Could the refusal of Garland's nomination dangerously politicize the Supreme Court?

[UltraVires]

@Really_Not_All_That_Bright

Presumably you disagreed with SCOTUS when it found a constitutional right to self-defense that is not mentioned anywhere in the Constitution? Though I don’t remember you doing that.

As has been discussed previously, the Constitution does not grant rights, it protects pre-existing rights. The right of self defense is one that it found throughout the common law and predates the constitution. Never in English common law history has a person who is attacked been required to legally stand there and die.

This right is so substantive and pervasive that nobody seriously argues that it does not exist. Same thing with the right of parents to the care, custody, and control of their own children.

I think you misunderstand conservatives in that we have somehow said that if it is not mentioned in the constitution, then it is not a right.

What we say is that in order to determine if the constitution or the Bill of Rights, written in 1789 protects a particular right, then it must be judged under a standard different than “Gee, we didn’t see this right from 1066-2003, but in the last few years things have happened so now we think it should be a right.”

That type of thought is limitless and threatens representative democracy.

The Glucksberg test (which I assume has now be overruled sub slientio) was a fair standard that required historical analysis independent of a simple value judgment. Research history, look at objective facts, and decide whether the activity being challenged is a right and rule accordingly, regardless of whether the judge believes the law is good, bad, or indifferent.

Same sex marriage, abortion, no death penalty for child rapists, etc. fail this test under any objective measurement. Your side, unable to garner the votes to amend the Constitution, or pass laws in state legislatures, have bastardized the Court into enacting these prohibitions/heretofore unheard of “rights” through the judicial branch.

I know that we’ve debated this a million times, but when judges and justices accept that invitation, then they become political, and can expect the same treatment as those running for elective office. Scalia discussed this in his Obergefell dissent and he was absolutely correct.

[puddleglum]

@ElvisL1ves

Sometimes, yes, we do need to be restrained.

If these five lawyers know when we need to restrained and when we don’t then why don’t we just stop with all the pretense of the elections and have these five lawyers declared rulers?

[watchwolf49]

@Really_Not_All_That_Bright

You seem to have forgotten what your argument was.

My argument is that missing one Supreme Court justice is not dangerous, you must be confusing this with the strawmen you’ve built.

[Damuri_Ajashi]

@Arrogantly_Ignorant

In another thread, I mentioned that the Senate’s actions potentially politicize the Supreme Court by establishing a dangerous precedent. I’m not naive, I know that basically since the inception of the Supreme Court, it has been politicized to some degree. Hell, it was John Adams creating the Midnight Judges because he wanted the Federalists to have a political refuge that led to John Marshall becoming Chief Justice and ushering in arguably one of the most significant, fruitful eras of Supreme Court history. That said, the Supreme Court was always meant to be somewhat removed from the political world. In Federalist No. 78, Hamilton stated that it was essential for the judiciary to be independent, which is why judges are given lifetime appointments.

In theory, a Supreme Court Justice is supposed to be an objective party that will properly interpret the laws, which is why the President can nominate anyone. Yes, Presidents often go with someone who matches their ideology, but the nominee isn’t beholden by that ideology. In turn, the Senate gets to decide if the President’s nomination is worthy of the position. Now, the Senate wants to choose not to play its part. Imagine if the President decided not to nominate a Justice because he wanted an ultra-liberal and believed he’d have the necessary Senate majority in a couple years? That’s essentially what the Senate is doing. And while it could be argued that the Constitution allows such actions, doing so ignores a tremendous structural issue: the fact that it directly affects the operation of another branch of government. The Supreme Court is a vital part of the government and having an odd number of Justices is quite obviously essential. It’s not the Senate’s role to cripple it.

In my opinion, McConnell’s actions potentially lays the groundwork for the Senate to dramatically politicize Supreme Court nominations. I know they’re arguing that Obama being in his last year justifies their actions, (even though plenty of nominees have been confirmed in their last year of office) but I don’t buy it. They just want to hold on to the Conservative majority they’ve largely benefited from for almost 40 years. So, what if they don’t like the next President’s party affiliation and still refuse to “advise and consent?” What then? Will they just keep on stalling/waiting?

Not to mention they’re constructing a tool the Democrats can use against them when the tables have turned.

So, what do you think? Has the Senate now opened the door for even more politicization of the Supreme Court?

Robert Bork

To be fair, the most egregious examples of politicization of supreme court nominees in living history have probably been by the Democrats (mostly based on the abortion issue).

[Really_Not_All_That_Bright]

@UltraVires

As has been discussed previously, the Constitution does not grant rights, it protects pre-existing rights. The right of self defense is one that it found throughout the common law and predates the constitution. Never in English common law history has a person who is attacked been required to legally stand there and die.

Of course not. But the common law has always allowed the sovereign to determine what weapons a person may use to lawfully defend himself. As has been explained before, Scalia was just making things up throughout Heller, or cherry-picking historical references at best.

Sure, the court is political. But don’t tell me that it’s only the liberals who make it so.

@watchwolf49

My argument is that missing one Supreme Court justice is not dangerous, you must be confusing this with the strawmen you’ve built.

You mean strawmen like whether it is “dangerous” for the court to proceed with eight justices?

[ElvisL1ves]

@puddleglum

If these five lawyers know when we need to restrained and when we don’t then why don’t we just stop with all the pretense of the elections and have these five lawyers declared rulers?

How much do you really know about the checks and balances system, and how and why it works?

[Folacin]

@Damuri_Ajashi

Robert Bork - Wikipedia

To be fair, the most egregious examples of politicization of supreme court nominees in living history have probably been by the Democrats (mostly based on the abortion issue).

This would be the Bork hearings, which, in addition to actually be held, ended up with a full Senate vote, which AIUI was highly unusual after not being approved by the Judiciary committee?

Where the Senate discussed his qualifications and withheld consent?

[Some_Call_Me.Tim]

After all, Bork had been promised the next Supreme Court seat as payback for executing Nixon’s illegal order to fire Archibald Cox, after the two previous men Nixon had ordered to fire Cox had resigned in protest.

Bork had a real, actual history of illegality that came out in a real, public hearing that was held by the Senate.

[puddleglum]

@ElvisL1ves

How much do you really know about the checks and balances system, and how and why it works?

I understand the one of the checks the legislature has on both the executive and judicial branches is the ability to approve nominations to the Supreme Court.
I also understand that the Supreme Court’s power has metastasized since the constitution was written. In the Federalist papers Hamilton refers to the judicial branch as the least dangerous branch because it has neither force nor will, yet as we saw in the gay marriage debate the Supreme Court has able to override the express will of both the President, the Legislature, and 37 popular referendums on an issue that is not even mentioned in the constitution.
In order for checks and balances to work the legislature must stand up for itself and they need to say that no more activist judges will be approved and the ones that become activists will be impeached.

[watchwolf49]

The US Constitution doesn’t forbid judicial activism.

[Shodan]

Article 1, Section 7, describes the process by which laws are made and passed. It doesn’t mention the Supreme Court.

Regards,
Shodan

[watchwolf49]

@Shodan

Article 1, Section 7, describes the process by which laws are made and passed. It doesn’t mention the Supreme Court.

Regards,
Shodan

Article 3, Section 2, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority … [snip]”

If I may use flag burning as an example, the courts did not write a new law saying this activity is allowed. Rather, they struck down existing laws that prevented it. This is the same for abortion, SSM and interracial marriage. The courts role is to stop laws from taking effect that violate the US Constitution, which is a good thing (c.f. Jim Crow laws). I understand this is based on the opinion of just nine folks, and this isn’t perfect. Those who ratified the Constitution understood this as well, thus they allowed final say to We the People by 2/3’s each house and 3/4’s the States. This is better than investing all powers of God Above to the King.

Legislatures and Executives can and do cross the line, the Courts are there to stop them.

[John_Mace]

@watchwolf49

The US Constitution doesn’t forbid judicial activism.

The constituent is not a list of things the government is forbidden to do. It’s a list of things the government is allowed to do. So, no, the federal government doesn’t get to do anything it wants as long as the constitution doesn’t forbid it. It gets to do only those things that the constitution allow it to do.

[iiandyiiii]

@John_Mace

The constituent is not a list of things the government is forbidden to do. It’s a list of things the government is allowed to do. So, no, the federal government doesn’t get to do anything it wants as long as the constitution doesn’t forbid it. It gets to do only those things that the constitution allow it to do.

But the Constitution does subject laws to the possibility of judicial review (when cases are brought against them), and therefore does allow courts to strike them down, which seems to be the definition of “judicial activism” according to some.

[watchwolf49]

@John_Mace

The constituent is not a list of things the government is forbidden to do. It’s a list of things the government is allowed to do. So, no, the federal government doesn’t get to do anything it wants as long as the constitution doesn’t forbid it. It gets to do only those things that the constitution allow it to do.

Which includes declaring that certain laws cannot be enforced, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution … [snip]”

Flag burning is protected speech, and it really is the Courts’ power to decide this.

@iiandyiiii

But the Constitution does subject laws to the possibility of judicial review (when cases are brought against them), and therefore does allow courts to strike them down, which seems to be the definition of “judicial activism” according to some.

What we don’t have is judicial review without a case … an important distinction IMEIO.

[watchwolf49]

nm

[John_Mace]

@iiandyiiii

But the Constitution does subject laws to the possibility of judicial review (when cases are brought against them), and therefore does allow courts to strike them down, which seems to be the definition of “judicial activism” according to some.

That’s a different argument. I was specifically noting that “it’s not forbidden in the constitution” is never an argument for allowing the US federal government to do something.

[Shodan]

@watchwolf49

Article 3, Section 2, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority … [snip]”

The judicial power, sure. “Judicial activism” in the sense we are discussing is where judges make up new laws, or new rights.

If I may use flag burning as an example, the courts did not write a new law saying this activity is allowed. Rather, they struck down existing laws that prevented it. This is the same for abortion, SSM and interracial marriage.

SSM is not like interracial marriage.

The argument in Loving was that a couple was being denied the equal protection of the law that established marriage as the union of one man and one woman. Gay couples were not denied the equal protection of any law, because there was no law that established marriage as the union of two men or two women, therefore the Supreme Court changed the law by changing the definition. That’s what is meant by “judicial activism” in this context.

The right to burn flags is protected under the First Amendment. Free speech is an enumerated right under the Constitution, and thus properly protected by striking down laws that violate it. SSM is not an enumerated right under the Constitution (nor was it established by the law), and thus SSM cannot be licitly established under either the Equal Protection clause, nor the First Amendment, nor anywhere else in the Constitution, which does not enumerate any right to marriage or to SSM. If legislators wanted to enact SSM thru legislation, that would be fine. Making laws is what legislators do. If the states or the people wanted to amend the Constitution and enumerate thereby a right to marriage, or to SSM, that would be fine too. The process of amending the Constitution is also defined therein, as is the process of legislators passing laws.

But the Constitution is clear that the federal government, including the Supreme Court, may not do anything it is not explicitly defined to be doing. And the Constitution does not say that the Supreme Court may make laws, nor that the Supreme Court may enumerate new rights. Therefore, they cannot licitly do so.

Regards,
Shodan

[iiandyiiii]

@Shodan

The argument in Loving was that a couple was being denied the equal protection of the law that established marriage as the union of one man and one woman. Gay couples were not denied the equal protection of any law, because there was no law that established marriage as the union of two men or two women, therefore the Supreme Court changed the law by changing the definition. That’s what is meant by “judicial activism” in this context.

But that’s just one interpretation – by others, marriage was established (even if only recently) as the union of two adults. So, if the definition of marriage had already changed due to changes in culture (or some other factors), then the SC was just restoring equal protection that was denied to gay people based on this changed definition of marriage.

And there are probably other interpretations as well. But everything is an interpretation – trying to read the laws literally is an interpretation, and trying to read the motives of the founders is another one, and so on. There’s no way to read the Constitution without interpretation, since the same words and concepts can mean many things.

[Shodan]

@iiandyiiii

But that’s just one interpretation – by others, marriage was established (even if only recently) as the union of two adults.

Since it was a “equal protection of the law” argument, could you cite the law that established marriage as “two adults”?

But everything is an interpretation – trying to read the laws literally is an interpretation, and trying to read the motives of the founders is another one, and so on. There’s no way to read the Constitution without interpretation, since the same words and concepts can mean many things.

There is no way to read your post without interpretation, but that doesn’t mean I can decide it said whatever I want it to.

If 'one man and one woman" means “two men”, then why doesn’t “two men” mean “one man and one woman”?

Regards,
Shodan