"A nominee's political ideology is only relevant if it has been shown to cloud their interpretation of the law. . . . A pattern of irresponsible judgment, where decisions are based on ideology rather than the law, could potentially be 'extraordinary.' "
Change "could potentially be" to "is" and you've nailed it.
Of course, we'll still have to argue over what counts as "clouded" and "irresponsible," and I'm going to withdraw my approval if it turns out to be just the view that the decisions produced by principled originalism or textualism are wrong. Tell me, Senator Landrieu: If you applied this standard to Justice Scalia or Thomas, would they deserve a filibuster? The answer should be no.
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I don't know but some are now thinking John Roberts would look realy spiffy in SC black. One with a strong 'right hook' is going to enter the ring, we all know it.
While I would not say Scalia's appointment constituted "extraordinary circumstances," I believe Thomas' would based on his rather slim resume at the time of his appointment and the never fully answered to my satisfaction sexual harassment accusations would raise at least significant concerns about his fitness to serve on the Court.
Matt: that's not properly responsive to my point, which is to test Landrieu's standard, which is about a pattern of decisionmaking!
Take all Thomas's work on the Court and tell me if Landrieu's standard for "extraordinary circumstance" is met. I say the answer should be no.
And Matt, looking back on the question of sexual harassment, it's damned obvious that Thomas was terribly wronged by those accusations.
Patrick: If ideology is taken to mean theory of interpretation, then I reject Landrieu's test.
Patrick: Yes, but if you look at her whole standard, the langauge about clouded intepretation and irresponsibility, it would be ridiculous to turn around and say those who follow original intent or textualism fall into that category. If she were to do that, she would richly deserve to be slammed. Her seemingly rational standard would turn into a cheap trick.
Patrick: I strongly disagree with you. If she pulls the wiggle your describing, she richly deserves to be slammed.
There's two ways to take her statement.
Option 1: A nominee whose political ideology forces him to rule in favor of his desired policy outcomes over what the law and Constitution says.
Option 2: A nominee whose interpretive philosophy forces him to overturn precedent.
I am with her if she means #1. I am vehemently against her if she means #2.
The problem, however, is that I fear that she means #2. When the Left hijacked the Courts starting in 1937, they decided to overturn years of precedent and start affirming FDR's policies. Now that their view of the Constitution (based on a previous rejection of stare decisis) is precedent itself, they start yelling "stare decisis! stare decisis!" It seems a little disingenuous.
If she does mean #1, then she would have to reject most of the liberal judges during the New Deal (in particular, Jackson) as well as some of the rulings of the Warren and Burger Courts. (And yes, I do know that Warren, Burger, etc. were appointed by Republicans. There are Republicans who are liberals you know (it was especially more common 30-40 years ago). Ever heard of Lowell Weickert? Or Justice Stevens?)
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