Law The Search For The 114th Supreme Court Justice: The Witch-Hunt Against Judge Brett Kavanaugh

[glenwo2]

THIS part is the most awkward moment of the hearing.

 

[glenwo2]

Yeah he felt sorta slippery on that one. She had no recovery though. Why didnt she blast him out of the water if she had something?

It's like she had a gun in her hand, while he was cornered.....but she then discovered that she was out of bullets.

 

[computer fogie]

Now it really looks like this crook was picked because he wants to protect Trump. "Hypothetical question" my ass.

"US President Donald Trump's Supreme Court nominee has declined to say whether he thinks sitting presidents can be made to comply with a legal subpoena.

In a second day of Senate hearings, Brett Kavanaugh said no-one was above the law but he would not be drawn on what he called a hypothetical question.

He also declined to say if he thought presidents could pardon themselves."

https://www.bbc.com/news/world-us-canada-45429016

 

[Arkain2K]

Now it really looks like this crook was picked because he wants to protect Trump. "Hypothetical question" my ass.

"US President Donald Trump's Supreme Court nominee has declined to say whether he thinks sitting presidents can be made to comply with a legal subpoena.

In a second day of Senate hearings, Brett Kavanaugh said no-one was above the law but he would not be drawn on what he called a hypothetical question.

He also declined to say if he thought presidents could pardon themselves."

https://www.bbc.com/news/world-us-canada-45429016

So now we gonna pretend that the long-held standard set by Justice Ruth Bader Ginsburg suddenly doesn't exists anymore? Or do you actually don't know it existed, even after watching so many Confirmation hearings over the years?

Keep in mind that RBG was not the only judge who made an excellent argument as to why judges should NOT be asked to provide unfounded opinions on hypothetical cases - Supreme Court Justice Stephen Breyer, John G. Roberts, Elena Kagan, Sotomayor, and Gorsuch all (rightfully) followed the same doctrine in their confirmation hearings, and absolutely no one from both sides of the isle ever had a problem with that perfectly sound legal reasoning, and thus there were no selective-outrage on their refusal to judge hypothetical cases without evidence at any of their confirmation hearings.

That is until now, when there's an active witch hunt on a Federal judge who was unanimously deemed to be Well Qualified for the Supreme Court by the American Bar Association.

Here's a primer from the Wall Street Journal for you and anyone else who might still be ignorant on the subject matter:

Kavanaugh and the Ginsburg Standard
‘No hints, no forecasts, no previews’
By David B. Rivkin Jr. and Andrew M. Grossman | Sept. 3, 2018

​

Don’t blame Brett Kavanaugh when he demurs at his confirmation hearing from answering questions on legal issues that might come before the Supreme Court. It’s the senators who will be in the wrong, for demanding commitments that no judicious nominee could provide. To answer “direct questions on stare decisis on many other matters, including Roe and health care”—as Minority Leader Chuck Schumer has called for—would itself be disqualifying.

That principle has come to be called the Ginsburg Standard, after Justice Ruth Bader Ginsburg. As she explained in the opening statement of her 1993 confirmation hearing: “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case—it would display disdain for the entire judicial process.” Or, as she later responded to a question about constitutional protections against discrimination based on sexual orientation: “No hints, no forecasts, no previews.”

It would be a mistake to associate the rule too closely with Justice Ginsburg, who honored it inconsistently at her hearing, or to view it as driven only by policy considerations. In fact, the standard has deep roots in the law and history.

Begin with the Constitution. The Appointments Clause provides that judges, including Supreme Court justices, are appointed by the president “with the Advice and Consent of the Senate.” From the nomination of John Jay as the first chief justice in 1789 through the mid-1950s, public confirmation hearings were rare. Few nominees attended them when they did occur, and only a handful testified. Senators had no occasion to grandstand by demanding that a nominee declare his stance on legal controversies.

Since hearings became the norm, the number of questions asked of nominees has exploded, with recent nominees facing more than 700 apiece. Yet two aspects of the process haven’t changed. The first is the refusal of nominees to opine on actual or hypothetical cases that may come before the high court. The second is senators’ griping in response. At a 1968 hearing, Sen. Sam Ervin (D., N.C.) bemoaned that the nominee, Judge Homer Thornberry, had “virtually created a new right not found in the Constitution, which might well be designated as the judicial appointee’s right to refrain from self-incrimination.”

Ervin was wrong.

Judges are appointed to exercise the “judicial power.” As per the Constitution, this involves deciding specific “cases” or “controversies”—that is, concrete disputes involving real facts, as opposed to abstract questions of law. Judging, in turn, entails the application of law to the facts of a particular case. The facts matter greatly: The way in which the circumstances of a given case can be distinguished from one in the past or one in the future is often what creates the basis for a legal rule, because it is that distinction that becomes legally material.

Judges don’t decide cases in a vacuum or through divine inspiration. They do it in the crucible of adversarial testing. Appellate judges read the parties’ briefs. They hear the lawyers’ arguments. They review the precedents and the factual record. Then they piece it all together, rendering a decision that, in Justice Ginsburg’s formulation, “should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives present.” Opining on a legal question divorced from the context of a particular case is not judging at all. It is speculation, a guess as to what the right rule might be.

In that sense, a senatorial demand that a nominee take one side or the other on a given “issue” is futile. Who is to say which of any number of possible factual circumstances might be relevant when, because there is no case, there are no facts? How can anyone judge the correctness of an argument when, because there are no parties, no one has argued for or against it? Answering at all would be deceptive.

It also would run up against another constitutional guidepost, the Fifth Amendment’s guarantee of due process of law. Litigants are entitled to a “fair trial in a fair tribunal,” including a judge who is impartial and whose mind is not implacably closed to persuasion. A nominee’s advance commitment to decide a question a certain way is incompatible with the appearance of fairness and impartiality that gives the law its legitimacy. It also compromises the independence of the judicial branch, a crucial check on overreaching by the political branches. Even a judge who has a decided an issue in an earlier case remains open to the prospect of going the other way in a later case, on different facts or different arguments. A judge who exchanges a commitment for a confirmation vote—or merely appears to do so—will forever be tainted.

All this holds true for issues already decided by the court, given that what constitutes “settled law” on the Supreme Court is in the eyes of the beholder. Nearly any issue may arise again, and the justices, unlike their counterparts on lower courts, are free to reconsider high-court precedent.

This week senators would do well to stick to more illuminating lines of inquiry: the more than 300 written opinions Judge Kavanaugh issued over his 12 years on the bench, his speeches and articles, his judicial philosophy, his character. There is no legitimate reason to demand hints, forecasts and previews that Judge Kavanaugh is duty-bound to deny.

https://www.wsj.com/articles/kavanaugh-and-the-ginsburg-standard-1536010512

 

[waiguoren]

So now we gonna pretend that the long-held standard set by Justice Ruth Bader Ginsburg suddenly doesn't exists anymore? Or do you actually don't know it existed, even after watching so many Confirmation hearings over the years?

Keep in mind that RBG was not the only judge who made an excellent argument as to why judges should NOT be asked to provide unfounded opinions on hypothetical cases - Supreme Court Justice Stephen Breyer, John G. Roberts, Elena Kagan, Sotomayor, and Gorsuch all (rightfully) followed the same doctrine in their confirmation hearings, and absolutely no one from both sides of the isle ever had a problem with that perfectly sound legal reasoning, and thus there were no selective-outrage on their refusal to judge hypothetical cases without evidence at any of their confirmation hearings.

That is until now, when there's an active witch hunt on a Federal judge who was unanimously deemed to be Well Qualified for the Supreme Court by the American Bar Association.

Here's a primer from the Wall Street Journal for you and anyone else who might still be ignorant on the subject matter:

Kavanaugh and the Ginsburg Standard
‘No hints, no forecasts, no previews’
By David B. Rivkin Jr. and Andrew M. Grossman | Sept. 3, 2018

​

Don’t blame Brett Kavanaugh when he demurs at his confirmation hearing from answering questions on legal issues that might come before the Supreme Court. It’s the senators who will be in the wrong, for demanding commitments that no judicious nominee could provide. To answer “direct questions on stare decisis on many other matters, including Roe and health care”—as Minority Leader Chuck Schumer has called for—would itself be disqualifying.

That principle has come to be called the Ginsburg Standard, after Justice Ruth Bader Ginsburg. As she explained in the opening statement of her 1993 confirmation hearing: “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case—it would display disdain for the entire judicial process.” Or, as she later responded to a question about constitutional protections against discrimination based on sexual orientation: “No hints, no forecasts, no previews.”

It would be a mistake to associate the rule too closely with Justice Ginsburg, who honored it inconsistently at her hearing, or to view it as driven only by policy considerations. In fact, the standard has deep roots in the law and history.

Begin with the Constitution. The Appointments Clause provides that judges, including Supreme Court justices, are appointed by the president “with the Advice and Consent of the Senate.” From the nomination of John Jay as the first chief justice in 1789 through the mid-1950s, public confirmation hearings were rare. Few nominees attended them when they did occur, and only a handful testified. Senators had no occasion to grandstand by demanding that a nominee declare his stance on legal controversies.

Since hearings became the norm, the number of questions asked of nominees has exploded, with recent nominees facing more than 700 apiece. Yet two aspects of the process haven’t changed. The first is the refusal of nominees to opine on actual or hypothetical cases that may come before the high court. The second is senators’ griping in response. At a 1968 hearing, Sen. Sam Ervin (D., N.C.) bemoaned that the nominee, Judge Homer Thornberry, had “virtually created a new right not found in the Constitution, which might well be designated as the judicial appointee’s right to refrain from self-incrimination.”

Ervin was wrong.

Judges are appointed to exercise the “judicial power.” As per the Constitution, this involves deciding specific “cases” or “controversies”—that is, concrete disputes involving real facts, as opposed to abstract questions of law. Judging, in turn, entails the application of law to the facts of a particular case. The facts matter greatly: The way in which the circumstances of a given case can be distinguished from one in the past or one in the future is often what creates the basis for a legal rule, because it is that distinction that becomes legally material.

Judges don’t decide cases in a vacuum or through divine inspiration. They do it in the crucible of adversarial testing. Appellate judges read the parties’ briefs. They hear the lawyers’ arguments. They review the precedents and the factual record. Then they piece it all together, rendering a decision that, in Justice Ginsburg’s formulation, “should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives present.” Opining on a legal question divorced from the context of a particular case is not judging at all. It is speculation, a guess as to what the right rule might be.

In that sense, a senatorial demand that a nominee take one side or the other on a given “issue” is futile. Who is to say which of any number of possible factual circumstances might be relevant when, because there is no case, there are no facts? How can anyone judge the correctness of an argument when, because there are no parties, no one has argued for or against it? Answering at all would be deceptive.

It also would run up against another constitutional guidepost, the Fifth Amendment’s guarantee of due process of law. Litigants are entitled to a “fair trial in a fair tribunal,” including a judge who is impartial and whose mind is not implacably closed to persuasion. A nominee’s advance commitment to decide a question a certain way is incompatible with the appearance of fairness and impartiality that gives the law its legitimacy. It also compromises the independence of the judicial branch, a crucial check on overreaching by the political branches. Even a judge who has a decided an issue in an earlier case remains open to the prospect of going the other way in a later case, on different facts or different arguments. A judge who exchanges a commitment for a confirmation vote—or merely appears to do so—will forever be tainted.

All this holds true for issues already decided by the court, given that what constitutes “settled law” on the Supreme Court is in the eyes of the beholder. Nearly any issue may arise again, and the justices, unlike their counterparts on lower courts, are free to reconsider high-court precedent.

This week senators would do well to stick to more illuminating lines of inquiry: the more than 300 written opinions Judge Kavanaugh issued over his 12 years on the bench, his speeches and articles, his judicial philosophy, his character. There is no legitimate reason to demand hints, forecasts and previews that Judge Kavanaugh is duty-bound to deny.

https://www.wsj.com/articles/kavanaugh-and-the-ginsburg-standard-1536010512

 

[waiguoren]

 

[Joe]

well what you know. Why would Republicans want to keep this secret?

 

[Diamond Jim]

 

[KeepItRealist]

Does no one else see the supreme irony in these feminists dressing up like characters in the Handmaiden's Tale to protest Pence and Kavanaugh while they the people who support crap like the Me Too movement and affirmative consent among other things that seeks to enforce an extreme Purtian attitude towards contact between men and women? It's too much.

 

[waiguoren]

Does no one else see the supreme irony in these feminists dressing up like characters in the Handmaiden's Tale to protect Pence and Kavanaugh while they the people who support crap like the Me Too movement and affirmative consent among other things that seeks to enforce an extreme Purtian attitude towards contact between men and women? It's too much.

Most women desire attention strongly. It is their nature. Self-contradiction will not stop them in their quest.

 

[waiguoren]

lmfao this guy is such a grandstander.

Can't hate on him, he knows he has to vanquish 28 Democratic opponents en route to the showdown with orange man.

 

[KeepItRealist]

Most women desire attention strongly. It is their nature. Self-contradiction will not stop them in their quest.

The irony is just way too much. You got these screeching women who basically advocate that there be witnesses whenever a man and woman are alone together in order ensure nothing inappropriate happens calling Pence and Kavanaugh the backward Puritans. And no one calls them on it.

 

[waiguoren]

The irony is just way too much. You got these screeching women who basically advocate that there be witnesses whenever a man and woman are alone together in order ensure nothing inappropriate happens calling Pence and Kavanaugh the backward Puritans. And no one calls them on it.

Meh, I think they would say they just want a chance to consent before sexual acts + abortion with few/no limitations. Also they will accuse conservative men of opposing abortion right up until their mistresses get pregnant.

 

[KeepItRealist]

Meh, I think they would say they just want a chance to consent before sexual acts + abortion with few/no limitations. Also they will accuse conservative men of opposing abortion right up until their mistresses get pregnant.

With affirmative consent laws you basically have to film the woman consenting to have sex while administering a breathalyzer in order to protect yourself from sexual assault allegations.

 

[waiguoren]

With affirmative consent laws you basically have to film the woman consenting to have sex while administering a breathalyzer in order to protect yourself from sexual assault allegations.

trolling?

 

[glenwo2]

So now we gonna pretend that the long-held standard set by Justice Ruth Bader Ginsburg suddenly doesn't exists anymore? Or do you actually don't know it existed, even after watching so many Confirmation hearings over the years?

Keep in mind that RBG was not the only judge who made an excellent argument as to why judges should NOT be asked to provide unfounded opinions on hypothetical cases - Supreme Court Justice Stephen Breyer, John G. Roberts, Elena Kagan, Sotomayor, and Gorsuch all (rightfully) followed the same doctrine in their confirmation hearings, and absolutely no one from both sides of the isle ever had a problem with that perfectly sound legal reasoning, and thus there were no selective-outrage on their refusal to judge hypothetical cases without evidence at any of their confirmation hearings.

That is until now, when there's an active witch hunt on a Federal judge who was unanimously deemed to be Well Qualified for the Supreme Court by the American Bar Association.

Here's a primer from the Wall Street Journal for you and anyone else who might still be ignorant on the subject matter:

Kavanaugh and the Ginsburg Standard
‘No hints, no forecasts, no previews’
By David B. Rivkin Jr. and Andrew M. Grossman | Sept. 3, 2018

​

Don’t blame Brett Kavanaugh when he demurs at his confirmation hearing from answering questions on legal issues that might come before the Supreme Court. It’s the senators who will be in the wrong, for demanding commitments that no judicious nominee could provide. To answer “direct questions on stare decisis on many other matters, including Roe and health care”—as Minority Leader Chuck Schumer has called for—would itself be disqualifying.

That principle has come to be called the Ginsburg Standard, after Justice Ruth Bader Ginsburg. As she explained in the opening statement of her 1993 confirmation hearing: “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case—it would display disdain for the entire judicial process.” Or, as she later responded to a question about constitutional protections against discrimination based on sexual orientation: “No hints, no forecasts, no previews.”

It would be a mistake to associate the rule too closely with Justice Ginsburg, who honored it inconsistently at her hearing, or to view it as driven only by policy considerations. In fact, the standard has deep roots in the law and history.

Begin with the Constitution. The Appointments Clause provides that judges, including Supreme Court justices, are appointed by the president “with the Advice and Consent of the Senate.” From the nomination of John Jay as the first chief justice in 1789 through the mid-1950s, public confirmation hearings were rare. Few nominees attended them when they did occur, and only a handful testified. Senators had no occasion to grandstand by demanding that a nominee declare his stance on legal controversies.

Since hearings became the norm, the number of questions asked of nominees has exploded, with recent nominees facing more than 700 apiece. Yet two aspects of the process haven’t changed. The first is the refusal of nominees to opine on actual or hypothetical cases that may come before the high court. The second is senators’ griping in response. At a 1968 hearing, Sen. Sam Ervin (D., N.C.) bemoaned that the nominee, Judge Homer Thornberry, had “virtually created a new right not found in the Constitution, which might well be designated as the judicial appointee’s right to refrain from self-incrimination.”

Ervin was wrong.

Judges are appointed to exercise the “judicial power.” As per the Constitution, this involves deciding specific “cases” or “controversies”—that is, concrete disputes involving real facts, as opposed to abstract questions of law. Judging, in turn, entails the application of law to the facts of a particular case. The facts matter greatly: The way in which the circumstances of a given case can be distinguished from one in the past or one in the future is often what creates the basis for a legal rule, because it is that distinction that becomes legally material.

Judges don’t decide cases in a vacuum or through divine inspiration. They do it in the crucible of adversarial testing. Appellate judges read the parties’ briefs. They hear the lawyers’ arguments. They review the precedents and the factual record. Then they piece it all together, rendering a decision that, in Justice Ginsburg’s formulation, “should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives present.” Opining on a legal question divorced from the context of a particular case is not judging at all. It is speculation, a guess as to what the right rule might be.

In that sense, a senatorial demand that a nominee take one side or the other on a given “issue” is futile. Who is to say which of any number of possible factual circumstances might be relevant when, because there is no case, there are no facts? How can anyone judge the correctness of an argument when, because there are no parties, no one has argued for or against it? Answering at all would be deceptive.

It also would run up against another constitutional guidepost, the Fifth Amendment’s guarantee of due process of law. Litigants are entitled to a “fair trial in a fair tribunal,” including a judge who is impartial and whose mind is not implacably closed to persuasion. A nominee’s advance commitment to decide a question a certain way is incompatible with the appearance of fairness and impartiality that gives the law its legitimacy. It also compromises the independence of the judicial branch, a crucial check on overreaching by the political branches. Even a judge who has a decided an issue in an earlier case remains open to the prospect of going the other way in a later case, on different facts or different arguments. A judge who exchanges a commitment for a confirmation vote—or merely appears to do so—will forever be tainted.

All this holds true for issues already decided by the court, given that what constitutes “settled law” on the Supreme Court is in the eyes of the beholder. Nearly any issue may arise again, and the justices, unlike their counterparts on lower courts, are free to reconsider high-court precedent.

This week senators would do well to stick to more illuminating lines of inquiry: the more than 300 written opinions Judge Kavanaugh issued over his 12 years on the bench, his speeches and articles, his judicial philosophy, his character. There is no legitimate reason to demand hints, forecasts and previews that Judge Kavanaugh is duty-bound to deny.

https://www.wsj.com/articles/kavanaugh-and-the-ginsburg-standard-1536010512

Still waiting for @computer fogie 's rebuttal to this......

Tick Tock, as they say.

 

[lifelessheap]

trolling?

I mean, have you seen the insanity on college campuses? It takes video evidence to escape the lies of angry women.

 

[waiguoren]

I mean, have you seen the insanity on college campuses? It takes video evidence to escape the lies of angry women.

what if it's he said v. she said?

 

[waiguoren]

Watching PBS's live stream. They have a panel of two irritated anti-Kavanaugh women vs. one pro-Kavanaugh dude. The dude is barely getting to speak. The host, Judy Woodruff, is skeptical of Kavanaugh. Where's the balance? Defund this nonsense.

 

[Diamond Jim]

Strange republicans are fighting to not releasing emails. It seems there was an issue about this not too long ago.