Politicspoliticskavanaughscotus

Wed Oct 10, 2018, 07:47 PM

The Case for Kavanaugh

If qualifications for a judgeship stopped there, the case for Kavanaugh would be open and shut. Indeed, much the same case could have been made for my law school classmate Merrick Garland, who sits with him on the same court. But qualifications do not stop with smarts, skills, honesty and temperament.

I agree with Joe Biden who, as Senate Judicial Committee chair, insisted that a nominee's "judicial philosophy" is also relevant. It was on that ground that Biden and his Democratic colleagues—joined by six Republicans—opposed the confirmation of Judge Robert Bork, who easily met the standard for smarts, skills, etc.

What is "judicial philosophy?" As the term suggests, "judicial philosophy" is about the views of a nominee not his or her ability. Above all, it is a nominee's view of (a) the proper method of interpreting our written Constitution, and (b) the proper role of a judge in our constitutional republic. With respect to the former, Brett Kavanaugh is an "originalist," which today means he believes that the meaning of the text of the Constitution should remain the same until it is properly changed by an Article V amendment.

The original meaning of the text is the meaning the general public would have ascribed to the words and phrases of the Constitution in context. This "original meaning" originalism is different from the focus on original framers intent that originalists like Robert Bork once advocated. "Framers intent" originalism asked how the framers would have decided a case now before the court, which is actually a thought experiment, not a historical question. Today's originalists recognize that the application of original meaning to the facts of a case is distinct from identifying the content communicated by the text that is to be applied.

https://reason.com/volokh/2018/10/01/the-case-for-kavanaugh

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357blackhawk Oct 10 OP
Muddling Through Oct 10 #1
Gamle-ged Oct 10 #2
nolidad Oct 11 #3

Response to 357blackhawk (Original post)

Wed Oct 10, 2018, 08:01 PM

1. Hear, hear!

Volokh is a treasure.

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Response to 357blackhawk (Original post)

Wed Oct 10, 2018, 08:52 PM

2. And...

While old-school progressives once preached judicial restraint, from the Warren Court to today, they have favored judges actively invalidating unconstitutional laws—though many urge conservative judges to defer to legislatures that pass progressive measures, or to precedents progressives like. In short, they favor "judicial restraint for thee but not for me."


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Response to 357blackhawk (Original post)

Thu Oct 11, 2018, 05:33 AM

3. And that is why the left is opposed to him!

Because he knows words have meanings and we cannot change meanings just because we want to!!

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