Lindsey Graham made a joke. The class title — "Scalia Versus Thomas" — must have reminded him of all those movie titles — like "Godzilla vs. Rodan."
Jokes are telling. Isn't it interesting that they're all gathered to grill Barrett on her judicial methods, the question on the floor is "People say that you’re a female Scalia. What would you say?," she's trying to explicate the details, and the pushback is something that translates to: Hey, keep it simple for us dummies and low-attention folk. You're getting into the weeds.
I would say that justice Scalia was obviously a mentor, and as I said when I accepted the President’s nomination, that his philosophy is mine too. He was a very eloquent defender of originalism, And that was also true of textualism, which is the way that I approach statutes and their interpretation. And similarly to what I just said about originalism, for textualism, the judge approaches the text as it was written with the meaning it had at the time and doesn’t infuse our own meaning into it. But I want to be careful to say that if I’m confirmed, you would not be getting Justice Scalia. You would be getting Justice Barrett. And that’s so because originalists don’t always agree and neither do textualist. Justices Scalia and Thomas disagreed often enough that my friend, Judge Melissa Parr, teaches a class called Scalia Versus Thomas. It’s not a mechanical exercise.
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४५ टिप्पण्या:
Thoughtful and precise as the bear baiting exercise goes on. it may be getting into the weeds, but sometimes questions before an appellate court are in the weeds.
A lesser spirit might want to take a weed whacker to the Senators on the committee.
That's a joke? Guess you had to be there...
Scalia was a judicial Titan. Relentlessly attacked ideas, but not people.
Thomas is a judicial Titan. Relentlessly attacks ideas, but not people.
Democrats, on the other hand, are stuck on bad ideas, and relentlessly attack people who hold differing ideas.
Coney Barrett? Very articulate, very composed, very intelligent. So, the Left will vote against her, because they are stupid liars.
I cannot wait for her confirmation. We’ve had more than enough of the Wise Latina and that other leftie from Harvard. RBG has been lionized, but she was a partisan. This one has brains, class, and she looks good....which never hurts.
The Dems have not been able to touch her, but they are nasty little shits, as usual.
- Krumhorn
The woman is killing it. The Democrats are fools to oppose her nomination.
And BTW, Trump is a genius for holder her for the "Ginsburg" seat.
Isn't it interesting that they're all gathered to grill Barrett on her judicial methods, the question on the floor is "People say that you’re a female Scalia. What would you say?," she's trying to explicate the details, and the pushback is something that translates to: Hey, keep it simple for us dummies and low-attention folk. You're getting into the weeds.
I watched a little bit of yesterday's questionings. My impression was that it is really about giving the Senators a chance to grandstand and tell us all how great they are. None of them really seemed all that interested in her answers. I have to say, I am very impressed with her ability to maintain attention through all that meandering. After they go on about themselves and finally get to a question about the law, most people would respond with, "I'm sorry, what did you say?"
An iron law of of public comms, apparently even if you are a lawyer in a chorus of lawyers addressing among the most prominent lawyers in the country: never miss a moment to humorously bash a lawyer or lawyerly things. I knew the rule applied even when your wife is a lawyer and listening, btw, but not what an iron law it is.
It used to be a liberal talking point that Thomas agreed with Scalia all the time because he ws incapable of reasoning through cases on his own.
It is not racism when it is stated by a liberal.
She’s inside their OODA loop.
I like/d both, but when they have disagreed, I've usually sided with Thomas.
Ann:
As a retired constitutional law professor, you must be proud of ACB. No Notes Amy!
Funny joke!
Don't expect too much from the poor Senators. Did you see Hirono's questions, _after_ the ridiculous sexual harassment one? I tried to listen but I could feel my brain cells leaking out.
I'm going to have a few posts this morning based on the transcript. Please use a post from yesterday or wait for a new post if you have comments on the testimony that aren't focused on the particular clip in the post.
If you attempted a comment that was beyond the scope of this post and it was deleted, that's why.
The whole Congressional hearing thing is just a bad joke--almost ALL such hearings--a Committee of maybe 10 (Senate) to 30 (House) members, each of whom gets 5 or 10 minutes which includes their own grandstanding and the time for the witness to answer, is NOT a way to elicit anything useful about the ostensible topic at hand.
So, sure, it is Short Attensu=yion Span Theater for Dummies, but that is by design, it is what they (the Committee and esp. the Chair and Ranking Member) want. It doesn't have to be that way, it is what they choose because, objectively, airing the issue for the benefit of themselves and the public is NOT the priority.
The judge to whom she refers, who teaches the class called "Scalia vs Thomas" is Judge Amul Thapar, not "Melissa Parr." I happen to know this because I taught the class with him.
The attempt by critics to paint her as a "female Scalia" is part of the concentrated attempt to undermine the fact that she is a woman, which the left does routinely with conservative women (see Palin and Christine O'Donnell where they painted one a monster and the other a literal witch). It is perhaps the most tragic of ironies that the Democrats, who warn of Barrett bringing about The Handmaiden's Tale do so by trying to turn her into an unwoman, which is why she answers that you're not getting Scalia, you're getting her. She's asserting her identity here because the left has, continually, tried to take that from her.
Justice Alito was reputedly incensed when he was referred to as “Scalito.”
In any event, this post and others like it do show, in the content as well as the comments, that our hero Scalia was not just another seat or a ninth vote. He was an icon, a force, a spiritual leader. And the notion of “his” seat being reoccupied by a Democratic president’s nominee was a special incentive for conservatives’ presidential vote in 2016.
Ginsburg is of course just such a figure on the left. I urge my fellow Scalia fans to consider just how we all felt when Scalia’s replacement was being nominated. If we had had no control of the Senate, and the only recourse was to turn out and vote in the next general election.
Barrett is an admirable, accomplished person. Even going beyond the faces on this committee, is there any high profile Democrat in public life, with the possible exceptions of Tulsi Gabbard and Elena Kagan, about whom that can be said? How about honest? Decent?
More and more, I’m proud to be an ex-Democrat.
Not a lawyer. I would bet that the differences between Scalia and Thomas are shades of pastel rather than clear, bright lines. The Eric Rohmer version of Godzilla vs. Rodan. Lots of subtitles and no action sequences.
I’d bet that’s a really interesting class. Bet there are very few who even bothered to look for places where those two justices differed.
Guess you had to be there...
I'll wait till the sequel of "Being There" comes out. Maybe it'll be called "Been There, Done That".
Ted Cruz schools everyone on the reality of Citizens Untied.
The modern corruptocrat party attempt to ban speech critical of corruptocrats.
The Senators are being destroyed by her humble, simple correct answers to their pettifogging attack questions. The joke’s on them.
originalists don’t always agree and neither do textualist
It seems like the distinction between an originalist and a textualist is that an originalist attempts to mind read the dead?
You'd think female justices would be more likely to try please everyone and, at least, pretend to agree with everyone. Not true for ACB. Remember the good old days when Sandra Day O'Connor was considered a "wishy-washy" judge. Not a bad philosophy for a judge, especially since liberalism and conservatism are so much like crack pot religions. But ACB is different. Unlike O'Connor, ACB won't use her own judgment. ACB agrees too often with people on the fringes of politics. I don't think ACB should be approved. Trump made a terrible mistake.
I haven't watched but from the small bits I've heard or read she seems like a phenomenal teacher. And a very down to earth person.
She's going to be a fantastic justice.
Got to be more interesting than Ginsburg vs Sotomayer. The "Wise Latina" was more of a Remora in that dynamic.
How can a judge not be an originalist? When a contract ceases to mean what it meant at the time of enactment, it is meaningless.
With no singular culture or ethnicity to unify us, we need to keep intact the ideals established in the Constitution, or else we will shortly be living in Mad Max world.
Scalia was a positivist. If it ain't written down, it either doesn't exist or he's not going to think about it (at least from a judicial perspective).
Thomas allows for more of a natural law approach, which does consider inherent transcendental unwritten truths, as in the spirit of the Declaration of Independence.
@Chuck: how one feels and what should be done are two different things. It was not Scalia's seat on the bench (who did he replace?) and it is not Ginsberg's that Barrett is nominated to fill. The president has an obligation to fill the opening with the person he thinks best able to do the job. That there is a difference of opinion about who that is, based largely on judicial philosophy and expected outcomes, is an unremarkable feature of our politics. The judge being replaced has no say in that, unless they time their departure to coincide with the time when a president that shares their philosophy is in office.
Creepy a-hole democrats have accused ACB of being an assassin (that salad comb Amy Klobuchar) a rapist (the moron from Hawaii) and a liar (the person next in line and she is frightening - Kalala) and a colonialist for adopting children from the Clinton-raped island of Haiti.
Honorable ACB is herself, not a clone of Scalia. I, for one, look forward to the Justices Trump nominates next term. I bet he gets to replace at least two more, maybe three. And one of those likely will be Thomas, who unlike Ginsburg recognizes the value of his Court conservative seat to the nation, rather than thinking he owns it.
Amul Thapar. THAT'S the very next guy Trump should appoint to the SCOTUS should the occasion arise..
She's MUCH smarter than those senators.
When Scalia and Thomas disagreed, I surprised myself by siding with Thomas most often. What does that make me?
Nonapod said...
It seems like the distinction between an originalist and a textualist is that an originalist attempts to mind read the dead?
No, that's why it's "original public meaning"
We don't care "what I meant to do", we care about "what did the public understand was being done?"
Because it's "We the People", not "We the law makers".
If there's a direct conflict between teh text and the public understanding, you go with the text. But if it's ambiguous, you go with what it was thought to be doing at the time.
Because if the public didn't like what it was thought to be ding, they had the ability to override it. And they didn't
Spiros said...
ACB won't use her own judgment. ACB agrees too often with people on the fringes of politics. I don't think ACB should be approved. Trump made a terrible mistake.
Whose judgement has she been using all these years as a Law professor?
I hope you are not turning Sheldon Whitehouse on us, Spiros.
Francisco D,
It used to be a liberal talking point that Thomas agreed with Scalia all the time because he was incapable of reasoning through cases on his own.
Oh, yes. The racism Thomas has been subjected to on the Court is simply unbelievable. My Dad sneered that he didn't speak at oral argument because anything he said would've appeared half-witted. (Maybe because there are traces of that "hick" Gullah accent? "All them Georgia Gullah, they just po' black trash, y'know." As a matter of fact, I have heard the Justice speak, and his accent, whatever you are minded to make of it, isn't pronounced.)
Some Senator -- Reid, I think -- claimed that Scalia's opinion in a case (ah, got it now: Hillside Dairy v. Lyons) was a serious, smart piece of work, while Thomas' in the same case wouldn't have made "an eighth-grade dissertation." Scalia, in fact, had written no opinion at all on the case, dissenting or otherwise (the 8-1 majority opinion was by Stevens), and Thomas had written a concurrence-in-part, dissent-in-part of one paragraph that I would defy any eighth-grader to produce. That is just straight-up racism (or Thomas-hatred, which is frequently the same thing).
(Took me ages to find that, even with many search terms. I don't think it's just me; Google really is becoming more difficult to use for searches on political topics.)
Some years back, the Volokh Conspiracy noted an annual compilation of "who voted with whom most often" in the previous term. Scalia was then still alive. (I think it was SCOTUSblog that actually did the compilation, but one of the VCers who published it there.) "Scalia/Thomas" wasn't even in the top ten, and the first few were liberal pairs (I think Ginsburg/Sotomayor was first, but it might have been Breyer/Sotomayor or Ginsburg/Breyer).
stevew said...
@Chuck: how one feels and what should be done are two different things. It was not Scalia's seat on the bench (who did he replace?) and it is not Ginsberg's that Barrett is nominated to fill.
stevew, I am very much aware of the fact that no SCOTUS seat "belongs" to any particular justice, or political party, or gender, or ethnicity, et cetera.
Indeed, that notion was part of the point I was trying to make.
So Scalia's seat (he replaced Associate Justice Rhenquist, as Rhenquist was elevated to take Chief Justice Burger's seat) did not "belong" to Scailia, or the right, or to Italian lovers of Bel Canto opera.
And yet, as someone who revered Justice Scalia, I was uniquely horrified by the suddenness of his passing and the prospect that his iconic position would be taken over by an infidel. I wanted to DO SOMETNHING. What I did, was ending up voting for Trump in the general election. The ugliest personal deal I've ever made.
I was, and still am, trying to simply share that personal feeling about the months that followed the death of Scalia.
And then, at the same time, to observe that progressives no doubt have the same feeling with Justice Ginsburg's passing. They will be motivated. They are going to TURN OUT. And I expect that this will be a turnout election, with both parties having convinced no one outside their base that their candidate is a great candidate.
I think that Scalia's death helped get Trump elected. And that Ginsburg's death will help get Trump defeated. Because while SCOTUS seats "belong" to no one but the Constitution and the Judiciary Act of 1789, voters still have their icons.
Unknown writes:
The judge to whom she refers, who teaches the class called "Scalia vs Thomas" is Judge Amul Thapar, not "Melissa Parr." I happen to know this because I taught the class with him.
thank you - this makes a lot of sense. I couldn't figure out who Melissa Parr was. I would respectfully recommend that Prof. Althouse amend her post in some manner to clarify this.
It was not Scalia's seat on the bench (who did he replace?)
Rehnquist, I believe, was promoted by Reagan to CJOTUS after Burger retired.
(Took me ages to find that, even with many search terms. I don't think it's just me; Google really is becoming more difficult to use for searches on political topics.)
Use duckduckgo.com:
https://duckduckgo.com/?q=Senator+Reid+claimed+that+Scalia%27s+opinion+was+a+serious%2C+smart+piece+of+work%2C+while+Thomas%27+in+the+same+case+wouldn%27t+have+made+%22an+eighth-grade+dissertation.%22&t=osx&ia=web
First hit gives you the case, from back when Patterico was still sane
What these hearings are proving is that the Democrats don't believe in judicial review; they believe that the job of the Supreme Court is to enact or repeal laws in accordance with leftist objectives. Now, truth be told, there are folks on the right who feel the same way, but in the opposite direction. That's why "packing the Court" is such a bad idea. It would turn the Court into an overtly partisan body. We already have a President and two houses of Congress to play that role.
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