October 20, 2016

Where do Hillary Clinton and Donald Trump want to see the Supreme Court "take the country"?

At last night's debate, the moderator, Chris Wallace, chose to make the first question about the Supreme Court. This perked me up. It's what I've concentrated my attention on for the past 35 years, and we've got an open seat and maybe 2 or even 4 seats that may open up in the next presidential term. What I remember from watching the debate last night is that both candidates were absolutely awful. Now that I've slept on it and have access to the transcript, I want to double-check my own opinion. So come along with me and judge for yourself.

Wallace observed that the topic of the Supreme Court had yet to be discussed at a debate in any depth, and he wanted to "drill down." Going to Clinton first, Wallace said:
[W]here do you want to see the court take the country? 
The idea that the Court is in the lead taking us somewhere is all wrong, but no one is going to point that out.
And secondly, what’s your view on how the constitution should be interpreted? Do the founders' words mean what they say or is it a living document to be applied flexibly, according to changing circumstances? 
That's a simple way to prompt the candidates to talk about interpretive methodology, and it's an invitation to bungle, because candidates don't really want to get stuck at either end of those seemingly opposite positions. (I say "seemingly," because you can say that the founder's words meant that this is a living document to be applied flexibly, according to changing circumstances.)

Clinton goes first:
You know, I think when we talk about the Supreme Court, it really raises the central issue in this election. Namely, what kind of country are we going to be? What kind of opportunities will we provide for our citizens? What kind of rights will Americans have? And I feel strongly that the Supreme Court needs to stand on the side of the American people. Not on the side of the powerful corporations and the wealthy. 
I was already loudly arguing with her. The side? The Supreme Court isn't supposed to take sides. She's blatantly saying she wants a Court that doesn't act like a court but gets on one side. Her Court is a Court that ought to have to recuse itself constantly.
For me, that means that we need a Supreme Court that will stand up on behalf of women's rights, on behalf of the rights of the LGBT community, that will stand up and say no to Citizens United, a decision that has undermined the election system in our country because of the way it permits dark, unaccountable money to come into our electoral system. 
So it's not that Citizens United incorrectly interprets the meaning of the First Amendment or that women and gay people really do have rights that are properly discovered in the text of the Due Process Clause and the Equal Protection clause, but that the Court has to "stand up" and fight for the side she wants favored.
I have major disagreements with my opponent about these issues and others that will be before the Supreme Court. But I feel that at this point in our country's history, it is important that we not reverse marriage equality, that we not reverse Roe v. Wade...
This could be a good legal proposition — the stability of precedent — but the sentence continues with something she wants overruled:
... that we stand up against Citizens United...
There's that injudicious term "stand up" again. You know, sticking with precedent is called "stare decisis," and that Latin phrase literally contains the word "stand": Let the decision stand. The idea that courts should stand against precedent feels perverse. Courts will occasionally overturn precedent, but they should do so as a result of legal analysis, not political passion. If a right — like freedom of speech — allows us to do "dark, unaccountable" things, that's not a legal argument for taking away the right. And I suspect very few listeners to the debate could get even a C- on a simple essay question about what the Court decided in Citizens United and why. Do they even know that the case involved a movie about Hillary Clinton, criticizing her, that federal law would have censored?

Hillary continues:
[It is important that] we stand up for the rights of people in the workplace, that we stand up and basically say, the Supreme Court should represent all of us. That's how I see the court. 
Now, Hillary went to law school. She taught law school. She knows the judicial branch isn't supposed to "represent" us. She's choosing to talk about the Court in language that applies to the political branches of government, and she comes right out and says she wants to use the presidential appointment power to fill the Court with Justices who see law like that:
And the kind of people that I would be looking to nominate to the court would be in the great tradition of standing up to the powerful, standing up on behalf of our rights as Americans. And I look forward to having that opportunity. I would hope that the Senate would do its job and confirm the nominee that President Obama has sent to them. That's the way the constitution fundamentally should operate. The President nominates and the Senate advises and consents or not. But they go forward with the process.
But no nominee would testify to the Senate Judiciary Committee expressing commitment to the "great tradition" she just articulated. I've listened to all of the testimony of everyone who currently sits on the Court, and none of them talked like that, even as the Senators from the opposite party from the President attempted to lure them into conceding that they are really, at heart, political hacks.

Wallace asked Trump the same question:
Trump: The Supreme Court, it is what it is all about. 
No, it isn't! But he doesn't really mean it. He's just getting a riff started with a catchphrase (or a line from "The Hokey Pokey").
Our country is so, so, it is just so imperative that we have the right justices. 
He answers questions like a pageant contestant. Everything is so important. Yeah? But why? Could you just give the impression of somebody articulate? No, he's going to use this occasion to complain about that time Ruth Bader Ginsburg insulted him. Really. This is the very next thing he thought of to say:
Something happened recently where Justice Ginsburg made some very inappropriate statements toward me and toward a tremendous number of people. Many, many millions of people that I represent and she was forced to apologize. And apologize she did. But these were statements that should never, ever have been made. 
Okay. Now, could you get somewhat closer to the questions asked — where should the Supreme Court take us and what's the right theory of constitutional interpretation? Apparently, that's just too big of a topic, because Trump bites off a part (it seems) he thinks he can chew, just one right, and, of course, it's the Second Amendment. This is the very next thing he says:
We need a Supreme Court that in my opinion is going to uphold the second amendment and all amendments, but the second amendment which is under absolute siege. I believe, if my opponent should win this race, which I truly don't think will happen, we will have a second amendment which will be a very, very small replica of what it is right now. But I feel that it is absolutely important that we uphold because of the fact that it is under such trauma. 
Yes, yes, everything is very important. But there's no detail about law, just an incitement to visualize the Second Amendment as a desperately needy victim — under "siege" and under "trauma" — "absolute siege" and "such trauma." It's pageant-speak, full of empathy and the feeling of meaning but devoid of any sign that the speaker knows what she's talking about. Sorry for the "she" there, but I'm talking about beauty pageants, like the kind Trump owns and must love, and I'm comparing him to those young women. And as I said last night out loud to Meade, Trump really is very feminine. If you listen to his voice — when he's not blustering — it gets soft and gentle and oozes empathy in a way that doesn't happen with Hillary. She has her hard, flat, assertive tone and it stays the same, even when she uses words like "toddlers" (see below) to infuse her statements with the message I care.

Trump continues, end-running around the question by reminding us that he's already shown us a list of people he might appoint to the Supreme Court. So look at them. Whatever they think. That's your answer.
I feel that the justices that I am going to appoint, and I've named 20 of them. The justices that I am going to appoint will be pro-life. They will have a conservative bent. They will be protecting the second amendment. They are great scholars in all cases and they're people of tremendous respect. They will interpret the constitution the way the founders wanted it interpreted and I believe that’s very important. 
Very important!
I don't think we should have justices appointed that decide what they want to hear. It is all about the constitution of, and it is so important. 
So important!
The constitution the way it was meant to be. And those are the people that I will appoint.
All right, I think he finally got around to gesturing at what might feel to you like a belief that the words of the Constitution ought to be interpreted to mean what the framers thought they meant, with no flexibility to accommodate the doctrine to changing circumstances... even though he never said that. His real message is what he generally says about law — go ask my lawyers. Now, that might be respectful toward the Court. He could be saying judges aren't supposed to be on one side or another, but simply to say what the law is. He'll put "great scholars" on the Court and he wants them to interpret the law as they see it, and the question of how to interpret the Constitution is part of the law that they will discern within their highly scholarly, properly judicial, independent function. If he knew how to say that clearly, he would have seen a clear shot to take at Hillary. But he chose to garble it all with verbal flab about how important everything is and with assurances that outcomes would be locked in on the 2 favorite conservative topics — guns and abortion.

Next, Wallace promises 10 minutes of what he calls "open discussion." He directs the first question — a precise, excellent question — at Clinton:
Secretary Clinton, you said last year, and let me quote: “The Supreme Court is wrong on the second amendment.” And now, in fact, in the 2008 Heller case the court ruled that there is a constitutional right to bear arms, but a right that is reasonably limited. Those were the words of the judge Antonin Scalia, who wrote the decision. What's wrong with that?

Clinton: Well, first of all, I support the second amendment. I lived in Arkansas for 18 wonderful years. I represented upstate New York. I understand and respect the tradition of gun ownership that goes back to the founding of our country, but I also believe that there can be and must be reasonable regulation. 
Yes, and that's what Scalia wrote in Heller, so what is wrong with that? Wallace quoted you saying Heller is wrong. But she babbles on, as if she doesn't get the question:
Because I support the second amendment doesn't mean that I want people who shouldn't have guns to be able to threaten you, kill you or members of your family. And so when I think about what we need to do, we have 33,000 people a year who die from guns. I think we need comprehensive background checks, need to close the online loophole, close the gun show loophole. There’s other matters that I think are sensible, that are the kinds of reforms that would make a difference, that are not in any way conflicting with the second amendment. 
None of that is at odds with the idea that's already in Heller — reasonable regulations are permitted. Okay, now she shows awareness of the question:
You mentioned the Heller decision and what I was saying that you referenced, Chris, was that I disagreed with the way the court applied the second amendment in that case. Because what the District of Columbia was trying to do was to protect toddlers from guns. 
Toddlers! The D.C. law made it a crime to have a gun in a condition to use it in self-defense in your home.
And so they wanted people with guns to safely store them. And the court did not accept that reasonable regulation but they've accepted many others. So I see no conflict between saving people's lives and defending the second amendment.
She craftily never mentions the details that made the Court see the D.C. law as too severe, so she's essentially conceding that any gun regulation that gets passed should be considered reasonable and thus not a violation of the Second Amendment. And that's how you can "believe" in the Second Amendment even as you let legislatures do whatever they want to it.

Wallace invites Trump to attack what Hillary just said: "Does she persuade you that while you may disagree on regulation, that in fact she in fact she supports the second amendment right to bear arms?" This is a softball if you understand Second Amendment law. And why wouldn't he? It was his go-to issue when the subject of the Supreme Court came up!
Trump: Well the D.C. versus Heller decision was very strongly... and she was extremely angry about it. I watched. I mean, she was very, very angry when upheld. 
He is speaking broken English. Spluttering, perhaps because he has no idea how to talk about law.
And Justice Scalia was so involved and it was a well crafted decision. 
Pageant talk again. The "so" is a tell.
But Hillary was extremely upset. Extremely angry.
Now, he's called her "angry" 3 times and "upset" once. 2 of the "angry"s got an "extremely," and the other got a "very, very." Is he just running out the clock? Why is he talking about Hillary's emotions? He's talking the way misogynists think women talk.
And people that believe in the second amendment and believe in it very strongly were very upset with what she had to say.
2 more "very"s and more emotion, this time from generic people who believe in the Second Amendment. They "were very upset with what she had to say." I think he's saying that because he doesn't really know what Clinton just said or how to attack it substantively.

Wallace turns to Hillary and asks her the silly question "Were you extremely upset?" She could have coolly performed respect for the legal position set out in the Heller dissent, but she took the opportunity to act as though she is emotional:
Clinton: Well, I was upset because unfortunately, dozens of toddlers injure themselves, even kill people with guns because unfortunately, not everyone who has loaded guns in their homes takes appropriate precautions. 
Again with the toddlers.
But there is no doubt that I respect the second amendment. That I also believe there is an individual right to bear arms. That is not in conflict with sensible, common sense regulation. 
There is no doubt? Well... it depends on what the meaning of "the Second Amendment" is. If it means all reasonable regulations are permitted and all regulations are reasonable, then she respects it. I doubt whether she initially bought the individual right interpretation, but I think she accepts it now, for political purposes, since it's much easier to call all regulations "reasonable" and therefore permitted than to take the trouble and the political friction of saying you want Heller overturned.
And you know, look. I understand that Donald has been strongly supported by the NRA, the gun lobby is on his side. They're running millions of dollars of ads against me and I regret that because what I would like to see is for people to come together and say, of course we're going to protect and defend the second amendment. But we're going to do it in a way that tries to save some of these 33,000 lives that we lose every year.
Come together, right now, over me.

Wallace asked Trump about some of the pro-gun legislation he supports, so now the topic isn't the Second Amendment anymore.
Wallace: You support a national right-to-carry law. Why, sir?

Trump: Well, let me just tell you before we go any further, in Chicago, which has the toughest gun laws in the United States, probably you could say by far, they have more gun violence than any other city. So we have the toughest laws and you have tremendous gun violence. I am a very strong supporter of the second amendment. 
Very strong. He's very strong.
And I don't know if Hillary was saying it in a sarcastic manner but I'm very proud to have the endorsement of the NRA and it was the earliest endorsement they've ever given to anybody who ran for president. So I'm very honored by all of that. We are going to appoint justices, this is the best way to help the second amendment. We are going to appoint justices that will feel very strongly about the second amendment. That will not do damage to the second amendment.
Complete failure to answer the question.  Why does Trump support a national right-to-carry law? By the way, if you cared about constitutional law, you would at least try to explain why right-to-carry should be a matter of federal law. It's a matter to be left to the states. And don't think Trump doesn't know how to say that something should be left to the states, because that's exactly where he runs when the next question is about abortion:
Wallace: Mr. Trump, you're pro-life... Do you want the court, including the justices that you will name, to overturn Roe v. Wade, which includes, in fact, states a woman's right to abortion.

Trump: Well, if that would happen, because I am pro-life and I will be appointing pro-life judges, I would think that would go back to the individual states.

Wallace: I'm asking you specifically would you-

Trump: If they overturned it, it would go back to the states.

Wallace: But what I'm asking you, do you want to see the court overturn it? You just said you want to see the court protect the second amendment, do you want to see the court overturn-

Trump: If we put another two or perhaps three justices on, that is really what will happen. That will happen automatically in my opinion. 
Automatically?! I was shouting at the TV at this point: He does not understand how the law works! The overturning of Roe v. Wade would never "happen automatically." Even if you put people you believed were pro-life onto the Court, they would have to read the briefs, hear the argument, contemplate stare decisis, and experience the awesome responsibility from within the new position of unassailable lifetime tenure. Justices O'Connor and Kennedy (appointed by Reagan) and Justice Souter (appointment by Bush I) were already there, and they preserved Roe v. Wade when they got confronted with overturning it in Planned Parenthood v. Casey. There is nothing automatic here, and, in fact, I place my bet on Roe v. Wade never being overturned, no matter how many supposedly pro-life justices get on the Court.

Clinton interweaves statements of strong support for Roe v. Wade with commitment to women's health care. And she ends with:
We have come too far to have that turn back now. And indeed, he said women should be punished. There should be some form of punishment for women who obtain abortions. And I could just not be more opposed to that kind of thinking.
That's not directly about the Court, but it's a good and pithy political statement that hurts Trump with the people in the middle on this divisive issue. That's as good as she gets on her bringing-people-together theme.

Wallace keeps challenging — doing a great job of pressuring both sides. He asks Clinton "how far you think the right to abortion goes":
You have been quoted as saying that the fetus has no constitutional rights. You also voted against a ban on late term partial birth abortions. Why?

Clinton: Because Roe v. Wade very clearly sets out that there can be regulations on abortion so long as the life and the health of the mother are taken into account. And when I voted as a senator, I did not think that that was the case. The kinds of cases that fall at the end of pregnancy are often the most heartbreaking, painful decisions for families to make. I have met with women who have, toward the end of their pregnancy, get the worst news one could get. That their health is in jeopardy if they continue to carry to term. Or that something terrible has happened or just been discovered about the pregnancy. I do not think the United States government should be stepping in and making those most personal of decisions. So you can regulate if you are doing so with the life and the health of the mother taken into account.
This set up Trump to speak emotively on the horror of late-term abortion:
Trump: Well I think it is terrible. If you go with what Hillary is saying, in the ninth month you can take baby and rip the baby out of the womb of the mother just prior to the birth of the baby. Now, you can say that that is okay and Hillary can say that that is okay, but it's not okay with me. Because based on what she is saying and based on where she's going and where she's been, you can take baby and rip the baby out of the womb. In the ninth month. On the final day. And that's not acceptable.
"Rip the baby out of the womb" — he said that twice. Gruesome. Ugly. Clinton calmly fights back:
Clinton: Well that is not what happens in these cases. And using that kind of scare rhetoric is just terribly unfortunate. You should meet with some of the women I've met with. Women I've known over the course of my life. This is one of the worst possible choices that any woman and her family has to make. And I do not believe the government should be making it. You know, I've had the great honor of traveling across the world on behalf of our country. I've been to countries where governments either forced women to have abortions, like they used to do in China, or forced women to bear children like they used to do in Romania. And I can tell you the government has no business in the decisions that women make with their families in accordance with their faith, with medical advice. And I will stand up for that right.

Trump: And honestly, nobody has business doing what I just said. Doing that as late as one or two or three or four days prior to birth. Nobody has that.
And that's where it ends, this subject of what will happen to the Supreme Court. There's no coming together over abortion. The candidates go to the polar opposites, and Chris Wallace declares the segment over and moves on to immigration. I'd like to say that, on immigration, Trump will stress law and Hillary will stress children, but I've gone on too long. The segment has ended and this blog post must end.

As I said at the outset, I wasn't happy with either of them, but Trump's problem is more about lack of interest and depth of knowledge and a scattered, emotive mind. Hillary's problem is more about the crafty glossing over of things she probably understands.

102 comments:

dreams said...

For the last 40 or 50 years the liberals have used the court to achieve what they couldn't achieve via elections, maybe even longer.

Nonapod said...

Namely, what kind of country are we going to be? What kind of opportunities will we provide for our citizens? What kind of rights will Americans have? And I feel strongly that the Supreme Court needs to stand on the side of the American people. Not on the side of the powerful corporations and the wealthy.

Anybody who thinks Hillary Clinton isn't going to push hard with a radical agenda hasn't been paying attention. She's clearly a big proponent of redefining people's rights, redistribution of wealth ect. The only thing that may get in her way is Congress. She may be able to bribe and threaten Congress critters though. This is bad news.

dreams said...

There is this from PowerLine.

"When Hillary Clinton nominates a Supreme Court Justice to replace Antonin Scalia (assuming Merrick Garland is not confirmed before Clinton takes office), that nominee will testify before the Senate Judiciary Committee that he or she will uphold the Constitution impartially and decide cases based on the law, not his or her policy preferences or the status of the litigants. That nominee will be lying."

http://www.powerlineblog.com/archives/2016/10/republicans-should-not-accept-hillary-clintons-supreme-court-nominees.php

Bob Ellison said...

The "represent" problem bugged me, too. Neither Hillary, nor Trump, not a lawyer, thought to say "the Court is not a representative body".

But these days, people think it is. It has a wise Latina, a black (not a real one), and a Jew or two. It's supposed to be a political/representative body, and it behaves like one. Sotomayor said the other day that she thought of using a baseball bat on Scalia. That's representative.

These two hillbillies are both unfit for the Presidency. If only one of them would think to hire good people who are not pure political animals!

Achilles said...

There is a national right to carry. Anyone past 4th grade can read the second amendment.

It takes an especially educated person to find "reasonable regulations " in the second amendment though.

vicari valdez said...

very informative and thourough post. thank you for this!

Achilles said...

Trump was absolutely terrible on that question.

Hillary lied through her teeth.

Which was worse?

rhhardin said...

It's not a legal analysis. It's for women.

Like beauty pageants, women watch the debates.

Guys decided long ago on a few principles, being abstracters at heart instead of complicaters.

rhhardin said...

Why is he talking about Hillary's emotions? He's talking the way misogynists think women talk.

That misrepresents the misogynist position.

It's how women think and decide. It's sometimes good, just not in elections in more than a neighborhood-sized decision.

It's based on adding complexity instead of abstracting.

Susan said...

The court has been "taking sides" for decades. That ship has sailed. The docks have been burned. The map home tossed overboard. There is no turning back.

The question now is which side will it take.

Lyssa said...

A competent Republican opponent would have ripped Clinton apart on Citizen's United. She purports to stand up for the people, and rests that on overturning a case that would have censored a movie which was critical of her. That's her idea of standing up for the people, censorship of criticism? But Trump probably doesn't even know this, much less has the ability to articulate it.

rhhardin said...

Epstein has a better approach to the constitution - it's meant to follow Roman and English common law. If scotus knew that their decisions would make actual sense, because those principles are easy to use. And they lead to the constitution.

There's intent for you, as well as adapting to new circumstances and living.

Just know what you're doing for a change.

rhhardin said...

The principles are so simple that you could explain them to Trump.

Hillary wouldn't see how they could benefit her and would ignore them, thinking like a woman.

EDH said...

Trump's excuse: he's not a lawyer.

What's Hillary's excuse: she failed the DC bar exam?

rhhardin said...

On the other hand, Epstein absolutely hates Trump, even more than Obama. So that advisor is probably out.

Quayle said...

"The idea that the Court is in the lead taking us somewhere is all wrong, "

That hits the nail precisely on the head.

The correct answer shoudl have been.

I want the Supreme Court to take the country excely and only where the citizens of the country take it through their elected representatives, and on the foundation and within the undergirding and overarching channels set by a super-majority of the peoples' representatiges andthe states.

And in no other direction or to no other place.

John said...

Kind of an aside question, but since we are talking about the flexibility and interpretation of the constitution it seems to be in line with the discussion to a point.

Why have we come to a point where amendment of the constitution is no longer a viable option? We had amended, and un-amended, the constitution 26 times over the course of its first 182 years. Since 1971 there has been but one new amendment (27th), and dealing with pay raises for congress that took over 200 years to be ratified.

Other than that...nada. Is it because the Constitution is now perfect, or is it because it is so much easier to get socially activist courts to just expand the interpretation of the document we have today?

dreams said...

Althouse expects Trump who has spent his entire life speaking in everyday shorthand language, a man who is a doer not a reader to understand and articulate the law. The important thing is that his head is screwed on straight and he has shown he is a good judge of character and will appoint good competent people to be judges and to fill other jobs in his administration.

rhhardin said...

Epstein also, not hewing to the party line at all, thinks that the 2nd amendment does not mean personal gun ownership at all but that each state provides for its defense as it decides.

So there's a negative on the right.

rhhardin said...

Trump on the supreme court would be another wise latina.

eric said...

I guess it depends on whether we are speaking about real life, or the college classroom.

According to our Constitution and scholars, the supreme Court isn't a legislative body. However, that is what it has become. It's been a slow process, but that's where we are now. Congress is pretty much for show now. The president and the courts rule.

It almost makes me sad to see Ann screaming at our presidential candidates because they don't get what the purpose of the court is supposed to be.

I can feel her pain. Because I'm screaming at my droid phone trying to get it through Ann's thick skull that this is what the court now is.

Finally the Conservatives caught up with the liberals. Who have been using the court to further their legislative agenda for decades.

Both are bad. But until we drive it all into the ground, who will cafe? The left will continue to play by their own set of rules. Now that we've adopted their rules, they are crying foul.

EDH said...

If you listen really closely, Hillary said she wants the Supreme Court to grab the country by the pussy.

Ann Althouse said...

"Guys decided long ago on a few principles, being abstracters at heart instead of complicates."

Trump is not a guy then.

rhhardin said...

If toddlers had guns, they could play in the neighborhood without fear.

eric said...


Why have we come to a point where amendment of the constitution is no longer a viable option?


Because the votes aren't there. You've got to find the laws you want.

rhhardin said...

"Guys decided long ago on a few principles, being abstracters at heart instead of complicates."

Trump is not a guy then.


Trump in the debate is talking for women. You've got to, whether man or woman.

I agree that he doesn't seem to know much about economics or law. But you could explain it to him, or anyway a guy could.

rhhardin said...

The trouble with amendment is that it opens the floor to every other amendment you can think of.

Sam L. said...

What about this Wisconsin story? http://www.dailytelegraph.com.au/blogs/tim-blair/warning-story-contains-nut/news-story/57e509383353f401c6b4ef404fd94570

Peter said...

"Rip the baby out of the womb" — he said that twice. Gruesome. Ugly."

The real question, perhaps, is whether Hillary supports a right to abortion (perhaps via that huge "health of the mother" loophole) that extends right up to the instant before birth. I don't know if she does or not, but, the public has a right to know if that's her political position.

I agree that Trump's speech remains infuriatingly fuzzy. After all, he could simply have noted that since the Constitution is silent on abortion the issue of what's permitted and when it's permitted should be up to The People, and The People's elected representatives, and not up to the Supreme Court, and that he'd appoint justices who agreed with that viewpoint.

BUT I can't fault Trump for saying "rip the baby out of the womb," because is and always will be fought more by emotion than by reason. Like the "Am I not a man and a brother" image and text, the raw emotions raised by the injustice of slavery did more to end it than reasoned argument ever did or could have done. Emotional appeals are the currency of politics.

In any case, it should be obvious to all by now that we have a Supreme Court that goes well beyond "interpretation" into just-make-it-up, to say it means just what you say it means and that the Constitutional remedy for an over-reaching Court (impeachment) is unlikely to be implemented. Why pretend that the Supreme Court is merely about judicial interpretation when all can see that it's intensely political?

robother said...

Ann: "The idea that the Court is in the lead taking us somewhere is all wrong..."

So, when 5 unelected SCOTUS judges craft an abortion statute that applies to all States, based upon nothing more than "emanations and penumbras" of different Constitutional Amendments, the idea that the Court is taking us somewhere is all wrong?

And "you can say that the founder's words meant that this is a living document to be applied flexibly, according to changing circumstances." But if so, why would the founders put a provision for amending the Constitution (much less one that contemplates democratically elected bodies in the States having a say in such amendments)?

Rick said...

Do they even know that the case involved a movie about Hillary Clinton, criticizing her, that federal law would have censored?

I can't believe Trump missed the opportunity to point this out. "While Hillary Clinton is pretending she's standing up for you in fact she she's promising to use government to prevent people like you from criticizing her."

Recall Harry Reid and Nancy Pelosi attending the grand opening of Michael Moore's nutty Fahrenheit 911. I don't recall anyone saying the government shouldn't allow it to be made or shown. But Queen Hillary must be protected!

rhhardin said...

Constitionally, we have sex marriage because sadz.

Brando said...

"There is nothing automatic here, and, in fact, I place my bet on Roe v. Wade never being overturned, no matter how many supposedly pro-life justices get on the Court."

I agree. Same for affirmative action.

Achilles said...

The biggest problem with our super smart Supreme Court justices is that they can read 7 or 8 amendments before they turn into cabagges when they read 9 and 10.

walter said...

"Even if you put people you believed were pro-life onto the Court, they would have to read the briefs, hear the argument, contemplate stare decisis, experience the awesome responsibility from within the new position of unassailable life-time tenure."
-
Yeah..like riffing on beating a colleague.
Maybe that's a "Wise Latina" thing.

traditionalguy said...

The solution is mandatory Caesarian operations. Then the small human sacrifices to Feminism can be kept intact with perfect body part harvesting. The nurses could recite the Hippocratic Oath and giggle with the Doctor ... And Maybe joke around with the little fellow before they all get off on a snuff film high while cackling "what difference does it make now."

Next pregnant woman.

As for guns, the solution is that all private guns must be turned in for storage at the Federal government headquarters. Then they can be checked out when needed, by the right people only, with no deplorables allowed.

Ignorance is Bliss said...

Achilles said...

There is a national right to carry. Anyone past 4th grade can read the second amendment.

The second amendment does not, on its own, apply to the states. To get there, you have to determine that the right to bear arms is a civil right, and that the 14th amendments prohibits states from infringing that right.

David Begley said...

Ann

Hillary wants to fully weaponize SCOTUS into a political institution. Forget about the text of the constitution and stare decisis.

You need to vote against Hilllary given your law prof job for 35 years. She is opposed to what you have taught.

Bruce Hayden said...

I too don't think that Roe v. Wade will be overturned in our lifetimes. The big problem is that the same side that opposes it (conservatives) are also the ones who are most deferential to court precedent. BUT, it probably wouldn't take as much to allow banning of late term abortions, except maybe when the life of the mother is at stake. Roe essentially divided pregnancy into three trimesters, allowing the baby some rights in the last trimester, and, essentially, none in the first trimester. Which is why it is silly to argue that the issue involves the first trimester, and not the third. As someone pointed out elsewhere, the first trimester abortion ship sailed long ago. It won't be back in our lifetimes, if ever.

SteveR said...

Clinton doesn't answer the very first question of the debate and goes right into a rehearsed speech.

These things are useless in that regard.

"What day of the week is it?"

"I think the days are important and I just recently spoke to a single mother who had to work on Saturdays."

So they treat the whole thing like we are stupid.

Mattman26 said...

He does talk like an air-headed pageant contestant trying to fill the time. Very perceptive (and ironic!).

Chuck said...

Well-reasoned and beautifully written, Professor Althouse. It's nice to see a post that reminds me why this became my favorite blog several years ago.

Barry Dauphin said...

Now, Hillary went to law school. She taught law school. She knows the judicial branch isn't supposed to "represent" us

Who knows what she knows? Maybe she didn't learn much and wasn't a learned teacher.

JPS said...

Bob Ellison, 10:33:

"It has a wise Latina, a black (not a real one), and a Jew or two."

And it has talent!

rhhardin said...

Roe vs Wade will be overturned when the population starts falling disastrously.

Women get benefits from society so they owe society kids, will be the reasoning.

rhhardin said...

That's constitutional because it's Pareto optimal. Nobody comes out worse off, after compensating benefits are figured in.

Lyle Smith said...

Christopher Hitchens wouldn't support Hillary "I let my husband Bill do whatever he wants to women" Clinton becoming President.

buwaya puti said...

As I have said, far too often I think, you are overthinking this. It is the result of being inside the black box. It skews perspective.

From the outside the main thing that matters is the result, and the process only if it is burdensome or oppressive - delays, lawfare, risk, expense.

Clinton is right, the sole important function of the Supreme Court at this time is political. It settles political questions. Her partisans see it that way too. Recent decisions and controversies support that. She and they are confident that if they can put in the judges they want the court will reliably rule in their favor. That is ALL that matters.

Call it cynical, call it corrupt. Yes it is. Thats our world.

mccullough said...

Hillary will appoint people she hopes will overturn the right of any law abiding adult to own any kind of firearm. But even if the Supreme Court did that and then Congress passed a law banning individuals to own firearms it would be impossible to enforce effectively like it's impossible to enforce the border. The federal government doesn't have the resources to do it and many local and state law enforcement officers aren't going to do it. Maybe in cities and suburbs they would, but the complaints about selective enforcement against blacks will be too strong. So the cities will continue to be violent and the rural areas will continue not to be violent. Gun ownership in the suburbs will decline but the people will continue to be safe there since there is not much violence.

Ignorance is Bliss said...

[W]here do you want to see the court take the country?

And secondly, how large of a hand-basket will that require?

Dude1394 said...

I see that you realize Trump is NOT a lawyer (thank goodness). But in essence he has said exactly what you want the court to do, not force a certain political bent from the bench, but your inability to get past his speech pattern does not allow it.

Now...of the two candidates, who do you think is going to "stack" the court or try and nominate justices that will be biased politically and try to move the country in a certain direction.

You know the answer and it is not Trump.

Just_Mike_S said...

they treat us like we're stupid because "we" are.

SukieTawdry said...

The real question, perhaps, is whether Hillary supports a right to abortion (perhaps via that huge "health of the mother" loophole) that extends right up to the instant before birth. I don't know if she does or not, but, the public has a right to know if that's her political position.

Oh, that's her position alright. She's made it abundantly clear through the years. The progressive view of abortion is that it must be available to any woman of any age at any time for any reason (and preferably, either the government or the woman's insurance company should pay for it). They would even go farther: in the event of a "botched" abortion, i.e. a live birth, abortion rights should extend postpartum. The whole "health of the mother" thing is a dodge. It includes the "mental health" of the mother which can be stretched to mean anything. Many people who generally support "choice" have a problem with this progressive view of abortion rights. I don't know anybody who would insist a woman take a pregnancy full term if it would endanger her life or have a severe impact on her health (on the other hand, there are women who reject potentially life-saving procedures while they're pregnant because such would endanger the fetus). Progressives do not accord rights to the unborn and feel the only legitimate right is the woman's choice to terminate.

Excellent analysis, Ann. My biggest quibble with the left vis-a-vis SCOTUS is their belief that it's the job of the Supreme Court to "stand up" for the little guy, the disadvantaged, minorities, women, whomever. We have justices on the Court right now who actually believe this crap. And the fair Hillary will add to their numbers.

buwaya puti said...

As many conservatives have been saying forever - heck, since Confucius and Cato the Elder - character trumps process.
If the people are corrupt so also the state and all its institutions.

There is little doubt that a great number of the people are corrupt, including many on the court.

It does no good to insist on what the court should be when it is full of people who dont care.

320Busdriver said...

Trump will do much better and perform nominally when he converts the oval office to a replica of the set of the Apprentice boardroom.

When he stumbles, Ivanka will step in to make things right.

n.n said...

Clinton opposes the seminal issues of life, liberty, and the pursuit of happiness identified in the American charter.

She is concerned about the [positive] progress of [class] diversity or institutional discrimination by "color of skin" (e.g. racism, sexism), congruence ("=") or selective exclusion, female chauvinism, and especially the right of immature females to demand capital punishment (i.e. abortion rite) of the wholly innocent for trivial causes including wealth, pleasure, leisure, and narcissistic indulgence, and the Party's sincere interest in securing and exploiting democratic leverage (e.g. immigration reform, refugee crises, illegal immigration). She opposes the right of self-defense. She opposes the right of free speech. She supports progressive corruption and dysfunction. She serves at the pleasure of the 1%, foreign and domestic.

Clinton is Pro-Choice, selective and opportunistic, unprincipled and unpredictable. She belongs to a Church that receives its religious/moral/legal instruction from the twilight zone.

Michael K said...

the sole important function of the Supreme Court at this time is political. It settles political questions. Her partisans see it that way too. Recent decisions and controversies support that. She and they are confident that if they can put in the judges they want the court will reliably rule in their favor. That is ALL that matters.

Agreed. We are past the age of law and into the age of politics supreme. Look at the IRA and the EPA.

I don't see this ending well. Trump might roll back the future for a decade but the political left never gives up.

Howard Jarvis, author of Prop 13 in California, once said, "You cannot ask the pigs to step away from the trough. You have to kick it away."

He was a political genius.

Michael K said...

That was IRS. A Freudian slip.

gspencer said...

"Where do you want to see the court take the country?"

This is how far from constitutional principles we've drifted.

Article 1, Section 1 says, "All legislative powers herein granted shall be vested in a Congress of the United States . . ."

"All" in Congress, the people's representatives. Meaning NONE of the powers to making law are in any other place.

Yet, we now look to un-elected judges as to where the country will be taken.

"But," my critics will declaim, "we've had law by other means for a long, long time now. Judicial decisions, executive orders, rule-making by countless federal agencies (much without congressional delegation)."

True enough. But none of that is legitimate by virtue of the written Constitution, the one which all these federal officers take under Article VI.

90% or more of what is today's fedgov is unconstitutional.

Amexpat said...

Trump's problem is more about lack of interest and depth of knowledge and a scattered, emotive mind. Hillary's problem is more about the crafty glossing over of things she probably understands.

Spot on!

Damn, I now find myself rooting for HRC. It's Trump's lack of ability to restrain himself to do what's needed to win this election and his lack of discipline/focus to get a rudimentary substantive knowledge of key issues that has swayed me that he's even worse than HRC.

Style wise, HRC was excellent in the debate. She looked more energetic than the previous two, she kept her voice in a lower range and didn't come off shrill and she didn't that silly life. Substance wise, she was straight forward about abortion but otherwise and artful dodger.

Sebastian said...
This comment has been removed by the author.
Sebastian said...

"The idea that the Court is in the lead taking us somewhere is all wrong..." Wrong but true. You've been teaching that these past few decades, right? I mean, what is the all of the commerce clause and substantive due process jurisprudence about but that?

Hill's problem is not crafty glossing. It's not glossing when she says that SCOTUS needs to "stand up" etc. -- it's a precise expression of prog desire. Nor is it crafty: for once, she is open and transparent -- about the results she wants to see, about treating the court as a purely political institution, and about sending a big FU to traditionalists who think there is or ought to be any constraint on progressive judicial activism. The toddler howler is of course wrong, but also neither crafty nor glossing: she is saying that the most invasive regulation gutting the 2nd Amendment should stand "for the children."

Trump is right on this: as Hill's own statements make clear, the second amendment is already under siege. With a few more appointees "in the lead taking us to" the gunless promised land, it will be gone.

Apart from ABC, the Court is the one substantive reason to vote for Trump.

320Busdriver said...

"She looked more energetic than the previous two, she kept her voice in a lower range and didn't come off shrill "

I have to disagree with that. She was nearly screeching at several points.

But, if you think this country is pointed in the correct direction, primarily by the current leadership, then she will not disappoint. I shudder to think what kinds of secrets, she, who is committed to secrecy, will keep as the leader of the free world.

who-knew said...

This is an interesting dissection of each nominees statements regarding the Supreme Court and it correctly points out how often they are completely off base regarding the role of judges. On the other hand, it's all theoretical and in no way applies to how the judiciary actually works in this country. Given that our courts are unmoored from any allegiance to the constitution and the rule of law, worrying about where the court will take us is completely legitimate.

Brando said...

Hillary's fans must be pretty happy right now. It may not be until 2020 that we see their comeuppance.

Last night would have been a good chance to see someone defend gun ownership rights and push back on abortion rights. Hillary managed to frame it well--if you only saw that exchange, you'd think she was a sensible moderate who only wanted common sense, piecemeal gun reforms (though admittedly she's not likely to even get those--Congress isn't touching guns) and only abortions in the most extreme circumstances. She could have been taken down but alas.

Conservatives, take comfort--the Left usually overplays its hand, and the pendulum swings back. Just next time maybe we shouldn't self destruct.

Static Ping said...

Ann, I am sorry for both you and the country at large that your profession is likely obsolete already. The Supreme Court is not a legislative body. The judiciary should be the most passive of the three branches. The Rule of Law applies to all equally. Yet the main lawgiver during my lifetime has been the courts, now rivaled by the government bureaucracy. The legislative branch's main role now is to approve the appointment of individuals to those two power centers and seems utterly incapable of passing a budget. One of our Presidential candidates clearly and obviously broke the law - a law that is vigorously enforced against less important people - and was granted virtual clemency by the corrupt Attorney General and the corrupt head of the FBI. CONSTITUTIONAL ORDER HAS BROKEN DOWN.

You are absolutely correct to the technical issues. You are also completely wrong as to reality.

When laws are passed by rioting, the leader of the opposition replaces the head of the army while the war is underway for mere political reasons, the Senate has been rendered unable to meet due to procedural trickery, and a very angry Sulla marches on Rome to exact his revenge, it is a little late to complain that is not how things are done in the Roman Republic. They are now.

Ignorance is Bliss said...


You mentioned the Heller decision and what I was saying that you referenced, Chris, was that I disagreed with the way the court applied the second amendment in that case. Because what the District of Columbia was trying to do was to protect toddlers from guns.

Ooh, ooh, can I play?

The fourth amendment prohibits unreasonable searches and seizures. But what could be more reasonable than protecting toddlers from gun violence? Therefore the police should have the right to search anyone and anyplace they suspect of being involved in gang violence, without the need for a warrant. We must close the search warrant loophole.

This is fun!

mtrobertslaw said...

"...you can say the founders'words meant that this is a living document to be applied flexibly, according to changing conditions." And the evidence for this is?

holdfast said...

Trump was vacuous and vague, but he managed to stutter his message across to gun owners and others. He's very clearly not a legal scholar. He should have noted that OF COURSE she hates Citizens United because it allowed regular Americans to criticize Her Royal Highness.

HRC was wrong and lying - not only about the law, but about the very role of a Court, as AA notes. And she IS supposed to be a legal scholar.

Finally, by focusing the abortion debate on partial-birth abortion, Trump wins. Most Americans are at least a little ambivalent on abortion generally. Nobody wants to put women in jail over it, and conservatives who are to strongly religions don't like laws that won't be obeyed. But outside of Planned Parenthood and the hard-core Dems, NOBODY like partial birth abortion, so Trump was on very strong ground and HRC didn't knock him off it.

Ignorance is Bliss said...

Brando said...

Conservatives, take comfort--the Left usually overplays its hand, and the pendulum swings back.

It is not a pendulum. It is a ratchet. The handle swings back and forth, but the country is only ever pulled in one direction.

Yancey Ward said...

I imagine Ann Althouse standing before a tsunami with her hands up screaming, "Stop!"

Congress has the power to put an end to the executive and judicial power grabs, but never uses it. The people have the power to force Congress use its power, but we never use it. If the courts and the executive are corrupt, they are so because we allow it, and we allow it because we, too, are corrupt.

SukieTawdry said...

It is not a pendulum. It is a ratchet. The handle swings back and forth, but the country is only ever pulled in one direction.

Interesting.

Michael K said...

He's very clearly not a legal scholar. He should have noted that OF COURSE she hates Citizens United because it allowed regular Americans to criticize Her Royal Highness.

It's amusing to see people who want to be saved from a scheming dishonest politician and a political ruling class that is incompetent, complain that the guy trying to save them is not a very good politician.

I can barely stand to watch Trump but I did watch most of the debate last night. He did pretty well, I thought.

Yes, he missed a couple of opportunities that a professional pol would have taken, maybe. If they had the guts to do so.

What you are seeing with him is genuine thinking and saying the thoughts as quickly as they occur to him.

The last thing the guy does is lie. What you see is what you get. It may be messy and vulgar but it is genuine.

I can tolerate a lot of messiness and vulgarity for truth.

Ann Althouse said...

What's this argument that Trump isn't a politician?

2 seasons into "The Apprentice," would you say he's not a reality-TV star? Where's the line when you cross over from being an outside? He's been in long enough. If he's not already the thing he was once new to, why would you trust him to start being President, a job where everyone starts up new?

Either he's good at getting started, seeing how to do something, and making it work or he's a dangerous hire.

Pick one.

Yancey Ward said...

The argument is that he isn't a professional politician. Michael K is correct- the complaint is pretty hilarious when you think about it, especially when it comes from certain commentators.

Dixie_Sugarbaker said...

Where in the medical journals does it say that a baby that must be delivered early due to the health of the mother, must also have its brains sucked out before delivery is complete? That is what happens in a late term abortion. Why is it necessary? Couldn't the mother give birth and then place the baby up for adoption? Leave it at the hospital. Where is the damage to the mother if the baby is allowed to be delivered healthy when she is under no obligation to take it home and raise it? The argument made by Clinton is a gruesome argument.

Rob said...

Here's the dilemma: Trump deserves to lose this election, but Hillary doesn't deserve to win.

Qwinn said...

With the single exception of gun rights, the mechanism powering the leftward Constitutional ratchet is stare decicis. Only progressive precedents get its protection. Look at Roe v Wade. Did anyone care about the 300 previous years where abortion was outlawed in many places? How about many rulings finding a rational basis for traditional marrige? None of those precedents mattered. As soon as the progs got a single court to rule their way, stare decisis becomes the rule, and thus the ratchet locks in forever.

Michael K said...

Where in the medical journals does it say that a baby that must be delivered early due to the health of the mother, must also have its brains sucked out before delivery is complete?

Nowhere which is why in real cases, several of which I describe in one of my books, a C section was done as soon as the baby was viable as determined by lecithin/sphyngomyelin ratios.

dilatation and extraction, the technical name for "partial birth abortion," is virtually always done for abortion, not the mother's health.

It's a loophole in abortion law. When I was in training in 1969, abortion was legal in California and they always had a psych consult, which always decided their mental health required abortion. Same thing.

gadfly said...

rhhardin said...
Ann Althouse said...

"Guys decided long ago on a few principles, being abstracters at heart instead of complicates."

Trump is not a guy then.


Trump in the debate is talking for women. You've got to, whether man or woman.

I agree that he doesn't seem to know much about economics or law. But you could explain it to him, or anyway a guy could.


From independent sources comes confirmation that Trump suffers from an inability to concentrate on a subject for more than a few minutes. Quoting Tony Schwartz, his ghostwriter: “He has no attention span. [...] it’s impossible to keep him focused on any topic, other than his own self-aggrandizement, for more than a few minutes, and even then . . . ” Schwartz trailed off, shaking his head in amazement. He regards Trump’s inability to concentrate as alarming . . .

This week the Donald Trump - Roger Ailes relationship came to an end. New York Magazine’s> Gabriel Sherman revealed ... on Wednesday morning, Trump has lost a key ally. “Ailes’s camp said Ailes learned that Trump couldn’t focus - surprise, surprise - and that advising him was a waste of time,” Sherman said. “These debate prep sessions weren’t going anywhere.”

True narcissists neither listen to what others say nor do they relate to anything outside their self-absorption. And that, my friends, is exactly why Donald Trump cannot relate to governing - he only understands issuing orders based on his frequent emotional outbursts. As an adult, he could still have ADHD, which impairs the ability to concentrate and you have to wonder if he is taking or has ever taken, mind-altering drugs like Ritalin or Adderall.

Brando said...

"What's this argument that Trump isn't a politician?"

It's a dumb argument. The moment Trump entered the race he was a politician. His excusers mean "he's not a good politician" but then they belie themselves when they point out how good he is at connecting with them and winning.

A better way to put it is they like that he stumbles through words and bleats out sayings in a way they find endearing. He's a different politician, but obviously a politician every bit as much as any other.

mockturtle said...

Ann, you are spot-on in your observation that the SCOTUS should not be 'taking' us anywhere. Thank you for pointing out what I missed.

Bay Area Guy said...

There's been about 59 Million abortions in the US since Roe. About 25% of pregnancies end in abortion. From a macro perspective, Pro-Choicers rarely ask if those extremely high numbers are good for a people, a culture, a country. But yes, let's worry about global warming.

cubanbob said...

As I said at the outset, I wasn't happy with either of them, but Trump's problem is more about lack of interest and depth of knowledge and a scattered, emotive mind. Hillary's problem is more about the crafty glossing over of things she probably understands."

The problem with Hillary is she wants to make the Court a super-legislature, a House Of Lords to insure that goals are achieved that ordinary legislators don't have the courage to pass. Althouse is that what you want? Incidentally it's not for nothing that Hillary is so advisement in wanting to overturn Citizens United, cockroaches hate bright light. Trump in his inarticulateness seems to be of the opinion that judges should simply be judges, that is does the constitution permit a law or regulation or not based on the textual reading of the statute and of the Constitution.

Sebastian said...

@YW: "I imagine Ann Althouse standing before a tsunami with her hands up screaming, "Stop!"" No: "The idea that a wave is in the lead taking us somewhere is all wrong."

James Pawlak said...

A. "No freeman shall ever be debarred the use of arms"; "The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government"; ; “What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. LET THEM TAKE ARMS.” (President Thomas Jefferson) 
B.  "The very atmosphere of firearms any where and every where restrains evil interference---they deserve a place of honor with all that is good.";  "Firearms are second only to theConstitution in importance; they are the peoples' liberty teeth"
(President George Washington)
C.    "On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to to the probable one in which it was passed.” (Thomas Jefferson)

As the Founders were masters of our English language, what did they mean by “SHALL NOT BE INFRINGED”?

readering said...

Do people realize that the Democrats lost control of the US Supreme Court soon after Nixon's inauguration, at a time when candidates Trump and Clinton were barely out of college? In May 1969, precisely, upon the forced resignation of Abe Fortas, whom the Republican minority in the Senate, in resistance to Pres. Johnson, had blocked from promotion to Chief Justice. The "Warren Court" era ended the next month with the swearing in of a different Warren, CJ Burger, in fulfillment of his campaign pledge to replace Warren with a strict constructionist (the era's version of originalists). There was no resistance from the Democratic majority in the Senate. The Court was a Republican branch from June 1970, with the swearing in of the justice with whom Pres. Nixon replaced Fortas, until the death this February of Nino Scalia. Over 45 years, longer than presidential candidates Rubio and Cruz have been alive. But still everyone on the right rails against the liberal Supreme Court.

hombre said...

'"What's this argument that Trump isn't a politician?"

It's a dumb argument. The moment Trump entered the race he was a politician. His excusers mean "he's not a good politician"....'

Golly, if only we were all smart enough to make up our own definitions, but then there are pitfalls:

Full Definition of politician
1: a person experienced in the art or science of government; especially : one actively engaged in conducting the business of a government

2a : a person engaged in party politics as a profession
b : a person primarily interested in political office for selfish or other narrow usually short-sighted reasons (http://www.merriam-webster.com/dictionary/politician).

Trump is a "candidate." Hillary is a politician. Common usage amongst amateurs, even college profs, doesn't automatically change the meaning of words.

hombre said...

The pitfalls are called dictionaries.

James Pawlak said...

For some time I have read many claims that "water boarding" (A part of the training of many in our Armed Forces) and other severe interrogation methods used against terrorists are "torture"---Without any proofs that it has caused lasting physical or psychological damage to those thugs.OR to the strangely sensitive US or world citizens of a leftist orientation.

Our "torturers are WIMPS ! They should rather select out the less useful or wanted captive terrorists, make other other such scum watch one of the following methods to encourage them to comply: Inject strong acids or other chemical to burn away the subjects bodies with the expected convulsions due to gross pain; OR, slice their living bodies into pieces in imitation of the traditional Chinese "Death Of A Thousand Cuts"; OR, crush or pierce their skulls and suck their living, functional, brains out of their quivering bodies.

Does this proposal shock you? Why? In the USA and some of those nations whose ethical pundits oppose to "water boarding", this is already done, It is called (Late Term) abortion and the subjects are not terrorists, but the most innocent of all humans.

Now, why does such genocidal actions against the unborn and, sometimes, almost born not shock the consciences of those same, very selective, critics of potentially life saving actions against terrorists?

hombre said...

readering said: "But still everyone on the right rails against the liberal Supreme Court."

So your point is that Republicans and/or their appointees can't be liberal?

Seriously? Do the names Blackmun, Stevens, Souter, Kennedy ring a bell?

narciso said...

the russians conduct filtration points, basically open air pits, where they interrogate chechen and other prisoners, the egyptians hung prisoners from meat hooks, by comparison the aggressive interrogations we applied to a handful of detainees, were like boy scout jamboree.

narciso said...

Roe, Furman, a whole host of other decisions, that still indicated a left wing orientation, the Court is much like the Brezhnev doctrine, it has become very hard to dislodge left wing precedents,

narciso said...

yes Furman was reversed within a few years, but roe becomes inviolate, even though the rationale changed from privacy to 14th amendment, they laid west to a whole string of precedents going back to the civil war re detainees, justified the mandate out of whole cloth,

readering said...

Trump not a politician, but he constantly says Clinton has been a politician since the seventies, although she didn't hold public office until 2001.

buwaya puti said...

Hillary's first jobs were political, politicians staff, political law firms, etc. She was very much a political wife, effectively her husbands chief of staff, and a partner at a politics- soaked law firm dealing mainly in political influence.

Politics, politics, politics

hombre said...

Blogger readering said...
"Trump not a politician, but he constantly says Clinton has been a politician since the seventies, although she didn't hold public office until 2001."

Do you ever do your homework before posting? She has been involved in partisan politics for-e-v-e-r!

Mac McConnell said...

I have never believed it's SCOTUS job to take us anywhere, that's the job of legislative branch.

Alexander said...

By the way, if you cared about constitutional law, you would at least try to explain why right-to-carry should be a matter of federal law. It's a matter to be left to the states.

As should have abortion.
As should have health care.
As should have gay marriage.

The lesson for conservatives here is that if you don't get your position locked in on the federal level, it's only a matter of time before it's dissolved.

That may not be how it's supposed to work, but that's the way it observably does. And I for one am done slitting my throat with my own principles.

damikesc said...

was shouting at the TV at this point: He does not understand how the law works! The overturning of Roe v. Wade would never "happen automatically." Even if you put people you believed were pro-life onto the Court, they would have to read the briefs, hear the argument, contemplate stare decisis, experience the awesome responsibility from within the new position of unassailable life-time tenure.

Why would they? The court didn't when it DECIDED Roe v Wade. They just threw shit on the wall and hope it stuck. But OTHER courts have to honor stare decisis when they court didn't? Do you want to argue that the decision in Roe v Wade actually made any legitimate sense? Plenty of abortion supporters readily admit the decision was awful.

Clinton: Because Roe v. Wade very clearly sets out that there can be regulations on abortion so long as the life and the health of the mother are taken into account.

But Courts have stretched "health of the mother" to include psychological/mental health, not just physical. Given that a woman can always die in birth, there is no limitation that would stand using her logic.

On the final day. And that's not acceptable. "Rip the baby out of the womb" — he said that twice. Gruesome. Ugly.

Also honest. You can legally deliver all but the head and suck the brains out and it won't be infanticide. Rush, years ago, said if a high school girl who left her kid in a toilet to die had a smart lawyer, she'd plead guilty to practicing medicine without a license.

"When Hillary Clinton nominates a Supreme Court Justice to replace Antonin Scalia (assuming Merrick Garland is not confirmed before Clinton takes office), that nominee will testify before the Senate Judiciary Committee that he or she will uphold the Constitution impartially and decide cases based on the law, not his or her policy preferences or the status of the litigants. That nominee will be lying."

Even worse, EVERYBODY knows they'd be lying. It's why you never hear in news stories "Nobody knows how the Progressive wing of the Court will decide". Because everybody knows before the case starts.

Justme Andmeonly said...

Hi Ann. You sound like Willie Geist. Today on Morning Joe, they were discussing Trump's final response to accepting the election results. Everyone was downtrodden because Trump made them look like fools.

Quote: "He didn't say it the RIGHT way"

The media and bloggers need to get off their high horse. Donald does not use NEWSPEAK. That's why we like him.

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