Reuben Walworth was nominated for the Supreme Court by President John Tyler. The Senate refused to vote him up or down.
Reuben Walworth never became a Supreme Court justice.[sup]*[/sup]
Silence did not give consent then, in other words.
Did you know this?
Interesting historical fact: years after Tyler’s nomination fizzled out in non-action by the Senate, the US Supreme Court appointed him a “commissioner,” (what’s now called a “special master,”) to hear evidence in a case of original jurisdiction before the Court concerning a suspension bridge between Pennsylvania and Virginia (now West Virginia).
Okay, I read this case to see if the synopsis provided was accurate. Surprise, it’s not.
Here is how the CurrentAffairs article describes it:
This implies that they shared employees and management. But this isn’t true - there was no contemporaneous employment and the management of the companies was different. Kavanaugh relied on the test established by precedent, applied the test, and came to a different result than the majority in that opinion. Are you saying that he’s not a texualist as a result? First of all, I don’t think Kavanaugh self describes as a textualist. Second of all, why? CurrentAffairs goes on to accuse Kavanaugh of bias, and since he allegedly hasn’t spent any time among laborers or read much about labor politics and labor history, he doesn’t know how companies work. How is that a critique of textualism? I find the criticism regarding this case pretty weak. I’m not saying his dissent should have carried the day. I’m saying it’s not some smoking gun showing some weakness in Kavanaugh.
Then we just have nine people in a super legislature and are not practicing law at all. We just take a principle that we think is good, call it justice, and then say that the law must be a tool for justice.
Just like you’ve done here. That’s not the argument. The argument is that there is no Constitutional protection for SSM, as realized from 1789-2015. The equal protection clause was indeed NOT used in Obergefell, but the (substantive) due process clause, which is equally as malleable.
I might as well say that every person has a right to separate but equal schools and that the 14th Amendment requires it, as a racist has an equal right under the law to send his kid to an all white school as someone else has to send his kid to an integrated school. It sounds silly, but if you use the equal protection clause as such a free floating right, untethered from anything, then that is possible as well.
Y’know, funnily enough, the Germans kinda do this. Article 1 of their Grundgesetz translates roughly to “in all things, the value of human life must not be abridged”. And the German supreme court actually takes a fair bit of latitude on that. It is (rarely) a last-ditch, “Okay, I realize the law is written like X, but the consequences of that law are obscene” step in court cases. So far, the German republic has not collapsed as a result.
The existing test produced a laughable result, in that case. Again, it’s really not hard to tell what’s going on here. It’s really basic union-busting. It’s like if I sold my company to myself and laid off all my unionized workers, then declared this “new” company (doing the exact same thing with the same tools as my old company) “non-union”. You can’t do that. Kavanaugh is hopelessly naive if he came to that conclusion.
All people should oppose Kavanaugh, but I realize that expecting republicans to care about things like defendants in criminal cases or workers in labor disputes is a bit of a hard lift, and that they’ve got other reasons (which I find abhorrent) for supporting him. And they should oppose him because Kavanaugh uses textualism to legitimize his apparent judicial philosophy of supporting the strong over the weak almost every single time (like, seriously, how does one explain this - does he only ever take cases where he feels the strong can win, or… what’s going on here?), despite the fact that actual textualism is an impossible goal. He uses it as an excuse to pretend his biases are nothing of the sort.
(bolding mine)
…Okay, I was not aware of that context. Oops! :o I will retract the claim that Kavanaugh was obviously and blatantly wrong in this case. I have been mislead by my sources and my distaste for reading long legal documents.
(FWIW I consider that ruling highly problematic. illegal immigrants are already among the most easily-exploited, most-vulnerable workers, and despite this law companies still hire them. What this law does is ensure that should your workers be trying to take advantage of legal benefits granted to employees - again, the NLRB is pretty clear on their take that illegal immigrants are still employees - the best thing you can do is bust them up under the pretext of them being illegal employees. This is bad for all workers, not just illegal immigrants. But that does not translate to Kavanaugh being unjustifiable in his opinion.)
Do you want that type of article in the US Constitution, with SCOTUS justices selected by conservatives interpreting “human life” the way they would do so? Seems to me that would get rid of the death penalty, but also abortion. You wouldn’t just get rid of Roe, and leave things up to the states. Abortion would be unconstitutional.
Yeah, and the electorate in Germany is generally much to the left to the electorate in the US. No surprise there.
They don’t have to be evangelical. They just have to think that “human life” includes fetuses. They could be Catholic, Muslim, Jewish or (possibly) atheist.
BTW, good for you for acknowledging the error regarding the “employee” case. It’s too rare around here for folks to accept correction, and yet who doesn’t make mistakes now and then?
First - Kavanaugh was following the existing precedent, the test laid out by his own court. It produced a result you didn’t like, but that’s hardly a criticism of textualism. If anything, this is a point in his favor again. He should follow existing precedent at the DC Circuit level.
Second - Your example is not very good. In the precedent cited (Fugazy), that is what the company did. They shut down and reformed doing the same thing. This is not what happened here. In this case, there were two businesses operating at the same time, with different management, and different employees. One did not cease operating and the other began.
Actually, I doubt Kavanaugh has a choice in the cases that come before him. From my understanding, the 3 judge panels that are chosen from the 11 member court are chosen at random. Only when cases are heard en banc is the full court seated. But thus far your criticism seems unfounded - that his philosophy is supporting the strong over the weak. If the law favors the strong, then the judges’ actions should reflect that - do you agree?
As far as the German rule…I’m not sure I would like a “don’t be a jerk” equivalent in the constitution.
While most countries have shameful things that they’ve done in the past, Germany has a unique reason from the modern era to include such a clause in their constitution.
Ah, yes, the legendary Bricker Trap! Suggest a simplistic proposition that seems to be immune to debate, and offer the opportunity to surrender. Classic! but I believe you owe the Counselor a nickel, or at least a tip o’ the hat…
As for my opinion of justice in relation to law, my sig speaks for me.
Um, no, the courts have to have something to rule on, don’t they? You do need to stop excluding middles. It doesn’t help you at all.
And that’s false, as already explained. The right was suppressed from the day the 14th was ratified until the Court struck down that suppression, yes, but the right was still there.
It was used as a secondary argument in Massachusetts (once again, as usual, at the forefront of liberty, with the rest of the states following later), with a dissent saying it should have been primary. But the USSC indeed did make EP the primary argument. You don’t have to like it, but you don’t have a factual or reasoned argument against it.
Sure. But the law typically doesn’t favor the accuser, the rich, the employer quite that often. It should serve as a huge red flag if the argument for him are based on impartiality and respect for the law - that kind of result is weird, to put it kindly. Especially when we’re not always dealing with 3-0 cases. Clearly, at least in some of those cases where he sided with the employer, the prosecution, etc., there was a judge (or sometimes 2) that disagreed with him. So that’s a pretty big “if” in my eyes.
Your complaint was against textualism, that it was a fig leaf to push an agenda not in comportment with the law. But in two of the cases you’ve referenced so far, it turns out the law did favor the side that Kavanaugh supported. Yes there were other judges who felt differently, but they weren’t textualists, so they were free to use their judgement on what the law should actually be as opposed to what the law actually said.
Is there an example that actually holds up? The CurrentAffairs source seems to have failed.