Would a Justice Amy Barrett Recuse Herself in Abortion Cases?
Judge Amy Barrett seems to be the new hotness among conservatives. She is being seriously discussed as a credible candidate to replace Anthony Kennedy despite a mighty thin track record as a judge. Why? Let’s look at a couple of representative pieces. First, Michael Brendan Dougherty at National Review has a piece titled Wanted: Justice Amy Coney Barrett:
The facts of Barrett’s life — that she is a mother of seven children, and that when she speaks about her Catholic faith, she speaks about God as if she really believes in His existence — will provoke nasty and bigoted statements from Democratic senators and liberal media personalities. Again.
You may recall that this has already happened. In 2017, during confirmation hearings for a seat on the Seventh Circuit, Senator Dianne Feinstein surveyed Barrett’s public statements on her personal faith and told her that she worried that “the dogma lives loudly within you.” The bizarre idiom she created was a sign that Feinstein didn’t have an easy way to say what she wanted to say: A Catholic is fine. A believing Catholic is not.
And Michael Walther at The Week has a piece titled Amy Barrett for the Supreme Court:
The hearings on Barrett’s nomination were one of the most appalling spectacles in our recent political history. When Sen. Dianne Feinstein (D-Calif.) condescendingly declared that “the dogma lives loudly within you,” what she was saying, in essence, is that a person who wishes to serve the American people may check “Catholic” as a box on a census form and perhaps root for the Fighting Irish on Saturday afternoons in the fall if she likes, so long as she does not insist upon doing anything so gauche as believing in all that moth-eaten Romish superstition.
. . . .
If any more proof were necessary of the steeliness of Barrett’s character, it is worth pointing out that she has managed to have a successful career as a scholar and teacher while raising seven children.
What is notable about these pieces is their lack of any reference to any of Barrett’s judicial decisions — which is unsurprising, because she has been an appellate judge for a very short time (less than a year). It seems that we are operating under the principle: “anything that upsets the libs must be good.” Dougherty confirms this by italicizing the word “only” in this sentence: “Now, it would be churlish to choose Barrett only because her nomination will cause some Democrats to bleep, bloop disconcertingly before entering into auto-destruct mode.” Dougherty’s next reason for the nomination is equally devoid of reference to judicial philosophy: “It would be good to nominate her, however, because the fight to confirm her will contain edifying political lessons.” The lesson is that we don’t have religious tests for public office.
That is all well and good — but the issue becomes murky when someone openly declares that their religion will interfere with the discharge of their duty. Has that happened with Barrett? No, but there is cause for concern that it might — not that she would judge a case in a certain way because of her religion, but that she would refuse to participate.
In one sphere, the death penalty, Barrett has already declared that Catholic judges performing some functions related to enforcing the death penalty might consider recusing themselves due to the inconsistency of the death penalty with their Catholic faith. In a law review co-written with John Garvey, Barrett states this more definitively with respect to trial judges, and is more wobbly when it comes to the actions of appellate judges:
[W]e believe that Catholic judges (if they are faithful to the teachings of their church) are morally precluded from enforcing the death penalty. This means that they can neither themselves sentence criminals to death nor enforce jury recommendations of death. Whether they may affirm lower court orders of either kind is a question we have the most difficulty in resolving.
The authors look at ways in which the decisions of appellate judges are distinguishable from trial judges actually ordering a death sentence. But their conclusion that appellate judges may participate in decisions relating to capital punishment is far from absolute:
Appellate review of a death sentence is not, then, a case of formal cooperation. This does not mean that it is all right. Whatever might be the legal significance of an affirmance, it probably looks to most people like an endorsement of the sentence. This can cause scandal, leading others into sin. . . . Considerations like this make it exceedingly difficult to pass moral judgment on the appellate review of sentencing. The morality of the acts which fall under that description will, it seems to us, vary from one set of circumstances to another.
In discussing whether recusal is appropriate, the authors say:
When an observant Catholic judge sits on the guilt phase of a capital case [as a trial judge] his cooperation with the evil of capital punishment is material rather than formal. . . . . From a moral point of view deciding an appeal is an act of material cooperation, not formal, and one where it is difficult to say what outcome is morally preferable. The issue is especially difficult in cases where the judge is asked to review the death sentence itself. Unless he intervenes the defendant will die. And his act of affirming, whatever its legal significance might be, looks a lot like approval of the sentence. Conscientious Catholic judges might have more trouble with cases like these than they would at trial.
Ed Whelan has pointed out that Barrett has testified that she “could not imagine sitting here any class of cases or category of cases on which I would feel obliged to recuse on grounds of conscience.” Ed Whelan says: “Barrett’s article focused heavily on the recusal obligations of trial judges in capital cases and emphasized that the recusal question for appellate judges was much more complicated under Catholic moral teaching on improper cooperation.” This is true, but there is no blanket assurance in the article.
Not every Catholic judge feels this way, of course. Whelan notes: “Justice Scalia, for whom Barrett later clerked, disagreed with her reading of Catholic teaching on the death penalty.” That is why this is not a “religious test,” but a test of whether a person can discharge her duties in every case, or might instead recuse herself from major categories of cases.
The question becomes more even complicated (and speculative) when it comes to abortion cases. Unlike with capital punishment, Barrett has written nothing specific to even suggest that she might recuse herself in such cases — but the principles could be the same as for capital punishment. If she believed that the issues involved questions of good and evil under her religion, and if she were determined (as I think she would be) to avoid judging a case based on her religious convictions, then it’s not impossible to say she could end up deciding that recusal is the best option even in abortion cases.
It would be ironic indeed if conservatives supported Barrett because they thought her Catholic faith would make her a certain vote to overturn Roe v. Wade — only to see her recuse herself from any such case because of that same faith.
UPDATE 9-20-20: Ed Whelan points me to the fact that Barrett has since ruled on a death penalty case, which certainly lessens the concerns raised in this post:
Seventh Circuit panel included Judge Amy Coney Barrett. Major ground of attack on her nomination was confused claim that she would let her religious beliefs, including her opposition to the death penalty, warp her exercise of her judicial duties. Nope. https://t.co/kyH4HbPUHx
— Ed Whelan (@EdWhelanEPPC) July 12, 2020
[Cross-posted at The Jury Talks Back.]
Say, what’s the over under on how long it takes for trolls to make “jokes” about abortion, Catholicism, or the judge’s name?
I know: embrace the power of “and.”
If it dies not happen and thus get thread-derailed by nasty people, I am looking forward to learning more about this topic.
Simon Jester (79a3c0) — 7/2/2018 @ 8:14 amYou’ve identified two disqualifying aspects for her nomination. Why risk a damn thing when there are at least two slam (Kethledge, Hardiman) freaking dunks of the five who made the first cut?
Ed from SFV (6d42fa) — 7/2/2018 @ 8:15 amIt doesn’t follow, the commandments is thou shall not murder, as confused as the bishops are that is the rule.
Narciso (a43f57) — 7/2/2018 @ 8:21 amJesus never once intervened when justice was meted out to a true criminal. He had a bunch of opportunity to do so.
Ed from SFV (6d42fa) — 7/2/2018 @ 8:24 amI imagine Trump’s advisors who are going over the candidates are going to be more concerned about the new Justice recusing himself or herself from cases important to Trump (and abortion is not one of those and neither is the Second Amendment) because they had participated in them in the lower courts. I’m thinking of Judge Kavanaugh in particular.
nk (dbc370) — 7/2/2018 @ 8:26 amI don’t know enough about her to form an opinion, but a ruling overturning Roe has nothing to do with the horror that is abortion. It’s a law that has no place in society because it stole the power of the states and granted it to the high court. It’s an abomination that needs to be stricken permanently from jurisprudence.
NJRob (b00189) — 7/2/2018 @ 8:26 amSusan Collins would never let someone who had these many children be a justice
she is very bigotry
happyfeet (28a91b) — 7/2/2018 @ 8:38 amI’m sorry but if someone is going to vote against abortion due to their religious leanings rather than the fact that the constitution simply does not require states to allow it I don’t want that person as a judge at any level..
Soronel Haetir (86a46e) — 7/2/2018 @ 8:43 amA judge is called on to allow certain things that they may find personally reprehensible (the death penalty being perhaps the archetypal example), if their religion doesn’t allow them for performing the complete job they should not take it.
It would be ironic indeed if conservatives supported Barrett because they thought her Catholic faith would make her a certain vote to overturn Roe v. Wade
the more bigger irony is how the virtue-signaling nevertrump lifeydoodles what participated in the hoax on Roy Moore (our severely conservative pervert friend Mitt Romney is a good example) effectively gave the lobsterpot bimbo a veto on any judge what would ostensibly be inclined to save the fetuses
🙁
happyfeet (28a91b) — 7/2/2018 @ 8:44 amThis is a great post.
MBD wants her nominated to elicit nasty remarks and it will energize Republicans headed into the midterms? Seriously?
MW makes a slightly better case, she’s an originalist and ‘scary smart’.
That still leaves a lot of unknowns on a person who may be helping decide huge issues for decades.
She could be great, she could be so-so or she could be a huge mistake.
Beware the unknowns but hopefully if she’s the pick it will be about her fairness and respect for the constitution and not how many midterm votes her treatment will swing.
harkin (ef4f0e) — 7/2/2018 @ 8:56 amAnd this, friends and neighbors, is why we have an unpleasant comments section.
Simon Jester (79a3c0) — 7/2/2018 @ 8:57 am#9, of course.
Simon Jester (79a3c0) — 7/2/2018 @ 8:57 amLeaving aside recusals and whatnot, a Supreme Court Justice has to swear this oath:
I trust that Ms. Barrett would agree to abide by that oath if confirmed and so would not have to recuse herself in death penalty and abortion cases, etc. I recall a similar situation when Romney was running in 2012, all kinds of folks were saying that somehow his Mormonism would get in the way of his presidential duties, and he had to write an op-ed proclaiming that he would faithfully execute the Office of President of the United States, and to the best of his ability, preserve, protect and defend the Constitution of the United States.
Paul Montagu (852677) — 7/2/2018 @ 9:03 amI don’t know enough about Barrett to form an opinion, but what I’ve read here I like.
One question: are leftwing nominees ever taken to task, ever asked about certain core principles that a sizable portion of the population may find controversial? Obama won the election in 2008 and reelection in 2012. He picked who he wanted and Trump deserves the same.
Colonel Haiku (de797c) — 7/2/2018 @ 9:08 am“ I recall a similar situation when Romney was running in 2012, all kinds of folks were saying that somehow his Mormonism would get in the way of his presidential duties, and he had to write an op-ed proclaiming that he would faithfully execute the Office of President of the United States, and to the best of his ability, preserve, protect and defend the Constitution of the United States.”
Some even mischarachterized the Romneys as a “political dynasty”.
Colonel Haiku (de797c) — 7/2/2018 @ 9:10 amCollins is a rino and a disaster to conservatism.
mg (9e54f8) — 7/2/2018 @ 9:13 amMaine is full of maniacs. Olympia Snowe was the Obama darling that let o care out of conference. She as well put conservatism in the hole.
mg (9e54f8) — 7/2/2018 @ 9:16 amWhat is notable about these pieces is their lack of any reference to any of Barrett’s judicial decisions — which is unsurprising, because she has been an appellate judge for a very short time (less than a year).
she’s got gobs more experience as a judge than kagan ever had that’s for sure
happyfeet (28a91b) — 7/2/2018 @ 9:35 amyes kagan was the dean of a law school, that taught no law,
narciso (d1f714) — 7/2/2018 @ 9:47 amA twenty year old decision is hardly definitive, although it stated contemporary doctrine, now the rizzotto press, will like come upon her membership in ‘people of praise’
narciso (d1f714) — 7/2/2018 @ 9:55 amhere’s an interesting angle, along the subject Cavanaugh penned:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1219801
narciso (d1f714) — 7/2/2018 @ 10:05 am“What is notable about these pieces is their lack of any reference to any of Barrett’s judicial decisions — which is unsurprising, because she has been an appellate judge for a very short time (less than a year).”
This is Barrett’s great deficiency. Without much of a track record, who knows what her actual judicial philosophy will be? I’m also bothered by the appearance of affirmative action – would a male candidate with such a thin resume be considered a finalist?
Of course, my guess is that this is all for show. The nominee won’t be Barrett, but talking her up sends a politically appealing message.
With more time and opinions under her belt, she might make a good nominee to replace RBG.
ThOR (d25d69) — 7/2/2018 @ 10:06 amhere’s another, her record is a little thin:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2795646
narciso (d1f714) — 7/2/2018 @ 10:08 amCBS News (via Hotair) is saying it’s down to Barrett and Kavanaugh. I hope it’s Kavanaugh.
Paul Montagu (852677) — 7/2/2018 @ 10:21 amHouston, we may have a problem:
http://thefederalist.com/2018/07/02/potential-scotus-pick-brett-kavanaugh-wrote-roadmap-saving-obamacare/#.WzpQb8rLICY.twitter
narciso (d1f714) — 7/2/2018 @ 10:37 amFrom a moral point of view deciding an appeal is an act of material cooperation, not formal, and one where it is difficult to say what outcome is morally preferable.
kishnevi (bb03e6) — 7/2/2018 @ 10:49 amThat line from her article is I think a “tell”.
Obviously, I am not a Catholic much less a Catholic theologian, but I do know that a lot of pro-life Catholics argue that Democratic Catholic politicians should be publicly refused communion because they support abortion, and therefore are “materially co-operating”–such support being their votes in support of abortion and against restriction abortion. I would think a similar logic would apply to an appellate judge before whom an abortion law case was presented, and it would not be solved by recusal.
at the end of the day these ivy league trash supremers can either let abortions be regulated by the states or they can keep the status quo
neither prospect is particularly alarming really
happyfeet (28a91b) — 7/2/2018 @ 11:01 amBut if Ms. Barrett were nominated and confirmed, she’d be the only Supreme Court justice who didn’t go on the Harvard or Yale track.
Paul Montagu (852677) — 7/2/2018 @ 11:09 amI hope CBS News is never looked to for anything important. Those folks would sell their souls, let alone their own country out, for a ratings win.
Colonel Haiku (de797c) — 7/2/2018 @ 11:10 amVery interesting, as per your usual.
I am not sure the ship reached dock, however. In the case of capital punishment, she is saying that she can’t participate in a trial (or appeal, maybe) that will lead to a result that would violate her conscience – the prosecutor seeking the death penalty. I’m not sure that is the same as saying she would recuse herself from an appeal pivoting on whether the death penalty was Constitutionally allowed at all (e.g., recent younger guy in Texas (?), mentally impaired defendants, or whatever).
Her context about judges upholding their oaths is that they are sworn to uphold the law. If a state (or Federal) legislature passes and the governor (President) signs a death penalty bill which is otherwise in compliance with the state and federal constitutions, the judge needs to play ball or recuse.
But states won’t be passing laws requiring anyone to perform or undergo an abortion. The question before the Supreme Court will be, does some states ban on same aspects of abortion procedure (nibbling Roe to death) or an outright ban on abortions violate the US Constitution or other Federal law? Her oath to uphold the law obviously does not oblige her to enforce every law and past precedent – the Supreme Court strikes down laws and overturns precedent routinely.
If someone wants to insist she should recuse because she is not evaluating the abortion arguments “objectively” and is influenced by her religion (OMG!) and not just her ethical code. well, that’s a different argument.
But as I interpret her, on the Supreme Court she might
(a) comfortably participate in a death-sentence appeal hinging on whether the defendant was denied “cruel and unusual” protection due to age, infirmity, or whatever. Easy enough to say “this shocks the conscience”.
(b) recuse on a death penalty appeal hinging on something else altogether – illegally obtained evidence, for example, where her decision on the admissibility of the evidence will lead to a death sentence. Very hard to say “the evidence was obtained legally but I am throwing it out anyway because I can’t let this guy be executed”;
(c) participate in abortion cases where the validity of the law is the underlying issue.
Well, two cents. Keep the change we can believe in.
Tom Maguire (3636dc) — 7/2/2018 @ 11:10 amit depends the route that the precedent takes,
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2825096
narciso (d1f714) — 7/2/2018 @ 11:13 amVery interesting, as per your usual.
I am not sure the ship reached dock, however. In the case of capital punishment, she is saying that she can’t participate in a trial (or appeal, maybe) that might lead to a result that would violate her conscience, where the prosecutor is seeking the death penalty. I’m not sure that is the same as saying she would recuse herself from an appeal pivoting on whether the death penalty was Constitutionally allowed at all or should be blocked for 8th Amendment reasons. (e.g., recent younger guy in Texas (?), mentally impaired defendants, or whatever).
Her context about judges upholding their oaths is that they are sworn to uphold the law. If a state (or Federal) legislature passes and the governor (President) signs a death penalty bill which is otherwise in compliance with the state and federal constitutions, the judge needs to play ball or recuse.
But states won’t be passing laws requiring anyone to perform or undergo an abortion. The question before the Supreme Court will be, does some state ban on some aspect of abortion procedure (nibbling Roe to death) or an outright ban on abortions violate the US Constitution or other Federal law? Her oath to uphold the law obviously does not oblige her to enforce every law and past precedent – the Supreme Court strikes down laws and overturns precedent routinely.
If someone wants to insist she should recuse because she is not evaluating the abortion arguments “objectively” and is influenced by her religion (OMG!) and not just her ethical code, well, that’s a different argument.
But as I interpret her, on the Supreme Court she might
(a) comfortably participate in a death-sentence appeal hinging on whether the defendant was denied “cruel and unusual” protection due to age, infirmity, or whatever. Easy enough to rule “this shocks the conscience”.
(b) recuse on a death penalty appeal hinging on something else altogether – illegally obtained evidence, for example, where her decision on the admissibility of the evidence could lead to a death sentence. Very awkward to say “the evidence was obtained legally but I am throwing it out anyway because I can’t let this guy be executed”;
(c) participate in abortion cases where the validity of the law is the underlying issue.
Well, my two cents.
Tom Maguire (3636dc) — 7/2/2018 @ 11:15 amYes, let us hold the door wide open with a broad grin for this POTUS to pick the person to join the SCOTUS for the next 40 years or so. Let’s see… Captain Chaos’ campaign manager is in jail as I write this, whose former personal lawyer is struggling to stay out of jail (*cough*, gonna *cough* sing *cough cough*), and who has certain personality failings such as being a compulsive liar and in general dishonest as they come in New York City. On top of all this, our Dear Leader will also undoubtedly ask this person for their (wink, wink) undying loyalty too.
This reminds me of an old military acronym: SNAFU.
And Putin smiled.
Tillman (d34303) — 7/2/2018 @ 11:21 amso there are deeper concerns, about judge barrett’s philosophy, then her personal faith,
narciso (d1f714) — 7/2/2018 @ 11:22 am“This reminds me of an old military acronym: SNAFU.”
If Gorsuch is SNAFU and Sotomayor/Kagan are the gold standard, gimme SNAFU all day long.
harkin (ef4f0e) — 7/2/2018 @ 11:26 am33… the chapter on Justice due the Obama Administration has not been written yet.
Colonel Haiku (de797c) — 7/2/2018 @ 11:38 amTillman #33:
Every Republican — or almost every one — was elected on a “I don’t want the cultural change a Democratic Supreme Court will force” ticket. It doesn’t matter that the guy leading the ticket is a corrupt pig.
So, even if Putin is smiling like Jimmy Carter on crack, the Republicans will push through somebody who will vote right, not left. And the Democrats will be left gnashing their teeth and thinking up conspiracy theories, and not changing the result. And will stack the court, because they feel they have the constitutional right to own the court since 1938 or so, and they are not giving up that idea.
Appalled (96665e) — 7/2/2018 @ 11:41 amI have a revolutionary idea: How about we let her get a few years on the bench — her current seat is the only one she’s ever been on, and she’s been on it less than a year — and see how she does as a judge, before we squander this incredible opportunity on guesswork about her?
If she’s scary smart and able to be an effective judge, we’ll know in a year or two. She’s very young. And there are other members of the existing SCOTUS who are not very young at all.
I’m very concerned by the anti-Kavanaugh BS that’s popping up. Some Steve Bannon-type is doing a hit-job on a good judge, and it’s a bunch of crap as far as I can tell. I linked a pair of articles about him last night, including this one from Ed Whelan, which I believe comprehensively debunks the silly “roadmap to upholding Obamacare” BS from the no-name non-lawyer lobbyist narciso linked above. Here’s what Whelan has to say about the same Kavanaugh opinion:
There are rats in the woodpile. Kavanaugh didn’t get on the list due to a mistake or an accident. And an opinion hit-job like the one narciso linked completely ignores everything else he’s done in over a decade on the most consequential court of appeals that sees the most frequent number of high-profile cases on hot-button issues. Why do you think someone’s doing that cherry-picking?
Beldar (fa637a) — 7/2/2018 @ 11:43 amnk, what case or cases from Judge Kavanaugh that are in the pipeline are you worried that he might have to recuse from?
Beldar (fa637a) — 7/2/2018 @ 11:47 amBe careful what you wish for, Appalled. Republicans have been getting out the vote because of the (real or perceived) horrible liberal SCOTUS. So if it goes too far to the right, Republicans will suffer. See how that works?
Tillman (d34303) — 7/2/2018 @ 11:49 amWell, someone just retweeted this across my Twitterstream
https://twitter.com/costareports/status/1013831029679943680
If the worst they can come up with is that Kavanaugh correctly described Hillary, I think he’s pretty safe.
kishnevi (bb03e6) — 7/2/2018 @ 11:50 amTillman #40:
I am very aware of how things usually work. Which is what makes the leftward bolt by the Dems as a response to Trump so very disheartening.
Appalled (96665e) — 7/2/2018 @ 11:53 amThat’s quite the revelation, Beldar, about seeing how Ms. Barrett does after a few years of actual experience. I wish Obama would have listened to something so sensible.
Paul Montagu (852677) — 7/2/2018 @ 11:56 amDepartment of random WTFs. Has nothing to do with the thread topic, but I leave it here for your enjoyment.
Yesterday at work a customer walked past, looked at the display of men’s skin and hair care products that half blocks the aisle, and said “Only wussies use that stuff” in a tone that was openly disdainful of skin and hair products and the men who use them.
Said customer was wearing a tie-dyed blue and purple skirt, had half his hair done up in a hairstyle that emphasized the portion what was dyed blue and purple (to match the skirt, I suppose), and had a rather scruffy beard.
kishnevi (bb03e6) — 7/2/2018 @ 12:02 pm41. David Brock claims to have lip read Kavanaugh saying the word “b?tch” to describe Hillary. It’s highly unlikely. It’s highly unlikely anybody on Starr’s staff said that. Was Kavanaugh in the habit of mouthing words when he saw somebody on TV? If he was this would not be an isolated incident. David Brock is not
particularlyhonest at all.And why would Kavanaugh be focused on Hillary in 1997? Bill Clinton wanted people to attack Hillary as the evil person.
Sammy Finkelman (02a146) — 7/2/2018 @ 12:06 pmWorst $5 million ever spent. The message is, doesn’t matter who Trump nominates, we’re agin it! If he goes with someone like Kavanaugh, he’ll get the GOP votes and probably a handful of Democrats, too, and there’s not a damn thing Demand Justice or any other liberal can do about it.
Paul Montagu (852677) — 7/2/2018 @ 12:12 pmnk, what case or cases from Judge Kavanaugh that are in the pipeline are you worried that he might have to recuse from?
I don’t know that he has any, Beldar. I’m speculating that he might because of his position in the DC Circuit.
nk (dbc370) — 7/2/2018 @ 12:12 pmI was simultaneously pleased (because it solves the problem for Kavanaugh) and disappointed (because I feel strongly about the merits) that that PHH Corp. case, in which Kavanaugh had declared it unconstitutional but the en banc DC Circuit overruled him, didn’t generate a cert petition. But the next litigant opposing the CFPB in court is sure to use his panel opinion as a template to re-raise the issue, so it will be back, and Kavanaugh won’t be recused from that case (although he would indeed have been if it had been PHH Corp. appealing).
You’re surely right that all judges from the DC Circuit are more likely to have to recuse on a small handful of cases that were in the pipeline when they were elevated. And similarly, Kagan had to recuse on a remarkable 25 of 51 cases already pending when she was elevated from the Solicitor General’s spot in DoJ. But it’s a one-year problem at most, and in my judgment more than offset by the benefits of having the better-developed record. Do you think Obama, given his goals, wasted his choice on Kagan, who eight years after her appointment is still only 58 and who’s likely to be on the SCOTUS for a very long time?
Beldar (fa637a) — 7/2/2018 @ 12:24 pmIn #48 above, the “it” that Kavanaugh declared unconstitutional was the Consumer Financial Protection Bureau, in case that was unclear. (I’m pretty sure nk can track through my ambiguities based on context.)
Beldar (fa637a) — 7/2/2018 @ 12:26 pmthis is a fun and interesting take on Mr. amlo
happyfeet (28a91b) — 7/2/2018 @ 12:28 pmI’ve had no doubts about Hillary, nor the applicability of various epithets to her, since long before Bubba’s first inauguration. If you didn’t suss her out from the whole “stand by my man and bake cookies” episode during one of his first bimbo eruptions, you weren’t paying attention.
Kavanaugh actually has had a lot of practice keeping a poker face since he went on the D.C. Circuit. And frankly, that’s one of the reasons I want to see a nominee with a long record in that kind of public spotlight: It’s not just for the explicit track record they leave behind them in their written opinions and their voting on panels. It’s also for all the opportunities to screw up that they’ve faced and successfully avoided.
Beldar (fa637a) — 7/2/2018 @ 12:29 pmOne tries to ascertain more than cheap shots:
https://www.reuters.com/article/us-deutsche-bank-report/deutsche-bank-denies-manager-magazin-report-on-kushner-idUSKBN1FB1SG
frankly though, the job of a judge is to interpret the law, and not take it at face value, so what if the law mandated a tax,
narciso (d1f714) — 7/2/2018 @ 12:36 pmIf it is likely she would recuse herself in an abortion case, I think that would gain her Democrat votes for confirmation. They know they are going to get a conservative, but they would gain at least a chance of keeping Roe intact. But I’m not a lawyer so cannot predict what she would actually do.
I would like to hear Patrick’s thought on whether a conservative majority would attack Roe; why or why not. I personally think the law cannot solve everything. I knew of women who had abortions when it was illegal. It was not difficult. And it would be a civic disaster. There would be blood in the streets.
Patricia (3363ec) — 7/2/2018 @ 12:41 pmYuval Levin had an interesting post yesterday at NRO entitled The Roberts Court in which he distinguishes between the kind of judicial modesty evidenced by Chief Justice John Roberts and the kind of conservative judicial activism that some (but by no means all) conservatives want to employ to “fight fire with fire” against progressive judicial activism. After some discussion about the Bush-43 Administration’s tendency toward the judicially modest brand of judicial restraint, he writes, accurately:
I don’t want to replace the four unelected, life-tenured would-be progressive emperors in black robes with four unelected, life-tenured would-be conservative emperors in black robes. I don’t want emperors in black robes, period. I believe that the Roberts-style judicial modesty is not only the more principled point of view for true conservatives who understand separation of powers and checks & balances, but ultimately the more effective one.
I’m not particularly worried, because I don’t spot on the list anyone who I’d characterize as a crusader for judicial activism in conservative directions. Rather, those on the list probably fall somewhere between, say, Roberts and Thomas on that spectrum, which isn’t a very big swing. So I repeat:
If Trump throws a dart at the list and hits any of the names on it, I’ll sing his praises and count my blessings that we don’t have Cass Sunstein as Hillary Clinton’s nominee to worry about.
Beldar (fa637a) — 7/2/2018 @ 12:43 pmMost of Yuval Levin’s post addresses the likelihood of CJ Roberts becoming the SCOTUS’ new “swing vote.” Because I’m fond of my own writing, I’ll also reprint here my paywalled comment on Yuval Levin’s post:
Beldar (fa637a) — 7/2/2018 @ 12:50 pmBeldar’s concerns about Amy Barrett are valid, it’s much too soon to consider elevating Barrett, no matter how impressive her (thin) record has been.
She has less than a year’s experience on the Appellate bench, and the potential impact of her religious views has yet to be revealed. Simply put, it’s not her time yet.
Barrett aside, Kavanaugh is the front runner. Likely we’ll hear quite a lot about him over the next week, pros ann cons. But it’s Trump’s call.
ropelight (ffa127) — 7/2/2018 @ 12:55 pmMy own hunch is that Barrett’s name has been leaked as being on the short list for a combination of reasons that don’t actually point to her becoming the nominee. First and foremore, she’s got two X chromosomes, unlike anyone else supposedly on the short list. Second, she just survived a bruising confirmation battle, in which the Dem senators who attacked her for being Catholic were generally ineffective and obviously uncomfortable, which made Judge Barrett a favorite among the most battle-thirsty among Trump supporters. Third — and this is the most speculative, but I think the actual key — McConnell can reassure Susan Collins and Lisa Murkowski that Trump won’t pick her, whom they’ll view as the most obviously anti-Roe name on the short list. If, instead, McConnell can reassure them that their voices have been heard, and that as a result Trump will pick someone else who’ll go through the same kabuki show of refusing to make substantive answers about how they’ll rule that all recent Bush-43 and Obama nominees have performed, they’ll feel empowered and confident in joining the rest of the GOP caucus, as they did without hesitation or waivering in confirming Gorsuch.
Beldar (fa637a) — 7/2/2018 @ 12:58 pmLet is celebrate our agreement on this issue, ropelight. Cheers to you today.
Beldar (fa637a) — 7/2/2018 @ 1:00 pmJohn McCain To Resign Senate Seat on the 4th of July, Says Aide. Cindy McCain Offered his Seat
i’m dubious
happyfeet (28a91b) — 7/2/2018 @ 1:21 pmSusan collins will decide it if red state democrats hold. If they don’t dred scott decision all over again. Majority of america pro choice ;but don’t care that much as long as abortion legal. Supreme court can make them care. People who normally don’t bother to vote do vote when they are angry.
wendell (309984) — 7/2/2018 @ 1:27 pmWho shot J.R.?!?!
Stay-tuned!
What.
DCSCA (797bc0) — 7/2/2018 @ 1:50 pmA.
Showman.
giraffes are in the news today did you ever wonder why we don’t just start out own flock of giraffes here in america?
well there’s a reason for that it’s too cold! [PDF paid for by your tax monies]
so this is why wild giraffes in america aren’t a thing 🙁
happyfeet (28a91b) — 7/2/2018 @ 2:02 pmoops *our* own flock i mean
happyfeet (28a91b) — 7/2/2018 @ 2:05 pmAs long as she brings the beer, though I’d rather it be the consolation prize of the August primary.
urbanleftbehind (0a50c8) — 7/2/2018 @ 2:09 pmIf Barrett and Kavanaugh are the final 2 (and that could be more Trump drama/spin as DCSCA suggests), then the leaks suggest Trump will pick Yale Law graduate Kavanaugh over Notre Dame Law graduate Barrett. But populists may prefer a graduate from a midwestern school, plus Trump loves crafting images and Barrett is attractive.
DRJ (15874d) — 7/2/2018 @ 2:09 pm“Extreme vetting” for judicial nominees has arrived:
(emphasis added)
No focus on style over substance here, no sir!
Dave (445e97) — 7/2/2018 @ 2:11 pmI think that’s right, Beldar 57.
DRJ (15874d) — 7/2/2018 @ 2:12 pmThe reason McCain allegedly would resign is because he can’t vote in the Senate because he can’t travel.
Sounds like a hoax, especially the July 4 date. There’s plenty of time. Of course if he falls unconscious, there could be a problem.
Without him, 50-49 loses. With him, if it is 50-50, Pence breaks a tie.
Sammy Finkelman (02a146) — 7/2/2018 @ 2:17 pmif he gave a crap about serving his country this wouldn’t be anywhere close to a difficult decision would it
happyfeet (28a91b) — 7/2/2018 @ 2:21 pmMcCain could vote against Spanky’s pick just to thumb his nose at him.
Tillman (d34303) — 7/2/2018 @ 2:29 pmHi Patrick. and all…been a long time. I like Barrett. And I believe she will “balance” her Catholic beliefs just as her mentor, Justice Scalia did, by following a more originalist position in the law. Let us hope.
P.S. on the road to see the first grandchild. Been here a long time. Mrs. Reff is SSSSOOOOOOO EXCITED!!!
reff (9bc678) — 7/2/2018 @ 2:30 pmThe problem isn’t global warming, if they would only pay attention to what they write.
The problem is an a increased variability of temperature andf precipitation and that’s caused by water in the air.
https://www.nytimes.com/2018/06/29/opinion/sunday/immigration-climate-change-trump.html
Sammy Finkelman (02a146) — 7/2/2018 @ 2:31 pmit’s all them wind farms stealing the wind and changing all the weather patterns
happyfeet (28a91b) — 7/2/2018 @ 2:52 pmRoberts will slide into the swing vote spot.
“My life didn’t turn out the way I expected.” – Roy Hobbs [Robert Redford] ‘The Natural’ 1984
DCSCA (797bc0) — 7/2/2018 @ 3:13 pm@70.McCain could vote against Spanky’s pick just to thumb his nose at him.
Expect it. Hence the surfacing floaters about ‘resigning.’
DCSCA (797bc0) — 7/2/2018 @ 3:15 pmThe pertinent question to ask Judge Barrett about recusal is:
When you were a law clerk for Justice Scalia — a good Catholic whose interpretation of the obligations of his faith and his job never resulted in him self-recusing from any case based upon his own religious views — and you were helping him review cert petitions (which definitely included cases on the death penalty, abortion, religious liberty, and other hot con-law and federal law topics), did you ever have to recuse yourself?
Her answer will probably be “no, I didn’t,” and that should end the entire inquiry.
Beldar (fa637a) — 7/2/2018 @ 3:18 pmCongratulations, reff! I’m now actively embarrassing my own adult children whenever we go out to eat by fawning all over any infants in the restaurant, and then staring pointedly at my own as-yet-unmarried and not-close-to-kids-of-their-own children.
Beldar (fa637a) — 7/2/2018 @ 3:22 pmYou placed him in a very difficult position, Mr. Feet. He couldn’t resign without appearing to be intimidated by your constant attacks.
If you’d been kinder and more supportive it probably would have worked out better for all concerned.
Dave (59a371) — 7/2/2018 @ 3:29 pmBrian Ross leaves ABC News months after erroneous Trump report
“ABC News investigative correspondent Brian Ross and his producer resigned Monday after erroneously reporting last year that former national security adviser would testify that President Trump instructed him to reach out to Russia prior to the election. “After more two decades at ABC News, Brian Ross and Rhonda Schwartz have decided to leave the company,” the network announced.” -source, http://www.dailynews.com
DCSCA (797bc0) — 7/2/2018 @ 3:42 pmhe’s a vile cowardly un-American p.o.s. Mr. Dave
a nasty defilement of our polity
happyfeet (28a91b) — 7/2/2018 @ 3:42 pmThat’s just nitpicking, Mr. Feet.
Dave (59a371) — 7/2/2018 @ 3:47 pmBrian Ross should have been gone from ABC News after he tried to link the Tea Party to the Aurora CO theatre shooting.
They let him stay and he cr**ped the bed again, imagine that.
harkin (ef4f0e) — 7/2/2018 @ 3:49 pmIn other ranch news:
http://powerlineblog.com/archives/2018/07/the-brennan-factor.php
narciso (d1f714) — 7/2/2018 @ 3:53 pmJustice delayed is justices denied:
https://www.washingtontimes.com/news/2018/jul/1/paul-manafort-case-ruling-led-robert-muellers-exte/?utm_campaign=shareaholic&utm_medium=twitter&utm_source=socialnetwork
narciso (d1f714) — 7/2/2018 @ 4:07 pmGrandchildren are a blessing. We had to wait for our first two – we thought – for far too long. However, our oldest son getting married first was definitely the right thing to do, lol. Number 2 son will be getting married in October and as grandparents, we’ll be lucky to get one, as focused on their careers as he and his fiancée both are. Same with our daughter… focused on her nursing career.
Their mother and I have often been told what beautiful children – now young adults – we have. Our first two grandkids are healthy and cute as a bucket of kittens. I work with a few folks who for whatever reason never had any children, not that they were unable to have or adopt them, just no interest.
I’ve often thought how different life would feel in our golden years (insert gratuitous “whop, whop, whop”) without kids, let alone grandkids. Definitely not as fulfilling. I recommend them!
Colonel Haiku (de797c) — 7/2/2018 @ 4:40 pm57… I think this is most likely the case.
Colonel Haiku (de797c) — 7/2/2018 @ 4:42 pmIt would be ironic indeed if conservatives supported Barrett because they thought her Catholic faith would make her a certain vote to overturn Roe v. Wade — only to see her recuse herself from any such case because of that same faith.
[and others]
WTF does Roe have to do with anything, besides being DNC fund-raising fear-mongering?
I count two likely anti-Roe votes on the Court — Alito and Thomas. And maybe not Thomas. Gorsuch isn’t likely and there is no way that Roberts, who could not even find the balls to kill Obamacare will find them this time. He’s already shown himself captive to the Iron Law, and overturning Roe would put stress on the Court.
If it ever comes up again, Roe/Casey will be affirmed 6-3 and that will be that.
Kevin M (5d3e49) — 7/2/2018 @ 5:25 pm“A secret memo marked “URGENT” detailed how the House Democratic Caucus’s server went “missing” soon after it became evidence in a cybersecurity probe. The secret memo also said more than “40 House offices may have been victims of IT security violations.”
In the memo, Congress’s top law enforcement official, Sergeant-at-Arms Paul Irving, along with Chief Administrative Officer Phil Kiko, wrote, “We have concluded that the employees [Democratic systems administrator Imran Awan and his family] are an ongoing and serious risk to the House of Representatives, possibly threatening the integrity of our information systems and thereby members’ capacity to serve constituents.”
The memo, addressed to the Committee on House Administration (CHA) and dated Feb. 3, 2017, was recently reviewed and transcribed by The Daily Caller News Foundation. The letter bolsters TheDCNF’s previous reporting about the missing server and evidence of fraud on Capitol Hill.
It details how the caucus server, run by then-caucus Chairman Rep. Xavier Becerra, was secretly copied by authorities after the House Inspector General (IG) identified suspicious activity on it, but the Awans’ physical access was not.”
http://dailycaller.com/2018/07/02/awan-memo-server-vanished/
Colonel Haiku (de797c) — 7/2/2018 @ 5:25 pmThe only reason to nominate someone like Barret is to put a wedge between Democrats and Catholics. Feinstein’s bigotry fell on deaf ears because few follow appellate nominations. Let her attack a Catholic, as such, in a high-profile hearing and it will reverberate in California and the Southwest, where Catholicism is a dominant faith. It would be like Gilliland attacking NY Jews for being Israeli tools.
But it isn’t good enough.
Kevin M (5d3e49) — 7/2/2018 @ 5:36 pmIn the end Trump will appoint a statist and it doesn’t really matter to me what flavor that is.
Kevin M (5d3e49) — 7/2/2018 @ 5:37 pmColonel #85: I was an older father, so I am hoping I can live long enough for grandchildren. Well, more accurately, healthy enough to do things with them. So I feel what you wrote. I never thought I would have kids until I was lucky enough to meet my second wife.
Kevin M: I do worry about the Supreme Court intruding into things other than originalism. Glenn Reynolds’ solution is to expand the Supreme Court. I’m very, very loathe to do so. But I think that the small number of Justices can easily lead to a statist mindset. Because let’s face facts: everyone these days seems to know what is better for everyone else.
Yes, I’m afraid for my kids.
Simon Jester (c8876d) — 7/2/2018 @ 5:44 pmLouis Gohmert says Rosenstein is spying on him…
Messin’ With
The KidTeh GomWhat’s this a-here goin all around town
Colonel Haiku (de797c) — 7/2/2018 @ 5:57 pmThe Rosenstein say he gonna put teh Gohm down
Oh no
Who made him Caesar like in Rome
You can call it what you want to
I call it messin’ with teh Gohm
You know teh Gohm’s no child and he don’t play
He say what he mean and he mean what he say
Oh yeah yeah yeah yeah yeah
Who made him Caesar like in Rome
You can call it what you want to
I call it messin’ with teh Gohm
You know teh Gohm’s no child and he don’t play
He say what he mean and he mean what he say
Oh yeah yeah yeah yeah yeah
Who made him Caesar like in Rome
You can call it what you want to
I call it messin’ with teh Gohm
91… they are an absolute joy, Simon.
I have an Aunt who is 93 years young, nothing can hold her down. She has 20 grandchildren, 56 great grandchildren and 2 great-great grandchildren with another on the way. How’s that for being fruitful and multiplying!
Colonel Haiku (de797c) — 7/2/2018 @ 6:10 pmI don’t think you have to reverse roe, to create the craniAL implosion, just the approval of a sufficiently severevregi.e like Mississippi or Oklahoma, than handmaids tale baby.
narciso (d1f714) — 7/2/2018 @ 6:13 pmSCOTUS needs a Constitutionalist, not an unknown with just a religious background.
jason stewart (5282a4) — 7/2/2018 @ 6:16 pm@ Kevin M, who wrote in #87 above:
We don’t have to guess about Thomas: He joined C.J. Rehnquist’s full dissent, along with Justices White & Scalia, in Casey. He would overturn Roe in the proverbial (fetal) heartbeat. I agree with you that Alito seems very likely to vote that way, too.
As to Roberts, Gorsuch, and [Trump Appointee #2*], however, I have a different and much more optimistic take than you do, I think.
As long as Kennedy was on the Court to give the libs a fifth vote, neither Roberts nor any other realist wanted to see the Court take up any abortion cases, if it could possibly avoid it, out of concern for further reaffirmation of Roe, even in the ugly and indefensible version of its purported rationale that survived in Casey. The same is true on a host of other hot-button issues, including gerrymandering, voting rights, death penalty, free speech, free exercise/establishment clause cases, and all the other places when Kennedy has been an unreliable ally at best.
Assuming Kennedy is replaced by someone “in the mold of Scalia” — a reliable fifth vote — then I look for Roberts, Gorsuch, and [Trump-Appointee #2] to start accepting a ton of cases they’ve previously not pushed for certiorari on. I expect to see more full-throated conservatism like that which Chief Justice Roberts provided in Parents Involved in Community Schools v. Seattle School District No. 1, the 2007 school desegregation case, when he memorably wrote that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” He was swinging for the fences, even though Kennedy wimped out on parts of the opinion.
That’s why I’m giddy. That fifth vote changes everything, including the relative assertiveness or prudent non-involvement that the other three (plus now Gorsuch) have been mostly engaged in since Casey.
———–
Beldar (fa637a) — 7/2/2018 @ 6:16 pm*Provided, however, that Trump sticks to the List!
In #96, that ought have read: “Assuming Kennedy is replaced by someone “in the mold of Scalia” — a reliable fifth vote — then I look for Roberts, Alito, Thomas,, Gorsuch, and [Trump-Appointee #2] to start accepting a ton of cases they’ve previously not pushed for certiorari on.
Apologies to Justices Alito & Thomas.
Beldar (fa637a) — 7/2/2018 @ 6:19 pmTo put another way my argument in #96 above:
While Kennedy was there to give a fifth vote to the four hard-Left Justices on the SCOTUS continuously since at least Casey, the four reliably conservative Justices have had to import from our cousins in medicine that bit from the Hippocratic Oath: First do no harm!
When you’re no longer worried that every cert vote is going to give the libs a chance to reanimate their “living, breathing Constitution” in a way that makes awful precedent which binds the lower courts nationwide, then you can actually make a good start at fixing the things Justice Kennedy helped them screw up.
Beldar (fa637a) — 7/2/2018 @ 6:25 pmI was thinking about how Supreme Court nominations have become such a matter of obsession the other day.
Of course, like any other substantive change requiring a constitutional amendment, this would never happen, but humor me:
Suppose each presidential term is comes with a single Supreme Court nomination attached. In addition to voting for a president + vice-president, the “ticket” will now also include a supreme court justice, and the electors will cast three votes accordingly. No senate confirmation.
If a president’s nominee dies, resigns or otherwise leaves the bench before the end of the presidential term in which he or she was elected, the president may nominate a successor; a 2/3’s senate vote is required to *block* (not confirm) such a replacement nominee.
When a supreme court justice other than the one elected in the current presidential term leaves the bench for any reason, no replacement takes his or her place. This process of attrition should keep the court close to its current size of around 9 justices (assuming justices serve around 35 years).
The longest-serving current justice acts as Chief Justice.
An exception would have to be made for filling vacancies if the court somehow fell below a minimum size, perhaps 5 or 6. In that case (which would be very rare), I would suggest temporary, non-renewable 1-year appointments by lottery from the pool of circuit court justices. Once the court had the minimum number of permanent justices, temporary appointments would cease.
One obvious argument against this system is that electing supreme court justices politicizes the bench. But I think there is not really much difference between my proposal and pre-publishing a list of future nominees, which has already been done.
Dave (445e97) — 7/2/2018 @ 6:30 pmBut for want of a word. Judicial activism would not even be known if the Fourteenth Amendment’s enabling clause read: “Only the Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” A non-activist Court could have read it that way to begin with and established the precedent. But Captain Earl Warren scuttled that ship before it even sailed.
nk (dbc370) — 7/2/2018 @ 6:40 pmHe also reinstituted Kentucky’s medicaid
http://houstonpublicmedia.org/articles/news/2018/07/02/293972/judge-rules-trump-administration-cant-arbitrarily-detain-asylum-seekers/
Narciso (d353a5) — 7/2/2018 @ 6:45 pmDave, I think life tenure is a bigger deal, constitutionally, than you’re giving it credit for. It’s intrinsic and fundamental to, a precondition for, our current separation of powers. The precise limits on what Congress can do in rearranging the federal courts hasn’t really been tested, because previous changes have almost all (at least since 1869 or so) been expansions rather than contractions. But for example, the suggestion you mentioned that you’d read to the effect that Congress could abolish all the district and circuit courts and replace them — that’s not possibly consistent with “life tenure” in my opinion, and I think the supposedly replaced judges would promptly rule it to be an invalid, unconstitutional pretext (as it would be).
It’s a three-legged stool. Saw an inch off one leg and it’s going to wobble at best, but more likely topple over. I enjoy academic discussions of possibilities, by all means, and I understand that you’re just speculating. But I’m deeply skeptical of tinkering with the main structures.
I’m still absorbing Jonah Goldberg’s new book, which focuses upon the improbability, and vulnerability, of what he describes as “the Miracle.” If anything, it makes me all the more determined to hew closely to the Founders’ blueprints; they’re the closest thing to magic that humankind has ever accomplished, as far as I’m concerned.
Now excuse me, I need to go chase some kids off my lawn.
Beldar (fa637a) — 7/2/2018 @ 7:14 pm(I put no faith in princes, only in principles and the enduring statement thereof through the Constitution.)
Beldar (fa637a) — 7/2/2018 @ 7:16 pmI wonder if Trump has consulted his sister about who he should nominate? Or if he consulted her about Gorsuch?
Even across circuit lines, circuit judges pay more attention to other circuit judges than just about anyone else in America, for obvious reasons. I think I’d be okay with it if he did, as long as he’s asking about her views as among the choices already on the list.
Beldar (fa637a) — 7/2/2018 @ 8:18 pmBarrett has an interesting philosophy which is too nuanced for the chiwderheads on the committee.
Narciso (d353a5) — 7/2/2018 @ 8:28 pmHugh Hewitt retweeted a report that Kethledge was excellent in an interview by DJT earlier today.
Wonderful, if true.
Ed from SFV (6d42fa) — 7/2/2018 @ 8:44 pmMy older sister spent a few too many minutes of a recent family dinner gushing over Ruth Bader Ginsburgs workout regimen. So we get articles wondering if Barrett should recuse herself from everything due to her religious faith, but hey, Ginsburg, all 75 lbs. of her, does planks
steveg (a9dcab) — 7/2/2018 @ 9:02 pmMaybe after gubarev has acquired buzzfeed:
https://www.thegatewaypundit.com/2018/07/deep-state-fbi-release-trump-lawyers-documents-to-far-left-buzzfeed/#comment-3971630666
Narciso (d353a5) — 7/2/2018 @ 9:31 pmHey reff! Good to see you! I hope you will stick around.
Patterico (115b1f) — 7/2/2018 @ 9:46 pmMe too. I find it surprisingly enjoyable. I enjoy Jonah’s columns but never read his books before; I had the idea that they’d be too chock-full of hoity-toity philosophy for my taste. Kind of a book-length Michael Brendan Doughterty or Matthew Walther column. But I really really like this book so far.
Patterico (115b1f) — 7/2/2018 @ 9:48 pmGlad you guys are enjoying Jonah’s book – I did too.
I found the chapter on the “administrative state” unconvincing, but the rest is really a tour de force. (And it is not really an anti-Trump book, in case that idea is preventing anyone from picking it. Of course, it is certainly not a pro-Trump book either…)
I thought Jonah’s Liberal Fascism was excellent too, and recommend it highly.
Dave (445e97) — 7/2/2018 @ 10:31 pm@ Patterico (#110): Goldberg’s new book is more ambitious in most respects than the first. He repeatedly said that he left as much on the floor as he included, but I think he needed a better editor and probably more time, and perhaps some of what was left on the floor ought to have been included. It’s a bit of a hot mess, although an enjoyably readable one. And I find myself returning, again and again, to his hypotheses as I watch the engagements here on this blog’s comments and elsewhere in the American political dialog. I’ll probably re-read it in six months or so. I believe it is an important book, despite its imperfections.
I thought Goldberg’s first book, “Liberal Fascism,” was very good indeed, as well done as anything I’ve ever read about the extreme right and extreme left coming around to meet, and the alternative framework of viewing our ongoing political struggle in terms of statism vs. classical liberalism. It taught me quite a bit of American history that I did not know, but enough of which I’ve independently confirmed to be confident in, regarding Woodrow Wilson. Boy, did he get a whitewash in the history I’d always been taught. It’s better organized and less flighty than Goldberg’s columns tend to be, which actually makes it easier to read seriously at a stretch. I recommend you add it to your queue, non-urgently.
Beldar (fa637a) — 7/3/2018 @ 12:06 amThe title of the new book is a bit of a spoiler, which is to say, it’s not terribly optimistic.
Beldar (fa637a) — 7/3/2018 @ 12:09 am@ Dave, further to my comments in #102 about the importance of life tenure:
I’ve worked with tons of lawyers in the last 41 years (counting since the beginning of law school), in all sorts of capacities, and of all sorts of abilities. That includes non-practicing lawyers who’ve become businessmen, sedate civil-practice lawyers who do trusts & estates or tax, deal lawyers who put mergers and transcontinental projects together, and a whole host of adversary practice lawyers. In the last category I’ve worked with lots and lots of state judges, both trial and appellate, including the immediate past Chief Justice of the Texas Supreme Court, who was briefly a colleague and remains a distant friend.
And I’ve known a still goodly, but much smaller number, of Article III federal judges, both at the district and circuit court levels. I worked for a year for a circuit judge who was in her second year on the bench — she’s now the longest tenured judge in the history of the Fifth Circuit, and was the best boss I ever had in the best job I ever had, and I adore her. Through her and otherwise, I was briefly exposed, socially and professionally, to a decent handful of other appellate judges. Some friends have become federal judges, most significantly, a good friend and former colleague who used to be one of my practice partners for closing arguments when we were journeymen trial lawyers, who’s now the chief judge of the Southern District of Texas. (She’d have been a magnificent SCOTUS appointee, by the way.)
And I will tell you this, based on all of this experience with all of these lawyers in all of these capacities:
That tiny set of federal trial and appellate judges — in the little Venn diagram segment that doesn’t even include the very top state-court judges — are profoundly different from everyone else: They can’t be fired. They can’t be thrown out by the voters. Even the judge for whom I clerked, by her second year, had accepted and fully internalized the profound change in her professional circumstances, and it formed a constant inobtrusive but important background to everything she did, or still does, in her professional capacity.
Yeah, Article III jduges can be impeached, in theory, but … pfffft. I also saw what a Galveston federal district judge had to do, by way of a Harvey Weinstein scenario, to get drummed out. “During good behavior” isn’t a high bar, unless you’re inclined to serious sexual assault, tax fraud, or other big-time screw-ups.
Of course, this same job invulnerability (within limited circumstances) is the proverbial double-edged sword, for with independence from political reprisals comes isolation from ongoing republican government. Some people handle the power poorly, and many others who manage it adequately are nevertheless affected by it in unfortunate ways. I don’t advocate life tenure for state-court judges, for example, and I’m reasonably well satisfied with our current partisan elections system for state-court trial and appellate judges in Texas.
But for the federal system, I genuinely do think that the life tenure component of the separation of powers system is really important, even if its importance is almost never apparent (at least in positive ways) to most of the American public. And I’ve never had a job with life tenure. If I could land one, it would certainly change me — I hope for the better, but I can’t doubt that I’d be changed.
Beldar (fa637a) — 7/3/2018 @ 12:29 am(This is likely to be misinterpreted by some readers, I expect. So be it, it’s in the nature of personal musings.)
Beldar (fa637a) — 7/3/2018 @ 12:31 amBeldar, I can relate to what you say more than you may imagine – remember, I’m a tenured professor, and while our duties and responsibilities aren’t as weighty as those of a federal judge, I agree it definitely changes one’s perspective.
I thank you for correcting an embarrassing misunderstanding of mine – I didn’t realize that life tenure for judges below the Supremes is written into the constitution. Even so, it is just as easy to “pack” the lower courts by creating new seats, if a party with sufficient votes and willpower decided to do so.
And I agree with you about Wilson and Liberal Fascism. The “progressive” era has always been something of gap in my knowledge of US history. That part of the book alone makes it more than worth the read (but it’s excellent throughout).
Dave (445e97) — 7/3/2018 @ 4:36 amWRT the death penalty; Pretty much all the members of the NCCNGTA (National Council of Churches Nobody Goes to Anymore) oppose the death penalty. That’s a lot of recusing, if that’s the point.
Richard Aubrey (10ef71) — 7/3/2018 @ 5:07 amWhile annoying the libs isn’t the reason to pick a candidate, it does allow for some happy anticipation as a side effect.
One would think that, by now, all the idiots have self-identified. But not all of them have done so as publicly as the confirmation will allow.
Burnham wrote a similar spenglerian tome in 1964, as was barks Jeremiah, the first things symposium in 97 covered some of the same ground
narciso (d1f714) — 7/3/2018 @ 5:41 amBone appetit:
https://www.cnsnews.com/news/article/susan-jones/trump-probably-not-going-ask-scotus-nominees-about-roe-v-wade
narciso (d1f714) — 7/3/2018 @ 6:07 amI don’t know if he consulted her but, when Gorsuch was chosen, she did speak to Trump in favor of her colleague, Third Circuit Judge Thomas Hardiman.
DRJ (15874d) — 7/3/2018 @ 6:40 amFrom the same Politico (*) link:
(* Some will discredit this solely because of the source.)
DRJ (15874d) — 7/3/2018 @ 6:46 amHardiman and Gorsuch were the top two finalists for Scalia’s seat. Trump brought those two finalists to DC before his announcement that he picked Gorsuch, so Hardiman was in the top two.
DRJ (15874d) — 7/3/2018 @ 6:49 amAnd yet it wasnt determinative, in the final analysis:
https://legalinsurrection.com/2018/07/a-dem-fight-over-amy-barretts-catholicism-may-be-just-what-trump-wants/
Certain precedents matter, say Griswold and romer others dont
narciso (d1f714) — 7/3/2018 @ 6:52 amThe problem are the twin pincers if demography and indoctrination into progressive mindsets:
https://thefederalist.com/2018/07/03/brett-kavanaugh-said-obamacare-unprecedented-unlawful
The first can be ameliorated, the second is much harder to remedy.
narciso (d1f714) — 7/3/2018 @ 7:01 amThere were only 23 executions in all of 2017, and 12 so far this year. While the nation’s courts hand down capital sentences in plenty, few condemned men are actually ever executed. Capital sentences are more along the lines of juries saying, ‘You’ve been a really bad boy, and we really don’t like you,’ without any real expectation that the condemned criminal will actually be put to death.
In Pennsylvania, prosecutors — who are elected officials — press for death sentences all the time, to show how tough on crime they are, but since the reinstitution of capital punishment, only three men have actually been executed in the keystone State, and all three ‘volunteered,’ by voluntarily dropping their appeals. The previous Republican governor, Tom Corbett, signed 47 death warrants during his four years in office, but not a single criminal was executed; no one has been executed in Pennsylvania this century!
There are 181 people on death row in Pennsylvania, and the odds are that not a single one of them will be put to death.
Since reinstitution, in 1976, 33 people on Pennsylvania’s death row died in prison of something other than execution, 169 had their sentences reduced to life in prison, 16 had their sentences reduced to something less than life, and six were exonerated.
That’s 408 people sentenced to execution, and only three were executed, all three of them having volunteered. That’s a ‘success’ rate of 0.74%!
In execution-happy Texas, the number of capital sentences imposed has dropped dramatically, averaging fewer than ten per year for the past decade.
Given how inefficient capital punishment has been, even on those sentenced to death, why do we even bother?
Conservatives waste so much time and energy and money on supporting capital punishment, even though it weakens their pro-life stance when it comes to abortion that, given how rarely executions are actually carried out, it has been counterproductive. If Amy Barrett is elevated to the Supreme Court, and she does recuse herself on capital punishment cases, resulting in perhaps a couple of executions not happening, so what?
The Catholic Dana (7ec1ff) — 7/3/2018 @ 7:03 amOf that figure that died in prison while, awaiting execution, how many were natural causes and how many were killed by other inmates or COs (in the case of a struggle) ?
urbanleftbehind (0a50c8) — 7/3/2018 @ 7:12 amMr behind asked:
My source did not break down those figures, but, given that death row inmates are locked up, in individual cells, for the vast majority of the day, they are not exposed to the same dangers as prisoners in general population. My guess is that most of them died of illness and old age, but I do not know
The pro-life Dana (7ec1ff) — 7/3/2018 @ 7:32 amYou can’t make money off dead prisoners. On the other hand, a live prisoner is worth a cool $30,000-plus a year to the prisoner industry. From prison guards to slop providers to steel mills to concrete contractors, to mention a few.
nk (dbc370) — 7/3/2018 @ 7:42 amOur Windy City barrister wrote:
There are no death row inmates in private prisons! And the states are having real difficulties with the costs of prisons; it would be far cheaper for the states to commute all capital sentences and put the condemned into general population than it is to maintain the special housing for them, along with the costs of a zillion appeals.
The economist Dana (7ec1ff) — 7/3/2018 @ 7:46 amDana,
because certain crimes are deserving of forfeiting your own life.
NJRob (b00189) — 7/3/2018 @ 7:49 amIn execution-happy Texas, the number of capital sentences imposed has dropped dramatically, averaging fewer than ten per year for the past decade.
Which says that the best defense against overuse of the death penalty is USE of the death penalty.
Kevin M (5d3e49) — 7/3/2018 @ 7:51 amBeldar–
#96, etc. Roberts was the swing vote on Obamacare, so the “if, but for Kennedy” argument doesn’t hold there. I don’t see him as a man who’s willing to stand up to the firestorm. I also see him as wanting to protect his Court from political repercussions. He’ll help remove a few doorjambs, but not the whole door.
Kevin M (5d3e49) — 7/3/2018 @ 8:02 amThe concrete contractor from America’s premier steel-producing state wrote:
And what does that have to do with anything? The prisoner industry is not only an investor making a profit at the top of the pyramid. It’s everybody sucking up a piece of that $30,000-plus. I listed some above. And it’s not only death rows. You’ve also got the lifers and near-lifers who avoided death row to begin with, all the way down to the guy on work-release doing only weekends.
nk (dbc370) — 7/3/2018 @ 8:09 amTexas prosecutors have learned from experience which cases will indeed support capital charges and which won’t, and especially in Houston, Dallas, and San Antonio (the three biggest Texas cities with the most crime and criminals and the biggest criminal dockets), they’ve become very selective indeed in those choices. As a result, there are fewer capital murder convictions, but of those, most are upheld on appeal by both the Texas state courts and the federal courts here which review habeas corpus petitions.
I assure those from out of state that within Texas, capital punishment is still taken very, very seriously, and while I would never describe Texas as “execution-happy,” my friend Adjectival Dana is correct that we still have executions scheduled and carried out with enough frequency to remind everyone in the state, legally or not, of the non-theoretical nature of our death penalty here as opposed, perhaps, to many other states.
I continue to support capital punishment because I think that for the worst murders, it is the only form of retribution which can exact adequate punishment. I’m therefore unpersuaded that the difficulty of trying and upholding capital charges is a good reason to abandon capital punishment, and more to the point, so’s the Legislature, which continues regularly to appropriate the money to maintain those prisoners whether they’re on death row or not.
But I do respect the sincerity of those who oppose it, for religious or other reasons, and I freely concede that there are intellectually rigorous and self-consistent arguments against capital punishment. The relative arbitrariness of capital punishment was one of the main factors that led the SCOTUS, in Furman v. Georgia and its companion cases in 1972, to strike down all then-existing state capital punishment statutes. In states like California — where, despite our host’s very best individual efforts in his day job, capital punishment is almost never actually carried out — the next fellow to be scheduled for execution has, and certainly will make, arguments about the relative arbitrariness of executions under the new state statutes of the sort that were approved in Gregg v. Georgia and its companion cases in 1976. I do not poo-poo those arguments, and I wish that Texas could speed up the process even for its relatively more regular (and less arbitrary) executions of sentence.
Beldar (fa637a) — 7/3/2018 @ 4:14 pm(My support for capital punishment doesn’t depend on a deterrence argument, for I think it’s practically impossible for anyone to ever prove or disprove the degree to which an effective capital punishment system, even regularly administered, actually deters further capital murders. If and to the extent it does, that’s a good thing; but my support of the system is based on concepts of retribution and proportionality of sentence to offense, not deterrence.)
Beldar (fa637a) — 7/3/2018 @ 4:19 pmEvery comparison of capital punishment to abortion is wildly inappropriate. No aborted fetus gets any legal process at all, due or otherwise; no crime of theirs creates any basis for state retribution.
Beldar (fa637a) — 7/3/2018 @ 4:21 pmShe was also clerk for kosinski:
narciso (d1f714) — 7/3/2018 @ 4:22 pmhttps://mobile.twitter.com/courtneymilan/status/1012781200371433472
Beldar wrote:
Proportionality? We got the guy who dragged James Byrd to death behind a pickup truck, and the ‘proportionality’ of the sentence was that he was put to sleep like an unwanted kitten. Virtually no one is murdered as gently as we execute criminals.
The philosopher Dana (b2c4bb) — 7/3/2018 @ 6:18 pmWell he can’t violate the 8th amendment, firing squad used to the preferred technique now I guess the concern is about lead poisoning?
narciso (d1f714) — 7/3/2018 @ 6:21 pmBeldar wrote:
While I signed myself — truthfully — as The Catholic Dana in the original, and my conscience is informed by my faith, it should be noted that I made no religious, moral or philosophical arguments at all. Rather, my arguments were all based on practicality and efficiency, that capital punishment is highly, and needlessly, expensive, and that we mete out death sentences to criminals who have little chance of ever being executed.
Any system like the one in Pennsylvania, which achieves its stated goal 0.74% of the time is going to be regarded as a complete failure and ridiculous boondoggle by any reasonable standard.
In Texas, the 226 men on death row have spent an average of 15 years, 5 months. The state spends a boatload of money to get the bad guys executed, and they are still sitting there for a decade and a half.
Of the 12 executions so far this year, 7 were in the Lone Star State; in all of 2017, Texas executed 7 murderers. At the rate Texas is executing condemned men — 21 over a two year period, extrapolating that the seven executions in the first half of 2018 will mean 14 before the year is over — it will take 21½ years to execute everyone currently on death row, and that assumes that no one else will be sentenced to death in the interim.
Any businessman will tell you that that’s piss-poor efficiency.
The economist Dana (b2c4bb) — 7/3/2018 @ 6:41 pmThis isn’t ordinary business, and the families of the slain deserve more from society than metered justice delivered according to a cost-benefit analysis. I don’t dismiss your arguments, Dana, by any means. I find them insufficiently weighty to convince me, however, and they’ve been made, but have failed to convince, the Texas Legislature.
Beldar (fa637a) — 7/3/2018 @ 7:04 pmI watched a documentary last night regarding Saddam Hussein’s crimes against his own people. It included footage of Saddam’s thugs taping hand grenades to the chests of dissidents before detonating them. (They’d all been beaten, tortured, forced into confessions, and then tortured further, gratuitously out of a lust for violence, before their executions, of course.) Saddam ordered the videotaping, and subsequent distribution of the tapes for widespread viewing in Iraq, because he was quite literally a terrorist, and his purpose was to instill such terror into his countrymen that effective resistance to his dictatorship would disappear; and for many years, that worked for him. I regretted that Saddam’s own hanging was entrusted to personnel who mocked him and chanted the name of Shia cleric Muqtada al-Sadr, turning his well-deserved demise into tawdry spectacle.
Capital punishment as administered in Texas isn’t intended to terrorize law-abiding members of the public. You’re absolutely right that there is a huge disparity between the violence and depravity of the underlying crimes and the tightly controlled solemnity of an execution by lethal injection. I’m in favor of maintaining that disparity.
Beldar (fa637a) — 7/3/2018 @ 7:21 pmThe death penalty is expensive because our spendthrift society is willing to pay the money. (Which is the same reason, BTW, why everything which is expensive is expensive, from lobster dinners to Lamborghinis, it’s what people are willing to pay for them.) If our society said, “Hell no, we ain’t paying for no twenty years of lawyers and judges and prison guards and prison cells! Hang them within a month or let them go!”, then we’d hang them within a month or let them go. Like what happened with Giuseppe Zangara. He shot Anton Cermak on February 15, 1933, Cermak died on March 6, Zangara was executed on March 20, 1933.
nk (dbc370) — 7/3/2018 @ 7:21 pmVery briefly, in 1980-1981 during my judicial clerkship, I was confident that I was genuinely, thoroughly current and on top of all important American death penalty jurisprudence. On the advice of the outgoing clerks, my two co-clerks and I drew straws at the beginning of the year: Short straw got the death penalty cases, middle straw got the diversity cases from Louisiana, and long straw got the appeals from denials of Social Security benefits, and I ended up with the short straw, which suited me just fine. It beat the endless and spectacularly dull record-reading from the benefits cases and the annoying additional work required of any non-Louisiana lawyer trying to grapple with Louisiana law (which was, and is, substantially dissimilar from the law in 49 other states and the District of Columbia, and they like it that way).
This was as the first huge lump in the belly of the snake was hitting the old Fifth Circuit, then comprising six of the most pro-capital punishment states in the country: TX, LA, MS, AL, GA & FL. Furman v. Georgia had invalidated virtually all state capital punishment statutes, but they were mostly rewritten, and then approved as constitutional, in Gregg v. Georgia and its companion cases. So there had been a huge wave of retrials, under the new statutes, of the capital defendants who’d previously been convicted and sentenced under the old regime (none of whom had gotten, for example, the bifurcated guilty and penalty trials the SCOTUS was requiring). Plus, of course, there were still capital crimes being committed, with those defendants getting their initial trials under the new statutes. By 1980-1981, all those trials and retrials, starting in roughly 1977, had mostly worked their way through their state-court appeals, and their habeas corpus challenges in the federal district courts were beginning to hit the Fifth Circuit in heavy volume.
The resources in my judge’s chambers, then, very much reflected the high price, in economic terms, that society was paying in order to prosecute and convict capital murder defendants and see them sentenced to death. Those cases took tons more time, and we were all hyper-careful to avoid any kind of mistakes. The capital cases I ended up helping write opinions for took an inordinate amount of my, and my judge’s, time and attention, but we did not resent that. Rather, we embraced it as a necessary part of death penalty appellate practice.
I still look back at the work I did on those cases as some of the most important and meaningful legal work I’ve ever done. But as I ended the year, I thought to myself: Okay, starting tomorrow, I am no longer going to be able to stay genuinely, thoroughly current and on top of all important American death penalty jurisprudence. I’m going to know a progressively smaller fraction of that law with every passing year, as new decisions come out. By now, it would be malpractice per se for me to attempt to handle a death penalty appeal, even though I try to keep up with the major changes in precedent. And it’s too important to leave to amateurs and dilettantes.
Beldar (fa637a) — 7/3/2018 @ 8:50 pmI don’t know how much Cermak’s death changed Chicago’s history, nk, but the missed shot that killed him sure would have changed world history if it had hit its intended target.
Beldar (fa637a) — 7/3/2018 @ 8:54 pmI was part of a death penalty defense team, pro bono, for a time. I did an interlocutory appeal from a denial of a motion to dismiss on the grounds of double jeopardy. That alone put off the trial date for a year.
nk (dbc370) — 7/3/2018 @ 9:01 pmI don’t know how much Cermak’s death changed Chicago’s history, nk,
A lot. A lot lot. America’s too. It opened the way for the Irish to seize Cermak’s Democratic Machine, leading to Mayor Richard J. Daley and Kennedy’s win in 1960; the Daley resurgence with Richard M. Daley and Obama’s elevation; and the present mayor, Rahm Emmanuel, a direct inheritor of the purple.
nk (dbc370) — 7/3/2018 @ 9:13 pmIf it had hit another target John nuance garner might have become president, he was more pragmatic a democrat.
narciso (d1f714) — 7/3/2018 @ 9:16 pmI don’t know how much Cermak’s death changed Chicago’s history, nk, but the missed shot that killed him sure would have changed world history if it had hit its intended target.
As postulated by Phil Dick in his book The Man in the High Castle.
Kevin M (5d3e49) — 7/3/2018 @ 10:25 pmThis is an interesting essay from a former clerk of Brett Kavanaugh: Judge Brett Kavanaugh’s Impeccable Record of Constitutional Conservatism:
The author then tracks through, in detail, specific examples of Kavanaugh’s record, including several cases that have been used by Kavanaugh critics to cast unjustified aspersions. I’ve written in comments here about one such badly mistaken attack, by Ben Shapiro regarding Chevron deference, which Shapiro had to recant. If you’re presently troubled about Kavanaugh based on such attacks, though, I commend to your reading this essay’s detailed and persuasive discussion of the key cases.
She concludes:
I am not, for the most part, a “social conservative,” but the author of this essay apparently is: She’s described as “special counsel for the Thomas More Society, a not-for-profit, national public-interest law firm dedicated to restoring respect in law for life, family, and religious liberty.” I do consider myself a constitutional conservative, though, which is the kind of conservatism that I want to see in a SCOTUS nominee. From either perspective (and they partly overlap), I continue to believe that Kavanaugh is the least risky choice Trump could make, precisely because he does have such a long and deep and consistent track record on exactly the kinds of cases that are the most important.
But I’ll still support anyone from the List of 25. On this Fourth of July, I’m hoping the holiday distractions and short time fuse will help keep Trump from screwing this up (probably through some literally injudicious tweet).
Beldar (fa637a) — 7/4/2018 @ 12:05 pmI like what I’ve read about the judicial picks, especially Judge Kethledge. I hope Trump’s choices turn out to be conservatives. Trump seems to be trying to pick conservatives but it’s hard to know what they are or will be. I won’t blame him if they aren’t because he seems to be trying to pick conservative jurists.
DRJ (15874d) — 7/5/2018 @ 8:47 amTrump is nuts if he nominates her–she can’t possibly be confirmed–the senators from Maine have pretty much quashed that. Why do this when there are reliable conservative judges without the baggage that can be confirmed?
Rochf (877dba) — 7/8/2018 @ 4:18 pm