SCOTUS nominee expected as early as this morning EDIT: looks like it's Garland

[Okay, maybe Mike Johnson is a competent parliamentarian.]

I'm not sure what to think of Garland yet but I'm leaning towards thinking he's not such a great choice, either from a mainstream liberal perspective or from my own.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

How about we get a Conservative Protestant on the court.

What part of "you lost" don't you understand?

I'm also not sure he realizes that the two most recently serving Republican-appointed Protestant justices turned out to be, er, Souter and Stevens.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

I'm not sure what to think of Garland yet but I'm leaning towards thinking he's not such a great choice, either from a mainstream liberal perspective or from my own.

He seems like a further left version of the Kennedy type of moderate with a modest reverse Souter risk.  From what I know about you, you would probably be a lot happier with the judicial version of a JBE/Manchin/Donnelly type of moderate?

Dorothy Day would be my ideal choice if she were a lawyer, not an anarchist, and alive. Someone like JBE would be my preferred semi-realistic moderate-type choice, yeah. Not really a Manchin or Donnelly fan. One Kennedy-type justice is enough.

ETA: Obviously Garland is by any objective measure the most qualified potential justice in decades and there is no currently evident non-ideological reason at all not to consider and confirm him. But the more I learn about him the more ideological reasons I get.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

No . This guy has a horrible 2nd admin record.   They shouldn't entertain the ideal of even meeting with this left wing loon.

He voted to rehear a case without taking a position on its merits.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

My biggest problem with Garland so far is how he applies what blackraisin calls his 'gross obsession with deference to authority' to criminal justice issues. I respect the fact that he prosecuted Timothy McVeigh and the Unabomber, but I don't like or trust anyone who was instrumental in the decisions to seek the death penalty in those or any other cases, and his role in Al Odah v. United States was similarly horrible.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Judge Garland wanting to reconsider the ruling D.C. vs Heller

Without sounding forth on its merits.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

If we have to have a moderate, let it be a Manchin/JBE type who would vote to overturn Roe and uphold Heller.

JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM! JUDICIAL ACTIVISM!

No, the decision in Roe itself was judicial activism.  Overturning it would just be correcting a mistake.  The same could be said about Obergefell, but overturning it, while still a goal, is not as high of a priority, because no one has died as a result of it.

I'd contend that mandating same-sex marriage makes far more sense as an application of equal protection than mandating lax abortion laws does as an application of due process.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

I'd contend that mandating same-sex marriage makes far more sense as an application of equal protection than mandating lax abortion laws does as an application of due process.

Substantive due process is an awfully shaky judicial notion. Unfortunately, it's also the only possible basis for a number of rulings that strike me as morally imperative from a left-wing standpoint. I understand why you wouldn't include Roe v. Wade among those, but surely you would Lawrence v. Texas?

I take O'Connor's position in her Lawrence concurrence that the decision should have been reached on equal protection grounds instead.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

I'd contend that mandating same-sex marriage makes far more sense as an application of equal protection than mandating lax abortion laws does as an application of due process.

Substantive due process is an awfully shaky judicial notion. Unfortunately, it's also the only possible basis for a number of rulings that strike me as morally imperative from a left-wing standpoint. I understand why you wouldn't include Roe v. Wade among those, but surely you would Lawrence v. Texas?

I take O'Connor's position in her Lawrence concurrence that the decision should have been reached on equal protection grounds instead.

O'Connor's position in her Lawrence concurrence would have upheld Bowers v. Hardwick and allowed most sodomy laws to stand as long as they were facially neutral as to sexual orientation, unlike the Texas law.

I'm aware of that. I part with O'Connor in that I would have decided that even facially neutral sodomy laws can be overturned on equal protection grounds if it can be shown (as it obviously can be) that their practical effect is inevitably discriminatory considering the mores of American society. I think that combining a very broad view of equal protection with a pragmatic outlook on the de facto discriminatory outcomes of facially evenhanded laws can accomplish much of what substantive due process accomplishes, and on sounder theoretical grounds. I'd contend that such a principle could be seen as an extension of the jurisprudence developed in Brown. (I realize that under this rubric the argument could be made in Roe v. Wade that strict abortion laws have a practical effect of discriminating against women, since men don't have to undergo pregnancy, and while I'd disagree with that argument I'd accept it as valid constitutional law.)

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Well, for one thing, it's more common for a heterosexual couple to practice sodomy than it is for a man to get pregnant.

Well, yes, but sodomy laws would invariably be selectively enforced according to existing unjust social standards, and being clapped in irons is more obviously an infringement on liberty than not being permitted to terminate a pregnancy (assuming the mother isn't forced to actually raise the child, which nobody sane is suggesting). Again, though, I could very easily see arguments to the contrary that would be perfectly respectable and reasonable law. (I could also see an argument that strict abortion laws would in practice be discriminatory on the basis of class since they'd be enforced much more stringently and enthusiastically against poor people.)

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This is exactly why I'm leery of the 'compelling government interest' model, although I have no idea what I'd like to see it replaced with. Every possible alternative is just as subjective and susceptible to abuse and hackishness as 'compelling government interest' is. Either way you slice it, you're making subjective moral judgments about which acts do and do not rise to the level of calling for government disapprobation and intervention when you invoke this type of scrutiny (how this works with abortion cases is obvious enough, and incendiary enough, that I don't want to spell it out, so instead I'll use Moore v. East Cleveland, which is my own preferred example of a case where I'm uncomfortable leaving substantive due process in the dust because the conclusion is morally imperative to reach but difficult to reach on other grounds: It's just as much a subjective moral argument to say that extended family members are still family and deserve the right to live together as it is to say that those relationships shouldn't be morally or legally significant). Obviously something above rational basis review has to exist, but I really don't know how to go about that without abuse and hackishness.

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I'd love to agree with this, but my overall political philosophy is different enough from classical liberalism that any set of legal principles that I'd find convincing or morally operative would have to differ from any reasonable interpretation of plain or original meaning in significant ways. My main interest is in making those differences more consistent and giving them a sounder theoretical basis than conventional American liberal jurisprudence (don't even get me started on 'penumbra' bullsh**t).