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Amy Coney Barrett: Who is Trump's Supreme Court pick?:
Amy Coney Barrett's nomination to the US Supreme Court comes as little surprise.
[...] Donald Trump - who as sitting president gets to select nominees - reportedly once said he was "saving her" for this moment: when elderly Justice Ruth Bader Ginsburg died and a vacancy on the nine-member court arose.
It took the president just over a week to fast-track the 48-year-old conservative intellectual into the wings. This is his chance to tip the court make-up even further to the right ahead of the presidential election, when he could lose power.
Barrett's record on gun rights and immigration cases imply she would be as reliable a vote on the right of the court, as Ginsburg was on the left, according to Jonathan Turley, a professor of law at George Washington University.
"Ginsburg maintained one of the most consistent liberal voting records in the history of the court. Barrett has the same consistency and commitment," he adds. "She is not a work-in-progress like some nominees. She is the ultimate 'deliverable' for conservative votes."
And her vote, alongside a conservative majority, could make the difference for decades ahead, especially on divisive issues such as abortion rights and the Affordable Care Act (the Obama-era health insurance provider).
Barrett's legal opinions and remarks on abortion and gay marriage have made her popular with the religious right, but earned vehement opposition from liberals.
But as a devout Catholic, she has repeatedly insisted her faith does not compromise her work.
Senate Majority Leader Mitch McConnell (R-Kentucky) is facing considerable controversy about his plans to move the nomination forward quickly:
"President Trump could not have made a better decision," Sen. Mitch McConnell, R-Ky., the majority leader, said in a statement. "Judge Amy Coney Barrett is an exceptionally impressive jurist and an exceedingly well-qualified nominee to the Supreme Court of the United States."
He added: "First, Judge Barrett built a reputation as a brilliant scholar at the forefront of the legal academy. Then she answered the call to public service. For three years on the Court of Appeals for the Seventh Circuit, she has demonstrated exactly the independence, impartiality, and fidelity to our laws and Constitution that Americans need and deserve on their highest Court... As I have stated, this nomination will receive a vote on the Senate floor in the weeks ahead, following the work of the Judiciary Committee supervised by Chairman Graham."
This is in sharp contrast to McConnell's actions following US Supreme Court Justice Antonin Scalia's passing away on February 13, 2016. McConnell waited less than 2 hours to make the first of 5 statements to urging delay in nominating a new Supreme Court justice:
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
That statement was made with 342 days (over 11 months) remaining in Obama's term as President. There are 124 days (just over 4 months) remaining before the end of Trump's term.
President Obama nominated Judge Merrick Garland to fill the vacancy. Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) followed McConnell's lead and never allowed the confirmation process to begin. Thus, no nomination was ever brought to the Senate floor and thereby leaving the vacancy open.
(Score: 3, Informative) by Anonymous Coward on Sunday September 27 2020, @09:03PM (21 children)
Not even Scalia and Thomas judge based on what the law says. Scalia, for example, said the interpretation of law should be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text. Hence his famous use of historical dictionaries. And Thomas interprets it based on what he thinks the drafters meant when they wrote it. Both of those can mean subtly or radically different things than what it says on its face, especially to a modern reader.
(Score: -1, Troll) by Anonymous Coward on Sunday September 27 2020, @11:28PM (19 children)
You end up with the quandary: do you try to interpret the past intent, as of the time of writing the law, or re-interpret it based on the shifting sands of language?
Crazy rightwingnut fascists like Thomas and Scalia go for past intent. Regardless of how they seek to achieve that, this is what they're doing. Obviously (it's been over two centuries since the constitution was drafted) that is different from today's language.
RBG & co. are more interested in what we'd think it would mean today. That's the whole "living document thing".
Thus, as the G-GPP suggested, judging what the law says depends very much on whether you're a retrograde, radical reactionary fascist (i.e. trying to interpret the intent of the authors) or, y'know, not.
(Score: 2, Informative) by khallow on Monday September 28 2020, @12:32AM (14 children)
Sounds like someone needed to read some 1984. If you can control the language, you then can control a living document.
(Score: 3, Insightful) by hemocyanin on Monday September 28 2020, @12:56AM (1 child)
This is fair.
It is a problem that the court is taking sides on political issues. The big one, abortion, would be better handled by Congress for a couple reasons. First, Congress better represents the constituents but even more, it would take this partisan focus off the court where justices have to be selected by ideology rather than skill. It is the latter side effect of an activist court that is so poisonous to our political system and it comes up every year -- "you have to vote for this bloodthirsty wall street whore (yes, talking about HRC) because SCOTUS!!!" Yeah fuck that -- wouldn't it be better if SCOTUS wasn't legislating from the bench and Congress did the legislating? But as usual, Congress is content to let the Executive usurp war powers and SCOTUS usurp legislative powers because they individual congresspeople don't want to be held accountable for their votes.
Anyway, the side effect of activist courts is playing out in a very toxic manner right now and that should itself be seen as a reason why judicial activism is to be avoided.
(Score: 3, Informative) by Runaway1956 on Monday September 28 2020, @01:19AM
It's a full time job to chase the pork, and sell your influence to the highest bidders. There's not much time left over to actually legislate. In fact, some of that legislation requires research and no congress critter has that much time!
Abortion is the number one killed of children in the United States.
(Score: 2) by dry on Monday September 28 2020, @02:21AM (11 children)
Things change. Like what is cruel and unusual punishment. Does speech include all expressions. Does papers include emails.
Ideally the Constitution would be updated periodically but Americans treat it like a holy document with the priests being the Supreme Court Justices.
In Canada, we had a case back in the '20's where the question came up whether a woman could be a Senator. Constitution said only persons could be a Senator and described a person as male. It went to the House of Lords in the UK before it was ruled that the Constitution was a living document and now a woman is also a person.
Now we get our Supreme Court doing things like striking down 3 strike laws that would put a shoplifter in prison for life due to our right not to have cruel and unusual punishments.
(Score: 1) by khallow on Monday September 28 2020, @01:36PM (10 children)
My take is that those terms are intentionally broad, precisely to allow such latitude. Exacting definitions allow for lots of exceptions.
But what really needs to be updated? You mention a few definitions which haven't really changed.
Should have been done via amendment. Because tomorrow, "persons" may be redefined yet again.
Bad definitions aren't improved by letting them linger. Here, persons never meant "male". It was a legal context that needed to be removed, not ignored.
(Score: 2) by dry on Tuesday September 29 2020, @01:57AM (9 children)
Well, just a couple of years back, some originalist on your court made a ruling based on how cruel and unusual punishment had to be taken in an 18th century context. Forget if it was about torturing a person to death or excessive solitary. A century ago, rulings were made about telephone conversations not being covered by the 4th as there were no telephones in the 18th century. That ruling was eventually overthrown by a living document type Judge.
The point of that ruling was that that part of the Constitution didn't actually specify sex, just qualified persons and that in 1867 it was considered that only males were persons (I misremembered) and that was how the originalist Supreme Court ruled.
As at the time only the UK Parliament could amend that part of the Constitution, a court case going all the way to the Privy Council was one way to change things. Lobbying the UK Parliament also may have worked as this was after the Balfour Declaration but really it would have had to be the government lobbying for the change whereas our Constitution allows a group of 5 to petition to have standing to ask the Supreme Court to rule on a Constitutional issue.
Interesting parts of the ruling,
From https://www.thecanadianencyclopedia.ca/en/article/persons-case [thecanadianencyclopedia.ca]
Canada has always had problems with amending the Constitution, took us over 50 years just to repatriate it after the UK encouraged us to. Trudeau finally forced it through in 1982 with the Constitution Act 1982, passed by the UK and Canadian Parliaments. Even now it is a can of worms to try to amend it, what with Quebec never signing on and our nature of 2 nations.
(Score: 1) by khallow on Tuesday September 29 2020, @01:05PM (8 children)
Doesn't sound like much of a problem to me, especially given the many abuses of the living document interpretation. For example, the hubbub over the Second Amendment, undermining of the Tenth Amendment (deciding that the federal government suddenly has more powers), or the development of a pretty unqualified qualified immunity. You can think of cases where originalism doesn't work? I can think of cases where living document doesn't work.
So amendments are hard? That's the point. I was reading about Austria's government, which has a pretty lax process for amendment in comparison. They already had one serious failure - the takeover of Austria in 1933 by Fascists.
(Score: 2) by dry on Friday October 02 2020, @04:29AM (7 children)
Those aren't examples of a living document, rather examples of totally changing the Constitution. Living document might give the argument that nukes aren't arms, or more likely that the right includes women, or people that aren't qualified for the militia, but the 2nd has been totally perverted.
I also note that the originalists have no problem with changing " the right of the people to keep and bear Arms, shall not be infringed." to " the right of some of the people to keep and bear some Arms in certain places, shall not be infringed."
The changes that the 10th should have stopped, I guess are mostly a result of your civil war. Civil war is always a fuck up. Funny enough Canada was a result of your civil war, created with a strong central government, and since the courts have consistently given the Provinces more power based on a couple of interpretations of things like civil rights and property rights management.
Some amendments are hard, others are easy. Newfoundland had no problem getting the Constitution amended to become Newfoundland and Labrador", just took the agreement of 2 legislatures. One difference here is our Constitution is spread across various documents and partially unwritten. The point I was making was why the UK was in charge of amending our Constitution for about half a century too long, namely no agreement about how. Now it varies from really easy like a name change to a little harder like a Provincial boundary change to hard (7/50 rule, 7/10ths of Provinces with 50% of population) like changing rights, to really hard (100%) to change the fundamental government or a Province to secede.
You're right that fundamental changes should be hard. Otherwise you get like Brexit where the vote was statistically a tie.
(Score: 1) by khallow on Friday October 02 2020, @12:37PM (6 children)
Saying it doesn't make it so. To the contrary these are examples. That's what a living document interpretation does. It changes the constitution. Whether the pretext for that change is to adapt to a present situation or reality, is merely a matter of spin.
There's no criteria other than highly subjective ones for what is a living document interpretation.
(Score: 2) by dry on Saturday October 03 2020, @03:44AM (5 children)
So you are saying that when society now considers a woman a person, the Constitution can't be interpreted that way?
Or in the case of the 2nd, when poison gas was oulawed by treaty, the right of the people to possess poison gas should have remained?
(Score: 1) by khallow on Saturday October 03 2020, @04:34AM (4 children)
Society considered a woman a person back then too.
(Score: 2) by dry on Saturday October 03 2020, @03:44PM (3 children)
No it didn't, women had restricted rights compared to a full person, with first their father then their husband responsible for the woman instead of her being responsible for herself. Legally they were not full persons but rather similar to a child, with restricted rights.
(Score: 1) by khallow on Sunday October 04 2020, @01:28PM (2 children)
(Score: 2) by dry on Sunday October 04 2020, @04:52PM (1 child)
Well, we can call a dog a person, it doesn't mean that they have the rights that go with being a person.
(Score: 1) by khallow on Monday October 05 2020, @01:12AM
Sure, we can call a dog a person, but we don't.
(Score: 0) by Anonymous Coward on Monday September 28 2020, @07:48PM (3 children)
what a stupid fuck. of course you base the interpretation on what it meant in the beginning. otherwise, you might as well ignore it altogether. ridiculous logic.
(Score: 0) by Anonymous Coward on Tuesday September 29 2020, @05:55AM (2 children)
Then your phone calls can be recorded by the government at will because they aren't your "persons, houses, papers, and effects."
(Score: 1) by khallow on Tuesday September 29 2020, @01:11PM
What is the reason that a "living document" judge would rule the above way? Originalist arguments are limited by what the laws actually say. They could have instead ruled that phone communications (and indeed all communication) was legal to monitor without warrant because that's the new norms of the land. That sort of nebulous reasoning is a serious problem in today's world.
(Score: 0) by Anonymous Coward on Tuesday September 29 2020, @06:28PM
i said "what it ****meant****"! not what exact words were used for what specific examples of the concept were in question when it was written. They made a long fucking list of stuff for a fucking reason. To get the goddamn point across. Now people want to act like they don't understand the point because $new_thing is not on the list. It's transparent bullshit. This whole subject is completely obvious, yet some people can't be honest about anything.
(Score: 0) by Anonymous Coward on Monday September 28 2020, @08:09PM
"And Thomas interprets it based on what he thinks the drafters meant when they wrote it. Both of those can mean subtly or radically different things than what it says on its face, especially to a modern reader."
Except of course the meaning of "people" in "we the people". In which case they are more than happy to defer to a magic eight ball.