Ruth Bader Ginsburg has passed (Replaced by Amy Coney Barrett)(Now Abortion Discussion) (1 Viewer)

[GrandAdmiral]

Ugh... breaking news I DID NOT want to see.

ETA: Reported on CNN.

 

[DaveXA]

In line with that, I'm not saying definitively that she would put her Catholicism first as a theocrat, but things she has said and written make that a legitimate concern which makes her too questionable and risky to put on the court in my opinion.

She said what she said and she has ruled on too few cases for her rulings to carry enough weight to cancel out the things she has said and written through the years. It's too close a call and I think we should err on the side of caution which would be to not confirm her to the court.

I'm fully aware that my opinion has no influence at all over the outcome of her confirmation.

And to be clear, she's not my first choice. Not by a long shot. Probably not even top 10. And do agree her comments about religion and jurisprudence should give pause at the very least. I am curious to see how she responds to the questions of experience and the balance of personal faith and law during the confirmation hearings. If they voted tomorrow, she'd likely be confirmed.

That said, I don't think it's a done deal. For 2 reasons. There are probably 2-3 Republicans who i think could potentially throw a wrench in this whole thing, much like what McCain did with his unexpected thumbs down. Romney has said he supports an up or down vote...but, it wouldn't shock me if he votes no on the nomination. There would need to be 51 no votes to reject the nomination, and iirc 2 have said they don't want a vote before the election.

The Covid situation may also present issues during the process, so who knows what will happen.

We'll see i guess.

 

[Ayo]

They don't have much to attack her on besides being too religious and adopting black kids from Haiti.

incorrect and this thread has included much more than this

I mentioned my concern for her views on healthcare, for example.

 

[Richard]

incorrect and this thread has included much more than this

I mentioned my concern for her views on healthcare, for example.

This is where I may differ from some on here. IMO, senators should not vote against a prospective justice based primarily on their perceived policy differences. Certainly each senator could have what they consider to be factors warranting disqualification, but I don't believe that policy positions should be one. The religion-above-the-law angle could reasonably be considered disqualifying, as well as character concerns, rejection of precedent or just fitness and suitability for the role. It is their consent to grant or withhold and they set their own standards. It is my belief, however, that justices should be confirmed unless there is a concrete reason for disqualification rather than concern over how they might rule on particular issues. For example, RBG was obviously qualified and there was no legitimate reason to disqualify her. If I had been a senator, I would have voted to confirm her, regardless of any reservations I may have had about her potential rulings on any matter. The fact that she was perceived to be (and later proved to be) left leaning should have had no bearing on her fitness for the role.

Every prospective justice should be judged by those standards IMO. Garland should have been given the opportunity to be judged by those standards and would likely have been confirmed. Someone like Gorsuch should have been confirmed by almost any measure. I am not as sure about Kavanaugh. As much as Barrett may give pause due to earlier comments, I believe senators should vote to confirm unless they believe her character, legal temperament (which could include the religion angle) or fitness to serve are enough of an issue to disqualify her. How they think she might vote on a case involving abortion, healthcare or any other policy issue of the day should not be relevant.

 

[superchuck500]

 

[CoolBrees]

I heard that but McConnel was “full steam ahead” on the SC confirmation hearings. Is this including those?

 

[Nebaghead]

I heard that but McConnel was “full steam ahead” on the SC confirmation hearings. Is this including those?

My guess it will be remotely held. Unless they recess, then the committee can meet. They haven’t recessed.

 

[SaulGoodmanEsq]

McConnell previously refused the notion of holding votes/conducting Senate business remotely. Of course, hypocrisy has not stopped him before. That said, many GOP Senators attended the Barrett event and it seems likely most of them contracted Covid. They might not even be physically able to conduct business in the next week or so regardless if they can work remotely.

 

[N.O.Bronco]

McConnell previously refused the notion of holding votes/conducting Senate business remotely. Of course, hypocrisy has not stopped him before. That said, many GOP Senators attended the Barrett event and it seems likely most of them contracted Covid. They might not even be physically able to conduct business in the next week or so regardless if they can work remotely.

Yeah I imagine this is going to get interesting in the next few days:

COVID-19 Outbreak Could Derail Amy Coney Barrett Nomination | Law & Crime

The careening course of the novel coronavirus (COVID-19) outbreak at the White House is threatening to tear a multiple-senator-sized hole right through Senate Majority Leader Mitch McConnell's (R-Ky.) best laid plans for the Supreme Court.

lawandcrime.com

My guess, as always, is Republicans will find a way and Democrats will find a way to fork it up, but it’s not completely unfounded.

 

[Maxp]

Republicans will just show up with the virus. They don't care.

 

[MT15]

That’s Grassley’s plan. He refuses to take a test. He doesn’t care who he infects.

 

[LA - L.A.]

This is where I may differ from some on here. IMO, senators should not vote against a prospective justice based primarily on their perceived policy differences. Certainly each senator could have what they consider to be factors warranting disqualification, but I don't believe that policy positions should be one. The religion-above-the-law angle could reasonably be considered disqualifying, as well as character concerns, rejection of precedent or just fitness and suitability for the role. It is their consent to grant or withhold and they set their own standards. It is my belief, however, that justices should be confirmed unless there is a concrete reason for disqualification rather than concern over how they might rule on particular issues. For example, RBG was obviously qualified and there was no legitimate reason to disqualify her. If I had been a senator, I would have voted to confirm her, regardless of any reservations I may have had about her potential rulings on any matter. The fact that she was perceived to be (and later proved to be) left leaning should have had no bearing on her fitness for the role.

Every prospective justice should be judged by those standards IMO. Garland should have been given the opportunity to be judged by those standards and would likely have been confirmed. Someone like Gorsuch should have been confirmed by almost any measure. I am not as sure about Kavanaugh. As much as Barrett may give pause due to earlier comments, I believe senators should vote to confirm unless they believe her character, legal temperament (which could include the religion angle) or fitness to serve are enough of an issue to disqualify her. How they think she might vote on a case involving abortion, healthcare or any other policy issue of the day should not be relevant.

Even though I don't fully agree with this standard, I respect your consistent application of that standard. It's the constant, convenient changing of standards that I have the most issues with.

For me, the role and responsibility of a Supreme Court justice is to issue rulings, so I think a consideration on how they are likely to rule on specific matters that impact our lives is an inherent part of considering if they are qualified or not.

 

[Richard]

Even though I don't fully agree with this standard, I respect your consistent application of that standard. It's the constant, convenient changing of standards that I have the most issues with.

For me, the role and responsibility of a Supreme Court justice is to issue rulings, so I think a consideration on how they are likely to rule on specific matters that impact our lives is an inherent part of considering if they are qualified or not.

I understand why many think that way, but I couldn't disagree more. If the standard for determining whether a person is qualified is the way senators perceive a potential justice might rule, then there is no standard. There is only the philosophy of individual senators at a given point in time. People, even senators, evolve in their positions on particular issues, but I believe it is incumbent on judges and especially justices to not allow their personal viewpoint to skew their rulings in accordance with the law. While there may be good reason to believe that we know how Barrett, for example, might rule on a particular issue like abortion or the ACA, we don't really know. That is why senators have to probe during confirmation hearings to find out about a prospective justice's philosophy on upholding precedents, activism in judicial review, etc. That should reveal to senators whether that person is likely to allow their personal POV to override their duty in applying the law. In other words, we try to determine presidential and congressional candidates' views on specific matters that impact our lives to decide whether we want to vote for them or not. IMO, senators should only be determining whether a nominee is qualified or has a disqualifying characteristic, such as character, a deficiency of ability or a lack of devotion to the Constitution.

 

[LA - L.A.]

I understand why many think that way, but I couldn't disagree more. If the standard for determining whether a person is qualified is the way senators perceive a potential justice might rule, then there is no standard. There is only the philosophy of individual senators at a given point in time. People, even senators, evolve in their positions on particular issues, but I believe it is incumbent on judges and especially justices to not allow their personal viewpoint to skew their rulings in accordance with the law. While there may be good reason to believe that we know how Barrett, for example, might rule on a particular issue like abortion or the ACA, we don't really know. That is why senators have to probe during confirmation hearings to find out about a prospective justice's philosophy on upholding precedents, activism in judicial review, etc. That should reveal to senators whether that person is likely to allow their personal POV to override their duty in applying the law. In other words, we try to determine presidential and congressional candidates' views on specific matters that impact our lives to decide whether we want to vote for them or not. IMO, senators should only be determining whether a nominee is qualified or has a disqualifying characteristic, such as character, a deficiency of ability or a lack of devotion to the Constitution.

I understand and I'm really not trying to invalidate your thoughts on it, I'm just presenting mine.

Here's the thing for me, not everyone agrees on what character, ability and especially what devotion to the Constitution looks like. Even though we may think those are objective standards, they are subjective.

For instance, some think the individual mandate, a policy mandate of the ACA was unconstitutional, others think it was not. Even if Senators are sticking to devotion to the Constitution, then the question of how a justice would rule on the policy mandate is also a matter of what their devotion to the Constitution looks like.

How do you objectively measure a nominee's devotion to the Constitution without discussing how they would rule on ceratain policies? I'm not saying you ask them "will you rule against X party's policies." I'm talking about questions like how would you rule on an individual mandate, how would you rule on gun restrictions, how would you rule on social media platform restrictions, how would you rule on specific policies that impact voting rights, policies that impact immigrants, policies restricting campaign activities, and so on.

You can change all of those questions to "what are your thoughts on" instead of "how would you rule on," but the bottom line is you'd still be gauging how'd they end up ruling on certain policies.

 

[Richard]

I understand and I'm really not trying to invalidate your thoughts on it, I'm just presenting mine.

Here's the thing for me, not everyone agrees on what character, ability and especially what devotion to the Constitution looks like. Even though we may think those are objective standards, they are subjective.

For instance, some think the individual mandate, a policy mandate of the ACA was unconstitutional, others think it was not. Even if Senators are sticking to devotion to the Constitution, then the question of how a justice would rule on the policy mandate is also a matter of what their devotion to the Constitution looks like.

How do you objectively measure a nominee's devotion to the Constitution without discussing how they would rule on ceratain policies? I'm not saying you ask them "will you rule against X party's policies." I'm talking about questions like how would you rule on an individual mandate, how would you rule on gun restrictions, how would you rule on social media platform restrictions, how would you rule on specific policies that impact voting rights, policies that impact immigrants, policies restricting campaign activities, and so on.

Any nominee is likely to answer those questions the same way in that they will answer that they can't speculate on hypotheticals, because they need the specifics of a particular case before determining how they would rule. That is where the probing questions come in. Senators can listen to the nominee's responses and hear how that person approaches their consideration of cases. For the most part, nominees shouldn't be specific on how they would rule on particular issues or cases likely to come before them. They have to have an actual case before they would know and it would be improper for them to state how they would rule before arguments are made.

They can, however, speak about rulings that have already been made. Even though Barrett has expressed that she believes Roe v. Wade was wrongly decided, that POV is not disqualifying in and of itself. It would be unusual for an attorney not to have an opinion on a 50-year old major decision of the Court and there are many who feel that is was a poor decision, even among abortion proponents. But expressing an opinion about an older decision is not the same as speculation on how one would rule on a case likely to come before them prior to the parties having the opportunity to make their case.

 

[LA - L.A.]

Any nominee is likely to answer those questions the same way in that they will answer that they can't speculate on hypotheticals, because they need the specifics of a particular case before determining how they would rule. That is where the probing questions come in. Senators can listen to the nominee's responses and hear how that person approaches their consideration of cases. For the most part, nominees shouldn't be specific on how they would rule on particular issues or cases likely to come before them. They have to have an actual case before they would know and it would be improper for them to state how they would rule before arguments are made.

So change the language from "how would you rule on" to "what are your thoughts on." The thing is that even if the nominee doesn't speak in terms of "ruling," each and every Senator is going to make theor decisions based on how they think the nominee would generally rule on certain issues based on things the nominee does or doesn't say.

There's no way to trust someone is going to uphold the Constitution without discussing specifically how the nominee views what upholding the Constitution specifically looks like.

So maybe we don't ask how they would rule on hypothetical cases, but we absolutely vote for or against confirmation based on how we think they will rule on the issues we think are important.

They can, however, speak about rulings that have already been made. Even though Barrett has expressed that she believes Roe v. Wade was wrongly decided, that POV is not disqualifying in and of itself. It would be unusual for an attorney not to have an opinion on a 50-year old major decision of the Court and there are many who feel that is was a poor decision, even among abortion proponents.

This is an illustration of the subjective nature of the whole process. Those in the legal profession seem to see the legal world as more objective than it actually is. Law is highly subjective, otherwise there wouldn't be so many conflicting interpretations of the laws and so many conflicting opinions about previous legal rulings.

I understand the desire and need for everyone in the legal world to strive for objectivity, but the reality is all human beings are subjective to some degree or another. Before confirming someone for life to the Supreme Court which has the final word on interpreting the law, I think it's very import that we get very detailed and specific in finding out what their subjective biases are and how much they are influenced by them. I don't think we should take any of them on their word. Trust but verify.

That's the biggest issue with Barret. There's really no way to know how much she can be trusted without an extensive amount of questioning which isn't going to happen by design. We simply don't know enough about her as a judge and the only way to compensate for that is with thorough questioning her about specific legal/constitutional issues and previous cases.

 

[Richard]

Here is a good example of a sitting justice describing why a decision could have been wrongly decided while not believing that his personal POV about the issue at hand should enter into his perspective on the ruling itself. That is the kind of reasoning that should be expected of nominees as well in describing their thoughts on decided cases they have issue with. That is also why the probing of Barrett should be intense - not to determine her POV on the issue itself, but how she views the role of the Court and the responsibility of justices in interpreting the Constitution.

 

[LA - L.A.]

I saw that as being vague and evasive a giving no insight into how he would go about upholding the Constitution.

Notice how he says he doesn't have a public view on whether or not abortion should be legal. He doesn't say he doesn't have a privately held view and he doesn't say his privately held view won't sway his voting on cases.


He also smugly and dismissively laughs off the fact that under the original Constitution women had very few rights by fixating on the interviewers misstatement of having "no rights." He was his typically dismissive smug self and that display alone is one of the reasons I don't think he should have ever sat on the Supreme Court.

I saw Scalia as an arrogant ideologue. Some in the legal world didn't see him that way, while others did. Again, it's subjective.

 

[Richard]

I saw that as being vague and evasive a giving no insight into how he would go about upholding the Constitution.

Notice how he says he doesn't have a public view on whether or not abortion should be legal. He doesn't say he doesn't have a privately held view and he doesn't say his privately held view won't sway his voting on cases.


He also smugly and dismissively laughs off the fact that under the original Constitution women had very few rights by fixating on the interviewers misstatement of having "no rights." He was his typically dismissive smug self and that display alone is one of the reasons I don't think he should have ever sat on the Supreme Court.

I saw Scalia as an arrogant ideologue. Some in the legal world didn't see him that way, while others did. Again, it's subjective.

We certainly differ in our impressions of Scalia, who I saw as brilliant, humorous and engaging. RBG and Scalia often held opposing views on issues brought before the Court, but she also saw her friend as a brilliant justice. I see him as neither arrogant or dismissive, but rather in tune with his understanding of the law and one with the ability to articulate a position with clarity. I didn't agree with everything I have heard Scalia say, but I have never come away from hearing or reading him that I didn't believe that he was doing his best to remain true to the Constitution. That is the type of justice I want on the Court every time, regardless of whether a nominee is considered to lean left or right.