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Thread: Politicians in robes

  1. #1
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    Default Politicians in robes

    I caught a bit of the Gorsuch hearings yesterday... and the usual charade about non-partisanship. Neil Gorsuch quite specifically disparaged the idea that judges were 'politicians in robes'... and I think he's full of it... that is precisely what they are.

    It amazes me that all the parties involved even TRY to pretend otherwise.

    We go through this aperiodic Kabuki dance whenever a Supreme Court vacancy occurs. The nominee sits in front of a senatorial hearing for hours, doing his best to never answer any questions which might betray his likely voting intentions, even though everyone already KNOWS what he is going to stand for, on the bench. Supporting politicians talk about their nominee being 'supremely qualified', when, in fact, ALL Scotus nominees are 'supremely qualified', but they are exclusively selected based on political considerations. Note that Trump's list comes from the Federalist Society... a Democratic President's list might come from the Brookings Institution.

    If it were even remotely true that Supreme Court members behave apolitically, we wouldn't be seeing the blatantly obvious pattern we see in the votes, with frequent 5-4 decisions whose alignment doesn't need to be known, because we already know it... we know which of the 'liberal' and 'conservative' justices voted which way. We know which justices adhere to concepts like 'originalism' and 'textualism', and which consider the Constitution to be a 'live' document. We know which ones think they can divine the mindset of long dead Founding Fathers, and which ones think that idea is absurd.

    These hearings are little more than political theater. In my entire adult life, I have never observed a single candidate to the court who didn't play the political role to the greatest possible extent. Thankfully, SOME of them have failed to play the role according to the rules; Bork, for example, who actually tried to convince the senate committee that he had 'never thought about' a number of substantial and controversial issues that would likely come before the court.

    All politicians have an agenda.... and so do all Supreme Court nominees. We ought to end the charade.
    "Reason and facts are sacrificed to opinion and myth. Demonstrable falsehoods are circulated and recycled as fact. Narrow minded opinion refuses to be subjected to thought and analysis. Too many now subject events to a prefabricated set of interpretations, usually provided by a biased media source. The myth is more comfortable than the often difficult search for truth."







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    Default Re: Politicians in robes

    Quote Originally Posted by Norman Bernstein View Post
    I caught a bit of the Gorsuch hearings yesterday... and the usual charade about non-partisanship. Neil Gorsuch quite specifically disparaged the idea that judges were 'politicians in robes'... and I think he's full of it... that is precisely what they are.

    It amazes me that all the parties involved even TRY to pretend otherwise.
    You're using a definition of "political" that's too broad for the context, like "anything that affects politics". That's bound to lead to disappointment.

    Federal judges are appointed for life, their salary cannot be cut, and their only power is to rule on the case in front of them. They have too little to trade, and too little opportunity, to be politicians in the ordinary sense.

    Quote Originally Posted by Norman Bernstein View Post
    We go through this aperiodic Kabuki dance whenever a Supreme Court vacancy occurs. The nominee sits in front of a senatorial hearing for hours, doing his best to never answer any questions which might betray his likely voting intentions, even though everyone already KNOWS what he is going to stand for, on the bench.
    Everyone does not know, and if they did, the nominee is still obliged to do his best not to say. This is as it should be.

    Quote Originally Posted by Norman Bernstein View Post
    Supporting politicians talk about their nominee being 'supremely qualified', when, in fact, ALL Scotus nominees are 'supremely qualified' . . .
    Not Clarence Thomas.

    Quote Originally Posted by Norman Bernstein View Post
    . . . but they are exclusively selected based on political considerations. Note that Trump's list comes from the Federalist Society... a Democratic President's list might come from the Brookings Institution.
    How does your theory account for Justice Roberts upholding Obamacare?

    Quote Originally Posted by Norman Bernstein View Post
    If it were even remotely true that Supreme Court members behave apolitically, we wouldn't be seeing the blatantly obvious pattern we see in the votes, with frequent 5-4 decisions whose alignment doesn't need to be known, because we already know it... we know which of the 'liberal' and 'conservative' justices voted which way. We know which justices adhere to concepts like 'originalism' and 'textualism', and which consider the Constitution to be a 'live' document. We know which ones think they can divine the mindset of long dead Founding Fathers, and which ones think that idea is absurd.
    Those are schools of thought, viewpoints, philosophy, whatever you want to call them. Trends within the subject matter. Someone who wasn't aware of them would be unqualified. Someone who claimed they didn't influence him would not be a careful thinker. OTOH they can't be made into law. This is as apolitical as it's going to get in this world.

    Questioning as to how a nominee would rule in a particular case is improper. Over time, with the example of their predecessors to guide them, the nominees get better and better at turning it aside. It's a good thing.
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    Default Re: Politicians in robes

    Quote Originally Posted by Osborne Russell View Post
    You're using a definition of "political" that's too broad for the context, like "anything that affects politics". That's bound to lead to disappointment.
    I can't agree. Politics is the application of ideology, just as engineering is the application of science. Judicial ideology is no different, since it's child is politics.

    Quote Originally Posted by Osborne Russell View Post
    Federal judges are appointed for life, their salary cannot be cut, and their only power is to rule on the case in front of them. They have too little to trade, and too little opportunity, to be politicians in the ordinary sense.
    In the 'ordinary' sense, yes, that's true... their actions and decisions don't result in electoral possibilities. That does NOT mean, however, that they aren't ideological.

    Quote Originally Posted by Osborne Russell View Post
    Everyone does not know, and if they did, the nominee is still obliged to do his best not to say. This is as it should be.
    I don't disagree with that.

    Quote Originally Posted by Osborne Russell View Post
    Not Clarence Thomas.
    He may have not been quite as qualified as other SCOTUS candidates.... but since there is no constitutional standard for SCOTUS justices (and in fact, they don't even need to be lawyers!), it only reinforces my point: yes, he was 'qualified', according to the letter of the law... but he was nominated on the basis of ideology, the parent of politics.

    Quote Originally Posted by Osborne Russell View Post
    How does your theory account for Justice Roberts upholding Obamacare?
    Politics actually explains that decision fairly well. The consequences of an opposite vote might have done damage to the reputation and image of the Supreme Court.

    Quote Originally Posted by Osborne Russell View Post
    Those are schools of thought, viewpoints, philosophy, whatever you want to call them. Trends within the subject matter. Someone who wasn't aware of them would be unqualified. Someone who claimed they didn't influence him would not be a careful thinker. OTOH they can't be made into law. This is as apolitical as it's going to get in this world.
    Saying that it's 'as apolitical as it's going to get' is really an admission of the validity of my argument, isn't it? Exactly HOW 'apolitical' is it? I maintain it's not especially 'apolitical' at ALL!

    Quote Originally Posted by Osborne Russell View Post
    Questioning as to how a nominee would rule in a particular case is improper. Over time, with the example of their predecessors to guide them, the nominees get better and better at turning it aside. It's a good thing.
    I agree, although it's a bit irrelevant to the argument. We already KNOW the likely propensity of the judge to vote in particular ways. Admittedly, on occasion, a justice will surprise us; Earl Warren, for example, appointed by a conservative President, was strikingly liberal, on the court... but that was a rare exception.
    "Reason and facts are sacrificed to opinion and myth. Demonstrable falsehoods are circulated and recycled as fact. Narrow minded opinion refuses to be subjected to thought and analysis. Too many now subject events to a prefabricated set of interpretations, usually provided by a biased media source. The myth is more comfortable than the often difficult search for truth."







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    Default Re: Politicians in robes

    For the record, in listening to some of Gorsuch's testimony, he strikes me as a reasonable man. Of course, nothing he is saying is any sort of signal as to what sort of a Supreme Court Justice he might become.

    I am still nonetheless bothered a bit about his early history.... leader of the 'Fascism Forever' club in college, and a number of other things. It is true that nearly ALL of us have matured in our perspectives since our college days, and hopefully, Neil Gorsuch has, as well.
    "Reason and facts are sacrificed to opinion and myth. Demonstrable falsehoods are circulated and recycled as fact. Narrow minded opinion refuses to be subjected to thought and analysis. Too many now subject events to a prefabricated set of interpretations, usually provided by a biased media source. The myth is more comfortable than the often difficult search for truth."







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    Default Re: Politicians in robes

    Quote Originally Posted by Norman Bernstein View Post
    ... their actions and decisions don't result in electoral possibilities. That does NOT mean, however, that they aren't ideological.
    If you're going to use both "political" and "ideological" they have to mean different things. Of course the judicial branch is political in the sense that it's part of the government.


    Quote Originally Posted by Norman Bernstein View Post
    Politics actually explains that decision fairly well. The consequences of an opposite vote might have done damage to the reputation and image of the Supreme Court.
    This I just don't understand. Are you saying the court ruled the way it did for fear of popular disapproval?

    Quote Originally Posted by Norman Bernstein View Post
    Saying that it's 'as apolitical as it's going to get' is really an admission of the validity of my argument, isn't it?
    It's intended to point to the fallibility of human institutions.

    Quote Originally Posted by Norman Bernstein View Post
    I agree, although it's a bit irrelevant to the argument. We already KNOW the likely propensity of the judge to vote in particular ways. Admittedly, on occasion, a justice will surprise us; Earl Warren, for example, appointed by a conservative President, was strikingly liberal, on the court... but that was a rare exception.
    We, if you include Republicans, get unhappily surprised a lot. Democrats not so much.
    If Russia wins, there will be no Ukraine; if Ukraine wins, there will be a new Russia.

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    Default Re: Politicians in robes

    Quote Originally Posted by Osborne Russell View Post
    If you're going to use both "political" and "ideological" they have to mean different things. Of course the judicial branch is political in the sense that it's part of the government.
    As I pointed out, politics is the child of ideology... what difference exists relates to practical application, just like engineering is the practical application of science.

    I hope you've watched the Sheldon Whitehouse opening statement, which Tom (ccmanuals) posted as a thread:

    http://forum.woodenboat.com/showthre...pening-Remarks

    If EVER there was a reality-based assessment of the behavior of the SCOTUS, it was encapsulated extraordinarily well, in his statement.

    Quote Originally Posted by Osborne Russell View Post
    This I just don't understand. Are you saying the court ruled the way it did for fear of popular disapproval?
    Quite possibly. Roberts may have been trying to convey an impression of independence. Roberts was only a few years into his term as Chief Justice, at the time.

    As Sheldon Whitehouse pointed out, it is pretty hard for the politically aligned SCOTUS to do that, in light of Whitehouse's statistical analysis.

    Quote Originally Posted by Osborne Russell View Post
    It's intended to point to the fallibility of human institutions.
    Sure, human institutions are fallible... but human fallibility can't, and shouldn't, be used as an excuse not to be concerned about it.

    Quote Originally Posted by Osborne Russell View Post
    We, if you include Republicans, get unhappily surprised a lot. Democrats not so much.
    Once again, based on Sheldon Whitehouse's opening remarks, and in light of the record he exposed, there is far too little 'surprise' involved here... predictability follows politics.
    Last edited by Norman Bernstein; 03-22-2017 at 03:28 PM.
    "Reason and facts are sacrificed to opinion and myth. Demonstrable falsehoods are circulated and recycled as fact. Narrow minded opinion refuses to be subjected to thought and analysis. Too many now subject events to a prefabricated set of interpretations, usually provided by a biased media source. The myth is more comfortable than the often difficult search for truth."







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    Default Re: Politicians in robes

    Originally Posted by Norman Bernstein Politics actually explains that decision fairly well. The consequences of an opposite vote might have done damage to the reputation and image of the Supreme Court.

    Bit late to worry about that don't you think?

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