Gorsuch confirmation hearings

[Rightguide]

Do you take yourself seriously?

From the Washington Post:
Neil Gorsuch has removed himself from Senate consideration for a seat on the U.S. Supreme Court, citing a post by Literotica veteran jaFO on the General Board.
"jaFO's grasp of the situation is, from a legal perspective, brilliant," Gorsuch told the Post. "I do have integrity and I'm out of here. Fuck it."

Careful you'll give jaFO the moFO delusions of grandeur.

 

[KingOrfeo]

Excuse me? What is fundamentally different about the last time versus any other time when the popular vote succumbed to the vagaries of the electoral vote?

I can't wait to hear this.

Nothing. The EC was obviously a pointless and pernicious anachronism in 1824.

 

[Rightguide]

Well, Trump has kept his promise to appoint and confirm an originalist justice to the SCOTUS. It's a good day for the Constitution. congratulations Neil Gorsuch.

 

[Colonel Hogan]

Nothing. The EC was obviously a pointless and pernicious anachronism in 1824.

Anachroism - A thing belonging or appropriate to a period other than that in which it exists, especially a thing that is conspicuously old-fashioned.

The Electoral College was the result of the 12th Amendment to the Constitution and was ratified in June of 1804.

You're talking 20 years. Kind of a short span for something to be anachronistic.

 

[KingOrfeo]

The Electoral College was the result of the 12th Amendment to the Constitution and was ratified in June of 1804.

You're talking 20 years. Kind of a short span for something to be anachronistic.

And yet the EC managed it. Besides, the EC is specified in the original 1787 text of the Constitution, the 12th Amendment only tweaked the process.

 

[KingOrfeo]

Well, Trump has kept his promise to appoint and confirm an originalist justice to the SCOTUS. It's a good day for the Constitution. congratulations Neil Gorsuch.

Sometimes I think originalists only get taken seriously because American culture is so Protestant-Biblicist, always striving to get back to the pure primitive truth of the original text, which is usually a pointless and misguided exercise. "Sovereign Citizens" and "Freemen on the Land" spouting their insane pseudolegal interpretations of the "common law" are infected with the same disease; they assume the common law is something eternal and unalterable like natural law, therefore discoverable in its original uncorrupted form, when in fact the common law is the most alterable legal system in the world and has been since before the Norman Conquest, any judge can alter it.

Originalism:

Originalism (or strict constructionism) refers to a school of thought concerning the interpretation of law, especially constitutional law, by a judge. The idea behind originalism is that a law must be interpreted from the viewpoints extant at the time of its inception and not those of the present day.

While not common in the rest of the Western world, originalism is popular with United States conservatives in general and conservative U.S. judges in particular. This can be best observed in the push for originalist judges to be nominated to positions where constitutional law cases will most likely be heard.

Why originalism?

Conservatives have grown fearful of conservative ideals losing their cultural place as a result of constitutional legal decisions that have been handed down in recent times due to modern interpretations of the constitution. They hope that if judges hold only to the original text and intentions of the laws when they were written, they may be able to better maintain their conservative ideals in society.

The general intent is to force originalist interpretations into all judicial decisions so as to limit the ability of judges to reinterpret the constitution to align with current societal thinking.

Problems with originalism

First Amendment

The First Amendment presents a real quandary for an originalist judge. The original interpretation, specifically, of the "free speech" is... particularly troublesome. Historically, at the time of the Bill of Rights' ratification, many states actively prohibited certain speech such as blasphemy and sedition. While the First Amendment did not apply to the states until its piecemeal expansion throughout the 20th century, state criminal prosecution of speech is problematic in the sense that originalism rests on the proposition that we have to get exactly into the heads of the Framers in order to understand what they produced.

Many of the states which prohibited the aforementioned types of speech also had provisions in their own state constitutions that protected freedom of speech. Thus, if the contemporary view at the time of the adoption of the Bill of Rights was that blasphemy, for example, was not speech, then judges today must not consider it as speech as envisioned by the First Amendment. Yay for liberty!

Moreover, around the time of the adoption of the Bill of Rights, there were also much broader traditions of press freedom as evidenced by writings of political leaders and the absence of prosecutions or civil actions for defamation in 18th century America.[1] Further, the Framers split on the issue of seditious libel (criticizing the government): some considered it protected to some point by the First Amendment, some did not, a dilemma evinced both by the opposition to the First Amendment by many of the Framers, and by the debate over the Alien & Sedition Acts of 1798. The issue was not definitely resolved until the 20th century, with the Holmesian revolution of First Amendment law. Holmes' interpretation of the First Amendment, and the liberalizing of the amendment, is a doctrine almost completely of judicial invention, created more in recognizance of what have become American values than what were American values, although it is consistent with the views of free expression widely expressed in 18th century America. This, clearly, is a great dilemma: supplemented by the fact that the text of the First Amendment.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press..."

... seems, textually, to compel a position more radical than most conservatives (and liberals) would take: absolute free speech[citation needed]. This conclusion is inescapable unless one admits that some texts - indeed, constitutional texts - require more nuanced analysis.

Eighth Amendment

The Eighth Amendment prohibits excessive bail fines and cruel and unusual punishment. Originalists have taken this to mean that it is okay to execute criminals since the death penalty was widespread in the 18th century. However, several other forms of punishment were also widespread at that time, such as public flogging or placing criminals in the stocks. Today, such punishments are considered very cruel and are very unusual (instead, we opt for the option of depriving people of their freedom for extended periods of time). Also, if one fails to adjust for inflation, the average bail fine today could be seen as excessive in the 18th century.

Ninth Amendment

The Ninth Amendment ensures that rights guaranteed in the Constitution are not the only rights that citizens can have. We don't have to explain what an originalist's take is on this.

Tenth Amendment

The Tenth Amendment reserves powers not granted to the federal government to the states. Although it is incredibly rare for a law to be struck down on the basis of the Tenth today[2] originalists and strict constructionists will often declare just about anything not specifically mentioned in the Constitution to be unconstitutional. See states' rights and the Tenther movement.

Criticism

"The government they devised was defective from the start, requiring several amendments, a civil war, and major social transformations to attain the system of constitutional government and its respect for the freedoms and individual rights, we hold as fundamental today."

—Thurgood Marshall

A significant problem with originalism, specifically relating to the Constitution of the United States, is that a document written in the 18th century cannot perfectly relate to the United States of the 21st century, so interpretation will always be required. In modern times, many issues come up which simply have no analog from the 18th century, and thus we must seek to guide ourselves, rather than trying to ask how dead men's opinions on other matters might tell us what to do.

Interestingly, asking one of those dead men (were it possible) would likely result in a response along the lines of "We already told you what to do," and point to Article 5, which had been put into the Constitution to specifically address this problem. and would be used quite a bit during the lifetimes of those original authors.

Ironically, in order to determine the "original intent" of the documents that are actually law, originalist scholars must resort to analyzing and interpreting many contemporary documents and papers of the principals involved in the process.

Legal scholar John Ely, author of Democracy and Distrust,[3] believes that originalism involves a certain requirement of lying to oneself, in that originalists support the theory because of the belief that, if nothing else, it is at least objective, and limits judicial activism or departure from established law. However, Ely notes that, since there are multiple versions of "tradition" and "original intent," and indeed multiple interpretations of history, originalism is inherently incapable of being as objective as it promises.

Hypocrisy

Don't expect to hear this drumbeat from an originalist on issues in which their positions run counter to the original intent of the Framers. For example, it has been historically understood that appointments to the Cabinet and judiciary are largely the president's prerogative, and the Senate's role, in confirming the president's nominations, is to weed out unqualified candidates. The practice of refusing to confirm nominees for not having the same political inclinations as the Senate's majority party is fairly clearly not the Framers' intent, but that doesn't stop Senate Republicans from leaving a host of positions unfilled even though they're the ones who typically bleat about "original intent."

(Now that Trump is POTUS Senate Democrats are also obstructing appointments for obviously political reasons, but, then, they're not the ones bleating about "original intent.")

 

[Rightguide]

Sometimes I think originalists only exist because American culture is so Protestant-Biblicist, always striving to get back to the pure primitive truth of the original text, which is usually a pointless and misguided exercise. "Sovereign Citizens" and "Freemen on the Land" spouting their insane pseudolegal interpretations of the "common law" are infected with the same disease; they assume the common law is something eternal and unalterable like natural law, therefore discoverable in its original uncorrupted form, when in fact the common law is the most alterable legal system in the world and has been since before the Norman Conquest, any judge can alter it.

Bullshit. It's the law of the land, it constrains the government like no other, and in the interests of our liberty, we want it adhered to. We have an elected legislation to make law. Unlike Democrats who can't sell their radical agenda to the electorate effectively through the democratic process and want judges to legislate from the bench, we, on the other hand, don't want an imperial unelected judiciary doing it for us.

 

[KingOrfeo]

Bullshit. It's the law of the land, it constrains the government like no other, and in the interests of our liberty, we want it adhered to.

Adhering to the Constitution does not necessarily mean interpreting it in the exact same way 18th Century jurists would have.

 

[about_average]

"In big win for Trump, Senate approves his conservative court pick" - Reuters

In what universe is needing to change Senate rules a "big win"?

Republicans have to proceed as Democrats would proceed and completely lock the Democrats out of their consideration in order to advance the agenda the Majority expressed at the polls. Pay them no mind and plow forth with the business of the elected President, like the Democrats did with Obama's agenda.

46% isn't a majority.

 

[Conager]

Adhering to the Constitution does not necessarily mean interpreting it in the exact same way 18th Century jurists would have.

Bullshit. Black letter law always has precedence.

I'd love to see you try and mofify a contract, telling a judge that in the 30 years since the contract was written we've come to understand things differently so we're going to take the words from 30 years ago and have them mean something new.

This particular contract even helpfully tells you how you can change it in all the clever little ways that you want to reinterpret it-it's called an amendment. Nothing short of an amendment can modify the contract.

 

[Conager]

. . . . .

 

[KingOrfeo]

Bullshit. Black letter law always has precedence.

That has always been a dubious concept in common-law jurisdictions.

If the legal systems of Europe based on Roman law are like the French language, all codified by some Academy and with, in principle, a right answer to every stylistic question, the common law of England grew up rather like the English language. Some authorities were more prestigious than others and there were general points on which everyone could agree, but the common law, like the language of the people who lived under it, allowed for numerous decision-makers and incremental innovations, which might survive in practice or be rejected. Judges made the common law, basing their opinions on the opinions of other judges, citing principles so ancient that the memory of man ran not to the contrary. Even today, when most important areas of law have been summarized in civil and criminal codes, still the codes usually just adopt one or another set of common law rules. And when judges in common law countries interpret those statutes, they look first to the opinions of other judges rather than at the text itself.

For judges in England and the United States before the middle of the last century, the idea that the same "common law" still somehow applied in both countries, and indeed in every state of the American union individually, did not pose a conceptual problem. When the American colonies removed themselves from the jurisdiction of the British Parliament, it never occurred to them that they might be removing themselves from the sway of the common law. Parliament had not made the common law, though of course it had influenced the common law's development throughout history. The common law was never thought to be coincident with the natural law, but the English jurists tended to assume that it had been informed by the natural law. Judges, guided by right reason, could develop existing common law rules to better conform to the natural law. This was how the judge Lord Mansfield finally abolished slavery in England in the late eighteenth century (in the 1830s parliament got around to outlawing it in the colonies). The judges who did this sort of thing said they were not making law, but discovering it. The common law was complicated and often obscure, it rules sometimes manifestly unjust. However, lawyers trained in the common law tradition seemed to always have at the back of their minds the assumption that the common law was the real law. What parliaments and legislatures might decree from time to time would of course be obeyed, but the statutory law that tried to change common law was strictly and suspiciously construed.

I'd love to see you try and mofify a contract, telling a judge that in the 30 years since the contract was written we've come to understand things differently so we're going to take the words from 30 years ago and have them mean something new.

A constitution is not a contract. A contract is a momentary arrangement for doing business, and is rarely in effect for 30 years anyway. It is not meant to set the political form and system of a whole society for the indefinite future.

 

[Rightguide]

That has always been a dubious concept in common-law jurisdictions.





A constitution is not a contract. A contract is a momentary arrangement for doing business, and is rarely in effect for 30 years anyway. It is not meant to set the political form and system of a whole society for the indefinite future.

It's not a suicide pact either.

 

[Rightguide]

"In big win for Trump, Senate approves his conservative court pick" - Reuters

In what universe is needing to change Senate rules a "big win"?


QUOTE=Rightguide;84818782]Republicans have to proceed as Democrats would proceed and completely lock the Democrats out of their consideration in order to advance the agenda the Majority expressed at the polls. Pay them no mind and plow forth with the business of the elected President, like the Democrats did with Obama's agenda.

46% isn't a majority.[/QUOTE]

Because today's Democrat Party has broken the Senate and the government. They have no respect for the legitimacy of the Consitution, the law of the land. They do not respect an election they didn't win, or the constituencies that oppose them. With them it's "resist." They want to destroy the constitutional order of the United States.

The majority as represented by the majority of state electors...as the Constitution requires.

 

[KingOrfeo]

Because today's Democrat Party has broken the Senate and the government. They have no respect for the legitimacy of the Consitution, the law of the land. They do not respect an election they didn't win, or the constituencies that oppose them. With them it's "resist." They want to destroy the constitutional order of the United States.

In those respects you know the Dems now are not one bit worse than the Pubs were under Obama.

 

[KingOrfeo]

It's not a suicide pact either.

Well, actually it is, because of a secret clause written in invisible ink and sealed with a kiss by "Studmuffin" Franklin and "Prettyboy" Madison, but less said of that the better.

 

[Conager]

In those respects you know the Dems now are not one bit worse than the Pubs were under Obama.

Absolute obstruction from a minority position because sour grapes is not at all the same as having been given BOTH chambers, having expressiy campaigned stop Obama's agenda.

No reasonable legal scholar asserts that Gorsuch was not a qualified nominee, no reasonable political pundit is suggesting his replacing Scalia tilts the court right.

No reasonable pundit suggested that Garland was an even exchange for Scalia.

The best part of the Dems pandering to the base and shooting their wad now, is that Cruz can now replace Ginsburg and there won't be a thing Dems can do about it. Even moderate Republicans who would have balked at exercising the Reid option of an UNEVEN exchange like that have political cover now.

 

[about_average]

Absolute obstruction from a minority position because sour grapes is not at all the same as having been given BOTH chambers, having expressiy campaigned stop Obama's agenda.

Voting no on a nominee is not "Absolute" obstruction.

“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,” an hour after a member of the supreme court dies then refusing to even allow a vote is "absolute" obstruction.

Now tell us about all the legal scholars who said Garland wasn't qualified.

 

[4est_4est_Gump]

Voting no on a nominee is not "Absolute" obstruction.

“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,” an hour after a member of the supreme court dies then refusing to even allow a vote is "absolute" obstruction.

Now tell us about all the legal scholars who said Garland wasn't qualified.

Tell us, would you have been happier had they done the Kabuki, held hearings and then voted no?

President Obama got to fill two vacancies and his two picks proved with their political activism on the bench that he should not be given a third pick under any circumstance.

 

[RobDownSouth]

President Obama got to fill two vacancies and his two picks proved with their political activism on the bench that he should not be given a third pick under any circumstance.

Just like the Constitution proscribes, right Sensei Shitstain? "Two strikes and you're out, and no Negro president nominations in the final year of a term!"

Why do you hate America? Is it because the Marines kicked you out for sucking dick in the pre-Don'tAskDon'tTell era?

 

[Christobal]

That has always been a dubious concept in common-law jurisdictions.





A constitution is not a contract. A contract is a momentary arrangement for doing business, and is rarely in effect for 30 years anyway. It is not meant to set the political form and system of a whole society for the indefinite future.

What amount of time do you think the average house purchase is? I'll answer. 30 years.

 

[Adre]

Tell us, would you have been happier had they done the Kabuki, held hearings and then voted no?

Well, look who stumbled right into the correct scenario. Yes, Tubby, you hold a hearing so that you can hear from the nominee. That's sort of the point ya know?

 

[RobDownSouth]

What amount of time do you think the average house purchase is? I'll answer. 30 years.

I purchased a house in a month.
Paid it off over 30 years, granted, but "purchase" =/= "payment".

 

[Christobal]

I purchased a house in a month.
Paid it off over 30 years, granted, but "purchase" =/= "payment".

That would be a 30 year contract. Pretty normal.

 

[Conager]

Well, look who stumbled right into the correct scenario. Yes, Tubby, you hold a hearing so that you can hear from the nominee. That's sort of the point ya know?

No one cares what the noninee says. You hold the hearings so the Senstors can bloviate and be seen on TV.