U.S. Supreme Court: Post-Ginsburg Edition

I haven’t watched a second of it bc it’s all just so monumentally depressing but unless I missed something filtered through soc media I’m shocked more hasn’t been made of her work on Bush v Gore, particularly in light of uh Trump’s non-concession talk

TBH, I don't find it very significant that she worked on Bush v. Gore as a third-year associate in a large firm.

I just have to say I hate almost every public discussion of "originalism" - conservatives give it too much credit and liberals give it too little. For example I often see stuff like this, which is just blatantly incorrect
https://scontent-lga3-1.xx.fbcdn.net/v/t1.0-9/121595418_4391209287638758_3925704783184384162_n.png?_nc_cat=1&_nc_sid=730e14&_nc_ohc=ZRAAbE0Lz7YAX_gbBYP&_nc_ht=scontent-lga3-1.xx&oh=a2126ea136cae103c9460aa04143a4ec&oe=5FAF380C

I'm sure there's some constitutional scholar who has put this concept better than me, but I don't believe so-called "originalism" and so-called "living constitution" are entirely incompatible. The very drafting of a lot of the constitution (though not all of it) is so general and vague that it HAS to be interpreted beyond its "original public meaning." In fact I believe it was intended to be treated that way, because it's a constitution, not a statute book. That doesn't mean there are no outer limits on what it can mean. But I think living constitutionalism, within limits, IS an originalist view.

Shhh, Thomas will hear you!

https://www.youtube.com/watch?v=OOWO--z1S8A

I haven't been watching the hearings, but from the coverage I've seen, it is such a sham, any consideration of why she shouldn't be confirmed is quickly swept into the dustbin of "but she will be confirmed" and equal time given to Republicans calling her the greatest human being ever. Why can't a Dem just tee off on her archaic religious views, ask her if she would submit to her husband's understanding of the constitution if it differed from hers or something? What do they have to lose at this point?

Im beyond bummed about all this and my lib/ centrist political nerd friends seem to just be shrugging, even mildly defending(!?!?) her. Tbf though they’re pretty preoccupied with a danged Cheeto in the White House and are positive he’ll end up in an orange jumpsuit one day. Then snip snap back to brunch.

actually it’s just one pal convinced she’s not “that bad”.

Why get worked up today about what you can put off until the next forty years or so that she'll be a SC justice?

JUST NOW: On the Senate Judiciary Committee Chair Lindsey Graham is holding a vote to schedule vote on Barrett nomination on Oct 22nd in violation of Committee rules. Sen Durban is only Dem present. Rules require 2 members of minority party are present. Graham holds vote anyway.

— Sherrilyn Ifill (@Sifill_LDF) October 15, 2020

Disgusting, craven garbage people.

What do they have to lose at this point?

Well, if they "tee off" on her religious views they clearly would not lose you, because you seem to think that would be a reasonable strategy and would cheer them on.

otoh, the Democratic senators understand that they have nothing to gain from senselessly antagonizing the very sizable portion of the US population who take their religious beliefs seriously, including millions of BIPOC people, who might see an attack on her religion as tangentially an attack on their beliefs, too.

Yeah I would say you have to pair "What do they have to lose?" with "What do they have to gain?"

Ugh

so there's literally no recourse here? "yeah we violated the rules. so what?".

I mean why abide by any chamber rules then

I think that her particular religious views represent a very small percentage of religious Americans, let alone the American public as a whole. The first thing Republicans brought up on the announcement of her nomination was "Dems should not ask her about her religious views" and it seems like Dems just went along with that. To me, it is a completely valid line of questioning. She is a religious extremist and Republicans are forcing her extremist views on the American public through the highest court in the land for the next 40 years or whatever. Possibly offending a handful other religious extremists hardly seems worth sweeping the whole topic aside.

Make her come out and say that at work she will hold the constitution above her religious views and the she'll be the one offending people who share her extremism.

Make her come out and say that at work she will hold the constitution above her religious views and the she'll be the one offending people who share her extremism.

You seem to think that her saying that she will hold the constitution above her religious views would somehow be important. Saying it would be meaningless, because there would always be a constitutional argument to justify whatever opinion she signed onto. As for those who share her extremism, they will trust her to think as they do, right up until she joins a decision they hate, which seems unlikely.

There's nothing to be done to prevent her confirmation under Senate rules and no way she will answer any direct questions on the issues. The only strategy that makes sense to me, under the current situation is to emphasize the gravity of the issues she will be considering and how the decisions of the court could affect voters personally. This doesn't prevent her being seated, but only lays the political groundwork for making the Republicans pay a price for it.

Christian conservatives have driven our country to this precipice under the ideal that we are a christian nation and the belief that abortion and gay marriage are an affront to that ideal. They also believe that Barrett should be able to come out and say that everything she says and does is driven by her faith. They do not want a constitutional democracy, they want a theocracy and they see her confirmation as huge step in that direction. They do not care if they lose healthcare in pursuit of that goal. It is God's will. If she were forced to deny the prominence of faith over man's law in her deliberations, it would be a huge blow to them. They are not so savvy to excuse it as a political means to an end. Religion is both the means and the end, and Dems are already the enemy, so again, why not force the issue? Why let Republicans continue to pretend to practice democracy and preach theocracy?

And what would that "huge blow" look like, so that I could recognize it if I saw it?

including millions of BIPOC people, who might see an attack on her religion as tangentially an attack on their beliefs, too.

― the unappreciated charisma of cows (Aimless), Thursday, October 15, 2020 1:29 PM (two hours ago)

Idk I have a hard time imagining a significant number of Indigenous people getting mad about this

I have a hard time seeing how we can justify questioning her religion and then arguing against questioning the religion of a muslim or jewish nominee in the future. "This religion is different" is not very compelling.

There are enough Black, Latinx and Asian-American christians to make up many millions, despite the relative paucity of indigenous people.

where is "attack on her religion" and "questioning her religion" coming from? what would be wrong about asking her how religion informs her thinking as a judge?

"How does sharia law inform your thinking as a judge. Do you believe terrorism can be justified in the name of god?"

I mean, fer chrissakes, Nancy Pelosi is a devout catholic and is outright demonized by the religious right, but Dems can't even ask Barrett to explain her religious views because it would offend christian voters? It's insane. A huge blow would be a small rift between the republican party and those Christians currently in lock step with them. You gotta start somewhere.

man alive that is a crazy jump

where is "attack on her religion" and "questioning her religion" coming from?

"Why can't a Dem just tee off on her archaic religious views..." does not conjure up a picture of calm, reasonable inquiry.

but yes, if someone wants to be a SC justice and believes in sharia law, maybe it should come up during the questioning?

if someone has a religious belief that drives their thinking on a public policy issue, why in the world would it be out of bounds?

Because it feels uncomfortably close to asking for a loyalty oath.

What you're basically implying is "Can we really trust that you will put your country/constitution above your religion?" Which is somehow only a question that ever comes up with members of certain religious groups and not others.

btw i'm not trying to side with brianB here, either. i'm not advocating trying to force barrett to admit she prefers a theocracy or whatever, and i certainly don't think that would be any "big blow" to the right or conservative christians. they're in their own universe. barrett's getting that seat. they don't care, why should they?

I'm not arguing that questions of other faiths couldn't be asked of other nominees in the future. It's easy enough to answer that religion is one thing and government is another. I'm saying that they're letting her off the hook here so that some extremist christians can continue to believe that God wants to banish abortion and gay marriage and point to her future decisions on the court as evidence of that.

Karl, I agree that it would be legitimate to inquire whether Judge Barrett would defer to established precedent over her strongly held religious beliefs, but in reality that is a softball question, because as I said every SCOTUS decision will come with a formal constitutional justification, so she will always be able to plead that the constitutional argument was uppermost in her thinking. It's child's play to deflect such a question.

xpost man alive, i don't know. i guess. i understand the problems with asking about their religion. there's a reason that employers are not allowed to ask about religion in the job hiring process. i get that.

but if the position directly influences public policy, and the religion directly influences their thinking on public policy (like conservative christianity clearly do with barrett's opinions on abortion)...? why do religious people get a secret hiding zone where they can put ideas and policies that they don't want to be asked about, while non-religious people don't?

and again, to use the job hiring process analogy - i understand why someone's religion almost has zero bearing on their job. it doesn't matter what divine voices ACB thinks are guiding her when she's working at Autozone.

so that some extremist christians can continue to believe that God wants to banish abortion and gay marriage and point to her future decisions on the court as evidence of that

I confidently predict that nothing Barrett was likely to say in these hearings, regardless of the questions asked her, would even slightly affect their beliefs or deter them from pointing to any court decision they wish to laud as evidence of god's will.

yeah, 100% agreed on the pointlessness of asking those kinds of questions. deflect, deflect, deflect. vote. lifetime appointment. it doesn't matter.

The fact that it gets asked of some religions and not others is further evidence of the problem here. Extremist christians get a free pass.

What religions does it get asked of?

I mean the only question I think would be fair to ask would be "If the constitution or a statute as clearly worded conflicted with your religious belief, would you uphold the constitution/statute regardless?" Anything beyond that strikes me as baiting.

I'm also not saying it would make any difference in the process or ultimate outcome of her confirmation. The result would be in the minds of her christian supporters. They really do believe that she is God's chosen justice sent to right our wrongs and having her deflect, demure or outright deny that characterization would be a very good thing.

As I said above, the right tactic is putting the focus on the issues, how they are decided, and the effect of those decisions on the public. It makes little difference whether Barrett helps a conservative court to screw the public because of deeply held religious beliefs or because she is just deeply wrong-headed, like Gorsuch. The outcomes are what matter.

also I know this is a bit pedantic, but the Supreme Court lacks the power to banish abortion or gay marriage. All they can do is say whether it's constitutional or not for the federal or a state government to banish gay marriage or abortion. And you're not going to wind up with a federal gay marriage or abortion ban if decisions get overturned, you're going to wind up with states deciding whether they want to continue to recognize gay marriage/allow abortion. Which still would be very bad, but would not equate to "banishing abortion" or "banishing gay marriage." There's no question that a judge who is pro-life is going to be more inclined to say "leave it to the states" and a person who is pro-choice is going to be more inclined to say "don't leave it to the states." Same with gay marriage. I don't know what about Barrett's particular brand of catholicism makes the religious aspect more of interest than with a judge of any other religion - the only question is do you put your religion above the law or not. And they will say they don't, and as Aimless points out, may very well find a way to inject their religion into their decisions anyway. But there are, in fact, judges in this world who DON'T inject their religion into their decisions. There are pro-life judges who still abide by Roe v. Wade and its progeny.

and what Aimless said - the outcomes matter, not the religion. Maybe I am extra sensitive to this having seen a lot of wild theories about what my own religion supposedly says and dictates based on texts taken out of context and often mistranslated or misquoted. Religions are vast and complex and no one on this planet abides 100% literally by every word of every precept of their religion.

tbf "leaving it to the states" means "stripping right from tens of millions of people"

also I know this is a bit pedantic, but the Supreme Court lacks the power to banish abortion or gay marriage. All they can do is say whether it's constitutional or not for the federal or a state government to banish gay marriage or abortion. And you're not going to wind up with a federal gay marriage or abortion ban if decisions get overturned, you're going to wind up with states deciding whether they want to continue to recognize gay marriage/allow abortion. Which still would be very bad, but would not equate to "banishing abortion" or "banishing gay marriage."

so they can't banish it, but they can directly open up the door to a bunch of states who are clearly going to do it, as soon as they're allowed to do it. and they're the only ones who can open that door. i think that is a bit pedantic

xp

tbf to man alive it's a fair thing to point out, not as a "it's not THAT bad guys" (which m.a. wasn't saying) but pointing out it's actually way worse than an outright 'ban' in many ways because now you're giving 50 individual state governments the right to set 50 different sets of rules without federal protections for the act itself.

guessing many states that have been relatively pro-choice and relied on the Roe ruling would have to add legislation if they wanted to protect it for their state. and then there'd be criminalizing people who got it done out of state?

it's a nightmare I don't want to even think through

well

how much should I be panicking about the kavanaugh bush v. gore thing