After RGB

[Polymath257]

Yes, it makes a great deal of difference. Many crucial cases have been 5-4 splits and this will produce a pronounced shift to the right.

The Republicans have effectively stolen the Garland nomination.

 

[exchemist]

That's the ideal.
The reality can be very different.
Want proof?
Look at all the split decisions on the USSC.

Yes, but split decisions are not proof of judges being influenced by personal politics. It's normal in any difficult issue brought before a panel of individuals for decision.

 

[Jayhawker Soule]

The Republicans have effectively stolen the Garland nomination.

I seriously doubt that the Democrats would have acted differently. The Garland nomination was gutted because "We the People" created a Senate aligned with that agenda.

 

[Terrywoodenpic]

That's technically true in the UK as well. Lord Denning was famous for creating new precedents. But in the end these people have to give written reasoning for their judgements. If they use bad reasoning, it would be open to a later court to point this out and re-decide the law in question, would it not?

Denning was both a risk taker and a genius, and always right. He was always way ahead of everyone else. He sounded like a West country bumpkin, he never lost his broad accent. It was marvellous to hear him speak.

 

[exchemist]

Denning was both a risk taker and a genius, and always right. He was always way ahead of everyone else. He sounded like a West country bumpkin, he never lost his broad accent. It was marvellous to hear him speak.

Private Eye had some fun with his diction: "Whomsoever he be, be he never so high", etc.

 

[sun rise]

I'm going to start with agreeing with @Revoltingest and take it from there. Beyond how SCOTUS rules is the question of legitimacy. SCOTUS is seen as legitimate in big part by how the justices are chosen. Is the process seen as honorable or not?

The problem started with Merrick Garland. At least one Republican senator said that Garland was a good choice. If his nomination had proceeded in a normal way with hearings etc and 51 Senators voted against him, people would have of course grumbled but at a lower volume. Instead Mitch's attitude was "we have the power so **** you". And along the way there were specious justifications for not taking up his nomination.

Now we have another "we have the power so **** you" with totally obvious hypocrisy and lack of honor.

On the day when the Senate confirms whomever Donald nominates, qualified or not, I will no longer consider SCOTUS to be legitimate until a Democratic President and Senate redresses the power by putting two justices on the court as is perfectly legal and in accord with what Abraham Lincoln did. Full stop.

 

[Terry Sampson]

Does it really matter enormously what the politics of a Supreme Court judge may be?

The politics of a Supreme Court judge are, theoretically, a non-issue because each--upon confirmation and swearing in commits him- or herself to impartiality.
However, ... the politics of the President who nominates a person for a position on the Supreme Court and the politics of the Senators who confirm the nomination counts abundantly.

• Theories of Constitutional Interpretation
  • There are five sources that have guided interpretation of the Constitution:
    • (1) the text and structure of the Constitution,
    • (2) intentions of those who drafted, voted to propose, or voted to ratify the provision in question,
    • (3) prior precedents (usually judicial),
    • (4) the social, political, and economic consequences of alternative interpretations, and
    • (5) natural law.
    • There is general agreement that the first three of these sources are appropriate guides to interpretation, but considerable disagreement as to the relative weight that should be given to the three sources when they point in different directions. Many interpreters of the Constitution have suggested that the consequences of alternative interpretations are never relevant, even when all other considerations are evenly balanced. Natural law (higher law, God's law) is now only infrequently suggested as an interpretive guide, even though many of the framers of the Constitution recognized its appropriateness. Persons who favor heavy reliance on originalist sources (text and intentions) are commonly called "originalists." Persons who favor giving a more substantial weighting to precedent, consequences, or natural law are called "non-originalists." In practice, disagreement between originalists and non-originalists often concerns whether to apply heightened judicial scrutiny to certain "fundamental rights" that are not explicitly protected in the text of the Constitution.
  • Given those five sources, a Supreme Court Justice will typically be either an "Originalist" or a "Non-originalist" depending upon the weight he or she gives to a source when making a decision.
    • Textualist: An originalist who gives primary weight to the text and structure of the Constitution. Textualists often are skeptical of the ability of judges to determine collective "intent."
    • Intentionalist: An originalist who gives primary weight to the intentions of framers, members of proposing bodies, and ratifiers.
    • Pragmatist: A non-originalist who gives substantial weight to judicial precedent or the consequences of alternative interpretations, so as to sometimes favor a decision "wrong" on originalist terms because it promotes stability or in some other way promotes the public good.
    • Natural Law Theorist: A person who believes that higher moral law ought to trump inconsistent positive law.
  • Eight Reasons to be an Originalist
    1. Originalism reduces the likelihood that unelected judges will seize the reigns of power from elected representatives.
    2. Originalism in the long run better preserves the authority of the Court.
    3. Non-originalism allows too much room for judges to impose their own subjective and elitist values. Judges need neutral, objective criteria to make legitimate decisions. The understanding of the framers and ratifiers of a constitutional clause provide those neutral criteria.
    4. Lochner vs. New York (widely considered to be a bad non-originalist decision).
    5. Leaving it to the people to amend their Constitution when need be promotes serious public debate about government and its limitations.
    6. Originalism better respects the notion of the Constitution as a binding contract.
    7. If a constitutional amendment passed today, we would expect a court five years from now to ask what we intended to adopt. [Can the same be said for a court 100 or 200 years from now?]
    8. Originalism more often forces legislatures to reconsider and possibly repeal or amend their own bad laws, rather than to leave it to the courts to get rid of them.
  • Eight Reasons to be a Non-Originalist
    1. The framers at the Convention in Philadelphia indicated that they did not want their specific intentions to control interpretation.
    2. No written Constitution can anticipate all the means that government might in the future use to oppress people, so it is sometimes necessary for judges to fill in the gaps.
    3. Intentions of framers are various, sometimes transient, and often impossible to determine. Text is often ambiguous and judicial precedents can be found to support either side. In such cases, why not produce the result that will best promote the public good? It's better than flipping a coin.
    4. Non-originalism allows judges to head off the crises that could result from the inflexible interpretation of a provision in the Constitution that no longer serves its original purpose. (The amendment process is too difficult and cannot be relied upon to save us.)
    5. Non-originalism allows the Constitution to evolve to match more enlightened understandings on matters such as the equal treatment of blacks, women, and other minorities.
    6. Brown vs Board of Education (on originalist grounds, it was decided incorrectly).
    7. Originalists lose sight of the forest because they pay too much attention to trees. The larger purpose--the animating spirit--of the Constitution was the protection of liberty, and we ought to focus on that.
    8. Nazi Germany: Originalist German judges did not exercise the power they might have to prevent or slow down inhumane programs.
• Justice Ruth Bader-Ginsburg was a "Non-originalist".

 

[Revoltingest]

Yes, but split decisions are not proof of judges being influenced by personal politics. It's normal in any difficult issue brought before a panel of individuals for decision.

Well, I'm not trying to prove anything...that's a high bar.
But personal preference/perspective is a good explanation
for why the greatest (ostensibly) legal minds in the country
will individually reach opposite conclusions from reading
the same body of law.

 

[Revoltingest]

The problem started with Merrick Garland.

Not Bork?

 

[exchemist]

Well, I'm not trying to prove anything...that's a high bar.
But personal preference/perspective is a good explanation
for why the greatest (ostensibly) legal minds in the country
will individually reach opposite conclusions from reading
the same body of law.

OK I get that. But I think you misrepresent the situation by describing different opinions as "opposite conclusions", as if the judges are diametrically opposed in their views. They aren't.

Judges are, by the nature of the job, forced to make black and white, go/no-go decisions, on matters that are usually very finely balanced. If they were not finely balanced, they would be unlikely to have come all the way up to the Supreme Court for resolution. When they disagree, all it signifies is that for one the balance may be 55:45 one way while for the other it is 45:55 the other. These are not "opposite" points of view.

 

[Revoltingest]

But I think you misrepresent the situation by describing different opinions as "opposite conclusions"....

I think you misinfer what I'm posting.
The votes are opposite....as in yes vs no.

Judges are, by the nature of the job, forced to make black and white, go/no-go decisions, on matters that are usually very finely balanced. If they were not finely balanced, they would be unlikely to have come all the way up to the Supreme Court for resolution. When they disagree, all it signifies is that for one the balance may be 55:45 one way while for the other it is 45:55 the other. These are not "opposite" points of view.

Decisions are often much farther apart than that.
Eg, Roe v Wade makes for heated disagreements
about far more than "finely balanced" points.

 

[Terry Sampson]

These are not "opposite" points of view.

@Revoltingest,
'S all yours. Good luck.

 

[Terry Sampson]

OK I get that. But I think you misrepresent the situation by describing different opinions as "opposite conclusions", as if the judges are diametrically opposed in their views. They aren't.

 

[Polymath257]

I seriously doubt that the Democrats would have acted differently. The Garland nomination was gutted because "We the People" created a Senate aligned with that agenda.

Except that the president nominates and the senate votes to confirm. Garland didn't even get a vote.

Let's just say that I hope the Dems play the game the same way next time around.

 

[sun rise]

Not Bork?

Bork was done according to the rules. He was considered and voted down. There is a qualitative difference between voting someone down and changing the rules with lots of words about why and then changing them again while in effect thumbing their noses with 'we can do anything we want - we have the power'

 

[Jayhawker Soule]

Except that the president nominates and the senate votes to confirm. Garland didn't even get a vote.

Let's just say that I hope the Dems play the game the same way next time around.

Next time?

It's called Hard Ball, where one bad turn deserves another.​

 

[SomeRandom]

Yes, it makes a great deal of difference. Many crucial cases have been 5-4 splits and this will produce a pronounced shift to the right.

The Republicans have effectively stolen the Garland nomination.

What’s the Garland nomination I keep seeing referenced?

 

[Jayhawker Soule]

What’s the Garland nomination I keep seeing referenced?

You can always Google ...

... wait for it ...​

... ... "Garland nomination"​

 

[Terry Sampson]

What’s the Garland nomination I keep seeing referenced?

• Merrick Garland Supreme Court nomination - Wikipedia
  • On March 16, 2016, President Barack Obama nominated Merrick Garland for Associate Justice of the Supreme Court of the United States to succeed Antonin Scalia, who had died one month earlier. At the time of his nomination, Garland was the Chief Judge of the United States Court of Appeals for the District of Columbia Circuit.
  • This vacancy arose during Obama's final year as president, and shortly after Scalia's death was announced. But even before Obama had named Garland, and in fact only hours after Scalia's death was announced, Senate Majority Leader Mitch McConnell declared any appointment by the sitting president to be null and void. He said the next Supreme Court justice should be chosen by the next president — to be elected later that year.[
  • Democrats criticized the move as being unprecedented, and responded saying that there was sufficient time to vote on a nominee before the election.
  • Scalia's death brought about an unusual, but not unprecedented, situation in which a Democratic president had the opportunity to appoint a Supreme Court justice while the Republicans controlled the United States Senate. Before 2016, such a situation had last arisen in 1895, when a Republican-led Senate confirmed Democrat Grover Cleveland's nomination of Rufus Wheeler Peckham to the Court in a voice vote;[

 

[Polymath257]

Next time?

It's called Hard Ball, where one bad turn deserves another.​

Because the Republicans refused to even consider how many judges?

It's a case of 'play by our rules or we will obstruct until we get the ball'.