Trump Packs The Courts...

[rogue06]

Be careful what you wish for, seer.

They're only doing what the last few Democrat presidents have already been doing.

[rogue06]

Democrats are making the same mistake they did with Bush 43, convincing themselves that he's an idiot while he quietly and competently implements his agenda. I'm not going to complain.

I kept asking my liberal friends if he was such an idiot what does it say about the Democrats who kept losing to him again and again (at least until he pretty much stopped caring in his second term). Being underestimated can be an incredibly valuable asset. I learned that after living in the South for many decades now and watching "yankees" assume the person they were dealing with was some dumb country bumpkin just because the had a Southern accent. In fact, I saw many Southerners affect a southern drawl that they didn't normally have just for that very purpose.

[rogue06]

Republicans control both the presidency and Senate, so there's not much need for bipartisanship. If one of the two changes we'll see more bipartisanship out of necessity, and if both change then we'll see partisanship continue, just in the other direction.

The previous Administration notoriously declared that "elections have consequences" as an explanation for their refusal to even talk to Republicans.

[Teallaura]

I'll still say this looks worrisome. I hope the Democrats gets some justises in as well.

As of May 2012, a total of 3,294 individuals had been appointed to federal judgeships, including 2,758 district court judges, 714 courts of appeals judges, 95 judges to the now-extinct circuit courts, and 112 Supreme Court justices. This adds up to 3,679 total appointments; a substantial number of appellate judges (including Supreme Court justices) had previously served on the lower court bench.<sup>[11]

Source</sup>

Um, yeah, I don't think 'court packing' is as likely as people wish to believe.

The total number of Obama Article III judgeship nominees to be confirmed by the United States Senate is 329, including two justices to the Supreme Court of the United States, 55 judges to the United States Courts of Appeals, 268 judges to the United States district courts, and four judges to the United States Court of International Trade.^[2][3]Obama did not make any recess appointments to the federal courts.

Source

Still worried about the effects of partisan political appointments skewing the courts?









*emphasis mine in bold, both citations.

[Starlight]

I doubt Trump can take the credit for this one, this involved a lot of engineering over years (or more than a decade according to the article).

I mean he's signing the papers the Republican party puts on his desk with this one.

Yeah, this is McConnell's doing. Despite the fact that McConnell consistently ranks in polls as one of the least-liked politicians in the US, he's very very good at what he does in terms of running things to benefit his donor's interests. During Obama's administration he was able to hold up judicial appointments and thus keep a large number of seats open on the various courts, and now that he's got a Republican congress and president, he's rushing hundreds of judges into place on the various courts. Sadly the Republicans have a tendency to appoint judges based solely to favor corporate interests and partisan bias, and judicial organisations regularly complain that their appointees aren't qualified for their positions, they're all about getting judges that will rule in favor of the ultra-rich (i.e. Republican donors) over anyone else. e.g. new Supreme Court justice Neil Gorsuch's most infamous ruling was that an employee was in the wrong for failing to freeze to death on the job when his employer asked him to.

[Starlight]

Besides conservative judges tend to follow the original intent or meaning of the Constitution. Instead of looking at it as a malleable "living" document.

I tend to view this as a BS propaganda claim invented by Scalia, as a nonsense justification to give him scope to give rulings based on his personal whims and partisan desires rather than follow historical precedents. But subsequently conservative propagandists have found it convenient for PR purposes to repeat this nonsense claim about how their judges that give creative modern partisan corporate Republican rulings, are really being less creative in their rulings than normal judges who boringly follow historical precedent.

Perhaps you could give a couple of examples though Seer, where you personally were pleased to see the "original intent" being followed, and why in those cases it was so good that original intent was indeed followed?

[seer]

Perhaps you could give a couple of examples though Seer, where you personally were pleased to see the "original intent" being followed, and why in those cases it was so good that original intent was indeed followed?

Heller comes to mind right now, or the more recent Janus case. But let me ask you Star, if you don't follow original intent then what do you follow? You just make law up?

[Starlight]

Heller comes to mind right now

Wiki on that case says "The majority opinion, written by Justice Antonin Scalia, and the primary dissenting opinion, written by Justice John Paul Stevens, are considered examples of the application of originalism in practice."

If both the conservatives and liberals were applying originalism in that particular case, then it would seem hard to see it as an example of where the 'conservatives-follow-originalism, liberals-don't' view made the difference.

Given it was a case about 'incorporation' (creatively reapplying via the 14th Amendment, the first 10 amendments which the Founding Fathers had written to limit the powers of the federal government, to apply to limit the power of the individual States) it's hard to see how you can even have a ruling that is strictly originalist. I mean, obviously you can look at what the founding fathers thought and said and wrote when they wrote the 2nd amendment, which the justices on both sides did. Those Founding Fathers wrote the amendment to say that States were allowed to operate militias and that the federal government wasn't allowed to ban them from doing so. Then, much later in history, the 14th Amendment was passed that says very vaguely that the individual States should be constrained in the ways the Federal government is when it comes to respecting people's rights with regard to the first 10 amendments. But when we come to consider the question of what that means for how to reinterpret the 2nd amendment in order to reapply it to the States... that wasn't something the Founding Fathers were talking about, so the question of what they 'originally' thought is nonsensical... because the 14th amendment is explicitly asking that something new be done and that the 2nd amendment be reinterpreted away from its original intent. And the final decision from the conservatives on SCOTUS was basically an insane declaration that the very 2nd amendment that talks about "well-regulated militia" actually prohibits the states from well-regulating.

Now it's fine to say "I like guns! I think everyone should have guns! I am annoyed that throughout US history that governments have placed regulations on guns, and courts have said those regulations are fine. I don't think the government should be able to do that, and IMO the courts were consistently wrong to do that, and I feel that a sentence-fragment within the 2nd amendment should be reinterpreted to mean everyone can have guns, period." That is a totally valid political position to have. But what it's not, particularly, is 'originalist' in any particularly true or useful sense, other than "I hate the rules this country has had for centuries, and I want to overturn them all, and as an excuse to do so and to do incredibly activist legal reinterpretations, I am going to pretend that all my views that I want to be law were totally held by the founding fathers, and therefore when they wrote the constitution they believed exactly as I do and wrote into the constitution exactly what I want to be the rules, so all the centuries of people thinking differently to me were wrong, and the rules are now what I want them to be! Hah!" It's pretty much the most partisan and activist judicial stance possible.

or the more recent Janus case.

Eh? Over the last half-century SCOTUS has been increasingly getting creative in terms of seeing absolutely everything as 1st amendment free-speech rights. Any action, any payment, is being increasingly classed as 'freedom of speech'. The endpoint of the current slippery slope appears to be that absolutely no laws are constitutional because having any laws at all about anything at all would infringe on 'freedom of speech'. Even if you are a modern libertarian who thinks that's a great outcome, it's clearly not originalism in the sense that the Founding Fathers in no way thought that's what they were endorsing when they wrote free speech into the 1st amendment. Janus was simply another decision in a long line of them where the modern incredibly-activist-on-the-first-amendment court judged an old law (>70 years) in this case to now be unconstitutional because it didn't conform to their modern incredibly-strong definition of 'free speech'. I don't see any way of calling that 'originalism'.

if you don't follow original intent than what do you follow? You just make law up?

It's really complicated and nuanced. The interpretation of law is not something that necessarily should be described in a phrase suitable for a 10 year old like "original intent", though Canada uses a phrase called the "living tree doctrine" to describe how the understanding of the constitution grows with their society over time but I don't know much about that. I absolutely think that the original intent, insofar as it exists and can be discerned, has a role to play, but it's not the only factor.

One of the simplest problems that tends to arise with 'intent' behind laws is that laws are usually passed by dozens or hundreds of people. Those people often do not agree with each other on their reasoning or motivations. Their understandings of the implications and nuances of the law can differ. They can bicker about particular words in the law and come up with some very-carefully worded compromise where they can all agree on a word but have very different ideas apart from that, or they can carelessly write something that they didn't really mean and was overlooked (e.g. as happened to a sentence deep in the bowels of the Obamacare legislation that went through the courts). So some legal theorists point out that 100+ people voting on a law can hardly be said to have any single intent, but rather what is voted on is the words of the law itself as they would be understood by an reasonable and objective and informed person in the society at large at the time armed with a dictionary. I personally tend to reject that theory and think that original intent, insofar as it can be reasonably determined and shown to be generally shared among the law-writers, can be helpful in resolving ambiguities in the law and is a good guide to what the law is supposed to be doing.

But things only get more complex from there. Imagine a law said that horse-drawn carts should drive on the right side of the road. Then cars are invented. Was the 'original intent' of the law that all types of traffic should be on the right side of the road, or was it that only horse-drawn carts should be? Obviously the law writers weren't picturing cars in their mind when they wrote the law, so how does their law apply? Or, lets say they ban "cruel and unusual" punishment, is that a ban on the specific punishments the writers themselves imagined that were cruel and unusual? If new and creative types of punishment are invented due to new technology (e.g. using electricity, or laser light, etc) which the writers couldn't have thought of because they didn't have that technology, can those by definition not meet the threshold of 'cruel and unusual' because the founding fathers didn't personally imagine them? But if a modern writer wrote a constitution with the exact same words, it would then ban those? Or is it granting to society an evolving criteria to consider things "cruel and unusual" and hence allowing societies/courts of any time in the future the latitude to strike down punishments that it regards as inhumane? How does that apply to things like the death penalty which basically the entire Western world has over time come to judge unacceptable and banned? etc.

Overall, because it's just too hard in practice to make 'original intent' actually function as an overarching judicial paradigm in a world where judges are daily asked to rule on things that never were in the minds of the founders, an increasingly popular view among legal experts seems to be something along the lines of that what matters is the full list of abstract ideas that society as a whole acknowledges to be represented in the constitution. e.g. "Limited government, freedom of speech, rights to due process, etc." (you could call these 'constitutional principles') And in that sense what matters is neither the text of the constitution nor the intent of the founders, but the general constitutional principles that throughout history have filtered into the heads of the populace and been understood and accepted as applying in certain ways. i.e. "common law" ("the part of English law that is derived from custom and judicial precedent rather than statutes"). So the constitution is then defined by 'the way that things currently work' as opposed to being defined by a historical document.

[Terraceth]

Yeah, this is McConnell's doing. Despite the fact that McConnell consistently ranks in polls as one of the least-liked politicians in the US, he's very very good at what he does in terms of running things to benefit his donor's interests. During Obama's administration he was able to hold up judicial appointments and thus keep a large number of seats open on the various courts, and now that he's got a Republican congress and president, he's rushing hundreds of judges into place on the various courts. Sadly the Republicans have a tendency to appoint judges based solely to favor corporate interests and partisan bias, and judicial organisations regularly complain that their appointees aren't qualified for their positions, they're all about getting judges that will rule in favor of the ultra-rich (i.e. Republican donors) over anyone else. e.g. new Supreme Court justice Neil Gorsuch's most infamous ruling was that an employee was in the wrong for failing to freeze to death on the job when his employer asked him to.

He didn't say he was "in the wrong", he just said that the company had the legal right to fire him based on what the law said. In fact, in virtually every time I saw him criticized for that, people (when not misrepresenting like you did) just acted with outrage about his conclusion rather than presenting any argument about the actual equities of the case.

Not to say I even necessarily agreed with his conclusion. But even assuming he got it dead wrong, it's a pretty crazy springboard to somehow conclude that means he was doing it to acquiesce to the "ultra-rich."

I tend to view this as a BS propaganda claim invented by Scalia, as a nonsense justification to give him scope to give rulings based on his personal whims and partisan desires rather than follow historical precedents.

For a "nonsense justification" he generally did a good job backing up his claims with evidence.

Not to say I always was in agreement with him, but I definitely don't think textualism/originalism was just used by him to make rulings based on whims/partisan desires. If that were the case he never would've ruled the way he did in regards to flag burning (i.e. to require it to be protected under the First Amendment--he was the 5th vote necessary for that decision).

[Starlight]

But even assuming he got it dead wrong, it's a pretty crazy springboard to somehow conclude that means he was doing it to acquiesce to the "ultra-rich."

The biggest trend/problem I see with the US Supreme Court is that since the 70s there's been a pretty consistent and successful effort by mega-donors/big-business-owners/lobbyists to get people onto the court who are favorable to their interests, and those interests are:
1. Striking down any and all anti-corruption laws to allow all the mega-donors/big-business-owners/lobbyists to have more influence over politicians and get the laws they want
2. Favoring the businesses owned by these people over the interests of their workers or the rules of the government.

For the last 46 years there's been a Republican-dominated Supreme Court, with up to 8 of the 9 justices being Republican appointees. Over that time, the court has declared abortion constitutional and upheld that decision, and granted same-sex marriage rights. Suspiciously no matter how vigorously the brainwashed Republican voters go to the ballot box and vote a Republican president into office in order to get SCOTUS justices who will ban abortion and win the culture war for them... that just hasn't happened. Some suspicious people might think it's a useful tool to get the average sucker Republican voter to the polls, but that the average mega-donor who's actually bribing the Republicans behind the scenes and really setting the policy isn't actually all that interested in seeing an anti-abortion majority on SCOTUS because they personally prefer the freedom to actually have their mistresses have abortions.

But what has the court done? Pretty much every anti-corruption law that has gone before SCOTUS over that period has been struck down. The Republican-dominated SCOTUS loves striking down those anti-corruption laws and has done since the 70s when they got their majority. Does the average Republican voter just love corruption and wants the US to be an oligarchy? Not particularly. But the mega-donors do. And the other thing that's happened is that SCOTUS over that period has been incredibly corporate-friendly. I've heard the current Roberts' court characterized as "the most corporate-friendly SCOTUS in US history". Any time a case comes before the court that involves the rights of corporations to do as they feel like to the detriment of their employees, the general public, or the country, the court rules in their favor. The Republican-dominated SCOTUS loves ruling in favor of big-businesses and corporations over the interests of anyone else. Does the average Republican voter just love for their employer's interests to be favored over their own? Not particularly. But the mega-donors do.

So as far as the mega-donors/big-business-owners/lobbyists are concerned, the last several decades of the Republican-dominated SCOTUS has been pretty much the best possible in terms of decisions. Their ability to bribe politicians to do their will has been increased by orders of magnitude. Their ability to have their companies do whatever they wish and trample the rights of employees, their unions, the environment, the interests of the general public etc. has increased by orders of magnitude. Whereas for the average Republican voter have the SCOTUS decisions been particular great? Not so much, some good some bad from their perspective.

And now, who was the newest SCOTUS appointee? Someone who'd broken with the justices around him in order to rule in favor of the employer over the employee. Someone who thinks that employers can legally require employees to obey them to their point of death, or fire them for failure to do so. Obviously in the minds of the mega-donors, that guy goes straight to the head of the line for getting on SCOTUS.

In short, I think anyone who thinks SCOTUS is primarily about the culture-wars is just kidding themselves, and is being used as nothing but a useful tool to take an ignorant vote from; it's about corruption and big-money interests getting more and more power, and has been for decades. It's why the US has turned into a corrupt oligarchy ruled by the Swamp. And it's the #1 reason there needs to be a Democrat-appointed majority on SCOTUS to start saving America from that corruption. (And why I personally thought Hillary Clinton was unacceptable as a Democratic presidential candidate, because she was as corrupt as the Republicans are)