Supreme Court as an extension of partisanship

[MigL]

The recent nomination of B Kavaaugh to the Supreme Court highlights and magnifies the problem with the highest court in the land.
Judges are appointed to the Supreme Court by a Government, when the opportunity arises, as an extension of the government's ideology.
Republicans nominate extremely conservative judges, while Democrats nominate progressive ( or activist, depending on your viewpoint ) judges and since appointments are for life, the Supreme Court can be right or left leaning for many changes of Government.
Once a majority is established in the Supreme Court, laws passed by a government are either 'rubber stamped' by the Court, or modified ( even rendered invalid ) by the Court, depending on whether the Court leans Republican or Democrat.

In effect, the laws of the land are decided, not by elected politicians ( and by extension the populace because we vote politicians in and out of office ), but by appointed, unaccountable judges.
We have a similar problem here in Canada, but it is much more well-behaved ( like all Canadians ), and nowhere near as partisan as it is in the US.

Do you consider this a problem ?
Or only a problem hen the Court is stacked against your ideology ?
And is there a solution to this problem, such as election  or limited terms of Supreme Court Judges ?

[mistermack]

The problem in the US is the written constitution. If the judges want to destroy a law passed by the legislators, they just have to interpret it as "against the constitution".

In the UK the supreme court is (or was) simply there to interpret laws passed by parliament. Their guide was "what was actually meant by the legislation", so they don't have a written constitution to use to defeat that legislation. 

That was the case, although now, they can say, "this kind of law was ruled against by Europe" and override the express wishes of Parliament. 

To put the UK Parliament back in charge of it's own country, they would need to fully leave the EU and depart the European convention on Human Rights.

[StringJunky]

28 minutes ago, MigL said:

The recent nomination of B Kavaaugh to the Supreme Court highlights and magnifies the problem with the highest court in the land.
Judges are appointed to the Supreme Court by a Government, when the opportunity arises, as an extension of the government's ideology.
Republicans nominate extremely conservative judges, while Democrats nominate progressive ( or activist, depending on your viewpoint ) judges and since appointments are for life, the Supreme Court can be right or left leaning for many changes of Government.
Once a majority is established in the Supreme Court, laws passed by a government are either 'rubber stamped' by the Court, or modified ( even rendered invalid ) by the Court, depending on whether the Court leans Republican or Democrat.

In effect, the laws of the land are decided, not by elected politicians ( and by extension the populace because we vote politicians in and out of office ), but by appointed, unaccountable judges.
We have a similar problem here in Canada, but it is much more well-behaved ( like all Canadians ), and nowhere near as partisan as it is in the US.

Do you consider this a problem ?
Or only a problem hen the Court is stacked against your ideology ?
And is there a solution to this problem, such as election  or limited terms of Supreme Court Judges ?

I did note that Kavanaugh expressly aspired to being apolitical in his judgements. I've read several judges express this view. It seemed to me that it is not desirable to be seen to be political in their judgements;.

[MigL]

But he has been partisan in the past. Stringy.
And his recent tirade against Democrats, and the Clintons in particular, can't have escaped your notice.

[StringJunky]

6 minutes ago, MigL said:

But he has been partisan in the past. Stringy.

I was expressing the point that, it seems, that there is a principle that one, as a SC judge, is not seen as political.

Quote

And his recent tirade against Democrats, and the Clintons in particular, can't have escaped your notice.

I did say at the time it was understandable and the Democrats did have an agenda, to which he directly responded to.

Edited October 8, 2018 by StringJunky

[Ten oz]

This really isn't a both sides do it issue. Only Republicans have their own breeding stable for judges, Federalist Society. There is not a Democratic version of this. All Republican nominees are literally part of a political action committee with expressed long term goals to reshape U.S. law in their preferred world view. You can argue that Democrats choose more progressive judges all you want but Democratic nominate judge are not all members of singular organization with singular doctrine. 

[MigL]

OK.
So you only consider it a problem when Republicans stack the Supreme Court ?
Please elaborate.

Edited October 8, 2018 by MigL

[CharonY]

The Reps are better organized and for a while there has been a strategic movement to create a conservative SCOTUS. Before, say Obama votes were far more mixed and at times unanimous. I do think that it is fair to say that much of why the situation is less behaved in the US is because of the strategies that some trace back to Gingrich. Dems fault was having no successful response other than to consolidate themselves (and even that with limited success).

It is a problem in both parties now. But I do think that structures were dominantly and originally put in place by the gop.

[iNow]

Yes. It’s a problem. Yes. Both sides do it. No. It’s not equivalent in terms of scope. 

Its also not just SCOTUS. Federal judges at all levels are being stacked.

McConnell blocked more than just Merrick Garland during Obamas term. There were something like 30 open slots that should’ve been Obama’s to fill butvwhich Trump was able to fill based on Federalist Society recs 

[Ten oz]

2 hours ago, MigL said:

OK.
So you only consider it a problem when Republicans stack the Supreme Court ?
Please elaborate.

I just did. Democrats don't "stack" the court. Democrats do not have their own conservative judge organizational pool as the GOP do. If you are attempting to disagree please cite the name of the liberal equivalent to the Federalist Society. 

1 hour ago, iNow said:

Yes. It’s a problem. Yes. Both sides do it. No. It’s not equivalent in terms of scope. 

The scope is different enough as to render the both sides platitude worthless. The Federalist Society is a GOP led action committee which develops judges specifically to influence abortion, gun, tax, and etc laws. Nothing like it exists on the left. 

[CharonY]

6 hours ago, MigL said:

So you only consider it a problem when Republicans stack the Supreme Court ?
Please elaborate.

A decent read on the subject.

Quote

As described by the political scientist Steven M. Teles in his book The Rise of the Conservative Legal Movement, the strategy began in the 1980s, when conservatives realized that they would have to play the long game. Focusing on each individual judicial nomination from Democratic administrations was a fool’s errand—even after Republicans finally gained control of the Senate in the 1980 election. Conservatives invested heavily in organizations that would nurture and support lawyers and justices who stuck to an “originalist” interpretation of the Constitution, which means that their understanding is theoretically derived from the original meaning of the Constitution at the time it was written.

A consortium of students and professors based at Yale Law School founded the Federalist Society in 1982, which would prove to be the most influential originalist organization. The society helped recruit the brightest legal minds and supported them as their careers unfolded. The Federalist Society was careful to find people who could be counted on as solid conservative picks for the courts. It offered a social-professional network to connect young law students with influential senior mentors, such as the late Supreme Court Justice Antonin Scalia. Attorney General Edwin Meese provided support from within Ronald Reagan’s administration, encouraging the group’s efforts. Meese headed much of the administration’s selection of 400 federal judges, introducing a type of ideological profiling of potential nominees that made conservative criteria a determining factor. Meese’s insistence on the “jurisprudence of original intention” influenced many important figures, including Chief Justice John Roberts.

 

[rangerx]

McConnell nixed the Garland appointment without even being heard under the guise of being an election year, then going on FOX news and saying he would appoint a judge in an election year says all you need to know about stacking SCOTUS.

For those who would argue the point "we'll see" is not a resounding no like he told Obama. On one hand invokes a non-existent Biden rule, then denies it on the other.

It's not possible to be more hypocritical. If that's not hyper-partisan, nothing is.
 

[John Cuthber]

7 hours ago, mistermack said:

To put the UK Parliament back in charge of it's own country, they would need to fully leave the EU and depart the European convention on Human Rights.

Not that it's relevant but; No.

That's not true. The British parliament remained sovereign. It still is.

7 hours ago, mistermack said:

That was the case, although now, they can say, "this kind of law was ruled against by Europe" and override the express wishes of Parliament. 

Cite an example...


Anyway, it's interesting to note that the "majority" of senators who supported Kavanaugh are the elected representatives of a clear minority of the US population.

There's a serious problem with that sort of "democracy".

[HB of CJ]

The United States Constitution is not perfect, but very close.  The SCOTUS Justices are nominated by the President and confirmed by the US Senate.  Perhaps it is another example of the need of knowledgeable US Citizenship.   Voting is precious.  Use it wisely.  And ... in the final reflection Everything Is Political.  The US Constitution is NOT a living document.  It is pretty much etched deeply in stone.  To change any part of it is to change the United States.  We have had a long walk in the sun.

[Ten oz]

26 minutes ago, HB of CJ said:

The US Constitution is NOT a living document.  It is pretty much etched deeply in stone.  To change any part of it is to change the United States. 

Fortunately you are wrong. The Constitution thankfully has been changed. Admendments like the 13th abolishing slavery and  the 19th prohibiting denial of a vote based on gender are powerful examples. 

Quote

 

Article Five of the United States Constitutiondescribes the process whereby the Constitution, the nation's frame of government, may be altered. 

https://en.m.wikipedia.org/wiki/Article_Five_of_the_United_States_Constitution

 

 

[mistermack]

1 hour ago, John Cuthber said:

Not that it's relevant but; No.

That's not true. The British parliament remained sovereign. It still is.

I never said sovereign, so you're kicking your own straw man. Yes parliament is sovereign, but to EXERCISE that sovereignty, and defy the ECJ etc, we have to leave. Thankfully, the British public have decided to do just that. ( I didn't vote in the referendum, I was exactly fifty fifty so there was no point. I'm now fully sure that the voters got it right. )

1 hour ago, John Cuthber said:

Cite an example...

There's plenty of material here.        https://www.telegraph.co.uk/news/2016/06/22/the-eus-court-is-picking-apart-our-laws/    

1 hour ago, HB of CJ said:

Perhaps it is another example of the need of knowledgeable US Citizenship.

Good luck with that.    

[Ten oz]

9 hours ago, StringJunky said:

I did note that Kavanaugh expressly aspired to being apolitical in his judgements. I've read several judges express this view. It seemed to me that it is not desirable to be seen to be political in their judgements;.

Justice Thomas's wife Here is literally a conservative political lobbyist. Meanwhile all the Republican nominated Justices are affiliated with the same political action group, Here. There is nothing apolitical about it. The unaccountability of Justices, they can't be voted out, make them some of the most partisan ideologues in Washington.

[StringJunky]

1 hour ago, Ten oz said:

Justice Thomas's wife Here is literally a conservative political lobbyist. Meanwhile all the Republican nominated Justices are affiliated with the same political action group, Here. There is nothing apolitical about it. The unaccountability of Justices, they can't be voted out, make them some of the most partisan ideologues in Washington.

Did you not see the operative word 'aspired'? You are a sod for doing this.,

[iNow]

It’s hard to view the current situation academically. It’s too real and pervasive. 

[StringJunky]

3 hours ago, iNow said:

It’s hard to view the current situation academically. It’s too real and pervasive. 

If you notice, there's a notable divide between the US citizens here and those of us outside it. I suppose our relative detachment exists because we aren't personally involved in it but we do care about the situation.

Edited October 9, 2018 by StringJunky

[John Cuthber]

7 hours ago, mistermack said:

There's plenty of material here

Yes. that is certainly "material", but I didn't see any examples of where there's a conflict between UK and EU law.

If you can find any, please start another thread, rather than cluttering this one with something totally off- topic.

 

7 hours ago, mistermack said:

Thankfully, the British public have decided to do just that.

The evidence suggests that we changed our minds when it became clear we had been lied to.

Edited October 9, 2018 by John Cuthber

[mistermack]

3 hours ago, John Cuthber said:

Yes. that is certainly "material", but I didn't see any examples of where there's a conflict between UK and EU law.

If you can find any, please start another thread, rather than cluttering this one with something totally off- topic.

I'll happily ignore any request from you for citations in future then, as time-wasting.

 

3 hours ago, John Cuthber said:

The evidence suggests that we changed our minds when it became clear we had been lied to.

I changed my mind, when I saw what a nasty bunch Brussels became, when they saw a cash cow slipping through their fingers. There's no way that I'D be paying their pensions, if I had a choice. 

[Ten oz]

5 hours ago, StringJunky said:

If you notice, there's a notable divide between the US citizens here and those of us outside it. I suppose our relative detachment exists because we aren't personally involved in it but we do care about the situation.

In my opinion the problem with the exploitation of Supreme Court is actually rooted in the dysfunction of Congress. Many things which end up decided by the Supreme Court (gun laws, abortion, healthcare taxes, marriage, etc) could be resolved in Congress if members were willing to tackle them. The matters only remain legally ambiguous enough to head to the Supreme Court because Congress intentionally puts them off in hopes that courts will decide. In turn that makes it critical that judges are political ideologues and not apolitical centerists. Neither the portion of the public which follows politics or politicians view justices as impartial. People in the U.S. are resigned to the fact that abortion, gun laws, and etc are court battles rather than legislative ones. This is because in the U.S. democracy itself dysfunctional. Republicans have lost the popular vote on 6 of the last 7 national elections yet control every branch of govt. That shouldn't be possible in a healthy Democratic system. Because Republicans control Congress (have so for a decade) but do not have the popular support of the nation they are unable to advance policy. Instead they work to stall policy and look to the courts much as possible for assistance. Things like legalizied pot, govt managed healthcare, gun control, and etc have overwhelming public support yet Congress won't act and the matters.  

Edited October 9, 2018 by Ten oz

[StringJunky]

30 minutes ago, Ten oz said:

In my opinion the problem with the exploitation of Supreme Court is actually rooted in the dysfunction of Congress. Many things which end up decided by the Supreme Court (gun laws, abortion, healthcare taxes, marriage, etc) could be resolved in Congress if members were willing to tackle them. The matters only remain legally ambiguous enough to head to the Supreme Court because Congress intentionally puts them off in hopes that courts will decide. In turn that makes it critical that judges are political ideologues and not apolitical centerists. Neither the portion of the public which follows politics or politicians view justices as impartial. People in the U.S. are resigned to the fact that abortion, gun laws, and etc are court battles rather than legislative ones. This is because in the U.S. democracy itself dysfunctional. Republicans have lost the popular vote on 6 of the last 7 national elections yet control every branch of govt. That shouldn't be possible in a healthy Democratic system. Because Republicans control Congress (have so for a decade) but do not have the popular support of the nation they are unable to advance policy. Instead they work to stall policy and look to the courts much as possible for assistance. Things like legalizied pot, govt managed healthcare, gun control, and etc have overwhelming public support yet Congress won't act and the matters.  

Perhaps part of the problem is having a written constitution, which tends to set much in stone and inhibits progress in evolving as a society through the wisdom of ongoing experience.  It bemuses me when people talk of the "Founding Fathers" in re such reverential tones and what they decided shall be forevermore. I suspect many hang on to the bits that currently suit them, rather than wholeheartedly believing in all the principles.

IIRC  in the UK, Labour won the popular vote but didn't win the election because they didn't win the seats. Gerrymandering is probably a problem here as much as in the US. One thing that could be looked into is finding a fair way to set the county/state lines for election purposes; frequently buggering about with them on a partisan basis is not on really.

Edited October 9, 2018 by StringJunky

[Ten oz]

35 minutes ago, StringJunky said:

Perhaps part of the problem is having a written constitution, which tends to set much in stone and inhibits progress in evolving as a society through the wisdom of ongoing experience.  It bemuses me when people talk of the "Founding Fathers" in re such reverential tones and what they decided shall be forevermore. I suspect many hang on to the bits that currently suit them, rather than wholeheartedly believing in all the principles.

IIRC  in the UK, Labour won the popular vote but didn't win the election because they didn't win the seats. Gerrymandering is probably a problem here as much as in the US. One thing that could be looked into is finding a fair way to set the county/state lines for election purposes; frequently buggering about with them on a partisan basis is not on really.

The Constitution is the problem. As designed the Constitution can be amended, Article Five. Talk of the "Founding Fathers" is just a strawman conservatives in the U.S. use to justify disenfranchisement. The Constitution was never meant to be viewed through the written in stone lense. There has been 27 amendments made to the U.S. Constitution but none on the last 46yrs which is the longest gap without an amendment in the nation's history. The fallacy of the Constitution being a bibical like document which is unalterable has stymied our (U.S.) system of govt. Nothing in the U.S. Constitution prevents Congress from writing and passing any law we the people want.