# The "liberal case" for Kavanaugh is nonsensical
**URL:** https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262
**Category:** Great Debates
**Created:** [August 8, 2018, 7:33am UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262 "2018-08-08T07:33:03Z")
**Posts on this page:** 20
**Page:** 4
### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [August 9, 2018, 5:04am UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/61 "2018-08-09T05:04:27Z")
> [@Budget Player Cadet](#):
>
> And remember, these aren’t unanimous cases. These often aren’t cases where his opinion makes a goddamn lick of legal sense - in one such case, he dissented by insisting that illegal immigrants were not employees, when in fact they definitely were. In another such case, he rejected the (fairly fucking obvious) claim that a company had farmed itself out to a subsidiary in order to avoid working with the employee’s union. As CurrentAffairs puts it:
I’m not feeling the outrage. In those two cases, Kavanaugh seems reasoned and grounded.
1. Are illegal immigrants employees under the NLRA? He says no because it would be a silly construction of the statute to require a company to negotiate with a person, an “employee,” who he is forbidden to hire in the first place. Since once the company finds out the employee is an illegal immigrant, it must fire him, says Kavanaugh, not negotiate with him. Makes perfect sense to me.
2. The second case is likewise unremarkable. Two companies share office space, one is union one is not. Kavanaugh analyzed the fact pattern and would have agreed with the ALJ that based upon all of the factors, the corporations were not alter egos. That seems like a run of the mill boring type of case and his opinion is solid and well reasoned.
---
### Author:  [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)
#### Post date: [August 9, 2018, 7:21am UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/62 "2018-08-09T07:21:42Z")
> [@UltraVires](#):
>
> I’m not feeling the outrage. In those two cases, Kavanaugh seems reasoned and grounded.
>
> 1. Are illegal immigrants employees under the NLRA? He says no because it would be a silly construction of the statute to require a company to negotiate with a person, an “employee,” who he is forbidden to hire in the first place. Since once the company finds out the employee is an illegal immigrant, it must fire him, says Kavanaugh, not negotiate with him. Makes perfect sense to me.
Following this logic, it would make sense to argue that since the employee is an illegal immigrant and it is therefore illegal to hire them, therefore it would be perfectly fine for the company to not pay those employees.
The NLRB is pretty clear on this one - regardless of immigration status, [you have the same rights as all other employees](https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-3024/immigrant_employee_rights_one_pager_english_pdf_21860.pdf), including:
“Organize with a union to negotiate with your employer concerning your wages, hours, benefits, and other working conditions”
Kavanaugh is simply wrong here. The correct time to worry about whether your employees are legally in the country is before hiring them, or during routine audits. It is _not_ during attempts to unionize - that’s just blatant union-busting. In fact, in a separate, more recent court case, the judges ruled that employers were in violation of the NLRA for [scheduling one such audit too close to a union vote](https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/immigration-rechecks-nlra.aspx)! Because you cannot use immigration status as an excuse to bust unions. The NLRA and NLRB are very clear on this. These laws exist to protect employees. You cannot use your own laziness in checking your employees as an excuse to skirt them. Kavanaugh would have accepted that excuse.
> [@](#):
>
> 1. The second case is likewise unremarkable. Two companies share office space, one is union one is not. Kavanaugh analyzed the fact pattern and would have agreed with the ALJ that based upon all of the factors, the corporations were not alter egos. That seems like a run of the mill boring type of case and his opinion is solid and well reasoned.
One of the companies was owned by the daughters of the owner of the other. They used the same materials, tools, and management staff, more or less picking up exactly where the other company left off. You’d have to be hopelessly naive to not smell a rat there. Kavanaugh trusted the company. The other judges on the case did not, because clearly, there is something wrong there.
---
### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [August 9, 2018, 8:31am UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/63 "2018-08-09T08:31:16Z")
> [@Budget\_Player\_Cadet](#):
>
> Following this logic, it would make sense to argue that since the employee is an illegal immigrant and it is therefore illegal to hire them, therefore it would be perfectly fine for the company to not pay those employees.
>
> The NLRB is pretty clear on this one - regardless of immigration status, [you have the same rights as all other employees](https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-3024/immigrant_employee_rights_one_pager_english_pdf_21860.pdf), including:
>
> “Organize with a union to negotiate with your employer concerning your wages, hours, benefits, and other working conditions”
>
> Kavanaugh is simply wrong here. The correct time to worry about whether your employees are legally in the country is before hiring them, or during routine audits. It is _not_ during attempts to unionize - that’s just blatant union-busting. In fact, in a separate, more recent court case, the judges ruled that employers were in violation of the NLRA for [scheduling one such audit too close to a union vote](https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/immigration-rechecks-nlra.aspx)! Because you cannot use immigration status as an excuse to bust unions. The NLRA and NLRB are very clear on this. These laws exist to protect employees. You cannot use your own laziness in checking your employees as an excuse to skirt them. Kavanaugh would have accepted that excuse.
If I sign a contract with someone to be my slave, is that person legally a slave? Of course not. Why? Because slavery is illegal. Likewise if I have what is a purported employment contract with an illegal immigrant, he is not my employee because that contract is illegal.
The person not only does not have the right to unionize, his very employment, indeed his very presence in this country, is in violation of the law. The NLRB can say what it wants; that’s why we need judges with common sense to apply principles that are really indisputable.
Again, how can a person have a right to unionize when the person does not have a right to the job he is holding? He would be collectively bargaining for illegal (to him) benefits.
> [@Budget\_Player\_Cadet](#):
>
> One of the companies was owned by the daughters of the owner of the other. They used the same materials, tools, and management staff, more or less picking up exactly where the other company left off. You’d have to be hopelessly naive to not smell a rat there. Kavanaugh trusted the company. The other judges on the case did not, because clearly, there is something wrong there.
As Kavanaugh noted, that is not the test. I think it would be insulting as a young woman if the courts implied that because I started my own company and worked in conjunction with my father’s company that meant that I was just his stool pigeon. There has to be other evidence, which as Kavanaugh outlined, was not at all there.
---
### Author:  [@clairobscur](https://boards.straightdope.com/u/clairobscur)
#### Post date: [August 9, 2018, 9:17am UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/64 "2018-08-09T09:17:27Z")
> [@puddleglum](#):
>
> “Let’s dispense with the idea that Judges exist, first and foremost, as unbiased, non-participatory referees of the law. Despite what some here might insist, that has literally never been true, and it’s especially untrue in contentious supreme court cases surrounding issues that the constitution is at best unclear on.”
> If Judges are not unbiased, non-participatory referees of the law, what are they? Once you dismiss the idea that judges are supposed to be unbiased then legal disputes are just exercises in raw power. If that is true it is definitional that those without power are going to be hurt.
They cannot. How does a judge decide at which point a legal principle supersede another? What is a “legitimate” interest or a “reasonable” action? What is obscene, to give a famous example? Judges’ personal views, morals, opinions, will necessarily play a part in some at least of their decisions. And that’s assuming that the stautes/precedents are otherwise crystal-clear and don’t leave much room for interpretation, which they typically aren’t and typically do respectively, and that the judges try their hardest while being perfectly aware of their bias, which they won’t, being humans.
And besides, I’m quite a bit cynical, and don’t trust that judges will be any better people than any random person picked up in the street. I don’t expect them to be necessarily impartial, perfectly ethical, uncorrupt, unwilling to push their own values and opinions, unbiased, unable to put their own interests and career above the consequences of their decisions on others, etc… Pïck up any of your coworkers or relatives, think that he could be currently sitting as a judge if he had followed a different career path, and wonder if you’d expect him to be flawless and totally unbiased if he was.
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### Author:  [@clairobscur](https://boards.straightdope.com/u/clairobscur)
#### Post date: [August 9, 2018, 9:57am UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/65 "2018-08-09T09:57:30Z")
> [@UltraVires](#):
>
> 1. Are illegal immigrants employees under the NLRA? He says no because it would be a silly construction of the statute to require a company to negotiate with a person, an “employee,” who he is forbidden to hire in the first place. Since once the company finds out the employee is an illegal immigrant, it must fire him, says Kavanaugh, not negotiate with him. Makes perfect sense to me.
And it makes perfect sense to me that deciding whether or not someone is “employed” and entitled to the corresponding rights and benefits is dependant on the actual relationship between the parties, rather than on whether or not the the hiring was legal. Otherwise, you create a perverse incentive to commit a “bad\*” action (hiring an illegal worker) because it shields yourself from the consequences of other “bad” and illegal actions (underpaying the worker or such things). That’s the conception of labour laws I’m accustomed to, and it again makes complete sense to me.
Deciding whether or not this judge was “right” would require an extensive knowledge of local labour laws and legal precedents which I don’t have, but the fact that this case came to an appeal court and that the decision was not unanimous implies that the issue wasn’t clearly settled and that the judge could legitimately go one way or another. Hence that the choice he made reflects, not simply the state of the law, but also his character, views and values, and that this character, views and values can legitimately be judged on the basis of his relatively free decision.
(\*) I wrote “bad” rather than “illegal” because I believe that hiring an illegal worker generally isn’t in fact illegal in the USA. Which, by the way, is…weird…, to say the least, and should presumably be the first thing people who have a problem with illegal immigration would want to fix.
---
### Author:  [@clairobscur](https://boards.straightdope.com/u/clairobscur)
#### Post date: [August 9, 2018, 10:07am UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/66 "2018-08-09T10:07:29Z")
I would also add that, more importantly than his decisions in matters of labour, his minimizing of the suffering of victims in the opinions he signed in the two contractor cases is pretty damning wrt his character and values. Of course, there’s always the possibility that he tried hard to stay as neutral as possible in his wording while making the decision he sincerely believed was the legally correct one despite being secretely absolutely outraged, but you can’t really fault people for making very different assumptions based on the appearances.
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### Author:  [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)
#### Post date: [August 9, 2018, 10:34am UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/67 "2018-08-09T10:34:21Z")
> [@UltraVires](#):
>
> If I sign a contract with someone to be my slave, is that person legally a slave? Of course not. Why? Because slavery is illegal. Likewise if I have what is a purported employment contract with an illegal immigrant, he is not my employee because that contract is illegal.
>
> The person not only does not have the right to unionize, his very employment, indeed his very presence in this country, is in violation of the law. The NLRB can say what it wants; that’s why we need judges with common sense to apply principles that are really indisputable.
>
> Again, how can a person have a right to unionize when the person does not have a right to the job he is holding? He would be collectively bargaining for illegal (to him) benefits.
And yet, _the NLRB is quite clear on this_. The actual laws on the books are not subtle, and the portion of the executive responsible for enforcing those laws is consistent. And it makes perfect sense when you consider that illegal immigrants are still people, and are in fact far _more_ vulnerable to abuse through their employers than most. Again, this argument is akin to, “Well, why should it be against the law for me to not pay my employees if they’re illegal immigrants?” Would you agree that that is a reasonable thing? That simply refusing to pay employees who are in the country illegally is justified under the law?
And for those keeping track, keep in mind that [the NLRA is quite explicit](https://www.law.cornell.edu/uscode/text/29/152):
(3) The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act [45 U.S.C. 151 et seq.], as amended from time to time, or by any other person who is not an employer as herein defined.
It makes it clear that by “employee” it means _any employee_, and from there it starts carving out exceptions. “Technically it’s not legal to employ you” is not one of them. In fact, that was the explicit reasoning held by the 7-2 majority in Sure-Tan vs. NLRB. The NLRB has been consistent about this. Kavanaugh wants to carve out this extra exception not actually in the text and which makes no sense given past jurisprudence _or_ the intent of the writers of the NLRA. This is not textualism; this is judicial activism.
> [@](#):
>
> As Kavanaugh noted, that is not the test. I think it would be insulting as a young woman if the courts implied that because I started my own company and worked in conjunction with my father’s company that meant that I was just his stool pigeon. There has to be other evidence, which as Kavanaugh outlined, was not at all there.
And if you came to me and said, “Hey, so, good news, absolutely nothing has changed about your job other than who is paying you and that suddenly you have no union and no benefits”, I’d be pretty fuckin’ insulted as well. They ran the new company out of a side building on the main complex. C’mon.
I’ll look through the full case file later (lunch break ending) but this seems like sophistry.
---
### Author:  [@clairobscur](https://boards.straightdope.com/u/clairobscur)
#### Post date: [August 9, 2018, 12:18pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/68 "2018-08-09T12:18:52Z")
> [@UltraVires](#):
>
> As Kavanaugh noted, that is not the test. I think it would be insulting as a young woman if the courts implied that because I started my own company and worked in conjunction with my father’s company that meant that I was just his stool pigeon. There has to be other evidence, which as Kavanaugh outlined, was not at all there.
“Worked in conjunction”? In this case, we’re talking about a company not just owned by a child, but fulfilling the same orders, for the same customers, at the same place, with the same equipment and the same workers. If you don’t accept that as sufficiently suspicious, and as evidences that we aren’t really dealing with two different companies, what conditions would have to be met for you to think that maybe the parent and child aren’t just “working in conjunction”?
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### Author:  [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)
#### Post date: [August 9, 2018, 2:18pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/69 "2018-08-09T14:18:34Z")
> [@Chronos](#):
>
> Since you seem to like talking about Garland so much, perhaps you could provide me a list of the senators who voted against his confirmation?
It’s just party-before-country gloating. Don’t expect a response.
> [@Bone](#):
>
> I don’t want a judge to based their rulings on their idea of what is moral.
It’s called justice. No, it isn’t the same thing as the law. The law is just a tool to implement justice, and not the only tool at that. But the higher purpose is justice, as the motto over the Supreme Court building reminds anyone who enters it.
Certainly words can be read in different ways by different people all claiming to be following the exact wording devotedly. The idea that there is only one right way to do it is just silly. I think we all know that a claim to textualism, or original intent, is a claim to superior knowledge or understanding that just doesn’t exist. That’s illustrated by the strenuousness with which those claiming it dismiss any alternative interpretations than the ones they favor.
> [@John\_Mace](#):
>
> You and I might think SSM is good and just, but if the law says no SSM, then a judge does not overrule the law.
Not a good example there. The right to equal protection of the laws is explicitly stated. The legal arguments against SSM are that it should be decided legislatively, Constitutional protections be damned.
> [@Sherrerd](#):
>
> But does this (that Democrats supposedly ‘continually’ whine about the Nov. 2016 election) actually happen? Or is it merely a right-wing fantasy–akin to the fantasy that ‘Democrats want open borders’ and the like?
It’s a both-sides-ist fantasy as well. Scroll up for examples.
---
### Author:  [@Pleonast](https://boards.straightdope.com/u/Pleonast)
#### Post date: [August 9, 2018, 2:41pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/70 "2018-08-09T14:41:35Z")
> [@Budget\_Player\_Cadet](#):
>
> Yeah guys, can we maybe drop the “illegitimate president” stuff here? Trump is the president. He gets to make judicial nominations.
Yep, and Congress gets to impeach them and remove them from office.
---
### Author:  [@puddleglum](https://boards.straightdope.com/u/puddleglum)
#### Post date: [August 9, 2018, 3:09pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/71 "2018-08-09T15:09:21Z")
> [@Budget\_Player\_Cadet](#):
>
> And yet, _the NLRB is quite clear on this_. The actual laws on the books are not subtle, and the portion of the executive responsible for enforcing those laws is consistent. And it makes perfect sense when you consider that illegal immigrants are still people, and are in fact far _more_ vulnerable to abuse through their employers than most. Again, this argument is akin to, “Well, why should it be against the law for me to not pay my employees if they’re illegal immigrants?” Would you agree that that is a reasonable thing? That simply refusing to pay employees who are in the country illegally is justified under the law?
>
> And for those keeping track, keep in mind that [the NLRA is quite explicit](https://www.law.cornell.edu/uscode/text/29/152):
>
> (3) The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act [45 U.S.C. 151 et seq.], as amended from time to time, or by any other person who is not an employer as herein defined.
>
> It makes it clear that by “employee” it means _any employee_, and from there it starts carving out exceptions. “Technically it’s not legal to employ you” is not one of them. In fact, that was the explicit reasoning held by the 7-2 majority in Sure-Tan vs. NLRB. The NLRB has been consistent about this. Kavanaugh wants to carve out this extra exception not actually in the text and which makes no sense given past jurisprudence _or_ the intent of the writers of the NLRA. This is not textualism; this is judicial activism.
>
> And if you came to me and said, “Hey, so, good news, absolutely nothing has changed about your job other than who is paying you and that suddenly you have no union and no benefits”, I’d be pretty fuckin’ insulted as well. They ran the new company out of a side building on the main complex. C’mon.
>
> I’ll look through the full case file later (lunch break ending) but this seems like sophistry.
You are misrepresenting his argument. Kavanaugh cited Sure Tan vs NLRM as the controlling precedent. In that ruling the court tried to reconcile the NLRA position and the Immigration and Naturalization Act. The court said that because the INA did not make it a crime for an illegal alien to take a job or for the employer to hire them that the intent of congress was that they would qualify as employees and the NLRA would apply. After that ruling Congress passed the Immigration Control and Reform Act which made it a crime to employ illegal aliens. Since the Supreme Court said that illegal aliens were employees because hiring them was legal, it makes sense that when hiring them became illegal they were no longer employees under the legal definition.
He then discusses Hoffman Plastic vs NLRB in which the court ruled that an illegal alien who was wrongfully dismissed was not due backpay under the NLRA because he was an illegal alien and thus not eligible for legal employment. Wikipedia says this about the case “The courts ruling finds that workers must have authorization to be working in the United States in order to be protected under all labor laws.” Thus Kavanaugh’s opinion in this case is well grounded in Supreme Court precedence.
---
### Author:  [@Bone](https://boards.straightdope.com/u/Bone)
#### Post date: [August 9, 2018, 3:31pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/72 "2018-08-09T15:31:31Z")
> [@Budget\_Player\_Cadet](#):
>
> Most of this is a rehashing from that CurrentAffairs article (no, not the quiz), but it really does bear repeating - Kavanaugh is not some impartial party. The whole point is that he’s judging in favor of the powerful _even when the law favors the weak_.
I’ll have to review the specific cases in more detail to respond to the specific criticisms. I will say that any synopsis by CurrentAffairs I find suspect based on my reading of the linked article. They don’t do a good job presenting fairly information from what I’ve seen.
To clarify though, is your position that:
A. Liberals or,
B. All people
Shouldn’t support Kavanaugh because
1. Textualism is bad or,
2. Kavanaugh is not a textualist?
---
### Author:  [@Bone](https://boards.straightdope.com/u/Bone)
#### Post date: [August 9, 2018, 3:37pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/73 "2018-08-09T15:37:03Z")
> [@Chronos](#):
>
> Since you seem to like talking about Garland so much, perhaps you could provide me a list of the senators who voted against his confirmation?
No senator voted against Garland’s confirmation. Is it a trick question? The senate as a whole also did not provide the required advice and consent for Garland to be appointed to SCOTUS. I would hazard a guess that this was a contributing factor to why some folks voted for Trump, and why we have Gorsuch, and why we will likely have Kavanaugh.
I’ll cross my fingers for one more Trump SCOTUS nominee after that.
---
### Author:  [@John\_Mace](https://boards.straightdope.com/u/John_Mace)
#### Post date: [August 9, 2018, 3:49pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/74 "2018-08-09T15:49:50Z")
> [@Bone](#):
>
> No senator voted against Garland’s confirmation. Is it a trick question? The senate as a whole also did not provide the required advice and consent for Garland to be appointed to SCOTUS. I would hazard a guess that this was a contributing factor to why some folks voted for Trump, and why we have Gorsuch, and why we will likely have Kavanaugh.
>
> I’ll cross my fingers for one more Trump SCOTUS nominee after that.
The key factor is not who voted against his confirmation but who voted for it. No Senator voted to confirm him. And without the required confirmation votes he is not to be seated. We can argue about whether McConnell’s tactic was moral or even political wise, but I don’t see how it can be called illegal. And for the record, I don’t like what McConnell did even if it produced a result I favored. I didn’t even think it was politically astute at the time, but I was proven wrong on that count. Still, I think the president should be given deference when he nominates a SCOTUS justice. Let the vote happen and let the chips fall where they may.
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### Author:  [@octopus](https://boards.straightdope.com/u/octopus)
#### Post date: [August 9, 2018, 3:59pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/75 "2018-08-09T15:59:25Z")
> [@asahi](#):
>
> The reason to oppose Kavanaugh is that he is being appointed by an illegitimate president and filling a vacancy that was illegitimately left open by a Senate that abdicated its duties under the Constitution. Justices Kavanaugh and Gorsuch are illegitimate members of the Court, and if the mood in this country shifts radically in their favor, I would submit that Democrats either pack the Court or vote to impeach and remove them.
Court packing is such a delusion. Again, why shouldn’t the Republicans do that right now?
---
### Author:  [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)
#### Post date: [August 9, 2018, 4:02pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/76 "2018-08-09T16:02:33Z")
Ummm, because court-packing is bad for the _country_? Was that a trick question?
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### Author:  [@octopus](https://boards.straightdope.com/u/octopus)
#### Post date: [August 9, 2018, 4:08pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/77 "2018-08-09T16:08:30Z")
> [@BigT](#):
>
> Then you argue for the utter neutering of a branch of the Federal government. Remember, Congress passes all the laws. So if the judiciary is beholden to a single methodology of interpreting those laws, then it is just a slave to Congress.
>
> Fortunately, I know from experience that what is described here is impossible. I know from Biblical literalism. I grew up in it. I was surrounded by it. And I know what actually happens when you defer to what some external source says. Your morality inherently still informs what decisions you make. You just now have an excuse.
>
> The problem, however, is that literalism inherently is most attractive to the fundamentalists. Likewise, textualism is most attractive to conservatives. And that is why both were created, to empower those groups. It is easier to twist the law in a conservative than a progressive manner, since progressiveness means including the new.
>
> So, rather than actually removing morality from the equation, it merely obscures it. The reason liberals hate it is that those who use it are obscuring conservative morals, hiding them as being “just what the law says.”
There is a difference between a religious text where changes are forbidden and a legal document that forms a government which contains provisions for self-modification? Why the left decided to pursue the strategy of a judgeocracy instead of working through the legislative branch is puzzling.
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### Author:  [@octopus](https://boards.straightdope.com/u/octopus)
#### Post date: [August 9, 2018, 4:09pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/78 "2018-08-09T16:09:51Z")
> [@ElvisL1ves](#):
>
> Ummm, because court-packing is bad for the _country_? Was that a trick question?
Might want to ask asashi and whoever else has brought it up. I was pointing out a flaw in the proposal.
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### Author:  [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)
#### Post date: [August 9, 2018, 4:22pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/79 "2018-08-09T16:22:54Z")
> [@John\_Mace](#):
>
> _“he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court…”_
>
> The plain text says that the president must obtain the advice and consent of the Senate before appointing judges. It doesn’t say that the Senate must give advice and consent. I would paraphrase it as: The president has the authority to nominate judges to the Supreme court and appoint them if he has the advice and the consent of the Senate. Without that consent, the nominee shall not be appointed.
>
> Consenting is an affirmative act. No affirmative act, no consent.
>
> And consider: Even though the constitution says the president “shall nominate”, if the president were to fail in the duty of nominating a Justice, there would be no remedy other than impeachment and removal from office. If the Congress does not give advice and/or consent, there is no remedy at all from the other branches of government. No remedy means there can be no meaningful requirement. The only remedy is the voters voting the bums out. That didn’t happen.
Perhaps silence = consent?
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### Author:  [@John\_Mace](https://boards.straightdope.com/u/John_Mace)
#### Post date: [August 9, 2018, 4:26pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/80 "2018-08-09T16:26:24Z")
> [@Damuri\_Ajashi](#):
>
> Perhaps silence = consent?
That wouldn’t make any sense unless there was some sort of time limit. If the Senate does consent within a week, is the nominee seated?
But also, this is not the first time that no vote was taken. Was a SCOTUS justice ever seated in any other case (other than recess appointments)?
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