No, only the Constitutional Court (Bundesverfassungsgericht) has jurisdiction on a claim of a constitutional right being violated. Their decisions weighing the basic right of human dignity (which is in fact the most important constitutional right in the German constitutional order, trumping even the right to life in the Luftsicherheitsgesetz case of 2006) against the other constitutional rights are not arbitrary as you seem to imply.
Hearing Diane Feinstein’s summary of the case against Gorsuch, today, brought home (for me) the fact that Gorsuch is one ice-cold handmaiden of the One Percent.
He’s far to the right of Scalia. Some other conservative, closer to Scalia in his views, would be a better fit for that seat.
But … but … he does that thing where the last three words of every sentence is uttered in this smooth, buttery whisper. By gosh, it’s hard to beat that kind of home-spun bullshit.
I mean … home-spun bullshit.
Too late. Gorsuch will be confirmed. Search your feelings. You know it to be true.
Well, all those people who were hoping for the filibuster to go away are going to get their wish, anyway. The door was opened and now the Republicans are probably going to kick it the rest of the way down when enough Dems in the Senate vote against him.
Yup.
And frankly, this nomination is the first thing Trump has done that I can enthusiastically support. For whatever that’s worth.
Kicking the door “the rest of the way down” really won’t happen until one side or the other does away with the filibuster for legislation as well, but I suspect that’ll happen too at some point here in the next few years.
No Supreme Court Justice nominee was ever successfully filibustered. Ever. So what exactly is the value of having that option if it was never successfully used?
If that is the fact (the never ever part above) then the successful use of filibuster in this case is the nuclear option. Removing the filibuster is the only fitting response.
I wonder what Gorsuch’s feelings will be as he joins Clarence Thomas in achieving a historically low (not the lowest, but still quite low) confirmation vote.
What do you call someone who gets a historically low Supreme Court confirmation vote?
I think he’s smart and savvy enough to understand that it (and the tone of his hearing in general) is largely driven by partisan rancor over events outside of his control, and has little if anything to do with personal animosity towards him. I’d be surprised if it bothers him at all.
His feeling will be: “My vote on every case counts just the same as if I were confirmed 100-0. So let’s get to work dismantling Chevron.”
How many others on the court want to help him with that? If he and Thomas can chip away at Chevron and the Commerce clause the country would be better off.
This is not right.
A bipartisan group of Senators, 24 Republicans and 19 Democrats, voted against cloture (in favor of keeping the filibuster going) in the Abe Fortas nomination to elevate him to Chief Justice back in 1968. At the time it took 67 votes to invoke cloture, and only 34 Senators to keep a filibuster going.
Some Senators in today’s confirmation vote hearing on the Gorsuch nomination did correctly note that there has never been a filibuster of a Supreme Court nominee by only one party.
I see the argument in the abstract against Chevron. Chevron allows agencies to enforce constructions of statutes that, while reasonable, aren’t the best or truest interpretation of congressional intent. But the actual effect is not to increase democratic accountability and the power of Congress; it’s to empower the judiciary, which is the least democratic of the branches.
I don’t see what it serves to pretend we live in a world in which Congress amends statutes when a court misinterprets them, which is the conceit at the heart of principled opposition to Chevron. That almost never happens. So it’s basically just a judicial power grab, wresting control of statutory interpretation from agencies that actually have some expertise and democratic accountability and reposing it in the hands of unelected, non-experts.
Well, I would think the judges would take the agency’s expertise into account when making their decisions, just like they do in a million other cases where a regulatory agency is not involved.
And some would balk at describing it as a power grab so much as a retention of their Constitutional power to interpret the law.
The pilot, you racist.
Oh wait, wrong punch line.
Doctor? Okay, okay, I got the joke. Just funnin’ wicha.
Regards,
Shodan
For me, whichever branch is most likely to faithfully interpret according to the most reasonable interpretation of the text of the law is the one I would prefer to have interpreting it. Right now I’m down on Chevron because of the Obama administration’s expansive efforts to use things of this sort to effectively override or create laws by means of their own “interpretations”. But it’s not like the judiciary has clean hands either.
As a legal principle, “let whoever Fotheringay-Phipps agrees with decide the issue” is not very sound.
Sure, but it’s much more limited. For a big rule, representatives of the agency, who have often worked on a particular issue for a decade or more, work for years with all the different stakeholders. They formally consider and respond to public comment from everyone with an interest.
By contrast, in a legal case, the Court is beholden to the adversarial process. It doesn’t get to hire its own experts or ask them the questions it wants. It just gets to pick among the handful of expert opinions it is offered. And even very well-informed judges are not expert in the areas in which they are asked to rule.
Whatever advantages a court has over agencies, it is not expertise or careful decision-making. Of course, all of this is historically contingent. If the GOP’s standard-bearer gets his way, agencies will apparently be staffed with wealthy scions with no relevant background, and many judges will indeed have more expertise than that lot. But at least in normal times, the agencies have more expertise and it cannot be fully accounted for by judges in our adversarial trial process.
It might well be the judiciary’s god-given entitlement. That doesn’t change the reality that power would be flowing from the agency to the judiciary, and not from the agency to Congress as proponents would have it.
There is rarely such thing as the “most reasonable interpretation of the text.” There are almost always multiple reasonable interpretations, and we use various canons of construction to decide which one wins. In some contexts the canon says we interpret the rule in the way most favorable to one party or another. In some context the canon instructs that we privilege one kind of evidence about meaning over another. We have decided that in the agency context we will privilege the views of experts who work in this space. If we abandon that, we’re not returning to some realm of pure reason. We’re just un-tethering ourselves from that particular canon. It will either be replaced by a different canon, or it will be replaced by the whims of judges.