RoR: Forum

JH: My formulation of a highly qualified nominee:
1) a nominee who will candidly and completely answer every single question ... allowing a full exploration of their judicial philosophy.
2) giving answers that indicate they will follow the original intent of the Constitution as written, and vote to overturn any precedent not adhering to that standard
3) enough judicial appellate court experience ...

Actually, here's the thing. It is a principle of law that the court does not respond to hypothetical cases. That applies to all courts. So, judicial nominees routinely refuse to answer such questions, even for legislative bodies who advise and consent on their appointments.

Moreover, suppose the justice answered a hypothetical one way, but then ruled another way later, for different reasons, or whatever reasons? Would they then be impeachable?

You would have them overturn precedents that violate your interpretation of originalism? But to overturn a precedent, there would need to be a case at law, not a hypothetical. Otherwise, for them to act would be completely contrary to the fundamental principles of they judiciary, of any judiciary.

Even given such a scenario, should they overturn the 24th? or the 26th? the 19th?... By what standard?

As for appelate court experience, it is, indeed relevant and useful, and in the case of a justice who has it, their decisions are the record upon which they stand. Dean Elena Kagan, the Solicitor General, has a record, also. You can read the articles she has written.(Steve Wolfer admitted to not understanding her essays, so there is that: they are legal tracts, not populist screed.) You could interview her students, too, if you choose, and ask them, if they are practicing lawyers or judges, how they view her presentations now.

But the thing you ask for -- and, indeed, the thing she asked for in her review of The Confirmation Mess -- is not to be had unless basic premises of judiciary tradition are to be overturned, itself a violation of that self-same "originalism."

Post 21

Sunday, July 4, 2010 - 10:12pm

Michael wrote that the Dredd Scott ruling supporting slavery was fully within the Constitution. Wrong! He should read the dissent which states that nothing in the constitution would grant government the standing to declare blacks could not be citizens. That was the opinion that would have held if the ruling were based upon an originalist interpretation and that was the key to declaring slavery unconstitutional. Check what Scalia, our current court's most consistent Originalist, has to say about Taney's majority decision - he believes it to have forever destroyed the that chief justice's reputation. But had the Dredd Scott decision gone the other way, it would not have resolved the issue of slavery given the political environment so harshly conflicted that it generated a civil war.

A different decision in Dredd Scott would not have given us the clarity of an amendment and for that reason it would have left slavery a foothold in the constitution that is not there today. And it would not have resolved the schism in the nation that was so strong that it took a war. And, Michael ignores the amendment process that did give us the 13th amendment after the civil war.

The country was strongly moving towards ending slavery. We would have paid less of a price had we done it much earlier - but it makes no sense to wish for alternate histories. Slavery was made unconstitutional in the proper way - with a clear and strong statement in an amendment.

To be a strict orginialist doesn't mean you throw out individual rights, it means when needed, you do an amendment. Michael doesn't get it - he likes the idea of making up what words mean in the constitution. (I'm starting to think that he is a progressive-anarchist, or maybe a statist-anarchist.)

Michael wrote, "When President Kennedy acted to break segregation in the south, he did so on the basis of the Commerce Clause. Buses are interstate commerce, therefore the federal government ordered bus terminals and bus lines integrated and the "Freedom Riders" tested that law to make sure that it was in place, some of them giving their lives."

That kind of progressive interpretation (using the commerce clause) to fight for racial equality under the law, results in the destruction of economic freedom (which of course is just fine with the progressives). If you go with Michael's progressive interpretation mechanism instead of Originalism, you are just advocating rule by a tiny elite (the majority of of 5 justices) via non-objective law. Those justices appointed for life would be able to force anything that they wanted based upon their whims. But then I don't expect clear thinking in this area from a anarchist - Michael doesn't understand Originalism, but then he doesn't understand the need for government either.

Post 22

Sunday, July 4, 2010 - 10:36pm

Again Michael shows that he doesn't understand Originalism. He likes to twist words around without regard for meanings. He claims that nominees (who are not justices, and are not in court, and are not rendering decisions) can't answer hypotheticals - wrong! They don't answer because that excuse has worked to protect them from answering questions they didn't want to answer. There is no such principle of law at work in a confirmation hearing that has anything to do with hypotheticals. If senators chose to reject any nominee that would not answer as honestly and thoughtfully as they could, including taking on reasonably constructed hypotheticals, that little 'tradition' would drop away instantly. They could refuse to render hypothetical decisions, but could clearly indicate how their thinking would proceed and how they would work towards a decision.

They are not bound by anything they say in the confirmation hearings - if they were we could impeach Sotomayor today. The house can impeach and the senate can convict at any time or not at all and answering hypotheticals doesn't have any effect on that and it also doesn't have anything to do with Originalism.

Michael wrote, "Steve Wolfer admitted to not understanding her essays." I did NOT say that - If Michael has a shred of intellectual honesty, he'll edit that out of his post!

Post 23

Monday, July 5, 2010 - 4:39am

Steve Wolfer wrote:Michael wrote, "Steve Wolfer admitted to not understanding her essays." I did NOT say that - If Michael has a shred of intellectual honesty, he'll edit that out of his post!

In Post #8 of "Kagan and the Commerce Clause", Steve wrote:
Try going a little deeper. Actually read some of the papers she wrote - they tell us very little in the area we need.

As you can see from the citations I posted above, I have read her essays. I found in them plenty for YOU to worry about, if you had actually read them. You never cited anything she wrote. You made up this a priori standard of "originalism."

Elena Kagan said that laws limiting freedom of speech that were struck down as unconstitutional could and should be rewritten to meet the standards set by the Supreme Court in order to block speech (including print, etc., etc.). She believes that only social purpose validates the usefulness of speech (print, etc.) Writing for yourself or for others who enjoy it themselves could be and should be limited.

She opened her review of "The Confirmation Mess" with a condemnation of the Supreme Court.

Of her six works, five are legalist and the sixth wanders in and out of it She is not an incisive thinker and she tends not to work in large images.

All of that and more can be found in her written works, the essays she chose to write on her own initiative, rather than speaking as the governments' lawyer.

Perhaps, as she says, the Supreme Court is clerk-driven, so perhaps her clerks can help her. Therefore, it could be useful to call on her students when she was a professor and faculty when she was a dean. At least, they could be asked about whether and to what extent her lectures showed wisdom or insight.

Myself, if I were a senator on the judiciary committee, I would ask basic questions: If you were alone on an island, would you need morality?

(Edited by Michael E. Marotta on 7/05, 5:04am)

Post 24

Monday, July 5, 2010 - 5:00am

SW: Slavery was made unconstitutional in the proper way - with a clear and strong statement in an amendment.

Well, half the states did not get to vote on that, so we will never know. As opposed as we all are to slavery, the fact remains that "originalism" would not have ended it. It would have remained legal in enough states to prevent an amendment even today.

We all know that West Virginia became a state in violation of the literal original wording of the Constitution.

We all know that President Jefferson had no authority to buy the Louisiana Territory.

Nothing in the original Constitution prevented the Alien and Sedition Acts or the so-called "Black Laws" that denied rights to people on the basis of their (highly putative) "race" even those who themselves and their ancestors were born legally free. Race continued to be law into the 20th century with no contradiction to the original Constitution or to the 14th, 15th and 16th Amendments.

Unraveling the government, rolling it back to Objectivist standards would take an interpretation of intent far from the original document.

And whose "intent" would be considered? Which collection of persons from the 18th century speaks for all Americans of that time? (Do the tories get a say?)

(Edited by Michael E. Marotta on 7/05, 5:01am)

Post 25

Monday, July 5, 2010 - 11:00am

I was right in the beginning... it makes NO sense to argue constitutionality with an anarchist.

Post 26

Monday, July 5, 2010 - 3:59pm

Michael: I respect your thoughtful exceptions noted regarding originalism. I agree with you that following the Constitution exactly as written does not always lead to the optimal approach. Perhaps I should clarify my thoughts on following the Constitution:

I don't think it is a perfect document, not as originally written and not always as amended, the allowing of the income tax, Prohibition, and the direct election of senators being some of the more pernicious amendments.

Since it is a flawed document, following it for the areas that are flawed results in bad decisions.

But, the alternative to strictly following it -- and amending it when the flaws become so manifest that they can no longer be tolerated -- is what the Supreme Court has been doing -- ignoring or revising it by judicial fiat via decisions not in compliance with the straightforward wording of it.

So, the alternatives (short of a revolution overthrowing the government) are:

1) to follow a generally minarchist document, and thus put severe constraints on the size and power of government, with a few unfortunate exceptions

or

2) to allow 9 judges appointed by bitterly partisan politicians pursuing partisan political goals in their nominations, justices who can't be voted out of office, to modify it however they wish, and hope like hell that 5 out of 9 of them will only change the few flawed parts and leave the unflawed parts alone. To, in short, hope that the "right" justices will almost always get nominated and prevail in the decisions issued.

And, sorry, but that latter approach has led to a gargantuan, decidedly non-minarchist government. It has been an abject failure by any rational Objectivist standard. Are you really defending that?

Post 27

Monday, July 5, 2010 - 4:09pm

Actually, here's the thing. It is a principle of law that the court does not respond to hypothetical cases.

Of course not. I never argued that. An ideal SCOTUS justice would only overturn precedent when someone brought an actual case before the court challenging the constitutionality of something the government has done.

But, once one such precedent was overturned, people would start challenging other pernicious precedents, as is happening in the gun control laws in DC and Chicago being overturned (and, predictably, being replaced with only slightly less onerous and unconstitutional laws, leading to yet more challenges.)

But, just because a judge can't rule on hypothetical cases when serving as a justice doesn't mean that they can't be peppered with hypotheticals during the confirmation vetting process. In fact, such a vigorous vetting DOES occur with judicial nominations before the Hawaii State Senate, and any attempt to bullshit or stonewall or be evasive is likely to result in non-confirmation.

So, ironically, the wretched statists running the Hawaii state legislature actually do a reasonably competent job of vigorously vetting judicial nominees, while the far less statist U.S. Senate totally blows when it comes to doing their job screening judicial nominees. Go figure.

Post 28

Monday, July 5, 2010 - 4:13pm

I was right in the beginning... it makes NO sense to argue constitutionality with an anarchist.

Not always. Some anarchists like me value minarchy, and would love to live under a constitutional minarchy, even if we would love even more to live under a minarchy that approaches the "ideal" state of non-public-governance. You know, the anarchists who are willing to take a slice or even a crumb if the whole loaf isn't available for immediate consumption.

Post 29

Monday, July 5, 2010 - 4:27pm