July 4, 2018

"But according to a person close to the president, Judge Kavanaugh, who has served 12 years on the United States Court of Appeals for the District of Columbia Circuit, is the leading candidate in the president’s mind..."

Writes Adam Liptak in the NYT.
Mr. Trump believes Judge Kavanaugh has been on the bench long enough to give the president a sense of where he stands on various issues and that Judge [Amy Coney] Barrett is fairly young and could use more judicial experience. 
She has less than 1 year of it!
The administration might want to keep her in reserve should Justice Ruth Bader Ginsburg, 85, leave the court.....

“A lot of social conservatives have coalesced around Amy,” said Jonathan H. Adler, a law professor at Case Western Reserve University, who said he knows and admires both judges. “The business folks and the D.C. folks tend to pull for Brett a little more.”

While Judge Kavanaugh, 53, has long been thought to be the front-runner and a favorite of Donald F. McGahn II, the White House counsel, he has in recent days faced mounting opposition from social conservatives for aspects of his résumé.
Barrett got an immense boost from Dianne Feinstein, who uttered the memorably poetic phrase: "The dogma lives loudly within you." Feinstein meant to challenge and criticize, but this was a striking case of an intended insult making the person more appealing.

I wrote about "The dogma lives loudly with you" last September:
We're being asked to rely on the decisions that will come from the mind of this nominee. That mind must be tested, and it can't be tested enough. There are all sorts of biases and disabilities within any human mind, and the hearings can do very little to expose the limitations of an intelligent, well-prepared nominee.

To create a special immune, untestable zone is absurd.

A nominee with a mind entirely devoted to religion and intending to use her position as a judge to further the principles of her religion should be voted down just like a candidate who revealed that he'd go by "what decision in a case was most likely to advance the cause of socialism."

I'd like to think that a religious person has a strong moral core that would preclude that kind of dishonesty, but we're not required to give religious nominees a pass and presume they're more honest than nominees who are not religious devotees. That would be religious discrimination!

65 comments:

rhhardin said...

I was thinking hold the hot babe in reserve, too, for the RBG replacement.

The vagino-balance.

mccullough said...

Since Kavanaugh’s name was leaked, it won’t be him. A sop to the GOP swamp. It’s a pump fake like Barrett who was a sop to the pro lifers. Also, the media willoverscrutinize him for a day like they did Barrett. By the time the actual nominee is named, normal people will have tuned out the breathless nuttery and Susan Collins will go back to her relative obscurity.

rhhardin said...

As for experience, you don't even need to be a lawyer.

rhhardin said...

RBG is the riot act replacement, as a nutty lib is replaced by somebody who's thought, at least, to be a non-lib.

Insist that we're just replacing a woman with a better looking one, that's all.

mccullough said...

Leave the Court is a nice euphemism for drop dead. The Progressives are going to go apeshit if the Notorious RBG kicks the bucket while Trump is president. There was some squawking that she didn’t retire during the reign of Obama. She’ll definitely be notorious if Barrett is her replacement. I like how Trump’s people are basically saying Barrett’s got Ginsburg’s seat once Ruth dies. Having some fun with the Left.

Anonymous said...

Barrett got an immense boost from Dianne Feinstein, who uttered the memorably poetic phrase: "The dogma lives loudly within you."

They surely don't want Barrett, but some of the more Loki-esque anti-prog internet commenters I've seen were hoping she'd be nominated first and rejected, just to get the usual suspects to lose what's left of their self-control and immolate themselves in an anti-Catholic, anti-Christian frenzy.

Would be fun to watch, I admit.

Sal said...

Doesn't WaPo employ a couple of reporters who can read Trump's mind? I want to hear from them who the front-runner is.

MikeR said...

'I wrote about "The dogma lives loudly with you" last September...' In theory I could maybe agree. In practice, religious fundamentalists are used to living in this country and dealing with the give-and-take that is required by places where their religion bumps into secular norms.
On the other hand, progressives are not; the secular norms are their religion, and they make no accommodations. They generally do not think that the Constitution should be any barrier to "doing the right thing", i.e., following their religion.

Taylor said...

The Constitution forbids religious tests for office-holders.

The president of Princeton, Chris Eisgruber, was so peeved he wrote a letter about her remarks.

He nails it. Beautiful letter.

Wilbur said...

If you want to be amused, let Trump nominate Roy Moore.

Matt Sablan said...

"They surely don't want Barrett, but some of the more Loki-esque anti-prog internet commenters I've seen were hoping she'd be nominated first and rejected, just to get the usual suspects to lose what's left of their self-control and immolate themselves in an anti-Catholic, anti-Christian frenzy."

-- See, this is why I honestly am worried whether any nominee makes it to their hearing unscathed. It would be kind of irresponsible to pick someone who might be targeted by violence solely to poke the other side in the eye.

tim maguire said...

A nominee with a mind entirely devoted to religion and intending to use her position as a judge to further the principles of her religion should be voted down

The smarter religious people recognize just as well as the smarter secular people that mixing religion with government is not just bad for government, it is bad for religion as well.

Crypto said...

Kethledge - GO BLUE!

Crypto said...

Now that I've got that out of my system, does anyone know why Paul Clement never made it onto Trump's list?

Fib Dynamo said...

It seems Trump has an opportunity to use Tyrion Lannister's strategy to flush out a leaker in his office. Just tell different advisers different names--confidentially, of course--and see which name gets blabbed to the press.

Then he can throw the leaker in the dungeon and cut off his beard!

https://www.youtube.com/watch?v=UpZg7girOlI

Saint Croix said...

does anyone know why Paul Clement never made it onto Trump's list?

My guess would be that he is not active in the Federalist society.


Dave Begley said...
This comment has been removed by the author.
Rae said...

How did Roe v Wade become the hill democrats are willing to die on? It's literally the only thing they mention when the Supreme Court comes ups.

Big Mike said...

Kavanaugh or Kethledge. One of those two.

Rae said...

They surely don't want Barrett, but some of the more Loki-esque anti-prog internet commenters I've seen were hoping she'd be nominated first and rejected, just to get the usual suspects to lose what's left of their self-control and immolate themselves in an anti-Catholic, anti-Christian frenzy.

Would be fun to watch, I admit.


That would be a very shitty thing to do to an apparently good person.

Dave Begley said...

Should RBG leave the court” writes the NYT. It is when RBG leaves the court in the next 6 years.

I predict the Chief is going to have to force her out due to her inability to do the job.

Birkel said...

Smart analysis, mccullough.

I would write PURPLE ELEPHANT to describe the exact same events.

clint said...

"The Progressives are going to go apeshit if the Notorious RBG kicks the bucket while Trump is president."

How will we tell the difference?

khematite said...

It's been interesting over the years to see service on one of the US courts of appeal become a de facto requirement for nomination to the US Supreme Court. Needless to say, some of the greatest justices in history never had to meet such a requirement (though we could argue about just who were the greatest).

Now, we've moved on to focus on just how much experience on a federal appeals court a Supreme Court nominee ought to have before being confirmed. Just for reference, in the relatively recent past, John Roberts had 27 months and Clarence Thomas only 16. David Souter had less than 5 months. William Rehnquist had none.

Saint Croix said...

Barrett is fairly young and could use more judicial experience.

Hugo Black had zero experience as an appellate judge. And he is still the best Supreme Court jurist we've ever had.

Earl Warren also had zero experience as an appellate judge.

Not a bad idea to nominate a non-judge every once in a while, or a starter judge. Clarence Thomas was on the appellate bench about 16 months when he was nominated for the Supreme Court.

Comanche Voter said...

The lefty dogma is front and center in Di Fi's mind. That said, when she was compared to her then fellow Senator from California, Baghdad Barbara "Call me Senator" Boxer, Feinstein looked almost reasonable.

Now we can compare her to Kamala Harris--ah I just don't want to go there. We Californians have sent some humdingers to the Senate.

Can Of Cheese for Hunter said...

If the dogma lives inside you, there is no room for the real religion. The religion of the radical left.

Jupiter said...

"I'd like to think that a religious person has a strong moral core that would preclude that kind of dishonesty, but we're not required to give religious nominees a pass and presume they're more honest than nominees who are not religious devotees. That would be religious discrimination!"

In the first place, "we" don't have squat to say in the matter, and are therefore at liberty to form our opinions on any basis we like. We are not in a position to perform any discriminatory actions.

In the second place, can you explain why you think that a person's ideas about religion must not figure in your assessment of their fitness for employment? As a matter of law, it may be illegal to discriminate on that basis. But that does not mean it is unwise, or illogical. Would you hire a Satanist as a baby-sitter? If not, does that make you a "bigot"?

Saint Croix said...

Felix Frankfurter was a law professor. (Also the founder of the ACLU). Nino Scalia was also a law professor.

Law professors are smart and dangerous!

Professors on the current list of 25 include...

Amy Barrett, Joan Larsen, David Stras, and Raymond Kethledge


Paul Zrimsek said...

If it would be religious discrimination to say that religious believers are more honest than believers of other sorts, why wouldn't it also be religious discrimination to say they're more dogmatic?

Gahrie said...

Not a bad idea to nominate a non-judge every once in a while, or a starter judge.

I'd like to see two or three non-lawyers.

Marty Keller said...

I agree with Sal: just how does Adam Liptak know what the President "believes"? I call BS.

Sebastian said...

"but we're not required to give religious nominees a pass and presume they're more honest than nominees who are not religious devotees."

How often has the honesty of non-religious candidates been challenged? Did anyone complain that prog dogma lived loudly within RBG? "Not giving a pass to religious nominees" is strictly a one-way street.

Anyway, what we have here is the intersectional confluence of the prog culture war and prog judicial politics. Smearing Catholic judicial candidates does double duty: squashing Christianity as part of the culture, making the appointment of serious Christians more difficult.

Can Of Cheese for Hunter said...

Perhaps Diane can write a bill that requires a government sponsored exorcist to remove the Dogma from inside all the non-progress-on-the-road-to-socialism-ers.
We need curing.

Jupiter said...

And while we are on the subject, why do you imagine that religious belief is connected to honesty? The question of what is or isn't a religion is fairly absurd. If I believe in angels, that's religion. Unicorns, not so much. Why? Cuz. But "honesty" is a religious concern only to the degree that the religion is concerned with ethics generally. And that concern may not be positive. Islam specifically enjoins its adherents to lie in order to gain advantage over infidels. Taqqiya, it's called.

Bay Area Guy said...

"The dogma lives loudly within you," is a great line. Sounds like something Yoda would say to young Luke Skywalker. Professor Barrett's preferred response: "That dogma ain't the only thing livin' loudly within me. I got 7 kids, you barren old coot and a whole lotta lovin' in my house"

The Godfather said...

Religion has nothing to do with it. If Barrett were an atheist who opposed abortion, Feinstein would be against her. And the "religious" pro-life movement would be for her.

YoungHegelian said...

"The Dogma is strong with this One."

MadisonMan said...

Kavanagh is another Yalie. How diverse for the Court.

Doesn't WaPo employ a couple of reporters who can read Trump's mind? I want to hear from them who the front-runner is.

According to a Washington Post Reporter who can read Trump's mind. A line I eagerly await seeing in print!

n.n said...

The left's religion is Pro-Choice, selective, opportunistic, and congruent. The immaculate principle, as it were, establishes the wicked solution as a moral and political (i.e. social) imperative. While Pro-Choice is two choices too late, the left, in fact, has no choice. A wicked solution to an albeit hard problem... girls and boys just want to have fun. That said, selective-child unlike one-child has been normalized through social progress, and will be revised through political, social, and moral reform. The first baby step can be accomplished through the Supreme Court, for example "cruel and unusual", "equal rights", from conception to death.

rhhardin said...

Dogma makes fixed what's allowed to vary and what isn't.

walter said...

It would be interesting to have heard that discussion between Trump and Kennedy. When Trump afterward alluded to picking such that it would maintain Kennedy's "legacy", what did that mean? Or was that just a polite gesture to Kennedy?
The oft bandied notion that like needs to be replaced with like seems to assume some sort of necessary status quo or "balance". That looks more like a defensive maneuver by whoever is holding less sway at the moment.
I do wish Trump hadn't previously brayed about picking only pro-life judges, makes it a tad more difficult to argue the non-litmus "originalist" angle.

Gahrie said...

I do wish Trump hadn't previously brayed about picking only pro-life judges, makes it a tad more difficult to argue the non-litmus "originalist" angle.

An argument could be made that if you are indeed an originalist you take the pro-life position by default even if you aren't personally pro-life. There is nothing in the wording or intent of the writers of the Constitution that remotely suggests that there is a right to an abortion.

cubanbob said...

Trump shouldn't let the Democrats influence his decision. Nor should he kowtow to squish Republicans. Just pick the one he thinks best for reasons of judicial temperament and faithfulness to originalism. If there is a shit storm in the Senate confirmation hearings it will only make the feces flinging monkeys look stupid and ridiculous. And that has always been to Trump's advantage.

n.n said...

An argument could be made that if you are indeed an originalist you take the pro-life position by default even if you aren't personally pro-life.

Yes.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men

Also, the People and our Posterity.

Amendment 8 - Cruel and Unusual Punishment

Life from conception in following scientific logic, not spontaneous conception as advanced by the twilight faith and normalized by the Pro-Choice Church. A coherent nervous system evolves from around one to two months.

Due process, not summary judgments; equal rights, not political congruence... for the most vulnerable human lives that lack a voice to protest and are literally disarmed.

The legal statute recognizes elective abortion as a choice in self-defense, and a reconciliation of rights in all other cases.

n.n said...

Legal reform to address single and other monopoly-forced misalignments (e.g. cost shifts).

Emigration reform to address second and third-world nations' human exports.

An end to social justice adventures for elective regime changes, mass abortion fields, and catastrophic anthropogenic immigration reform including refugee crises, trail of tears, and separation of parents and children.

Discernment of parents and predators identifying as "parents" at the border.

Increased scrutiny of emigrants from high risk areas.

An end to diversity and other race, sex, gender, etc. forms of judgments, discrimination, and quotas.

Equal rights, not political congruence.

Anonymous said...

No Religious Test Clause. The No Religious Test Clause of the United States Constitution is a clause within Article VI, Section 3. By its plain terms, no federal office holder or employee can be required to adhere to or accept any particular religion or doctrine as a prerequisite to holding a federal office or a federal government job.

Paco Wové said...

"The dogma lives loudly within you," is a great line.

One of my favorite lines of the twenty-teens, along with "Milk the soft power dividend".

sane_voter said...

I want someone who is not going to surprise us like a Souter. That is only possible with someone who has a history of written opinions on a Federal court. That is what gives me pause about Ms. Barrett.

sane_voter said...

Given her age of 46.4 yrs, Barrett has a life expectancy of 36.4 yrs. So if confirmed, it is critical she is a reliable constitutional originalist given she will likely be on the court for decades.

Michael K said...

I fully expect riots and attempts at invasion of the hearing room.

This will be ugly.

readering said...

Trump has been obsessed with Gorsuch's academic credentials. Barrett was a Scalia clerk and obviously talented but she went to a college Trump had surely never heard of and a law school he associates with the forward pass. He won't pick her.

StephenFearby said...

Kethledge, the dark horse moving up in the stretch:

Detroit News, July 3

'Federal appeals court Judge Raymond Kethledge of Michigan has emerged as a top contender for the U.S. Supreme Court, as President Donald Trump considers a nominee to replace retiring Justice Anthony Kennedy.

Kethledge was among four appellate court judges who met with Trump on Monday at the White House, three anonymous sources told the Washington Post. He was also considered a finalist last year for the High Court seat that ultimately went to Justice Neil Gorsuch, according to Bloomberg News.

Indeed, conservative commentator Hugh Hewitt has dubbed Kethledge "Gorsuch 2.0," as a jurist "in the mold of Antonin Scalia" who has consistently ruled in line with the original intent of the Constitution...'

...'The conservative Wall Street Journal's editorial board praised Kethledge for penning the judicial "Opinion of the Year" when he delivered a "legal smackdown" to the Equal Employment Opportunity Commission in 2014.

Kethledge chided the EEOC for relying on a faulty expert report that claimed that Kaplan Higher Education Corp.'s policy of running credit checks on job applicants had a "disparate impact" on African-Americans.

He pointed out that the EEOC had sued the defendants for "using the same kind of background check that the EEOC itself uses."

“The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself," Kethledge wrote.'

https://www.detroitnews.com/story/news/local/michigan/2018/07/03/michigan-raymond-kethledge-trump-supreme-court/754199002/

Michael K said...

The Democrats have been obsessed with Gorsuch's academic credentials.

FIFY

I would still like to see Janice Rogers Brown called out of retirement and nominated. The Democrats behaved despicably in filibustering her DC Circuit nomination to prevent Bush from nominating a black woman.

She could retire before the end of his second term. It would right a wrong.

readering said...

Did it bother you that Republicans delayed from '95 to '97 the confirmation of Merrick Garland to the same DC Circuit?

Gahrie said...

Did it bother you that Republicans delayed from '95 to '97 the confirmation of Merrick Garland to the same DC Circuit?

About as much as it bothered you when the Democrats filibustered Miguel Estrada and Janice Brown.

readering said...

Garland preceded them.

Michael K said...

Poor Garland. I still wonder if the Judge Merrick was an ancestor.

He'll be a question on a minutia quiz someday.

Gahrie said...

Garland preceded them.

And….?

Oh you mean only the Republicans are supposed to behave "better"...the Democrats are allowed to do anything they want.

Yeah..we're tired of that game...that's how you got Trump.

readering said...

Yawn

Joe said...

For reasons I can't quite pin down, Kavanaugh makes me uneasy. Among other things, I find the knee jerk endorsements of him by moderates, especially the execrable National Review, to be concerning. In other words, rather than arguing "Kavanaugh is good because...", they simply whine that he's qualified because the critics are wrong. What kind of argument is that?

I think Barret is the best choice for a justice, but perhaps not the best choice strategically. Odds are Trump will nominate at least one more justice, but is that a gamble worth taking?

BTW, I much prefer Thapar or Kethledge over Kavanaugh.

M Jordan said...

Barrett seems to be a rock-ribbed conservative based on what I’ve learned about her. Nobody knows how she’ll “evolve” but any person who belongs to a charismatic Catholic group is interesting to me. Talk about cognitive dissonance. It’s elite/populism or populist/elitism. Didn’t Trump recently coin the phrase “Super elite” to describe the Deplorables? Barrett’s perfect.

Mr. Majestyk said...

Barrett has virtually no judicial track record. That's what gives me pause about her. Much the same with Larsen, who first became a judge in 2015 (on the Michigan Supreme Court). They both might turn out great, like Thomas, but who knows? I'm warming to Kethledge.

rhhardin said...

Harriet Miers is the obvious choice.

CJ said...

Please pick Amy Coney Barrett.

Great optics, young, super conservative, clerked for Scalia, just passed federal judiciary approval...

Gotta be a shoo-in, right?