Posted on 06/16/2020 9:02:33 PM PDT by lasereye
Today, Yoram Hozany, an Israeli philosopher, tweeted:
I wonder: Has there ever been an ideological movement this incompetent? They only had one job to do: Distinguish conservative lawyers from liberal lawyers.They formulate lists of approved individuals and everyone murmurs that they’ve been vetted. Then all sorts of distinguished persons publicly pronounce in chorus that the candidate is brilliant and the nomination fine.
What criteria are involved in all this?
I understand his disgust. Democrats bat 1.000 when it comes to nominating reliable left-liberals to the Supreme Court. Republicans bat around .500 in nominating reliable conservatives.
But it’s not as easy for conservatives as it looks. To show why, I’ll tell a story I once heard Jonah Goldberg recount.
According to Goldberg, a publisher wanted to produce a book with essays by five leading liberals and five leading conservatives. The authors could basically write whatever they wanted to.
The five liberals all wrote about what Democrats should do to win the next election. The five conservatives produced philosophical tracts representing five different branches of American conservative thought.
American conservatism has multiple branches, and American conservative thinkers tend to be individualists and often quirky. This is true within the conservative legal movement.
John Roberts’ calling card was judicial modesty — the notion that judges shouldn’t be activists, but rather should grant lots of deference to the elected branches. At one point, this was received wisdom among many, probably most, conservatives. Today, not so much. But Roberts was nominated in 2005.
Neil Gorsuch’s calling card is his critique of the administrative state. It’s an important critique, but doesn’t guarantee an across-the-board conservatism. Nor, we now know, does his stated commitment to textualism guarantee a solid, non-quirky textualism of Justice Scalia’s kind.
There’s also the fact that presidents get the final say. They typically farm out the job of compiling the Supreme Court short list, but then will pick the nominee from that list.
In doing so, they probably will be influenced by their intuition and by the personalities of the candidates. It’s easy to see how Roberts — young, vigorous, and charming — gained President Bush’s favor. According to reports I saw at the time, Judge Wilkinson III, who had a much longer judicial track record than Roberts, didn’t impress Bush much. An older man, Wilkinson supposedly didn’t come across as energetic enough. If I recall correctly, Bush reportedly urged him to exercise more.
In Donald Trump’s case, Judge Amy Coney Barrett, a favorite of many conservatives, reportedly didn’t make a winning impression with the president. I don’t know why, but the explanation likely had little if anything to do with factors relevant to how she would have decided the Title VII gay rights case, or any other particular matter.
I assume that Democratic presidents also base their Supreme Court selection decisions in part on intuition and personality. But this make no difference because virtually anyone presented to the president can be counted on to toe the left-liberal line on the bench.
This is not to say that left-liberal legal thinking is monolithic. For all I know, there may be a dozen different schools of left-liberal thought swirling around in academia. In private, Justices Breyer and Kagan may be as intellectually curious as any of their conservative brethren or, indeed, Isaiah Berlin.
It doesn’t matter. Left-liberal nominees know their job — to reach the left-liberal result in every case. They are part of a movement and, as such, are prepared to cast off quirks, if any, and advance the cause.
It’s ironic, then, that the mainstream media writes obsessively about a supposed conservative legal movement, and never about a liberal one. The villain is always the Federalist Society.
But the Federalist Society is not a movement. Its members represent a wide range of disparate conservative thought, and its events, if they consist of more than one speaker, almost always include liberals. In a typical event, there’s one speaker with somewhat traditional conservative views, one libertarian, and one liberal.
I digress, though. The point is that there are major differences between the conservative legal movement (if it’s accurate even to speak of one) and the left-liberal one. These differences help explain why Democrats do a so much better job than Republicans of getting their kind of judges and Justices on the courts.
Nonetheless, Hazony isn’t wrong to question our selection process. In my view, the herd mentality he ridicules isn’t entirely a fiction.
Recall the case of Neomi Rao. She is the law professor nominated by Trump to the D.C Circuit and confirmed by the Senate. Like Gorsuch, Rao’s calling card is her critique of the administrative state.
In evaluating this nomination, Sen. Josh Hawley did exactly what he should have done. He dove into Rao’s scholarly writings, detected a potential problem, and raised it. To Hawley, some of Rao’s work suggested she might be too comfortable with the concept of “substantive due process” — a theory that can be used to protect rights, such as the right to an abortion, that aren’t mentioned in the Constitution.
At the time, I wrote that Hawley “was simply performing his due diligence so that conservatives won’t get burned, as has happened so often in the past, by a judicial nominee who falls far short of the expectations of the conservative Senators who backed him.” (Emphasis added)
Yet, as I recounted here, the Wall Street Journal belittled Sen. Hawley for raising this concern, and even questioned his motives. One leader in the push to confirm President Trump’s nominees compared Hawley to the women he defeated, Clare McCaskill, as if raising the question of whether one nominee might be too sympathetic to judicial activism is the same thing as serially voting against conservative nominees.
Those who aspire to important spots in the judiciary are ambitious and often cunning people. If they are generally conservative but hold some important views that might trouble conservatives, they aren’t likely to advertise them. But these views might be detectable somewhere deep in their writings. If someone serious thinks he has detected a problem, he should be heard, not steamrolled.
In the case of Hawley, Rao and the White House were able, after false starts, to persuade the Senator that the nominee is fine on the issue[s] he pinpointed. The Senate confirmed her. We can, with reason, hope for the best.
It’s important, though, that we not let “confirm them” mania stand in the way of truly careful vetting, and that we take seriously questions raised about nominees and potential nominees by thoughtful conservatives. Let’s keep in mind that the author of that excellent dissent in yesterday’s Title VII gay rights case, Justice Alito, was nominated only after conservatives raised major concerns about the original nominee, Harriet Miers.
This was about a so called transgender employee who insists on wearing women’s clothes at work. They applied a civil rights law that prohibits sex discrimination. This made no sense at all for several reasons.
Supreme Keystone Court of the United States
NC SCOTUS The Ninth Circuit SCOTUS
>> I think they have Roberts by the short hairs.
That jackass is facilitating monumental advances by the Left beginning with no less than Obamacare.
WHY SO MUCH TROUBLE NOMINATING RELIABLY CONSERVATIVE JUSTICES?
Because nobody believes in the conservative position. If they say they do chances are they are a crank or like John Roberts who could’t even say the oath correctly, let alone give proper rulings. He doesn’t believe in conservatism and is a phony. He as plastic as they get and probably believes the Constitution is plastic too, to mold how you see fit. He doesn’t fool anybody (except Bush, who was also fooled by Harriet Meir — which says a lot about his swift acumen). No. Most judges are traitorous bastards judged for the position by other traitorous bastards. Roberts sticks in a lot of Conservatives throats because underneath it all he is a nasty piece of work. And people sense it. His phoniness is as clear as the big blue sky on a summer day, and people (even some liberals) are sick to their stomachs. He just keeps on giving the worst decisions. It’s as if he first had to consult a family of drunken clowns just to be sure it’s the right decision; as if he was trying for a world record on absolute worst decisions. It’s terrible and it just keeps going and going and going... and people think maybe he’ll slow down on the bad decisions. But NO! There should be some expiry date like on bad milk: “Sorry, sir, that was your two thousand worst decision and we can now remove you from the bench, because the country doesn’t exist anymore due to you.”
With conservatives, the issue is always the issue. With the Left, the issue is never the issue, the issue is always the revolution. Their singleminded devotion to the revolution is why they win and we lose, even when we win.
Exactly my point WHY Clinton and Obama were far more successful in getting judges on SCOTUS who voted the way they wanted.
It's hard to imagine a RAT president picking some obscure low-key Democrat judge with no paper trail who attends an ultra-conservative Assembly of God church that preaches homosexuality is a sin, abortion is an abomination, with a Trump-loving pastor.... and the RAT base shrugging their shoulders and going "gosh, his personal life don't matter, all that matters is the White House told us his judicial philosophy is for a living, breathing constitution, so that means he will vote the way we want. Gaia bless President Obama for giving us a pro-choice judge!"
But reverse that scenario, and that was exactly the sitution we got with Gorsuch.
To be fair, other FReepers (campaignPete made a great point) have correctly pointed out a big problem is media bias... the media presents all RAT picks, no matter how far-left insane commies they are, of being "mainstream" SLIGHTLY left of center (Ruth Bader Ginsburg is touted as a moderate RAT, and the public actually buys that BS if they haven't looked at her record) and likewise paints any GOP judge as a hardliner right-wing Jesse Helms type... Kavanaugh was pretty much Anthony Kennedy 2.0, a bland slightly conservative guy, but the RATS painted him as Augusto Pinochet on steroids, and the media duly reported the "Kavanaugh is a bible thumping woman hating nazi who wants to send America back to the stone age" BS.
Also, I've said for years that the "GOP presidents keep appointing liberal judges but RAT presidents NEVER appoint conservative judges" argument is false. It's RARE that a RAT president "accidentally" appoints a SCOTUS judge who betrays them and ends up voting with conservatives on numerous "landmark" rulings, but it does happen. The two obvious examples from the last 100 years are Woodrow Wilson appointing James Clark McReynolds (who went on to oppose anything and everything in FDR's New Deal agenda, continuously striking it down as unconstitutional), and JFK appointing Byron White (who "evolved" into a decent right-of-center SCOTUS judge who often voted with the conservative bloc on social issues)
No system is foolproof.
But I think we'd have a much BETTER track record of getting ACTUAL conservatives if GOP presidents grew a spine and tried appointing some.
I'm sad to see FR seems to have the "only RINOs are electable" mindset on here, except applying that "logic" to SCOTUS appointments instead of Senate, House, and Gubernatorial races.
Bork wasn't electable, Alito was. If we took the advice of the Gorsuch apologists back in 2005, we'd have Justice Harriet Miers now. You'll never know if you don't try.
There was, Gorsuch quickly broke ranks and was the "lone GOP appointee" voting with the four RAT judges in a 5-4 ruling on a minor case, early in his tenure:
https://www.freerepublic.com/focus/f-news/3750753/posts
The few of us who doubted Gorsuch from the start noted it was a warning sign, but it was laughed off around here and immediately dismissed. They even tried to spin his treason with "SCALIA VOTED THE SAME WAY!" on a similar case, even though the decision Scalia handed down was a unanimous 9-0 and NONE of the four conservatives who joined in the Scalia decision at that time felt the earlier ruling had anything to do with the current one.
I think the question is about whether there were any Gorsuch rulings before he was nominated to SCOTUS that would have predicted this.
I’m not convinced that Roberts has short hairs for them to have him by.
Give nominees an fMRI. As a side benefit, liberal heads explode.
No Conservative activists judges are allowed.
(can be nominated)
By ideological principle a Conservative cannot be an activist anyway.
So what do we get?
Erosion of truth/deconstruction...this leads to the way of sin/perversion of natural law, law backed by God and the basis of western civilization.
The Constitution has been turned into an obamanation of it’s original intent.
The Constitution was created for moral men who carefully considered God in it’s creation.
This is heart breaking.
But see tag.
Oh the whole adoption thing being illegal would not matter now even if true. The kids practically get social security. Ha! But seriously this reason is tired and can’t possibly be a problem decades later.
Clearly the problem is that a majority of USSC justices thought it was fine to re-define the terms of a piece of legislation written 60 years ago to achieve a social goal without having to go through the constitutional process. The Congress in 1964 did not intend that “Sex” or “Gender” is something that could be redefined. Perhaps we’ve reached the ragged-edge of Originalist thinking — or maybe Justice Gorsuch just horse-traded away his vote on this case and we have yet to see what he got in return.
Is that a rhetorical question?
Two words: blackmail
Because “reliably conservative” judges will NEVER get past the democrats or the RINO’s unless they’re easily comprised.
Case in point Chief INjustice Judge Dredd Roberts.
I’ve concluded Gorsuch is a lost cause. On the big cases.
We need a big win on Nov & 2 more judges. Never give up the fight.
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