Abolish the Supreme Court?

Harshaw · Oct 12, 2018

This interviewee at Vox thinks so:

https://www.vox.com/2018/10/12/17950896/supreme-court-brett-kavanaugh-constitution

He's a Harvard law professor.

Personally, I don't see Vox running this article as anything more than "we didn't get our way on Kavanaugh, so get rid of the whole Supreme Court!" Which is ludicrously childish. Destroying the system because it doesn't produce the results you want is asinine.

But that's just me. What do you say?

Skeptic Bob · Oct 12, 2018

I still trust SCOTUS more than Congress or the Presidency, so my answer is no. I would be in favor of getting rid of the Presidency before getting rid of SCOTUS.

Taylor · Oct 12, 2018

He's a smart guy. He knows that's never going to happen. This is just a way of delegitimizing future decisions because he fears they won't go the way he'd like them to.

nota bene · Oct 12, 2018

Law prof Tushnet says that if he were a judge, he would promote the cause of socialism. And he wants to return the Constitution to the people. Decide for yourself what that little euphemism means.

https://www.debatepolitics.com/gene...bolishing-supreme-court-3.html#post1069154766

Cardinal · Oct 12, 2018

Since this is essentially a duplicate thread of the one in the General Politics subforum, I'll just use the same post here that I wrote there:

It's a bit premature to suggest abolishing the Supreme Court. However, if we're going to accept that the nomination and confirmation process is to be a completely partisan affair from here on out, then it at least makes sense to end lifetime seats. It makes a mockery of the court to stack it with unabashed political operatives who can never, ever be removed except by the most numerically improbable process ever.

nota bene · Oct 12, 2018

It's a mistake to assume that a Justice, whether Kagan or Kavanaugh, is going to make decisions based on political lean rather than on what the Constitution says.

Harshaw · Oct 12, 2018

nota bene said:
Law prof Tushnet says that if he were a judge, he would promote the cause of socialism. And he wants to return the Constitution to the people. Decide for yourself what that little euphemism means.

https://www.debatepolitics.com/gene...bolishing-supreme-court-3.html#post1069154766

Relatively clear what it means.

Anyway, Tushnet is Tushnet, but it's Vox who sought him out because Vox thinks the idea is timely. Tushnet thinks what he thinks regardless of Kavanaugh, and long before Kavanaugh.

Harshaw · Oct 12, 2018

Cardinal said:
Since this is essentially a duplicate thread of the one in the General Politics subforum, I'll just use the same post here that I wrote there:

It's a bit premature to suggest abolishing the Supreme Court. However, if we're going to accept that the nomination and confirmation process is to be a completely partisan affair from here on out, then it at least makes sense to end lifetime seats. It makes a mockery of the court to stack it with unabashed political operatives who can never, ever be removed except by the most numerically improbable process ever.

Actually, lifetime appointments were put in place precisely because the Founders not only assumed that all government matters would become fights among factions, i.e., completely partisan, they wanted to protect the Court from transient accusations of it, such as those you are levying.

I mean, you can't point to a single thing that makes Kavanaugh obviously "partisan" that VanceMack didn't point to about Kagan -- who had never even sat as a judge -- in that other thread, but you abjectly refuse to consider her "partisan" pick despite her long history as a Democrat operative.

That's exactly the kind of hackish, blinders-on-the-left-side thoughts you're presenting that lifetime appointments are a bulwark against. Even your post here reeks of "these judges won't vote the way I like, so they should be limited."

Cardinal · Oct 12, 2018

nota bene said:
It's a mistake to assume that a Justice, whether Kagan or Kavanaugh, is going to make decisions based on political lean rather than on what the Constitution says.

Kavanaugh called Ford's charge a Clinton revenge scheme, and told Democrats that what goes around comes around. He also lied repeatedly about his drinking habits.

Putting Kagan and Kavanaugh in the same sentence is nonsensical.

Harshaw · Oct 12, 2018

Cardinal said:
Kavanaugh called Ford's charge a Clinton revenge scheme, and told Democrats that what goes around comes around. He also lied repeatedly about his drinking habits.

Even if it were true about his "lying," you were calling him a partisan pick long before that. So spare everyone the sanctimony; you had made up your mind from the beginning. The comparison with Kagan is entirely apt, except that Kavanaugh had a bona fide judicial record to look it. But that record was something you pointedly never cared about.

Mithros · Oct 12, 2018

nota bene said:
It's a mistake to assume that a Justice, whether Kagan or Kavanaugh, is going to make decisions based on political lean rather than on what the Constitution says.

??? Kavanaugh is one of the most partisan judges in the US. Every objective measure of judicial partisanship puts him in the top 1% of federal judges. His judicial philosophy depends more on the political outcome of the decision than the facts of the case. His views on executive power were extremely narrow when Clinton was president. One president later those extreme narrow views had morphed into an extreme expansive view.

He dropped the facade in the senate hearing, ranting about Democratic conspiracies and revenge for the Clintons. He dishonestly characterized evidence and testimony about him, a nono for anyone in the legal profession and a clear sign that he's incapable of objective reasoning. As a prosecutor he pushed articles of impeachment for Clinton not for outright lies, but for dissembling the truth. He didn't apply this standard to himself. In fact he didn't even bother to dissemble. He just lied.

There's a reason why a vast number of legal experts opposed his nomination. There's a reason why he was downgraded by the ABA once before. There's a reason why he failed prior nominations. There's a reason why the ABA is reevaluating his current rating. And there's a reason why two serious judges, appointed by Republicans (not that that should matter), found that over a dozen complaints against him are credible and need to be investigated. Kavanaugh is a political operative in the judiciary. He's conservative only as much as the GOP is conservative.

Harshaw · Oct 12, 2018

Mithros said:
??? Kavanaugh is one of the most partisan judges in the US. Every objective measure of judicial partisanship puts him in the top 1% of federal judges.

Demonstrate that. State the "objective measures" and then show what he's done against those measures. Then provide the comparisons which place him in the "top 1%" for it.

There's a reason why he was downgraded by the ABA once before.

He was "downgraded" because he had no record as a judge at the time; that was stated explicitly. Twelve years later, after he did have a long record as a judge, the ABA gave him their top rating.

Nap · Oct 12, 2018

nota bene said:
It's a mistake to assume that a Justice, whether Kagan or Kavanaugh, is going to make decisions based on political lean rather than on what the Constitution says.

I think this is largely due to the fact that we have become so polarized that neither side views the constitution the same way. I do think that someone more conservative is more likely to make decisions based on what the constitution says as it is in their nature to preserve the status quo and more likely to show judicial restraint while someone more left leaning is more likely to favor judicial activism. I would be curious if there has been a study on judges and the percentage of judgements made that run counter to their ideological lean. If I were a Senator during a confirmation the only real question I would care to ask is how many decisions have they made that they personally disagree with and why did they make them. If a judge were to tell me that they personally agreed with every decision they have made it would automatically be a no vote from me as that would likely mean they are basing their judgements on their ideology rather that what the law says.

jimbo · Oct 12, 2018

nota bene said:
It's a mistake to assume that a Justice, whether Kagan or Kavanaugh, is going to make decisions based on political lean rather than on what the Constitution says.

I agree that's the ideal. I don't think it's the reality. Fact is the majority of the cases are settled along party lines.

Harshaw · Oct 12, 2018

jimbo said:
I agree that's the ideal. I don't think it's the reality. Fact is the majority of the cases are settled along party lines.

Not really, no.

Mithros · Oct 12, 2018

Harshaw said:
Demonstrate that. State the "objective measures" and then show what he's done against those measures. Then provide the comparisons which place him in the "top 1%" for it.

e.g.

Dissent rate from February to November of presidential election years vs dissent rate the other 80% of the time. ie.. how much of an effect does the political coverage of the presidential elections have on judicial temperament.
Dissent rate vs peers.
How often are they dissented against vs peers.
Dissent rate differences between GOP and Dem appointed judges.

Kavanaugh's results are extreme.

Beginning the February before a presidential election, Kavanaugh has dissented 15 percent of the time; at other times, he has dissented in just 5 percent of cases, a 200% increase. Kavanaugh’s “electoral dissent” is especially prevalent on highly political topics such as economic regulation, constitutional law and due process. Gorsuch, Garland and Bork were significantly less affected by external politics.
Across the D.C. Circuit during Kavanaugh’s tenure , 3 percent of the votes were dissents. But Kavanaugh has cast a dissenting vote 7 percent of the time out of the 407 published cases he heard until 2013. When Kavanaugh authored an opinion, 14 percent of the time his co-panelists dissented against him, compared with 10 percent of opinions that provoked dissents when he wasn’t the author. He's considerably more divisive than even Bork.
When sitting with two panelists appointed by Democrats, which occured 56 times, Kavanaugh dissented 19 percent of the time; in other cases, he dissented 5 percent of the time, which is nearly double the rate of his colleagues.

https://docs.google.com/document/d/13f3K_K_fHqgB1p-S9wZCAMjFDUcEuOWoeTG9uw_Uw4I/edit
http://users.nber.org/~dlchen/papers/Electoral_Cycles_Among_US_Courts_of_Appeals_Judges.pdf
http://users.nber.org/~dlchen/papers/Judicial_Sentiments_and_Social_Attitudes.pdf

Harshaw · Oct 12, 2018

Mithros said:
e.g.

Dissent rate from February to November of presidential election years vs dissent rate the other 80% of the time. ie.. how much of an effect does the political coverage of the presidential elections have on judicial temperament.

Dissent rate vs peers.

How often are they dissented against vs peers.

Dissent rate differences between GOP and Dem appointed judges.

Kavanaugh's results are extreme.

Beginning the February before a presidential election, Kavanaugh has dissented 15 percent of the time; at other times, he has dissented in just 5 percent of cases, a 200% increase. Kavanaugh’s “electoral dissent” is especially prevalent on highly political topics such as economic regulation, constitutional law and due process. Gorsuch, Garland and Bork were significantly less affected by external politics.

Across the D.C. Circuit during Kavanaugh’s tenure , 3 percent of the votes were dissents. But Kavanaugh has cast a dissenting vote 7 percent of the time out of the 407 published cases he heard until 2013. When Kavanaugh authored an opinion, 14 percent of the time his co-panelists dissented against him, compared with 10 percent of opinions that provoked dissents when he wasn’t the author. He's considerably more divisive than even Bork.

When sitting with two panelists appointed by Democrats, which occured 56 times, Kavanaugh dissented 19 percent of the time; in other cases, he dissented 5 percent of the time, which is nearly double the rate of his colleagues.

https://docs.google.com/document/d/13f3K_K_fHqgB1p-S9wZCAMjFDUcEuOWoeTG9uw_Uw4I/edit
http://users.nber.org/~dlchen/papers/Electoral_Cycles_Among_US_Courts_of_Appeals_Judges.pdf
http://users.nber.org/~dlchen/papers/Judicial_Sentiments_and_Social_Attitudes.pdf

"Dissent rate"? Are you kidding me? Who told you that was some kind of "objective measure" of "judicial partisanship"? Or was that something you just made up yourself?

In those cases, what made the reasoning in his dissents wrong?

And, when Kavanaugh and Merrick Garland join each other's opinions over 90% of the time, that means what to you?

Mithros · Oct 12, 2018

Harshaw said:
"Dissent rate"? Are you kidding me? Who told you that was some kind of "objective measure" of "judicial partisanship"? Or was that something you just made up yourself?

In those cases, what made the reasoning in his dissents wrong?

And, when Kavanaugh and Merrick Garland join each other's opinions over 90% of the time, that means what to you?

****cough****
http://users.nber.org/~dlchen/papers/Electoral_Cycles_Among_US_Courts_of_Appeals_Judges.pdf

Examining 18,686 judicial rulings, collected over 77 years, by the 12 U.S. Circuit Courts, also known as Courts of Appeals or Federal appellate courts we see that the majority of decisions were unanimous (92%). So lauding 90% as some kind of heroic nonpartisan standard is laughable.

Harshaw · Oct 12, 2018

Mithros said:
****cough****
http://users.nber.org/~dlchen/papers/Electoral_Cycles_Among_US_Courts_of_Appeals_Judges.pdf

Don't choke to death.

I hate to break it to you, but a couple of dudes - only one of whom is a lawyer -- pushing some idea in an article in an economics journal does not an "objective measure" of judicial behavior make.

If you want to show that Kavanaugh's dissents are partisan, then you need to go into the dissents and demonstrate it. If you don't know the reasons why he dissented -- and you don't -- then you can't make any argument of partisanship.

So have at it. Keep in mind, Circuit Courts of Appeal are not static benches. The same three judges do not always sit together; the benches are frequently different. Thus, the "alignments" of the judges on any particular bench hearing a case change constantly, rendering some kind of statistic analysis based on numbers of dissents not only meaningless, but ludicrously meaningless as any kind of a measure of anything, much less "partisanship."

For all you know, his dissents could have been against "conservative" majorities. Or, they could have been against "conservative" majorities as often as they were against "liberal" majorities. You have no idea, because you have no idea of what his dissents argued.

You want to make a case of partisanship? Go into the substance of his work and find it. THIS is not it. THIS is stupid.

TO ADD IN YOUR EDIT:

Examining 18,686 judicial rulings, collected over 77 years, by the 12 U.S. Circuit Courts, also known as Courts of Appeals or Federal appellate courts we see that the majority of decisions were unanimous (92%). So lauding 90% as some kind of heroic nonpartisan standard is laughable.

Um, it was actually more than 90%; it was about 96%.

In any case, even your silly statistical analysis fails, because if you cite his "7%" dissents as being some kind of indicator, he's still voting with the court at a rate higher than the 77-year rate of unanimity.

Even if that analysis weren't silly, which it is.

Harshaw · Oct 12, 2018

nota bene said:
Law prof Tushnet says that if he were a judge, he would promote the cause of socialism. And he wants to return the Constitution to the people. Decide for yourself what that little euphemism means.

https://www.debatepolitics.com/gene...bolishing-supreme-court-3.html#post1069154766

Here's Tushnet in 2016, arguing a RADICAL use of the Supreme Court for extreme partisan purposes:

https://balkin.blogspot.com/2016/05/abandoning-defensive-crouch-liberal.html

It's a breathtaking read.

Mithros · Oct 12, 2018

Harshaw said:
Don't choke to death.

I hate to break it to you, but a couple of dudes - only one of whom is a lawyer -- pushing some idea in an article in an economics journal does not an "objective measure" of judicial behavior make.

If you want to show that Kavanaugh's dissents are partisan, then you need to go into the dissents and demonstrate it. If you don't know the reasons why he dissented -- and you don't -- then you can't make any argument of partisanship.

So have at it. Keep in mind, Circuit Courts of Appeal are not static benches. The same three judges do not always sit together; the benches are frequently different. Thus, the "alignments" of the judges on any particular bench hearing a case change constantly, rendering some kind of statistic analysis based on numbers of dissents not only meaningless, but ludicrously meaningless as any kind of a measure of anything, much less "partisanship."

For all you know, his dissents could have been against "conservative" majorities. Or, they could have been against "conservative" majorities as often as they were against "liberal" majorities. You have no idea, because you have no idea of what his dissents argued.

You want to make a case of partisanship? Go into the substance of his work and find it. THIS is not it. THIS is stupid.

TO ADD IN YOUR EDIT:

Um, it was actually more than 90%; it was about 96%.

In any case, even your silly statistical analysis fails, because if you cite his "7%" dissents as being some kind of indicator, he's still voting with the court at a rate higher than the 77-year rate of unanimity.

Even if that analysis weren't silly, which it is.

It doesn't take a genius to figure out that if 92% of cases result in a unanimous decision, than all of the useful data will be found in the 8% where one or more of the judges dissented. And likewise its' obviously unfair to judge trends by examining individual cases. (unless we have two cases on the same subject decided on different grounds with litigants of differing political views) These are almost always judgement cases, and it's possible for different people to come to different conclusions. It's only when you zoom out and look at a judges cumulative record and compare it to their peers that the true picture can be be seen.

And please, don't hold up lawyers as the gold standard to judge objectivity. Humans are bad at objectivity (and statistics). I'd put far more faith in a behavioral scientist's objective measures of subjectivity than I would a subjective lawyers highly subjective view.

We're all subject to biases and we we all underestimate how much our biases affect our decisions. But that doesn't mean we're all equal. Every federal judge will swear that they are entirely objective. And every federal judge will tend to dissent more in election years and less during times of war. But some are far better than others. Kavanaugh stands out as a particularly egregious example.

distraff · Oct 12, 2018

Harshaw said:
This interviewee at Vox thinks so:

https://www.vox.com/2018/10/12/17950896/supreme-court-brett-kavanaugh-constitution

He's a Harvard law professor.

Personally, I don't see Vox running this article as anything more than "we didn't get our way on Kavanaugh, so get rid of the whole Supreme Court!" Which is ludicrously childish. Destroying the system because it doesn't produce the results you want is asinine.

But that's just me. What do you say?

Republicans were talking this general way in 2015 when the Supreme Court upheld Obamacare and established gay marriage. The real problem is that we don't interpret the constitution literally anymore because its too hard to change so we just reinterpret. This leads to political interpretations, especially by the left, and the Supreme Court becoming a political tool rather than objective interpreters of the constitution.

slick · Oct 12, 2018

Cardinal said:
Kavanaugh called Ford's charge a Clinton revenge scheme, and told Democrats that what goes around comes around. He also lied repeatedly about his drinking habits.

Putting Kagan and Kavanaugh in the same sentence is nonsensical.

'Putting Kagan and Kavanaugh in the same sentence is nonsensical.' That is for certain.
Obama's with his appointees tried to check all the leftwing boxes he could with only
two appointees he thrilled the base with a minority & an alternate lifestyle comrade.

While Kavanagh & also Gorsuch, Trump's appointees are strict constitutionalists in line
with viewpoints of the first Chief Justice of the United States John Jay whose vision
kept the USA ahead of the pack for almost 200 years, until recent times.

And Trump's appointees will make a world of difference, imagine Mrs. Clinton's
choices. Maybe Obama himself would have been appointed or even the Harvard professor whose
now clamoring for the Supreme Court to be abolished because now the court is
loaded with judges who retain traditional American values.

Surrealistik · Oct 12, 2018

I don't like a partisan football of an institution with non-democratic lifetime appointments featuring individuals that are accountable to absolutely no one after they get in.

SCOTUS damned this country to plutocracy per its disastrous 1976 Buckey v Valeo ruling in an absolute master stroke of astonishingly terrible judgement, and consequently may have done, or at the very least, end up doing, more damage than any President, Congress or Senate in US history.

I don't think it should be abolished, but it should absolutely be reformed (and this was my view well before Kavanaugh's debacle). We also need to finally be honest with ourselves that it is, like every other chamber of federal governance, absolutely partisan and subject to politics and political bias; the so called 'impartiality' of justices is a bad joke, and if it weren't, these SCOTUS appointments wouldn't be such a ridiculous soap opera and major concern.

LadyMoonlight · Oct 12, 2018

Cardinal said:
Since this is essentially a duplicate thread of the one in the General Politics subforum, I'll just use the same post here that I wrote there:

It's a bit premature to suggest abolishing the Supreme Court. However, if we're going to accept that the nomination and confirmation process is to be a completely partisan affair from here on out, then it at least makes sense to end lifetime seats. It makes a mockery of the court to stack it with unabashed political operatives who can never, ever be removed except by the most numerically improbable process ever.

Please forgive an Aussie's ignorance, but are you stating that the Supreme Court has never, ever had judges appointed by any President based on the politics of any President's political lean? I know very little about American politics, basically what I learn about here, so I am curious because I have read people here who believe the opposite.

Abolish the Supreme Court?