Merrick Garland: Obama's New Supreme Court Justice

[warpus]

Because changing the makeup of the Court changes judicial outcomes, and both sides care about those a lot. Both sides also have reasons to believe that their preferences over those outcomes are more 'right' than the opposition's. You could argue that appointing the most qualified people to serve on the Court improves the odds of reaching the optimal set of judicial outcomes, but that doesn't happen because it doesn't serve the interests of either side in the contest. Scalia was eminently qualified, but the left would prefer that he not serve. The same is true of the right with respect to Ginsburg.

See, when I read over some of the stuff Scalia has said and ruled on, I can't come to any conclusion other than "This guy was definitely not qualified to sit on the supreme court, or maybe even any court"

As for getting different results when you change the makeup of the court, then there is definitely something wrong with the people they are selecting. I mean.... These judges are supposed to be politically, racially, gender etc. unbiased, right? These are supposed to be the most morally judicial minds of the land, able to transcend most of that bias, and rule on things from a morally superior ground.. Right? Well then, if changing the racial or gender or whatever makeup of the court affects rulings so much, then it seems obvious to me that the people selected are not doing their job properly and are allowing personal biases to interfere in their decision making process.

 

[Lexicus]

See, when I read over some of the stuff Scalia has said and ruled on, I can't come to any conclusion other than "This guy was definitely not qualified to sit on the supreme court, or maybe even any court"

As for getting different results when you change the makeup of the court, then there is definitely something wrong with the people they are selecting. I mean.... These judges are supposed to be politically, racially, gender etc. unbiased, right? These are supposed to be the most morally judicial minds of the land, able to transcend most of that bias, and rule on things from a morally superior ground.. Right? Well then, if changing the racial or gender or whatever makeup of the court affects rulings so much, then it seems obvious to me that the people selected are not doing their job properly and are allowing personal biases to interfere in their decision making process.

But as was pointed out, it is literally impossible for human beings to not be biased.

You are setting an impossible standard and then lamenting that it is not met.

 

[onejayhawk]

Indeed. Some would say the same of Ruth Ginsberg.

J

 

[Flying Pig]

See, when I read over some of the stuff Scalia has said and ruled on, I can't come to any conclusion other than "This guy was definitely not qualified to sit on the supreme court, or maybe even any court"

As for getting different results when you change the makeup of the court, then there is definitely something wrong with the people they are selecting. I mean.... These judges are supposed to be politically, racially, gender etc. unbiased, right? These are supposed to be the most morally judicial minds of the land, able to transcend most of that bias, and rule on things from a morally superior ground.. Right? Well then, if changing the racial or gender or whatever makeup of the court affects rulings so much, then it seems obvious to me that the people selected are not doing their job properly and are allowing personal biases to interfere in their decision making process.

I don't think that's quite fair; the process starts from the assumption that the decisions made by the Supreme Court cannot be purely 'legal' and objective, and are always to a degree about politics and ideology: if the case gets that far, it's not simply a case of reading the statute book and finding out what it says. The process at least attempts to control for the inevitably political nature of the decisions by tying the politics of the court to the politics of the country, though by making judges difficult to remove it also tries to ensure a separation of powers and lack of governmental control over the court once judges are actually in their seats. I'm not sure I agree with how far they take it, but I can certainly see the argument.

 

[Martin Alvito]

Indeed. Some would say the same of Ruth Ginsberg.

J

And both she and Scalia have qualifications scores of 1.000 from Segal-Cover, which indicates that there was consensus (which is rare) on the editorial page of the big US newspapers that they were qualified to serve. This includes papers with a liberal slant (NYT, Washington Post) and papers with a conservative slant (WSJ, Chicago Tribune).

The legal community would appear to have agreed at the time that both were excellent jurists, whatever their ideology.

 

[warpus]

I don't think that's quite fair; the process starts from the assumption that the decisions made by the Supreme Court cannot be purely 'legal' and objective, and are always to a degree about politics and ideology

I agree that the decisions cannot be purely objective (no matter who makes them), but assuming that politics and ideology have to be a part of the process doesn't have to be an assumption you have to make.

I mean, sure, if you allow these judges to be political and to allow their ideology to drive their decision making process, then they will do so, and it appears as though in the case of the U.S., they do.

Take it out of the equation and hold these judges to a higher standard, and you'll end up with a better supreme court overall. And I mean, yeah, you can ask "how do we do that?". I have no idea. I realize that it's not possible to remove bias completely, but in the end these are supposed to be professionals. If they are unable to rule as an impartial judge and make every single ruling as a {member of party A} or {member of party B} or as a conservative or liberal or whatever.. then they have no business being a judge in such a position in the first place.

Even my fantasy hockey pool commish manages to leave his Habs-infused ideology out of proceedings. And he doesn't even have a full-time job, nor does anyone hold him in high regard, like we're supposed to hold supreme court judges. He's just some dude, not an esteemed elder and master of the law. He's not a master of anything, yet he manages to remove so much bias from his rulings that, even though there is definitely bias there, in all practical terms there is no bias there. Otherwise the league would rebel against him, of course, so he tries really hard to be fair.

These judges are appointed as conservative or liberal judges, of course they're going to try to push one of those two agendas and keep that bias in mind when they're appointed. Nobody is looking over them saying: "Cut it out, throw your ideology out the window and focus on the law". They've been given either a liberal or conservative mandate, and so of course they follow it, even if it seems that a lot of them manage to remain for the most part fair and balanced and all that.

I'm not sure I agree with how far they take it, but I can certainly see the argument.

The American political system/landscape attempts to paint everything as black and white, so this approach makes sense to me too, given the context. But it doesn't have to be that way, and I think by approaching the problem from this angle they are setting themselves up with unnecessary BS

 

[illram]

I'd say you can rely on the Judges to rule in certain ways but it is not solely across party lines. Scalia was an excellent example of a Justice who you knew was going to rule in certain ways but it was not always going to be the "Republican" way, but it was always going to be the "textualist" way (which so happened to line up with a lot of "pro-Republican" decisions.) Or I should say whatever "textualist" interpretation fit the bill for Scalia at the time. Scalia has some decent opinions on police searches, privacy, and free speech, sprinkled in with all the other crazy stuff he did.

When it comes to legal stuff party lines is way too oversimplified and general. Roberts ruling in favor of the ACA, for example, was shocking to a lot of people and was clearly disheartening to conservatives at the time. However as a very pro-business type Judge and lawyer, maybe it was not so shocking that Roberts voted to uphold a very business friendly law even if it was so called "big government" or whatever.

Or Kennedy. He was nominated by Reagan, but he has made some very LGBT friendly rulings. Not "Republican," but in line with his judicial philosophy of holding government laws to a very high standard of scrutiny when they impinge on 1st and 14th amendment constitutional rights. For example, invalidating a child porn law (not a very Republican stance) or invalidating a law banning sodomy (again, not very Republican of him, is it?)

Or O'Connor. Another Judge nominated by a Republican. She never went as far as to overturn Roe v. Wade and had some "liberal" rulings in her history. Or the grand-daddy of all Republican nominated Judges turned turncoats to their nominating presidents--Judge Earl Warren, nominated by Eisenhower as a law and order Justice, who went on to basically create some of the most important and longstanding (and decidedly "liberal" at the time) restrictions on police power, as well as the author of Brown v. Board of Education, ending school segregation.

Or Justice Clarence Thomas, the resident ****oo bananas Justice, who basically will never ever vote in favor of any Federal law that even comes close to impinging on State's rights, including one dissent in which he said the Feds have no right to criminalize marijuana cultivation. (Awesome! And definitely not part of the GOP platform...)

tl;dr, the Justices do exhibit bias, but the bias is not as simple as party line bias, even though that will sometimes lead you to the correct prediction of their holding.

 

[Timsup2nothin]

And then Obama is forced to withdraw the nomination, and the issue disappears completely, months before the election. The hearing would be purely for appearances; pointless in substance, but very useful in saying the process was fair and carried out in good faith. They could even let Ted Cruz lead the filibuster charge, give him some extra "fighting Obama" cred, the establishment gives some half-assed condemnation of him, and the GOP wins the narrative and Cruz is bolstered as the #NotTrump. Well, that would have been the smart way to handle it, anyways. As it is, they get nothing but reinforcement of their obstructionist image.

Can they count on Obama to withdraw the nomination? I'd wonder if "let them filibuster until their lungs give out" wouldn't be considered a viable outcome there, from the Democratic strategy point of view. There's also no guarantee that Obama wouldn't turn right around and name another nominee if Garland were withdrawn.

 

[metalhead]

It also bears pointing out that they don't actually disagree as frequently as you might think. A lot of the more public and consequential opinions end up 5-4, but there are what, 5 of those per year? The other 95 or so cases they usually get much closer to unanimity on. This makes sense, when you think about it - controversial opinions tend to deal with questions that are either unsettled in the law, or represent fundamental shifts in social mores that the law hasn't caught up to. So it is expected that a roughly equal number of justices end up lined up on each side.

 

[Flying Pig]

I agree that the decisions cannot be purely objective (no matter who makes them), but assuming that politics and ideology have to be a part of the process doesn't have to be an assumption you have to make.

I mean, sure, if you allow these judges to be political and to allow their ideology to drive their decision making process, then they will do so, and it appears as though in the case of the U.S., they do.

Take it out of the equation and hold these judges to a higher standard, and you'll end up with a better supreme court overall. And I mean, yeah, you can ask "how do we do that?". I have no idea. I realize that it's not possible to remove bias completely, but in the end these are supposed to be professionals. If they are unable to rule as an impartial judge and make every single ruling as a {member of party A} or {member of party B} or as a conservative or liberal or whatever.. then they have no business being a judge in such a position in the first place.

Even my fantasy hockey pool commish manages to leave his Habs-infused ideology out of proceedings. And he doesn't even have a full-time job, nor does anyone hold him in high regard, like we're supposed to hold supreme court judges. He's just some dude, not an esteemed elder and master of the law. He's not a master of anything, yet he manages to remove so much bias from his rulings that, even though there is definitely bias there, in all practical terms there is no bias there. Otherwise the league would rebel against him, of course, so he tries really hard to be fair.

These judges are appointed as conservative or liberal judges, of course they're going to try to push one of those two agendas and keep that bias in mind when they're appointed. Nobody is looking over them saying: "Cut it out, throw your ideology out the window and focus on the law". They've been given either a liberal or conservative mandate, and so of course they follow it, even if it seems that a lot of them manage to remain for the most part fair and balanced and all that.



The American political system/landscape attempts to paint everything as black and white, so this approach makes sense to me too, given the context. But it doesn't have to be that way, and I think by approaching the problem from this angle they are setting themselves up with unnecessary BS

How do you throw your ideology out of the window? When looking at (for example) the Constitution, you have to decide whether to rule based on the literal meaning of the words in front of you, or to try to ask why the words were written as they were - in either case, you're following (respectively) conservative or liberal ideology. Ideology is about sincere beliefs people hold about what is the right way, the best way, the fairest way to do things: if a decision can be made without recourse to those, it's already been made before the Supreme Court heard about it.

 

[metalhead]

Frequently, the Supreme Court decides to take a case because two (or more) circuit courts reach differing opinions on a point of law. In those cases, the Court usually is ruling without needing ideology to inform their opinion.

However, a lot of constitutional jurisprudence relies on rather nebulous standards, which is where partisan ideology can sometimes come into play. I mentioned Citizens United upthread - the test for whether a law passes muster under the fundamental right to free speech requires strict scrutiny. A law can infringe on free speech only if it is narrowly tailored to achieve a compelling government interest. "Narrowly tailored" is a fairly straightforward concept - the law must specifically address the government interest, and must use the least restrictive means for achieving said interest.

But what is a "compelling interest?" This is where questions of ideology, and philosophy about the role of government comes into play. Ted Cruz and Bernie Sanders would have almost nothing in common if you asked them to list things the government has a compelling interest in providing, or preventing. Indeed, the Citizens United majority found there was no compelling government interest in limiting political contributions in the way McCain/Feingold specified. Many, many people fundamentally disagree with this finding, but who's to say they are wrong? It all boils down to what you personally believe, and in these questions, that also applies to the justices themselves.

 

[Lexicus]

How do you throw your ideology out of the window? When looking at (for example) the Constitution, you have to decide whether to rule based on the literal meaning of the words in front of you, or to try to ask why the words were written as they were - in either case, you're following (respectively) conservative or liberal ideology. Ideology is about sincere beliefs people hold about what is the right way, the best way, the fairest way to do things: if a decision can be made without recourse to those, it's already been made before the Supreme Court heard about it.

I think that's too simplistic. Lots of "conservative" opinions use the kind of reasoning you ascribe to "liberal" interpretation.

 

[Martin Alvito]

It also bears pointing out that they don't actually disagree as frequently as you might think. A lot of the more public and consequential opinions end up 5-4, but there are what, 5 of those per year?

It depends on the term. It's worth noting that the landmarks tend to break that way post-Reagan.

Yes, 9-0 is the modal outcome. But given that the majority of prospective cases don't get a hearing, what do you expect? A selective Court naturally should tend to reserve its valuable time to correcting the injustices that the members can broadly agree are most egregious, which (if the system is even marginally functional) should still be minority of the petitions.

 

[Archbob]

As for getting different results when you change the makeup of the court, then there is definitely something wrong with the people they are selecting. I mean.... These judges are supposed to be politically, racially, gender etc. unbiased, right? These are supposed to be the most morally judicial minds of the land, able to transcend most of that bias, and rule on things from a morally superior ground.. Right? Well then, if changing the racial or gender or whatever makeup of the court affects rulings so much, then it seems obvious to me that the people selected are not doing their job properly and are allowing personal biases to interfere in their decision making process.

I am not aware of any Gods on the Supreme Court or have any of these Judges Hyper-Evolved like Vorlons.

Correct me if I'm wrong.

 

[onejayhawk]

And both she and Scalia have qualifications scores of 1.000 from Segal-Cover, which indicates that there was consensus (which is rare) on the editorial page of the big US newspapers that they were qualified to serve. This includes papers with a liberal slant (NYT, Washington Post) and papers with a conservative slant (WSJ, Chicago Tribune).

The legal community would appear to have agreed at the time that both were excellent jurists, whatever their ideology.

Indeed. It is unfortunate that ideology enters into it, but we live in an imperfect world.

I am not aware of any Gods on the Supreme Court or have any of these Judges Hyper-Evolved like Vorlons.

Correct me if I'm wrong.

Just Men. For Gods you need Sharia.

J

 

[Arakhor]

Not the Decalogue as well?

 

[Gori the Grey]

Yes, thank heavens for Thomas, who can,
As this* reasoning runs and this* plan,
When such cases demand,
Help his peers understand
Life experience for the Black man.



*

It's not a question of bias, but rather of life experience. . . .

In cases involving voting rights, or civil rights, one's life experience having included the effects of discrimination, whether on the basis of race, gender, orientation, etc. can be crucial in determining what types of things in which the government has an important or even a compelling interest. So diversity on the court can directly lead to more informed opinions, on a wide range of issues.

In many cases, it can help other justices to better understand things like discrimination, having an advocate on the bench that can explain its effects to justices who otherwise might not understand.

**

Judiciary should reflect the demographic makeup of the population in all respects - gender, ethnicity, age etc.

The ageist high court needs correction.
If the justices had a connection
To the under-15
(A full fifth ) they'd have seen
To it Zayn didn't leave One Direction.

 

[Kaitzilla]

The Onion has the latest update on Garland.
http://www.theonion.com/article/defiant-mitch-mcconnell-holds-merrick-garlands-sev-52575

 

[whyidie]

The Onion has the latest update on Garland.
http://www.theonion.com/article/defiant-mitch-mcconnell-holds-merrick-garlands-sev-52575

I think it sums up nicely why the GOP Senate leaders are taking this stance. They are appealing to their base.

The let it get to a vote and don't decide or kill it option - High level of effort

Risk - If they play "safe nutter fillibuster" it still reflects badly on the inability of GOP to govern at a national level. Medium level of effort.

Risk - If they don't let a safe nutter fillibuster they can afford to lose 4 votes. They've got 6 seats at risk. So two people are going to take a larger share of the blame. This also assumes a lot of coordination. High level of effort.

Risk - They leave an opening to their right and are rewarded with more Ted Cruzs.

Reward - To moderates, they are seen as doing their job.

The no hearing route - Low level of effort

Reward - Puts a band-aid on an opening to the right.

Risk - Leaves them open to more liberal appointment.

Reward - At risk Senators have more space to play with.

Risk - Moderates

I think I'd take the no hearing route. Rather deal with a potential Clinton/Trump appointment than more Ted Cruz. Can't do anything with more Cruz types. At least with a Clinton/Trump appointment you've got options you can control.

 

[Cutlass]

Indeed. It is unfortunate that ideology enters into it, but we live in an imperfect world.



Just Men. For Gods you need Sharia.

J

Scalia and Roberts already legalized sharia.