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This is a live, actual feed from the US Senate. Irony is dead, self-awareness is dead. Let none of us ever be fooled into thinking the GOP and any of its candidates are anything but the full-on enemy ever again. edit: he can't loving stop quote:Alexander Hamilton would be rolling over in his grave based on the state of the confirmation process, says Graham. edit 2: Let's dodge questions by appropriating language we've criticized the left for using! Checkmate, libtards  quote:Graham: Are you an originalist? Potato Salad fucked around with this message at 15:43 on Mar 22, 2017 |
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Mar 22, 2017 15:40
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On the first day of the hearings, Graham said both that it was okay that the republicans didn't consider garland bc the dems would do the same and that it was a shame that the Supreme Court picks had become so politicized Graham is a shithead as usual
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Mar 22, 2017 15:42
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Leahy now talking about lack of any higher authority over the SCOTUS to review recusals So, from reading transcripts of yesterday and today, I find that Goresuch's ubiquitous answer of "It depends on the facts of the case" in response to ideological questions refradmed as review of his record in the 10th circuit and subsequent utter refusal to discuss how he interpreted those facts on any level farther than "read my assent / dissent" is trying to hide something from more than just the left. Is he trying to avoid having the christian conservative right call for Trump yanking Goresuch at the last second due to perceived weakness on reversing Roe? His language is fascinating when he gets into detail but so loving frustrating when it comes to guessing what he's going to do to human rights. SCOTUSblog has run several pieces reviewing his stance on contentious amendments and theories, and the answer has been "Well, he's definitely a Federalist and originalist, he is liable to gently caress you if you're poor, but he's hit the mark frequently enough that we just don't know." This just isn't the goddamn kind of uncertainty we (the set of modern, humane loving persons in the States)need this many decades into the fight for actual equal protection, voting rights, and what are accepted as human rights in much of the rest of Western loving Civilization. I look back at exit polling from the General Election and  at the notion that it was R voters who ranked the SCOTUS pick high on their list of considerations.
Potato Salad fucked around with this message at 16:03 on Mar 22, 2017 |
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Mar 22, 2017 15:47
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Discendo Vox, what do you think about this piece laying out why the author thinks Originalism is bunk? Honestly, the only good that could come of this would be McConnell going nuclear to confirm Gorsuch. At least then my PredictIt shares pay out.
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Mar 22, 2017 16:01
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Rygar201 posted:Discendo Vox, what do you think about this piece laying out why the author thinks Originalism is bunk? Honestly, Goresuch is probably the absolute best candidate you could expect from this adminstration. If he gets Borked somehow I full expect Trump to nominate his daughter or some dumb poo poo like that.
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Mar 22, 2017 16:08
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^^^^ Ivanka is nominally pro-LGBT, or at least not rabidly against the existence of gay people, so she'd be far to the left of Gorsuch on social matters. She'd be even more pro-business though. I'd rather see him nominate his own sister, though she'd be the oldest nominee for SCOTUS by a large margin IIRC.Potato Salad posted:Leahy now talking about lack of any higher authority over the SCOTUS to review recusals Roe isn't getting reversed until Kennedy or one of the liberals gets replaced by Trump, or Kennedy suddenly decides he wants to outlaw abortion. Evil Fluffy fucked around with this message at 16:16 on Mar 22, 2017 |
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Mar 22, 2017 16:13
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So is this person (who iirc has a background in law) correct in his assessment?quote:They're not that different. And Schumer and Biden, at least, publicly said that they should do it if a SCOTUS vacancy came up in the last year of both Bush presidencies. Schumer lamented not working harder on the filibuster of Alito (a filibuster denies a nominee an up or down vote). My thoughts on this are: 1. Didn't Obama get a bunch of confirmations through only because Ted Cruz screwed up with his showboating? 2. Isn't this argument essentially "The Democrats did it first/did it too"? 3. What is the claim about how there's nothing "Magic" about SCOTUS nominees? Aren't they the final say? Isn't there a higher degree of tradition/norms about them supposed to be a-political versus the lower courts? 4. Didn't John Oliver go through each of the arguments about "precedent" about blocking Supreme Court nominees for the last 50 something years and none of them apply to Obama?
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Mar 22, 2017 16:13
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Rygar201 posted:Discendo Vox, what do you think about this piece laying out why the author thinks Originalism is bunk? The question won't come down to McConnell going nuclear or not. Enough Dems will cross over to make any question on what McConnell would do moot. Nitrousoxide posted:Honestly, Goresuch is probably the absolute best candidate you could expect from this adminstration. It's why I was surprised to see Goresuch selected. I do not know whether Goresuch has conservatives who actually care about pulling reproductive rights squirming a bit. More with Leahy / Goresuch. Read this from bottom to top quote:Gorsuch: They don't speak for me, and I don't speak for them. Slippery motherfucker will not loving comment on the elephant(s) in the room, and its giving me queasy, unfounded hope that Gorsuch will not destroy voting rights and human rights. There is no basis for that hope other than my brain's desire not to panic. If he intends to yank human rights and let the GOP hard-counter ballot access, this walk-the-line silence will let enough spineless Dem Senators cross the line to let him through. If Gorsuch's thoughts on Roe and the VRA are favorable for voting rights and reproductive rights, then he's a trojan horse avoiding backlash from Breitbart and FOX until it's too late and he's approved. I am so loving sick of these games. It is utterly loving despicable that we are even considering touching on these issues with any prospective outlook other than expanded personal liberty in the Year of Our Lord 2017. Potato Salad fucked around with this message at 16:26 on Mar 22, 2017 |
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Mar 22, 2017 16:14
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I may be pickled in the USPol cesspit and an unreconstructed cynic on this, but the slipperiness and non-answer/punting responses are, to me, textbook political triangulation. It was particularly blatant in North Carolina, but similar tactics were used in places like Wisconsin and in senate races all over - you basically punt on everything, defer to process or 'the law over my personal opinions' so that you don't piss too many people off, and then once you're elected just tear through the place like a buzzsaw. Gorsuch's decisions aren't always a good way to get a feel for his theory, but these hearings are more than enough to sow massive distrust since he's straight up not answering anything. Everyone I've seen doing that has gone on to be a complete dirtbag in office, though it's all been elected officials and not a SCOTUS justice.
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Mar 22, 2017 16:34
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quote:Durbin: We are trying to figure out what you are really like, in essence. What made your record so attractive to the Heritage Foundation and Federalist Society? 
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Mar 22, 2017 16:37
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I'm not an American legal scholar so happy to be corrected but coming from the UK, Originalists seem pretty scary radical to me as a judicial philosophy. At its core it's a rejection of common law and stare decisis, it basically relegates precedent and the most fundamental principles of common law to cases where the wording of the Constitution and laws don't directly apply. Which is probably not the majority. If fully applied generally it would make legal outcomes dependent on which judge you got because of they read a law as saying X they should totally ignore that everyone has treated it as saying Y for the history of the law. It's utterly radical and seems like a pretty massive shift from how law has operated in the US since its founding. How the gently caress does such a philosophy get labelled conservative when it's throwing out one of the longest existing principles of government?
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Mar 22, 2017 16:48
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There's good reading in the OP that will illuminate how originalism and (slightly unrelated) the Federalist Society gained mindshare in legal education. tldr: $$$$$ Potato Salad fucked around with this message at 16:55 on Mar 22, 2017 |
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Mar 22, 2017 16:53
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Maybe i should rephrase, i get why it is attractive from a political viewpoint how there are political and financial pressures in the US judicial system we don't have to anything like the same degree in the UK. I was seeking to check if my understanding of originalism was broadly correct and if it was, how does that come to be labelled a conservative judicial philosophy? It's radical, like super radical. I've always had a great sympathy for Burkean conservatism and i cannot reconcile in any way with wanting to throw out the whole foundation of Common Law.
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Mar 22, 2017 17:02
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MrNemo posted:Maybe i should rephrase, i get why it is attractive from a political viewpoint how there are political and financial pressures in the US judicial system we don't have to anything like the same degree in the UK. I was seeking to check if my understanding of originalism was broadly correct and if it was, how does that come to be labelled a conservative judicial philosophy? It's radical, like super radical. I've always had a great sympathy for Burkean conservatism and i cannot reconcile in any way with wanting to throw out the whole foundation of Common Law. American conservatives don't give a gently caress about principals, only achieving their goals. Originalism is, almost entirely*, a stalking horse for just achieving the goals of movement conservatives. *One Justice Thomas excepted.
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Mar 22, 2017 17:04
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The article is poo poo, I dunno why I approved it. Like it critiques all originalists of doing(and like, in practice, virtually every legal academic does), it starts with its conclusions and then works backwards from there.MrNemo posted:I'm not an American legal scholar so happy to be corrected but coming from the UK, Originalists seem pretty scary radical to me as a judicial philosophy. At its core it's a rejection of common law and stare decisis, it basically relegates precedent and the most fundamental principles of common law to cases where the wording of the Constitution and laws don't directly apply. Which is probably not the majority. It's not fully applied generally. It's usually a theory of constitutional interpretation, not general statutory interpretation, which has different connotations for the role of precedent. It's also not particularly radical (unless you're on SA). People really want originalism to be illegitimate right now because they don't have a good way to attack Gorsuch or prevent his confirmation. While it's true that a particular form of it has been beneficial to conservatives (under one definition of conservatism) thanks to the Federalists and Scalia in the past couple decades, that's basically not relevant to what the underlying legal philosophical theories are or how they work. Meanwhile, Potato Salad is freaking out about a SCOTUS confirmation that's identical to every one we've had from both parties for decades. Discendo Vox fucked around with this message at 17:28 on Mar 22, 2017 |
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Mar 22, 2017 17:20
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MrNemo posted:Maybe i should rephrase, i get why it is attractive from a political viewpoint how there are political and financial pressures in the US judicial system we don't have to anything like the same degree in the UK. I was seeking to check if my understanding of originalism was broadly correct and if it was, how does that come to be labelled a conservative judicial philosophy? It's radical, like super radical. I've always had a great sympathy for Burkean conservatism and i cannot reconcile in any way with wanting to throw out the whole foundation of Common Law. It's not that it's conservative in a judicial or legal sense, it's that it tends to lead to conservative political outcomes and roll back more recent constitutional protections and legal developments.
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Mar 22, 2017 17:34
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FAUXTON posted:I may be pickled in the USPol cesspit and an unreconstructed cynic on this, but the slipperiness and non-answer/punting responses are, to me, textbook political triangulation. It was particularly blatant in North Carolina, but similar tactics were used in places like Wisconsin and in senate races all over - you basically punt on everything, defer to process or 'the law over my personal opinions' so that you don't piss too many people off, and then once you're elected just tear through the place like a buzzsaw. He knows the hearing is entirely for show because the GOP is going to confirm him and the Democrats have no ability to prevent it. Nothing short of him announcing unwavering support for women's choice and gay rights will change the outcome.
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Mar 22, 2017 17:50
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Originalism, despite its use across the country and on the SCOTUS is just code word for return to when white landowners had almost all the power. Clarence Thomas is actually a Kaufmanesque actor demonstrating the absurdities in theory.
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Mar 22, 2017 17:56
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Mr. Nice! posted:Originalism, despite its use across the country and on the SCOTUS is just code word for return to when white landowners had almost all the power. Clarence Thomas is actually a Kaufmanesque actor demonstrating the absurdities in theory. It's code for actually following the legitimate rules of our government, which happened to have been established by white landowners after a violent revolution gave them the power to establish those rules. The honest path for those who dislike the rules seems clear.
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Mar 22, 2017 17:59
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Discendo Vox posted:Meanwhile, Potato Salad is freaking out about a SCOTUS confirmation that's identical to every one we've had from both parties for decades. It is worth freaking out over. Last time we had an R president + R congress + R courts all at the same time, we started facially violating statutes and international law on detention and torture, saw securities markets explode, and got embroiled in a war that's incurred unbelievable debt and arguably accelerated the destabilization of a segment of the planet. It is sensible and right to be freaking out about a SCOTUS pick that's walking the line in juuuust a right way such that a few Dem senators are likely to flip and let him in. After the theft of the seat. By the same party responsible for the above. Get over the idea that any of this is normal or not worth freaking out over. Meanwhile, in SCOTUSland, read from bottom to top. quote:Whitehouse: You say that Congress can demand disclosure. Once you let certain political interests achieve the kind of dominance that Citizens United allows, they start to have disproportionate influence over Congress, and that won't happen. Potato Salad fucked around with this message at 18:06 on Mar 22, 2017 |
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Mar 22, 2017 18:01
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Main Paineframe posted:It's not that it's conservative in a judicial or legal sense, it's that it tends to lead to conservative political outcomes and roll back more recent constitutional protections and legal developments. It leads to some incredibly tortured readings of the founders' writings and contemporary legal decisions, where they mostly take the founders' opinions that agree with theirs and explain away as irrelevant the ones that don't.
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Mar 22, 2017 18:03
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EwokEntourage posted:On the first day of the hearings, Graham said both that it was okay that the republicans didn't consider garland bc the dems would do the same and that it was a shame that the Supreme Court picks had become so politicized They don't only have to steal the seat in a shameless and despicable manner that will taint the court forever. They have to pretend like it never happened too and clutch their pearls about politicization. Any democratic senator that votes for a republican president's SCOUTS nominee from now on should be primaried.
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Mar 22, 2017 18:04
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Not an hour ago, Gorsuch and his interviewers were discussing how even Correction, this was the line: quote:[Graham is decrying the deterioration in the confirmation process, from when Scalia and Ginsburg were confirmed with 98 and 96 votes, to today . . . . ] It's even more  than I remembered
Potato Salad fucked around with this message at 18:22 on Mar 22, 2017 |
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Mar 22, 2017 18:11
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Republicans follow "you gotta make sure you hurt them before they hurt you, because you know if you were them, it's what you'd do" in every aspect of life, from parliamentary tactics to pre-emptive strikes on countries with alleged WMDs. Democrats follow "when you see a bear, you should lie down and play dead so that instead of mauling you to death, it'll walk away".
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Mar 22, 2017 18:42
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Discendo Vox posted:People really want originalism to be illegitimate right now because they don't have a good way to attack Gorsuch or prevent his confirmation. While it's true that a particular form of it has been beneficial to conservatives (under one definition of conservatism) thanks to the Federalists and Scalia in the past couple decades, that's basically not relevant to what the underlying legal philosophical theories are or how they work. 1) that we can reconstruct the mindset of the authors of the Constitution (and do so without going into actual primary sources in depth and full context, using historical research performed by experienced and trained historians and instead often just keyword-searching for useful out-of-context snippets), and 2) that what they meant (or how people at the time would have interpreted it) should take precedence over existing case law or modern interpretations of what Hamilton called the "manifest tenor" of the Constitution. This despite the Founding Fathers clearly not intending that we interpret the Constitution that way, nor was this type of interpretation actually used by the original Supreme Court justices back when they could have just asked Hamilton et al what they meant by this or that. Your defense of originalism seems to be "no you're ignoring [something] and also it's deeper and smarter than you're presenting, and often it's used in innocuous and subtle ways," but you're not actually bothering to present any of these deeper or smarter arguments. Do you even have any book recommendations or such for those of us who are generally open to reading alternate arguments? Meanwhile, the "particular form" people are discussing is the one on the table, the one promoted by rabidly political actors who have spent decades building power in the judiciary to the extent that this extremist (version of the) philosophy has several adherents on the Supreme Court. It's led to several truly terrible decisions that impact everyone. It's a big deal.
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Mar 22, 2017 18:51
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Discendo Vox posted:The article is poo poo, I dunno why I approved it. Like it critiques all originalists of doing(and like, in practice, virtually every legal academic does), it starts with its conclusions and then works backwards from there. The democrats can't stop Gorsuch but the seat being stolen makes every other reason to oppose him (and there are many starting with his horribly regressive world view) moot.
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Mar 22, 2017 18:55
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Let us dispense with the idea that the political left is only upset with Originalism out of convenience.
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Mar 22, 2017 19:11
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Worth noting that Democrats can have up to 7 deserters on cloture.
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Mar 22, 2017 19:12
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WhiskeyJuvenile posted:Worth noting that Democrats can have up to 7 deserters on cloture. And they should have a few. Joe Manchin should vote for cloture, as should Claire mccaskill.
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Mar 22, 2017 19:14
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If we can't stop 8 Dems from voting for cloture we're useless as a party and as a movement.
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Mar 22, 2017 19:23
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Franken: If there are no Democratic or Republican judges, what was Merrick Garland about?
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Mar 22, 2017 19:35
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Potato Salad posted:Franken: If there are no Democratic or Republican judges, what was Merrick Garland about? Oh poo poo he said the quiet part loud
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Mar 22, 2017 19:37
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Potato Salad posted:Franken: If there are no Democratic or Republican judges, what was Merrick Garland about? “It was about letting the American people decide. They rejected Crooked Hillary and Stupid Garland.”
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Mar 22, 2017 19:37
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I used to hate Al Franken. Following is from Salon so it's aggrivated as hell, but goddamn, this exchange from yesterday. https://www.salon.com/2017/03/22/al-frankens-grilling-of-gorsuch-exposes-the-heartless-cruelty-behind-conservative-legal-philosophy/ quote:“But the plain meaning rule has an exception,” Franken continued. “When using the plain meaning rule would create an absurd result, courts should depart from the plain meaning,” he said. “It is absurd to say this company is within its rights to fire him because he made the choice of possibly dying from freezing to death or causing other people to die possibly by driving an unsafe vehicle. That’s absurd.” Platystemon posted:“It was about letting the American people decide. They rejected Crooked Hillary and Stupid Garland.”  *loses popular vote by millions* Potato Salad fucked around with this message at 19:55 on Mar 22, 2017 |
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Mar 22, 2017 19:50
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Potato Salad posted:I used to hate Al Franken. How could you possibly ever hate Al Franekn? He rules and has always ruled.
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Mar 22, 2017 19:52
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Al Franken 4 Prez Jokers Wild
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Mar 22, 2017 19:58
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Academician Nomad posted:This is a stupid non-argument. It's illegitimate now (and always has been) because it's founded upon illegitimate principles, Because Discendo Vox posted:All of the jurisprudential theories are based on fundamentally invalid foundations, depending on the criteria of evaluation. It doesn't get you to Academician Nomad posted:Admitting to being an originalist should itself be grounds to keep someone off the court (really any court). Formalism, textualism, realism etc have similar problems that are more or less severe depending on how you weigh the criteria of what jurisprudence ought to do. These problems are generally parallel to broader issues of rhetorical theory or the elements of the problem of induction. They're a collection of rhetorical techniques for justifying outcomes, not scientific methods. The fact that Republicans have been using one of those methods recently to the near-exclusion of all the others doesn't make it a special sign that someone can't be a judge. As you continue to burden shift, move goalposts and cite to law review articles written after Scalia joined SCOTUS, let me give you a useful piece of information about law review articles in legal theory argumentation: they're almost universally low-quality arguments in service of particular outcomes, and nigh-worthless to cite in argument. The ones you are citing now aren't an exception. Law review articles, and legal academic writing from within the field generally, is really bad. The fact that you get waves of reactionary academic writing whenever a particular theory becomes more influential doesn't help your argument in any way. Discendo Vox fucked around with this message at 20:09 on Mar 22, 2017 |
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Mar 22, 2017 20:05
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Discendo Vox posted:As you continue to burden shift, move goalposts and cite to law review articles written after Scalia joined SCOTUS, let me give you a useful piece of information about law review articles in legal theory argumentation: they're almost universally low-quality arguments in service of particular outcomes, and nigh-worthless to cite in argument. The ones you are citing now aren't an exception. Law review articles, and legal academic writing from within the field generally, is really bad. The fact that you get waves of reactionary academic writing whenever a particular theory becomes more influential doesn't help your argument in any way. Generally speaking it's lovely to just quote out some 20 book bibliography in an Internet argument. You can't get anywhere because the other person's not realistically going to have time/access to get to them. Law review articles are shorter, if obviously less rigorous, and these weren't behind a paywall. I guess I could go find blog posts or podcasts or something? Or just go without any longer-form expositions at all? Or is all discussion of legal philosophy of Supreme Court nominees simply futile in the SCOTUS thread? Academician Nomad fucked around with this message at 20:34 on Mar 22, 2017 |
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Mar 22, 2017 20:22
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Why originalism is super duper awesome, 16 CALIFORNIA STRIP MALL SCHOOL OF LAW AND PEST CONTROL 152 (May 2012).
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Mar 22, 2017 20:29
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Academician Nomad posted:Jesus Christ I wasn't citing them as some kind of checkmate appeal-to-authority. I thought they were a decent exposition of some arguments I find convincing. But I guess we can skip any kind of merits of the case because you don't like legal writing? When your starting position is "the entirety of one of the most popular schools of constitutional interpretation is garbage and no one who agrees with it should be a judge", there's not much merit to find. And you're not going to get to that merit by citing law review articles. The arguments you cite either don't really apply to originalism as a whole body of theory unless you've already decided to condemn it (your first point) or commit the same fallacies you claim make it uniformly worthless (your second point). Both rely on selective citation and aren't able to address the other side of the induction issue, which is the role that the text of the constitution ought to play in its own interpretation. The induction issue can't actually be solved. It's a fundamental problem of epistemic philosophy. All of the arguments of statutory and constitutional interpretation are methods of justification, and all of them have these problems. Which is why your original claim is so nuts. EwokEntourage posted:Why originalism is super duper awesome, 16 CALIFORNIA STRIP MALL SCHOOL OF LAW AND PEST CONTROL 152 (May 2012). Yes, basically. Law review is pretty much the lowest form of all academic discourse, for a whole array of reasons. There can be good writing in a law review, but it's incidental to the process and setting- and it's usually there because the author has training in another field, and the article still isn't of high enough quality to get published elsewhere, or is a draft. Discendo Vox fucked around with this message at 20:40 on Mar 22, 2017 |
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Mar 22, 2017 20:37
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