The Romans did not claim to apply the model of “We The People,” and vest sovereign power in the electorate.
Get the word “wrong,” out of here. Is it wrong for a warden who learns of a prisoner’s innocence to help that prisoner escape? Yes, no, maybe, I have no clue and don’t pretend to. The warden, and you, are welcome to wrestle with your own consciences.
What I tell you is that a warden who, on his own initiative and without authority of law, helps a prisoner escape is not fulfilling the proper role of a warden. I make room for the possibility that extenuating moral imperatives may make it necessary to breach the proper role of a warden in order to serve a higher cause, and I make room for the possibility that extenuating moral imperatives may make it necessary to breach the proper role of a judge in order to serve a higher moral cause.
But that doesn’t transform such actions. They remain ultra vires, beyond the legal authority granted.
So what happens if, hypothetically, after Gorusch gets reinstated, Ginsburg dies in a freak skydiving accident (that russian fighter jet came out of nowhere!), and Trump proceeds to nominate Bill Pryor, who is less Scalia-Lite and more “Scalia as served by the Heart Attack Grill”? Let’s game this out. What happens when the democrats decide to filibuster, and Trump says, “Nope, we’re going with this guy.” What do you think wavers first - the will of several republican senators to not do away with the filibuster while under heavy pressure both from their own voters and the other republicans in government? Or Trump’s bull-headed insistence on getting his way? I don’t think the smart money is on the latter.
Oh, and by the way, any senator who trusts that the republicans will honor any agreement made WRT the filibuster is a fucking moron who ought to be primaried at the next possible opportunity.
And meanwhile, the republican party gets confirmation that simply running out the clock on any given nominee is the way to go. Another norm out the window, Democrats lose another round of Prisoner’s Dilemma by refusing to notice that every time they cooperate, their opponent fucks them, and the republicans are told in no uncertain terms, “Keep doing this, this works, this wins.”
I think if the republican party is not willing to renege on itself in the situation where the president nominates a hardline conservative in the immediate aftermath of the fucking gross behavior with regards to Merrick Garland, it is wishful thinking to assume that they will renege on themselves a few years down the line when it’s time to pick another one.
Principle is dead – there are no more positions (with regards to the SCOTUS appointments right now) that can’t be reasonably characterized as unprincipled.
Thank you, sir. Well put. The system worked exactly as it was supposed to WRT Bork, and subsequently to Harriet Miers (and as it should have WRT Thomas); unqualified and/or extremist candidates were weeded out. Post-Bork, qualified candidates appointed by Presidents of both parties were approved by large bipartisan majorities, just as had been the case pre-Bork. The game-changer wasn’t Bork, it was the GOP’s making up their new “Black Presidents only get three-fifths of a term” rule.
I was all set to post this:
Let the record show that someone of strong partisan opinions has actually changed his mind based on a GD thread. Although Democrats would clearly be morally justified in blocking all of Trump’s appointments in retaliation for the theft of Garland’s seat, I have to agree that it would be tactically bad because the likeliest outcome would be the loss of the ability to filibuster SC nominees, thus allowing the Republicans to more easily put genuine extremists on the Court.
Although as an abstract principle I would be happy about this, since I don’t believe minorities should have the right to block the will of the majority, the practical effects of making this change at this particular time would be unacceptable. And although I agree that it is likely that the Republicans, being unprincipled scum, will abolish the filibuster as soon as it serves their short-term interest, even if the Democrats continue to play by the established, albeit unwritten, laws, there is no sense in taking actions that make that outcome* more* likely while having no realistic chance of actually succeeding in blocking the nominee.
But then there’s this.
OK. So he is a genuine extremist. Filibuster the crap out of him.
But it sounds like you’re arguing that there should be no limit at all. And that any time the judge prefers a certain outcome as being more just, he can just find some sort of interpretation that will allow for it.
As you say, everyone agrees that there’s some sort of limit. But that applies to any principle. There’s always a weighing of one value against another. But that’s not the same as saying that one is not a significant consideration.
This comes up a lot with regard to various freedoms, e.g. freedom of speech. Many times the general principle of freedom of speech will result in a suboptimal result in a particular situation. But the general principle is a very valuable one, and every time you carve out an exception you weaken the general principle. So there’s a lot of suboptimal results that society is willing to endure in order to avoid weakening the general principle, which is a net positive on the whole.
So it is here. Democracy and idea that laws are created by elected representatives versus philosopher-kings is a valuable general principle. Yes, it will produce suboptimal results in particular situations. But every exception weakens it. So you need to weight the level of harm in the specific situation against the value of the general principle. In a really really bad doomsday situation, sure you’ll pay that price. But making a general policy of deciding things based on whether an individual judge thinks a particular result is more just in a specific instance is a very bad idea.
It’s hard to avoid noticing that the vast majority of people who argue in favor of expanded judicial powers and legal flexibility tend to be liberals, and the vast majority who argue the opposite tend to be conservatives. As Bricker suggested earlier, you get the sense that there’s some expedience at work here, and that liberals like the idea of judicial activism because they think it benefits their cause and that expansions of the law will tend to favor their causes, as they have for the past few decades at least. And there’s probably a self-fulfilling aspect to this as well, as more conservative legal people adopt a more judicial restraint attitude and liberal ones the opposite. But nothing lasts forever, and you never know when the shoe might be on the other foot and conservative justices begin creating expansive new rights along conservative lines (how about excessive taxation being deprived of property without due process, or something along those lines? :)) and laws passed by elected representatives will only be the starting point for the more important duels among judges who will routinely uphold, strike down, or reshape them per their will. Truth is we already have that to a large extent, but it can get a lot worse.
I don’t think the voters are so determined to have a Pryor-type in there that anyone who fails to lift the filibuster over it will pay a price. And Trump’s influence in the Senate is very limited. (Let’s see what he can pull off with the ACA.)
Others have made the same point, but your is the by far the least insulting, and the closest to understanding my point, so I will respond to you, thank you.
Yes, it is clear that it is a perfectly reasonable interpretation of the word “speech” to include all those other forms of communication. It is such a reasonable interpretation in fact, that it is being argued that it is not an interpretation, but is in fact the literal meaning, and that is what I am disagreeing with, as speech does not literally mean “digital communication”, it requires interpretation, it requires asking the question, “Would they have meant this form of communication?” The answer is yes, I agree, but my point is, you still need to ask that question.
So, to carry on my point, there are other interpretations that seem pretty clear and reasonable to some, including judges who make rulings, that seem to be unreasonable judicial activism to others. So, just as I see it as completely reasonable that the first amendment protects writings on a digital medium from government censorship, I also see it as perfectly reasonable interpretation that racial segregation violates the 14th, as does marriage inequality, the government cannot coerce a woman to incubate a child against her will, just as others find it perfectly reasonable that the second means that nearly anyone can carry a gun nearly anywhere, or that corporations are people and that their money equals speech.
I would agree with the former, but disagree with the latter, and I am sure there are those here who would disagree what I consider to be a reasonable interpretation, because they have a different interpretation that they find entirely reasonable.
I’ve noticed that conservatives seem more likely to characterize it this way, but I don’t accept that it is actually this way. I don’t notice liberals (in general, at least) advocating for “expanded judicial powers” or “judicial activism” – I’ve noticed that many conservatives assert that this is what liberals are pushing for. I see it the other way too – plenty of liberals will criticized conservatives for pushing for “expanded judicial powers” or “judicial activism” or similar concepts. It seems to me, as ever, that most commonly “judicial activism” is a decision that you (the general “you”) don’t like, whether you’re liberal or conservative. It might exist as a concept objectively, but if so, I remain entirely unconvinced that it’s more prevalent on one side or the other.
Similar to how the word “liberal” has been unpopular for a while, even if many “liberal” policies are popular to varying to degrees, I think this is about marketing – conservatives (IMO) have done a better job, in general, of “marketing” the idea that conservative (or conservative-preferred) justices strictly adhere to text, while liberal justices are activists.
IMO there’s less to the 87% number than meets the eye. Firstly, there’s an element of imprecision with all these estimates. But beyond that, Democrats have controlled the presidency for the last 8 years and 16 of the last 24. It’s to be expected that at this time the courts will be dominated by liberal judges, making the ranking of any conservative more extreme-looking than would otherwise be the case.
Give Trump 4 years of appointments (let alone 8) and you’ll see that 87% number come down. Not that it will make any liberals happy …
Pretty much. I mean, if we’re not going to make our stand here, where do we? When Trump decides he wants to rub our noses in it and nominates Harriet Myers? Gorusch isn’t Bill Pryor Jr., and if we’re talking solely in the realm of federal judges, that’s pretty much the nicest thing I can think of to say about the guy. Who, exactly, do we expect Trump to nominate who would be worse?
Well, okay, Bill Pryor Jr., but he’s really not that much worse.
I think you’re seizing on the words “judicial activism” but that’s not important. I’m discussing the principle that you’ve outlined in this thread. If you don’t think the term “judicial activism” applies, then strike it from my posts and the same point applies.
First, a judge being more conservative than Scalia is totally appropriate. There is no rule that a judge needs to have a certain political bent. Second, while your link does say the 87% figure, the cite it uses does not - in fact it links a site that was published in July 2016. I can’t find evidence of this 87% figure, and even taken at face value, that it’s based on campaign contributions, that’s a poor measure and almost wholly uninformative, IMO.
I don’t know how the filibuster situation will play out, but as an aside I see this same calculus when thinking about gun control advocates, except in the reverse. Time will tell how that plays out.
I can’t imagine how such a situation would come to pass.
I think a more generalized question is when does a moral duty trump a legal duty? I think each person needs to make those choices on their own and accept whatever consequences that come. In the case of SCOTUS judges, there is essentially no consequences if they were to ignore the law and replace it with their own interpretations. Because there are no consequences, my view is that they should be even more vigilant against taking such action.
No, it really does not require interpretation. We can all use the “reasonable person” expectation.
Judge Gorsuch made the following statement during his confirmation hearing just yesterday.
(Totally paraphrasing here, with apologies to the Judge).
Even though technology changes, our fundamental rights do not change. So if we have a right to be free from unreasonable search and seizure, the same thing applies to the use of thermal imaging to see inside our homes at will, which would also be an infringement of said right.
If I misheard the Judge, I’m sure someone will correct me.
The administrative review board, and the other two judges on the appellate panel, did apply the law as written. As written, the whistleblower law protected from termination any employee who “refuses to operate a vehicle because . . . the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition.” The word “operate” was not defined by the statute.
Both the review board and two of three judges on the appellate panel recognized that the statute protected employees in circumstances in which a vehicle could still be driven, such as a driver partially unloading a dangerously-overloaded trailer and continuing his journey, where the employer had instructed him not to do so. The court cited a 20-year-old case holding that doing so was “refusing to operate”. See page 10 of the opinion. In his hyper-literal view, Gorusch equates “operating” with “driving”, such that any driving of the vehicle at all means the employee did not refuse to operate. Only Gorusch maintains the pro-employer minority view that driving the vehicle at all places an employee outside the protection of the statute.
So, how did the majority arrive at their decision? By doing something Gorusch didn’t: considering the intent of the law, rather than just the text. The intent of the whistleblower law was to protect not just employees but the public by preventing unsafe vehicle operation. They concluded that “operate” means more than just “drive”, it can also mean “control the functioning of”. The employee refused to remain in control of the trailer while awaiting its repair. Therefore, he refused to operate it. They explain this at some length in footnote 4 of the opinion.
By insisting that “operating” means “driving” and nothing else, Gorusch engaged in the behavior you ordinarily decry: using the words he wishes were there, rather than the words that actually are there, to reach the result he wants.
Have you read the paper you cited? It ranks judges by assigning them the political views of their home state senator (if of the same party of the appointing president) or the appointing president (if not). The researchers specifically eschew any analysis of the judges’ judicial record. So Gorscuh is “conservative” because Wayne Allard was conservative. Merrick Garland, based on that score, is about as liberal as Ruth Ginsburg (and more liberal than Kagan or Breyer).
It is exactly the opposite - the other judges used what they believed to be the intent to reach the result they wanted. Gorsuch used the words that were actually there.
He wasn’t fired for refusing to operate it. He was fired for leaving it.
If he stayed with the trailer, he still would have been refusing to operate it, but they would not have fired him.
If someone gave him a ride on a rickshaw and he left both trailer and tractor there, he would have been fired.
He was not fired for refusing to operate anything, no matter how many contortions are applied to the word. He was fired for being in Place A while leaving the trailer in Place B. If an angel had wafted him to warm safety in Miami, he would have been fired. If Albus Dumbledore had given him a portkey to Godric’s Hollow, he would have been fired. If Scotty had beamed him aboard the Enterprise, he would have been fired.
If he had stayed with his trailer he would not have been fired.
Now, explain clearly, please, how he was fired for refusing to “operate,” again. Be specific. But don’t dodge the basic fact that he was fired for leaving, not fired for operating anything.
I don’t think the “believed” qualifier is necessary. IMO even if every single person in the world agrees that the intention of a law is to serve a certain purpose, that should not give carte blanche to judges to rule anything other than what the law actually says, even if it happens to serve the same purpose.
If the law is that you can’t drive drunk, and the intent was to promote safety, that doesn’t give the judges the right to stretch the law to encompass other things that encourage safety, even though they’re consistent with the intent of the law and serve that same purpose.
