Kennedy Retiring from SCOTUS

God, I hate the Usual Suspects here…

Given that the Republican majorities in each house of Congress have shown a complete unwillingness to cross Trump, I’d say Trump is in control of Congress, to the extent anyone is.

Yes. Ryan and McConnell.

So why haven’t the ACA repeal and immigration reform bills passed?

I’m sorry, I thought you said in control.


Point taken.

Yes, thanks!

Your heart’s just not in it anymore, is it, hoss?

Haven’t read a name, but can anyone tell me if there’s anyone on the list who is not in the Federalist Club? Kind of the gathering place for ambitious young lawyers who know on what side their toast is buttered.

They may well have been – I wasn’t there to smell them! :smiley:

But here’s what bothers me about the constitutional purity argument, which we hear about constantly from conservatives. A fair-minded originalist reading of the Constitution in the context of modern issues can be a deeply complex matter that does not by any means produce predictable results. Yet we have conservatives all over in stitches of delight over Kennedy’s pending replacement – in this thread, all over the media, everywhere. Which seems to speak to a great confidence in the outcomes that will emerge from the Court, rather than in the principles by which they will be reached.

And this is absolutely true. To a non-American like myself, who is accustomed to hearing about Supreme Court appointments as an incidental item within the nightly news or on the inside pages of newspapers and websites, such appointments have no drama and very little political implication, yet these other Supreme Courts do make important landmark rulings from time to time. But it’s usually hard to predict how those rulings will be decided, or how the justices will align. The judicial system is just not regarded as partisan.

Here it all seems preordained. Historically, in recent years all the most controversial rulings have been decided 5-4, with a usually predictable alignment of the justices. The Supreme Court is considered as predictably partisan as Congress itself, maybe even more so.

What I’m trying to say is that I find all the arguments about principles and constitutional purity and originalism to be disingenuous. The way this Kennedy development is being viewed is that a Republican justice will be appointed, and everyone is celebrating the expectation that said Republican justice will make constitutional interpretations that will reliably align with Republican ideology – because the results are all that matters.

I don’t claim any particular moral superiority for the other side, which exhibits the same judicial partisanship, except I’m not aware of Democrats claiming a monopoly over righteous constitutional interpretations, merely a more pragmatic approach to applying them to modern society. It just seems more honest. But the partisanship on both sides is depressing. The Supreme Court should not be a political body or a de facto extension of Congress.

David Dayen suggests that the Dems could delay the vote on Trump’s nominee by absenting themselves, thus denying the Republicans a quorum, at least as long as McCain’s both alive and absent (ETA: the reason being that as long as there are 100 Senators, a quorum is 51).

Unfortunately, it wouldn’t work. Here’s the Senate rule re quorums:

Each of the four parts of the rule are fatal to this proposal. Hell, even the title gives the game away.

The most straightforward part is #3. A present Senator has to request a quorum call in order to call the existence of a quorum into question. If there are 50 Republicans and 0 Democrats present, who’s going to make that request? And if there are 50 Republicans and 1 Democrat present, there’s a quorum. Oops.

But even if the absence of a quorum were established under the rules in the absence of any Dems, the Dems can’t just choose not to be there (#2), and their presence can at least theoretically be compelled (#4). Mitch would probably short-cut it by treating their compulsion as a fact, even if it wasn’t possible to physically drag a Dem Senator into the chamber, and proceed as if there was a quorum present, and confirm the nominee. And no Dem would have the power to do anything about it.

We like it because there will be principle in Supreme Court judgments again instead of “pragmatic” solutions which are nothing more than what the liberal screed du jour is.

But this is just pablum. Nearly everyone on every side says that judgments that go along with their preferred politics are “principled” and “textual”, and anything that disagrees with their politics is “activism” or “liberal/conservative screed du jour”. When interpretation is required, there can be no one true interpretation. This goes for the Constitution, the Bible, the Quran, or any other complicated text. There’s nothing special about conservative interpretation – it’s just an interpretation.

There are people that argue that Roe V Wade is “textual”?

There are undoubtedly many people on the right who anticipate salubrious results, as you suggest.

People being what they are, I agree that many on the right would embrace penumbras and emanations if that were the path to favored results. Indeed, we need not speculate; we have only to look back at the 1910s and Lochner v New York, where progressive labr legislation was thwarted by the Supreme Court because they could discern a “right to contract,” in the Constitution.

But I think that’s not the whole story – certainly it’s not my own story.

Ultimately I’m driven by The Rules – the sense that we agree on the rules ahead of time and accept their outcome, perhaps working to change them if they don’t deliver results we want. But judges are not the makers of The Rules – that should be legislators, with executive branch players filling in gaps. Judges are the referees, not trying to steer a particular participant or cause to win or lose, but just evenhandedly applying the rules as written.

That’s my conviction for how things should be. The Meta Rules, if you will. While I grant that many would simply abandon that approach if it produced unwanted results, I’m not among their number. I firmly believe that as long as everyone colors within those lines, results we want can be obtained by electing people that are sympatico with those results.

And if I can’t get the legislature to wrote the rules I want, then . . . in a representative democracy . . . I don’t get to have those rules. Simple as that.

Really? I see it as just the opposite. Republican justices like to party like it’s 1791, and no problem if the dog ate that part of the page that contained the preamble to the Second Amendment – it wasn’t important anyway. Whereas Democrats tend to go, here are some principles, people – principles! – and we’re going to apply them to life in the 21st century.

The main difference I see is honesty of approach and the sense that the expressed principles are more important than the written letters, such as the ones about “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner …” which establishes a kind of principle but not a particularly compelling literal guidance in 2018. The partisanship on both sides, both naturally wanting their ideological outcomes, isn’t much different otherwise.


What serious legal commentator argues that Roe v Wade was textual? For that matter, what serious legal commentator argues that Lochner v New York was textual? Or Church of the Holy Trinity v. US was textual?

You’re simply off base here. Please, cite me one or two such commentaries.

Serious legal commentators do not deny that they favor decisions that arise from beyond the four corners of the text, iiiiandyii. They hew to judicial philosophies like loose constructionism, and they argue:

And while I disagree strongly with that view, it’s not factually wrong. It’s an opinion about the proper role of the judiciary. Serious debate about the issue – not sound bites from uninformed commentators – can offer up wicked good arguments for loose constructionism.

I have no idea why you seemingly believe that practitioners of this view somehow need to hide behind a faux claim of textualism.

“Loose constructionism”, eh? What’s that, like semi-celibate? Just mostly dead? Arguments on Constitutional law, and theology…ever notice how similar they are? Empty abstractions shuffled about by men who passionately believe it matters?

Wait for the argument about the miracle of Trumpsubstantiation.

Trump doesn’t have the foggiest clue who the justices he nominates are. Whoever gets their name mentioned by the crew at Fox & Friends is going to get nominated.
That said, the F&F script writers probably also want a very specific type of judge nominated.