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    Wounded Ronin's Avatar
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    Help me to understand/break down the angst behind the SC appointment

    All I've been hearing about for the past few days was the SC appointment and how it's energized both the Democratic and Republican bases. However I don't fully understand peoples' thinking. Unlike for many other issues though I've noticed a lot of regular posters here are actually chiming in with strongly stated opinions, rahter than with the charming but wishy washy sort of neutrality that smart people can have (which is still much better than being a partisan). So maybe this is a good chance to continue learning how people think.

    Here are my questions:

    What is the most ethical way to handle the SC?

    The horse has left the barn in that the SC is a political entity with great power. It has the power to impeach presidents, block executive orders, and even overturn laws that have been implemented through the democratic process. Historically it's played a role in protecting the rights of minorities and the powerless by protecting them from the wrath of the majority; and it is for this function that the court needs the power to block all of the above. This power should be held only by people approaching superhuman levels of enlightenment who are able to see the implications of various laws and policies for generations and act for the greater good while totally disregarding short term concerns or party identity.

    So, we can distill the idealized role of the SC as "protector of the weak and guardian of the future". Why else would you have it populated by, effectively, mandarins with lifetime appointments?

    Unfortunately, the SC is very politicized. Many on this very board have stated that SC appointments were the main reason to vote Republican even with a very questionable candidate. So, how can it be assured that the SC will be used for defense only, and not attacking the weak (i.e. whomever is out of power)?

    I would think that the best way would be to ensure that no party has a SC majority. There needs to be a tie so that partisan stuff will be deadlocked. The supreme override power of the court would be used only in cases where agreement transcends party lines.

    My fear with the court, depending on who is in power, would be that a Democratic supreme court would attempt to implement cultural imperialism by validating some kind of gun control and/or ban, and that a Republican supreme court would attack the rights, economic standing, and self determination (in the context of US culture where the sense of self and idea of self determination is important) of women by restricting abortions, and of immigrants and racial minorities by upholding things like poorly thought out travel bans or invasive security state measures. Neither side deserves to be able to do these things so deadlock would be the most ethical position for the SC.

    In other words, the SC should be a body for defense and equal dignity, not aggression and cultural oppression. Given that we seem to be in short supply of enlightened hermits to populate it deadlock is perhaps the best we can hope for.

    Anyway, let's clarify basics first. What do you see the role of the SC being?

    For those who would say "to uphold the US constitution", my follow up question would be, given that the US constitution was written in another time by a different society, what do you regard as the main problem if someone in a position power chooses not to prioritize the contents of that document above all other considerations, i.e. if they choose to take rights and protections even farther that are articulated in that particular document?


    Why are people so upset about the last minute effort to block the appointment of a Republican SC judge?

    I've been reading that both the Democratic and Republican bases have been energized ahead of the midterm election by the SC appointment controversy.

    Intuitively, I feel like I understand the Democratic viewpoint. This is not a criminal or civil proceeding, but rather the anointment of someone with an office of terrible and staggering power, including power over the lives and self determination of others. Not to mention a lifetime appointment and never needing to worry about personal practical matters of economic survival again; being able to leave corporeal matters behind, and focus on the philosophy of justice, so to speak. So, if there is even a hint of a concern, why would such a person be appointed? Why even take a chance? Just appoint someone else who is considered a Republican pick. There was a whole long list of them. The insistence on this particular individual seemed like a callous indifference or even animosity toward women's concerns and problems of sexual assault and social sexual mores.

    NB, there were obvious elements of political calculation and gamemanship concerning the last minute reveal of the allegations. I don't think anyone can rationally deny that. However, that also doesn't seem like as much of a concern as the above point. Please tell me if you feel differently.


    So, what I have less facility with understanding is the Republican outrage, and actually I'm hoping someone can share their thoughts on it with me. Why should this energize the Republican base? They already got their Republican SC majority and if anything they are the side that might fall into ethical peril by using the power of the court to go on a cultural offensive by stripping away Democrat's rights, since they now have the means to do so.

    Anyway, what I mean is, tactically speaking, the last minute revel of the allegations kind of reminds me a bit of Swift Boating John Kerry, and Republicans didn't have a problem with that. Consider the similarities.

    *In both cases, the allegations would be hard to prove
    *From my reading on the Vietnam War, there were a lot of incompetent Second Lieutenants, so people making the allegations that John Kerry was a bad Second Lieutenant felt like a plausible possibility. From my knowledge of Ivy League campuses, in decades past there was a lot of drunken bad behavior and extreme sexual misconduct by frat boys who enjoyed a degree of legal insulation for various reasons, so allegations that a highly privileged frat boy habitually drank to excess and committed acts of sexual misconduct in the 80s or 90s similarly feel plausible. Please note I'm not saying that I can say for sure that any of these things happened or not; I'm pointing out the similarities of the allegations and then pointing out that conservative voters didn't seem to have a problem when this style of allegation was used against John Kerry.
    *In both cases, there was the assumption that neither men had matured or changed in decades; that a vote for them today would be a vote for a flawed version of them from many decades ago.

    So why the sense of outrage or the sense of being unprecedented? And why the conflation of the standard of proof for a civil or criminal proceeding, versus the standard of doubt for basically giving someone override power over the rest of the government?

    Do Republican base voters not know or not understand what privileged frat houses have historically gotten away with? It seems odd they would empathize with a highly privileged person who would have enjoyed a special degree of legal insulation from the consequences of his actions. In other words they don't seem to appreciate how much he would have been privileged at that time and more than likely how different their own accountability would have been in their own lives. I am not sure why they feel they will be well represented on the SC by someone who clearly grew up in a completely different world with an attenuated level of negative consequence for his actions.

    So I think that would be my final question. Why does the Republican base apparently empathize with someone who clearly walked in a completely different orbit in life? On what basis do they think he would really empathize with them or represent them? (Actually I suppose the same question could be asked about Donald Trump).

    Anyway, maybe after these questions are answered I'll finally understand US politics.
    Last edited by Wounded Ronin; 10/08/2018 11:31am at .
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    Part of your problem is that you have some misconceptions that need clearing.

    SCOTUS does not have any part of presidential impeachment. In fact, that was cleared up handily in 1993, Nixon v. US. Unanimous vote of SCOTUS, IIRC.

    SCOTUS does have primarily a duty to the Constitution, then to stare decisis, then jurisprudence, and finally to the laws as written. That is the order of precedence, and why they reject hearing so many things.

    They could have done better than Kavanaugh as an appointee. No, I'm not going to proffer alternatives.

    IME, a justice appointed by a party doesn't mean (s)he will side with that party. Can anyone say Chief Justice Roberts?

    The outrage is this was a giant political stunt, which had nothing to do with Kavanaugh's fitness to serve. It has literally fucked up many lives, indelibly, Ford's among them.

    That Kavanaugh squeaked through is the only mitigation against the fact that he would never be able to work again (if not confirmed), based on this circus. Still, he and his family will never be safe, thanks to this spectacle. Imagine you having to spend the rest of your working life protected by armed security against people that have been misinformed about your past.

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    Wounded Ronin's Avatar
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    Quote Originally Posted by submessenger View Post
    Part of your problem is that you have some misconceptions that need clearing.

    SCOTUS does not have any part of presidential impeachment. In fact, that was cleared up handily in 1993, Nixon v. US. Unanimous vote of SCOTUS, IIRC.

    SCOTUS does have primarily a duty to the Constitution, then to stare decisis, then jurisprudence, and finally to the laws as written. That is the order of precedence, and why they reject hearing so many things.

    They could have done better than Kavanaugh as an appointee. No, I'm not going to proffer alternatives.

    IME, a justice appointed by a party doesn't mean (s)he will side with that party. Can anyone say Chief Justice Roberts?

    The outrage is this was a giant political stunt, which had nothing to do with Kavanaugh's fitness to serve. It has literally fucked up many lives, indelibly, Ford's among them.

    That Kavanaugh squeaked through is the only mitigation against the fact that he would never be able to work again (if not confirmed), based on this circus. Still, he and his family will never be safe, thanks to this spectacle. Imagine you having to spend the rest of your working life protected by armed security against people that have been misinformed about your past.
    Thanks for your post. It's true that I had been taking certain things for granted about the SC but perhaps could have researched them better, so thank you for clearing things up for me.

    The more a justice doesn't side with their own party the better. As a general statement, I hope that behavior continues. After all it would be best if the SC weren't simply a partisan nuclear missile.


    Regarding your final point, I always assumed that if Kavanaugh weren't confirmed he'd just keep his current job, which I assume is a pretty good job, and that he'd be able to keep it as he slowly sank back into obscurity. In other words, I'd been under the impression that he wouldn't be penalized any further for stepping down and that he'd still have the means to meet his physical and basic needs. I didn't think he'd lose his current job or anything like that. Is it true that he'd lose his current job? I'm beginning to realize how there was lots I didn't know about the ins and outs of judicial appointments.


    I wonder if in the US we're finally starting to mature as a civilization and as such are moving towards certain characteristics of older cultures, such as "tall poppy syndrome". Meaning that people who are too openly ambitious or reach too far are socially punished, which I believe is a characteristic of more static and hierarchical cultures. In other words to rise too far or too quickly invites this sort of scrutiny and resistance. I'm not saying if it's a good or bad thing. But it seems to be common around the world, and in these cultures the ideal is a quiet and calculating kind of ambition, instead of a brazen and aggressive one. "The nail that sticks up gets hammered down."
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    Quote Originally Posted by Wounded Ronin View Post
    All I've been hearing about for the past few days was the SC appointment and how it's energized both the Democratic and Republican bases. However I don't fully understand peoples' thinking. Unlike for many other issues though I've noticed a lot of regular posters here are actually chiming in with strongly stated opinions, rahter than with the charming but wishy washy sort of neutrality that smart people can have (which is still much better than being a partisan). So maybe this is a good chance to continue learning how people think.

    Here are my questions:

    What is the most ethical way to handle the SC?

    The horse has left the barn in that the SC is a political entity with great power. It has the power to impeach presidents, block executive orders, and even overturn laws that have been implemented through the democratic process. Historically it's played a role in protecting the rights of minorities and the powerless by protecting them from the wrath of the majority; and it is for this function that the court needs the power to block all of the above. This power should be held only by people approaching superhuman levels of enlightenment who are able to see the implications of various laws and policies for generations and act for the greater good while totally disregarding short term concerns or party identity.

    So, we can distill the idealized role of the SC as "protector of the weak and guardian of the future". Why else would you have it populated by, effectively, mandarins with lifetime appointments?

    Unfortunately, the SC is very politicized. Many on this very board have stated that SC appointments were the main reason to vote Republican even with a very questionable candidate. So, how can it be assured that the SC will be used for defense only, and not attacking the weak (i.e. whomever is out of power)?

    I would think that the best way would be to ensure that no party has a SC majority. There needs to be a tie so that partisan stuff will be deadlocked. The supreme override power of the court would be used only in cases where agreement transcends party lines.

    My fear with the court, depending on who is in power, would be that a Democratic supreme court would attempt to implement cultural imperialism by validating some kind of gun control and/or ban, and that a Republican supreme court would attack the rights, economic standing, and self determination (in the context of US culture where the sense of self and idea of self determination is important) of women by restricting abortions, and of immigrants and racial minorities by upholding things like poorly thought out travel bans or invasive security state measures. Neither side deserves to be able to do these things so deadlock would be the most ethical position for the SC.

    In other words, the SC should be a body for defense and equal dignity, not aggression and cultural oppression. Given that we seem to be in short supply of enlightened hermits to populate it deadlock is perhaps the best we can hope for.

    Anyway, let's clarify basics first. What do you see the role of the SC being?

    For those who would say "to uphold the US constitution", my follow up question would be, given that the US constitution was written in another time by a different society, what do you regard as the main problem if someone in a position power chooses not to prioritize the contents of that document above all other considerations, i.e. if they choose to take rights and protections even farther that are articulated in that particular document?


    Why are people so upset about the last minute effort to block the appointment of a Republican SC judge?

    I've been reading that both the Democratic and Republican bases have been energized ahead of the midterm election by the SC appointment controversy.

    Intuitively, I feel like I understand the Democratic viewpoint. This is not a criminal or civil proceeding, but rather the anointment of someone with an office of terrible and staggering power, including power over the lives and self determination of others. Not to mention a lifetime appointment and never needing to worry about personal practical matters of economic survival again; being able to leave corporeal matters behind, and focus on the philosophy of justice, so to speak. So, if there is even a hint of a concern, why would such a person be appointed? Why even take a chance? Just appoint someone else who is considered a Republican pick. There was a whole long list of them. The insistence on this particular individual seemed like a callous indifference or even animosity toward women's concerns and problems of sexual assault and social sexual mores.

    NB, there were obvious elements of political calculation and gamemanship concerning the last minute reveal of the allegations. I don't think anyone can rationally deny that. However, that also doesn't seem like as much of a concern as the above point. Please tell me if you feel differently.


    So, what I have less facility with understanding is the Republican outrage, and actually I'm hoping someone can share their thoughts on it with me. Why should this energize the Republican base? They already got their Republican SC majority and if anything they are the side that might fall into ethical peril by using the power of the court to go on a cultural offensive by stripping away Democrat's rights, since they now have the means to do so.

    Anyway, what I mean is, tactically speaking, the last minute revel of the allegations kind of reminds me a bit of Swift Boating John Kerry, and Republicans didn't have a problem with that. Consider the similarities.

    *In both cases, the allegations would be hard to prove
    *From my reading on the Vietnam War, there were a lot of incompetent Second Lieutenants, so people making the allegations that John Kerry was a bad Second Lieutenant felt like a plausible possibility. From my knowledge of Ivy League campuses, in decades past there was a lot of drunken bad behavior and extreme sexual misconduct by frat boys who enjoyed a degree of legal insulation for various reasons, so allegations that a highly privileged frat boy habitually drank to excess and committed acts of sexual misconduct in the 80s or 90s similarly feel plausible. Please note I'm not saying that I can say for sure that any of these things happened or not; I'm pointing out the similarities of the allegations and then pointing out that conservative voters didn't seem to have a problem when this style of allegation was used against John Kerry.
    *In both cases, there was the assumption that neither men had matured or changed in decades; that a vote for them today would be a vote for a flawed version of them from many decades ago.

    So why the sense of outrage or the sense of being unprecedented? And why the conflation of the standard of proof for a civil or criminal proceeding, versus the standard of doubt for basically giving someone override power over the rest of the government?

    Do Republican base voters not know or not understand what privileged frat houses have historically gotten away with? It seems odd they would empathize with a highly privileged person who would have enjoyed a special degree of legal insulation from the consequences of his actions. In other words they don't seem to appreciate how much he would have been privileged at that time and more than likely how different their own accountability would have been in their own lives. I am not sure why they feel they will be well represented on the SC by someone who clearly grew up in a completely different world with an attenuated level of negative consequence for his actions.

    So I think that would be my final question. Why does the Republican base apparently empathize with someone who clearly walked in a completely different orbit in life? On what basis do they think he would really empathize with them or represent them? (Actually I suppose the same question could be asked about Donald Trump).

    Anyway, maybe after these questions are answered I'll finally understand US politics.

    Power

    and

    You are aware that any tie vote in the Supreme Court kicks it back to the ruling of the lower court as settled law. Yes?

    Empathy does not have a place in the justice system other than perhaps sentencing.

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    Quote Originally Posted by Wounded Ronin View Post
    Regarding your final point, I always assumed that if Kavanaugh weren't confirmed he'd just keep his current job, which I assume is a pretty good job, and that he'd be able to keep it as he slowly sank back into obscurity.
    That was my original assumption, as well. I'm still a little fuzzy on this, but it seems that his circuit seat he would have to be re-confirmed for, specifically because he failed a subsequent confirmation. Which raises a whole load of follow-on questions.

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    Quote Originally Posted by hungryjoe View Post
    Power

    and

    You are aware that any tie vote in the Supreme Court kicks it back to the ruling of the lower court as settled law. Yes?

    Empathy does not have a place in the justice system other than perhaps sentencing.
    So what are you saying? A tie at the SC is equivalent to....what?


    Which one of my questions is your point on empathy in response to?

    Thanks!
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    Wounded Ronin's Avatar
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    Quote Originally Posted by submessenger View Post
    That was my original assumption, as well. I'm still a little fuzzy on this, but it seems that his circuit seat he would have to be re-confirmed for, specifically because he failed a subsequent confirmation. Which raises a whole load of follow-on questions.
    Oh wow.

    Hard to believe someone would take the risk of shooting for SC then especially with a close vote and during very polarized times. Hubris?
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    Quote Originally Posted by Wounded Ronin View Post
    Oh wow.

    Hard to believe someone would take the risk of shooting for SC then especially with a close vote and during very polarized times. Hubris?
    How about expecting a fair process?
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    Quote Originally Posted by Wounded Ronin View Post
    Oh wow.

    Hard to believe someone would take the risk of shooting for SC then especially with a close vote and during very polarized times. Hubris?
    The reason they have a lifetime appointment is to free them of any political responsibility. Judicial nominations cut to the very heart of our political differences, though. Basically, you have two camps: originalists (conservatives), and progressives (liberals). To your earlier point, one of our fundamental differences is the idea of Constitution as "a living document." To the extent that it is, you cannot maintain order with a moving target. Our Fundamental Law needs to remain relatively constant. So, this idea of "some old dead guys 200+ years ago," is a red herring - I would venture that even the progressives don't want radical change in our law, just tweaks that don't jive with what the conservatives believe.

    (edit)
    Roe v. Wade is the quintessential example of this fight. Stare Decisis is going to continue to win, but the originalists believe that abortion is murder, and murder is otherwise proscribed.

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    Quote Originally Posted by Wounded Ronin View Post
    So what are you saying? A tie at the SC is equivalent to....what?


    Which one of my questions is your point on empathy in response to?

    Thanks!
    The US Supreme Court is an appeals court. Before hearing an appeal, a case has usually been heard first by the state Supreme Court and the District Appeals Court. If for any reason the US Supreme Court has a tie ruling, the finding of the next lower court is found to have been settled.


    So I think that would be my final question. Why does the Republican base apparently empathize with someone who clearly walked in a completely different orbit in life? On what basis do they think he would really empathize with them or represent them? (Actually I suppose the same question could be asked about Donald Trump).
    Why should a judge have empathy in making a determination as to law? A judge is duty bound to be impartial.

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