Why Big Fierce Nominees Are Rare

Supreme Court
Below is my column in the Hill newspaper on why the most creative and productive individuals are often disfavored in our modern confirmation system.  With the announcement of the new nominee this evening by President Donald Trump, we will have the state of a counterintuitive process that favors those who are the least forthcoming or open about their views.

Here is the column: 

downloadIn his influential book, “Why Big Fierce Animals Are Rare,” ecologist Paul Colinvaux explained that big animals are top predators but require more food and energy to survive. Smaller animals require less of both, and present less of a target to predators, and therefore tend to survive.

The same is true for Supreme Court nominees. Most are not especially remarkable in their prior rulings or writings. They are selected largely for their ease of confirmation and other political criteria. Big fierce minds take too much time and energy to confirm, so White House teams look for jurists who ideally have never had an interesting thought or written an interesting thing in their increasingly short careers.

The last nominee was a remarkable departure from this judicial ecology rule. As I testified at his confirmation hearing, Neil Gorsuch was an intellect of the first order with a long list of insightful and provocative writings as both a judge and an author. He also was guaranteed a seat when the Republicans got rid of the filibuster rule for nominees. Yet, even without the filibuster rule, there remains a pronounced bias against those big fierce minds that can both inspire and incense observers.

The history of Supreme Court nominations is largely one of planned mediocrity. The influential legal minds of a generation often are avoided for more furtive minds. Take Richard Posner, who may be the single most influential legal mind of this generation. Before his appointment to the U.S. Court of Appeals for the Seventh Circuit, Posner already was a legend. The former University of Chicago law professor, considered by many to be the father of the law and economics movement, has written roughly 40 books that brilliantly explored a dozen areas of law. No justice on the Supreme Court has had even remotely the impact of Posner, yet he was repeatedly bypassed as a Supreme Court nominee.

The reason is that Posner often pushed discussions into uncomfortable places or analogies. He famously wrote about how there already exists a type of market where birth mothers are paid for having babies while private adoptions often charge for their more selective records. Posner suggested that society could drop the pretense and allow for an actual market. He was not advocating the selling of babies but offering an economic analysis of how the current system allows for monetary transfers incident to adoption. He explored whether money could go directly to women to have a baby rather than an abortion. It was meant to be provocative and it was. He was swiftly dubbed in a Washington Post article as “the judge who would sell homeless babies.”

Likewise, Robert Bork was a big fierce mind who actually secured a nomination in 1982. Bork had provocative views on the Constitution. Despite my disagreement with some of those theories, he had a coherent and consistent philosophy. He was a great believer in judicial restraint and originalism. Unlike many nominees who hide their views, Bork testified at length on his interpretive views, which were far more nuanced than critics suggested. He made a big target, and Sen. Ted Kennedy (D-Mass.) gave a devastating speech about “Robert Bork’s America” as a virtual hellscape of segregation, back-alley abortions and “writers and artists censored at the whim of the government.” Ultimately, the seat on the bench went to the thoroughly uncontroversial Anthony Kennedy.

Liberals have their own history of avoiding leading intellectuals for those with the smallest possible intellectual footprints. Sonia Sotomayor was not viewed as a leading judicial figure on the courts despite many years as an appellate judge. Yet, she was selected by President Obama over jurists, like Guido Calabresi on the same circuit, who were widely viewed as renowned legal minds. Like Posner, Calabresi is one of the towering legal figures of our generation and helped to reshape fundamental areas of law as a Yale law professor and, later, as a Second Circuit judge.

The short list this week does not contain any big fierce minds in the class of Posner or Calabresi. Nevertheless, President Trump showed refreshing interest in an intellectual leader in Gorsuch. The next nomination could determine if the intellectual contributions of Gorsuch were intentional or incidental factors in his selection. There is a difference between fierce ideology and fierce intellect. Many on the list of 25 judges stand out for commitment to conservative values but are not particularly distinguished in contributions to legal thought. Most fall closer to the mold of Samuel Alito and Clarence Thomas, as opposed to Antonin Scalia and Gorsuch.

Confirmations tend to reward young lawyers who avoid controversies to advancement on the Supreme Court. That means remaining silent on most of the defining issues of our time, from abortion to gay rights to free speech. Remarkably, that stance is not viewed as a negative. We prefer those who remain mute for decades as others engage the issues tearing at our social and political fabric. But there are certainly exceptions.

One judge on the short list who has garnered attention is Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit. One can certainly disagree with her opinions, but at least she had opinions and voiced them. At George Washington University and Notre Dame law schools, she was bold and unabashed. That already is proving to be a liability in favor of other potential nominees who kept their thoughts to themselves and left to others the debate over society’s core values.

We should be skeptical, not supportive, of nominees who remain a “blank slate” after years of practice. Such calculated passivity speaks not only to a lack of intellectual curiosity but a certain lack of connection to the law. We should stop penalizing those who choose to participate in our debates by putting themselves and their views out there for public discourse. Until then, our chances of selecting another big fierce mind like Louis Brandeis, William Brennan or Antonin Scalia will be purely accidental. It is not that they are hard to find. They are just too easy to spot.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

157 thoughts on “Why Big Fierce Nominees Are Rare”

  1. Kavanaugh is a friend of the Bushes. This can’t be good.

  2. In our oligarchy that sends representatives of the baby formula industry to the World Health Organization to be the only ones to vote against the promotion of breast feeding, along with a few small countries that were intimidated with threats of having financial aid taken away, the soon to be conservative Supreme Court will vote for the oligarchs: gun industry, coal industry, oil and gas industry, chemical industries, health insurance industry, and so on. They will because they will be there by the grace of Trump and the other puppets who are either, as in the case of Trump, oligarchs themselves or bought and paid for by oligarchs. It is what it is, not a democracy and not a republic, but an oligarchy. As there is no advantage to any oligarch regarding Roe versus Wade, the court will throw the thumpers a bone and declare that it should be left up to the states. This chicken sh*^ solution will allow women to keep their rights over their bodies and abort if they so desire but not in thumper states. Federal monies for any medical cost directly or remotely indirectly connected with abortion, ie family planning, contraception, etc will be cut-this helps offset the tax cuts to the oligarchs-and the financial burden will be placed on the states that decide to back women’s rights to abortions.

    The federal government and the Supreme Court will pull a Pilot and wash its hands of the issue. The US will drift further back in time, until enough Americans wake up and vote this disgusting person out of the White House. The next President must be a Democrat. The Senate must be Democrat. The Congress will probably remain Republican. Perhaps when the next two judges retire this affront to humanity can be offset somewhat.

  3. “Why Big Fierce Nominees Are Rare”
    _____________________________

    “Big Fierce Nominees,” nominees who have prejudged and nominees who are ideologues have no place on the Supreme Court or any other. The matter is the Constitution not Justices “big and fierce” or small and gentle. Justices must adjudicate not legislate. It is the duty of justices and judges to “…hold their offices during good behaviour…” and to hold “…power…in law and equity, arising under this Constitution…,” and Justices must “…declare all acts contrary to the manifest tenor of the Constitution void,” according to Alexander Hamilton, under penalty of impeachment during bad not “…good behaviour…” as crimes of high office, such as usurpation of the power of the legislative branch, according to Article 2, Section 4.

    When the simple “manifest tenor” will do, the introduction of artificial complexity and convolution for the purpose of “legislating from the bench” is a crime of high office as “judicial overreach.” The Supreme Court has no power to legislate or modify legislation. It has merely the duty to declare all acts contrary to the manifest tenor of the Constitution void.

    The number of Supreme Court Justices should be severely reduced in order for Congress to more effectively assert its control as impeachment, as representatives of the “Sovereign,” the People, over governance in the United States.
    __________________________________________________________________________

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton
    _________________

    U.S. Constitution
    Article lll

    Section 1

    “…The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour,…”

    Section 2

    “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;…”

  4. Richard Posner doesn’t belong on the court because he’s a monster. There’s also reason to believe he’s suffering cognitive impairments.

    Big fierce minds take too much time and energy to confirm, so White House teams look for jurists who ideally have never had an interesting thought or written an interesting thing in their increasingly short careers.

    Rubbish. Look at some of the characters who were nominated to the Court prior to 1975. Felix Frankfurter, Harold Burton, Tom Clark, Earl Warren, Byron White, Arthur Goldberg, Abe Fortas, Lewis Powell, and William Rehnquist had never worked as judges. Robert Jackson had been Solicitor-General, but never a judge. William O Douglas work as an adjudicator was limited to a couple of years chairing a regulatory commission. Hugo Black’s was limited to a modest run as a justice of the peace. Thurgood Marshall’s tour on the Court of Appeals lasted about three years (followed by 2 years as Solicitor-General). The sort of blatant cronyism Roosevelt and Truman practiced with court appointments has been quite circumscribed in recent decades. On the current court, Gorsuch, Sotomayor, Alito, Breyer, Ginsburg, and Kennedy had minimal connection to the man who appointed them.

  5. TURLEY ADVOCATES BOLD LEGAL MINDS ON COURT

    BUT OBSESSION WITH ABORTION DEMANDS STEALTHY CANDIDATES

    Since 1980, almost 40 years, every Supreme Court nomination has hinged on the abortion issue. We can thank Republicans for this divisive focus. The GOP openly panders to religious fundamentalists. This tends to breed a male-centric political culture. Whether Catholic or Baptist, religious fundamentalists generally share the belief that males should be the deciders with regards to family planning.

    This male-centric political culture draws heavily from White-majority small towns of the South and Midwest. Which creates an odd hypocrisy regarding ‘pro-life’ issues. Those White, small town males are seriously pre-occupied with so-called ‘Second Amendment’ rights. Therefore they are curiously deaf to gun violence while extolling their ‘pro-life’ views. Their concern for life begins and ends with abortion.

    The same Republican Party that cares so much for the unborn is obvious to environmental issues. Trump is currently defying the Electrical Power industry by insisting that they keep aging, coal-fired plants online. Republicans are also heeding demands by the Koch Bros to hinder the development of solar power as much as possible. Trump has called for more oil drilling along the nation’s coastlines; a thrust that make no logical sense from either an economic or environmental standpoint.

    Trump makes no qualms about his desire to destroy Obamacare; a Republican priority since 2009. But as everyone knows Republicans have no viable plan to replace Obamacare (because they can’t get to the right of it while offering affordable coverage to the masses). Therefore one of our two major political parties is essentially anti-healthcare while presumably ‘pro-life’ on abortion; an absurd contradiction.

    Therefore Republican nominees to The Supreme Court must be stealthy in their views. They must be anti-abortion, anti-healthcare, anti-environment but total advocates of Second Amendment rights.

    1. preposterous. do you know anything about law pete or what? serious overstatement. tune into reality

      1. Kurtz you’re vague. No specifics in your comment. Just a blanket dismissal of my knowledge. And by the way, I’ve made numerous court appearance on behalf of law enforcement. I was brokering plea deals in my early 20’s.

      2. It would appear Mr. Hill is another pretend lawyer on these boards.

        1. I never read his links or various Wa “Truth dies in TDS” Putz hit pieces

        2. What’s your actual experience, Spastic? What law school did you go to? And how do you have so much time for this blog? Are you disabled, or ‘what’?

          1. Peter Hill – let’s cut the wheat from the chaff here. If you were tried for a federal crime and you were assigned Marky Mark Mark by the Federal Public Defenders Office, would you accept him as counsel or go pro se?

    2. Roe v. Wade was problematic from it’s inception. And you don’t need to be a religious fundamentalist to understand the problem.

      Having said that, otherwise brilliant Conservatives are perfectly capable of delivering inadequate refutation when they feel like it. Rehnquist said in his dissent of Roe “To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.

      In other words, according to this argument, Rehnquist wants to reject the language of the 14th amendment because he doesn’t like where it leads. One has to better than that.

      1. In other words, according to this argument, Rehnquist wants to reject the language of the 14th amendment because he doesn’t like where it leads. One has to better than that.

        Don’t be stupid. There is no component of the 14th Amendment which would disallow a state prohibiting abortion as part of its exercise of its general police power. There is no language in the 14th Amendment which ‘leads there’.

        1. Well it’s called the Due Process Clause of the Fourteenth Amendment. That’s hardly stupid. There are reasons why Roe is problematic. The 14th amendment isn’t one of them.

          1. No clue how you got that idea. The word ‘due’ modifies the word ‘process’.

            1. Huh? You know, I realize there are people here who want to write articles. But you have to do a little better than that.

      2. Article XIV (Amendment 14 – Rights Guaranteed: Privileges and Immunities of Citizenship, Due Process, and Equal Protection)

        1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

      3. Article [V] (Amendment 5 – Rights of Persons)

        No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

        No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

      4. Article [IV] (Amendment 4 – Search and Seizure)

        The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

        The right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated . . .

      5. Article XIII (Amendment 13 – Slavery and Involuntary Servitude)

        Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

        Congress shall have power to enforce this article by appropriate legislation.

      1. What in God’s name should the federal government have to do with breastfeeding or infant formula (as long as formula manufacturers aren’t shipping poisons across state lines)?

        1. IT’S JUST MORE HYPOCRISY

          TRUMP CLAIMS TO ‘CARE’ ABOUT THE UNBORN..

          BUT CARES MORE ABOUT FORMULA MAKERS THAN BABIES

          “Advocates for improved nutrition for babies have expressed outrage over reports that the Trump administration bullied other governments in an attempt to prevent the passage of an international resolution promoting breastfeeding.

          The US delegation to the World Health Assembly in Geneva reportedly deployed threats and other heavy-handed measures to try to browbeat nations into backing off the resolution.

          Under the terms of the original WHO text, countries would have encouraged their citizens to breastfeed on grounds that research overwhelmingly shows its health benefits, while warning parents to be alert to inaccurate marketing by formula milk firms”.

          Edited from: “Trump Administration Opposes Breastfeeding Resolution”

          Today’s GUARDIAN based on a NEW YORK TIMES story

          1. Chinese-manufactured infant formula at one time included melamine, a plastic material, placed there to skew assays on protein content to read higher than they actually were. Melamine isn’t good for babies–or anyone else–it is used for plastic walls around bath tubs and showers, and isn’t intended for human consumption. Breast milk is best: it is sterile, free of charge, it confers passive immunity to diseases the mother has had or has been immunized against, and is less likely to cause allergies or diarrhea, which can be fatal to newborns. People, especially in poorer countries, should be encouraged to breast-feed. Another thing: in really poor countries, mothers over-dilute formula to make it stretch, so they are partially starving their babies. The water they use might have organisms, too. The WHO should do everything possible to encourage breastfeeding. So should the U.S..

            1. Melamine isn’t a plastic material, but a material found in certain manufactures. There was a scandal about 10 years ago concerning contaminated milk powder in China.

          2. You mean anonymously sourced tripe which purports to be about something happening in the bureaucracy about 4 steps distant from the president (and in regard to some gassy UN wheel-spinning). You couldn’t keep a straight face if you weren’t utterly humorless.

      2. to your many fake newz links, Peter Shill, tell David Brock he needs to hire more intelligent trolls and pay them more than what Jeff Bezos pays WaPutz employees and better labor conditions for Amazon employees

        hypocrite

        “MSNBC Does Not Merely Permit Fabrications Against Democratic Party Critics. It Encourages and Rewards Them.”
        by Glenn Greenwald
        https://theintercept.com/2018/07/08/msnbc-does-not-merely-permit-fabrications-against-democratic-party-critics-it-encourages-and-rewards-them/

        “To date — almost two years later — neither NBC News nor MSNBC, nor a single journalist who works for either one of those media outlets has corrected this significant falsehood, despite obviously knowing that it was broadcast to their viewers. In other words, NBC News and MSNBC know that they told viewers something that was materially false, and yet refuse to correct it. Please, defenders of this network: Tell me what that says about its integrity, about its real function, about whether it is a real news outlet.”

        1. Gosh, TM, I never watch MSNBC. I don’t have cable. But you’re saying I have to apologize for them..?????

    3. Sounds like an accurate assessment. The Court is politicized. I think the reason it is politicized is that the Legislative branch will not do its job and pass meaningful legislation that sets logical policies and procedures for the country. The Legislature and the Presidents we have had in recent years want to perpetuate their years in office and do wish to take the chance of leading on issues (as Kennedy discussed in Profiles in Courage). Obama tried to lead with the ACA, but look at the blowback and demagoguery from that. The GOP with its lockstep adherence to the Hastert Rule will not bring legislation to the floor for consideration unless it thinks it knows the outcome of any proposed vote and that that vote will be supported by a GOP majority.
      So we are now in a situation in which Trump tries to rule by executive orders and the pulse of his rally crowds and the legislature sits idly by. Policy making gets drop kicked to the courts.

      1. I think the reason it is politicized is that the Legislative branch will not do its job and pass meaningful legislation that sets logical policies and procedures for the country

        No, that’s not the reason. And it’s a lousy excuse as well.

        1. The Supreme Court has been politicized since I can’t remember when because the political parties have made a campaign issue out of Supreme Court nominations since whenever I can’t remember. Rumor has it that the law is supposed to be the end result of a political process because . . . divine intervention is no longer available . . . and from where else but the great sausauge-making factory might the law hail forth upon our heads? A ticker-tape parade? Wall Street making confetti out of The US Constitution? Can you say catachresis? Exactly how much confetti goes into a Congressional Bratwurst anyhow? Never mind. I don’t want to know.

  6. Jon says: “President Trump showed refreshing interest in an intellectual leader in Gorsuch.” Come on, Jon, you know better than that. Trump doesn’t know squat about intellectual leaders, or anything else about the role of judges, what characteristics make a good judge, or anything other than how to get attention. He does what his handlers tell him, but he tipped his hand during the campaign: he’ll nominate someone, anyone, who’ll keep the cheering rubes happy. He didn’t know Gorsuch personally, or anything about Gorsuch before nominating him. Gorsuch was the pick of Breitbart, as will be the next one. When he comments, the statements he makes are not on his personal vetting about the nominee. He reads what someone else wrote.

    Jon also says: “We prefer those who remain mute for decades as others engage the issues tearing at our social and political fabric.” They have opinions, but their ambition for power is their main driving force, so they keep their mouths shut, publicly at least. Breitbart knows where they stand, but the rest of us won’t have the advantage of reading any personal opinions they’ve expressed in books or articles, and except for opinions they may have written as judges that might give us an idea, we really don’t have a wealth of writing to scrutinize. That is by design. Judicial opinions may not actually convey their personal opinions. Whomever the nominee is, likely he, will be an extreme conservative, whose views do not match the values or views of most Americans, just like Trump’s views doesn’t represent the values of most Americans, and just like Scalia’s views and opinions were never mainstream. Bombasticity, like that of Posner and Scalia, might be entertaining, but the things they decided affect the lives of real people going forward. Prepare to get screwed, America.

        1. Natacha – in the combined polls Trump is at 43.1% approval. He only needs to get to 45 for the Democrats to lose the House and Senate.

          1. Again, Rothenberg’s summary of survey research indicates that the Democrats are due to turn about 11 seats in the House and lose 1 or 2 in the Senate.

          2. No, Paul. His most recent polling was 67% disapproval. Stop watching Fox. They skew information. They are Trump’s personal news organization, sort of his version of Pravda.

            1. The median of the last 8 polls assembled by Real Clear Politics puts the approval number at 43%, Natacha. The disapproval rating is 53%. The median for his whole tenure is 41% approval and 54% disapproval. Usually, presidents experience either a jagged downward trajectory throughout their time in office (see Lyndon Johnson or George W Bush) or periods of ebb and flow in public opinion which usually bottom out their 2d year. Trump’s not in either category.

              1. Is it possible that Natacha found and picked an outlier poll with a 67% disapproval rating?
                Assuming that there is such a poll with a rating like that, is it possible that she’d cherry-pick and use that one particular poll?
                Shocking, given her usual objectivity😁, and dispassionate analysis😏 that we’ve grown used to.

                  1. Natacha must have missed that one.
                    But she may have found a “more suitable” outlier that puts Trump at 67% disapproval.
                    If one actually exists.
                    If she ever claims that there are “poll results” ars showing Trump at over 100% disapproval, I’m going to start to get suspicious.

                    1. Tom Nash – if it is 100% disapproval it is taken in Natasha’s bathroom. 😉

    1. Gorsuch was eminently qualified. Probably Donald is letting somebody who knows a lot about the topic give him good advice.

      It’s ok, keep up the strident attacks, they just make you look silly.

      1. There are literally thousands of lawyers in this country who are “eminently qualified”. That wasn’t the reason for Gorsuch’s nomination nor the one to be announced this evening. The main qualifier is extreme conservatism, especially as to abortion,which is contrary to the values and beliefs of the majority of Americans. The nominees were first vetted by Breitbart, an organization whose views and values are also outside the stream of American values and beliefs.

        1. No, there are two qualifications:

          1. Work as an appellate judge (which can be waived from time to time to provide leavening for the court).

          2. Intellectual integrity and a commitment to comprehending the text and not exploiting the text. No exercise of democratic choice should be disallowed absent manifest conflict with the text.

          1. DSS – there are two qualifications to be on the SC. 1) be alive 2) be a citizen

              1. DSS – am I right or not? You can roll your eyes all you want, doesn’t change the Constitution. 😉

            1. For Trump/Breitbart: 1. can you fog a mirror?; 2. Are you anti-choice?; 3. Are you pro gun rights? 4. Do you believe in Executive Privilege, meaning, the President can do whatever he wants? If you pass, you’re now a SCOTUS Justice.

    2. The foregoing post was intended as a reply to Mr. Hill’s of 1:14 pm.

  7. Once upon a time we had 3 branches of government. The executive, legislative and judicial. Now we just have just 2, the Democrats and the Republicans.

    1. I would say rather that we have four, the usual 3 and then the administrative fourth; and that the two major parties are too narrow in their scope to make a lot of difference on many issues. Donald is the exception to the rule, the black swan candidate

  8. “The history of Supreme Court nominations is largely one of planned mediocrity.”

    A survey of the current milquetoast minds on the current court confirms this.

    1. They’re pretty smart and hard workers all of them or they would not be at that level. You’re apparently not aware of how judicial appointments work. Study up on their CVs and see how they compare to their peers. Very impressive including the leftists. It’s Earl Warren that was unqualified.

  9. Imagine that. My ‘interpretation’ of the Constitution actually got some people to do the reading and research necessary but they left out one important part. In searching for any escape possible did they find any place where ‘other than exempt from prosecution while the Senate is in Session’ did they find the following

    “Members of Congress, of the Judiciary, of the Executive and all government officials are exempt from the laws of the land specifically the basic law contained in the Constitution and may violate it at will.”

    Temporary exemption from arrest or prosecution does not excuse the crime and the prohibition was both complete and compelling. It left no loopholes.

    So the best you came up with is… temporarily exempted from arrest or prosecution” which in itself is an admission of guilt.

    But for once you had to actuall do some research and ‘think’ Imagine that.

    Keep it up you will evolve into a self governing citizen as envisioned by the founders and from a tool of some foreign ideology.

    So. Strike One and Strike Two with the third pitch winding up

    There are three references under Constitutional Law.that apply. You left one of them out.

    The pitch is in the air. Hit, miss, or bunt?

    1. Article VI, Section 2 (“The Supremacy Clause):

      2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

      Mr. Aarethun, your pitch is wild. Unless and until you demonstrate how Senator Feinstein’s stated opinion imposes a religious test as a qualification for public office; notwithstanding the fact that the subject of that opinion was appointed to the federal court, anyway, despite Senator Feinstein’s stated opinion.

      P. S. Your presumption of superiority is unwarranted, Arrogant One.

  10. One can argue for the quiet ones or for the loud ones. The Constitution and the laws of this nation reflect the people, as well as form them. The Constitution and the laws are also subject to the ‘fierce minds’ of either the left or the right. Scalia was both a ‘fierce mind’ and a legal scholar of no small force; he was overall right wing. His decisions, for all their legal acuity, belonged primarily to him and his personal bias. The same can be said for left wing judges. The Constitution has been amended due to the social evolution and the moral awareness of the people. Through an unbroken supply of legal genius the Constitution has been interpreted to defend slavery, racism, bigotry, and many other evils that social morals evolved to oppose. That opposition has then been reflected in the same legal genius. Genius is a tool.

    In the end, the Supreme Court will reflect the will of the people as well as guide them. Roe versus Wade is reflected by the majority of the people in the US as being the best anchor point regarding abortion. In some states this is not the case. The Solomon decision of the right wing judges, who will soon dominate the Supreme Court, will most likely be to wash their hands of it by giving the decision making to the States. This way the Constitution can be interpreted conveniently, both sides stroked, and the fuel tank for division filled; and no Supreme Court Judges will have to take responsibility for the deaths of women through botched abortions.

    It is what it is. Sometimes the system is to be revered and sometimes it is nothing more than sausage making. It all depends on the perspective of the people. The Constitution as well as the law are alive and only as just as the evolved perspective of the people that they govern.

    The question that must be asked, and this from either side, is should the will of the minority rule the lives of the majority? Should the illusion of the immediate government of the states sway the social and moral presentation of the people as a whole. The Civil War was a resounding NO. Anyone who argues state’s rights in the case of the secession of the South is arguing for slavery. Anyone who argues state’s rights to racially segregate schools is arguing for racism. In the end, it comes down to the cost. What moral and social evolutionary retardation will state’s rights cost? It all depends on the fierce minds arguing what was intended by the founding fathers at their point in their social and moral evolution.

  11. One problem that I see is that the courts have become too politicized. We have seen judges that are determined to work their personal opinions into law, rather than just follow the law.

    After Kennedy announced his retirement, there were many in the press who said that he was “a traitor” to his country, because he was turning over to President Trump the right to make another nomination to the court. They suddenly had the view that many cases that were previously decided by the court would now be open to re-litigation. I will note the same hand-wringing happened after the death of Antonin Scalia; it’s just that the complaining was on the other side of the political aisle. The only difference is that one side seems intent on advancing their political views through the judiciary rather than through the legislature, while their opposition is more intent on protecting what they already have instead of adding things that infringe upon others. I would argue that Kennedy played both sides of this divide, to some detriment to the country.

    I may have strayed off-topic, but I think the Bork hearings were the worst travesty inflicted by the Senate upon a nominee to the court. It changed the way nominees were chosen for the court that lasted for over 30 years. Judges should be more concerned about advocating for what the laws already are, instead of for advocating that they have the unabashed right to just change those laws from the bench. Regarding what their views are on individual cases would then become perfunctory instead of required knowledge.

    I can still remember when Judge Joseph Wapner of “The People’s Court” would sometimes say in his judgments, “I sympathize with the plight of the defendant, but I can’t judge cases on the basis of sympathy. I have to judge cases based upon the law.”

    The Supreme Court can use this type of wisdom more often.

  12. We need Justices who will go onto their computers and “ask Google”.

  13. If you have ever read Mein Kampf, you realize Hitler had a strong intellect. Philosophies of life, and in this case, judicial philosophies, are the real dividing line.

    We recognize that even though a Bork and a Posner may both have had powerful minds, their approaches and subsequent jurisprudence would have been drastically different.

    From Rutledge to Bork to possibly the nominee to be named tonight, incorrect (per the Senate) judicial philosophy spells rejection.

    Law professors may want the brightest brains but the people want power to their desired purposes.

    1. “Law professors may want the brightest brains but the people want power to their desired purposes.”

      Germans got exactly what they wanted with staffing the concentration camps, delivering the blows and exterminating Jews under their leader. Hitler did not do it solo but through the will of the people.

      Americans sterilzed women in Virginia following the example of Germany with the blessing of SCOTUS (Justice Oliver Wendell Holmes, no less).

      Americans today defy the election results under the mantle of “RESIST”, Maxine Waters and Hillary “Deplorable Americans” Clinton

      Clearly the people are often wrong.

      Appoint fearless and courageous Amy Conet Barret to counter the mediocrity of Sonia, Ruth and Elena.

      1. The current situation reminds of of the relevant words of Scalia in Casey:

        ” As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here — reading text and discerning our society’s traditional understanding of that text — the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about.

        But if in reality, our process of constitutional adjudication consists primarily of making value judgments…then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school — maybe better. If, indeed, the “liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours.

        Not only that, but the confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them.

        Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.”

        The people recognize the Court is making value judgments–and they want in on the vote.

        1. “then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different.”

          Freedom is an illusion in America, witness google, FB, MSM and fake news.
          Intelligent people ceased to exist with their electing Bill Clinton, GWB and Barack Obama….twice each!

          Americans have little intellectual skill, ergo Maxine Waters, Nancy Pelosi, et al re-elected to Congress decade after decade after decade

          If only we had minds on SCOTUS like Antonin today!!!

    2. Eleazer – Hitler was a pi$$ poor writer, though. 😉 Interesting ideas, poorly stated.

      1. A poor writer indeed. No lack of intelligence IQ though–a lack of moral IQ. My point is it takes more than brains for a good justice.

      2. Wordy perhaps but not unlike many German writers of his time. The language lends itself to circumlocution.

        1. Mr Kurtz – I read him in English, so I guess I could blame it on the translator. However, I have heard he is not any more exciting in the original German.

    3. you last comment is a fair remark.
      at the same time, brilliant judges like Bork can often improve the system in unexpected ways. One might say Marshall himself was brilliant in his judicial innovations.

  14. We like out Presidents to be “Big Fierce Animals,” not our Justices. We can tame our big cat chief executives at the ballot box come election time every four years. SCOTUS Justices, who serve for life (or way too long), not so much. It’s with prudence that we don’t put ideologues like Bork or outright kooks like the picture drawing, dismal scientist Posner on the bench. The courts have unchecked authority by their own hand. We have too much of that in our government now with the faceless unaccountable bureaucracy. Lois Lerner, Andy McCabe anyone? We surely don’t need it with the folks who hold life and death decisions. I prefer disposable authority to its more pernicious permanent version.

    1. we don’t put ideologues like Bork

      You’ve confused Bork with Richard Epstein. Bork abandoned libertarianism during his years team teaching with Alexander Bickel.

      1. mespo – it is just where my whole dollar is, not who I would appoint. I would appoint Posner, but he would never get the votes. 🙁

        1. i wouldnt vote for him. he’s obsessed with the economics and law stuff, really overkill. inclined to be a judicial legislator too

          1. Mr Kurtz – Posner is one vote who would drive RBG into retirement or a stroke. He gets a yea or nay like everybody else.

        2. Why would you appoint Posner? It’s grown increasingly manifest that his work is an exercise in hopeless, sloppy, graphomania. He’s utterly contemptuous of the whole world, treats people in his court and chambers like crap, and endorses horrendous abuses of power by appellate courts.

  15. Barrett clearly wants to overturn Roe or Casey. You get what you pay for.

    1. You have some proof of that? Bad enough you aren’t familiar with our countries basic legal document but blathering with out backup too?

      1. Yes, Coney Barrett has written that she strongly disagrees with the reasoning of Roe v. Wade. See, that’s how she can help get it overturned–by disputing application of the law behind it.

        1. Of course she ‘disagrees with the reasoning’. Anyone with a modicum of integrity understands it’s BS (something occasionally acknowledged by the occasional intelligent non-sociopathic liberal – e.g. Michael Kinsley). What’s called ‘constitutional law’ has entered a decadent period (or, in the assessment of Robert Bork, has been destroyed as an authentic intellectual subdiscipline). Bork eventually concluded that we might be better off with no judicial review than what we have now, because the culture of the bar and the law professoriate is simply incompatible with self-government.

          If he weren’t an extraordinary blockhead, David Benson might ask himself what academe contributes to the larger society and compare that to the resources academe appropriates. Scrounge around and think of a realm in which the professoriate or the legal fraternity will give you a more just and prudent answer than a dozen randomly selected people off the street.

        2. i dont think it should be overturned but the reasoning of roe v wade is indeed really problematic

          1. Why shouldn’t it be overturned?? It’s a big, verbose, lie. The net result of overturning it will be to leave abortion law at the discretion of state legislatures. That’s where gneral police power belongs.

                1. Stare decisis is applicable in every case unless it’s a case of first impression.

                  1. Formally applicable. But there would be no purpose to it in this case except to avoid admitted the case was wrongly decided. Over-ruling Roe means the issue will be resolved is at the discretion of the state legislatures who will make (or refrain from making) an adjustment to their penal and health codes, something state legislatures do routinely.

                    A court decision attempting to enjoin the payment of Social Security benefits or open market operations by the Fed would have Mad Max results, which is why stare decisis would be prudent in that sort of situation.

      2. And based on his one opinion, it appears Kavanaugh wants to overturn Roe as well.

  16. Replace them by legal robots which, similar to IBM Watson, have read all the law.

    1. Well, well. CSAIL @ MIT is the artificial intelligence lab. There is or was a project labeled TAML working on legal reasoning. So possibly the supremes can be automated as time goes by.

      Anyway, ought to make a super law clerk before too long. Then any fool can wear the black robes. Hire an actor.

      1. David Benson owes me eight citations (one from the OED) and the source of a quotation, after seven weeks and needs to cite all his work from now on. – the Constitution requires that the justices be citizens, so unless you give citizenship to computers, it will not happen. If you can build a computer to read and write legal decisions you could get rid of the clerks. However, I do not think you are going to get the SC to give up their clerks for Watson.

        1. Well, a computer made in the USA is “born” here, so a citizen. As sensible as claiming that a corporation is a person.

          1. “Well, a computer made in the USA is “born” here, so a citizen.”
            *****************
            Even moreso, a Virginia live oak [quercus Virginiana). I’ll poll the next one I see about citizenship and political affiliation. Must be a Bull Moose Party fancier, I’ll bet!

            1. Squirrel. Moose can’t find acorns even with night vision goggles.

                1. mespo – studies have shown that both dogs and squirrels forget where they leave things. 😉

          2. David Benson owes me eight citations (one from the OED) and the source of a quotation, after seven weeks and needs to cite all his work from now on. – corporations are artificial persons for the purpose of the law, still, they are not allowed to vote, get a driver’s license or date your daughter.

              1. L4D enables David Benson – the corporations are not opposing my daughter’s use of contraceptives, they are opposing their paying for it on religious ground. And the SC agreed with them. Ya Supremes!!!

              2. Wrong. Hobby Lobby did not want to pay for 4 types of contraceptives that worked as abortifacients . There were 13 other types that they had no issue with. And not “certain” corporations, either. Supreme Court rulings are not simply applicable to the one case being decided. Don’t you agree that would be fairly inefficient? And Hobby Lobby never blocked the cash registers at Walgreen’s or CVS to prevent your daughter from buying any kind of contraceptive her little heart desired.

                Other than that, your comment nailed it, as always!

            1. Excerpted from the article linked above:

              The United States Supreme Court ruled in Employment Division v. Smith (1990) that a person may not defy neutral laws of general applicability even as an expression of religious belief. “To permit this,” wrote Justice Scalia, citing the 1878 Reynolds v. United States decision, “would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” He wrote that generally applicable laws do not have to meet the standard of strict scrutiny, because such a requirement would create “a private right to ignore generally applicable laws”. Strict scrutiny would require a law to be the least restrictive means of furthering a compelling government interest.

            2. Also excerpted from the article linked above:

              Justice Ruth Bader Ginsburg delivered the primary dissent, which was joined by Justice Sotomayor in full and by Justices Breyer and Kagan as to all but Part III–C–1 on “whether a corporation qualifies as a ‘person’ capable of exercising religion”. Ginsburg began, “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. … “

              1. L4D enables David Benson – they are going to be voices in the wilderness for a looooong time.

            3. One last excerpt from the article linked above–this one mentions Gorsuch whom Turley calls a big fierce nominee:

              In March 2013, the United States Court of Appeals for the Tenth Circuit granted a hearing of the case. In June, the appeals court ruled that Hobby Lobby Stores, Inc. is a person who has religious freedom. Circuit Judge Timothy Tymkovich wrote for the five-judge en banc majority, over a three-judge dissent. Neil Gorsuch voted with the majority and also wrote an opinion on the case. The court ordered the government to stop enforcement of the contraception rule on Hobby Lobby and sent the case back to the district court, which granted preliminary injunction in July. In September, the government appealed to the U.S. Supreme Court.

      2. Actually, legal reasoning is a LOT easier than much of what AI has achieved in expert systems.
        The “problem” will be the big reveal when that legal reasoning actually concludes decisions on what the laws actually are, without all the unstated, unwritten special interests at play that human jurists take into consideration, often at expense of what the laws actually say.

  17. You seem more interested in the game of confirmation than in the substance of the fierce minds’ positions.
    We need a big fierce mind who will take on Trump the guilty POTUS without fear or favor.
    https://digbysblog.blogspot.com/2018/07/will-he-lose-it-in-helsinki.html
    https://www.nytimes.com/2018/07/08/opinion/trump-mueller-impeachment.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-right-region&region=opinion-c-col-right-region&WT.nav=opinion-c-col-right-region

    1. Translated. I have myh own opinion but am Incapable of doing the necessary research, providing the sites, cites, facts and sources, or the ability to expressing the way I want it to come out as a meaningful finished product therefore I will look for someone who has all of that and more but will still do my bidding.

      Clinton expressed it best when he openly wanted to circumvent constitutional law and told his AG “Find me a way around the constitution.” The unspoken portion ‘that won’t cost me votes.’

      Obama stated it in the poorest possible way. when he said “if Congress won’t do it I will.”

      Neither one of them stopped to consider their Constitutional Oath of Office. After all they had their example in FDR.

      And all it took was reading the Constitution. In one form or another the answers are invariably contained within ….. at worst a way is provided out of every dilemma imaginable.

      But then we do not often these days get the quality and caliber of it took to formulate that very first representative Constitutional Republic and put it timeless words.

      Connecting the dots and now we have those who cannot form the question much less he answers. The methodology is no longer taught and the whole exercise has degenerated into “Me.”

        1. that article sucks. i thought it was news but apparently it is the author trying her hand at fiction

      1. A man who repeatedly reminds the public that he has the power to pardon himself whilst adamantly denying his need to pardon himself is a man worthy of being regarded with considerable suspicion of possessing a pressing need to pardon himself for offenses against the United States.

    2. We need a big fierce mind who will take on Trump the guilty POTUS without fear or favor.

      Translated: We need a politically fierce mind that will put Leftist ideology before constitutional law.

      There are 535 members in the Legislative branch;1 in the Executive branch and 9 on the Supreme Court. There are very good reasons we do not make it 544 or 545. President Trump will be a footnote in the career of the next supreme court justice.

      If you are tired of losing cases that come before SCOTUS, then change your worldview or change who writes the laws. You should never desire an activist judge who will not put the law first. You may just get what you ask for, but one that is not in your favor.

      1. There are so many incompetent “translators” here afoot. BTW, it’s 538.

  18. Senator Feinstein, in the Senate chamber, told Amy Coney Barrett after mentioning her religious background, “the dogma lives loudly within you.” Which is as despicable an accusation as I’ve seen from Feinstein (and she’s made a lot of despicable statements)..

    Fortunately, Judge Barrett didn’t go tu quoque on Dianne Feinstein with an cavil on her religion. That, alone, shows who was the religious bigot in that conversation.

    The Left, fortunately, doesn’t yet speak with a single voice on Barrett or her group “People of Praise”. There’s a decent article by Ruth Graham in Slate exploring the group’s actual record, which is hardly sinister, and which ends

    “When I mentioned Barrett’s potential Supreme Court nomination to Csordas, he corrected me, saying she was only a circuit court judge. Yes, I said, but she’s been said to be in the running for the highest court in the country. “I see,” he said. He hadn’t heard. He paused for a long time. There’s always the possibility, he said, that “the thoughtfulness and conscientiousness of that community could provide a check to rein her in, in a way that Alito and Thomas don’t have. They’re just out there on their own.” And in any event, he said: “She couldn’t be any worse than the guys on there now.”

    which, while back-handed praise, isn’t the hysterical baying about “cults” the rest of the Left is indulging in.

    1. The amaxing part of that exchange was Feinstein never realizing she had committed a felony under Constitutional law. All those years in office and she has so littl \e understanding of the basic document to which she swore an oath to uiphold. It’s in Article Vi.

      1. Michael Aarethun, I fail to see it as felonous. Article VI is silent on that matter.

          1. Mr. Aarethun, you did not explain how violating the Article VI, Section 3 prohibition against religious tests for public office would be a felony under any criminal statute in the United States Code. Nor did you explain how Senator Feinstein’s stated opinion constitutes a religious test for public office contrary to Article VI Section 3. As for throwing gas on the fire, it is not immediately clear whether you are referring to Senator Feinstein’s oath of office or to Dr. Benson’s failure to see it as felonious. Supposing ad arguendo that Senator Feinstein’s stated opinion violated her oath of office, under what criminal statute would you charge Senator Feinstein with a felony?

      2. What Michael Aarethun is most likely getting at [e.g. “no religious test”]:

        Article VI (Article 6 – Prior Debts, National Supremacy, Oaths of Office)

        3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

        P. S. Michael is exaggerating a bit, as usual, when he cooses the word felony to describe a statement of opinion made by a Senator at a confirmation hearing and therefore fully protected under the Speech and Debate Clause.

        1. Correction: I have every reason to believe that Michael Aarethun has never coosen the word felony–but had only chosen it, instead.

                1. Dr. Benson, since Mr. Aarethun routinely cooses to engage in hyperbole [think Trump], I suspect that he may have lost the ability to coose to lie [like Trump]. It’s just something that happens while his lips are moving.

      3. Artcile I, Section 6:

        1: The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

        Well . . . Technically speaking, Senator Feinstein could not have been arrested nor questioned by law enforcement investigators while the Senate was in Session nor while she was going to nor returning from the Senate in Session. Otherwise, the Speech and Debate Clause does not grant any immunity from any felony statute to Senators or Representatives. Even so, Michael is still exaggerating about Senator Feinstein’s supposed felony violation of Article VI, Section 3–the no religious test clause.

      4. You’d better hurry. I suspect the statute of limitations is about to expire on this hypothetical offense.

        1. At the top of this page currently, Michael Aarethun is now alleging a triple violation of The Supremacy Clause, the oath of office and some as yet to be named felony in the United States Code by means of an opinion stated by a US Senator during a committee hearing in which she was performing her Constitutional duty to advise and consent.

      5. Felony is a bit reaching.
        But Feinstein was artfully stating that Barrett’s Catholicism was objectionable and she did not pass a religious test for public office.
        That is unconstitutional, but getting a court to say that is another thing.

        1. No, a statute prohibiting the appointment of a Catholic or requiring the recusal of a Catholic would be contrary to the Constitution. Feinstein refusing to confirm for that reason is not unconstitutional because she has plenary discretion in such matters. It is merely asinine.

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