVires, it appears you hijacked John's account.
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Old 08-08-2018, 10:32 AM
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So, no objections to the OP? Got it.
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Old 08-08-2018, 10:37 AM
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So, no objections to the OP? Got it.
I don't expect liberals to support Kavanaugh, but it doesn't matter. He will be confirmed.
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Old 08-08-2018, 10:40 AM
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The satirical "quiz" linked to by that Current Affairs article is very entertaining, taking the piss out of strict textualism and, well, everything else.

https://www.currentaffairs.org/2018/...u-be-the-judge
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Old 08-08-2018, 11:05 AM
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Every time someone brings up Garland, I laugh in the inside. Every. Single. Time. It's not as funny as 'but her emails', but it's right up there.
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Old 08-08-2018, 11:18 AM
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I don't expect liberals to support Kavanaugh, but it doesn't matter. He will be confirmed.
I'm sure - "fuck the little guy" has basically been republican policy since, what, 2000 at the very latest?
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Old 08-08-2018, 11:19 AM
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The satirical "quiz" linked to by that Current Affairs article is very entertaining, taking the piss out of strict textualism and, well, everything else.

https://www.currentaffairs.org/2018/...u-be-the-judge
Yeah, it's absurdly slanted/biased.
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Old 08-08-2018, 11:43 AM
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The fact is that even if the Democrats win every seat up for election in the Senate this year, there WILL be a justice confirmed by the time they take office. Therefore, the only question that I see needs to be asked when considering whether to oppose a particular individual tooth and nail is: 'will this choice be better or worse than the other most likely choices to be nominated by Trump?'

So, if by some miracle the Democrats managed to get Kavanaugh rejected, then what? Will the one that's ultimately confirmed be more likely to be better, or worse? From what I've read, worse is a more likely outcome than better, and they absolutely 100% will not prevent a confirmation before the senate switches over; the Republicans will never allow it to drag on until the incoming senators are seated if the Democrats have won the majority.
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Old 08-08-2018, 11:49 AM
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Yeah, it's absurdly slanted/biased.
Yeah, but I got a really good score.

Haven't we kind of done the OP to death? "Republican judges are bad people because they follow the Constitution instead of the editorial board of the New York Times" - been there, yawned at that. And the part about how textualists make it up just as much as activists is just projection. Then we have to rehash how the Constitution obligates the Senate to rubber-stamp whoever a Democrat sends them.

You guys need new material.

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Old 08-08-2018, 11:56 AM
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"Let's dispense with the idea that Judges exist, first and foremost, as unbiased, non-participatory referees of the law. Despite what some here might insist, that has literally never been true, and it's especially untrue in contentious supreme court cases surrounding issues that the constitution is at best unclear on."
If Judges are not unbiased, non-participatory referees of the law, what are they? Once you dismiss the idea that judges are supposed to be unbiased then legal disputes are just exercises in raw power. If that is true it is definitional that those without power are going to be hurt.
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Old 08-08-2018, 12:04 PM
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They're supposed to be, yes, but they're still human.
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Old 08-08-2018, 12:04 PM
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The reason to oppose Kavanaugh is that he is being appointed by an illegitimate president and filling a vacancy that was illegitimately left open by a Senate that abdicated its duties under the Constitution. Justices Kavanaugh and Gorsuch are illegitimate members of the Court, and if the mood in this country shifts radically in their favor, I would submit that Democrats either pack the Court or vote to impeach and remove them.
I'm against packing the court, but Gorsuch and any other judge (Supreme Court or otherwise) appointed by Trump should be impeached and removed from office. Trump has been corrupted by a foreign adversary and everything he's done in office needs to be reversed. I accept that it might not be politically or pragmatically possible to do so, but that is the goal we need to drive toward.
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Old 08-08-2018, 12:15 PM
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Every time someone brings up Garland, I laugh in the inside. Every. Single. Time. It's not as funny as 'but her emails', but it's right up there.
Party Before Country, right?
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Old 08-08-2018, 12:37 PM
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Haven't we kind of done the OP to death? "Republican judges are bad people because they follow the Constitution instead of the editorial board of the New York Times" - been there, yawned at that.
If this is what you believe I'm saying, you haven't read the thread. Or the first post.

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And the part about how textualists make it up just as much as activists is just projection.
Truly you have convincing arguments. All... zero of them.

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"Let's dispense with the idea that Judges exist, first and foremost, as unbiased, non-participatory referees of the law. Despite what some here might insist, that has literally never been true, and it's especially untrue in contentious supreme court cases surrounding issues that the constitution is at best unclear on."
If Judges are not unbiased, non-participatory referees of the law, what are they?
What you're describing isn't "judges". It's "robots". There are very few interesting decisions to be made that can be made based solely on the exact text of the law. Most cases end up with two principles guaranteed by the constitution in opposition, or with two laws contradicting each other, or with people needing to check whether something that limits a right is actually infringing on that right.

Even in those cases where it's a clear case of the law, the facts on the ground of the case tend to matter - whether the defendant was merely assaulted or whether what happened to them qualifies as "torture" can be relevant, to pull one example from Kavanaugh's own tenure - and in these cases, when the facts seem to disagree with the rich and powerful, Kavanaugh gets it wrong quite often.

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Once you dismiss the idea that judges are supposed to be unbiased then legal disputes are just exercises in raw power. If that is true it is definitional that those without power are going to be hurt.
This is something I don't have a good answer for. That said, judges that take that exercise of power seriously are not impossible to come by. Kavanaugh doesn't. He seems thoroughly uninterested in it, and hides that lack of interest behind the excuse of textualism. But I don't think that excuse holds water in the slightest.

Last edited by Budget Player Cadet; 08-08-2018 at 12:37 PM.
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Old 08-08-2018, 01:15 PM
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That said, judges that take that exercise of power seriously are not impossible to come by. Kavanaugh doesn't. He seems thoroughly uninterested in it, and hides that lack of interest behind the excuse of textualism. But I don't think that excuse holds water in the slightest.
An argument could be made that Kavanaugh is instead very attuned to the exercises of power.
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Old 08-08-2018, 01:34 PM
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Nobody said that. The point was about this President and this vacancy being illegitimate. Can you address that?
Okay, so how is this vacancy illegitimate? Did I miss Mitch McConnell forcing Kennedy to remain in office until Obama's term ended, or something?
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And the part about how textualists make it up just as much as activists is just projection.
Rubbish. Your hero Scalia made up both history and rules of interpretation in Heller out of whole cloth (despite having no reason to do so since the plain text arguably supported his desired result anyway).

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Old 08-08-2018, 01:44 PM
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Okay, so how is this vacancy illegitimate?
Whether you agree or not, the reasons are A. It's made by an illegitimately elected President, and B. The last illegitimate vacancy hasn't been cancelled out yet.
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Old 08-08-2018, 01:56 PM
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"Illegitimately elected?" We are into woo-woo territory here.
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Old 08-08-2018, 02:08 PM
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Whether you agree or not, the reasons are A. It's made by an illegitimately elected President, and B. The last illegitimate vacancy hasn't been cancelled out yet.
1) How is the President illegitimate? He won the electoral college. He's President.

2) Sure it was cancelled out. Gorsuch replaced Garland filling the vacancy.
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Old 08-08-2018, 02:16 PM
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"Illegitimately elected?" We are into woo-woo territory here.
I said you might not agree. I might not either. But it's out there.

UltraVires, you're giving a lawyer's response, not a citizen's.
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Old 08-08-2018, 02:35 PM
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Yeah guys, can we maybe drop the "illegitimate president" stuff here? Trump is the president. He gets to make judicial nominations.
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Old 08-08-2018, 02:37 PM
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But to the OP, it is not for a judge to be on the side of a worker or the corporation. It is not for a judge to be on the side of the environment or on a woman's side.

The idea is to apply the law. If the law means that the worker wins over the corporation, then that is the right result. Likewise, if the law means that the workers gets screwed by the corporation, then a judge has to realize that it is an unfortunate result, yet it is a correct result.

All the things listed in the OP can be changed by the democratically elected Congress. Every.One. Of. Them. The problem that I have with your side is that it doesn't matter whether you win at the ballot box; you want the courts to give you the win anyways. That is not representative democracy.
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Old 08-08-2018, 02:37 PM
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BPC: Tell McConnell.

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Old 08-08-2018, 02:40 PM
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BPC: Tell McConnell.
Tell him what? Obama nominated Garland as he had the power to do. Nothing says that the Senate MUST give advise and consent. Tell Obama that.
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Old 08-08-2018, 02:44 PM
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I said you might not agree. I might not either. But it's out there.
People are saying it! That's considered a legitimate argument?

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Old 08-08-2018, 03:04 PM
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Firstly, that he almost never goes to bat for the weak or against the powerful. He is very consistently on the side of the bigger fish, against unions, against protecting the rights of workers, et cetera.

Secondly, that he never shows any awareness of how power disparities can impact things like working relationships (consider how he describes arbitration in the Epic Systems decision).

Thirdly, that he does not seem to care about the harm caused by his decisions, or really harm at all, consistently downplaying the harm done in cases where his decision would have led to people getting off the hook for torture, unsafe work environments which lead to people's death, and more.
  • If the law favors the powerful, should a judge rule in favor of the weak?
  • If the law ignores power disparities, should a judge rule based on who has greater power?
  • If the law does not care about the harm caused by its implementation, should a judge consider the impact of implementing the law as written?
In my view, none of the things identified in your post are negative when it comes to selecting a judge.

I looked at the linked quiz from CurrentAffairs, in all of its stupid glory. They say that textualism involves shedding morality and being blind to the stakes and consequences of one's decision making. Sounds great to me. I don't want a judge to based their rulings on their idea of what is moral. But these are not liberal arguments and you're right, there is no meaningful liberal case for Kavanaugh. The only reason a liberal should support Kavanaugh is if they think the next alternative would be worse. That's the real politik of it - that it makes no difference whether liberals support or oppose Kavanaugh.
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Old 08-08-2018, 03:13 PM
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  • If the law favors the powerful, should a judge rule in favor of the weak?
  • If the law ignores power disparities, should a judge rule based on who has greater power?
  • If the law does not care about the harm caused by its implementation, should a judge consider the impact of implementing the law as written?
In my view, none of the things identified in your post are negative when it comes to selecting a judge.

I looked at the linked quiz from CurrentAffairs, in all of its stupid glory. They say that textualism involves shedding morality and being blind to the stakes and consequences of one's decision making. Sounds great to me. I don't want a judge to based their rulings on their idea of what is moral. But these are not liberal arguments and you're right, there is no meaningful liberal case for Kavanaugh. The only reason a liberal should support Kavanaugh is if they think the next alternative would be worse. That's the real politik of it - that it makes no difference whether liberals support or oppose Kavanaugh.
I agree with all of this. I read all of the links and Kavanaugh was absolutely right in each case.

Especially the Sea World one. I'm not sure how that is even in dispute. Yes, swimming with killer whales is dangerous (who'd a thunk it?) but the policy decision of whether to allow such a thing or other dangerous activities like football or NASCAR is one left to a legislative body and not the Department of Labor under the guise of having a safe workplace.

Saying that Sea World could have made the workplace safer by not having a "swimming with killer whales" show is no different than saying that MLB can have a safer workplace by using a wiffle ball or that the NFL could be safer by playing two hand touch. The more I read Kavanaugh's "horrible" decisions, the more I like him.
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Old 08-08-2018, 03:14 PM
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Nothing says that the Senate MUST give advise and consent.
Again, not a citizen's answer.
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Old 08-08-2018, 03:15 PM
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What you're describing isn't "judges". It's "robots". There are very few interesting decisions to be made that can be made based solely on the exact text of the law. Most cases end up with two principles guaranteed by the constitution in opposition, or with two laws contradicting each other, or with people needing to check whether something that limits a right is actually infringing on that right.

Even in those cases where it's a clear case of the law, the facts on the ground of the case tend to matter - whether the defendant was merely assaulted or whether what happened to them qualifies as "torture" can be relevant, to pull one example from Kavanaugh's own tenure - and in these cases, when the facts seem to disagree with the rich and powerful, Kavanaugh gets it wrong quite often.



This is something I don't have a good answer for. That said, judges that take that exercise of power seriously are not impossible to come by. Kavanaugh doesn't. He seems thoroughly uninterested in it, and hides that lack of interest behind the excuse of textualism. But I don't think that excuse holds water in the slightest.
You say what judges do is to apply reasoning to difficult cases and that things are not clear. Yet in the OP you link to an article that says that not only are things so clear that disagreeing with the authors conclusion makes Kavanaugh a bad judge, the evidence is so overwhelming that disagreeing makes Kavanaugh a bad person. Having read the controversial opinions it seems clear that cases involved are not clear cut and that his rendering of those decisions is simplified and twisted to the point of dishonesty. In Saleh v Titan I found myself agreeing with Kavanaugh when I read his opinion and then with Garland when I read his. It is a difficult case and no one should be accused of being a bad person because of their opinion on it. In reading his opinions I was struck by how much he respects Supreme Court precedence and seeks to operate within that constraint.
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Old 08-08-2018, 03:34 PM
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Actually, Bush was an illegitimate President as well, given power by an activist judge who decided that federal court could determine which votes at the state level were valid, and which ones were not. Thus, we actually have four vacancies that will have been filled by illegal presidents. Impeach the 4.
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Old 08-08-2018, 03:39 PM
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The only reason a liberal should support Kavanaugh is if they think the next alternative would be worse. That's the real politik of it - that it makes no difference whether liberals support or oppose Kavanaugh.
Exactly. That should be the liberal case. If I were Trump and feeling an especially strong amount of Trump pettiness and trolling desire for liberal tears, I'd withdraw Kavanaugh, nominate Barrett instead, and made sure she got nuked in. We all know the list, and we know where it's coming from (and its not from Trump).
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Old 08-08-2018, 03:51 PM
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Originally Posted by asahi View Post
Actually, Bush was an illegitimate President as well, given power by an activist judge who decided that federal court could determine which votes at the state level were valid, and which ones were not. Thus, we actually have four vacancies that will have been filled by illegal presidents. Impeach the 4.
I suggest that because blacks were not fully enfranchised until 1965, then every presidential election, and therefore every Supreme Court nominee prior to that date was invalid. As such, every Supreme Court decision prior to that date, including Brown v. Board of Education was "illegitimate." Actually as it was not until 1994 that a Justice appointed to the Court prior to 1965 was no longer on the Court, no decision prior to 1994 is valid.

Jebus, dude, how far are you going to take this?
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Old 08-08-2018, 03:57 PM
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Yeah guys, can we maybe drop the "illegitimate president" stuff here? Trump is the president. He gets to make judicial nominations.
He's not 100% legitimate, because he is being investigated for violating campaign finance laws.
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Old 08-08-2018, 03:58 PM
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[LIST]
I looked at the linked quiz from CurrentAffairs, in all of its stupid glory. They say that textualism involves shedding morality and being blind to the stakes and consequences of one's decision making. Sounds great to me. I don't want a judge to based their rulings on their idea of what is moral. But these are not liberal arguments and you're right, there is no meaningful liberal case for Kavanaugh. The only reason a liberal should support Kavanaugh is if they think the next alternative would be worse. That's the real politik of it - that it makes no difference whether liberals support or oppose Kavanaugh.
Agreed. I vote exclusively Democratic these days but I break ranks when it comes to many liberal ideas of what constitutes justice. The issue of "power dynamics" brought up in the OP's article is a perfect example. I'm all for the legislature crafting laws to take "power dynamics" into account, but until and unless they do, I don't want the judicial branch viewing the law through that lens. Liberals typically do, and if they want to oppose Kavanaugh for that reason, great. That's what democracy is all about.

As for continual whining about Trump winning the last election-- time to get over it. I want the Democrats to win the next election, and it doesn't help if they sound like some Junior High school kid who got dumped by his first girlfriend and doesn't know how to move on with his life. The Democrats are going to have a tough time winning back the WH if they keep blaming everyone else for their own failures. I likely won't care too much for SCOTUS nominations by a Democratic president, but it's a small price to pay for sanity otherwise. And elections have consequences, one of them being he winner gets to nominate the justices.

Last edited by John Mace; 08-08-2018 at 03:59 PM.
  #43  
Old 08-08-2018, 04:14 PM
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I expect that all human beings should be good and moral, and do whatever is in their power to promote goodness and morality. High-ranking federal judges have the power to do so to a greater degree, and that makes their obligation to do good greater, not lesser. The textualist position that a judge should not judge, and a justice should not pursue justice, is both absurd and corrosive.

Quote:
Quoth UltraVires:

But to the OP, it is not for a judge to be on the side of a worker or the corporation.
So if a judge is consistently and always on the side of the corporation, regardless of the law, that's a problem?
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Nothing says that the Senate MUST give advise and consent.
Well, aside from the plain text of the supreme law of the land, at least.

On the matter of liberal response: We can't stop Kavanaugh from being seated. But we can point out the truth of how reprehensible he is, and how reprehensible the Republicans' reasons for nominating him are.
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Old 08-08-2018, 04:43 PM
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Originally Posted by Chronos View Post
I expect that all human beings should be good and moral, and do whatever is in their power to promote goodness and morality. High-ranking federal judges have the power to do so to a greater degree, and that makes their obligation to do good greater, not lesser. The textualist position that a judge should not judge, and a justice should not pursue justice, is both absurd and corrosive.
The textualist position is that a judge should not pursue the abstract idea of justice outside the confines of the laws, as written. You and I might think SSM is good and just, but if the law says no SSM, then a judge does not overrule the law.

When the law is silent on an issue, then reasonable people can disagree on what bests serves justice.


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So if a judge is consistently and always on the side of the corporation, regardless of the law, that's a problem?
Yes, that is a problem.

Quote:
Well, aside from the plain text of the supreme law of the land, at least.
Then perhaps Garland should take his case to the SCOTUS and see what the verdict is. I suspect it's no accident that he hasn't.
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Old 08-08-2018, 04:44 PM
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I looked at the linked quiz from CurrentAffairs, in all of its stupid glory. They say that textualism involves shedding morality and being blind to the stakes and consequences of one's decision making. Sounds great to me. I don't want a judge to based their rulings on their idea of what is moral.
Then you argue for the utter neutering of a branch of the Federal government. Remember, Congress passes all the laws. So if the judiciary is beholden to a single methodology of interpreting those laws, then it is just a slave to Congress.

Fortunately, I know from experience that what is described here is impossible. I know from Biblical literalism. I grew up in it. I was surrounded by it. And I know what actually happens when you defer to what some external source says. Your morality inherently still informs what decisions you make. You just now have an excuse.

The problem, however, is that literalism inherently is most attractive to the fundamentalists. Likewise, textualism is most attractive to conservatives. And that is why both were created, to empower those groups. It is easier to twist the law in a conservative than a progressive manner, since progressiveness means including the new.

So, rather than actually removing morality from the equation, it merely obscures it. The reason liberals hate it is that those who use it are obscuring conservative morals, hiding them as being "just what the law says."
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Old 08-08-2018, 04:46 PM
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Originally Posted by UltraVires View Post
I suggest that because blacks were not fully enfranchised until 1965, then every presidential election, and therefore every Supreme Court nominee prior to that date was invalid. As such, every Supreme Court decision prior to that date, including Brown v. Board of Education was "illegitimate." Actually as it was not until 1994 that a Justice appointed to the Court prior to 1965 was no longer on the Court, no decision prior to 1994 is valid.

Jebus, dude, how far are you going to take this?
Well, yes. Everything you just said is true. That is why we no longer allow those things to happen. And why all those decisions are suspect and are reviewed.

Last edited by BigT; 08-08-2018 at 04:48 PM.
  #47  
Old 08-08-2018, 04:57 PM
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Then you argue for the utter neutering of a branch of the Federal government. Remember, Congress passes all the laws. So if the judiciary is beholden to a single methodology of interpreting those laws, then it is just a slave to Congress.
First, I want to neuter ALL the branches. 2nd, the judiciary should be a slave to the constitution. 3rd, if it's within congress's authority to pass a law that doesn't run afoul of the constitution, then the courts should be a slave to enforce those laws, no matter how abhorrent.
  #48  
Old 08-08-2018, 05:01 PM
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Originally Posted by Chronos View Post
I expect that all human beings should be good and moral, and do whatever is in their power to promote goodness and morality. High-ranking federal judges have the power to do so to a greater degree, and that makes their obligation to do good greater, not lesser. The textualist position that a judge should not judge, and a justice should not pursue justice, is both absurd and corrosive.
I would support judges basing their rulings on what is good and moral only if I get to decide what is good and moral.


Quote:
So if a judge is consistently and always on the side of the corporation, regardless of the law, that's a problem?
It's only a problem because you included the "regardless of the law" clause. If in fact the law consistently and always favored the corporation, then it would be appropriate for a judge to consistently and always side with the corporation.

I kind of hope the Democrats go to the mat on the Kavanaugh nomination. That and they bring up Garland every chance they get while campaigning. It would be amusing to watch.
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Old 08-08-2018, 05:11 PM
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Since you seem to like talking about Garland so much, perhaps you could provide me a list of the senators who voted against his confirmation?
  #50  
Old 08-08-2018, 05:33 PM
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I would support judges basing their rulings on what is good and moral only if I get to decide what is good and moral.
I hope you're just kidding. I would not support judges deferring to me on moral judgements as I don't think that would result in a stable society. Democracy, with all its flaws, is the best way to go.
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