The problem with judge both extreme left and right is interprting the Constitution as what they think it should say versus what it does say. Since the Constitution is (or was) a fairly conservative method of government, we here about activist judges (almost always liberal) creating laws where none exist through an interpretation of the Constitution (like Roe v Wade through a overextention of the right to privacy) but a Justice Bork would have done the same thing but rewriting the laws to the right. In some cases that wouldn’t be a bad thing like the original meaning of the ICC but in other areas like the 1st Amendment he would have been an activist on the other side of the aisle.
It’s fair to believe that our actual Senators would not be especially principled in applying my preferred test. But that doesn’t make the test itself bad, or incomprehensible.
Here’s how I would apply it. Can you assert a set of principles other than your personal policy preferences that guide your interpretation of the Constitution in a way that is rationally connected to the known purposes of the document? Scalia’s mode of Textualism meets this test, and is a reasonable view of the Constitution. If he convinced me in a confirmation hearing that he would follow his espoused test, I would vote to confirm. I also think Breyer’s view is a reasonable view. If he convinced me in a confirmation hearing that he would follow his espoused test, I would vote to confirm.
The spectrum of reasonableness is really very wide, and it is an exceedingly easy test to satisfy. But it is not so wide that a reasonable view of the Constitution is that it means whatever my policy preferences say it means, or that it means whatever my faith-based reading of history tells me it means.
I agree. That is one of the beliefs he shares with Scalia and Thomas, and I think it is on the reasonable side, though it happens to be wrong. 
The beliefs that make me think he doesn’t have a reasonable jurisprudence are, among others, his First Amendment jurisprudence, and his ad hoc and apparently evolving views of whether the Equal Protection clause applied to more than just race.
If the writers of the Constitution had been interested in a conservative method of government, they would have kept the Articles of Confederation. Or rule by London.
I think it’s pretty safe to say that one of the main guiding principles that motivated the creation of the Constitution was “feel free to change whatever you don’t like.”
No it isn’t-that would have been a mobocracy.
Anyways if Mr. Bork had been nominated a more moderate approach to abortion may have been taking like the state of Oklahoma is doing right now.
This has nothing to do with mobocracy. The point I made was that the Constitutional authors were not a bunch of people who thought that government should be based on tradition. If they thought people should be ruled by what people thought two hundred years earlier, they wouldn’t have been writing a new constitution.
The United States does have a moderate position on abortion. It lets people decide for themselves. Those who want abortions can have them. Those that don’t want abortions, don’t have to have them.
An extreme position would be the government deciding when people have abortions - it doesn’t matter if the government is prohibiting abortions or making them mandatory.
You think requiring a woman be penetrated vaginally with an ultrasound probe is “a more moderate approach?” (A source you probably trust)
Can you define a way to recognize that society, and its views of justice and the proper role of government, have evolved significantly since the 18th century without preemptively dismissing the concept as “personal preferences” ? :dubious:
Well, here is my problem with this approach. I feel we are merely substituting one question which is difficult to apply with another one. The entire “rationally connected to the known purposes of the document” is not much of an improvement in terms of avoiding really, partisan bias as to what constitutes a judicial philosophy “rationally connected to the known purposes of the document.”
In the end, you are likely going to get what presently exists, partisan bickering and application of the test you devised to evaluate judicial nominees. First, they are going to disagree as to what the “purposes of the document” are and next whether some judicial philosophy is rationally related to these purposes, and I suspect and have every reason to believe the disagreement in application of this test will be predicated upon partisan belief.
Well, this prose is probably most convincing in making my point. There are and probably always will be those who believe in a living, breathing, and evolving U.S. Constitution and what the document says, as ruled upon by the justices, is reasonable, even if and where it is based upon policy preferences or faith based reading of history, as such an approach is reasonably consistent with a document whose genius is its adaptability to the times by judicial review.
It is also possible there will be disagreement within the group. For example, I can see those appealing to textualist repudiating a textualist judicial nominee on a single issue or a few issues, because they view the nominees textualism as irrational and unreasonable to the purposes of the U.S. Constitution.
Sure, if the mob needed two-thirds of three-fourths of all the submobs to agree.
(Pedant hat ON)
The word is “ochlocracy”.
(Pedant hat OFF)
But again, I think you’re arguing that the test I outlined could be badly applied. I don’t doubt that it could. I was espousing what I think would determine my vote if I were a Senator, so of course I would be applying my own test in good faith.
Beyond that, I don’t want to get too caught up in the exact wording I chose in my previous post. I meant to express a general idea rather than establish a standard for all time. If the phrase “rationally connected to the known purposes of the document” is so vague that our own personal biases creep into it even if acting in good faith, then I will try to express the idea more concretely.
The power of judges to interpret the Constitution itself derives from the Constitution. Therefore, that power should be consistent with the purpose of the document. Many purposes of the Constitution are known, or at least universally accepted. For example, we know that the purpose of the Bill of Rights is to limit the powers of, among others, Congress to infringe on key individual liberties through legislation passed by majority rule. Thus, if your proposed theory of constitutional interpretation says that amendments in the Bill of Rights mean whatever Congress says they mean, that theory may be sincerely believed and internally consistent, but it is not “rationally connected to the known purposes of the document.”
I think there are a whole range of potential theories that would similarly fail the test of whether they are even arguably consistent with what we know the Constitution is supposed to accomplish. You raise the prospect that a nominee might profess that the Constitution’s meaning can be left entirely to the discretion of judges to rule based on their whims, because it is reasonable to think the Constitution was meant to be adaptable. Could such a theory really be said to be consistent with the fundamental reasons for having a written constitution? No. To pick a particular problem, it fails for the same reason the theory offered above about congressional deference fails; it would permit infringement upon minority rights because a judge happens to agree with Congressional policy. But on a deeper level, this theory would view the Constitution merely as inspiration, on the same level of a philosophical essay, not as the legal document it was clearly intended to be and as we’ve treated it for centuries. There’s adaptable, and there’s Jell-O, and a Jell-O theory of interpretation is inconsistent with even the basic purposes of the document that we all agree upon.
No, I am telling you the test you espoused will do nothing to achieve your goal but rather will be used in a partisan manner first, and the achievement of your goal will be hit and miss. In other words, the norm will be to apply your test badly, and subjectively.
Elvis had it right: SCOTUS is political. While in theory, it’s a neutral and independent tribunal which rules on the issues which come before it based solely on the facts and the Constitution, in reality it’s composed of humans. As much as arbiters of the Constitution, the Court has become arbiter of public sentiment. Thus, abortion is now legal everywhere, we are free to stick appendages into the orifices of our choosing, and so on.
I don’t think there’s anything wrong, given that, with politicizing appointments. As Elendil’s Heir noted in another thread, the President is mandated to appoint Justices with the advice and consent of the Senate - language not seen elsewhere in the Constitution, where the Senate just has to consent.
The Court is political, therefore it should be political?
The Court is going to be political anyway, therefore you may as well work within that framework. If one party decides to appoint the most qualified individual regardless of personal ideology, while the other party continues to nominate the craziest fuckers it thinks will make it past the Senate, the Court will not only be political, it will also be skewed.
Sure. Just as my proposed test would likely be misapplied by actual Senators, it also ignores the reality that the Court is a political hot potato. Err, the opposite of that. A political cold potato? What do you call it when you want to be the last one with the potato? Musical chairs?
Anyway, I just think that argument is on a sort of different level from the basic question of whether a given candidate should sit on the Court. We might say that a given candidate should sit on the Court on an abstract level, but that the court arms race and pragmatic demands compel another result. Even then, I wonder if it isn’t possible to reach a kind of detente in the confirmation battles. Unfortunately, I don’t know who the GOP’s Gorbachev is. Lindsey Graham?
I don’t think anyone ever told Gorbachev to come out of the closet. Just saying.
Please. The Court is political by its very purpose and function. There’s no point arguing that it shouldn’t be, but that doesn’t stop some from trying anyway.
From Wiki: “Robert Bork, often considered an originalist, has likened the Ninth Amendment to an inkblot. Bork argued in The Tempting of America that, while the amendment clearly had some meaning, its meaning is indeterminate; because the language is opaque, its meaning is as irretrievable as it would be had the words been covered by an inkblot. According to Bork, if another provision of the Constitution were covered by an actual inkblot, judges should not be permitted to make up what might be under the inkblot lest any judges twist the meaning to their own ends…”
And consider the smudge (or is it?) in the Fifth Amendment: http://www.bbc.co.uk/dna/h2g2/A28880382
I opposed Bork’s nomination at the time, and interviewed him when I was a reporter for my local newspaper two years later; I still believe he should not have sat on the Supreme Court. His role in the Saturday Night Massacre was deplorable. He is a very, very conservative jurist. Although Ted Kennedy’s opening salvo against him on the floor of the U.S. Senate at the time of his nomination was clearly hyperbolic, it was essentially accurate. Bork’s view of the Constitution was and is, IMHO, too deferential to the executive and too skeptical of privacy and individual rights. I would not want to live in a country in which Bork’s jurisprudence prevailed.
And I must disagree with John Mace: the Senate has turned down Supreme Court nominations since the earliest days of the republic for the nominees’ views on the issues of the day, or what we might call “ideology.” A good, even excellent, CV is not enough: Unsuccessful nominations to the Supreme Court of the United States - Wikipedia
Bonus fun fact: Among Bork’s students during his time at Yale Law School were Bill Clinton, Hillary Rodham, Anita Hill, Robert Reich, Jerry Brown and John R. Bolton.
Bork instead of A. Kennedy, eh?
Hm.
I don’t know if that would be seen as the triumph of reactionary politics or just create a reaction to the reaction. I suspect that Bush would have lost in 1988 if Bork had been confirmed.