Neil Gorsuch Confirmation Process Discussion (confirmed 54-45)

[MarkD]

Ah, revenge! Republicans said disingenuous things about why they were holding no hearings or vote on any nominee put forward by President Barack Obama, and now some Democrats here want to say things even more disingenuous, obviously out of a petty desire for sheer revenge.
A plague on both your parties.

I need to find out whether Gorsuch actually is an originalist. I particularly need to find out whether Gorsuch knows what was the originally understood meaning of the 9th Amendment, and what were the originally understood meanings of the Due Process Clauses of the 5th and 14th, and what was the originally understood meaning of the Equal Protection Clause of the 14th.

[MarkD]

Ah, revenge! Republicans said disingenuous things about why they were holding no hearings or vote on any nominee put forward by President Barack Obama, and now some Democrats here want to say things even more disingenuous, obviously out of a petty desire for sheer revenge.
A plague on both your parties.

I need to find out whether Gorsuch actually is an originalist. I particularly need to find out whether Gorsuch knows what was the originally understood meaning of the 9th Amendment, and what were the originally understood meanings of the Due Process Clauses of the 5th and 14th, and what was the originally understood meaning of the Equal Protection Clause of the 14th.

Why? Do you think such revelations will have the slightest effect on a single vote in the Senate?

If McCaskill and Blunt have any interest in my views, it matters. If my views don"t matter to them, then that affects whether I will vote for them.

[MarkD]

Ah, revenge! Republicans said disingenuous things about why they were holding no hearings or vote on any nominee put forward by President Barack Obama, and now some Democrats here want to say things even more disingenuous, obviously out of a petty desire for sheer revenge.
A plague on both your parties.

I need to find out whether Gorsuch actually is an originalist. I particularly need to find out whether Gorsuch knows what was the originally understood meaning of the 9th Amendment, and what were the originally understood meanings of the Due Process Clauses of the 5th and 14th, and what was the originally understood meaning of the Equal Protection Clause of the 14th.

All indications I've seen point to Gorsuch being a textualist. True dyed-in-the-wool originalists have a very hard time getting into high judicial position; the changes they want tend to be radical and align with no other judicial groups. Justice Thomas is an aberration we are unlikely to see again for a long time.

It was often said that Scalia was a textualist too. That worries me, a lot. Scalia worried me. If Gorsuch interprets the clauses I referred to above as badly as Scalia did, then I am going to continue feeling terribly desperate, dismal, and pessimistic. I desperately need a constitutional amendment to be adopted that explains, for the future, how those clauses should be interpreted -- much more narrowly. (I do not mean that the new amendment we adopt has to return to the Nineteenth Century meaning of the 14th Amendment. I envision a proposal that preserves some of the things that the Supreme Court has done which were not based on the Nineteenth Century meaning of the 14th, and maybe even goes a little beyond. The crucial thing is that the meaning of the 14th, as I suggest we re-write it, has got to be clearer and narrower than the way the Supreme Court has been interpreting the 14th for the last several decades.)

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I'm not sure what you mean by "archaic," but clearly there needs to be something better adopted.

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I would say that we keep getting politicians rather than the most objective interpreters of law serving on the court that is supposed to be made up of the most highly objective interpreters of law. We keep getting people appointed because of their ideology rather than because of their objectivity. I've noticed a couple of people here saying that they hope for someone more moderate than Gorsuch to be nominated if they can get Gorsuch's confirmation defeated/filibustered. Please do not confuse a moderate ideology with being truly objective. No matter how staunchly liberal, conservative, or somewhere in between a person is, they can and should strive to be objective.

[MarkD]

The best imaginable deal is:
- ......
- ......
- Kennedy(if he retires or dies) must be replaced by a moderate
- A Democratic Justice must be replaced by someone like Merrick Garland(provide shortlist of Justices between Garland, Breyer, and Sandra Day O'Connor)

The best Ideal, and something that both parties could live with, would be if both parties start realizing that the reason they fight so much over Supreme Court nominations is because the Supreme Court is so blatantly political, and that's because both parties have been appointing people because of ideology. Democrats appoint staunchly liberal people, or maybe some moderates, and Republicans appoint staunchly conservative people, and some moderates. But we should all be looking for the most objective people to appoint to the Supreme Court. If most, or all, of the Justices were people like Oliver Wendell Holmes, Benjamin Cardozo, and Hugo Black then the Court would not be so blatantly political, it would be objective. (And don't confuse being moderate with being objective. They are not the same things.)

[MarkD]

I'm all for nuking the filibuster.  Sure, it'll transform the SC into an intensely partisan institution, and probably a Republican one for the foreseeable future, but sometime down the line, a Democratic president will be able to fill up the court with unapologetic liberals, without fear of the filibuster.  In the long haul, this change might be just what Dems need.

Besides, I think it was just a matter of time before this was going to happen.  There's too much acrimony between the two parties now for the rule to last.  The only question I have left is how much longer the filibuster will remain for legislation.

With an attitude like this, one might as well advocate that we should hold national, partisan elections for the members of the SCOTUS.

The reason our Founding Fathers established a judicial branch that is appointed, not elected, and established the judiciary's independence from political pressure is that's the main way to ensure the judges will be impartial/objective. It's important to have that independence in order to maintain the capacity to be objective. However, so long as both parties keep on appointing people to the Supreme for ideological reasons -- without trying to find the most highly objective interpreters of law -- then the SCOTUS does indeed become hopelessly political, resulting in too many inaccurate interpretations of the Constitution and the federal statutes. If most of the public accepts that Supreme Court Justices base their decisions on ideology, not objective interpretation of law, then the Court remains too political. Again I say, we might as well be holding partisan elections for the seats on the Court under those circumstances.

The Senate ought to reject Gorsuch and insist that Trump nominate someone who is exquisitely objective. Trump should forget about appointing someone like Scalia, and instead find someone like Justices Oliver Wendell Holmes, Benjamin Cardozo, or Hugo Black.

[MarkD]

How about as a truce to permanently end judicial wars, we pass a constitutional amendment forbidding the judiciary from striking down a law on any basis other than the literal text of the constitution and/or relevant law taking precedence? Seriously, as long as it's an art contest to see who can draw a more imaginative implied or evolving right, judicial nominations will perpetually be as close to an all-out war as the rules of our political system will allow. If you want judges to stop being partisan hacks, take away their power to be kings.

Taking the text of the Constitution and every statute passed by Congress literally could lead to some very foolish conclusions.
http://mtweb.mtsu.edu/cewillis/Hermeneutics/Hand%20How%20Free%20is%20a%20Judge.pdf

The intent of the lawmakers is what should guide judges' decisions.
I agree with the rest of what you said, though.

[MarkD]

When we spend so much time worrying about the ideological composition of the Court (which I have done too , in the past), then there is something wrong with the Court.