Below is my column in USA Today on the troubling course taken by Democratic members in the confirmation hearing of Judge Amy Coney Barrett. As I have stated, there are a host of legitimate questions to be raised over Judge Barrett’s view of the law. Indeed, I praised the exchanges between Sen. Dick Durbin (D., IL.) and Judge Barrett as the substantive highlight of the hearing. Unfortunately, those were the exceptions. Instead, the thrust of the entire hearing was that Barrett was unqualified due to her expected vote in the upcoming case on the Affordable Care Act (ACA). Various senators directly stated that they would vote against Barrett to protect the ACA. That is what is so unnerving about the Barrett confirmation hearing.
Here is the column:
The confirmation hearing of Judge Amy Coney Barrett could easily have been mistaken for the sentencing hearing for John Wayne Gacy. Surrounding Barrett were huge pictures of sick individuals. One would think that Barrett was being confronted with the faces of her victims. In reality, the pictures perfectly captured a far more important message. Senators had finally broken free from any pretense of principle in reviewing the qualifications of a nominee. Indeed, many are about to create a new rule, the Barrett Rule, allowing conditional confirmation voting. The pictures were meant to pressure Barrett to either satisfy senators that she would vote against an Affordable Care Act challenge or they would vote against her confirmation.
There has long been a debate over the legitimate grounds for opposing a Supreme Court nominee. While senators can vote under the Constitution for good, bad or no reason at all, most have sought to justify their votes on some principled basis. For most of our history, senators followed the rule that disagreement with a nominee’s jurisprudential views was not a basis to vote against their confirmation. A president was viewed as constitutionally entitled to appoint jurists reflecting their own legal viewpoint and the primary basis for voting against a nominee was on the lack of qualifications or some disqualifying personal or professional controversy. It was a rule of senatorial deference that controlled the majority of nominations in our history.
Voting against nominees based on their expected votes
Members began to chafe at the limitations of this principle in the second half of the twentieth century. With abortion, desegregation and other hot button issues, confirmations became politics by another means. With every year, senators became more open about voting against nominees solely on the basis for their expected votes. This trend was accelerated in October 1987 in the confirmation hearing of Judge Robert Bork presided over by a senator from Delaware named Joe Biden. Bork was labeled “outside of the mainstream” of legal thought and rejected in a process that is now called “Borking.”
Democratic members have struggled with changing rationales for voting against Barrett, who has impeccable credentials as an accomplished academic and respected jurist. One such implausible claim was made the day before the hearing by Sen. Chris Coons (D., Del.) on Fox News Sunday. He claimed the nomination “constitutes court packing.” Both Biden and his running mate Sen. Kamala Harris (D., Cal.) have referred to nominating conservatives as court packing. Biden and others have refused to tell voters whether they will move to pack the Supreme Court if the Democrats retake both the Senate and the White House (a proposal once denounced by Ruth Bader Ginsburg herself). Instead of answering, Coons and others insist that Barrett’s nomination is court packing — a position that would allow them to vote against her without the need to consider her actual qualifications.
The portrayal of the Barrett nomination as court packing is facially absurd. Court packing is the expansion of the Court to create a dominant ideological majority. Referring to such a proposal by Franklin Delano Roosevelt, then Sen. Joe Biden once denounced it as “a bonehead idea . . . a terrible, terrible mistake” in seeking to add seats to the Court just to create a majority. Filling a vacancy on the Supreme Court is not court packing under any remotely plausible definition. Otherwise, anytime you disagree with the choices of a president, it would be court packing despite leaving the court the same size.
With little traction on the packing pitch, Senators were left with a rare moment of clarity. Indeed, Sen. Cory Booker (D., NJ) captured it best when, without waiting to hear from Barrett, Booker announced that he would vote against her. The reason was that she might vote against the ACA. The clear suggestion is that, after an election, the Democrats hoped to nominate someone who would clearly support the ACA. The issue was simply her expected vote on Nov. 10 in the case of California v. Texas.
Barrett and the ACA
We have now reached the Rubicon of confirmation politics. Thirty-three years after the Bork hearing, senators are now stripping away any pretense or nuance: they will oppose Barrett because of her expected votes on cases. In particular, Democrats have been arguing that they will vote against Barrett to prevent her from voting on a pending case, California v. Texas, dealing with the constitutionality of the ACA. Sen. Mazie K. Hirono (D., HI) announced recently that she would vote against Barrett because “she will vote to strike down the Affordable Care Act.”
In reality, the ACA case is unlikely to be struck down. The Court may uphold the lower court in declaring the individual mandate of the original ACA to be unconstitutional, but the real issue is whether that provision can be “severed” from the rest of the statute. Most legal experts believe that the Court has a clear majority favoring severance and preserving the rest of the act. The law was originally saved by Chief Justice John Roberts who felt that the individual mandate was constitutional. Congress later nullified the mandate.
The question before the Court is whether the rest of the act can be “severed” from the now defunct mandate — a question that cuts across the Court’s ideological divisions. Indeed, conservatives like Roberts and Brett Kavanaugh are expected to uphold the rest of the law. Thus, despite the pictures in the hearing, the picture for the ACA looks solid even with a Justice Barrett on the Court. Indeed, no one knows how Barrett would vote on the issue of severability.
The more important decision in the hearing is that some Senators are now invoking the right to vote against a nominee on the basis of her expected vote on this pending case. It will be a uniquely ironic moment since it was Ginsburg who refused to answer questions on pending or expected cases as improper and unethical inquiries by the Senate. It became known as the “Ginsburg Rule.” We may now have the Barrett Rule where a nomination can be rejected without such assurances.
The Barrett Rule would allow not only for the packing of a Court but the packing of the Court with guaranteed ideological drones. It is court packing without any pretense. Like our current politics, it would finally strip away any nuance or nicety. The court, like Congress, would become subject to raw and brutal politics at its very worst.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley
An interesting set of questions from the new NBCNews / WSJ national poll:
Compared to 4 years ago, my family and I are…
Better off: 50%
Worse off: 34%
About the same: 14%
The country overall is…
Better off: 38%
Worse off: 58%
About the same: 2%
Donald J. Trump — “People are fleeing California. Taxes too high, Crime too high, Brownouts too many, Lockdowns too severe. VOTE FOR TRUMP, WHAT THE HELL DO YOU HAVE TO LOSE!!!”
Donald Trump is currently the president. He has been the president for the past four years. He has made things worse for the country.
There now have been two polls on the better off worse off question. The Galup poll 52% better off and now the NBC/WSJ poll at 50% better off. You left the Galup poll out of your post. Innocent oversite Iam sure. More interesting is that only 38% say they are worse off. One would think that a a gap of 12 percentage points to the “Better Off” side would be found to be of worthy notation in ones post. Snow balls chance in hell. The dogma is deep within you.
So now you blame the President for the problems in Californa. Policies in California have been put in place by the California Legislature over the last 50 years. The reason people are fleeing California is because of these left wing policies. An interesting hypothetical: What if these policys were put in place by the Democrats for the entire nation, where then would we flee to.
Yeah, it’s Trump allowing Antifa goons to riot in Portland.
https://www.cnn.com/2020/10/14/politics/california-republicans-ballot-drop-boxes-cease-and-desist/index.html
The California Republican Party said Wednesday it will not comply with the state’s cease-and-desist order over unofficial ballot drop boxes placed in at least four counties, escalating a brewing political showdown ahead of the November election.
The unauthorized ballot boxes, which state officials have called illegal, have been found in at least four counties across the state: Los Angeles, Ventura, Orange and Fresno.
“Ballot harvesting program will continue,” California Republican Party spokesman Hector Barajas said in a statement to CNN.
the gambit there is obvious. if the get it into federal courts and they issue cases against it, then it will have a greater impact on Democrat ballot harvesting in the long run
very very clever. for once I admire GOP strategists
The Republicans should just go to individual homes to get the ballots and the take them to the drop boxes. Someone else could the pick up the boxes and take them to polling place. They could even help the people fill out their ballot. If they did it this way they would be wthin California law. How dare those Republicans inject the issue of Ballot Harvesting into the public discourse. Holding my sides with laughter.
Many fishes bight if you got good bait
Hears a little point that I’d like to relate
With my pole momma and my line
I’m agoin fishin, ya I’m going fishin
And the Republicans goin fishin too.
Aw shucks all they caught was suckers.
Agreed with Coons. The nomination of Barrett *does* constitute court packing. And Turley, prove to me that Barrett was nominated for anything other than her expected votes on the ACA, Roe and the ’20 election should it arrive at the SC.
Noted now that you’re against anti-facism and the opportunity for millions to have health insurance. See where this clown car is taking you? You down for the ride???
The term ‘court packing’ does not mean what you fancy it means.
You too need a history lesson. Only Democrats and dictators make up the meaning of words and phrases as they go along.
Barrett is an originalist and that will mean that she will not agree with a right wing idea that is not in line with the Constitution. You realize that if the ACA were found unconstitutional (that will likely not happen except perhaps a small part) then that is not a Judicial problem. It is a legislative problem and all the legislature has to do is pass a new bill that removes the unconstitutional aspects. it is the legislatures job to pass legislation.
It would be great for Jonathan Turley to write an article how the ACA’s “public option” system actually makes the free market function properly, benefiting consumers, lowering prices and improving service. The “public option” design is a check & balance on both government monopolies/cartels and private monopolies/cartels. American free market was designed to provide healthy competition to incentivize the best products, services at the lowest price to consumer – maximum consumer choice.
We should adopt the “public option” for many other services as well like internet/cable services. In rural areas and underserved markets, the free market sometime needs a public option for the free market to benefit consumers. There isn’t enough market share in sparsely populated areas. This creates no service at all or monopoly service, which has no incentive to provide customer service. Broad-band, cable and internet services are not a luxury, it’s vitally required for many kids in school, for many jobs and other vital areas. Vital services, required to live and prosper are constitutional issues, citizens have little choice. Ironically this is the ACA argument itself. Is healthcare and medicine a luxury or vital to life?
For example: if a private company inflates prices and doesn’t serve consumers, the public option offers consumer choice. If the government did the same thing, private companies can compete with that government service. Conservatives should love the free market piece of this, that creates healthy competition.
Ashcroft, your proposition is a nice one. Unfortunately the problem with free market ideas is that it’s never about competition. It’s about maximizing profit. Offering a public option cuts into that profit potential even if the public option offers a better, cheaper alternative.
Even when any public option is not present competition is not what the free market advocates really want. Competition is the enemy of profit. This is why you always see mergers increase when there’s multiple competitors. Ultimately competition is deliberately diminished in order to maximize profit and a captive consumer.
Look at cellular phone companies. It’s down to just two after T-Mobile merged with Sprint. AT&T merged with Verizon.
Now you have less choices and higher prices.
Health insurance companies don’t want a public option because it will cut into their lucrative profit and captive consumers. A public option offers a better alternative and better pricing because everyone would be contributing to it instead of paying exorbitant premiums for a smaller group of people.
This is why other countries have a single payer. It’s better.
Really Svelaz? Like in China which theoretically gives universal coverage but you actually have to pay surgeons with a bag of cash on the barrel before an operation, or they will let you die in your bed?
“It would be great for Jonathan Turley to write an article how the ACA’s “public option” system actually makes the free market function properly, benefiting consumers, lowering prices and improving service.”
It doesn’t so I don’t think anyone will try.
Do not forget that the original legislation had a mandate that required that all Americans be required to paticipate. If the mandate would have remained, there would have been no competition. The Supreme Court struck down the mandate as unconstitutional. As proof of my point I offer: “If you like your doctor you can keep your doctor” “If you like your plan you can keep your plan”. Words have meaning. Do I really have to go to the dictionary to herein display the meaning of the word “mandate”. As I recall, no prohibition was placed on also buying outside insurance coverage, but who would want to or could afford to buy insurance outside of Obama care. There was even a cutout for members of the legislature. Affordable had nothing to do with it.
These hearings are not required by the Constitution. The first hearing was conducted because the nominee was Jewish. OH NO………NOT THAT!!
The Democrats are very short sighted. Barrett strikes me as a very warm-hearted person who cares about people. Her personal and professional history all point to this. Also, Catholicism has a very long and deeply entwined thread of a passion for social justice. (I.e. Catholic Workers Party, anti-Vietnam activists/plowshares, Jesuit Volunteer Corps, etc.) Barrett would be a magnificent addition to the court and I think she would use her brilliance to protect the rights of individuals, not to hurt them. Philosophically, since she believes the legislature not the courts should set policy, that strongly implies that if the Dems take the White House and Congress, she would lean towards non-interference with liberal legislation that they may enact in the future. The Dems are being just about as bone-headed as a group as Mazie Hirono is individually.
Malthus100, “ this. Also, Catholicism has a very long and deeply entwined thread of a passion for social justice.”
Except when it comes to children and pedophile priests, torturing people into conversion, etc.
The Catholic Church isn’t exactly a good example of….morality.
“The Catholic Church isn’t exactly a good example of….morality.”
Much better than the DNC.
Where is you condemnation for acts of other religeons. The throwing of gays from the tops of buildings. All religeons are composed of some men and women of ill repute. These delorable acts do not represent the principles of the religion. There are groups who could take your statement and change the name to Jew or Muslim and they would not have to change a word. To use your broad sweeping brush on all Catholics is simply rank bigotry. Read any of the declerations about Jews by the Third Reich. They painted all Jews as evil with just such a brush as yours.
Barret couldn’t answer a basic question of the First Amendment! A first year law student would have been able to do that! Good grief. Of course she’s unqualified.
I wonder if you watched all of the hearings. It’s not just the ACA and Abortion, it’s her refusal to agree that intimidation of voters is illegal or that a peaceful transfer of power is an essential part of our political process. She was reluctant to offer any views of basic guiding principles. Her claim to be an Originalist is nothing but a smoke screen for reactionary judicial activism.
+10
Word.
I guess you didn’t understand the questions or the answers. Apparently Anonymous didn’t either.
“Her claim to be an Originalist is nothing but a smoke screen for reactionary judicial activism.”
Time for you to do some research on terms.
I offer a bowl for leftisit tears. You can drink from it when she is confirmed. You may get a laugh if Biden wins and he packs the court. Just as in the elimanation of the filibuster by the Democrats that now will allow for the approval of Justice Barrett, when power returns to the other side your laughter will quickly fade away. You may indeed enjoy the taste of sweet nectar, but the biter pill will be destined to follow. Use half of that bowl of tears to quench the dryness of your mouth when Justice Barrett is approved. Save the other half for when the precedent you have set will be used against you. You will drink with even greater thirst. Joe Biden: “We add three, “they add three, all creditability of the court will disappear”. How very right you were Joe. It takes a courages man to step up and defend his words. This is a great opportunity to show your courage to the nation.
I am voting against a senator in my state because he says he’s voting for Barrett.
I don’t know what to say anymore about the rat’s nest that is the modern DNC. The abandonment of pretense is the most concerning – the will of the people clearly means exactly jack to a single one of them in Congress and beyond. The number of people oblivious to the actual ramifications is simply jaw-dropping. I am hoping with all my might to see her and more like her on the bench.
James, they already tried a soft coup, weaponized the IC and other agencies and have promoted violence in the streets. I think we can look at the democrat party of today as an outlaw organization that if permitted to continue on its path could end up being much like those fascist groups pre WW2.
Allan, soft coup? I guess you didn’t get the news. Trump’s claims about Obama “spying” on him and a “deep state” cabal turned out to be a nothing burger by AG Barr. It was just trump making stuff up as usual. Notice how quiet Fox News got after the report came out.
Read what you read again or change newspapers. Full release of the Durham investigation won’t come out before the election.
The IC did a great job hiding everything including Joe Biden’s problems but now we are getting good information about Biden not investigated appropriately by the same IC. I didn’t notice how quiet Fox News was. I did note from the little I saw that there was a lot to talk about . Dems made idiots out of themselves at the Judiciary hearings, Pelosi got into a fight with Wolf Blitzer yelling at him and insulting him. She looked like an idiot as well. Then I noted that Joe Biden is a crook and lied about his knowledge about Burisma. Then as a reward for shutting down the prosecutor prosecuting Burisma they took P….. to Washington to meet people Obama and Clinton might have been two of them. Lots more news so there wasn’t much time to discuss something that happened days before.
What did we learn from the previous 3 days? That democrats act improperly and unethically. We already knew that. Now back to Joe Biden and his lies and dealings with Burisma. Joe’s a crook but then we already know that. Where did he ever get the money to buy his expensive homes and support Hunter’s drug habit at the same time?
But there is more, Twitter and Facebook are censoring the public including democrats not permitting the story to be sent through their media privately or publicly. I heard they even stopped the Post’s Twitter feed. Sounds like there may be a bit of campaign fraud mixed in. The left on this blog frequently stated there was no media bias. I guess this puts an end to believing anything they say.
OT: The Biden camp isn’t denying the NY Post blockbuster story that Joe met with Burisma execs as both he and Hunter denied numerous times. Right afterward ol’ Hunter picked up a sinecure worth at least double what other corporate board members are paid in the US and his annoying prosecutor got fired at Biden’s demand. The theme song for Biden campaign is now officially changed from “HIgher & Higher” to:
The Biden family is a kleptocracy. Biden the candidate is Caligula’s horse.
More precisely, the Biden family is what you see in a kleptocracy.
Harry Truman played piano for 20 years in the whorehouse of Kansas City politics, but he was quite scrupulous about accepting any blandishments after he left office. Sherman Adams was run out of office for accepting some gifts from a contributor of his (free stays in the man’s hotel, a coat, and the loan of a rug) and asking a regulatory agency about an ongoing investigation of the man. The coat (which included vicuna wool) cost the manufacturer $670 to make in today’s currency.
I’d like to see these quotes in context:
http://ace.mu.nu/archives/390816.php
What the twits at Twatter and Fakebook don’t want you to see.
The video at that site is also on youtube. He talks about other videos involving the Biden crime family. Where are they in the order he listed?
This is the address for youtube. https://www.youtube.com/watch?v=RZasrHQeKiY&list=PLlMn0a7NgIUZIGjQVofrk1M3Ulqdc7_-4
Everyone should be listening especially democrats who should at least know the crook they are voting for. I know what Trump did and what he didn’t do. He was investigated long enough to know he has done nothing wrong as President but we know know that Biden has been involved in bribery and we now know how the money was divided up. It’s on the video.
He’s still around and pointing up frauds, scoundrels and charlatans of every political stripe.
So their view is that the judicial branch is merely a handmaiden for Congress. So much for “Marbury” and for the American system of checks and balances.
Turley’s rationality on court packing is flawed for one simple reason. Republicans openly admit that’s what they want.
Her credentials are irrelevant because she was chosen specifically on the expectation that she will vote the way they want her to vote regardless of what the law says.
She was chosen because they want and expect the outcomes they want to force on everyone else.
The ACA severability issue is nothing more then a legal smokescreen. Notice how Turley left out Justice Thomas and Alito and Gorsuch. They voted against the ACA and it was Roberts vote that saved it. Barrett’s opinions are already pointing towards a vote against. Note that out of all the questions she avoided answering she seemingly was not as concerned about expressing her opinion on the ACA due to the possibility of being on the bench when the case goes to the court November 10.
Why would she offer an opinion that makes it clear how she sees the issue after pointing out numerous times that offering opinions on issues that might come before her would not be prudent?
Turley whines about how democrats are decrying court packing, yet he ignores republicans actually lacking the courts for four years. Barrett’s credentials may be “exemplary” only in the sense of a nice book cover, but the contents inside the book are far more extreme than the cover suggests.
The President was elected by the people, those people have the expectation that their President represents most closely their opinions and expectations. The President is following, as closely as he can, the will of those who put him in office. In short, our system is designed to work this way. Far too many Democrats are trying to destroy the system, aided by media, and a fair share of Republicans. The story here is the Democrats who are trying to again derail (Remember Justice Thomas) a legal and valid Candidate selected by the Elected President. Democrats of today are leftist useful idiots.
Of course the Ds are trying to derail ACB. They were voted into office to do the will of their voters, which is not put conservatives on the court. Also: Garland.
If what you said is true then how come Ruth Bader Ginsberg got so many votes from Republicans. It wasn’t because they wanted to put progressives on the court.
Troygale, “ The President was elected by the people, those people have the expectation that their President represents most closely their opinions and expectations. ”
Nope. The people didn’t vote for the president at all. 3 million more voted for Hillary Clinton than for Trump.
We don’t vote directly for the president.
Obviously the majority did not agree with the opinions of trump If 3 million more voted for Hillary.
Troy, the “people” elected Hillary. The EC elected Trump. He has no mandate.
The “people” also elected Obama twice and as you note with “the expectation that their President represents most closely their opinions and expectations.” Obama was elected by the people and the EC twice. He had a mandate. The GOP senators stole a SC seat from him and the American voters in an unprecedented and purely political and corrupt move.
The people looked at the Obama administration and increased the Republican majority in the Senate. The Democrats were telling us that they were going to win the Presidency and the Senate. Put on your big boy pants and cool it with your popular vote business. The reality is what it is. If those pesky founding fathers just wouldn’t have put in that pesky Electoral College. (Wipe your tears with your little hanky.)
Thinkit, the President nominates SC justices and Senate advises and consents. The GOP Senate purposefully failed their constitutional duties in order to steal a nomination from a twice elected President. That has never been done before. Guess what? It will become SOP and i guarantee no Presidential nominee will get a hearing by a Senate majority of the opposite party no matter when it comes open in their term. This is just another bar lowered by the GOP and Trump you will wish never happened.
As to electing senators, in both the 2016 and 2018 elections, Republicans maintained a majority while receiving approx 41 million votes to the Democrat’s approx 52 million votes. The current Senate majority – like Trump – represents a minority of voters and constituents.
Bwahahahahaha! It doesn’t matter bythebook what name you post under, facts are not a friend to your truth. 😄😃🤣😂😁
“Turley’s rationality on court packing is flawed for one simple reason. Republicans openly admit that’s what they want.”
Shows you don’t know the meaning of court packing.
“Her credentials are irrelevant because she was chosen specifically on the expectation that she will vote the way they want her to vote regardless of what the law says.”
Using your mind reading skills left you in the ditch where life was concerned. She will vote based on an originalist interpretation of the Constitution. What you have said constitutes libel.
” the contents inside the book are far more extreme than the cover suggests.”
I guess that means you don’t believe in the Constitution.
Allan, everyone knows the meaning of “court packing”. Republicans have been actively packing the lower courts for the last four years.
No need for mind reading when they tell everyone what their expectations are.
“Originalist” interpretation is pure BS. Even Scalia couldn’t adhere to his originalist interpretations when they posed an inconvenience. “Originalist” interpretations cannot work when the constitution is riddled with deliberately vague terms and non-specific wording.
Originalist interpretations require judges to ignore the changing nature of language over time. This seeks to stick to 18th century meanings to an ever changing present time. To an originalist paper money shouldn’t be valid because it’s not on the constitution.
We wouldn’t be able to have the economy we now enjoy if we stuck to originalist thinking because a national bank is not in the constitution, or the federal reserve.
Scalia abandoned originalist interpretations in his Heller opinion.
“Allan, everyone knows the meaning of “court packing”.”
You don’t. There is a history behind the phrase “court packing”. You don’t know history or the law. You make things up as you go along.
Any notion that Dims vote any principle besides aggrandizement of their own ultimate power went out the window eons ago. They’ve richly earned the rank of perpetual minority status.
In the last 30 years, how many times have the Ds lost the popular vote for president?
Teacher! Teacher!
Once. 2004 with an illegitimate incumbent – he won by a SC decision enabled by political hacks like Barrett, Kavanaugh, and Goresuch – who was a “wartime president” in a useless and murderous war he started. The Ds won the vote in 1992, 1996, 2000, 2008, 2012, and 2016.
Molly, I realize that this is impossible for you to understand due to your personal propensity towards fascist totalitarianism and tyranny, but it is people exactly like you who the Founders foresaw when they created the EC.
You’re a cultist. Had Hillary lost the popular vote, but won the EC, you’d be singing its praises from the mountaintops.
The USA is a Democratic-Republic. It is not a pure Democracy that allows for tyranny by the majority.
So put on your black Sheeple shirt and black Sheeple mask, head into the streets, and see where that gets you.
Lets point out that my alluding to the notion that party that routinely gets more votes is not deserving to be the minority party gets me called a fascist. I would put forth that defending a system that enshrines minority rule is closer to tyranny.
That”s why the Electoral College is so important. It protects us from you.
Please read the US Constitution. The popular vote has absolutely nothing to do with the election of a president. The president is decided by the electoral college. The electors to the college are decided by the presidential candidate that wins the state. If a presidential candidate wins enough states, that candidate becomes president. Without the electoral college, a few major population centers would control the outcome of the election and literally millions of other voters would be overwhelmed. Without the electoral college, the outcome of national elections would be controlled by California and New York.
Anonymous. The EC as constituted presently is based on winner take all delegations – except fro Maine and Nebraska – which effectively disenfranchises and makes irrelevant tens of million of voters. That system is not in the constitution, was not part of it’s original operation, and is the result of states trying to maximize their individual impacts on the election. Since they almost all do it, it only does that for maybe 10 close states where the candidates then concentrate while ignoring the voters in places like Texas, California, and NY. The EC would be fine if delegations were representational. Why shouldn’t those tens of millions California Republicans and Texas democrats have representation in the EC? Why shouldn’t candidates have to visit and sell their line to these voters as often as they do now in Pennsylvania and even New Hampshire?
You’re not defending a principled system, you’re justifying a random and unprincipled system which has just happened to work for you in 2 of the last 5 elections. It was not the founders intention that states award delegation on a winner take all basis and that the loser would become a regular winner.
The Democrats won a majority of the popular ballots in 1976, 2008, and 2012. That’s 3x in the last 14 presidential elections.
A majority of votes in either the popular vote or EC is irrelevant, A plurality wins the election.
Thanks however for noting that Obama won a majority of votes both times he ran and still had a SC nomination stolen and given to a loser by the GOP. senate majority, And here we have Turley the phony moralist concerned about the equivalent of eating the salad with a dinner fork.
You could care less about any socalled morality. We understand how the Democratic party leadership thinks and operates: no morality beyond what’s good for them
They don’t even care about me nor do they care about you, even though you may fool yourself into thinking that. They’ve pushed riots on the nation, they’ve pushed economically damaging and ineffective lockdowns, we have all been affected by the covid to a degree but their cures have made it worse. The travesty is not Trump it’s the failed Democratic leadership in the fiscally irresponsible states and cities which continue to see civil disorder and flagrant tolerance of crime committed in the open all over the place. It’s disgusting irresponsible and criminally negligent failed Democratic party leadership from one of their “turfs” to another and yet they project blame onto Orange Man Bad. It’s preposterous but keep on with it, we know your role is to be a cheerleader for the team . I hope you get something good out of your loyalty to these irresponsible liars and petty tyrants.
Oh i might add they squandered the opportunities they had to push such good ideas as they supposedly espoused, because rather than negotiate for bipartisan legislation that helps the nation, they ever played a game of smearing Trump as a Russian spy which has been a ridiculous lie from start to finish
And we know now who the Russian were really paying. Joe Biden’s son, got millions from the former mayor of Moscow. Wow! Some chutzpah Democrats have to project their own provable corruption on to Trump and every day double down on it long after the lie came up empty
Kurtz ignores many facts and feeds us an emotional tantrum lacking points but rich in fantasies. Let’s just say that this is the guy who thinks Trump is for the little guy – he sees them as the marks who show up for his rallies – and still believes Trump over the GOP led Senate Intelligence Committee which wrote only 2 months ago that the Russians interfered in the 2016 election with the goal of electing Trump and defeating Hillary. Do you want the quote and cite?
PS And I’ll note Kurtz – like Turley – has no comment on the fact that the GOP stole a seat from a twice elected president – by the people, not a fluke of the EC – or that the majority of the court – all but one of the Republicans on it – will have been appointed by a president specifically chosen by American voters to not be in the WH and to not make SC nominations.
The problem isn’t making actuarial calculations as to how she’ll vote on cases. (Asking her directly runs afoul of the rubrics of legal procedure; that’s a convention that should not be breached). The problem is that to which they object. In a sensible world, appellate judges assess whether a measure undertaken by a subordinate authority is in conflict with precepts laid down by superordinate authorities. Constitution > statutory law > administrative regulations and our understanding of each is elaborated upon in case law, some of it controlling and some of it persuasive. Ideally, the progenitors of case law are operating in good faith to elucidate and proclaim what others have instructed them to do. That’s going to involve some interstitial lawmaking, but only that.
The vulgarian aspect of the Democratic Party, manifest in street-level Democrats, in the media, and in dopey elected officials like Mazie Hirono, just want the courts to impose their preferred policies and prevent elected bodies controlled by the opposition from instituting preferred policy. They don’t care about law or procedure, they just want what they want. The posh aspect manifest in our appellate judges and the law professoriate is in the business of manufacturing specious rationales for imposing unwanted policies without any constitutional warrant. They’ve manufactured a highly involuted jurisprudence that’s filled with rhetorical feints and incorporates an implicit political theory which denies the franchise of ordinary people to opt for policies appellate judges and law professors do not care for. We need to give these people the prophets of Baal treatment.
Turley can take a long run on a short pier into his future – and present – on Fox News. He’s in Hannity territory for objective and principled analysis and couldn’t be more transparent. He writes:
“The court, like Congress, would become subject to raw and brutal politics at its very worst.”
Has he been in a coma? It’s been there since at least 2016 and this attempt – headed for success – to have a court majority appointed by presidents who American voters specifically did not want in the WH nominating judges – or doing anything else – delegitimizes it beyond the fact that one seat – which would have caused a liberal majority for the last 4 years – was stolen from a twice elected president.
He didn’t notice, didn’t care – take your phony, one way “concern” and stuff it.
Professor Turley mentioned Senator Durbin, Was Turley talking about Durbin on voting and Second Amendment?
As I understand it, voting is not clearly a constitutional right, but gun ownership is. So, why did Justice Barrett not say that to suggest that it is far easier to restrict voting than gun ownership? Would welcome some comments.
I thought she did say that, but in a way that wouldn’t incite social media pundits that didn’t understand. As far as Turley’s views on the Durbin exchange, I think Turley was so thirsty for an actual discussion of ideas from the Democrat side that he was less concerned with the substance of or points of the
arguments.
claygoldstein: Thanks. She did say voting is a ‘fundamental right’. Is fundamental right = constitutional right?
🤣
Hear, hear, Professor!
The Democrats are a lost political party and are not the party of past generations. Then again maybe they are?
Wow. Hypocrisy at its worst here. The Rs nominated ACB because she will vote they way they want, and they have been open about that. And they Rs did not even give Garland a hearing because they wanted to put someone on who would vote they way they want. And JT has the nerve to criticize Ds for not voting for a highly partisan nominee who will destroy all they worked for. This is bad, even for JT.
Senator Hawley: This morning Senator Leahy asked you about the Foreign Emolument Clause. There allegations about foreign influence and since he asked you about it. He asked you if it was best described as an anti-corruption clause. You might remember that in terms of foreign influence and foreign interference. And he referenced the president and various allegations about foreign influence. Since he asked you about it and he asked about foreign influence in government I think it’s only fair to ask hypothetically, let’s a vice president of the United States who hypothetically had an alleged son who hypothetically worked for a foreign oligarch who then sold access to his father the vice president and his father then intervened in a case to make sure the oligarch wasn’t prosecuted. So the second question I would ask you is hypothetically would that constitute the kind of foreign interference the Constitution is concerned about?
Judge Barrett: I can’t answer hypotheticals.
Senator Hawley: Well I thought you might say that. And I’m glad you won’t because who knows that case may come before you.
NB: If only
Superb
I would not play Poker with Amy Barrett. She is in total control.
Please refer to her with her rightful name: Nurse Ratchet.
Dishonest people can’t stand those that are honest.
A lobotomy wouldn’t diminish the quality of your thinking one bit.
I think you need a dictionary. Nominating a jurist who follows a certain constitutional and statutory philosophy in the disputes before them (which has been going on since John Marshall laid down the law), is a far cry different from refusing to confirm the nominee because she won’t vote the way you want in a case that is not even in front of her. Yes, they are ideologically oriented (so are politics), but they aren’t the same sort of thing. That is the essence of the “Ginsburg Rule.” You can know the nominee’s philosophy, but trying to extract how the nominee votes on cases, and refusing to confirm because of it, is a real distortion of the judicial role. Turley pointing this out is not hypocrisy.
They were not going to vote for Barrett anyway, they just needed an excuse.
Hear, hear, Professor!
“They were not going to vote for Barrett anyway, they just needed an excuse.”
***
Of course.
Skipping the hearing/show trial would not have changed even one vote in the Senate.
The ‘hearings’ are an embarrassment to the the Senate and to the country.
If we didn’t hear from these people we could at least pretend the elected clowns are wise and know what they are doing. Hearings strip away that comforting fiction.