# Trump's Supreme Court nominee? **URL:** \ **Category:** Politics & Elections\ **Created:** [September 20, 2020, 7:00pm UTC](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092 "2020-09-20T19:00:51Z")\ **Posts on this page:** 20\ **Page:** 14
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 15, 2020, 5:13pm UTC](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092/261 "2020-10-15T17:13:43Z")
I strongly disagree. I think disagreement over judicial philosophy is, next to the nominee being unqualified, the best reason to vote against appointment. “I think your method of applying law is wrong, so I’m not going to vote to confirm your nomination.” I cannot comprehend your objection to this… objection. ~Max ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [October 15, 2020, 5:18pm UTC](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092/262 "2020-10-15T17:18:05Z")
He is spouting dishonest bombast, yes, and I see no way that that contradicts his attempt to disrupt the elections in his favor. As you yourself indicate, if they can raise enough question as to the legitimacy of the vote, then it may very well end up in the supreme court. He has specifically said that that is the reason that she needs to be confirmed before the election. I do agree with you that it is easier for you to believe what it is that you want to believe, even though it contradicts with reality. But then, you also seem to believe that big piles of hay are a formidable opponent, as you seem to be struggling to make a point even against positions that you have falsely attributed to others. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [October 15, 2020, 5:23pm UTC](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092/263 "2020-10-15T17:23:32Z")
> [@QuickSilver](#): > > That said, your “civil war” solution seems even more extreme. It’s not a solution. It’s what happens when there are no solutions. I certainly do not favor it, I’d much rather we learn to work together. It is people like your example that are the ones who are looking forward to it. ---
**Author:** ![YamatoTwinkie](https://avatars.discourse-cdn.com/v4/letter/y/cc9497/32.png) [@YamatoTwinkie](https://boards.straightdope.com/u/YamatoTwinkie)\ **Post date:** [October 15, 2020, 5:23pm UTC](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092/264 "2020-10-15T17:23:59Z")
> [@CaptMurdock](#): > > The reason I’m against Barrett is that “originalism” is a fundamentally flawed outlook. It’s the assumption that somebody else, back in the past, with less information, nevertheless knows more about the current situation than those deciding it in present day. Ludicrous. Originalism is fundamentally about drawing a distinction between “what the law says” and “what I think the law ought to be”, and attempting _not_ to substitute your own singular personal bias for the decisions of the 535-or-so elected representatives that voted the law into being. You can certainly get mad at someone that calls themselves an “originalist”, but then lets their own personal bias & favored outcome seep into their decision. That’s obviously hypocritical. But I can’t get mad about the morality of the philosophy of “originalism” itself. No more than I can get mad at a defense attorney that (deep down) knows their client is guilty, yet still does their job to argue their case effectively. By doing so, they ensure the prosecution doesn’t cut corners, that the accused is given due process, and the integrity of the judicial system is upheld. ---
**Author:** ![CaptMurdock](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/captmurdock/32/11736_2.png) [@CaptMurdock](https://boards.straightdope.com/u/CaptMurdock)\ **Post date:** [October 15, 2020, 5:27pm UTC](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092/265 "2020-10-15T17:27:29Z")
> [@YamatoTwinkie](#): > > Originalism is fundamentally about drawing a distinction between “what the law says” and “what I think the law ought to be”, and attempting _not_ to substitute your own singular personal bias for the decisions of the 535-or-so elected representatives that voted the law into being. Horse hockey. It’s legal Luddism given a psuedo-respectable name. And your notion about defense attorneys has nothing to do with what we are talking about. Apples and orangutangs. ---
**Author:** ![Wrenching\_Spanners](https://avatars.discourse-cdn.com/v4/letter/w/ecb155/32.png) [@Wrenching\_Spanners](https://boards.straightdope.com/u/Wrenching_Spanners)\ **Post date:** [October 15, 2020, 5:29pm UTC](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092/266 "2020-10-15T17:29:03Z")
So you’re backing away from your assertion that her recusal statement was morally repugnant and heading back to your theory that she’s tainted by association? Or is it now repugnant by association? Is there anything credible in your universe that makes Barrett unqualified to be a Supreme Court justice? Did you approve of Ruth Bader Ginsberg as a justice? If so, then you don’t believe that holding partisan views should be a disqualifier. Do you disagree with the dozens of Barrett’s legal colleagues who assert her intellectual and judicial qualifications? Do you have any problem with her character based on anything she’s done other than being nominated by Trump? I’m curious because it seems like your universe is pretty one-sided and focused on not much more than being anti-Trump. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [October 15, 2020, 5:32pm UTC](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092/267 "2020-10-15T17:32:34Z")
> [@Wrenching\_Spanners](#): > > Is there anything credible in your universe that makes Barrett unqualified to be a Supreme Court justice? What do you mean “unqualified”? Do you know what the qualifications to be a Supreme Court judge are? ---
**Author:** ![Dinsdale](https://avatars.discourse-cdn.com/v4/letter/d/97f17d/32.png) [@Dinsdale](https://boards.straightdope.com/u/Dinsdale)\ **Post date:** [October 15, 2020, 5:34pm UTC](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092/268 "2020-10-15T17:34:48Z")
> [@Wrenching\_Spanners](#): > > See, I just don’t get this at all. What about Barrett is repugnant besides the fact that you disagree with her political or personal views? … Yeah, that’s about it. I despised Scalia as well. There is something inherently irrational about any strongly religious person, and RC is about as irrational and intolerant as religions come. So yeah, not what I personally desire in any public official, not to mention a Supreme. And Scalia’s purported “originalism” which she shares is blatant bullshit, aiming to put a cloak of legitimacy over a activist conservative agenda I strongly disagree with. People who criticize judicial activism as a liberal phenomenon are just as misguided as the fools who parrot “tax and spend Democrats.” I don’t get why you would not find that sufficient reason to consider someone repugnant. In a perfect world, IMO nominees for the Supremes would be more “middle of the road,” and the court as a whole more representative of America’s diversity. But it seems to be an increasing arms race. My impression (being liberal myself) was that Garland was more moderate leaning left, than Barrett is on the right. When/if the Dems get an appointment, I hope they go with some extremely young, extremely far left person. Of course, Barrett is qualifed. Certainly moreso than a clown like Thomas. But there is NO reason to believe she is UNIQUELY qualified. There are MANY others just as qualified, who I suspect of being less ideologically extreme. The Repubs have won several rounds recently. I hope in the longrun things change such that more liberal folk can be just as understanding of conservative concerns. I think the best to be hoped for is a longrun view, hoping that the right’s successes succeed in breaking things sufficiently that there is a strong enough reaction. ---
**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:** [October 15, 2020, 5:40pm UTC](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092/269 "2020-10-15T17:40:55Z")
> [@Wrenching\_Spanners](#): > > So you’re backing away from your assertion that her recusal statement was morally repugnant It was repugnant (or maybe she’s profoundly stupid) because she should recognize how not-normal these times, and this president’s behavior, including his statements about the election and potential litigation that may follow, are, and how they demand more than the milquetoast “standard” say-nothing response of SCOTUS nominees. ---
**Author:** ![Wrenching\_Spanners](https://avatars.discourse-cdn.com/v4/letter/w/ecb155/32.png) [@Wrenching\_Spanners](https://boards.straightdope.com/u/Wrenching_Spanners)\ **Post date:** [October 15, 2020, 6:01pm UTC](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092/270 "2020-10-15T18:01:14Z")
And judges deciding for themselves what is in the public interest is judicial activism and not their role, and certainly not common law. It’s explicitly stated in the First Amendment that Congress cannot abridge freedom of speech. Despite that, it’s accepted that there are limits on free speech: libel, shouting fire in a public theatre, false testimony, fraudulent activities, etc. Those limits on free speech are based on protection of the common good which is the basis of common law. Common law supports applying previous judgments to new situations. So it’s common law that if Congress cannot abridge your vocal speech, neither can they abridge your online speech, even though all the other limits apply. Judicial activism occurs when a court applies that common law in a way where it’s never been applied before and where judicial precedents don’t really apply. It’s not common law to place restrictions on online speech that are not found in vocal speech. Those restrictions may be necessary, and if they are then they should be implemented by the legislature. Some people believe that online speech should have more limits than vocal speech because it has a greater audience, more anonymity, and greater potential to do harm. If Congress agrees with that belief, and chooses to pass laws limiting online speech, then they have the power to do so and the check on that power is that the Supreme Court can assess whether the new laws are constitutional. For the Supreme Court to decide to limit online speech because they believe it’s in the public interest would be judicial activism. And I don’t want my free speech curtailed because of a set of unelected judges basing common law on their personal politics which they define as in the public interest. ---
**Author:** ![YamatoTwinkie](https://avatars.discourse-cdn.com/v4/letter/y/cc9497/32.png) [@YamatoTwinkie](https://boards.straightdope.com/u/YamatoTwinkie)\ **Post date:** [October 15, 2020, 6:13pm UTC](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092/271 "2020-10-15T18:13:29Z")
> [@CaptMurdock](#): > > Horse hockey. It’s legal Luddism given a psuedo-respectable name. > > And your notion about defense attorneys has nothing to do with what we are talking about. Apples and orangutangs. Certainly, a judge that just “likes how things were back in the good-old-days” may find it _convenient_ to wrap themselves in the banner of originalism. I too, find that distasteful. The defense attorney analogy was meant to illustrate a situation where someone has a defined role in the process, and executes that faithfully, which upholds the integrity of the system. A public defender could just decide their client is guilty and just half-ass the defense by not challenging the prosecution, leading to a guilty verdict. This is an immediately favorable outcome (bad guy goes to jail) but not a victory for the judicial system. It’s the prosecution’s job to convict the defendant - when the defense and prosecution work together the integrity of system collapses. I think in its pure form, “originalism” attempts to speak for the law itself, at the time it was ratified. An judge _could_ just decide that a particular law is amoral and just half-ass the defense of the law, leading to an immediately favorable outcome (bad law gets reinterpreted as good law), but not a victory for the system. It’s completely circumvented the legislature’s role (both the 535-or-so members that voted on the law back then, and the the 535-or-so members that could vote on the law again _now_), and the people that elected them. It’s _their_ job to fix the law. ---
**Author:** ![QuickSilver](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quicksilver/32/7832_2.png) [@QuickSilver](https://boards.straightdope.com/u/QuickSilver)\ **Post date:** [October 15, 2020, 6:21pm UTC](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092/272 "2020-10-15T18:21:50Z")
Yeah, well, they certainly are stocked to the rafters with bibles, guns & stupid. ---
**Author:** ![Dinsdale](https://avatars.discourse-cdn.com/v4/letter/d/97f17d/32.png) [@Dinsdale](https://boards.straightdope.com/u/Dinsdale)\ **Post date:** [October 15, 2020, 6:25pm UTC](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092/273 "2020-10-15T18:25:25Z")
Article 1, sec. 8: _The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof._ 9th Amendment: _The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people._ I dunno what I’m missing, but these impress me as pretty express indications that the founders DID NOT originally intend a strict construction. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [October 15, 2020, 6:35pm UTC](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092/274 "2020-10-15T18:35:26Z")
> [@Wrenching\_Spanners](#): > > I don’t disagree that Barrett should recuse herself if a case comes before the Supreme Court that involves them making a judicial decision that has the effect of deciding between Biden and Trump. It will be her job to be impartial, and if her appointment during a tumultuous election time influences her impartiality, then she should recuse herself. Do you think that she will? If she doesn’t will you revisit this with a mea culpa? > [@Wrenching\_Spanners](#): > > Suppose a state is violating its own constitution in reporting its electoral results. Is she supposed to just “no comment” on that, or should she do her job and try to uphold the integrity of the law. (And yes, I just made a meaningless hypothetical.) Ah, so you don’t think that she should recuse herself, if she can come up with an excuse not to do so. > [@CaptMurdock](#): > > The reason I’m against Barrett is that “originalism” is a fundamentally flawed outlook. It’s also a fig leaf, almost a lie. It is just a way of justifying the outcome that you want to come to. > [@Max\_S](#): > > You are right to point out that, as a President, it is his sort of his job to ensure such an important case as one disputing the election results doesn’t come out 4-4. That would be bad for the integrity of the court and the legitimacy of the election - imagine if _Bush v Gore_ came out 4-4. It’s just bad all over. Why would a tie damage the integrity of the court? Is this something that McConnell was concerned about when he assured us that we would be going into the 2016 election with only 8 justices? If Bush v Gore had come out 4-4, then Gore would have won, and things would be different. I disagree that they would be “bad all over”. > [@Wrenching\_Spanners](#): > > If the Democrats believe that abortion is a fundamental right, and that a majority of the country agree that it’s a fundamental right, then pass a law that declares it to be legal. What would that law look like? Can the federal govt make a law forbidding the states from making laws? Could the federal govt make a law preventing states from passing gun laws? > [@Wrenching\_Spanners](#): > > Then see if Barrett and her cohorts will uphold the law, or prove themselves to be hypocrites by being counter-activists. So, if Barrett were to overturn this hypothetical law, then you would consider her to be a hypocritical counter-activist? > [@Wrenching\_Spanners](#): > > I don’t agree with Puritans, but I’m glad they were granted the freedom to have their viewpoint in a process that started 233 years ago. So am I. But I also want freedom _from_ their viewpoints. If they were to force their views and religion on me, then I would certainly find that to be rather repugnant. > [@Wrenching\_Spanners](#): > > But generating a passionate personal disagreement based on a complicated judicial philosophy? That doesn’t make any sense at all. It makes sense when you realize that they are not just living their lives according to their own philosophy, but instead imposing their philosophy on your life. > [@YamatoTwinkie](#): > > You can certainly get mad at someone that calls themselves an “originalist”, but then lets their own personal bias & favored outcome seep into their decision. That’s obviously hypocritical. Do you really think that someone can keep their personal bias and favored outcome _out_ of their decision? Unless they actually are the people who wrote those documents, then they do not know the thoughts of those who did. And if they are the ones who wrote those documents, then they are not qualified to make rules as to how we should live our lives. People sometimes complain that we judge people in the past by present day standards, but don’t even stop to worry about the fact that we are still living our lives according to theirs. > [@YamatoTwinkie](#): > > No more than I can get mad at a defense attorney that (deep down) knows their client is guilty, yet still does their job to argue their case effectively. By doing so, they ensure the prosecution doesn’t cut corners, that the accused is given due process, and the integrity of the judicial system is upheld. That’s a different situation, as that is protecting an individual from potential governmental over reach, as opposed to originalism, which is subjecting the populace to your interpretation of the desires of men dead for centuries. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [October 15, 2020, 6:39pm UTC](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092/275 "2020-10-15T18:39:43Z")
> [@YamatoTwinkie](#): > > A public defender could just decide their client is guilty and just half-ass the defense by not challenging the prosecution, leading to a guilty verdict. My understanding is that happens far too often. > [@YamatoTwinkie](#): > > An judge _could_ just decide that a particular law is amoral and just half-ass the defense of the law, leading to an immediately favorable outcome (bad law gets reinterpreted as good law), but not a victory for the system. But what they do is decide that a law is amoral (or moral), and find an excuse that sounds good to us plebes to rule the way that they want to. Difference is a public defender has an adversary, the prosecutor, and likely most of the judicial system arrayed against them. A judge _is_ the justice system, and can direct it in any way they wish, so long as they give a fig leaf towards justifying it. ---
**Author:** ![QuickSilver](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quicksilver/32/7832_2.png) [@QuickSilver](https://boards.straightdope.com/u/QuickSilver)\ **Post date:** [October 15, 2020, 7:01pm UTC](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092/276 "2020-10-15T19:01:59Z")
Seems to me that the most accurate description of an “originalist” when it comes to the supreme court and jurisprudence is not someone who opposes any/all change, but someone who believes change shouldn’t happen in their lifetime, if they can at all help it. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [October 15, 2020, 7:05pm UTC](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092/277 "2020-10-15T19:05:38Z")
Unless it is change back, to how it was before their lifetimes. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 15, 2020, 7:22pm UTC](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092/278 "2020-10-15T19:22:07Z")
> [@k9bfriender](#): > > Why would a tie damage the integrity of the court? A tie indicates, in my mind at least, that the court is not up to the challenge of resolving the case. People look to the court for guidance, as being above politics, but feel let down when the outcome is tied (or, sometimes, even when it’s close and comes down along political lines). ~Max ---
**Author:** ![QuickSilver](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quicksilver/32/7832_2.png) [@QuickSilver](https://boards.straightdope.com/u/QuickSilver)\ **Post date:** [October 15, 2020, 7:30pm UTC](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092/279 "2020-10-15T19:30:38Z")
> [@Max\_S](#): > > A tie indicates, in my mind at least, that the court is not up to the challenge of resolving the case. People look to the court for guidance, as being above politics, but feel let down when the outcome is tied (or, sometimes, even when it’s close and comes down along political lines). > > ~Max If jurisprudence was impartial, we might still have a supreme court with multiple judges to handle the case load, but we’d only need a ruling from one on any given issue. No, I see court decisions as just another vote, through backed up by impenetrably written opinions. ---
**Author:** ![YamatoTwinkie](https://avatars.discourse-cdn.com/v4/letter/y/cc9497/32.png) [@YamatoTwinkie](https://boards.straightdope.com/u/YamatoTwinkie)\ **Post date:** [October 15, 2020, 7:39pm UTC](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092/280 "2020-10-15T19:39:18Z")
> [@k9bfriender](#): > > Difference is a public defender has an adversary, the prosecutor, and likely most of the judicial system arrayed against them. A judge _is_ the justice system, and can direct it in any way they wish, so long as they give a fig leaf towards justifying it. And that’s the point, I think. For a pure originalist, the adversary is the _legislature_, and the 51% majority of people behind them. These represent the side of the “law how it ought to be”. Unfortunately the adversary is crippled with infighting, and absolves all responsibility for their role, so everyone whines about how difficult it is to change things, and how easy it would be if the judges just work on the side of the “law how it ought to be”, wave their magic wands of reinterpretation and fix things. That way the legislature can resume infighting, and can now blame “activist judges” to excuse themselves of any accountability to the public, in addition to the other party. A pure Originalist just says "screw that. It’s not my responsibility to fix the law, and I’m just enabling you if I did, which further undermines the system. I’m not going to pretend to think I’m wise enough to know what the law ought to be, but at least I can do a decent job figuring out what it was intended to be at the time " [Previous page](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092.md?page=13) [Next page](https://boards.straightdope.com/t/trumps-supreme-court-nominee/921092.md?page=15)