SCOTUS-Watch: It's Gorsuch!

[MarkD]

We've already established that the president doesn't get to fill Supreme Court vacancies for his entire term.  Shouldn't we just wait until the next president takes office to fill this one?

That only applies during the last year of a president's term. Or at least, that was the official republican party line.

Is there any real reason not to extend it? No. There is none, because there was no real reason for the Republican party line in the first place. (And no, nor for whatever whataboutery the Democrats did at whatever point either.)

Amen!

The main reason I am an independent now is because both the Ds and Rs have turned the Supreme Court into a blatantly political institution, with both sides vying  to see who can control it, rather than either party adhering to the ideal that the Supreme Court should be objective and neutral (note that I did not say "moderate;" there is a difference).

The last Supreme Court Justice who was truly dedicated to rendering ideologically neutral, objective interpretations of the Constitution was Hugo Black, retired in Sep. 1971. The Court has had nothing but mediocrities ever since. And I did not vote for either Trump or Clinton precisely because I knew, based on their own statements, that both would continue the Court on its path of mediocrity.

I hope the nominee is not Judge Pryor, who has said that Roe v. Wade was one of the two worst decisions ever - which is correct - and that Miranda v. Arizona was the other - which is absolutely incorrect.

[MarkD]

What exactly does it mean when folks say that this or that judge is "pro-life"?
Does that mean that said judges interpret the word "person" in the Due Process Clause and the Equal Protection Clause as referring to fetuses?
Do judges who we call "pro-life" interpret the Constitution to mean that abortion must be banned, or else pre-born fetuses are being denied due process and equal protection of the laws?
George F. Will once said that any judge who would interpret the Constitution that way is just as arrogant and activist as the Supreme Court Justices who handed down Roe v. Wade in the first place.

No one should be appointed to the U.S. Supreme Court because they are "pro-life," or because they are conservative, liberal, or moderate. Nor should they be appointed because they are "pro-choice," or because they are in favor of affirmative action, opposed to it, or because of how they feel about gun control, or campaign finance laws. They should not be appointed because of their ideology, but because they are objective. Back on March 3rd of last year, I read an article that said President Obama was including Judge Sri Srinivasan on the list of possible nominees for Scalia's vacant seat, and the article said Judge Srinivasan "has a deep respect for the need for strict objectivity and impartiality." I was very strongly hoping that Obama would nominate him.

[MarkD]

What exactly does it mean when folks say that this or that judge is "pro-life"?
Does that mean that said judges interpret the word "person" in the Due Process Clause and the Equal Protection Clause as referring to fetuses?
Do judges who we call "pro-life" interpret the Constitution to mean that abortion must be banned, or else pre-born fetuses are being denied due process and equal protection of the laws?
George F. Will once said that any judge who would interpret the Constitution that way is just as arrogant and activist as the Supreme Court Justices who handed down Roe v. Wade in the first place.

No one should be appointed to the U.S. Supreme Court because they are "pro-life," or because they are conservative, liberal, or moderate. Nor should they be appointed because they are "pro-choice," or because they are in favor of affirmative action, opposed to it, or because of how they feel about gun control, or campaign finance laws. They should not be appointed because of their ideology, but because they are objective. Back on March 3rd of last year, I read an article that said President Obama was including Judge Sri Srinivasan on the list of possible nominees for Scalia's vacant seat, and the article said Judge Srinivasan "has a deep respect for the need for strict objectivity and impartiality." I was very strongly hoping that Obama would nominate him.

Overturning Roe v. Wade would not automatically institute a federal ban on abortion. Instead it would return the issue to its rightful place to be decided - the legislative branch.

Completely correct. Anyone who is "pro-choice" could be someone who would overturn Roe on the grounds that abortion is not at all a constitutionally-protected "right." All it takes is a commitment to objectivity -- objectively understanding what the Constitution has to say about the subject of abortion. The Constitution neither protects the "right" of a pregnant woman to get an abortion nor does it protect the "right" of a fetus to live.

So I don't understand why Trump himself and so many of the posters here have been saying that Trump will, or should, appoint someone who is "pro-life."

[MarkD]

Gorsuch is right-wing nutjob and I'm not sure what would make anyone think otherwise.  If anything he'd shift the court to the right.

Are you implying that Gorsuch is to the right of Scalia?

Are you implying that's impossible or even difficult? Sure, Scalia was right wing on many things, but he consistently advocated a view touting the legislature's supremacy over the courts in the making of policy. While I don't know Gorsuch's views, there are plenty of right wing jurists who want the Court to take a much more activist role in advancing conservative policies than Scalia did. The Supreme Court emphatically does not operate on the exact same left-right axis that other branches do. A judge whose personal views are less right wing could have a view of the constitution that leads them to even more radical decisions.

Well put, though Gorsuch seems to take a limited view of executive authority, a good thing in a potential Trump administration. Being more like Scalia than Alito is a positive in my book.

Also think your point about SCOTUS justices not operating on same axis is good though misses point that a big thing is how broad or narrow a justice believes a ruling should be. More activist judges tend to aim for broad rulings

First of all, yes, it is possible to be to the right of Scalia. If Gorsuch IS to the right of Scalia, that would mean one less vote on the Court for the view that flag-burning is "a form of protected speech." It might also mean one less vote for the view that an accused child molester has an absolute right to directly confront, face-to-face, the children who testify against them in court.

But that's not my main point. I would have thought that the definition of being a judicial activist is not whether their rulings are broad or narrow, but that their rulings are based on their own values rather than an objective discovery of the intent of the lawmakers. Prof. John Hart Ely was excellent on the point of explaining what an "activist" is when he elaborated on what is  a "noninterpretivist" in his seminal book Democracy and Distrust, published 37 years ago. An "interpretivist," according to Ely, is an advocate for the idea that the text and original intent of the text of the Constitution should be what guides judges to conclusions about whether the Constitution has been violated, while a "noninterpretevist" advocates that judges should go beyond the text and history of the Constitution to decide the cases that involve a constitutional dispute. Ely linked the word "activist" to the concept of a "noninterpretevist."

[MarkD]

Can we please not pretend "judicial activist" means anything more than "makes rulings I don't agree with?"  Thanks!

I'll grant that there are some people who use the term "judicial activist" for that reason, but not everybody who uses that term means that. I know what activism means, I use the term even-handedly, against both conservative members of the Supreme Court and liberal ones, and it is not merely because I "don't agree" with their rulings. I use it when I am sure my interpretation of the Constitution is objective and historically accurate, while the Justices' interpretation is not. Bush v. Gore was the worst decision ever.

[MarkD]

Warning sign for Dems looking to block this:

Manu Raju ‏@mkraju  6m6 minutes ago
Sen. Mark Warner, a rare D offering praise for Gorsuch, saying he has an "impressive resume and academic background."

So what? A Senator can say that a nominee has an impressive resume and academic background -- like Robert Bork had 30 years ago -- but could still end up saying that the nominee is just too conservative, which was the reason for opposing Bork.