How Trump's Judges (and the Federalist Society) are Changing the Law

[Frodo]

From last month, but worth a read:

Bold New Bench: How Trump's Judges are Changing the Law

[brucejoel99]

Trump's lasting legacy is gonna be all of these Federalist Society judges that he put on the bench. Brace yourselves for decades of outrage from what will end up being 200+ Federalist Society-screened judges.

[Person Man]

Hence the case for reigning in the courts.

[Mr. Reactionary]

Every dark cloud has a silver lining.

[MarkD]

I'm not a "textualist" per se; I'm more concerned with what laws were intended to mean instead of what they literally say. For example, I agree with the Court's conclusion in King v. Burwell (and I don't care one whit about Obamacare, I just care whether or not the Court interpreted that law the way Congress intended). My approach to interpreting laws has been influenced by Judge Learned Hand's essay, "How Far Is A Judge Free In Rendering A Decision?" Hand said a judge should strive to understand what the legislature intended, and assuming that legislatures always mean exactly what they say is quite foolish (those weren't Hand's exact words; I'm paraphrasing him).

So this is a major reason why I won't support Trump's re-election. I voted for Evan McMullin last time, and I'll be searching for someone similar to that next year.

[Mr. Reactionary]

I'm not a "textualist" per se; I'm more concerned with what laws were intended to mean instead of what they literally say. For example, I agree with the Court's conclusion in King v. Burwell (and I don't care one whit about Obamacare, I just care whether or not the Court interpreted that law the way Congress intended). My approach to interpreting laws has been influenced by Judge Learned Hand's essay, "How Far Is A Judge Free In Rendering A Decision?" Hand said a judge should strive to understand what the legislature intended, and assuming that legislatures always mean exactly what they say is quite foolish (those weren't Hand's exact words; I'm paraphrasing him).

So this is a major reason why I won't support Trump's re-election. I voted for Evan McMullin last time, and I'll be searching for someone similar to that next year.

Interesting. What's your take on the recent employment discrimination cases based off lgbt status? I hated the obergfell decision despite agreeing with the outcome,  but as a textualist I totally think the antidiscrimination argument is sound in those cases based purely on the law, as written, notwithstanding the obvious truth that congress in 1965 didn't intend it to cover such persons.

[MarkD]

I'm not a "textualist" per se; I'm more concerned with what laws were intended to mean instead of what they literally say. For example, I agree with the Court's conclusion in King v. Burwell (and I don't care one whit about Obamacare, I just care whether or not the Court interpreted that law the way Congress intended). My approach to interpreting laws has been influenced by Judge Learned Hand's essay, "How Far Is A Judge Free In Rendering A Decision?" Hand said a judge should strive to understand what the legislature intended, and assuming that legislatures always mean exactly what they say is quite foolish (those weren't Hand's exact words; I'm paraphrasing him).

So this is a major reason why I won't support Trump's re-election. I voted for Evan McMullin last time, and I'll be searching for someone similar to that next year.

Interesting. What's your take on the recent employment discrimination cases based off lgbt status? I hated the obergfell decision despite agreeing with the outcome,  but as a textualist I totally think the antidiscrimination argument is sound in those cases based purely on the law, as written, notwithstanding the obvious truth that congress in 1965 didn't intend it to cover such persons.

My first instinct is to draw a straight line back to 1964 and ask myself whether Congress intended for "sex" to mean "sexual preference" as well (the terminology used back then), and the answer is pretty "obvious," as you say. But I would have to be fair to the other side and give them a chance to argue that the precedents handed down in the years since 1964 have effectively developed a broader meaning to "sex discrimination." Of course I need to hear both sides before making up my mind and making a final decision. Fifty-five years worth of developing precedents could tilt me away from my first instinct.

[McNukes™ #NYCMMWasAHero]

I'm not a "textualist" per se; I'm more concerned with what laws were intended to mean instead of what they literally say. For example, I agree with the Court's conclusion in King v. Burwell (and I don't care one whit about Obamacare, I just care whether or not the Court interpreted that law the way Congress intended). My approach to interpreting laws has been influenced by Judge Learned Hand's essay, "How Far Is A Judge Free In Rendering A Decision?" Hand said a judge should strive to understand what the legislature intended, and assuming that legislatures always mean exactly what they say is quite foolish (those weren't Hand's exact words; I'm paraphrasing him).

So this is a major reason why I won't support Trump's re-election. I voted for Evan McMullin last time, and I'll be searching for someone similar to that next year.

Interesting. What's your take on the recent employment discrimination cases based off lgbt status? I hated the obergfell decision despite agreeing with the outcome,  but as a textualist I totally think the antidiscrimination argument is sound in those cases based purely on the law, as written, notwithstanding the obvious truth that congress in 1965 didn't intend it to cover such persons.

My first instinct is to draw a straight line back to 1964 and ask myself whether Congress intended for "sex" to mean "sexual preference" as well (the terminology used back then), and the answer is pretty "obvious," as you say. But I would have to be fair to the other side and give them a chance to argue that the precedents handed down in the years since 1964 have effectively developed a broader meaning to "sex discrimination." Of course I need to hear both sides before making up my mind and making a final decision. Fifty-five years worth of developing precedents could tilt me away from my first instinct.

I believe that first and foremost, reading the law as originally intended is even more important when it comes to statutory interpretation as a decision affirming that the Civil Rights Act includes sexual orientation discrimination on the basis of its inclusion of protections from discrimination on the basis of sex would also, by nature, strip from Congress the constitutional prerogative to repeal such a provision without repealing discrimination on the basis of sex as well, at least unless every sex discrimination law is built to include non-inclusiveness towards discrimination on the basis of sexual orientation, gender identity, etc.

[Mr. Reactionary]

I'm not a "textualist" per se; I'm more concerned with what laws were intended to mean instead of what they literally say. For example, I agree with the Court's conclusion in King v. Burwell (and I don't care one whit about Obamacare, I just care whether or not the Court interpreted that law the way Congress intended). My approach to interpreting laws has been influenced by Judge Learned Hand's essay, "How Far Is A Judge Free In Rendering A Decision?" Hand said a judge should strive to understand what the legislature intended, and assuming that legislatures always mean exactly what they say is quite foolish (those weren't Hand's exact words; I'm paraphrasing him).

So this is a major reason why I won't support Trump's re-election. I voted for Evan McMullin last time, and I'll be searching for someone similar to that next year.

Interesting. What's your take on the recent employment discrimination cases based off lgbt status? I hated the obergfell decision despite agreeing with the outcome,  but as a textualist I totally think the antidiscrimination argument is sound in those cases based purely on the law, as written, notwithstanding the obvious truth that congress in 1965 didn't intend it to cover such persons.

My first instinct is to draw a straight line back to 1964 and ask myself whether Congress intended for "sex" to mean "sexual preference" as well (the terminology used back then), and the answer is pretty "obvious," as you say. But I would have to be fair to the other side and give them a chance to argue that the precedents handed down in the years since 1964 have effectively developed a broader meaning to "sex discrimination." Of course I need to hear both sides before making up my mind and making a final decision. Fifty-five years worth of developing precedents could tilt me away from my first instinct.

I believe that first and foremost, reading the law as originally intended is even more important when it comes to statutory interpretation as a decision affirming that the Civil Rights Act includes sexual orientation discrimination on the basis of its inclusion of protections from discrimination on the basis of sex would also, by nature, strip from Congress the constitutional prerogative to repeal such a provision without repealing discrimination on the basis of sex as well, at least unless every sex discrimination law is built to include non-inclusiveness towards discrimination on the basis of sexual orientation, gender identity, etc.

Just remember,  as "originally intended" the ban on sex discrimination was added as a poison pill by Southern Democrats to try and KILL the bill, not to legitimately eliminate sex discrimination. Although that was the subjective intent of only some legislators, and as we can only rarely isolate a pure answer that accurately reflects the subjective intent of 100% of legislators, who can really say what was meant? That's why I tend to lean textualist of statutes as that is the best way for the people at large to know with any certainty what the law truly says so as to conform their behavior with the law. Otherwise wed have to read committee reports for every line of the US Code.

[politicallefty]

Wasn't Justice Scalia the main proponent of not using legislative intent as justification for a particular ruling (and one that's since been adopted by the Court as a whole, both left and right)?

I think what's particular nasty about Trump's judicial nominations is that they're clearly ideologues and yet the Senate continues to confirm unqualified judges. Of course I expect a Republican President and Republican Senate to nominate and confirm conservative judges, but the individuals getting confirmed seem only to be nominated to legislate from the bench. I was mostly in opposition to someone like Justice Scalia, but I did respect him as a justice and a brilliant conservative legal mind. A lot of these new judges are nothing of the sort and not remotely brilliant in any sense of the word.

[MarkD]

Wasn't Justice Scalia the main proponent of not using legislative intent as justification for a particular ruling (and one that's since been adopted by the Court as a whole, both left and right)?

snip

Justice Scalia was indeed a major proponent of not using the legislature's intended meaning when interpreting statutes, and he has often been called a "Textualist," as are many of Trump's nominees to the federal courts. But he has not been successful in persuading all of the members of the Court to adopt the same philosophy of legal interpretation, not even with the conservative wing of the Court. Otherwise, King v. Burwell would not have been decided the way it was, by a margin of 6 to 3 (Scalia was one of the three who dissented). I've never seen any indication that Scalia and his approach to legal interpretation has been influential with the liberal Justices.

[Mister Mets]

Interestingly, his judges seem to be quite qualified according to some standards.

https://www.vox.com/policy-and-politics/2019/12/9/20962980/trump-supreme-court-federal-judges

Before he became president, Trump promised to delegate the judicial selection process to the Federalist Society, a powerful group of conservative lawyers that counts at least four Supreme Court justices among its members. “We’re going to have great judges, conservative, all picked by the Federalist Society,” Trump told a radio show hosted by the right-wing site Breitbart while he was still a candidate.

The Federalist Society spent decades preparing for this moment, and they’ve helped Trump identify many of the most talented conservative stalwarts in the entire legal profession to place on the bench.

There’s no completely objective way to measure legal ability, but a common metric used by legal employers to identify the most gifted lawyers is whether those lawyers secured a federal clerkship, including the most prestigious clerkships at the Supreme Court. Approximately 40 percent of Trump’s appellate nominees clerked for a Supreme Court justice, and about 80 percent clerked on a federal court of appeals. That compares to less than a quarter of Obama’s nominees who clerked on the Supreme Court, and less than half with a federal appellate clerkship.

In other words, based solely on objective legal credentials, the average Trump appointee has a far more impressive résumé than any past president’s nominees.

[Frodo]

There's a draft rule being circulated that could potentially target Federalist Society judges and justices:

Critics: Senate Ready to Fight Draft Rule Targeting Federalist Society

As Democrats’ efforts to oust President Trump from office have played out in the Senate this week, his opponents in the judiciary branch of government maneuvered to curb conservatives’ growing influence on the federal bench.

The ethical advisory arm of the federal judiciary is circulating a draft rule that would ban judges and their clerks from belonging to the Federalist Society, an organization aimed at fostering an originalist interpretation of the Constitution at law schools and through forums and debates across the country.

The proposed rules change is the latest salvo in a campaign to cast the Federalist Society as too political, and thereby politically risky, for judiciary participation. The Wall Street Journal editorial board labeled the proposal “judicial political mischief masked in high sounding rhetoric,” a step that is spurring a backlash among “judges and others” who should denounce it as “undermining legal education in America and perhaps violating the First Amendment right of association.”

Conservative activists put it more bluntly, calling the rules change a transparent attempt to neuter the Federalist Society. The motivation is obvious, these activists say, after the Senate has confirmed a record number of Trump-appointed judges, many of whom are Federalist Society members or have participated in the group’s events.

This story is from a month ago.  I only just found it.  

[Mr. Reactionary]

There's a draft rule being circulated that could potentially target Federalist Society judges and justices:

Critics: Senate Ready to Fight Draft Rule Targeting Federalist Society

As Democrats’ efforts to oust President Trump from office have played out in the Senate this week, his opponents in the judiciary branch of government maneuvered to curb conservatives’ growing influence on the federal bench.

The ethical advisory arm of the federal judiciary is circulating a draft rule that would ban judges and their clerks from belonging to the Federalist Society, an organization aimed at fostering an originalist interpretation of the Constitution at law schools and through forums and debates across the country.

The proposed rules change is the latest salvo in a campaign to cast the Federalist Society as too political, and thereby politically risky, for judiciary participation. The Wall Street Journal editorial board labeled the proposal “judicial political mischief masked in high sounding rhetoric,” a step that is spurring a backlash among “judges and others” who should denounce it as “undermining legal education in America and perhaps violating the First Amendment right of association.”

Conservative activists put it more bluntly, calling the rules change a transparent attempt to neuter the Federalist Society. The motivation is obvious, these activists say, after the Senate has confirmed a record number of Trump-appointed judges, many of whom are Federalist Society members or have participated in the group’s events.

This story is from a month ago.  I only just found it.  

If they r trying to push something this craven it should at least apply to ACS as well.

[Frodo]

There's a draft rule being circulated that could potentially target Federalist Society judges and justices:

Critics: Senate Ready to Fight Draft Rule Targeting Federalist Society

As Democrats’ efforts to oust President Trump from office have played out in the Senate this week, his opponents in the judiciary branch of government maneuvered to curb conservatives’ growing influence on the federal bench.

The ethical advisory arm of the federal judiciary is circulating a draft rule that would ban judges and their clerks from belonging to the Federalist Society, an organization aimed at fostering an originalist interpretation of the Constitution at law schools and through forums and debates across the country.

The proposed rules change is the latest salvo in a campaign to cast the Federalist Society as too political, and thereby politically risky, for judiciary participation. The Wall Street Journal editorial board labeled the proposal “judicial political mischief masked in high sounding rhetoric,” a step that is spurring a backlash among “judges and others” who should denounce it as “undermining legal education in America and perhaps violating the First Amendment right of association.”

Conservative activists put it more bluntly, calling the rules change a transparent attempt to neuter the Federalist Society. The motivation is obvious, these activists say, after the Senate has confirmed a record number of Trump-appointed judges, many of whom are Federalist Society members or have participated in the group’s events.

This story is from a month ago.  I only just found it.  

If they r trying to push something this craven it should at least apply to ACS as well.

It does.  But that's apparently not enough for conservative critics. 

[brucejoel99]

There's a draft rule being circulated that could potentially target Federalist Society judges and justices:

Critics: Senate Ready to Fight Draft Rule Targeting Federalist Society

As Democrats’ efforts to oust President Trump from office have played out in the Senate this week, his opponents in the judiciary branch of government maneuvered to curb conservatives’ growing influence on the federal bench.

The ethical advisory arm of the federal judiciary is circulating a draft rule that would ban judges and their clerks from belonging to the Federalist Society, an organization aimed at fostering an originalist interpretation of the Constitution at law schools and through forums and debates across the country.

The proposed rules change is the latest salvo in a campaign to cast the Federalist Society as too political, and thereby politically risky, for judiciary participation. The Wall Street Journal editorial board labeled the proposal “judicial political mischief masked in high sounding rhetoric,” a step that is spurring a backlash among “judges and others” who should denounce it as “undermining legal education in America and perhaps violating the First Amendment right of association.”

Conservative activists put it more bluntly, calling the rules change a transparent attempt to neuter the Federalist Society. The motivation is obvious, these activists say, after the Senate has confirmed a record number of Trump-appointed judges, many of whom are Federalist Society members or have participated in the group’s events.

This story is from a month ago.  I only just found it.  

I'm not sure if this would hold up in court, but it'd definitely be a big improvement over the status quo if these types of ethics rules could be successfully implemented.