Bret Stephens: ...which just reminds me of another way in which Trump is not conservative. After all, if he’s so confident he’s going to beat Sleepy Joe, why not wait till January?
It is bizarre to me that your judges are partisan, but since they are, he should hold out until after the election. His base would get out to vote if they knew a justice was on the line.
Actually the so-called "conservative" justices are close to impartial. "Liberal" justices believe in a "living Constitution" That enables them to make decisions which, in effect, enact liberal policies. E.g., although I approve of gay marriage and legalized abortions, these subjects are not dealt with in the Constitution.
However, there are NO corresponding conservative justices. Clarence Thomas would overturn Ro v Wade, because it's incorrect legally. Fortunately, Thomas wouldn't legislate from the bench. If Thomas wanted to do that, he would find some excuse to rule that abortion was Constitutionally illegal. That is, neither a state legislature nor Congress could legalize them, even if they wanted to.
If Thomas wanted to do that, he would find some excuse to rule that abortion was Constitutionally illegal. That is, neither a state legislature nor Congress could legalize them, even if they wanted to.
Yes, abortion doesn't appear in the Constitution. Therefore the 10th amendment applies:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
David, I'm sorry if I'm coming on too strong. I just find it hard to believe that anyone could think that any US judge is non-biased, especially a SCOTUS judge. Why do you think Trump will be picking the judge he will nominate?
Do you think you're biased? If you don't, that worries me even more. Everyone's biased. I'm certainly biased. If you're not biased, why did you choose to become a Republican instead of a Green or a Democrat?
(BTW, I've never been a member of any political party, FWIW, and always register independent, though in Oregon there's an Independent party so here you register unaffiliated.)
How can Canadian, or any, judges really be nonpartisan?
I don't know, but A 2009 study that looked at more than two decades’ worth of Canadian Supreme Court opinions found that a judge’s votes could not reliably be predicted by considering which party had put them in office.
It looks like we had 7 of 9 supreme court judges appointed by conservative leader Stephen Harper. No one batted an eye. Liberal leader Trudeau has since appointed one of them as chief justice.
"Supreme Court nominees used to need 60 votes in the Senate to be approved. But in 2017, Mr McConnell held a vote to change the rules, so that nominees would need a simple majority of 51 votes in the 100-seat Senate. This enabled Senate Republicans to push through confirmation of Mr Trump's nominee Neil Gorsuch.
Republicans currently hold a 53-47 majority in the upper chamber."
With 60 seats needed, a new judge needed some support from both parties, a useful check and balance.
Now the threshold has been lowered, no cross-party support is needed.
I hate to see a 200+ year old democracy deteriorating like this.
The UK method seems best. In Canada there are no checks and balances whatsoever. The PM recommends a justice to the governor general and she appoints the judge.
Layzej said... I don't know, but A 2009 study that looked at more than two decades’ worth of Canadian Supreme Court opinions found that a judge’s votes could not reliably be predicted by considering which party had put them in office.
Entropic Man - your link has it backwards. It was Democrats who eliminated the filibuster on judicial appointments.
On Nov. 21, 2013, Senate Democrats exercised the so-called “nuclear option” to abolish the filibusters of nominations they had pioneered a decade earlier.
This is a story of how their best-laid plans went awry.
Senate Democrats started planning a hostile takeover of the judicial appointment process in 2001. Just days after President George W. Bush took office, Senate Democratic leader Tom Daschle, D-S.D., said they would use “whatever means necessary” to fight his judicial nominees. At a May retreat in Florida, that vow became a strategy to, as the New York Times described it at the time, “change the ground rules” of the confirmation process....
On Nov. 21, 2013, Senate Democrats deployed the “nuclear option,” so named because of its explosive impact on Senate rules and traditions. They voted 52-48 to reinterpret the words “three-fifths” in Rule 22 to mean “simple majority.”...
Democrats got what they wanted when Obama quickly filled those three D.C. Circuit vacancies.
David - Whatever bias I may have didn't affect my performance at work. E.g., I hired actuaries based on their actuarial ability. One of my proudest hires, EJ., turned out to be far left politically. He eventually moved to the CA Insurance Dept. and became real thorn in the sides of companies. However, all I cared about was that he did outstanding actuarial work at my company. His politics are his business. EJ also happened to be gay. That also didn't interest me.
If I were a Supreme Court Justice, I would regretfully vote to overthrow Roe v. Wade. I'm pro-choice and a long-time donor to Planned Parenthood, but the legal basis for Roe v. Wade is virtually non-existent IMHO.
If both sides are playing party political games with judicial appointments, then you definitely need to change the system.
IIRC you have three branches of government, the President, Congress and the judiciary. The Constitution was designed so that each branch limited the excesses of the others.
If the Supreme Court can now be rigged to support one political party,as happened in Bush v Gore and looks likely to happen in Trump v Biden then you need a new constitution.
E.m. We also need a new Constitution because this new Supreme Court justice will be the 5th justice out of 10 nominated by a President who lost the popular vote:
We *have* to get rid of the Electoral College -- it is killing US democracy. Unfortunately, the setup of the Constitution itself makes it essentially impossible to get rid of the Electoral College. Catch 22.
And David, you sound like you want Brownie points for hiring someone who was gay. (Otherwise why mention it?) THere are no points for that. Actually you lost points for even bringing it up. It's irrelevant to any and all conversations. What's relevant is that you thought it was relevant to mention it. Unless you mention the sexuality of each of your employees when you introduce them and then say, but it didn't matter to me, but then that's just creepy.
David - My statement about ObamaCare is based on memory. I am pretty sure it's correct, but I'm not going to read through a 1000+ page bill to find the provision.
Re-hashing Bush v Gore would be a major undertaking. Recall that the SC voted 7-2 not to accept a last re-count proposed by the FL SC. Recall also that a subsequent news organization survey showed that a complete re-count would also have produced a Bush victory.
The 5-4 decision to end proposed re-counts was questionable, but not as questionable as the actions of the FL SC. After the statutory re-count failed to produce a Gore victory, the FL SC ordered a re-count on their chosen basis. When that failed to produce a Gore victory, the FL SC ordered a re-count on a different basis than the one they had just required. It looked like the FL SC was going to keep doing re-counts on various bases until they found one that made Gore the winner.
Cheers
P.S. BTW Bush got screwed by a media error. When polls closed in most of FL, the media reported simply that polls were closed. In fact, polls were still open in the Panhandle, because it's on Central Time. That announcement discouraged late voting in a conservative area. I've seen estimates that the media's mistake cost Bush 10,000 votes.
A system in which a sitting President can bias the Supreme Court in his favour and then use that court to decide the outcome of a Presidential election is a bad system.
I do not have a window into Benjamin Franklin's soul, but I am sure the the current boondoggle was not what he intended.
Hi David. Thanks for expanding on your thoughts. I'm really busy today -- and, honestly, will be until the end of the month -- but I'll try to get back to you as soon as I can.
David - My statement about ObamaCare is based on memory. I am pretty sure it's correct, but I'm not going to read through a 1000+ page bill to find the provision.
I'm coming to doubt your memory more and more.
Think about this -- why would the Democrats put a clause in the ACA that if any part of it was ruled illegal the entire bill would be ruled illegal? That makes absolutely no sense. No one in their right mind would poison their own bill like that.
If you still think it's really true you're going to have to seriously prove it.
Regarding Bush v Gore, the majority conservative SCOTUS was looking for any reason to decide for Bush and they found it in an "equal protection clause" in how ballots were counted.
Basically, they ruled there was no common standard in how chads were interpreted, so Bush won.
Not that there *should be* a common standard established and a recount done. Just that Bush won.
to quote:
"Bush argued that recounts in Florida violated the Equal Protection Clause of the Fourteenth Amendment, because Florida did not have a statewide vote recount standard. Each county was on its own to determine whether a given ballot was an acceptable one. Two voters could have marked their ballots in an identical manner, but the ballot in one county would be counted while the ballot in a different county would be rejected, due to the conflicting manual recount standards."
Gore argued that there was indeed a statewide standard, the "intent of the voter" standard, and that this standard was sufficient under the Equal Protection Clause.[32] Furthermore, Gore argued that the consequence of ruling the Florida recount unconstitutional simply because it treated different voters differently would effectively render every state election unconstitutional[33] and that each method has a different rate of error in counting votes. A voter in a "punch-card" county has a greater chance of having her vote undercounted than a voter in an "optical scanner" county. If Bush wins, Gore argued, every state would have to have one statewide method of recording votes to be constitutional.
--
By the way, the media recount wasn't until at least 10 months later, so it couldn't have had any impact on the SCOTUS decision.
--
Trump & the GOP will find a way, any way, to get this election to the SCOTUS, and they will of course rule for TRUMP. Another election will be stolen and America will sink further into chaos, racism, protests and riots.
It is bizarre to me that your judges are partisan, but since they are, he should hold out until after the election. His base would get out to vote if they knew a justice was on the line.
ReplyDeleteHow can Canadian, or any, judges really be nonpartisan?
ReplyDeleteActually the so-called "conservative" justices are close to impartial. "Liberal" justices believe in a "living Constitution" That enables them to make decisions which, in effect, enact liberal policies. E.g., although I approve of gay marriage and legalized abortions, these subjects are not dealt with in the Constitution.
ReplyDeleteHowever, there are NO corresponding conservative justices. Clarence Thomas would overturn Ro v Wade, because it's incorrect legally. Fortunately, Thomas wouldn't legislate from the bench. If Thomas wanted to do that, he would find some excuse to rule that abortion was Constitutionally illegal. That is, neither a state legislature nor Congress could legalize them, even if they wanted to.
Cheers
DiC wrote:
ReplyDeleteActually the so-called "conservative" justices are close to impartial. "Liberal" justices believe in a "living Constitution"
David, you are so blind to your own biases it's pathetic.
You honestly think Bush v Gore wasn't conservative judicial activism at its very worst???
ReplyDeleteWhat about the conservative Texas judge who found the individual mandate of the ACA to be unconstitutional so the ENTIRE law must be thrown out?
ReplyDeleteAnd now they're trying to do the same even though the cost of the individual mandate = $0.
It's so activist is a joke.
If Thomas wanted to do that, he would find some excuse to rule that abortion was Constitutionally illegal. That is, neither a state legislature nor Congress could legalize them, even if they wanted to.
ReplyDeleteYes, abortion doesn't appear in the Constitution. Therefore the 10th amendment applies:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
https://constitutioncenter.org/interactive-constitution/amendment/amendment-x
Thus the states have the right to make abortion legal or illegal, as they wish.
Re: gay marriage
ReplyDeleteSee the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
It's also the right thing to do, to treat everyone equally. Do we really need some high highfalutin document to tell us to do that?
David, I'm sorry if I'm coming on too strong. I just find it hard to believe that anyone could think that any US judge is non-biased, especially a SCOTUS judge. Why do you think Trump will be picking the judge he will nominate?
ReplyDeleteDo you think you're biased? If you don't, that worries me even more. Everyone's biased. I'm certainly biased. If you're not biased, why did you choose to become a Republican instead of a Green or a Democrat?
(BTW, I've never been a member of any political party, FWIW, and always register independent, though in Oregon there's an Independent party so here you register unaffiliated.)
How can Canadian, or any, judges really be nonpartisan?
ReplyDeleteI don't know, but A 2009 study that looked at more than two decades’ worth of Canadian Supreme Court opinions found that a judge’s votes could not reliably be predicted by considering which party had put them in office.
It looks like we had 7 of 9 supreme court judges appointed by conservative leader Stephen Harper. No one batted an eye. Liberal leader Trudeau has since appointed one of them as chief justice.
This is how we do it in the UK.
ReplyDeletehttps://www.judiciary.uk/about-the-judiciary/the-judiciary-the-government-and-the-constitution/jud-acc-ind/jud-appts/
Like any other job the Judicial Appointment Commission accepts applications from suitably qualified candidates and chooses between them on merit.
The only political input is that the Lord Chancellor has a limited power of veto.
This has run since 2006 and is intended to avoid partisan appointments, for reasons which have recently become obvious in the US.
Just read this on the BBC website.
ReplyDelete"Supreme Court nominees used to need 60 votes in the Senate to be approved. But in 2017, Mr McConnell held a vote to change the rules, so that nominees would need a simple majority of 51 votes in the 100-seat Senate. This enabled Senate Republicans to push through confirmation of Mr Trump's nominee Neil Gorsuch.
Republicans currently hold a 53-47 majority in the upper chamber."
With 60 seats needed, a new judge needed some support from both parties, a useful check and balance.
Now the threshold has been lowered, no cross-party support is needed.
I hate to see a 200+ year old democracy deteriorating like this.
The UK method seems best. In Canada there are no checks and balances whatsoever. The PM recommends a justice to the governor general and she appoints the judge.
ReplyDeleteLayzej said...
ReplyDeleteI don't know, but A 2009 study that looked at more than two decades’ worth of Canadian Supreme Court opinions found that a judge’s votes could not reliably be predicted by considering which party had put them in office.
I wish we were Canada.
I think I see Trump's strategy.
ReplyDeleteRemember how Bush v Gore was finally decided in court( hanging chad, anyone?)
He is rushing to appoint a conservative judge because he expects to lose the election.
He will then challenge the result, perhaps claiming irregularities in the postal vote.
It will be decided by a Supreme Court with a 6-3 conservative majority, three of whom Trump appointed.
What about the conservative Texas judge who found the individual mandate of the ACA to be unconstitutional so the ENTIRE law must be thrown out?
ReplyDeleteThere are good legal reasons for finding the mandate unconstitutional.
The ObamaCare law itself called for that law to be entirely eliminated if a part of it were found unconstitutional.
Cheers
Entropic Man - your link has it backwards. It was Democrats who eliminated the filibuster on judicial appointments.
ReplyDeleteOn Nov. 21, 2013, Senate Democrats exercised the so-called “nuclear option” to abolish the filibusters of nominations they had pioneered a decade earlier.
This is a story of how their best-laid plans went awry.
Senate Democrats started planning a hostile takeover of the judicial appointment process in 2001. Just days after President George W. Bush took office, Senate Democratic leader Tom Daschle, D-S.D., said they would use “whatever means necessary” to fight his judicial nominees. At a May retreat in Florida, that vow became a strategy to, as the New York Times described it at the time, “change the ground rules” of the confirmation process....
On Nov. 21, 2013, Senate Democrats deployed the “nuclear option,” so named because of its explosive impact on Senate rules and traditions. They voted 52-48 to reinterpret the words “three-fifths” in Rule 22 to mean “simple majority.”...
Democrats got what they wanted when Obama quickly filled those three D.C. Circuit vacancies.
https://www.heritage.org/political-process/commentary/5-years-after-going-nuclear-democrats-have-reaped-what-they-sowed
David - Whatever bias I may have didn't affect my performance at work. E.g., I hired actuaries based on their actuarial ability. One of my proudest hires, EJ., turned out to be far left politically. He eventually moved to the CA Insurance Dept. and became real thorn in the sides of companies. However, all I cared about was that he did outstanding actuarial work at my company. His politics are his business. EJ also happened to be gay. That also didn't interest me.
ReplyDeleteIf I were a Supreme Court Justice, I would regretfully vote to overthrow Roe v. Wade. I'm pro-choice and a long-time donor to Planned Parenthood, but the legal basis for Roe v. Wade is virtually non-existent IMHO.
Cheers
David in Cal
ReplyDeleteIf both sides are playing party political games with judicial appointments, then you definitely need to change the system.
IIRC you have three branches of government, the President, Congress and the judiciary.
The Constitution was designed so that each branch limited the excesses of the others.
If the Supreme Court can now be rigged to support one political party,as happened in Bush v Gore and looks likely to happen in Trump v Biden then you need a new constitution.
David in Cal wrote:
ReplyDeleteThere are good legal reasons for finding the mandate unconstitutional.
Such as?
The ObamaCare law itself called for that law to be entirely eliminated if a part of it were found unconstitutional.
Where in the law was that?
David - Whatever bias I may have didn't affect my performance at work.
ReplyDeleteEveryone is the worst judge of their own biases.
The best example is your statement last night that only liberal judges are activists and conservative judges aren't.
I notice you didn't touch Bush v Gore.
E.m. We also need a new Constitution because this new Supreme Court justice will be the 5th justice out of 10 nominated by a President who lost the popular vote:
ReplyDeletehttps://www.newsweek.com/supreme-court-justices-president-popular-vote-1156542
We *have* to get rid of the Electoral College -- it is killing US democracy. Unfortunately, the setup of the Constitution itself makes it essentially impossible to get rid of the Electoral College. Catch 22.
Entropic man wrote:
ReplyDeleteI think I see Trump's strategy.
Excellent thinking.
And David, you sound like you want Brownie points for hiring someone who was gay. (Otherwise why mention it?) THere are no points for that. Actually you lost points for even bringing it up. It's irrelevant to any and all conversations. What's relevant is that you thought it was relevant to mention it. Unless you mention the sexuality of each of your employees when you introduce them and then say, but it didn't matter to me, but then that's just creepy.
ReplyDeleteDavid - My statement about ObamaCare is based on memory. I am pretty sure it's correct, but I'm not going to read through a 1000+ page bill to find the provision.
ReplyDeleteRe-hashing Bush v Gore would be a major undertaking. Recall that the SC voted 7-2 not to accept a last re-count proposed by the FL SC. Recall also that a subsequent news organization survey showed that a complete re-count would also have produced a Bush victory.
The 5-4 decision to end proposed re-counts was questionable, but not as questionable as the actions of the FL SC. After the statutory re-count failed to produce a Gore victory, the FL SC ordered a re-count on their chosen basis. When that failed to produce a Gore victory, the FL SC ordered a re-count on a different basis than the one they had just required. It looked like the FL SC was going to keep doing re-counts on various bases until they found one that made Gore the winner.
Cheers
P.S. BTW Bush got screwed by a media error. When polls closed in most of FL, the media reported simply that polls were closed. In fact, polls were still open in the Panhandle, because it's on Central Time. That announcement discouraged late voting in a conservative area. I've seen estimates that the media's mistake cost Bush 10,000 votes.
David in Cal
ReplyDeleteBut the problem remains.
A system in which a sitting President can bias the Supreme Court in his favour and then use that court to decide the outcome of a Presidential election is a bad system.
I do not have a window into Benjamin Franklin's soul, but I am sure the the current boondoggle was not what he intended.
Hi David. Thanks for expanding on your thoughts. I'm really busy today -- and, honestly, will be until the end of the month -- but I'll try to get back to you as soon as I can.
ReplyDeleteHave a good day.
David - My statement about ObamaCare is based on memory. I am pretty sure it's correct, but I'm not going to read through a 1000+ page bill to find the provision.
ReplyDeleteI'm coming to doubt your memory more and more.
Think about this -- why would the Democrats put a clause in the ACA that if any part of it was ruled illegal the entire bill would be ruled illegal? That makes absolutely no sense. No one in their right mind would poison their own bill like that.
If you still think it's really true you're going to have to seriously prove it.
Regarding Bush v Gore, the majority conservative SCOTUS was looking for any reason to decide for Bush and they found it in an "equal protection clause" in how ballots were counted.
https://en.wikipedia.org/wiki/Bush_v._Gore#Equal_Protection_Clause
Basically, they ruled there was no common standard in how chads were interpreted, so Bush won.
Not that there *should be* a common standard established and a recount done. Just that Bush won.
to quote:
"Bush argued that recounts in Florida violated the Equal Protection Clause of the Fourteenth Amendment, because Florida did not have a statewide vote recount standard. Each county was on its own to determine whether a given ballot was an acceptable one. Two voters could have marked their ballots in an identical manner, but the ballot in one county would be counted while the ballot in a different county would be rejected, due to the conflicting manual recount standards."
Gore argued that there was indeed a statewide standard, the "intent of the voter" standard, and that this standard was sufficient under the Equal Protection Clause.[32] Furthermore, Gore argued that the consequence of ruling the Florida recount unconstitutional simply because it treated different voters differently would effectively render every state election unconstitutional[33] and that each method has a different rate of error in counting votes. A voter in a "punch-card" county has a greater chance of having her vote undercounted than a voter in an "optical scanner" county. If Bush wins, Gore argued, every state would have to have one statewide method of recording votes to be constitutional.
--
By the way, the media recount wasn't until at least 10 months later, so it couldn't have had any impact on the SCOTUS decision.
--
Trump & the GOP will find a way, any way, to get this election to the SCOTUS, and they will of course rule for TRUMP. Another election will be stolen and America will sink further into chaos, racism, protests and riots.
PS: My own memory isn't what it used to be, either.
ReplyDeleteOmigod! I was right. 😮
ReplyDeletehttps://www.bbc.co.uk/news/election-us-2020-54274115