# US Lawyer dopers; US Supreme Court Justices **URL:** \ **Category:** Great Debates\ **Created:** [October 24, 2008, 12:39pm UTC](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336 "2008-10-24T12:39:31Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [October 24, 2008, 7:29pm UTC](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336/21 "2008-10-24T19:29:14Z")
> [@Churchill](#): > > …The United States Senate set a horrible precedent in 1986 when they rejected the appointment of Robert Bork. In that decision they admitted Bork to be a capable and distinguished legal expert but rejected his ideology. In that move they forever changed the practice of deciding if someone was capable and instead asked if he/she believed in a particular ideology. Well, I agree that the rejection of Bork was highly politicized, but this was not a new thing for the Senate, which earlier rejected John Rutledge for the post of chief justice in large part because of his strong opposition to the Jay Treaty. The year? 'Twas 1795. There have always been politics surrounding the rejection (or confirmation) of Supreme Court justices. Rutledge was the first; Bork will not be the last. ---
**Author:** ![zamboniracer](https://avatars.discourse-cdn.com/v4/letter/z/e9a140/32.png) [@zamboniracer](https://boards.straightdope.com/u/zamboniracer)\ **Post date:** [October 24, 2008, 8:07pm UTC](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336/22 "2008-10-24T20:07:07Z")
> [@Elendil\_s\_Heir](#): > > Well, I agree that the rejection of Bork was highly politicized, but this was not a new thing for the Senate, which earlier rejected John Rutledge for the post of chief justice in large part because of his strong opposition to the Jay Treaty. The year? 'Twas 1795. > > There have always been politics surrounding the rejection (or confirmation) of Supreme Court justices. Rutledge was the first; Bork will not be the last. I agree with this. The Bork selection/rejection was a recent manifestation of the wrong-headed Presidential notion that the President is automatically entitled to have his Supreme Court nominee confirmed as long as the nominee has no criminal record. I exaggerate, of course, and I don’t have a cite and I haven’t done the research, but my impression is that prior to Bork (and prior to Roe vs. Wade) (or at least prior to Nixon’s selection of Carsdale (sp?)), Presidents selected nominees that they knew, based on prior discussions and negotiations, would be palatable to the Senate. As Elendil’s Heir said, the selection of judges is always a political decision. Even if it is allegedly based on merit, it is political in the sense that politics decides who’s version/vision of merit comes into play. ---
**Author:** ![Rhythmdvl](https://avatars.discourse-cdn.com/v4/letter/r/85f322/32.png) [@Rhythmdvl](https://boards.straightdope.com/u/Rhythmdvl)\ **Post date:** [October 24, 2008, 8:40pm UTC](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336/23 "2008-10-24T20:40:46Z")
I find Scalia a conundrum. On the one hand he appears to be brilliant, but on the other hand he bases much of his philosophy and rulings on empty rhetoric. The only way I can reconcile the two impressions is to weave them together in an extraordinarily tight fit of disingenuousness. That, however, does not \*quite \*work, but my only other choice is outright delusion. > [@AK84](#): > > I disagree, the law is the law. It must be followed. There are ways to change the law or to inject fairness into it, the judiciary is not that vehical. Define: [ul] [li]Due Process[/li][li]Unreasonable search[/li][li]Equal protection[/li][li]Speech[/li][/ul] Such that a collection of two hundred or so reasonably intelligent judges would all reach the same conclusion of any case that could come before them now or in the future. I realize these are American terms of art, but the point should still come through. The supposition that in its interpretive capacity the judiciary is not part of the law-making process suggests that their role could be adequately filled by another party. This is not the case under our current system, and I do not believe one–one that could be considered by fairly modern audiences as remotely fair or just–has ever existed. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [October 24, 2008, 8:52pm UTC](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336/24 "2008-10-24T20:52:25Z")
Perhaps cultural differences are coming in. By create law I mean infer things which are not there. Something like what happened with the US Fourth Amendment, no seach without cause, became extended through \*Katz \*to include privacy; personal privacy. Defining unreasonable search orders broadly to restrict government interfereance is one thing. Using the phrase to read whole new rights; is not and leads to problems in a common law country because of the very fact of precedent, the incorrect law is perpetuated. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [October 24, 2008, 9:01pm UTC](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336/25 "2008-10-24T21:01:38Z")
I don’t think the proper dichotomy is political selection vs. non-political selection. It is openly political selection vs. covertly political selection. There is no set of nonpolitical factors upon which to rely in appointing Supreme Court Justices. Even seemingly apolitical factors reflect implicit value judgments. In the extreme case, where the system just elevates judges by seniority, you’re making implicit decisions about a whole host of factors when you put that system into place, some of which can fairly be called political. And, of course, this just means the initial appointment of judges at the bottom level becomes the level at which more explicit politics are considered. There might be a spectrum of degree, sure. Bork might represent one extreme, but I don’t think his (non)appointment is different in kind from every appointment–it was just more explicit. In the US, legal realism, at least in its weakest form, is pretty much an accepted truth. Legal realism states that there is no such thing as discoverable objective law that determines the outcome of every case. Some outcomes will always be close calls, the results of biases. These biases need not fall along some political spectrum. The bias might be to side with the government, or the defendant, regardless of the politics of the question. But they are almost always political in a given context (a bias of siding with the government in a political environment with a stable center-right tilt is functionally a center-right political bias). Thus, legal realism suggests that its actually better to discuss a judges biases out in the open during the confirmation process, even if they are discussed in terms of overall jurisprudential methods. At least that way the biases are subject to some democratic controls. [I meant to add that comparing SCOTUS to the House of Lords is very difficult. The existence of Marbury-style judicial review makes the whole picture very different.] ---
**Author:** ![Rhythmdvl](https://avatars.discourse-cdn.com/v4/letter/r/85f322/32.png) [@Rhythmdvl](https://boards.straightdope.com/u/Rhythmdvl)\ **Post date:** [October 24, 2008, 9:04pm UTC](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336/26 "2008-10-24T21:04:41Z")
> [@AK84](#): > > Perhaps cultural differences are coming in. By create law I mean infer things which are not there. Something like what happened with the US Fourth Amendment, no seach without cause, became extended through Katz to include privacy; personal privacy. Defining unreasonable search orders broadly to restrict government interfereance is one thing. Using the phrase to read whole new rights; is not and leads to problems in a common law country because of the very fact of precedent, the incorrect law is perpetuated. Right, but can a law be written such that _everything_ is there? There is the obvious claim that if something is missing then legislative processes are the proper venue, but this would result in a rather Draconian system where justice is delayed to the vanishing point. Note that in our system (sorry I can’t be more worldly), much of the judge-made-law bugaboo is actually judicial interpretations of legislation. That is, aside from weighing in on Constitutional rights and protections, many opinions deal with interpretations of legislation – which means that Congress could effectively override any decision they do not agree with. That this is relatively rare should bolster the notion that relying on Congress to pass all the laws that are needed is not viable. Not, mind you, that judges should be completely unrestrained. Just because Scalia’s view is not founded on solid principles does **not** mean that the opposite is a good philosophy. As mentioned earlier, I had Barak leanings earlier on because I thought he would, independently of his political leanings, appoint the most able minds to the court. I agree with the central notion that injecting politics into the judiciary is a bad thing. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [October 24, 2008, 9:11pm UTC](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336/27 "2008-10-24T21:11:35Z")
As I said, creating a right of privacy, which did not exist, is more than just “interpretation”. At least according to the English legal system. Again, cultural differences. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [October 24, 2008, 9:23pm UTC](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336/28 "2008-10-24T21:23:34Z")
> [@AK84](#): > > Statutes have abolished many common law rules. The same is true in American law: Statutory (legislature-made) law trumps common (judge-made) law. The difference is that statutory law is, in turn, subservient to the Constitution. The constitution trumps statutory law. > [@AK84](#): > > As I said, creating a right of privacy, which did not exist, is more than just “interpretation”. At least according to the English legal system. Again, cultural differences. This is not a “cultural” difference. It is a difference in the legal systems in question. The Constitution cannot be read like a statute. The Constitution is a set of broadly worded principles, which must be interpreted by the courts in specific instances. Your conclusion that the court “created” a right of privacy that did not previously exist, really amounts to nothing more than a political opinion. It’s no more legally pure than the conclusion that the Constitution, taken as a whole, implies a right of privacy. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [October 24, 2008, 9:31pm UTC](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336/29 "2008-10-24T21:31:08Z")
^ Could very well be the case, having no written constitution, I am not as versed in constitutional jurisprudence as you would be. ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [October 24, 2008, 9:38pm UTC](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336/30 "2008-10-24T21:38:23Z")
> [@MOIDALIZE](#): > > Scalia’s dissent in PGA Tour, Inc. v. Martin is my favorite opinion from him. > > If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf-and if one assumes the correctness of all the other wrong turns the Court has made to get to this point-then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations, and among the several States,” U. S. Const., Art. I, § 8, cl. 3, to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf. > > For those of you who forgot, Casey Martin was the golfer with the degenerative condition in his leg that required him to use a golf cart. That is genius? I think that is pettifogging crap. It doesn’t analyze the issue of whether the law requires a golf tournament that falls within anti-discrimination laws not discriminate, it rather bemoans that it does. Well boo fucking hoo! Most lawsuits someone wins and someone loses and the future is affected. Does Congress have the power to demand that pro-golfers with handicaps be accommodated? Yes, they do, and it is the Court’s duty to uphold that law. If it offends Scalia’s personal hatred to America/the handicapped/progress/liberals or whatever, that isn’t the point. The point is whether Congress has the power to do so and if it did so. The only opinion of the USSC I have read in full (with all dissents) since Scalia was seated many years ago was Bush v. Gore, and Scalia’s portion was the worst, most disingenuous opinion I have ever read. “This is our opinion but don’t use it as precedent” means even he thinks it is crap. Of the many clippings of his opinions I have read, including the golf one above, I am unpersuaded that he is anything more than a bully in writing, although usually an artful one. Frankly Christopher Hitchens is much better at being an artful bully than than Scalia. Sarcasm might make Judge Judy popular, but I will settle for a boring judge with a smaller ego any day. ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [October 24, 2008, 9:41pm UTC](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336/31 "2008-10-24T21:41:39Z")
> [@AK84](#): > > As I said, creating a right of privacy, which did not exist, is more than just “interpretation”. At least according to the English legal system. Again, cultural differences. Roe v. Wade discusses exactly how it exists in the US via 3rd, 4th, 5th and 9th amendments and traces its application. I can’t speak to the issue of whether it existed in England, but it certainly existed in the US since the 1989 Bill of Rights. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [October 24, 2008, 10:23pm UTC](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336/32 "2008-10-24T22:23:24Z")
> [@AK84](#): > > As I said, creating a right of privacy, which did not exist, is more than just “interpretation”. At least according to the English legal system. Again, cultural differences. As noted they did not “create” a right to privacy in the constitution. While it is debated just how far the constitution goes in protecting privacy the notion that it is there goes way back before Roe. > [@](#): > > The U. S. Constitution contains no express right to privacy. The Bill of Rights, however, reflects the concern of James Madison and other framers for protecting specific aspects of privacy, such as the privacy of beliefs (1st Amendment), privacy of the home against demands that it be used to house soldiers (3rd Amendment), privacy of the person and possessions as against unreasonable searches (4th Amendment), and the 5th Amendment’s privilege against self-incrimination, which provides protection for the privacy of personal information. In addition, the Ninth Amendment states that the “enumeration of certain rights” in the Bill of Rights “shall not be construed to deny or disparage other rights retained by the people.” The meaning of the Ninth Amendment is elusive, but some persons (including Justice Goldberg in his Griswold concurrence) have interpreted the Ninth Amendment as justification for broadly reading the Bill of Rights to protect privacy in ways not specifically provided in the first eight amendments. > > The question of whether the Constitution protects privacy in ways not expressly provided in the Bill of Rights is controversial. Many originalists, including most famously Judge Robert Bork in his ill-fated Supreme Court confirmation hearings, have argued that no such general right of privacy exists. The Supreme Court, however, beginning as early as 1923 and continuing through its recent decisions, has broadly read the “liberty” guarantee of the Fourteenth Amendment to guarantee a fairly broad right of privacy that has come to encompass decisions about child rearing, procreation, marriage, and termination of medical treatment. Polls show most Americans support this broader reading of the Constitution. > > SOURCE: [http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html) ---
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [October 24, 2008, 10:40pm UTC](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336/33 "2008-10-24T22:40:13Z")
> [@The\_Second\_Stone](#): > > That is genius? I think that is pettifogging crap. It doesn’t analyze the issue of whether the law requires a golf tournament that falls within anti-discrimination laws not discriminate, it rather bemoans that it does. Well boo fucking hoo! Most lawsuits someone wins and someone loses and the future is affected. Does Congress have the power to demand that pro-golfers with handicaps be accommodated? Yes, they do, and it is the Court’s duty to uphold that law. If it offends Scalia’s personal hatred to America/the handicapped/progress/liberals or whatever, that isn’t the point. The point is whether Congress has the power to do so and if it did so. > > The only opinion of the USSC I have read in full (with all dissents) since Scalia was seated many years ago was Bush v. Gore… So…I take it you didn’t look up the case and read any more than the snippet I quoted? Because he actually disagrees with the majority conclusion (in hilarious fashion) that the ADA applies to the rules of a professional sporting event. What he’s bemoaning is that the majority concluded otherwise. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [October 25, 2008, 8:53am UTC](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336/34 "2008-10-25T08:53:02Z")
What changes would transpire, if say only appeals court judges, were elevated on the basis of say seniority and area. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [October 25, 2008, 9:11am UTC](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336/35 "2008-10-25T09:11:13Z")
> [@Churchill](#): > > The United States Senate set a horrible precedent in 1986 when they rejected the appointment of Robert Bork. In that decision they admitted Bork to be a capable and distinguished legal expert but rejected his ideology. In that move they forever changed the practice of deciding if someone was capable and instead asked if he/she believed in a particular ideology. I concur, but the politicalization of SCOTUS started with FDR’s court-packing scheme. Roosevelt was able to get the Justices to change their mind on the ICC and contitutionalized the New Deal. After that, Supreme Court appointments were made to further the President’s political agenda rather than getting the best jurists on the bench. ---
**Author:** ![What\_the](https://avatars.discourse-cdn.com/v4/letter/w/f4b2a3/32.png) [@What\_the](https://boards.straightdope.com/u/What_the)\ **Post date:** [October 25, 2008, 10:57am UTC](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336/36 "2008-10-25T10:57:09Z")
> [@Saint\_Cad](#): > > I concur, but the politicalization of SCOTUS started with FDR’s court-packing scheme. Roosevelt was able to get the Justices to change their mind on the ICC and contitutionalized the New Deal. After that, Supreme Court appointments were made to further the President’s political agenda rather than getting the best jurists on the bench. Note also that current Justices seem to be hanging on to their seats in order to survive administrations they don’t agree with politically. Wonder if that is more prevalent now? ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [October 25, 2008, 1:44pm UTC](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336/37 "2008-10-25T13:44:47Z")
> [@AK84](#): > > What changes would transpire, if say only appeals court judges, were elevated on the basis of say seniority and area. All federal judges are political appointments. The process was meant to be political. And what do you mean by “area”? ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [October 25, 2008, 2:50pm UTC](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336/38 "2008-10-25T14:50:31Z")
Geographical area. Most UK judges come via the High Court, and were until 3 years ago appointed from the ranks of senior barristers and were political appointees as well. It would dilute the politicisation I think if it was at one point, not every layer. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [October 25, 2008, 4:14pm UTC](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336/39 "2008-10-25T16:14:39Z")
> [@AK84](#): > > Geographical area. Generally speaking, U.S. district court judges are appointed from the region encompassed by the district in question and U.S. appeals court judges are appointed from the district courts encompassed by the circuit in question. I don’t really see, though, how geographical region has much relevance for the Supreme Court. > [@](#): > > It would dilute the politicisation I think if it was at one point, not every layer. Pretty much all American judges are political in one way or another – there might be an exception for some state judges, but for the states I’m most familiar with, judges are actually chosen by popular election. American judges – like sheriffs – have by and large never been part of a neutral civil service. In fact, the notion of a neutral civil service is much more limited in the United States than it is in Britain. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [October 25, 2008, 4:36pm UTC](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336/40 "2008-10-25T16:36:52Z")
AK, I’m left wondering exactly what the problem is you’re trying to solve with your proposed solutions. Is it that the Supreme Court is political in nature? Our system is set up to have three co-equal political branches that are supposed to assert their own authority and, as a result, limit the exercise of power by the other branches. It’s the whole point. In Britain, the sole political body is the Parliament (headed by the prime minister and cabinet). That’s not the intent of our government. We don’t want the Congress or the president to have superior political authority over the judiciary. We want all three branches struggling to prevent each other from exceeding their authority. If you cripple the judiciary, then you’re tampering with the basic structure of the system. As it is, the last eight years have shown us how dangerous it is for the judiciary and the legislature to cede too much power to the executive. At least now there is still a chance for the other branches to try to seize back that power and reinstate limits on executive power. I think the last thing we need is to weaken one of the three branches by removing its freedom to exercise its political power. [Previous page](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336.md?page=1) [Next page](https://boards.straightdope.com/t/us-lawyer-dopers-us-supreme-court-justices/469336.md?page=3)