Said Amy Coney Barrett in her short speech after she was sworn in by Justice Clarence Thomas at the White House ceremony last night. Transcript.
I read that as more than an acceptance of the confirmation process that has developed in which Senators openly vote their policy preferences rather than truly or fakely premising their vote on the nominee's character and credentials. She's saying that Senators have a duty to take "policy goals" into account. Did she mean to say that the confirmation vote ought to embody the Senators' policy preferences? Or did she only mean that when Senators do their legislative work, they must consider policy — which is what corresponds to the judicial role and contrasts with it (as judges must refrain from considering policy)? It's ambiguous! I hope to get clearly written opinions from our new Justice, so I don't like running into ambiguity in the first thing she says as a Justice.
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127 comments:
"This separation of duty from political preference is what makes the judiciary distinct among the three branches of government."
And also the thing that purple-haired two-spirit otherkins want to do away with in the absolute worst possible way. It's the only thing keeping them from using the constitution as a surgical dressing when they cut their genitals off.
"Did she mean to say that the confirmation vote ought to embody the Senators' policy preferences?"
I took that to mean that, and secondly that if that wasn't meant, than it is immaterial because that's what happens anyway.
Good comment … as only a law prof would make.
A partisan vote for confirmation is probably the right thing, all else being equal. The judges are political animals- that is the truth of the matter, and it has always been the truth of the matter. John Roberts, when he said there aren't Obama judges and Trump judges was just fucking full of shit, and I think he knows it. Trump made the faux pas of saying the quiet part out loud.
It used to be that Senates just bowed to the power of inevitability- it is what led to 97-3, and 99-1 confirmations, not because they really supported the justices to that level. What is inevitable, though, does change at the margins of elections, and the Democrats are responsible for this- it started in the present age with Bork, and each time a Republican President chose a justice, it kept getting worse. Finally, I think, Republicans learned they were chumps in this game, and decided to do it to Obama and Garland. We finally have clarity on the matter, and transparency. You have to accept that because it is the naked truth that was always there.
I took it to mean she will not act on her policy positions when making rulings. It was a reassurance of this position.
It's going to be highly ironic if she turns out to be a squish a la Anthony Kennedy.
I read that as more than an acceptance of the confirmation process that has developed in which Senators openly vote their policy preferences rather than truly or fakely premising their vote on the nominee's character and credentials. She's saying that Senators have a duty to take "policy goals" into account. Did she mean to say that the confirmation vote ought to embody the Senators' policy preferences?
Should be immaterial if (huge if) the judges follow THEIR oath. To be impartial and follow the Constitution. There really should be NO political judges but as recent history has shown at least one of the major parties and their adherents don't take that or most other oaths very seriously. To them it is all part of the game they must play to gain advantage and power. Morals, duty, and oaths are for suckers.
I thought it was pretty clear she was talking about legislative work, contrasting it with what judges do. But taking it a step further, the implication is that a nominee to a judge position should be evaluated on (among other things) the nominee's adherence to the principle disgregarding his or her own policy preferences, not on what those policy preferences might be (since they play no role in judging). So I don't see it as ambiguous.
But evaluating the nominee on judicial philosophy would seem consistent with what she said, and judicial philosophy seems to be highly correlated with policy preferences.
You want to know how biased the media is- try to find the story about last night's riots in Philadelphia. Had this been June, CNN and MSNBC would have been covering it non-stop. Today- crickets pretty much everywhere except for the Philly papers.
Sounded like a good strong statement of the judicial role coupled with forgiveness and understanding of the abuse she had to accept as part of the hazing, I mean confirmation, process.
I read it as an extension of an olive branch to the Senate: "No hard feelings. I get it. You were just doing your job. Let's move on."
I just read her speech.
It gives me hope.
I hope Roberts reads it and resigns out of embarrassment.
He could commit ritual seppuku also and that would be acceptable.
I interpreted Justice Barrett's comments as not referring to the confirmation process but rather to one of a senator's functions during the legislative process.
Someone please pass this on to Roberts.
Imagine ACB, a lawyer no less, being ambiguous in a political speech commemorating a political event. Why would that mean her written decisions when exercising her judicial function will be similarly ambiguous?
Seemed clear to me. A Senator is obligated to try to keep her campaign promises by not putting those policy goals aside once in office because that was the basis for her election by the people. Federal judges aren’t elected and can’t claim their policy preferences are aligned with the people. Therefore, once in office, a judge must put aside her private policy preferences and be solely guided by the rule of law.
Meh, Althouse you’ve become confused and irrelevant lately, not a good exacta. I quit you...
What ambiguity? “Sure they voted against me for policy reasons, because they imagine that I just want to enact my preferences. But in fact I won’t decide cases on policy.”
Or, shorter: “Calm down, I’m a judge not a crusader.”
She should not hint that she feels any respect for Democrat Senators.
Rather, she should hint that she feels contempt toward them.
She may in fact be telling the Senators who voted against her on political grounds that she understands and it will not influence her opinions.
The Judicial Oath captures the essence of the judicial duty. The rule of law must always control.
Clearly a shot over the bow to Chief Justice Roberts.
It's ambiguous!
She could have been more clear.
But it wouldn't have been ladylike.
You're looking for dicta. Stick to the issue at issue. What should guide a justice's decisions.
Did she mean to say that the confirmation vote ought to embody the Senators' policy preferences?
Well let's see: 52-48.
Whether or not she approved, it's clear that's exactly what happened.
Interesting point. Maybe it's deliberate ambiguity?
It is perfectly clear to me, I think you are straining at a gnat.
Yeah, we'll see how long until she is imposing her policy preferences on the country. I give her a couple months, tops. If she and the other conservatives throw out the entire ACA based on a bullshit argument about non-severability, we will know she lied to the Senate about her being a neutral arbiter who ignores her personal preferences in judging.
“I read that as ...” is the operative phrase here. There is no ambiguity. She said nothing to suggest that “pursuing policy preferences” ought to be limited to “legislative work.”
It is one thing to disagree with Barrett’s statement. It is quite another to read in ambiguity where it does not exist.
I do not infer any reference to process in her remarks at all. I see that as clear acknowledgement she approaches the law differently than her predecessors on the left did, in stretching to make law accommodate policy preferences. I mean you have to want to find a right hidden in the penumbra there undiscovered for so long.
Next time don't parse a speech like a SCOTUS opinion.
Not ambiguous to me. In addressing the confirmation process, she said "In fact, it would be a dereliction of duty for [a Senator] to put policy goals aside."
Did she mean to say that the confirmation vote ought to embody the Senators' policy preferences? It is exactly what she said. She's making peace with them, saying she knows why they did what they did, no hard feelings. She is a lot smarter than the lot of them after all. It also frees her to judge however she wants to, and they can go back and read this when they gnash their garments and rend their teeth over any of her decisions. Trump too if he doesn't get what he wants from her. Right now, she owes nobody and nobody owes her. It's a big FU and have a nice day from the nice Catholic lady with 7 kids.
"Federal judges don’t stand for election, thus they have no basis for claiming that their preferences reflect those of the people.”
Wait a minute, she was appointed by a POTUS with policy perspectives and confirmed by Senators who were elected presumably for their policy preferences. Basically no Democrat appointed ‘Justice’ sets aside the policy preferences of the president who appointed them. The Republicans seem to as a matter of philosophy. This is also known as “The Ratchet.”
This kind of slight of hand makes me wonder if she is really aware she is bootstrapping something out of nothing. I more agree with the Democrats on this, that a completely dispassionate and unbiased judge does not exist. And if one did exist, they would never go very far in the political world of judicial appointments.
"Did she mean to say that the confirmation vote ought to embody the Senators' policy preferences?"
Yes. She did
Now, one "policy preference" could be "I believe the judiciary should be non-partisan"
Another "policy preference" could be "I want a Senate controlled by the other side to confirm my well qualified judges, so therefore I will vote to confirm the other side's well qualified judges."
It all depends: does your policy timeline extend farther than the next election? Are you a moral and decent human being who is capable of having and being bound by principles? Are your opponents moral and decent human beings who are capable of having and being bound by principles? (The Democrats are not. Which is why it would be moronic of Republicans to not do something, just because the Dems threaten they'll do the same / escalate. Because the Democrats are always going to do whatever they need to do to get the power they want, principle be damned.)
Ceremonial swearing in. Roberts had to do the formal action today, that was just for show.
Meanwhile, many Senate Republicans dignified the process by tweeting at Hillary Clinton about it. Always funny when people acting like they are the dignified party stoop to schoolyard taunts.
I took it to mean that she isn't going to abolish Roe v. Wade in total the first chance she gets. Which I knew anyway. And I think she will push certain kinds of cases back toward the legislature rather than be a legislature of last resort. Pretty much what she said in the confirmation hearings.
"A judge declares independence, not only from Congress and the President, but also from the private beliefs that might otherwise move her"
Uh, oh. Is she going to "evolve" too?
"Did she mean to say that the confirmation vote ought to embody the Senators' policy preferences?"
She couldn't mean that: if a judge must bracket personal beliefs, a Senator is wrong to make the application of personal beliefs a basis for a confirmation vote.
Policy preferences apply to policy.
Is it ambiguous? Or just a personal hope she meant something different from what she said.
It sounded quite clear to me.
The Senator and Representatives are elected to carry out the policy positions of their constituents. The people who elected the expect their Senator/Representative to do what they said they would do in policy decisions. Presumably, the personal policy preferences of the elected official coincide with those who elected them based on those preferences.
It would be a deselection of duty to do otherwise. Campaign on one thing and then turn around and do the opposite. To be a Senator and operate on your personal preferences instead of those who elected you would be wrong. The personal preferences should be the same as those of their voters. Otherwise....the campaigned on lies. (wow...big surprise there...that never happens..../sarcasm!!!)
Judiciary is NOT elected and should not be putting political policy ahead of pure judicial rendering of the cases in front of them. To become political and policy orientated would be a deselection of THEIR duty to render judgments completely devoid of personal policy preferences.
Is it ambiguous? Or just a personal hope she meant something different from what she said.
Nothing ambiguous at all: she said it is the role of the Senate to consider policy when they **make** law, and it is NOT the role of the Judiciary to consider policy when they are called upon to **interpret** the laws the Senate passes.
LOL - Hack press cannot help themselves.
Ignore history everyone.
The Dems votes were based on their perception of Barrett’s personal policies and preferences. So while testing the strength of a nominee’s ability to put her own preferences aside is good, voting nay when you witness that strength and commitment is not good.
I learned over at Instapundit that the Judiciary committee is an average age of 80, and that Lindsey Graham at 65 is the only one under 80. What the hell? We need term limits. It was never supposed to be a government of lifetime career politicians. America is not the kind of nation that should be a gerontocracy.
The left empties the judiciary of all integrity. One cannot be both left-wing, in the modern meaning, and be an honest judge.
To be a left-wing judge means that you make it up as you go and rewrite the law to fit your desires.
So how does one say that unambiguously? Lots of ways. But to say it unambiguously is like a statement of war.
Ambiguity??? What ambiguity? What she said was crystal clear and a breath of fresh air.
It's ambiguous! I hope to get clearly written opinions from our new Justice, so I don't like running into ambiguity in the first thing she says as a Justice.
Your lack of understanding does not make the statement ambiguous. It is your failure to grasp context and the bigger picture, Althouse. That is the problem with being a legal wordsmith and focusing more on the trees than the forest.
ACB's statement is obvious in reaffirming her view that the job of US Senators is to pursue their policy preferences, even when it comes to deciding about judges.. Her job as SCOTUS Justice is to determine the constitutionality of policy preferences that are enacted into law.
Judiciary is NOT elected and should not be putting political policy ahead of pure judicial rendering of the cases in front of them. To become political and policy orientated would be a deselection of THEIR duty to render judgments completely devoid of personal policy preferences.
I MEANT....to render decisions they should be completely devoid of personal policy positions.
Judicial decisions should be based on the law and whether it is Constitutional. NOT on personal policy preferences or to further an agenda.
If that is the goal of the Judge, then they should resign and run for elected office in the Legislative branch.
OT:
EXC: Hunter Biden ‘Brought Every Single Person to White House, VP’s House’ That Foreign Business Partner Wanted, Received Resort Villa Stays, Artwork In Exchange
Your parsing seems unnecessary, especially since no distinctions were made. If your distinction needs to be entertained so should a gazillion others one can think of. Seems like your animus towards her is showing, perhaps afraid of “penumbratic” Decision and the one recently about children growing up in homes that have the respect of society.
Hmmm I had never taken Althouse for one of the Mean Girls.
ot:
Hunter Biden: White Crackhead Privilege
"conservatives throw out the entire ACA based on a bullshit argument about non-severability, "
Remember, despite its incredible reach over 1/6th of the economy and its substantial effects on every single person, it was passed in the middle of the night without anybody reading it, without a single vote from the opposing party, and it was sold with blatant lies. It's not exactly something we should revere. It's not even something we should accept if we want good law in a democratic republic.
The art of appearing to suggest something without actually saying it is employed by judges often. In ACB's case, as an appellate judge, it would have come up while negotiating for a single opinion to fairly represent the views of multiple members of an appellate panel. Perhaps what she was trying to do here was communicate "no hard feelings" to Senate Dems and their constituents without undermining her supporters' position that the old standards were better.
I think you’re reading too much into this, Professor.
Of course she meant policy preferences in legislation. What is the point of Senators using policy preferences for the nominees (only voting for those who share their policy preferences) if the justice HAS TO set aside the justice’s policy preferences when judging?
Or do you think senators should do that hoping the judge (that shares their policy preferences) doesn’t or isn’t able to put their preferences aside. That sounds like the wise Latina, Elena Kagan and the late RBG.
No thanks. Follow the law. If it’s bad, upend it. Let congress go back and figure it out.
A Senator's confirmation vote for a Supreme Court Justice is not a precise instrument for furthering political preferences. Once the Justice is seated, one never knows what they will end up doing, nor should one.
Truly or kakely? What happened on the keyboard?
I don't think it was ambiguous. ACB is saying that the Senate enacts policies into laws. SCOTUS doesn't enact policy via opinions.
The Courts aren't supposed to be political but they've become that over the years with Dem judges enacting liberal policies.
When Dem Senators vote not to confirm a very well qualified nominee simply because she is a conservative (and a white woman to boot), they are enforcing the notion in the mind of the public that judges are political and policy creatures. That is a big, big mistake.
ACB is going to be a star.
10/27/20, 11:13 AM Delete
Freder Frederson said...
Yeah, we'll see how long until she is imposing her policy preferences on the country. I give her a couple months, tops. If she and the other conservatives throw out the entire ACA based on a bullshit argument about non-severability,
The ACA was built upon a tripod of coverage for pre-existing conditions, not charging people based on the expectation of what they will cost, and mandatory participation.
Because you can have a working system if you have all three (see large corporations' and their employee health insurance plans).
But you can't have a working system if you cut out the leg of "mandatory participation".
Does the ACA says that's "severable"? No, it doesn't.
So the only BS is the claim that "the argument for dumping the ACA is BS"
A senator takes an oath to support and defend the Constitution, so a senator can only consider policy consistent with a judges role under the Constitution.
tim in vermont said...
"Federal judges don’t stand for election, thus they have no basis for claiming that their preferences reflect those of the people.”
Wait a minute, she was appointed by a POTUS with policy perspectives and confirmed by Senators who were elected presumably for their policy preferences. Basically no Democrat appointed ‘Justice’ sets aside the policy preferences of the president who appointed them. The Republicans seem to as a matter of philosophy. This is also known as “The Ratchet.”
Wong, Tim.
Honest Supreme Court Justices have a "policy preference" for following the written US Constitution. Not previous bad precedent.
That means dumping all the illegitimate rulings by previous Courts.
No "ratchet"
Mark said...
Meanwhile, many Senate Republicans dignified the process by tweeting at Hillary Clinton about it. Always funny when people acting like they are the dignified party stoop to schoolyard taunts.
Poor Mark. So sad that Republicans wished Hillary a "Happy Birthday on ACB Confirmation Day!"
IMAO it was LOL funny.
Chuck Schumer stated that it was he worst day in the Senate's history. I'm guessing Mark thought that was "dignified"
I don't think I have heard a phrase uttered by anyone at any time during my 70 years on earth that I couldn't inject some ambiguity into if I tried. It's baked into the human language. Better to not do that.
@AA
You're overthinking this.
A senator's job is to be biased toward the will of their constituency.
The constitution is the only thing that a justice is supposed to take into account.
and how would Ms. A. unambiguously say that the legislature considers policies in making law, and the Judiciary rules on whether the law is being followed or not, regardless of their own biases?
and how would Ms. A. unambiguously say that the legislature considers policies in making law, and the Judiciary rules on whether the law is being followed or not, regardless of their own biases?
Or in enacting their policy preference legislator must keep The Constitution in mind?
Every law must survive constitutional challenge.
ASAP after enactment.
Not be tripwire for lawfare traps.
I did not find it ambiguous at all. The way I read it, she said clearly that she expects senators to follow their policy preferences or it's a dereliction of their duty, and contrasts that by saying by definition judges should do the exact opposite. By drawing the contrast, she is illustrating that they cannot expect a justice to act as they would and should, because that is not the role of a judge.
Barrett: “In a debate you have participants and a referee. These are different roles, and we expect different behavior from them.”
Althouse: AMBIGUITY!
It was not ambiguous to me. Perhaps it depends on how we think about these things.
Shouldn't it be "give in to" and not "give into"? "Give in" is the idiom for surrender and "to..." is a preposition with the object "preferences."
Sorry. Some people can't help themselves.
I take it as a "no hard feelings" overture from ACB.
Democrats voted their policy preferences, rather than qualifications, but simply didn't have the votes to stop my nomination. Elections have consequences, and the Republican majority ruled.
Going forward, however, neither policy preference nor vindictiveness will cloud her judicial duty.
Well, the Senators are there to "advise and consent" on any nominee, as they deem appropriate. Nothing in the text limits them in deciding what to take into account in exercising that role, or rules out consideration of "policy preferences," just as nothing limits the President in deciding what considerations to take into account in selecting a nominee. So there's no strong originalist or textualist case for deeming "policy preferences" off-limits in the judicial selection process. Same, of course, with any nominee's response to questions about "policy preferences" - the president or a senator may ask, but there is no strong case that any such nominee has an obligation to answer.
But it's a bit much to say that the Senators have a "duty" to consider whatever might fall under the heading of "policy preferences," particularly of the sort the Dems like to focus on when questioning judicial nominees (e.g., health care). Instead, it's just a matter of exercising judgment as to what is appropriate (or politically useful) to ask or to answer.
Today, the nominees like to say that they have an ethical "duty" not to express an opinion about a legal question that might come up in a future case. That strikes me as baseless -- at best, a useful dodge that nominees of both parties use to fend off the opposition. A nominee for SCOTUS, for example, is selected because the president deems that person likely to carry out the party's "policy preferences" on the disputes that matter politically. It's never so crass as to ask how a nominee will vote in a pending case, but the nomination process always focuses on how a nominee will approach such legal questions (resulting in a highly informed judgment about how the nominee would likely vote in deciding such questions). And, as we've seen, the post-Bork nominees have all followed the same approach, declining to answer those kind of questions in public hearings. In contrast, Bork treated his nomination hearing as a kind of constitutional seminar, fully answering all kinds of questions about how he viewed various controversial legal issues.
Live and learn, as they all have (all of the participants, not just the nominees).
Willfully obtuse reading of an absolutely clear statement.
She says nothing about the confirmation process other than that it has made her “more aware” that you political hacks don’t understand the constitutional roles of judges vs. legislators.
Put it in the law—I am not going to strain at gnats to find a policy that “seems nice.”
It just so happens that this bedrock principle of the avoidance of activism is considered to be “activist” because the lefties can’t get lefty legislation passed and expect the judges to advance their goals.
bagoh20 said...
I learned over at Instapundit that the Judiciary committee is an average age of 80, and that Lindsey Graham at 65 is the only one under 80.
You'll be happy to learn that Lindsey Graham isn't the only member of the Judiciary Committee under 80. By a long shot.
https://www.judiciary.senate.gov/about/members
This should not be hard to decipher, it is not complicated. An elected representative is beholden to the voters that put them in a position of power. A judge is beholden to the law and nothing else. ACB put this in very clear language, I don't think you need to read anything else into it.
(I see that Enlighten-New Jersey and DBQ have made the same basic point already, more or less)
BarrySanders20 @ 11:40: What you said. I thought she spoke very clearly and used this as a teaching moment for the wider audience, all of us out here, to highlight the way the Constitution asks different things of different people as they carry out their sworn responsibilities. It came with only an implicit rebuke to the Senators who hope we will think they are acting out of lofty principle rather than partisan calculation.
And yes, there was a little bit of an FU in there too: “No hard feelings, [losers].”
"... it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give into them."
I suspect that she meant what she actually (and literally) said - Senators should pursue their policy goals, full stop - no qualifiers to suggest she meant their legislative duties should be treated differently than their advise and consent duties. Of course, if all judges then obeyed the second mandate, resisting their own policy preferences (instead of reliably voting as a bloc on every single case), the agenda of those consenting would matter far less.
By the way, I would read the part re senators as being a rebuke of past Republican senators who rolled over for the Sotomayers and Kagans of this Court - she is essentially telling them to grow a pair and take a stand for conservative principles.
Political Consultant Freder is mind reading again. Obamacare is a disaster. It destroyed the health care system that 85% of the population approved of. All that's left is the employer plans that are too expensive. The Democrats planned to roll them into Obamacare but chickened out after the disastrous rollout.
Freder Frederson said...
{typical nonsensical stuff}
10/27/20, 11:36 AM
LOL!
Yep, got to HATE that! She believes in the Constitution, individual rights, founding principles, etc. What a FACIST!
As to Justice Amy, the Dems are gonna have to learn to grin and Barrett.
"You'll be happy to learn that Lindsey Graham isn't the only member of the Judiciary Committee under 80. By a long shot."
Thanks for the correction. They were actually talking about "the leadership of the Judiciary Committee" all being over 80, except Graham.
She's talking about structure. The policy preferences ougut to go into legislation, the confirmation preferences into structure that makes legislation possible.
If the court legalizes abortion, you can't legislate about it. Of course the other side can't, either. Bad structure.
ACB's comments were an acknowledgement that the Senate confirmation hearing was merely a made for TV spectacle, "full of sound and fury and signifying nothing" except political posturing by the folks who were elected to politically posture. Justices, however, are expected to be guided by their interpretation of the constitution and federal laws and to avoid politics altogether, which is what she intends to do to the best of her ability. I say good on her.
Sometimes the professor is guilty of parsing too much and looking for deeper meaning when none was intended. This appears to be one of those times.
What is ambiguous about it? Perhaps you think she should have a different opinion?
Poor lefty Mark. Is it your daily duty to post one snarky comment here and then go off and sulk ?
Bay Area Guy @ 1:22: “...grin and Barrett.”
I saw what you did there. Go to your room.
Maize Hirono is here to tell you that "policy preferences" is an offensive term used by those who want to discriminate. The proper term is "political orientation".
Did ACB learn nothing from her Senate hearings? Shame!
What is ambiguous about it? Perhaps you think she should have a different opinion?
No ambiguity detected here. Clear as the proverbial bell (Liberty Bell).
Well...I WANT my Senator or Representative to pursue and consider policy in their work. That is what I voted for. If they don't or decided to change their stances from what they campaigned on, then it IS a dereliction of their duty.
They are supposed to represent their constituents....the people who voted them into office.
Why would this come as a surprise to anyone?
Judges aren't running for office and they are "supposed" to be able to bring a policy free interpretation of the laws that the Legislative has enacted. Determine the Constitutionality of the laws and not make of the law what they would prefer.
Again...why is controversial?
I don't think it's ambiguous at all. Senators do their thing. Justices do theirs.
She's going to be a justice without her personal feelings interfering with her decisions.
Wish we had nine justices with that mindset.
Always funny when people acting like they are the dignified party stoop to schoolyard taunts.
As opposed to boycotting the committee vote and then running around on the Senate floor throwing downthumbs? That kinda funny?
She was making an acceptance speech not delivering a scholarly lecture.
"conservatives throw out the entire ACA based on a bullshit argument about non-severability, "
The issue of severability before the Court has nothing to do with the ACA. That's bullshit misdirection thrown up by the Dems.
The issue of severabilty has everything to do with every contract and law drafted in the United States from this day forward.
The stakes are MUCH higher than the ACA, and the ACA is so small within those larger stakes that it is rightly ignored.
If you don't like ACB on the court, blame Harry Reid for getting rid of the filibuster.
If you don't like ACB deciding the future of the ACA, blame Nancy Pelosi for jamming through a healthcare law that no one was able to read before voting on it.
It's not hard to know who to blame, if blaming the right people were really your objective.
"Did she mean to say that the confirmation vote ought to embody the Senators' policy preferences?"
"In fact, it would be a dereliction of duty for her to put policy goals aside."
That would seem to answer your question. The more interesting question is, would it even be possible for a senator to "put her policy goals aside"? How could one determine that had occurred? What criteria might she employ, other than her goals for policy? And that raises the question whether a judge can do so. If Barrett actually believes that it is possible to judge any matter that might come before the court on the basis of law alone, without reference to policy goals, it would seem to follow that she believes many -- perhaps most -- of her predecessors have been utterly corrupt.
What we know about Progressives is that if the law in question were objectionable, they'd be demanding ACB strike it down on the issue of severability.
The law itself is but a nuisance when it comes to obtaining their goals.
As long as "the right people" always come out on top, these idiots think they're better off without it.
The law is an intricate machine. Its structure is made of ink, fastened to paper, but its moving parts are human beings. It seems a stretch to suppose that structure provides a clear set of instructions, which the human need only follow, in every conceivable case, or even in every case likely to arise. But that is what she is claiming. She seems like a smart person, I wonder how concretely she believes it.
In mathematics, a proposition which has been proven is true, one which can be disproved is false, and any other is simply unproven. But a court has only two options. Does Barret really believe that the body of written law neatly resolves all possible disputes, in a manner about which no two reasonable persons might disagree?
She will rule with principles over empathy, the Constitution over the Twilight Amendment. A double-edge scalpel for the faithful, religious, and ideological bent of people who play with this tool of ambiguous nature.
ACB may have garnered more favor if she threw in some reference to cruel neutrality.
If she and the other conservatives throw out the entire ACA based on a bullshit argument about non-severability ...
Freder is an ignorant fool. Go back and read what Pelosi and the other Democrats pushing the incorrectly named Affordable Care Act were saying about it at the time it was passed. The ACA was designed to be non-severable.
I think its the case where she forgives the partisan votes while acknowledging their weakness.
I thought I heard exactly what she meant. Senators are chosen by vote, and the voters choose Senator they want by the policy they espouse. When they act on those policies, if they are challenged on them, the court should then decide on the laws according to the constitution, not on their personal beliefs or causes.
The more big-P policy issues the courts take on, the more reasonable it is for politicians with policy preferences to try to guide the courts. This doesn't change the duty of judges to try to keep their personal biases of all kinds out of their decision-making. Barrett may be saying something related to what our host said the other day: if the SC had left abortion up to the states, the status quo today might not be very different, except that it would not subject to small changes in the "balance" on the SC. The country might be better off, and confirmation hearings might not be so heated on policy (and so open to personal attacks).
I read it as her saying to the Senate “look guys, I know where you were coming from with all those policy driven questions, and I don’t take them personally, but that is your wheelhouse and my job is to apply the Constitution and law as written. So while I didn’t take the questions personally, please don’t take personally the fact that I couldn’t answer them. Now let’s each of us get to work and do our respective jobs.”
Judges aren't running for office and they are "supposed" to be able to bring a policy free interpretation of the laws that the Legislative has enacted. Determine the Constitutionality of the laws and not make of the law what they would prefer.
It is not controversial, what it is is bullshit. Originalism and Textualism are bullshit concepts. They only look at the original meaning and text when it suits their preferred outcome. Look at Shelby County v. Holder. Where were the texualists there? They came to the opposite conclusion of the text of the statute because they thought the Voting Rights Act had gone on long enough.
And I'm sure the founders never intended first amendment rights to be extended to corporations (since the modern corporation didn't even exist then) or thought spending money was a part of free speech.
I was startled by the Althouse comment about ambiguity. I think maybe the point was missed.
But what I found myself thinking was that her words were at least in part directed to the other Supremes. A gentle reminder that while it is humanly reasonable to have policy preferences, she might think that some of them have crossed a line in over identifying with those preferences in their judical thinking.
Or maybe not. I have to believe that three new "originalist" justices on the court are going to impose some greater rigor on the vets.
I have been reading Eric J Segall of late on Originalism as Faith where he shows how the original meaning of this has turned into a partisan twist, and as he points out: Studies have shown that conservative Justices usually vote conservative and liberal Justices normally vote liberal. Moreover, Republican Justices usually vote in ways that favor the Republican Party and Democratic Justices generally vote in ways that serve the Democrat Party (of course there are exceptions but this partisanship is a clear pattern and appears to be getting worse).
I took Barrett's remarks to be her response, which she couldn't say in her hearings, to all the Democrat senators who tried to make her feel bad about the upcoming ACA decision by telling her the heartbreaking stories of all their constituents who would surely die if Justice Barrett voted to kill Obamacare. Her response was that the Senators' job is to worry about those people and adopt policies and laws to help them. But HER job, as judge or justice, is to consider only the law and its constitutionality. She is not supposed to consider the people affected by the law in question...remember: Justice is blind. Sympathetic stories aren't a judge's metier, the LAW and what it says and means, is. Now I'm sure every judge allows a little sympathy in...we're all humans. But I agree with Barrett's philosophy.
If you don't like ACB on the court, blame Harry Reid for getting rid of the filibuster.
How long do you think Mitch McConnell would have hesitated in getting rid of the filibuster once the Republicans retook the Senate? The reason Reid got rid of the filibuster was that the minority party was using it as a weapon to prevent Obama from appointing judges.
Jupiter said...
Does Barret really believe that the body of written law neatly resolves all possible disputes, in a manner about which no two reasonable persons might disagree?
To the contrary, and ACB addressed this very explicitly numerous times in the hearings. The answer is no. Two justices, both implementing originalism, can certainly come to different conclusions about what the law means. But they are both trying to answer the same question: what does the law (or Constitution), *as written*, mean?
Not: what do we think some of the legislators were thinking when they passed it, or what do we think the legislature would pass today, or what is the most fair outcome irrespective of what the law (or Constitution) actually says.
The whole thing comes down to understanding how laws are made. Legislators don't vote on unwritten text nor on the subjective intent of other legislators. They vote on laws embodied in written words. What do those words mean?
How is a justice supposed to know what was "accidentally" omitted from the law (and therefore should be added by the court!) versus what was a very explicit trade off between legislators and it's absence was absolutely critical to getting the requisite votes? They aren't mind readers.
Actually the most acute difference is that justices don’t have to raise money — but they don’t usually get rich, either. (Coincidence?)
Reforming? More like destroying.
"It would be a dereliction of duty for her to give into them."
Should be " . . . give in to them."
Sorry. Pedantry 'R Us.
I listened to ACB's speech during the swearing in ceremony and didn't find it ambiguous. I found it instructive. I think that many people have been generally mislead by the politicization of the confirmation hearings and by the media as well. Many of the judgements by the Supreme Court are unanimous and only about 20% are 5-4 splits. Yes, the President who is partisan nominates and the Senate which is partisan advises and consents, but the role of the judge is not partisan. The judge is bound by different obligations. I think it's important that people understand that difference.
Surely judges are people and have personal preferences. Therefore the Senate hearings should bring out not only the qualifications and temperament of the judge but also should reveal the judge's ability to put their personal preferences aside. There was one question I recall from the hearings where Barrett described a case involving a protected space around an abortion clinic where she upheld the clinic's rights over the anti-abortion protesters.
It's probably the fault of the Senators that there were not more questions along those lines of demonstrating the judge's impartiality. But as ACB indicated, no hard feelings.
A judge having the ability to be impartial isn't really that hard to understand. In a way a similar situation would be a teacher who has to be impartial to his/her students. Of course a lot of teachers might be partial to smart children who are enthusiastic and learn quickly. But if a teacher only attends to his/her personal favorites while neglecting the students who need more help, that would be a horrible teacher in a public school classroom. They might be highly qualified and knowlegeable in their subject matter but not a good teacher.
"The whole thing comes down to understanding how laws are made. Legislators don't vote on unwritten text nor on the subjective intent of other legislators. They vote on laws embodied in written words. What do those words mean?"
How does that work if they don't read it before they vote? They're not voting on the words. They're voting on the politics - does this get me and mine reelected, or enriched?
Freder Frederson said...
It is not controversial, what it is is bullshit. Originalism and Textualism are bullshit concepts.
Whine, baby, whine!
What's utter bullshit is that teh US Constitution is a "Living Document", and that unelected and unaccountable "Justices" are best able to tell how "society has evolved".
THAT is pure 100% bullshit.
They only look at the original meaning and text when it suits their preferred outcome. Look at Shelby County v. Holder. Where were the texualists there? They came to the opposite conclusion of the text of the statute because they thought the Voting Rights Act had gone on long enough.
They ruled that the law was in conflict with the Constitution.
Because the law was attacking the rights of the people of those States based on "data" that was > 40 years old.
Rules passed to stop racist Democrats. But the racist Democrats had been pretty much voted out of office / died. So they quite properly ruled taht if you wanted to take away voters rights (not letting our politicians do what we elected them to do is an assault upon us), you have to do so "for cause." Which means getting data relevant to the current voters and their elected officials.
And I'm sure the founders never intended first amendment rights to be extended to corporations (since the modern corporation didn't even exist then) or thought spending money was a part of free speech.
Citizens United was the case where a group of people banded together to make a movie about a politician they didn't like. And the Obama Admin went to the Supreme Court and said that they had the right to stop that movie from being shown "too near" to an election.
And that they would also have the right to stop an anti-politician book from being published by a corporation "too near" to an election.
You're either a lying sack of shit, or a complete fucking moron if you actually believe that the Founders would have found that position even remotely comparable with the 1st Amendment
Kevin @ 2:18: “...The issue of severabilty has everything to do with every contract and law drafted in the United States from this day forward.”
Dude. I don’t know if you are crazy or prescient but now that you have posed the issue in that way, yeah, I’m worried. Abstractly, of course: I have no pending cases here. But yeah, if the “offending” portion in ACA can be broken off (or not), that will affect the rules of construction for many other agreements. Not sure if ACA had a savings clause?
What goes around, comes around...
A rough estimate reveals that eight or nine out of ten commenters disagree with the Hostess' take on this; in other words, she is wrong. Just another day at Althouse.
THEOLDMAN
"Ambiguous? You keep using that word. I do not think it means what you think it means."
Justice ACB was anything but ambiguous.
bagoh20 said...
[Quoting me:]"The whole thing comes down to understanding how laws are made. Legislators don't vote on unwritten text nor on the subjective intent of other legislators. They vote on laws embodied in written words. What do those words mean?"
How does that work if they don't read it before they vote? They're not voting on the words. They're voting on the politics - does this get me and mine reelected, or enriched?
In that case an originalist / textualist would have to interpret the statute in a way that retroactively allows you to have kept your doctor if you liked your doctor.
Freder Frederson said...
If you don't like ACB on the court, blame Harry Reid for getting rid of the filibuster.
How long do you think Mitch McConnell would have hesitated in getting rid of the filibuster once the Republicans retook the Senate?
Are you really as stupid as you write?
Mitch McConnell had NO ability to get rid of the filibuster. That required having 49 more GOP Senators who were willing to vote with him.
The absolutely key, critical step required to get rid of the filibuster on SC nominations was for the Democrats to filibuster Gorsuch.
President Trump was elected largely on his promise to appoint someone like Gorsuch to the SC as a replacement for Scalia.
Trump campaigned for, and GOP Senators campaigned on, their promise to confirm Trump's nominee.
There was no possible way that the GOP could allow the Democrats to block Gorsuch's confirmation, given that history.
Every single GOP Senator voted to nuke the filibuster for SC nominees, because the Democrats were entirely out of line.
If the Dems had not filibustered Gorsuch, it would have been available for Kavanaugh, and the GOP would have been screwed. Because Collins and Murkowski would not have voted to nuke it for Kavanaugh.
Mitch McConnell didn't get rid of teh filibuster, the Democrats did. Both by their nuclear vote in 2013, and by their utterly asinine filibuster of Gorsuch.
Own it
Freder Frederson said...
{a lot more silly stuff}
10/27/20, 4:26 PM
The trouble with our Liberal friends is not that they're ignorant; it's just that they know so much that isn't so.
Ronald Reagan
I think her speech made perfect sense. The problem with your initial interpretation is that Senators, knowing the Judicial Branch should be evaluating the constitutional soundness of laws instead of the policy implications of laws, should sele t judges they believe have the integrity to so do. The confirmation process is broken because the Legislative Branch, ostly the Democrats), is trying to slant the judiciary in order to obtain preferential policy-based rulings and the Constitution be damned.
I think her speech made perfect sense. The problem with your initial interpretation is that Senators, knowing the Judicial Branch should be evaluating the constitutional soundness of laws instead of the policy implications of laws, should select judges they believe have the integrity to so do. The confirmation process is broken because the Legislative Branch, mostly the Democrats), is trying to slant the judiciary in order to obtain preferential policy-based rulings and the Constitution be damned. I'm pretty confident that ACB was not a fan of the current approach before her experiences with it, and is even less so now.
I didn't find it ambiguous at all. She was a professor, after all, and a professor of law, which is a discipline that requires logical thinking.
To the extent that it reflects upon the nomination hearings just held, it does acknowledge their true nature. However, if one accepts what Justice Barrett said as her true belief about the role and duty of a Supreme Court justice, then it also implies that "policy preferences" don't logically play a role in the confirmation process, UNLESS the concern of the senators voting are that the justices should vote based on policy, and not the law.
I took her comments first as a sincere statement (of which Scalia would have approved, because Scalia really did believe that it was terribly important for the court to preserve the constitutional role of the legislature), and second as a very clever rebuke, reproach or reflection (which of these it may appear to the hearer depends upon the hearer's own feelings/knowledge about these matters) upon what the senators who participated were really asking.
It is logically true that if the Supreme Court becomes a type of super legislature, the senators lose much of their constitutional powers.
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