# Schumer Urges Filibuster to Block Gorsuch Confirmation **URL:** \ **Category:** Great Debates\ **Created:** [March 23, 2017, 4:45pm UTC](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845 "2017-03-23T16:45:20Z")\ **Posts on this page:** 20\ **Page:** 12
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [March 30, 2017, 12:47pm UTC](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845/221 "2017-03-30T12:47:46Z")
> [@Shodan](#): > > At least we agree on what happened - the liberals on the Supreme Court didn’t like the legal definition of marriage, so they made up a new one, because they thought their definition of what was cowardly and unfair should supercede everything else. That’s what we are talking about when we mention 'judicial activism" - making up laws when you feel like it. Making laws is what legislatures do, and is thus a violation of the separation of powers. > > The problem for liberals, as I mentioned, is legitimizing judicial activism means that they object when my goose is replaced by your gander. Once you have established that it doesn’t matter what the law or the Constitution says, and whatever the Supreme Court decides is unfair or cowardly or just is the law of the land, then your gander may squawk, but I need pay no more attention than you did when I squawked. It’s the same sauce. > > Regards, > Shodan This is also a problem for conservatives – plenty of conservatives want something that can reasonably characterized as “judicial activism” (which, so often, just ends up meaning a decision someone doesn’t like). Opinions can reasonably differ on such issues, and obviously do in the SCOTUS. If the Constitution were simple/easy/obvious to interpret, we wouldn’t need justices. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [March 30, 2017, 12:49pm UTC](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845/222 "2017-03-30T12:49:47Z")
> [@Johnny\_Ace](#): > > You mean like **Shodan** claiming that I know nothing about the Republican base and implying that he does? Yeah, somebody wake me when he actually supports that claim. (He won’t, of course, he’s _still_ making excuses not to.) You seem to be misremembering what you posted. The statement that you know nothing about the Republican base was in response to your allegation that Garland was acceptable to the Republican base, and it is that claim that needs a cite. > [@Bone](#): > > But even if the equal protection argument isn’t persuasive, there is another argument in the 9th amendment. > > “The right to marry whoever one wishes is an elementary human right compared to which ‘the right to attend an integrated school, the right to sit where one pleases on a bus, the right to go into any hotel or recreation area or place of amusement, regardless of one’s skin or color or race’ are minor indeed. Even political rights, like the right to vote, and nearly all other rights enumerated in the Constitution, are secondary to the inalienable human rights to ‘life, liberty and the pursuit of happiness’ … and to this category the right to home and marriage unquestionably belongs.” - Hannah Arendt > > Are we truly free if the government can tell us whom we can marry? I say no. The Ninth Amendment is not a source of rights, nor does it bring any rights under the protection of the federal government. It refers to rights that are specifically not enumerated in the Constitution. The Supreme Court’s jurisdiction is limited to cases arising under the Constitution, not cases arising from unenumerated rights. There certainly could be a right to SSM, but it doesn’t arise from the Ninth Amendment. It would have to arise from the states, or the people. In the case of SSM, it would arise from the common law. Unfortunately, the common law defined marriage as the union of one man and one woman, which is why the Supreme Court changed the common law to be more acceptable to their notions of what the law should be. (And overruled the states, or the people, who wanted the Tenth Amendment to mean what it said, when they passed laws or amended their state constitutions.) Regards, Shodan ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [March 30, 2017, 12:53pm UTC](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845/223 "2017-03-30T12:53:56Z")
> [@Shodan](#): > > The Ninth Amendment is not a source of rights, nor does it bring any rights under the protection of the federal government. It refers to rights that are specifically not enumerated in the Constitution. The Supreme Court’s jurisdiction is limited to cases arising under the Constitution, not cases arising from unenumerated rights. > > There certainly could be a right to SSM, but it doesn’t arise from the Ninth Amendment. It would have to arise from the states, or the people. In the case of SSM, it would arise from the common law. Unfortunately, the common law defined marriage as the union of one man and one woman, which is why the Supreme Court changed the common law to be more acceptable to their notions of what the law should be. (And overruled the states, or the people, who wanted the Tenth Amendment to mean what it said, when they passed laws or amended their state constitutions.) So says the Honorable **Shodan** , but others reasonably disagree. It really is possible for reasonable disagreement on this issue. Disagreement doesn’t = judicial activism. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [March 30, 2017, 12:58pm UTC](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845/224 "2017-03-30T12:58:24Z")
Correct. Making up laws = judicial activism. Either judicial activism is wrong, or it is not. If it is wrong, then it is wrong when liberals do it as well as when conservatives do it. If it is not wrong, then it is not wrong when conservatives do it either. It’s OK when it gets me what I want, but wrong when it doesn’t get me what I want, is not reasonable disagreement. Regards, Shodan ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [March 30, 2017, 1:33pm UTC](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845/225 "2017-03-30T13:33:29Z")
> [@Shodan](#): > > Correct. Making up laws = judicial activism. I don’t subscribe to your definition of judicial activism. While I think activism does occur, I think it’s more in line with [Kennedy’s view](https://en.wikipedia.org/wiki/Judicial_activism), _“An activist court is a court that makes a decision you don’t like.”_ > [@Shodan](#): > > The Ninth Amendment is not a source of rights, nor does it bring any rights under the protection of the federal government. It refers to rights that are specifically not enumerated in the Constitution. The Supreme Court’s jurisdiction is limited to cases arising under the Constitution, not cases arising from unenumerated rights. While the 9th may not be a source of rights, it certainly recognizes rights. And SCOTUS disagrees with you about the 9th bringing certain rights under protection of the federal government and its jurisdiction to do so. See Griswold and its progeny. While you or I may disagree, as a factual matter your assessment is in error. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [March 30, 2017, 1:41pm UTC](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845/226 "2017-03-30T13:41:51Z")
> [@Shodan](#): > > Either judicial activism is wrong, or it is not. This is not self-evident. Judicial activism, however defined, is a strategy, which may lead to different ends. This is similar to other strategies, such as dishonesty, violence, cooperation, honesty, and compromise. If someone commits dishonesty or violence in order to protect a child from a kidnapper, those are fine strategies. If someone cooperates and compromises in order to further a heroin trafficking conspiracy, those are not fine strategies. Too often in these threads, folks are hung up over process rather than outcome. Yes, process is important; but so is outcome. It’s perfectly legit to give weight to the outcomes from different strategies. Circling back, if you define “judicial activism” as something like “drawing specific, novel conclusions based on general principles outlined in the constitution, even when those novel conclusions would not have been accepted by the authors of the general principles,” that can sometimes be good and sometimes bad, depending on the outcome reached. This should not be controversial. Yes, this means that sometimes conservatives will choose conservative judges who engage in judicial activism for poor ends. So what? Conservatives often engage in legislative actions for poor ends as well. When the court decides that political spending is equivalent to free speech, that’s judicial activism. The problem isn’t that it’s activism, it’s that it furthers a bad outcome. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [March 30, 2017, 1:44pm UTC](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845/227 "2017-03-30T13:44:50Z")
> [@Shodan](#): > > Correct. Making up laws = judicial activism. > > Either judicial activism is wrong, or it is not. If it is wrong, then it is wrong when liberals do it as well as when conservatives do it. If it is not wrong, then it is not wrong when conservatives do it either. > > It’s OK when it gets me what I want, but wrong when it doesn’t get me what I want, is not reasonable disagreement. > > Regards, > Shodan Fine… and there’s probably no definition of judicial activism (or “making up laws”) that everyone will agree on. Many conservatives will still consider it to be any decisions that they don’t like, as will many liberals. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 30, 2017, 1:47pm UTC](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845/228 "2017-03-30T13:47:39Z")
> [@Bricker](#): > > How could they possibly rule that the New York Times, a corporation, had such strong First Amendment rights but other corporations did not? Perhaps you should ask why Hobby Lobby, a corporation, has first amendment rights that other corporations don’t. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 30, 2017, 2:05pm UTC](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845/229 "2017-03-30T14:05:21Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Perhaps you should ask why Hobby Lobby, a corporation, has first amendment rights that other corporations don’t. Do they? I don’t agree. What are they? ---
**Author:** ![Slash1972](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/slash1972/32/6461_2.png) [@Slash1972](https://boards.straightdope.com/u/Slash1972)\ **Post date:** [March 30, 2017, 2:15pm UTC](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845/230 "2017-03-30T14:15:24Z")
> [@Bone](#): > > Are we truly free if the government can tell us whom we can marry? I say no. So you favor the repeal of the laws in almost every state that prohibit siblings from getting married? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 30, 2017, 2:21pm UTC](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845/231 "2017-03-30T14:21:49Z")
> [@Bricker](#): > > Do they? I don’t agree. What are they? Religious exercise, of course. > [@](#): > > HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because it is difficult as a practical matter to ascertain the sincere “beliefs” of a corporation. HHS goes so far as to raise the specter of “divisive, polarizing proxy battles over the religious identity of large, publicly traded corporations such as IBM or General Electric.” Brief for HHS in No. 13–356, at 30. > > These cases, however, do not involve publicly traded corporations, and it seems unlikely that the sort of corporate giants to which HHS refers will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. For example, the idea that unrelated shareholders—including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable. In any event, we have no occasion in these cases to consider RFRA’s applicability to such companies. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [March 30, 2017, 2:37pm UTC](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845/232 "2017-03-30T14:37:53Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Religious exercise, of course. Leave aside that Hobby Lobby is a RFRA case, not a first amendment case, that’s an interesting way of looking at it: the right to freely exercise religion gives “extra” rights to people who have religious beliefs to exercise. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 30, 2017, 2:55pm UTC](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845/233 "2017-03-30T14:55:48Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Religious exercise, of course. As noted above, that’s the result of the RFRA. The First Amendment compels a different result, sadly, per Employment Divison v. Smith. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 30, 2017, 2:56pm UTC](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845/234 "2017-03-30T14:56:50Z")
> [@Falchion](#): > > Leave aside that Hobby Lobby is a RFRA case, not a first amendment case, that’s an interesting way of looking at it: the right to freely exercise religion gives “extra” rights to people who have religious beliefs to exercise. And the Third Amendment gives extra rights to people with extra bedrooms or patios. 🙂 ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [March 30, 2017, 2:57pm UTC](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845/235 "2017-03-30T14:57:05Z")
> [@Slash1972](#): > > So you favor the repeal of the laws in almost every state that prohibit siblings from getting married? Consenting adults, fine with me. Non consenting adult(s), not fine with me. ---
**Author:** ![Slash1972](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/slash1972/32/6461_2.png) [@Slash1972](https://boards.straightdope.com/u/Slash1972)\ **Post date:** [March 30, 2017, 3:15pm UTC](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845/236 "2017-03-30T15:15:36Z")
> [@Bone](#): > > Consenting adults, fine with me. Non consenting adult(s), not fine with me. Fair enough, thanks for the response. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [March 30, 2017, 3:50pm UTC](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845/237 "2017-03-30T15:50:07Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Too often in these threads, folks are hung up over process rather than outcome. Yes, process is important; but so is outcome. It’s perfectly legit to give weight to the outcomes from different strategies. The process is what we as a society agree to in advance, because the process on which we agree is the one that gives the most people the chance to get the outcome they want. If we want a process whereby judges rule based on what they think should be rather than what the Constitution says they are, then we create a process that does that. If we want a process where elected officials make the laws and judges restrain themselves to those laws, then we create a process that does that. If we appoint a judge who should be doing the latter but instead does the former, then we appoint new judges. > [@](#): > > Circling back, if you define “judicial activism” as something like “drawing specific, novel conclusions based on general principles outlined in the constitution, even when those novel conclusions would not have been accepted by the authors of the general principles,” that can sometimes be good and sometimes bad, depending on the outcome reached. This should not be controversial. It is controversial - it’s always bad, because it violates the Constitution, where legislators make laws and judges don’t. You are IMO conflating originalism with textualism, but that doesn’t affect the point. > [@](#): > > When the court decides that political spending is equivalent to free speech, that’s judicial activism. The problem isn’t that it’s activism, it’s that it furthers a bad outcome. Jimmy and I want to have a foot race, and you will be the judge. We agree that the first person to cross the finish line wins, that this is a fair standard, and we pick you to decide who crosses first. We race, and I cross first. You declare Jimmy the winner, because we agreed that fairness is the best standard, and Jimmy never wins, and we agreed that fairness in general is better than unfairness. That’s a case where outcome is more important, and sticking to the process is less important. Based on interpreting the general principle of fairness in novel ways that those who agreed in advance would never have thought of. Regards, Shodan ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [March 30, 2017, 3:51pm UTC](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845/238 "2017-03-30T15:51:08Z")
> [@BigT](#): > > When have you ever seen the Socratic Method work in a political argument? > > Note, that’s just a rhetorical question. The answer is “never.” Your opponent does not accept you as a teacher. And they will be irritated by your lack of response and/or non sequiturs. They have a tendency to leave the conversation, and never learn what point you were trying to make. > > Say what you mean. If it’s valid, you don’t need the trickery of making me think I came up with it myself. (post shortened) The Socratic Method is only one way of discovering/uncovering the truth. Typically, political arguments are a series of “My Side is Right and Your Side is Wrong” declarations where uncovering the whole truth is not a primary concern. The Socratic Method is a way of allowing the participants to teach themselves by questioning their own biased, and possibly ignorant (and I mean “ignorant” in the nicest possible way) beliefs. There is no “trick” to it. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [March 30, 2017, 4:10pm UTC](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845/239 "2017-03-30T16:10:50Z")
> [@Bricker](#): > > OK. So it seems to me that’s what’s happening now. American homophobes have elected a President and a sympathetic Senate majority, and are now seeking to install sympathetic judges. > > Yes? Well, yes, but that president didn’t get a plurality, which gives me some hope that re-election is unlikely. I cheerfully admit his election caught me by surprise and then struck me with disappointment. I gather it’s at least partly the result of a simmering nativist/populist backlash (the symptoms of which have struck countries other than the U.S. in recent years) combined with a truly giant mess of fake-news propagandizing and enabled by large-scale voter indifference. That both houses of your congress went to Republicans struck me as more troubling and in the long run more damaging than the Trump sideshow. My personal view of your country at the moment includes the sense of watching a friend engaging in self-destructive behavior like cutting or going back to an abusive spouse. Of course you have the \*right \*to do so - I’m expressing my opinion that you \*shouldn’t \*and giving the reasons behind that opinion. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [March 30, 2017, 4:23pm UTC](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845/240 "2017-03-30T16:23:06Z")
> [@Shodan](#): > > Jimmy and I want to have a foot race, and you will be the judge. We agree that the first person to cross the finish line wins, that this is a fair standard, and we pick you to decide who crosses first. We race, and I cross first. > > You declare Jimmy the winner, because we agreed that fairness is the best standard, and Jimmy never wins, and we agreed that fairness in general is better than unfairness. Uh, nope. Change this so that if you win, Jimmy dies, and if Jimmy wins, nobody dies, but you kind of hate Jimmy and want him to die. Also, we agreed in advance that everyone has the right to live. Now we have an outcome worth discussing: is it better for me to stick to the original agreement, or for me to engage in activist judging? [Previous page](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845.md?page=11) [Next page](https://boards.straightdope.com/t/schumer-urges-filibuster-to-block-gorsuch-confirmation/782845.md?page=13)