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Reflections on the SCOTUS Nomination

Lady Justice with sword and scales

"The best system of law is that which confides as little as possible to the discretion of the judge." ~ Legal Maxim

I love a good crime drama, whether it's Sherlock Holmes, Law & Order, Suits, NCIS, or even Judge Judy on occasion. My passion for law developed early on, and having studied it for a number years, I've come to appreciate it at a level the layperson does not. While there are indeed corrupt and/or activist judges from time to time, the actual incidence of this is far less than Hollywood makes it seem.

Like the rest of us, judges are human too and still prone to bias, of course, but their sole job is literally to be a balance scale and weigh decisions based on the law and what is put before them. Thus, the judiciary is by far the least corrupt of all three branches of government.

Unlike the UK, we have a written Constitution; and unlike most of the rest of the world, we have a Common Law system that favors ancient precedents, leading to a very stable and lasting order under stare decisis. So one would think a Justice's job is in many ways fairly easy. Just apply the rules as they've always been applied before - the so-called constructionist or originalist mindset.

Justice Antonin Scalia was such a judge, as is his replacement, Neil Gorsuch, which made him an excellent choice to succeed Scalia.

Many statists, particularly those on the socialist or progressive left, don't like strict construction. The charitable interpretation is often that our laws are imperfect and don't always fit modern sensibilities of morality and justice, and thus need some degree of flexibility in their interpretation.

The so-called "living document" mindset.

And indeed, there have been many bad laws in our history. Things like slavery, Jim Crow, rights for women, minorities, LGBT, etc. The problem with the living document mindset, however, is that change is the domain of the legislature alone, not the executive or the judiciary. As the saying goes, the judiciary declares the law, it does not create the law. When it does, this is termed legislating from the bench.

This then leads to judicial activism wherein judges become political and often times the court is used as a wedge to expand the size of the State beyond its legitimate function. Within the last century, we've seen this occur uncomfortably frequently, with the courts upholding creeping taxation, a creeping welfare state, and a creeping surveillance state.

A notable recent example would be Justice Roberts conducting mind-reading and unilaterally deciding the intent of the legislators who crafted the Affordable Care Act, parsing it as a tax (which he ruled as constitutional, giving the decisive vote that upheld it). In reality, the individual mandate as written was an attempt at compelled contracting for the benefit and protection of special interests (the insurance companies). A violation of natural rights.

Justice Roberts hand raised

"Do I get a high-five for bipartisanship at least?"

This, as you can well imagine, angered a lot of people and was one of the things that led to Trump getting elected on his promise to repeal and replace the ACA - what Justice Scalia referred to pejoratively as SCOTUScare. As I write this, that reform has still yet to happen, but at least the individual mandate has been defanged through defunding.

Scalia's death left a vacancy on the Supreme Court.

Obama had nominated Merrick Garland for the role of replacing Scalia. I'm not gonna get into the nitty-gritty of the politics behind that. You can read the details yourself.

Suffice to say, apart from maybe his stance on guns, Garland is not that bad overall. He's a fairly centrist judge, which means the court would have shifted left towards "living breathing" land if he'd been confirmed instead of Gorsuch, so he would not have been a good replacement for Scalia. Ginsberg, perhaps, and by the time she retires, the Dems might still see him up for nomination. Ironically, in such a lineup, he'd be shifting the court right towards originalism.

While I'm not against Garland implicitly, and while I do think the Republicans' tactics were messy, I also think waiting until after the election to decide was ultimately a necessary evil to help preserve the Constitution. This, like my position on nationalism, is an example of where I'm willing to bend principles in the short term in order to save them in the long term.

The 2016 election was about more than just Hillary versus Trump. It was predominantly a symbol of the direction this country was willing to take going forward, possibly irreversibly. If Hillary had won, it's reasonable to assume she'd have renominated Garland and gotten more left-leaning Justices appointed to further erode the Constitution.

For me personally, the prospect of control of the Supreme Court was perhaps the most significant issue of the entire election, since the actions of a President or a legislature can be often undone in a single election, but Justices are appointed for life and their rulings can last for generations.

That Trump won meant our country dodged a bullet and most will never realize it.

Filling the vacancy left by Scalia was the obvious work to be done, and while there was much speculation that Trump would get a chance to nominate other Justices, I don't think anyone was expecting Anthony Kennedy's retirement to come when it did. Apparently, the two of them had been discussing this for months, with Kennedy giving the President a list of suitable conservative replacements, with Brett Kavanaugh among them.

Trump ultimately tweeted out his gratitude that Justice Kennedy trusted him enough with the job of finding just such a person. Given her disparaging comments towards him, I doubt Ginsberg will go out so gracefully.

Ruth Ginsberg

We'll cross that bridge when we get to it, though.

Many on the right, including many libertarians, have viewed this as an opportunity to try and stack the SCOTUS with as many far-right Justices as possible. Believe me, as a minarchist, nothing would make me happier than to see a full bench of strict textualists who unanimously adhered faithfully to the Constitution in every case, but it's not actionable.

It's the mentality of an ideological purist. Of someone who doesn't understand political pragmatism or strategy or persuasion. It's as if the right has forgotten the very tactic Republicans used in denying Obama his nomination of Garland right before an election. Guarantee you the Dems remember and if Trump had tried to seat another Gorsuch at this stage it would have appeared heavy-handed on his part, the Senate Dems would have blocked it or stalled or otherwise gotten their blue wave in the midterms turning Trump into a lame duck the way Republicans did with Obama.

No, if you wanna maintain this trend, you have to play the long game. What you are doing is not smart. It's the mindset of a child and Styxhexenhammer was right in shooting it down:

His prediction that Trump would appoint someone like Justice Kennedy proved to be accurate, as Brett Kavanaugh is definitely center-right, though I do agree with him that the more fun choice would have been Amy Barrett. 38D

Though not my first choice, Kavanaugh is indeed a solid nomination, and many prominent conservatives from Ben Shapiro to Newt Gingrich appear to agree:

Ben's review is definitely worth listening to, since he is a trained lawyer. I disagree with him on the abortion issue. I'm fine with Roe v. Wade as stands, though I'm not attached to it either. If the SCOTUS ultimately decides to overturn it and kick the issue back to the States, then fine. Some will, some won't, so what? If you want one that badly, take a day trip.

Ironically, I actually agree with Ginsberg of all people that abortion is not something the government should be involved in, at least not the federal government. We prosecute rape and murder at a State level. If the argument is that abortion is murder, then it should be tried at the State level too.

Ben's right about the absolute levels of hysteria the left is spewing right now, though. All the conspiracy theories that Trump did this just to ensure he'd be pardoned ... as if Kennedy wasn't of basically the same mindset as Kavanaugh. As if any positions Kavanaugh holds would have been radically different from those of Kennedy.

Did people really expect Trump would appoint a bunch of far-leftist judges or something?

Me as Meenah going wtf

They sure act like that's a reasonable thing to expect.

The left should be counting their blessings right now that they got someone who wasn't far right, who isn't going to overturn Roe v. Wade. Maybe they're still sore about Garland. So far, Trump hasn't altered the court, he's preserved its makeup whereas Hillary definitely would have flipped it by now, which I guess is what they really want. Purge all conservatives and fuck the Constitution. It's standing in the way of our glorious progressive socialist utopia!

No, the first real change will likely be with Justice Ginsberg, which by then Trump could well be into his second term already and he'll have the mandate to do whatever he wants.

Assuming Barrett's still an option by then, he might decide to keep the gender lines the same and it'll be funny watching the Democrats and the feminists all try to fight against their own brand to deny her even though it was Reagan who appointed the first woman in Sandra O'Connor.

I said Barrett was the fun choice because she's a young, attractive (which matters to persuasion, even if you think it shouldn't), mother of seven, two of which are adopted from Haiti (so much for muh racism), she's highly religious meaning she's against abortion (also means she believes laws come from a higher power than government), and she'll be around for a fairly long time if appointed.

Kavanaugh is a solid choice in his own right, so if he gets appointed, it's a win for Trump. He'll get to brag about how great a job he's doing and use it as fuel to fire up Republican support in the midterms.

Nothing's set in stone until Kavanaugh gets confirmed, so I'm still counting her in the running. Barrett would have been my first pick, but I think what Trump has done here is actually very clever. I think he's testing the Dems by lowballing them Brett Kavanaugh first, forcing them to fight an internal battle within themselves, their only choice being which way they'll give ground.

As I said, if the Senate confirms Kavanaugh, it's a straight layup for Trump.

Conversely, if they deny him, it'll give Trump more ammo to fire at the Democrats and the RINOs. "Oh, look at how they're obstructing! They don't want a functioning Supreme Court! What about all their whining about there being plenty of time before an election! They can't get anything done! Vote them out and let's MAGA!"

Most of it'll be bullshit, of course, but it'll be effective in terms of persuasion.

It'll also set him up to roll out Amy Barrett, who'll look great in contrast to Kavanaugh in terms of hitting all their particular branding points, except that she'd be pro-life and religious, which they'll hate. There will be more pressure on them to appoint her after an initial no, and as we get closer to the midterms, so I suspect they will.

Thus, what Trump is doing is pitting their love of women against their love of Roe v. Wade. Whatever way they choose, it makes them look bad and him look good, since if they want Roe, it signals they believe all women are a monolith and must think the same way; but then, why not just pick Kavanaugh in that case and spare themselves the embarrassment of revealing their hand?

It's a perfect trap with two ways for Trump to win, no way to lose.

And then if the Dems confirm Kavanaugh, Trump can play this same game again down the line forcing them to pick between Garland and Barrett when Ginsberg retires. If he offers Garland up, the Dems will probably snatch him up at the cost of shifting the court right, rather than hold out for a more liberal judge. If they don't, it makes their constituents question whether they really wanted him or were just using him as a tool. If they go with Garland at that point, it'll make Trump look more bipartisan as well, suring up the remaining centrists and leaving Barrett available to replace someone more conservative like a Clarence Thomas.

Or, if they insist on playing identity politics and prioritizing gender, then the court shifts even further right and Trump still can pull another right wing judge later since by this point he'll probably have more than enough Republicans to back him in the Senate.

Boom! That's how you win the long game.

Slowly, the originalists begin to take back the court and we turn this ship around.

We've already seen, following the addition of Gorsuch, a dramatic financial blow delivered to the big government types in the Janus case. Imagine now five, ten, twenty years out if someone like Amy Barrett gets on there as well. Trump already declared early on in his presidency that he regards gay marriage as settled law. He has said he doesn't care about a judge's views, only their faithfulness to the Constitution, which his two choices thus far represent, so the changes you're likely to see will be more and more consistent with an increase in personal liberty over bureaucracy.

And the creeping statists have no way to recover from it. It's their game to lose.


If you're interested in politics and pop culture, you might like reading my book. It features themes of law and philosophy, following the lives of several Justices as they navigate trials and politics, but it's way more exciting than anything going on in real life. Also, if you find the work I'm doing to be valuable, consider supporting me on Patreon. It really helps a lot and I appreciate your generosity.

May you each find love, peace, purpose, happiness, and will in your lives.

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