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I think we may have found the next Supreme Court nominee
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Idiocracy feels like a reality that is going to happen.
I think we could do worse, honestly. She was an effective criminal justice reform advocate.
Well, we definitely could do worse, and I’m sure our President-elect will make every effort to do so.
The Constitution does not specify any formal requirements for becoming a Supreme Court Justice, such as age, education, or even citizenship, so it could be a cushy retirement gig for Vladimir Putin.
So a good move for Trump would be to nominate Putin, then offer Gaetz as an alternative when the Senate raises a fuss. Gaetz won’t seem too bad at that point, and if the Senate is still reluctant to confirm him, Marjorie Taylor Greene will be tanned, rested and ready in the bullpen.
The only way one of Trump’s nominees could fail to be confirmed is if at least 4 Republicans are against confirmation. They have a 53-seat majority plus a J.D. Vance tiebreaker. A nominee has to be really bad before that many Republican senators would be willing to defy the orange man. Of course, Trump is certainly willing and able to nominate people so bad they could lose despite the stacked deck in their favor.
The one area where I found myself in total agreement with Trump 45 was his judicial nominations. Trump appointed some highly intelligent and principled judges and attorneys to the Supreme Court. He was able to do that by outsourcing his judicial selections to Leonard Leo of the Federalist Society. That was basically the deal Trump made with evangelical Christians that helped elect him. Because the GOP Senate refused to move on Merrick Garland’s nomination to the Supreme Court, conservatives knew that the ideological balance of the Court was at stake. Someone on his campaign had the brilliant idea to release a list of FedSoc-approved lawyers and judges, and Trump promised to nominate judges from that list.
However, from what I’ve been reading, Leonard Leo and FedSoc are no longer on good terms with Trump. That is most likely because none of the judges he appointed did a thing to help him win the 2020 election. Do you call that loyalty? It’s almost like those Justices and judges had taken an oath to be loyal to the Constitution instead of Trump! Bunch of ingrates.
All kidding aside, I am worried about the kind of lawyers Trump will nominate this time. Antonin Scalia was extremely influential in the areas of statutory and constitutional interpretation. He was almost certainly the most well-known originalist. Originalists generally believe that you must follow the text as written and that that text must be given its original meaning. This was largely a rejection of the Warren Court, in which activist liberal justices would update the original meaning of the “living Constitution” for the present day. That was how a Constitutional right to privacy, which would later include the right to abortions, was found, not in the text of the Constitution, but in the “penumbras and eliminations” of the Bill of Rights. Rather than being limited just to the text, liberal judges could decide the law was how they wanted it to be, not what it was.
Today, a group of largely MAGA lawyers has come up with the theory of common good constitutionalism. Basically, now that the GOP has won, instead of judges being limited by text, they should be activists, but in a right-wing direction, “for the common good.” In his confirmation hearing, Chief Justice Roberts compared Supreme Court justices to umpires who just call balls and strikes as they see them. Some people might think they got the call wrong. That’s inevitable, but no matter what people may think, a Justice should not have a preference for either side. Right-wing activism is just as bad as left-wing activism, in my opinion. Obviously, justices will have preferences, but it is their responsibility to overcome them to the greatest extent possible. At the very least, if they don’t want to appear overtly political, that will constrain their rulings and actions significantly more than the Living Constitution.
I know a lot of people think the Supreme Court is rigged and routinely rules certain ways to favor clients and causes they believe in and screw over everybody else. I strongly disagree. Look at it this way. A liberal activist Court ruled that the Constitution included a right to abortion on demand. An originalist/textualist Court ruled that the Constitution was silent on the issue of abortion. What would a conservative activist Court do? Well, it could make abortion illegal throughout the United States. That would be really easy, actually. All it would need to do is decide that a fetus is a person. If a fetus was a person, states would have a choice: repeal all of their homicide laws (A 50 State Purge, Yall) or start arresting and charging people who perform abortions. I don’t think things will ever get that far, but I could certainly be wrong.
Re: Scalia’s Originalism
You do realize that Scalia ditched his Originalism any time it was convenient right?
He was infamous for ignoring the 14th amendment for example.
When I was in charge of strategic planning for a company, one senior-most executive would tell me, “I don’t want you to give me the evidence that will help me decide. I’m going to decide, and your job will be to tell me why I am right.”
My guess is that Scalia said the same thing to his law clerks.
If you’re going to really be originalist, the 2nd amendment would only impart a right to breech-loading pistols and muskets. If the Constitution is silent on something, shouldn’t The Nine use their reason and logic, their “judgement” if you will, to decide contemporary cases?
That nit-picky guy is here: You mean muzzle-loaders. Breech-loaders are what we use today (and for the past 150 years). And they would have been flintlocks, making them even slower to reload, and not much use in the rain, as I understand it. Otherwise, I am with you. But this Supreme Court just decides what they want, and then makes up reasons to get it.
Thanks for picking that nit, Roger – I stand corrected. You’ve hit on the heart of originalism: decide how you want the ruling to go, then how to misconscrew the Constitution to support that conclusion.
The type of guns that existed in 1787 is one of my favorite topics because it involves both economics and history.
It also here gets to the point of ‘originalism’ which is that anybody who claims to be an ‘originalist’ needs to understand the context of the time a law or an amendment to the Constitution was written.
I’m sure you’re aware that there were more guns that existed in 1787 than just flintlocks and muskets but they weren’t in general use, but that these guns were the forerunners of the semi automatic weapons misused today. There were, for instance, the air rifles that Lewis and Clark used in Oregon, and various repeating rifles including the remarkably ahead of its time Kalthoff repeating rilfe which could fire a shot every two seconds and could hold up to 30 rounds.
The air rifle Lewis and Clark used wasn’t in general usage because it was very delicate and took professional training to learn to use properly without destroying it and repeating rifles weren’t in general usage because they were far too expensive for the general public to afford them.
So, this gets at the heart of the context of the times that the Constitution was written in. Mainstream right wing newspapers have editorials on the internet that mention these other weapons to claim ‘see the Framers knew that other guns that flintlocks and muskets existed.’ However, aside from the remarkably ahead of his time Alexander Hamilton, it’s simply wrong to believe that the Framers ever had any idea that the semi automatics would ever be in general usage.
If you had asked them, they might have said something like ‘well maybe in 500 or 1,000 years, but the Constitution should be rewritten every century anyway.’
The reason for this is that the Industrial Revolution had barely begun in the U.K in 1787 yet alone in the United States. Technological improvement at this time was on the century scale and the Framers had no reason to believe this would change, and we actually know this from the debates between Alexander Hamilton and Thomas Jefferson. While Hamilton believed the United States had to industrialize, Jefferson wanted the United States to remain a nation of ‘yeoman farmers’ and most of the other framers were with Jefferson on this. Had Jefferson or the other framers recognized that technological change would start to rapidly increase in less than 100 years, that would make Jefferson the equivalent of Pol Pot.
Beware of insidious euphemisms like “disingenuous” and “bad faith.” They’re cover for unprincipled & “fucking liars.” Of course team Blue lies, too. Their lies are posturing—doomed half-measures that out of the starting gate won’t cut the mustard. They do it bc they believe in democracy-of-compromises fantasy.
Meanwhile team Red’s more realistic strategy has long been defending the fort of unprincipled beliefs they cannot compromise on, by any means. That is, manipulating an unwitting public with their “bad faith” reframing of the truth. Every principle McChesney believes in serves only to insidiously corrupt him into being their useful idiot. He’s just as much the core of America’s rotten apple as the MAGA idiots he despises.
All of our nitpicks are correct, but the big picture is we’re the blind trying to make sense of this thing that turns out to be an elephant that we each have a hand on a tiny skin patch of. Yeah, well the elephant is this: Red is Evil. If your belief is libertarian or FedSoc or “small government,” you’re just brainwashed.
Which is a de-euphemised version of, your ideas are all co-opted into the evil agenda of people who understand full well the ulterior motives you’ve blinded yourself to. That’s my view, please take it with a grain of salt. I’m sure you will.
P.S. I kept saying unprincipled. It’s a brainworm. No scruples might’ve been a more accurate word selection.
Let me try to explain an originalist judicial philosophy better.
Originalism, properly understood, is simply textualism. However, because the meaning of words and phrases can change over time, an originalist believes the text should be given its original public meaning. Those meanings are then applied to the issues before the Court. That doesn’t mean the 2nd Amendment only applies to flintlock muskets. It means that it applies to weapons in common use. In a similar way, the 4th Amendment applies when police or federal agents want to place a GPS tracker on your car.
I am not saying that “originalists ” never allow their personal feelings to influence their decisions. They may try, but they’re all human beings. I am saying that because originalists are applying the text of the law or Constitution, their personal feelings are somewhat constrained. My fear of judges with a ” common good constitutionalism” judicial philosophy is that those judges would not feel those constraints. That’s why I am not sure if I want Thomas or Alito to retire while Trump is president.
However, I think the chance of Thomas retiring in the next 4 years is remote. Justice William O. Douglas (a mystery guest on What’s My Line) holds the record as the longest-serving Supreme Court Justice. He served on the Court from 1939 to 1975, 36 years, 7 months, and 8 days. Clarence Thomas has been on the Court since October 23, 1991. If my calculations are correct, Thomas will become the longest-serving Justice on or about June 1, 2028. Perhaps, if the GOP retains control of the Senate in 2028, Thomas will retire then, but I have my doubts. Having met and spoken with Justice Thomas, I believe he sees every day longer he serves on the Court as another F-You to the people who put him through confirmation Hell. It probably depends on his health. He would probably retire under a Republican president rather than die with a Democrat in the White House.
I can explain it simpler than that, it’s meaningless bullshit to allow fascist justices to make fascist rulings while disclaiming any responsibility for them.
What Adam just said. IOW, McC’s try at rethink amounts to a rationalization of what’s really empty posturing. There’s no deep meaning at all. Its entire reason for existing is shallower than skin deep. It’s cover for exercise of sheer power. Camouflage. Protective coloring. Or as you put it, bullshit. McC reworking the idea is fan fiction. Literal useful idiot.