Garland and Bork are not equivalent. Garland didn't get a hearing, much less a vote and he had a long judicial record. Bork got a hearing and was voted on. 58 Senators voted against Bork. He had a dreadful record in Nixon's justice department. There is no comparison and the Republicans who say the Democrats did it first, and turned Bork's name into a verb, are not being honest.
11
In President Ronald Reagan’s last year in office, 1987, as Chairman of the Judiciary Committee, Senator Joe Biden held hearings on President Reagan’s nominee to SCOTUS, Robert Bork. Bork’s nomination was rejected in the committee by a 9–5 vote. Bork decided on his own to pursue the nomination in the full senate where he was rejected 42-58.
Reagan then nominated Anthony Kennedy, who was approved in committee and Senate vote unanimously.
“There should be a full debate and a final Senate decision. In deciding on this course, I harbor no illusions. But a crucial principle is at stake. That principle is the way we select the men and women who guard the liberties of all the American people. That should not be done through public campaigns of distortion. If I withdraw now, that campaign would be seen as a success, and it would be mounted against future nominees. For the sake of the Federal judiciary and the American people, that must not happen. The deliberative process must be restored.” Robert Bork
Robert Bork had his "day in court". Merrick Garland did not.
Re-read Bork's comments above to appreciate the difference between Bork and Garland...
Reagan then nominated Anthony Kennedy, who was approved in committee and Senate vote unanimously.
“There should be a full debate and a final Senate decision. In deciding on this course, I harbor no illusions. But a crucial principle is at stake. That principle is the way we select the men and women who guard the liberties of all the American people. That should not be done through public campaigns of distortion. If I withdraw now, that campaign would be seen as a success, and it would be mounted against future nominees. For the sake of the Federal judiciary and the American people, that must not happen. The deliberative process must be restored.” Robert Bork
Robert Bork had his "day in court". Merrick Garland did not.
Re-read Bork's comments above to appreciate the difference between Bork and Garland...
10
"True, Anthony Kennedy sided with religious conservatives in the Hobby Lobby decision and on partial-birth abortion."
Ross, you're such a dishonest hack.
There is no such thing as "partial-birth abortion." It is a made-up term by anti-choice activists who want to scare you, and get you to think that the abortion is happening while the baby is crowing on it's due date. The correct medical terminology is "intact dilation and extraction." Be conservative if you insist on it, but quit spreading lies.
Ross, you're such a dishonest hack.
There is no such thing as "partial-birth abortion." It is a made-up term by anti-choice activists who want to scare you, and get you to think that the abortion is happening while the baby is crowing on it's due date. The correct medical terminology is "intact dilation and extraction." Be conservative if you insist on it, but quit spreading lies.
10
As long as you demand precedence for your religious beliefs over my constitutional rights, Mr. Douthat, I must continue to dismiss you as a flagrantly un-American crackpot.
What evil leftist conspiracy stole Souter's brain from the safe, sane right wing? Was George H.W. Bush deceived by liberal fifth columnists? I'll bet Alex Jones has a theory you'd enjoy.
What evil leftist conspiracy stole Souter's brain from the safe, sane right wing? Was George H.W. Bush deceived by liberal fifth columnists? I'll bet Alex Jones has a theory you'd enjoy.
6
Yes, Ross, Souter "betrayed" the Republicans by allowing his intellect and sense of humanity inform his responsibilities as a Supreme Court Justice. And all the racists and mysoginists who support a Trump wouldn't exist if only Souter had behaved like a "good" soldier.
9
...and then Goerge H. W. Bush was bullied into nominating Clarence Thomas. See Strange Justice, by Jane Mayer and Jill Abramson.
40
Republicans think it is ok for the Government, by outlawing abortion, to force other people's children (teenage girls) to have unwanted babies which they will not be able to pay for or care well for. One million unwanted babies, per year in the U.S. Souter's decisions are well considered. They should be well read by serious thinkers, lovers of human kind, and a peaceful social order.
The Reformation happened for good reason. Douthat is a retrogradationist,
believing that God comes through the policies of the Roman Catholic Church.
The Reformation happened for good reason. Douthat is a retrogradationist,
believing that God comes through the policies of the Roman Catholic Church.
61
Republicans will never repeal Roe vs Wade. It will eliminate the biggest political button that they can and do push in every election.
This wouldn't just be shooting yourself in the foot. This would be sawing off both of your legs.
Republicans who get into supreme court understand this very very well.
All these 5-4 close calls are just theater. The actual vote was, is, and always will be 9-0.
This wouldn't just be shooting yourself in the foot. This would be sawing off both of your legs.
Republicans who get into supreme court understand this very very well.
All these 5-4 close calls are just theater. The actual vote was, is, and always will be 9-0.
17
I would really like to wax erudite on this, as many other commenters have, but Douthat so exhausts me lately that all I can muster is:
Whatever, dude.
Whatever, dude.
33
I find it amusing that the party that screams the most, the Republicans, about the court being activist actually tells on themselves by wishing for an activist Supreme Court as long as it's activist in their favor.
What a person says, writes, puts into words always speaks volumes about who they are. It's the the human way. We are all telling on ourselves all the time but it's very hard for any one of us to actually see how much and how often we are always evidencing who we are.
What a person says, writes, puts into words always speaks volumes about who they are. It's the the human way. We are all telling on ourselves all the time but it's very hard for any one of us to actually see how much and how often we are always evidencing who we are.
17
When conservatives talk about liberalism, they seem to paint it as some malevolent, dark force. Maybe conservatives like Souter rule the way they do because it makes sense, and because it is the moral, right thing to do. Could that be so Mr. Douthat?
29
So, when it's Republicans, it's "conservative goals." When it's Democrats, it's "power grabs" ? [by Obama, of course].
34
As a liberal, I'm glad Souter saw the light. Wish more did so. Thank God he didn't restrain liberal ideals. Liberals and progressives drive the wheels of progress, while conservatives are dragged kicking and screaming. Yet, conservatives then end up benefitting from the liberal work as well, "Keep the government out of my Medicare." Enough said. Conservatives would have us back in the 1800s, when women and minorities were powerless and the rich white man reigned supreme. The Trump's presidency reflects a renewed effort to go back. We need another Souter, maybe two.
24
That's kind of like saying Nazis are responsible for the Cold War.
16
"An institutional, incrementalist like Chief Justice Roberts" ? The Chief Justice closes the courthouse doors (standing doctrine); interprets most statutes in favor of business against labor; in favor of whites vs. minority races; and construes statutes according to what he thinks the words mean, not what Congress likely intended the words to mean in light of the context in which they appear; the problem Congress was addressing and the way that Congress chose to address that problem. With respect to one major decision (Obamacare), the Chief would have destroyed a major statute intended to help millions of people in the most fundamental of ways had he not avoided the rabid infection of right wing politics that justices Scalia, Thomas and Alito bring with them to their jobs.
15
I know that Ross Douthat is too obtuse to be embarrassed to write such bilge, but I would have thought The New York Times was smarter than that. Let's put it another way: David Souter is, ideologically, to the right of Richard Nixon and Gerald Ford. Remember them? They used to be called conservatives. Granting Nixon's now-proven treason in the 1968 election, at least they weren't clinically insane.
15
Ross,
Perhaps you were too young to really pay attention or understand what happened to Robert Bork.
Bork was "Borked" by himself. All this conservative moaning about what those terrible liberals did to Bork miss the essential point, that came out during his confirmation hearings. He was done in by his own big mouth, espousing often outrageous views and going out of his way to provoke his opponents with factually inaccurate revisions of history. Even some Republicans voted against him, including my senator, John Warner of VIrginia, to his everlasting credit.
Perhaps you were too young to really pay attention or understand what happened to Robert Bork.
Bork was "Borked" by himself. All this conservative moaning about what those terrible liberals did to Bork miss the essential point, that came out during his confirmation hearings. He was done in by his own big mouth, espousing often outrageous views and going out of his way to provoke his opponents with factually inaccurate revisions of history. Even some Republicans voted against him, including my senator, John Warner of VIrginia, to his everlasting credit.
30
Schumer killed the filibuster with his childish need to throw a tamper tantrum destined to fail.
What Schumer's tamper tantrum accomplish is to clear the path for the Republican to nominate and confirm whomever they want once Ginsburg, Kennedy, Souter or all three call it quits.
If Democrats want to control who gets into the Supreme Court they need to do it the old fashion way - winning elections. And that means winning both the White House and the Senate at the same time.
What Schumer's tamper tantrum accomplish is to clear the path for the Republican to nominate and confirm whomever they want once Ginsburg, Kennedy, Souter or all three call it quits.
If Democrats want to control who gets into the Supreme Court they need to do it the old fashion way - winning elections. And that means winning both the White House and the Senate at the same time.
4
This is a lowbrow Man in the High Castle fantasy meant to paper over the truly historic change with Garland. Nominees aren't chosen by Presidents anymore, they're chosen by the Senate Majority leader. If Democrats win the Senate in 2018 they won't hold hearings for any Trump Supreme Court nominees, nor should they. I'd argue they shouldn't allow votes for any federal court vacancy. It's easy to extend McConnell's reimagining of the Constitution to any timeframe, as McCain and Cruz did when they stated they wouldn't hold votes for any Clinton nominees. As the Republican coalition continues to shift to the least populous states, you'll have a judiciary that is increasingly dysfunctional and ratified by a minority of citizens. Fantasies like Douthat's are attempts to justify minority rule by whites. Gorsuch was nominated by a
President elected by a minority of largely white voters, ratified by Senators representing a minority of voters in largely white states, to fill a vacancy created by a reimagining of the Senate's role in appointments. He is utterly illegitimate. Every decision he participates in on the Court is tarnished.
President elected by a minority of largely white voters, ratified by Senators representing a minority of voters in largely white states, to fill a vacancy created by a reimagining of the Senate's role in appointments. He is utterly illegitimate. Every decision he participates in on the Court is tarnished.
25
"[Souter] effectively betrayed the party that put him on the court..."
Refreshing for Douthat -- for anyone -- to admit the Supreme Court can no longer claim even a thin pretense of ruling on the law, either its spirit or letter, but rather which party nominated them.
All the more reason to keep the filibuster.
Refreshing for Douthat -- for anyone -- to admit the Supreme Court can no longer claim even a thin pretense of ruling on the law, either its spirit or letter, but rather which party nominated them.
All the more reason to keep the filibuster.
13
What is often left out in columns like these is that the Liberal view is the CORRECT view. Women SHOULD have the right to choose. Gays SHOULD be free from discrimination and have the right to marry who they wish. Yes, David Souter often took the "Liberal" side but, DO NOT FORGET, it was the CORRECT side.
21
"he effectively betrayed the party that put him on the court"
An interesting view of the court's function.
An interesting view of the court's function.
18
David Stouter put nation over party - the very definition of a patriot.
We could use more Republicans like him today.
We could use more Republicans like him today.
27
Souter was the ideal Supreme Court justice -- a person whose stands on most issues was unknown but who would use his legal knowledge and wisdom about human nature and society to decide what the supreme experimentalists who drafted the Constitution would do about matters they had no way to anticipate. If our neighborhood is the area within which 3/4 of what we use and consume originates, it used to be a day's travel by horseback for most people, and is now the world. That our Constitution has survived this expansion with only a few amendments is a minor miracle, although it did fail (and perhaps was purposely designed not) to provide a framework within which we could settle the issue of slavery.
The Supreme Court contributed mightily to this failure, and it did so by taking the original intent about slavery (fudging the moral dimension of the issue and hoping that slavery would dwindle away) rather than the spirit of this exceptional country as expressed by the slaveowning and full-of-contradictions Thomas Jefferson.
If we believe that all men are created equal as Jefferson meant it, then we must accept that women and slaves are not men, and that giving blacks citizenship and women the vote did nothing to make them men or equal to men in any other ways. If we hold that we understand what Jefferson wrote and meant far better than he ever managed to do, we have given up original intent for moral reality.
The Supreme Court contributed mightily to this failure, and it did so by taking the original intent about slavery (fudging the moral dimension of the issue and hoping that slavery would dwindle away) rather than the spirit of this exceptional country as expressed by the slaveowning and full-of-contradictions Thomas Jefferson.
If we believe that all men are created equal as Jefferson meant it, then we must accept that women and slaves are not men, and that giving blacks citizenship and women the vote did nothing to make them men or equal to men in any other ways. If we hold that we understand what Jefferson wrote and meant far better than he ever managed to do, we have given up original intent for moral reality.
7
Souter effectively betrayed the party with his votes? I thought the Supreme Court nominees were all blank slates, with no opinions, that only ruled on the facts at hand in each individual case.
Ross, Thanks for explaining they are put there to maintain the factionalism that is destroying the country.
Ross, Thanks for explaining they are put there to maintain the factionalism that is destroying the country.
20
Interesting argument.
Certainly David Souter turned out to be a poor choice for a conservative president. But did he really change the dynamic that has seen our courts become a modern aristocracy? Judges are appointed and paid for life, wear robes, sit on thrones, insist on being addressed as "Your Honor", and hold the highest power in the land.
With that kind of power, of course our elected officials -- who have power only with the will of the people -- are going to come in second place. It is telling that many people voted for Donald Trump not because they wanted him to be president, but because they wanted a conservative to be named to the Supreme Court.
Certainly David Souter turned out to be a poor choice for a conservative president. But did he really change the dynamic that has seen our courts become a modern aristocracy? Judges are appointed and paid for life, wear robes, sit on thrones, insist on being addressed as "Your Honor", and hold the highest power in the land.
With that kind of power, of course our elected officials -- who have power only with the will of the people -- are going to come in second place. It is telling that many people voted for Donald Trump not because they wanted him to be president, but because they wanted a conservative to be named to the Supreme Court.
5
"[T]he same forces that doomed Robert Bork and Merrick Garland"? Robert Bork was doomed by his own views and the Reagan administration's claim, despite all evidence to the contrary, that he was a moderate. Merrick Garland was doomed by an unprecedented power grab by Mitch McConnell. Hardly the same thing.
19
I take it that Douthat is acknowledging that Republicans don't care about the Constitution or precedent. Souter was what Republicans claim they want. A justice that believed in judicial restraint.
9
This is nuts. On the one hand, the author is accusing Souter of ushering in an era of extreme partisanship on the SCOTUS by having been non-partisan himself. How was Souter non-partisan? By "betraying the party that put him on the court". But if Souter had not "betrayed" the GOP, he himself would have been partisan. According to this premise, Souter's own partisanship would have made today's partisanship less likely.
This premise is not just nuts, it's incorrect. Today's extreme partisanship is primarily a GOP phenomenon, begun during the presidency of Bill Clinton and pretty much cemented into permanency during the presidency of Barack Obama. Civility and cooperation of the kind considered normal under previous administrations went out the window and the threats first of government shutdowns and then of extending the debt ceiling became commonplace, all at the hands of the GOP.
This premise is not just nuts, it's incorrect. Today's extreme partisanship is primarily a GOP phenomenon, begun during the presidency of Bill Clinton and pretty much cemented into permanency during the presidency of Barack Obama. Civility and cooperation of the kind considered normal under previous administrations went out the window and the threats first of government shutdowns and then of extending the debt ceiling became commonplace, all at the hands of the GOP.
15
Gorsuch will be the only Protestant on the Supreme Court. Two Catholics and three Jews, form, sometimes, a liberal bloc. Sadly, Souter, the last Protestant appointed to the the Supreme Court, truly followed his own Protestant conscience of rights and compassion. Gorsuch, so far, seems so different from
Souter. I believe he's a right wing ideologue beholden to the Kochs of the world.
I hope I am wrong. Starting now, his history will roll out before our eyes.
Souter. I believe he's a right wing ideologue beholden to the Kochs of the world.
I hope I am wrong. Starting now, his history will roll out before our eyes.
7
Didn't you hear Gorsuch? There are no Republican or Democratic judges. The truth is that there are Republican judges. We can tell by how often the so called principles are violated in order the effect the desired outcome. Bush v Gore, Citizen's United, DC v Heller, are but few examples. We do not see such twisted logic on the Democratic appointed judges. They are consistent.
Loss of the filibuster was not inevitable. If senators had held to the principle that Scotus judges should be able to get bi-partisan support then we would not be here. If the GOP had not pursued blocking President Obama rather than taking issue with his appointees we would not have abandoned the 60 vote requirement for any appointments. Using the filibuster as a weapon is a purely GOP phenomenon. Bork got a vote. Garland did not.
Loss of the filibuster was not inevitable. If senators had held to the principle that Scotus judges should be able to get bi-partisan support then we would not be here. If the GOP had not pursued blocking President Obama rather than taking issue with his appointees we would not have abandoned the 60 vote requirement for any appointments. Using the filibuster as a weapon is a purely GOP phenomenon. Bork got a vote. Garland did not.
8
Well first off the Garland case is nothing like a pocket veto since there was no bill ever passed anywhere for the President to put in his pocket (or actually nothing even debated in the Senate).
Second, what could really have saved the filibuster is the judiciary speaking up in both the case of the Senate shirking it's Constitutional duty in the case of Garland and then changing the rules solely for the purpose of getting a partyline vote to be successful for appointing Gorsuch. Under these circumstances, the federal judiciary as a whole should be alarmed that soon the United States will not be able to cite itself as an example of a country with an independent judiciary.
Second, what could really have saved the filibuster is the judiciary speaking up in both the case of the Senate shirking it's Constitutional duty in the case of Garland and then changing the rules solely for the purpose of getting a partyline vote to be successful for appointing Gorsuch. Under these circumstances, the federal judiciary as a whole should be alarmed that soon the United States will not be able to cite itself as an example of a country with an independent judiciary.
3
I find the assumptions Mr. Douthat is working under to be entirely consistent with his ideological friends and as such completely nonsensical. Equating Bork and Garland is a breathtaking stretch but I'm sure it's unquestioned in the circles Ross spends his time with. But accusing David Souter of a sort of treason is a new twist. I find it amusing to read Douthat's fantasies of all the great decisions that would have been made were it not for the turncoat Souter. What a shame that a man would gain sympathy for the unfortunate and oppressed after joining the Supreme Court. What a terrible tragedy!
9
The problem with this article is its premise: that the courts are an extension of partisan politics. That premise is absolutely wrong, yet it was has occurred and describes both what's wrong with the current situation and particularly the worldview of Mitch McConnell.
It's McConnell who abused the filibuster, brought gridlock and hyper-partisanship to the Senate, and effectively destroyed the purpose of the Senate. If the Senate is to operate exactly the same as the House, with strict majority rule and little opportunity for input from the minority, why do we need a bicameral legislature?
Although some felt the filibuster was anachronistic and undemocratic, without it those same arguments are even more true of the Senate itself. Democratic institutions rely on the good will of those who serve in them. Without that good will our institutions break down and the people lose faith. We can thank McConnell and the Republicans for Americans disgust with government.
It's McConnell who abused the filibuster, brought gridlock and hyper-partisanship to the Senate, and effectively destroyed the purpose of the Senate. If the Senate is to operate exactly the same as the House, with strict majority rule and little opportunity for input from the minority, why do we need a bicameral legislature?
Although some felt the filibuster was anachronistic and undemocratic, without it those same arguments are even more true of the Senate itself. Democratic institutions rely on the good will of those who serve in them. Without that good will our institutions break down and the people lose faith. We can thank McConnell and the Republicans for Americans disgust with government.
6
Did Mr. Houthat forget about Sandra Day O'Connor and John Paul Stevens? Particularly, Stevens, who was as liberal as anyone else on the court. And O'Connor was sort of the Anthony Kennedy of the day. And both appointed by Republican presidents. By the way, the Senate confirmed O'Connor 99-0 and Stevens 98-0. So if a president wants his agenda respected by the court, he needs to do a better job of vetting his candidate.
1
Somewhat better at camouflaging the core issues at the obsessive center of almost all your pieces, Ross: sex and who controls what and when and with whom we consenting adults do with our own bodies. The "issues of burning concern to the Republican Party’s base — abortion... gay-rights...and religious liberty" are not really "of burning concern" to the entire Repub base, but are paramount to a significant 'single issue' minority which the GOP has been exploiting for decades to gain and keep power, quite successfully at state and federal legislative spheres. The religious liberty argument is just the most recent gambit in the cultural/sexual war over who controls our bodies and what lawfully we may do with them or allow to be done to them. Gorsuch could turn out to another Souter regarding Roe, Casey and Obergfell if, as he testified, he is a steadfast believer in SCOTUS precedent. If so, he will vote to preserve these precedents, heeding the guidance of his onetime boss and now colleague, Anthony Kennedy who wrote in Casey: "Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception...involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."
4
Reading the comments reinforces my feeling that this essay lacks your usual clarity, or maybe has more than your usual subtlety. The Souter nomination (I'm a lib from NH) was a blessing to me, but underscored the fatuousness of the confirmation process. I am intrigued by the suggestion of doubling the size of the court. Not sold on it, by any means, but intrigued.
2
But couldn't the same be said of Eisenhower's appointment of Warren and Brennan and Ford's appointment of Stevens?
3
"Now imagine a counterfactual without this epic blunder. Had Souter simply voted like a typical Republican appointee — "
Then women and gays would have fewer rights, said the straight male columnist. What a wonderful world it could be!
Then women and gays would have fewer rights, said the straight male columnist. What a wonderful world it could be!
6
Doubt that. Bork was an extremist-- not a good thing for the court oe the country. Garland is a moderate-- the best thing for the court and the country. Instead of Garland, his stolen seat is now occupied by another extremist Goresuch. The Republicans in the Senate spent more time asking Goresuch about his proclivity for wrestling with unwilling sheep (aka mutton busting) than about his judicial philosophy. When the Democrats asked him about his judicial philosophy, he was mum. He made a mockery of the Constitution he professes to uphold.
4
I don't accept the notion that Souter "effectively betrayed the party that put him on the court." It implies that he should have been somehow beholden to that party, instead of an independent-minded nonpartisan as Supreme Court justices SHOULD be.
5
If only five percent of America's lawyers are members of the very conservative Federalist Society, why does the Supreme Court have four such members?
9
Ross, if you think eliminating all restraints on campaign money and guns is "advancing conservative goals" I have a question: is giving rich people another tax cut a conservative goal, or merely a Republican one? Used to be, conservatives would pay the bills.
As far as the sway of the Court, it's been starkly reactionary since Bush, Sr. called Clarence Thomas the most qualified nominee for the Court.
As far as the sway of the Court, it's been starkly reactionary since Bush, Sr. called Clarence Thomas the most qualified nominee for the Court.
2
How gracious of you, Ross, to trade my rights as a woman and my son's rights as a gay man for a bit of comity in our judicial selection process. If, instead, some of your own rights were at stake, I think you wouldn't mind leaving a bit of contentiousness in the process.
9
Please consider Earl Warren - appointed by Ike as a reliable Republican. He was Governor of California during the WW II Japanese internment. What Happened? Clearly some justices, not just Souter, have higher regard for justice than strict adherence to old interpretations of law.
2
"Pocket Veto"? Nice phrase Mr. Douthat, but I think "theft" is the term you're looking for.
8
No, pocket veto is a better phrase. Mitch McConnell made it clear within hours of Antonin Scalia's death that his replacement would not be confirmed until after a new president was elected. Barack Obama nominated Merrick Garland with the knowledge that the Senate would not consent to his nomination. That is not theft.
Of course, many liberals still argue that George W. Bush stole the 2000 election from Al Gore, so I guess it is all how you like to use the term. Certainly both parties have played fast and loose with the rules over the years. Think Obamacare and reconciliation, for a recent example.
And of course Franklin Roosevelt and Lyndon Johnson shine as presidents within my memory who got what they wanted by sometimes using means more foul than fair.
Of course, many liberals still argue that George W. Bush stole the 2000 election from Al Gore, so I guess it is all how you like to use the term. Certainly both parties have played fast and loose with the rules over the years. Think Obamacare and reconciliation, for a recent example.
And of course Franklin Roosevelt and Lyndon Johnson shine as presidents within my memory who got what they wanted by sometimes using means more foul than fair.
2
The fundamental problem is simple. There are too few Supreme Court justices. The result is that any one of them wields absurdly disproportionate power. In a measured, may I say, judicious manner the court should be expanded by 6 or 8 additional justices. Obviously this would lower the temperature on any individual nomination. Currently, every decision by a one vote margin simply magnifies the disconcerting fact that the Court has simply become the Supreme Legislature.
2
"no matter whether Bork was Borked or Garland pocket-vetoed."
My goodness, you might almost get the notion that Bork was filibustered and that "pocket veto" of a SCOTUS nomination by a president is a process spelled out in the Constitution.
But, No, and No.
And thus do supposedly "intellectual" conservatives like Ross Douthat trade shamelessly in false equivalence argumentation.
As for David Souter, why not accept the most obvious explanation?
Though "born and raised" conservative, anyone with a head on his shoulders could see that traditional Eisenhower Republicanism was in the process of being suborned by Movement Conservatism under Reagan, a trend which would accelerate in the 1990s under the narcissistic and sociopathic leadership of Newt "Family Values" Gingrich.
Why would anyone with an intellect like Souter's want to pledge allegiance to the arrant nonsense of originalism and textualism that Antonin Scalia had begun spouting from the high bench, and which a resentful Clarence Thomas was trying to out ape?
My goodness, you might almost get the notion that Bork was filibustered and that "pocket veto" of a SCOTUS nomination by a president is a process spelled out in the Constitution.
But, No, and No.
And thus do supposedly "intellectual" conservatives like Ross Douthat trade shamelessly in false equivalence argumentation.
As for David Souter, why not accept the most obvious explanation?
Though "born and raised" conservative, anyone with a head on his shoulders could see that traditional Eisenhower Republicanism was in the process of being suborned by Movement Conservatism under Reagan, a trend which would accelerate in the 1990s under the narcissistic and sociopathic leadership of Newt "Family Values" Gingrich.
Why would anyone with an intellect like Souter's want to pledge allegiance to the arrant nonsense of originalism and textualism that Antonin Scalia had begun spouting from the high bench, and which a resentful Clarence Thomas was trying to out ape?
9
The idea that justices should be beholden to the party that nominates them is appalling. That Souter was able to transcend that inclination just proves again that reality has a well known liberal bias.
9
Maybe it's an oversimplification but it always appeared to me that the filibuster rule is unconstitutional. It requires a super majority but the Constitution appears to require only a simple majority since it allows the Vice President to break a tie vote.
In the same vein, the Second Amendment was obviously intended to provide for an armed militia back when that was the form of national defense. The courts have since basically ignored this plain interpretation of the amendment and hold that everybody is entitled to gun ownership.
Who knows about such things?
In the same vein, the Second Amendment was obviously intended to provide for an armed militia back when that was the form of national defense. The courts have since basically ignored this plain interpretation of the amendment and hold that everybody is entitled to gun ownership.
Who knows about such things?
1
The first several dozen "Readers' Picks" comments in response to this dishonest Douthat column are impressive. It's nice to know that so many Times readers are intelligent, well-informed, articulate people.
7
The best part of a Ross Douthat column: The commenters who disagree with him!
10
Souter was a generational great. Before retiring from the Supreme Court in 2009, liberal Justice David Souter penned a dissent so critical of the court's conservative justices, Chief Justice John Roberts went to great lengths to prevent it from being published.
Scalia was a reactionary gavone. Caustic, harsh, and lacking empathy, Scalia is known for his claim of being a strict "texturalist," reading the Constitution not as a living document meant to grow with age through time, but as a static document that cannot be interpreted, only read as the exact words on the page.
Scalia was a reactionary gavone. Caustic, harsh, and lacking empathy, Scalia is known for his claim of being a strict "texturalist," reading the Constitution not as a living document meant to grow with age through time, but as a static document that cannot be interpreted, only read as the exact words on the page.
5
I have seldom read such rubbish in the NYT as this piece by Ross Douthat. Counterfactuals can be fun and illuminating, but they are totally meaningless when used like Douthat uses them. David Souther was a old style New England Republican. That is pretty much and extinct species nowadays. They were decent people who believed in private property and believed in social justice. H. W. Bush came from that stock and it should not surprise anyone that he appointed Souter. Bork received a full hearing and an up or down vote; he was voted down. If there was something wrong with that then there would be no point in even having advise and consent.
13
Come on, Ross. Stop crying in your beer! I notice you conveniently forgot to mention John Kennedy's appointment of Byron "Whizzer" White, who turned out to be as loyal a conservative as Ronald Reagan, Bushes 41 & 43, or you, could've hoped to nominate for SCOTUS. (White even wrote a dissenting opinion in the Miranda case.) To quote that eminent politician and critical thinker, Forrest Gump, "Appointments to SCOTUS are like a box of chocolates. You just never know what you're gonna get." Of course, it's critical to recite Gump's prescient comment with the appropriate Southern (conservative?) accent.
5
This is so ill-reasoned and ridiculous. Douthat is unfit to polish the estimable David Souter's shoes.
7
I think that you are failing to acknowledge the deviousness of the process. Conservatives, the ones that control money and power could not care less about social issues. They care about money and power. Gay marriage...they wouldn't even know what you are talking about.
By approving policies of social justice, they are inflaming their base and contributing to their power. They know that. Have you really not watched how Trump became president.
The issues that define them are Citizens United and eviscerating the Voting Rights Act. Money and power...that is all that matters.
It is remotely possible that those marginalized groups having achieved equality and power will push back against conservatism, but, honestly, I doubt it. At least not as cohesive groups. Money and power, once acquired, serves primarily to protect itself.
By approving policies of social justice, they are inflaming their base and contributing to their power. They know that. Have you really not watched how Trump became president.
The issues that define them are Citizens United and eviscerating the Voting Rights Act. Money and power...that is all that matters.
It is remotely possible that those marginalized groups having achieved equality and power will push back against conservatism, but, honestly, I doubt it. At least not as cohesive groups. Money and power, once acquired, serves primarily to protect itself.
Yes Ross. As a good generic liberal from the West Coast I can admit that social issues gained some ground over the last decades. Having said that, why was it not a given that Brown v. Board of Education (1954) was good law. That newest Supreme Court Justice vacillated with his answer dumbfounds me.
The great triumph on the corporatist right is, remains and will continue to be
The Citizens United decision. It is becoming the hammer that crushes all other questions of equity. An autocratic structure is rising. Yes you are right, the forum for democratic dialogue is failing us. The philosophic conservative in me is deeply afraid.
The great triumph on the corporatist right is, remains and will continue to be
The Citizens United decision. It is becoming the hammer that crushes all other questions of equity. An autocratic structure is rising. Yes you are right, the forum for democratic dialogue is failing us. The philosophic conservative in me is deeply afraid.
3
Very interesting piece.
But the closing sentiment that "Souter...effectively betrayed the party that put him on the court" is ridiculous and embodies the very hyper-partisanship that the author claims to be eschewing.
Souter did not "betray" anybody--he voted along the lines of what he thought was right, and it sounds like his post-appointment philosophy was essentially the same as his pre-appointment philosophy. Judges are not meant to be members of political parties, rulings are not "pro-republican" or "pro-democratic", and judges owe nothing to the party of the president who appointed them or the party of the senators who confirmed them.
But the closing sentiment that "Souter...effectively betrayed the party that put him on the court" is ridiculous and embodies the very hyper-partisanship that the author claims to be eschewing.
Souter did not "betray" anybody--he voted along the lines of what he thought was right, and it sounds like his post-appointment philosophy was essentially the same as his pre-appointment philosophy. Judges are not meant to be members of political parties, rulings are not "pro-republican" or "pro-democratic", and judges owe nothing to the party of the president who appointed them or the party of the senators who confirmed them.
7
Change the rules Supreme court judges only serve ten yrs term after this get reappointed. To have life time judges makes no sense.
This column is an embarrassment to the New York Times.
Mr Douthat seems to think that rigid partisanship should extend to the highest court of this land and appointees should remain loyal to the president's party that appointed him or her.
This is exactly the recipe for a hyper partisan court rather than one that adjudicates in an impartial manner.
David Souter expressing his independence from the president's party which nominated him exhibited a fine legal tradition of fairness as opposed to blind loyalty.
May I also add that this is certainly not without numerous precedents. One can only look at another fine justice John Paul Stevens who was nominated also by a Republican president as an exemplar of an independent judicial mind.
Mr Douthat seems to think that rigid partisanship should extend to the highest court of this land and appointees should remain loyal to the president's party that appointed him or her.
This is exactly the recipe for a hyper partisan court rather than one that adjudicates in an impartial manner.
David Souter expressing his independence from the president's party which nominated him exhibited a fine legal tradition of fairness as opposed to blind loyalty.
May I also add that this is certainly not without numerous precedents. One can only look at another fine justice John Paul Stevens who was nominated also by a Republican president as an exemplar of an independent judicial mind.
4
I miss the days when a supreme court nominee was unpredictable, i.e. could follow his/her own conscience. An example on the other side was Byron White, whom Kennedy nominated and became a pretty conservative justice, albeit, like Souter, not wholly predictable
1
I'm from New England--Massachusetts--and my mother was from New Hampshire as was Justice Souter. People from that latter state have always struck me as rather quirkily independent. I believe that The Granite State still has "Live Free or Die" on its license plates. To me, Justice Souter always epitomized the rugged individualism of New Hampshire. I think he brown-bagged his lunch when he was on the bench. The GOP would never let someone like Justice Souter slip through today. He was true to himself, not the doctrines of the party. Still, I keep hoping for another justice like him.
5
A supreme court justice can not "betray" a political party, because they're constitutional role demands ignoring consideration of political parties. They have no business basing decisions in anything besides law, precedent, and principles of equity. Sometimes politicized issues are relevant to equity, but politics *per se* have no place in a supreme court decision. For this reason every last senator and president of recent memory is complacent in undermining the fundamental principles of our Republic. But those are just my quaint thoughts.
4
Baloney, Mr. Douthat. The judicial nominating process was turned into a ruthless partisan affair by Obama and Reid. They were the killers of minority party rights when they decided it was more important to pack the lower federal judiciary with activist judges than to respect the two hundred year old rule that mostly succeeded in ensuring partisan politics was kept out of the federal courts. Obama and Reid own this despite your revisionist narrative about who the gross partisans really are.Is it your "suspicion" that the 60 vote rule would be completely dead if those two uber partisans hadn't mortally wounded it in 2013? Counterfactual indeed.
2
"making an untimely event like Scalia’s death less of a crisis moment, a response like the Garland pocket veto less of a necessity and the candidacy of Donald Trump something more easily rejected."
So, Ross, you're implying that Trump won the primary and was ultimately elected POTUS because of his pro-life flip-flop? That's a stretch, don't you think? It makes the GOP voter out to be a single-issue creature of at least a third of the electorate. I find that a) hard to believe, and b) a scary proposition for what it might mean for the future of American civil liberties. One only has to look at El Salvador and it's anti-abortion amendment to their constitution to see how dark that future could potentially be for both women and the Republic.
http://kristof.blogs.nytimes.com/2016/09/12/el-salvadors-abortion-lawyer...
So, Ross, you're implying that Trump won the primary and was ultimately elected POTUS because of his pro-life flip-flop? That's a stretch, don't you think? It makes the GOP voter out to be a single-issue creature of at least a third of the electorate. I find that a) hard to believe, and b) a scary proposition for what it might mean for the future of American civil liberties. One only has to look at El Salvador and it's anti-abortion amendment to their constitution to see how dark that future could potentially be for both women and the Republic.
http://kristof.blogs.nytimes.com/2016/09/12/el-salvadors-abortion-lawyer...
Mr. Douthat seems to be lamenting that Souter's shift to more liberal positions has unfairly restricted Republican desires to eliminate and restrict the peoples' rights . If only Souter hadn't gone along with the liberals on the Court, Republicans would have "returned abortion rights to the States" (in other words, allowed extremists who have more power in State governments to restrict women's rights to abortions) and " the gay rights movement would have subsequently advanced through referendums and legislation rather than a sweeping constitutionalization of cultural debate" (in other words, those pesky gays would have had to wait for the same extremists in State governments to finally decide to grant them the rights they deserve in a few decades rather than now - a process which worked SO well for civil rights in the '60s and '70s).
No, Mr. Douthat, you don't get to assert that the recent and current Republican obstructionism and theft of Merrick Garland's seat is Souter's fault because he didn't give your fellow bigots enough time to die off and let women and gays get their rights granted through acts of legislature.
You are an odious apologist for a regressive philosophy.
No, Mr. Douthat, you don't get to assert that the recent and current Republican obstructionism and theft of Merrick Garland's seat is Souter's fault because he didn't give your fellow bigots enough time to die off and let women and gays get their rights granted through acts of legislature.
You are an odious apologist for a regressive philosophy.
5
The pro life/pro abortion debate is certainly a hot-button issue and one which will not disappear anytime soon. I have always been a right-to-life advocate but it has only been recently that I have gotten involved in the movement. Seeing an image of the fetus in the mother's womb on a sonogram screen was the clincher. This is how our movement has gotten many young adults involved in the cause.
Many pro abortion facilities have been closing and this is a good thing. There are far more community health centers throughout the country that provide all services except abortions. Also the argument that once the baby is born, we do not care what happens to the mother and infant is just plain untrue. There are many organizations and people who assist in their care and a very important one is the Sisters for Life. They are ready and able to help and they give wonderful and compassionate care to those in need. They will also find living accommodations for those who need them. The argument that pro lifers only care about the mother and baby before birth is false. If the mother decides to have her baby, it is imperative that we do not desert her at this very important time.
Many pro abortion facilities have been closing and this is a good thing. There are far more community health centers throughout the country that provide all services except abortions. Also the argument that once the baby is born, we do not care what happens to the mother and infant is just plain untrue. There are many organizations and people who assist in their care and a very important one is the Sisters for Life. They are ready and able to help and they give wonderful and compassionate care to those in need. They will also find living accommodations for those who need them. The argument that pro lifers only care about the mother and baby before birth is false. If the mother decides to have her baby, it is imperative that we do not desert her at this very important time.
2
Yeah, Souter tended to rule on the liberal side of cases. That was somewhat surprising, but I would say that a strong majority of federal judge or Supreme Court justice pool of candidates are mostly "culturally liberal" as Ross would call them -- that's just tends to be the way that educated and thoughtful people are. You have to search a bit harder to find Supreme Court candidates that are culturally conservative as Ross would prefer.
But that said, how did Souter cause the Senate to block Merrick Garland out of hand and without even a hearing? Souter had nothing to do with what happened to Garland. Senate Republicans simply violated the Constitution and did not allow Obama's nominee to go forward. And this has NEVER happened in the history of the country before. Never has the party opposite the President blocked a nominee, run out the clock to the next election, and then that opposition party got to pick the nominee -- essentially stealing the Supreme Court seat. Never happened before. Scalia died during Obama's term, so Obama was supposed to pick his successor. That's what the Constitution says. Those are the rules. Senate Republicans broke those rules in violation of the Constitution, period. Souter, Bork, the "Biden rule", or whoever, or whatever had nothing to do with it. Try to dress it up all you want, Ross, but Republicans simply violated the Constitution, which they supposedly hold sacred, and stole a Supreme Court seat.
But that said, how did Souter cause the Senate to block Merrick Garland out of hand and without even a hearing? Souter had nothing to do with what happened to Garland. Senate Republicans simply violated the Constitution and did not allow Obama's nominee to go forward. And this has NEVER happened in the history of the country before. Never has the party opposite the President blocked a nominee, run out the clock to the next election, and then that opposition party got to pick the nominee -- essentially stealing the Supreme Court seat. Never happened before. Scalia died during Obama's term, so Obama was supposed to pick his successor. That's what the Constitution says. Those are the rules. Senate Republicans broke those rules in violation of the Constitution, period. Souter, Bork, the "Biden rule", or whoever, or whatever had nothing to do with it. Try to dress it up all you want, Ross, but Republicans simply violated the Constitution, which they supposedly hold sacred, and stole a Supreme Court seat.
3
No. Mitch McConnell killed the filibuster. His obstructionism of Obama appointments was the inevitable starting point for this outcome. Someone with his scorched earth, party above people approach should never have advanced to lead a body like the Senate. He is a leading light of what's wrong with the legislative branch in America today.
6
The Supreme Court Justices' oath reads as follows:“I, ____, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ____ under the Constitution and laws of the United States; and that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
-------
To say that Souter "effectively betrayed the party that put him on the court" is to betray the Supreme Court itself and America, as well.
-------
To say that Souter "effectively betrayed the party that put him on the court" is to betray the Supreme Court itself and America, as well.
6
What frustrates the right-wingers about Souter is that he is an intelligent man of principle who knows the law and understands history and is impossible to pigeonhole into a single category. We need more people like him in public life.
3
Douthat can't pass up the opportunity to impugn the integrity and service of a Justice that he finds disappointing and out of step with his politics. Wow - why not stop there? Maybe Douthat needs to go farther back and lay the blame at the feet of Brennan and Warren and perhaps White (if you want to speak to the issue from both sides) if you're a Democrat.
Wait - I have an idea: "Ross Douthat Killed Critical, Insightful Commentary."
Wait - I have an idea: "Ross Douthat Killed Critical, Insightful Commentary."
3
Pocket veto: "The Constitution grants the president 10 days to review a measure passed by the Congress. If the president has not signed the bill after 10 days, it becomes law without his signature. However, if Congress adjourns during the 10-day period, the bill does not become law"
Apparently, Mr. Douthat has a new definition that means that the Senate does not give advice and consent for the last 364 days (365 in a leap year) of a presidency.
Apparently, Mr. Douthat has a new definition that means that the Senate does not give advice and consent for the last 364 days (365 in a leap year) of a presidency.
4
Robert Bork was a crook.
As acting Attorney General, he illegally followed Nixon's orders during Watergate to fire Special Prosecutor Archibald Cox after his two superiors refused to do so on legal and moral grounds. We found out later that Nixon had bribed him with a promise to make him the next Supreme Court judge, which St. Ronnie tried to fulfill 14 years later.
For Republicans like Douthat to perpetuate the myth that Bork was treated unfairly, and even compare his situation to Merrick Garland's, is an abomination.
As acting Attorney General, he illegally followed Nixon's orders during Watergate to fire Special Prosecutor Archibald Cox after his two superiors refused to do so on legal and moral grounds. We found out later that Nixon had bribed him with a promise to make him the next Supreme Court judge, which St. Ronnie tried to fulfill 14 years later.
For Republicans like Douthat to perpetuate the myth that Bork was treated unfairly, and even compare his situation to Merrick Garland's, is an abomination.
26
I do not think that Mr. Bork was a "crook"; he probably did not actually violate any laws. The problem is that he expressed views that were unacceptable for a justice of the Supreme Court. His book "Slouching Towards Gomorrah: Modern Liberalism and American Decline" suggests that he believed that morals in America have been in continual decline. Mr. Bork thought that Americans were more moral in the 1850s when many of them owned slaves. He thought they were more moral in the 1920s when the Ku Klux Klan had 3 million members. He thought they were more moral in the 1950s when schools and other public facilities were segregated, neighborhoods were "restricted", and employers decided who to hire based on race or religion. Mr. Bork's ideas about what is right and what is wrong were simply bazaar.
4
There is an easy way to get out of this mess:
1. Increase the number of justices to a maximum of 18 or similar.
2. Randomly select nine justices to hear each case.
So either both parties agree on middle-of-the-road consensus candidates or they risk catastrophic losses in the Court lottery. There would also be an incentive to select less ideological judges to avoid court jurisprudence behaving like a random walk.
With such a scheme there could also be an agreement that presidents get to nominate no more than one candidate during each term, leaving some positions vacant if necessary, which would have no effect as long as the total is greater than 9.
1. Increase the number of justices to a maximum of 18 or similar.
2. Randomly select nine justices to hear each case.
So either both parties agree on middle-of-the-road consensus candidates or they risk catastrophic losses in the Court lottery. There would also be an incentive to select less ideological judges to avoid court jurisprudence behaving like a random walk.
With such a scheme there could also be an agreement that presidents get to nominate no more than one candidate during each term, leaving some positions vacant if necessary, which would have no effect as long as the total is greater than 9.
6
The world will be different without the filibuster, but I can't help but think it will be better for liberals. It is the Republicans who have used the filibuster most to their advantage and I believe they will miss it terribly. You can blame Souter all you want but I believe the loss of the filibuster reflects the deep political divide in the US which has been building since the civil rights movement began to succeed. It is my hope that the election of Trump and all the damage he has done to the protection of ordinary people will be like a correction in the stock market --a step backwards that will be followed by more progress. Of course, I don't know, but that is my hope.
The ultimate outcome of blocking the filibuster will be to speed up the work of the Senate. I don't see how that can be anything but good, though I am sure the Republicans will do their best to roll back civil rights and women's rights and to give yet more power to corporations. But hopefully. in the long run, the loss of the filibuster will lead to a more democratic Senate.
The ultimate outcome of blocking the filibuster will be to speed up the work of the Senate. I don't see how that can be anything but good, though I am sure the Republicans will do their best to roll back civil rights and women's rights and to give yet more power to corporations. But hopefully. in the long run, the loss of the filibuster will lead to a more democratic Senate.
3
So gerrymandering and voter suppression has made democracy more difficult yet democrats are still potent enough to vote with enough numbers to significant wins over republicans. W/o the filibuster the mean minority we know as republicans will lose more battles. Republicans are unable to even filibuster in California these last few years and this has been a boon to our state economy.
David Souter was far from the only supreme court justice not to vote with the party of the president who nominated him. For example, Harry Blackmun (author of Rowe v. Wade) was appointed by Republican Richard Nixon. Earl Warren (possibly the most liberal chief justice ever) was appointed by Republican Dwight Eisenhower. There are many other examples. Until the 1980s, nobody seems to have even thought that Republican presidents would necessarily appoint conservative justices or that Democratic presidents would necessarily appoint liberal justices.
6
So Ross, I take it you are happy with the notion that corporations are people plus. They have all the rights of people but none of the drawbacks like death and legal risk for the officer's actions. You also then believe that money and speech are equivalent. That in spite of the founders intent for separation of church and state we should allow small groups who claim religious objection to be able to overturn laws intended to provide health benefits to all. Even when their objection is to refuse to even sign a form letter.
I distinctly remember John Roberts stating how he will respect precedent and yet he gave us Citizens United one of the worst rulings for open democracy along with Hobby Lobby. You talk of "betrayals" but Roberts is one of the worst. He outright lied at his hearings.
I distinctly remember John Roberts stating how he will respect precedent and yet he gave us Citizens United one of the worst rulings for open democracy along with Hobby Lobby. You talk of "betrayals" but Roberts is one of the worst. He outright lied at his hearings.
6
That your angle of vision is completely political in regard to Justice Souter shows that consciously or not, you have accepted the idea that the Supreme Court is primarily a political court. I suggest that you read some of the Justice's opinions. They are carefully crafted and beautifully reasoned--a model of judicial writing. You might respond that all judicial opinions are subjective and, well, just a matter of opinion or taste. I would say yes--Good taste and bad taste.
5
Why, when I read this opinion piece, do I think of the thought processes of Glenn Beck, Alex Jones, and Rush Limbaugh? Because if you twist logic enough, it shatters like a hard pretzel.
5
Or there is the simple fact that Mitch McConnell and the GOP killed the Supreme Court filibuster (and Harry Reid and the DEMs the lower court version).
2
Republicans were burned by appointing an honest man and henceforth elected only to appoint partisan political hacks. Having elevated hackery to a requirement for judicial office, they doubled down by denying a sitting president his constitutional right for over a year. Blaming David Souter for the death of the filibuster is peculiarly perverse.
10
A thoughtful article to read is Bruce Bartlett's 12-25-12 piece in the New York
Times: A Conservative Case for the Welfare State.
Times: A Conservative Case for the Welfare State.
Even given that this fantasia is premised on a counterfactual, Ross's take still manages to be both ahistorical and uncreative. Bork was a segregationist who was instrumental in Nixon's Saturday Night Massacre. It is absurd for an allegedly religious person, even a conservative one, to lament his failure to be confirmed to the Court. It's almost like Ross tries to have the worst possible takes because his ideas can't garner support on their merits.
6
Any one of these lifetime appointments to the bench is a crapshoot. See, for example, Eisenhower with Warren Burger and Kennedy with Byron White.
The Souter discussion is interesting, but it was Richard Nixon that unknowingly killed the filibuster. It was Nixon who made the Supreme Court an electoral-political issue. Before his criminal law schtick with its "blame the Supreme Court" riff, the Court was a political institution only because the executive and the legislative branches were the gateway to the Court. With a few individual exceptions - Brandies and Parker - there was little controversy. Presidents usually, but not always. picked members of their own parties and the Senate confirmed without anyone's notice. It was Nixon's making the Court an electoral issue. Later, the nomination of Bork, who was the high level justice official that facilitated Nixon's Saturday Night massacre by not resigning and firing Archibald Cox, that began the politics of confirmation. The Bork confirmation hearing was the first brutally political confirmation hearing. It has been down hill ever since. The death of the filibuster is just another small injury in the death trend for a Court that went from a leavening institution to the conflict center it has become.
1
Douthat sure goes a long way -- back, and by way of twisted explanation -- just to construct some sort of rationale or justification for what the Senate Republicans have done recently re: SUpreme Court nominees. David Souter? Really? And equating Bork with Garland is absurd; at least Bork got hearings and a vote. And lost 58-42. That's not even close. Garland -- and by extension President Obama -- got nothing but the cold shoulder treatment. His seat was stolen, plain and simple. Equating the two is ridiculous and intellectually dishonest.
Why do conservative justices support so called liberal causes? Abortion for example, is a major religious issue. If you want to have one you have the religious freedom to do so. You do not get forced by someone else's religion to be denied. And in the same way if your religion does not support abortion you cannot be forced to have one. If I were a conservative on the court I might see this as a constitutional protection for freedom of religion. We should expect that a president will appoint reasonable men who understand judicial law, men who do not get caught up in the swings of popularism.
5
Betrayal is always the excuse.
Here are the facts: Conservatives hate republics, always have and always will. They believe, against all evidence, that aristocracy is a more stable form of government. Occasionally, some disaffected intellectual will rally to their standard out of sheer contempt for the professional class, only to find to his shock that his new friends aren't really. When it suddenly dawns on him that he is participating in the destruction of the only set of institutions that gave him a chance to be something other than an errand boy to an inbred princeling in a funny hat, he will thrash around looking to blame anyone but themselves. All conservative intellectuals are cynics in this respect, they play for the other team hoping they won't win, and then, when they do, they remind us of what we all knew to begin with, that it wasn't actually their team in the first place. But at that point it is too late for this truth to save them. Vanity was called a sin because it is dangerous, and leads us to say and do things that aren't true for the gratification of ourselves at the expense of our community. Douthat is learning the hard way that no amount of fame is worth what his complicity has cost him. God is not mocked.
Here are the facts: Conservatives hate republics, always have and always will. They believe, against all evidence, that aristocracy is a more stable form of government. Occasionally, some disaffected intellectual will rally to their standard out of sheer contempt for the professional class, only to find to his shock that his new friends aren't really. When it suddenly dawns on him that he is participating in the destruction of the only set of institutions that gave him a chance to be something other than an errand boy to an inbred princeling in a funny hat, he will thrash around looking to blame anyone but themselves. All conservative intellectuals are cynics in this respect, they play for the other team hoping they won't win, and then, when they do, they remind us of what we all knew to begin with, that it wasn't actually their team in the first place. But at that point it is too late for this truth to save them. Vanity was called a sin because it is dangerous, and leads us to say and do things that aren't true for the gratification of ourselves at the expense of our community. Douthat is learning the hard way that no amount of fame is worth what his complicity has cost him. God is not mocked.
3
I generally find your writing infinitely readable, thoughtful, and helpful even though I lean liberal. However, your argument here strikes me as over the top and too clever by half. This column is probably best left unread; it offers little of real value. There's far too much conjecture here.
2
This article is based on a completely ridiculous premise. Namely:
"But a liberal can be glad that Bush nominated Souter, glad that he effectively betrayed the party that put him on the court..." There is an underlying assumption that loyalty to a party is somehow an important feature for a Justice. That is intellectually lazy. It's easy to vote like Clarence Thomas - you just go with your conservative gut. This is the wrong way for a Justice to decide cases. (Sure, the most liberal are guilty too.) There isn't even a nod to the court as an independent body. We've almost reached the point where political parties are hurting more than they are helping the country. I've long recognized the benefits they bring, but when devise strategies like "a majority of the majority" are the standard, political parties don't meet the basic function of serving their constituents. Rather they serve themselves.
"But a liberal can be glad that Bush nominated Souter, glad that he effectively betrayed the party that put him on the court..." There is an underlying assumption that loyalty to a party is somehow an important feature for a Justice. That is intellectually lazy. It's easy to vote like Clarence Thomas - you just go with your conservative gut. This is the wrong way for a Justice to decide cases. (Sure, the most liberal are guilty too.) There isn't even a nod to the court as an independent body. We've almost reached the point where political parties are hurting more than they are helping the country. I've long recognized the benefits they bring, but when devise strategies like "a majority of the majority" are the standard, political parties don't meet the basic function of serving their constituents. Rather they serve themselves.
1
No Douthat is not being intellectually lazy, he is unknowingly, as usual for him, admitting to his fascism. Party first! The Roman Catholic right wing friend,y party! That is all the sum of the law of Douthat.
2
I lost a lot of respect for the court from the Bush v. Gore decision. It did not make sense that a recount to make sure the votes were counted accurately was less important than infringing on the right of the Republican voters to keep the win in FL. And that no precedent should follow from the decision. From that we got Bush, Roberts and Alito and Citizens United. To me that is where the politicization of the court nominees went to another level which unfortunately seems to be permanent. And now McConnell has taken it to an even higher level in completely disregarding Obama's constitutional right to nominate. How can the majority of the citizens of this country believe the court is fair when these things happen.
3
The dictionary definition of "convoluted logic" has been replaced by this column.
2
Odd that Mr. Douthat nowhere mentions Eisenhower’s appointment of Earl Warren, which is surely the mother of all Republican “own goals” (“biggest darn mistake I ever made.” Ike later called it). Without Brown v. Board there would have been no Roe v. Wade, hence no Bork donnybrook and, arguably, no Trump presidency or nuclear option in our own time. When Warren was appointed Chief Justice in 1954 the court had two liberal-leaning justices (Black and Douglas) and two relatively strict constructionists (Frankfurter and Jackson), but it was overall a centrist tribunal, reflecting the politics of 1950s America. Warren was nevertheless able to persuade all his colleagues that “separate-but-equal” was inconsistent with the 14th Amendment. From that point on, given the power of precedent, the court’s traditional role as a neutral referee was tempered by the ideal of the court as the final arbiter of social fairness, with the Constitution to be read accordingly. One could quarrel with that ideal but hardly ignore it. Souter grew in his time on the bench. Is there maybe hope for Gorsuch?
1
Sir: you have officially jumped the shark. I would strongly suggest treatment for your spine, after all those convolutions. Seriously.
1
Strangely no mention in this piece of Sandra Day O'Connor who was appointed by conservative icon Reagan. Is that because the conservative powers that be do not enjoy being reminded of how far to the right they have moved since Ronnie put a smiley face on their misconceived movement? HWB and Reagan would both be dismissed as RINOs by today's lot of so called conservatives.
11
No. This is an interesting point and a good reminder, but the right's sources of grievance and persecution are easily enough invented that they do not require a Souter. (See Benghazi, Pizzagate, others too numerous to mention, compare to the actual ongoing Russia scandal.)
The essential person in this argument is not Souter but more likely Nixon, who embodied what Reagan later aphorized about: that the government is inherently inimical, that it is your opponent, betrayer, and oppressor if you are a 'real American'.
As for Souter's liberalism, one such as Souter could quite easily start out conservative, stay obdurate and motionless as White Mountain granite for a few decades, and leave liberal by the standards of the current GOP because they have shifted the goalposts.
The essential person in this argument is not Souter but more likely Nixon, who embodied what Reagan later aphorized about: that the government is inherently inimical, that it is your opponent, betrayer, and oppressor if you are a 'real American'.
As for Souter's liberalism, one such as Souter could quite easily start out conservative, stay obdurate and motionless as White Mountain granite for a few decades, and leave liberal by the standards of the current GOP because they have shifted the goalposts.
7
One commenter wrote: "The issue was safety and not sending frightened women to risk infections, hemorrhage and death."
That's very important. Many other issues connected to the well-being of the mother are also very important when it comes to matters concerning pregnancy, childbirth, and parenting.
But I need to know precisely what we're fighting about, since in my view the abortion debate has distorted American politics a great deal and in a harmful way. I think we need to discuss the matter in terms unconnected to the polished political phrases employed by each side of what should be debate but seems to me more like two people talking past one another.
Does a woman have complete dominion over the fetus within? Is that dominion so firmly rooted in the constitution, reason, and conscience that we should feel free to tax people who strongly disagree and use that tax money to pay for women on Medicaid to have abortions for any reason?
Or does society have an interest in the fetus within a woman that society should balance against her well-being? If so, where should that balance be struck? Just how much should society intrude into this deeply personal and consequential matter? Just how much should religious conviction affect secular law?
That's very important. Many other issues connected to the well-being of the mother are also very important when it comes to matters concerning pregnancy, childbirth, and parenting.
But I need to know precisely what we're fighting about, since in my view the abortion debate has distorted American politics a great deal and in a harmful way. I think we need to discuss the matter in terms unconnected to the polished political phrases employed by each side of what should be debate but seems to me more like two people talking past one another.
Does a woman have complete dominion over the fetus within? Is that dominion so firmly rooted in the constitution, reason, and conscience that we should feel free to tax people who strongly disagree and use that tax money to pay for women on Medicaid to have abortions for any reason?
Or does society have an interest in the fetus within a woman that society should balance against her well-being? If so, where should that balance be struck? Just how much should society intrude into this deeply personal and consequential matter? Just how much should religious conviction affect secular law?
2
No federal tax dollars are spent on abortions. It's called the Hyde Amendment. Since its adoption in 1976, Medicaid has refused to pay for women's abortions, so you can rest easy knowing that no one's tax dollars are being used to prevent the atrocities you cite at the beginning of your comment.
Society does not have an interest in a fetus from what we can observe. If it did, it would provide for both the mother and the child when it is born and not leave them to the tender mercies of "market forces", as if that man made construct were a law of nature. Religions beliefs are fine for the religious. Let them follow their own path, but that doesn't trump the right of others with different beliefs to act on their own beliefs. The balance? When a fetus becomes viable and no longer needs a host for survival.
Unfortunately, responsibility for a child does not end at birth. It is a life sentence. Why do we focus exclusively on the mother? Where is the condemnation of males who act irresponsibility by impregnating women when they, as a couple, were not planning to have a child? "Boys will be boys" just doesn't cut it any more.
Unfortunately, responsibility for a child does not end at birth. It is a life sentence. Why do we focus exclusively on the mother? Where is the condemnation of males who act irresponsibility by impregnating women when they, as a couple, were not planning to have a child? "Boys will be boys" just doesn't cut it any more.
1
Law feminist:
As I understand it the Hyde amendment was an issue in the last presidential election, in that the first major policy announcement the Democratic candidate made after the convention was to call for its repeal. So the issue has recently been the subject of political debate.
It seems to me that we should discuss these matters plainly and not with an eye towards partisan advantage.
As I understand it the Hyde amendment was an issue in the last presidential election, in that the first major policy announcement the Democratic candidate made after the convention was to call for its repeal. So the issue has recently been the subject of political debate.
It seems to me that we should discuss these matters plainly and not with an eye towards partisan advantage.
So basically because David Souter turned out to have a conscience, he gets the blame for Republicans killing the filibuster. Cute 'conservative' logic there Ross =P
22
I thought the law was set evident and justices were merely needed to call balls and strikes? My whole world view is shaken.
5
As noted in some posts, the GOP’s willful refusal to legislatively move Judge Garland’s nomination led to the need for breaking the Senate’s filibuster rule on nominees to the Supreme Court. Another reason was that the GOP foul play on Garland failed to sufficiently excite progressives to prevent Trump from the presidency. The evangelicals, conservatives and those on the right wanted the SCOTUS to be conservative-dominated, because they had a slew of social, economic and political issues that would go before it. On the other hand, those on the left were busy with waging wars among themselves, and forgot that elections have grave consequences of all sorts. Thus, the divided left scattered votes in directions they knew would help make Trump win. They behaved in a way that allowed the Senate GOP to “steal a Supreme Court seat.” Some on the left, having behaved the way they did, even later castigated Senate Dems for not stopping the confirmation of Trump’s cabinet nominees. The left’s actions at the ballot box and the GOP’s Garland shenanigans both helped in bringing us to where we are today.
3
Your reasoning is flawed. Hillary won the general election by over 3 million votes. Trump's presidency is not about a few Democrats who voted for Stein or Mickey Mouse. It is about the electoral college and about a Democratic candidate who neglected to pay attention to it.
Hi, Nora 01 - but surely every reasonably knowledgeable Democrat understood the electoral college, which means that by not taking action to win the election under such legal rules as are in effect at the time of that elections, SA is totally correct, and not the least bit flawed, in his statement that, in the end, they allowed the Senate GOP to 'steal a Supreme Court seat'.
Only someone on the far right would say the pre-Gorsuch court was more existentially dangerous for the right than the left, given that Bush v Gore and Citizen' United changed first the world, then the USA.
8
Every ill we have suffered since Bush v. Gore would not have happened or would have been mitigated had the court not chosen to appoint Bush to the presidency. Without that there would have been no attack on Iraq or Afghanistan; maybe even no attack on the World Trade Center or at least the warnings would not have been ignored; no billionaire tax cuts for as far as the eye can see; better regulation (perhaps) of Wall Street to prevent the Great Recession; likely a Pecora-style investigation of it had it occurred complete with bankers going to jail; a focus on slowing the advance of climate change; a competent response to the plight of New Orleans following Katrina; and no raiding of the treasury for bailouts.
Based on those assumptions, economic inequality would not be where it is; we would lead the world in the development of renewal energy technology; lead the world in stem cell research; value science; improve public education instead of dismantling it; and be at peace with the Middle East to a much larger extent, which would reduce the expense associated with "terrorism" and still have a vibrant middle class.
Ah, but who would want that?
Based on those assumptions, economic inequality would not be where it is; we would lead the world in the development of renewal energy technology; lead the world in stem cell research; value science; improve public education instead of dismantling it; and be at peace with the Middle East to a much larger extent, which would reduce the expense associated with "terrorism" and still have a vibrant middle class.
Ah, but who would want that?
My God, the Supreme Court made a justified decision about the 2000 election (yes, Nora, lots of people - maybe even a majority - thought the Court's reasoning process adequate to the task) and because of that every ill that has been visited upon mankind (yes, womankind, too) since then has been their fault, and every great moment currently lacking in the history of the past 16 years is lacking because of them. Maybe Bill Clinton should get his law license back and solve all these things for you.
I personally agree with many social policy decisions of the Supreme Court such as gay marriage; but that's not the fundamental issue. Rather, the question is should the Court act as a super-legislature overriding Congress when it decides to do so, creating new "supreme law", or simply interpret laws duly passed by Congress, the voters' elected representatives. Creating new law is too much power, in my opinion, for either the Court or Executive agencies.
Our progressive friends understandably prefer a liberal super-legislature to the heavy lifting of changing hearts and minds. Some of our conservative friends are also guilty. I sincerely doubt the wisdom of this thinking. This "ends justify the means" philosophy not only defies the profound wisdom of our founding fathers, it is childish at best. Carried to its logical extreme, voters are reduced to supplicants before nine unelected super-legislators.
Our progressive friends understandably prefer a liberal super-legislature to the heavy lifting of changing hearts and minds. Some of our conservative friends are also guilty. I sincerely doubt the wisdom of this thinking. This "ends justify the means" philosophy not only defies the profound wisdom of our founding fathers, it is childish at best. Carried to its logical extreme, voters are reduced to supplicants before nine unelected super-legislators.
2
Let me tell you a little story about the GOP
It's a party whose motto is "It wasn't me!"
It wasn't me at Watergate!
said Robert Bork after a two-year wait.
It wasn't me, said Clarence T.
I never drink Coke, just Pepsi for me.
It wasn't me, said Tony Scalia.
The pure text of the law is my only familigia.
It wasn't me, said Kentucky Mitch.
I didn't break nothing, stop being a snitch!
So remember dear voters, who may love the Dems,
The right wing is blameless. It simply wasn't them!
It's a party whose motto is "It wasn't me!"
It wasn't me at Watergate!
said Robert Bork after a two-year wait.
It wasn't me, said Clarence T.
I never drink Coke, just Pepsi for me.
It wasn't me, said Tony Scalia.
The pure text of the law is my only familigia.
It wasn't me, said Kentucky Mitch.
I didn't break nothing, stop being a snitch!
So remember dear voters, who may love the Dems,
The right wing is blameless. It simply wasn't them!
10
I do not agree at all with the premise of your article.
4
I was disturbed and opposed when Roe v. Wade was decided. For many years I went to Right-To-Life rallies, wrote letters to the paper and my representatives, and donated money and goods to crisis pregnancy centers. No more. Anti abortion people are clearly willing to pull down our country and our Constitution down around our ears. They are willing to inflict suffering, discrimination, and oppression on scores of peoples, foul the very air, earth, and water that children depend on for life, and pile up sacrifices to the Money gods, all so they can end legal abortion.I am disgusted beyond words with the results of the anti-abortion movement. A pox on them and their benighted movement.
11
According to your logic, If Souter had voted more conservatively "that the gay rights movement would have subsequently advanced through referendums and legislation rather than a sweeping constitutionalization of cultural debate"
And if O.J. was found guilty the first time, Black Lives Matter wouldn't have been necessary? Michael Jackson would still be Alive?
What utter nonsense you speak.
And if O.J. was found guilty the first time, Black Lives Matter wouldn't have been necessary? Michael Jackson would still be Alive?
What utter nonsense you speak.
9
Supreme Court candidates' qualifications used to be based on one overriding concept - that the nominee was greatly experienced, respected by his or her peers, solid in his or her decisions, and, indeed, qualified by their standing in the legal profession to sit on the nation's highest court. Politics rarely came into the equation at all, at least until Roosevelt, and for all considerations, not until Ted Kennedy met Robert Bork. The legal professions assessment of a candidate's professionalism and excellence was the biggest factor, followed (or hopefully so) by an examination of that candidate's decisions - no matter which side of the political aisle they came down on - to see if those decisions were ultimately defensible; in other words, how many of the candidate's decisions were overturned by a subsequent and/or higher court. That is what should be the standard. Mr. Garland probably would have met them, and Mr. Gorsuch certainly did. Everything else is political nonsense, no matter which side of the aisle is experiencing a temporary gore from the White House bull.
1
Gorsuch had a decision overturned by the supreme court during his confirmation hearing, or didn't you hear that?
1
Yes, Nora 01, I did know that, but out of how many decisions he rendered during his years as a judge. If you read properly (which you don't) you would see that I wrote "...how many of the candidate's decisions were overturned by a ...higher court". Also, my recollection is that this was the only one, and the decision that was overturned was one in which he joined a majority of other justices considering the case, so overturned or not, his was not some kind of off-the-wall decision. Question: Has any SC justice with a reasonably lengthy background as a judge not had at least one or more prior decisions overturned by a higher court? Hell, the SC rethinks and effectively overturns its own decisions as the years go by. Remember Dred Scott?
Since we playing alternative history here, let's look at the Religious Freedom Restoration Act of of 1993 (RFRA). It elevated the practice of religion, any religion whether Catholicism or Scientology, over those groups that did not organize under this rubric. Ironically, in the challenge, City of Boerne v. Flores, one Justice, John Paul Stevens called as it was, a breach of the establishment clause of the first amendment, that specifically disadvantaged atheists.
No one ever lost an election by defending religion in America, so this bill passed Congress almost unanimously. It was this bill, and it's state versions, that defined the extensive and broad rights of an individual who follows the edicts of their religion when in conflict with duly passed laws at all levels of government. This is what both Gorsuch and Alito cited as allowing the Hobby Lobby owners to prevail.
Ironically, the RFRA legislation was introduced by Rep. Charles Schumer in the house, the same person who now uses Hobby Lobby to excoriate those Justices who enforce the law he promoted.
AlRodbell.com
No one ever lost an election by defending religion in America, so this bill passed Congress almost unanimously. It was this bill, and it's state versions, that defined the extensive and broad rights of an individual who follows the edicts of their religion when in conflict with duly passed laws at all levels of government. This is what both Gorsuch and Alito cited as allowing the Hobby Lobby owners to prevail.
Ironically, the RFRA legislation was introduced by Rep. Charles Schumer in the house, the same person who now uses Hobby Lobby to excoriate those Justices who enforce the law he promoted.
AlRodbell.com
2
"the same forces that doomed Robert Bork ..."
-------
Bork doomed himself by undertaking the Saturday Night Massacre during the Nixon Administration's Watergate fiasco. Bork's nomination also proceeded to a full vote on the Senate floor, despite the fact that the Senate Judiciary Committee did not approve the nomination. The vote in the full Senate was 58-42 against the nomination. 6 Republicans voted against him and 2 Democrats for him.
It's time the conservatives stopped dragging Bork out as the poster child for mistreatment during every judicial nomination.
-------
Bork doomed himself by undertaking the Saturday Night Massacre during the Nixon Administration's Watergate fiasco. Bork's nomination also proceeded to a full vote on the Senate floor, despite the fact that the Senate Judiciary Committee did not approve the nomination. The vote in the full Senate was 58-42 against the nomination. 6 Republicans voted against him and 2 Democrats for him.
It's time the conservatives stopped dragging Bork out as the poster child for mistreatment during every judicial nomination.
10
Wow Ross, your sense of entitlement is truly breathtaking! Republicans misjudged Souter, their pick for the court, and thus failed to stack the court and overturn Roe, a 7-2 decision. That horrible injustice then 30 years later justifies shredding over a century of protocol to pack the court with extreme right-wingers?
How then should liberals feel when Republicans replace a towering justice like Thurgood Marshall with a extremist like Clarence Thomas, or deny their moderate choice of Garland with another extremist like Gorsuch? Don't complain the earth is charred when your team has scorched it.
How then should liberals feel when Republicans replace a towering justice like Thurgood Marshall with a extremist like Clarence Thomas, or deny their moderate choice of Garland with another extremist like Gorsuch? Don't complain the earth is charred when your team has scorched it.
10
If I understand this correctly, the problem posited is that Souter based his decisions on the cases before him, rather than upon the President who nominated him. Did I get that right? Perhaps he is the solution, and the rest of the Justices are the problem.
7
Russ, Wonder why 'liberal' judges never seem to become traitors as they age on the bench?
Maturity and independence in a judge like Souter is admirable, not traitorous...
Maturity and independence in a judge like Souter is admirable, not traitorous...
8
The thought that overturning Roe v. Wade would simply send the abortion question back to the states is either disingenuous or adorably credulous. The minute Roe v. Wade is overturned the malevolent force that is the Republican party will immediately pass a Federal ban on abortions. This whole business of it "just going back to the states" is simply a way to keep Democrats and other rational people from really freaking out before it's too late. If you think the chuckle-heads they're sticking on the supreme court would have a problem with that, you've gotta be kidding. Everybody needs to understand the stakes. There is no way the anti abortion movement is going to stop until there is a Federal ban, and there is no way the Malevolent force that is the Republican party will stop feeding them what they want.
This is war, and the stakes are dire, extreme and total. Don't think for a minute you'll be safe from these people because you live in a blue state. They won't be satisfied until we're all Mississippi, or Kansas or Texas.
This is war, and the stakes are dire, extreme and total. Don't think for a minute you'll be safe from these people because you live in a blue state. They won't be satisfied until we're all Mississippi, or Kansas or Texas.
5
This column reminds me very much of the current counterfactual journalistic trend of declaring that the West would have been better off long term if Germany had won World War I; to which the rejoinder is is always, "Belgium!"
Belgium.
Belgium.
3
Poor Ross cannot understand that even his mental acrobatics and verbosity cannot stop the inexorable move to the left. We move left because it is a move toward rationality, understanding and caring.
The right is incapable of anything but self-centered nihilism.
The right is incapable of anything but self-centered nihilism.
5
The hilarity of this article is a perfect illustration of why the GOP is a real threat to America even sans Trump and the TeaParty.
Look out if Pence ever ascends to POTUS.
The malevolence of McConnell and the old GOP Politburo can not be underestimated.
Look out if Pence ever ascends to POTUS.
The malevolence of McConnell and the old GOP Politburo can not be underestimated.
6
Douthat is correct that Souter's betrayal was part of the cast that have kept the court's liberal precedents standing. And it's a long list. Roberts and Rehnquist before him have led a majority conservative Supreme Court for more than 30 years - but with precious little to show for it. Most of the decisions that still irk conservatives and undermine our Constitution date back to the Warren and Burger decisions of the Great Society days - Abood (1977 - unions), Roe v Wade (1973 - abortion), Bakke (affirmative action - 1978), etc.
A lot of this stems from such a strong aversion by conservative to liberal Justices "legislating from the bench" that they were wary of being accused of doing the same thing. As Goldwater correctly said, however, " Moderation in the protection of liberty is no virtue." This is perhaps best observed in the Chevron decision (1983) which basically paved the way for unelected regulators to reign supreme over both Congress and the Courts.
Led by people like Prof Barnett of Georgetown, this thinking is changing. Conservatives are finally starting to recognize that reversing previous decisions that attempt to change our political strucure does not make them "legislators with black robes". Rather, it makes them defenders of the Constitution and hopefully helps restore our belief in a nation governed by the "rule of law" rather than the "rule of men".
A lot of this stems from such a strong aversion by conservative to liberal Justices "legislating from the bench" that they were wary of being accused of doing the same thing. As Goldwater correctly said, however, " Moderation in the protection of liberty is no virtue." This is perhaps best observed in the Chevron decision (1983) which basically paved the way for unelected regulators to reign supreme over both Congress and the Courts.
Led by people like Prof Barnett of Georgetown, this thinking is changing. Conservatives are finally starting to recognize that reversing previous decisions that attempt to change our political strucure does not make them "legislators with black robes". Rather, it makes them defenders of the Constitution and hopefully helps restore our belief in a nation governed by the "rule of law" rather than the "rule of men".
2
Souter is not nearly the outlier that you suggest when viewed in the context of Justice Brennan (appointed by Eisenhower); Justice White (appointed by Kennedy); and Justice Blackmun (appointed by Nixon). Historical perspective indicates that the Republican Party -- and its social viewpoint -- has become the outlier.
7
I clicked on this column because I was intrigued by the title. But I gave up. Not because of what Douthat said about Souter but because seven paragraphs in he hadn't gotten to the subject. This isn't the first time. Apparently no one has ever told him there is no crime in being concise.
1
to summarize this article, the Fillibuster has been removed because in the 1990s, a moderate republican president, elected by a clear majority, nominated a moderate republican to the supreme court, who was confirmed by the senate at a 90-9 vote, but later (ie after fox news) he was viewed as a traitor by right wing republicans because he didn't vote far right the way they now wanted him too. So if only GHB had been prescient enough to have nominated someone who completely disagreed with his politics, we wouldn't be in the mess we are in? Really?
5
Have you ever noticed the number of times the word liberal appears in this column. Today liberal is used 12 times and conservative 6. Ross' use of the word liberal is usually in a negative context.
Is it just me or do you find Douthat hard to follow? I read all of his columns searching for common ground and an understanding of how the right thinks. He has not delivered. I understand Rove, Stephens and Kim Strassel at the WSJ. I don't get this guy.
Is it just me or do you find Douthat hard to follow? I read all of his columns searching for common ground and an understanding of how the right thinks. He has not delivered. I understand Rove, Stephens and Kim Strassel at the WSJ. I don't get this guy.
2
I find myself also confounded.
I might understand him better if he was more direct and honest about what ideas of his own he wants to convey, i.e., just come out and say I think SCOTUS judges should generally vote along party lines...and they sometimes don't and when they don't and they are my party, and I don't like it.
Or, I don't like the Supreme Court decisions that don't evidence my viewpoint, especially when "one of mine" voted for it.
Then he could say, we really don't need a Supreme Court after all....and then he could say, hmmm, I wonder if my perspective makes sense and then he might write about something completely different.
But again I said I am confounded.
I might understand him better if he was more direct and honest about what ideas of his own he wants to convey, i.e., just come out and say I think SCOTUS judges should generally vote along party lines...and they sometimes don't and when they don't and they are my party, and I don't like it.
Or, I don't like the Supreme Court decisions that don't evidence my viewpoint, especially when "one of mine" voted for it.
Then he could say, we really don't need a Supreme Court after all....and then he could say, hmmm, I wonder if my perspective makes sense and then he might write about something completely different.
But again I said I am confounded.
The central tenet of this column (as pointed out in another comment) does appear to be that a Justice, nominated by a Republican President betrayed his party by not voting along the lines of the preferred social views of a key faction of that party. The curious part of the argument is the conflation of conservative principles with social reactionary positions. Justice Souter's votes on some key cases are considered blunders. I find this hard to accept.
Mr. Douthat seems to be arguing against some of the most solemn concerns of conservatism: the equal rights of all individuals and the freedom of the individual to make choices not constrained by the community under some arbitrary view of conformity. I am curious to see how Mr. Douthat can argue that contrary decisions in cases like Casey, or Lawrence, or Obergefell can be defended on these conservative lines. Imposing the will of the majority does not translate to conservatism when it comes at the price of overruling rights of the individual. We want Justices who can read the law and derive its meaning on the basis of clear logic. (I am not, however, advocating the Originalist fantasy.) It is neither an "epic blunder" nor an "own goal" to elevate a judge who can put principle above rationalizing the urgings of the moment.
Mr. Douthat seems to be arguing against some of the most solemn concerns of conservatism: the equal rights of all individuals and the freedom of the individual to make choices not constrained by the community under some arbitrary view of conformity. I am curious to see how Mr. Douthat can argue that contrary decisions in cases like Casey, or Lawrence, or Obergefell can be defended on these conservative lines. Imposing the will of the majority does not translate to conservatism when it comes at the price of overruling rights of the individual. We want Justices who can read the law and derive its meaning on the basis of clear logic. (I am not, however, advocating the Originalist fantasy.) It is neither an "epic blunder" nor an "own goal" to elevate a judge who can put principle above rationalizing the urgings of the moment.
3
Deaf ears baby.
All true, but deaf ears. Dumb ears too.
All true, but deaf ears. Dumb ears too.
More twisted rationalization by Douthat attempting to blame democrats for ethically challenged McConnell.
2
"...Souter, ...effectively betrayed the party that put him on the court...."
This is such a stark and telling statement by Douthat.
If the Supreme Court is supposed to be a distinct arm of government, neutral and judicious, two words that have sadly been absent in too many of the last several years, how on earth can a nominee be considered to have betrayed anyone? The justice should be true to the law and the Constitution; those are the guiding principles!
The real betrayal occurred with the derailing of the completely legal nomination of Merrick Garland.
I am appalled that all thoughtful citizens didn't rise up and protest this glaring apostasy by Mitch McConnell and his partners in crime.
Considering that Republicans' reverence of Antonin Scalia for his originalism, it is the height of hypocrisy that this constitutional right of a sitting president, one who was elected twice, in fact, should have been so heinously abridged for partisan and completely non-neutral reasons.
To me, this is one of the worst transgressions that Republicans managed to get away with and I hold Democrats everywhere responsible for letting it happen.
This is such a stark and telling statement by Douthat.
If the Supreme Court is supposed to be a distinct arm of government, neutral and judicious, two words that have sadly been absent in too many of the last several years, how on earth can a nominee be considered to have betrayed anyone? The justice should be true to the law and the Constitution; those are the guiding principles!
The real betrayal occurred with the derailing of the completely legal nomination of Merrick Garland.
I am appalled that all thoughtful citizens didn't rise up and protest this glaring apostasy by Mitch McConnell and his partners in crime.
Considering that Republicans' reverence of Antonin Scalia for his originalism, it is the height of hypocrisy that this constitutional right of a sitting president, one who was elected twice, in fact, should have been so heinously abridged for partisan and completely non-neutral reasons.
To me, this is one of the worst transgressions that Republicans managed to get away with and I hold Democrats everywhere responsible for letting it happen.
2
No, the real, REAL derailing started when Mr. Roosevelt attempted to pack the Supreme Court some 80 years back. That he didn't succeed was a tribute to our then sense of fairness and Constitutionality, but it started the now never-ending attempt to pack it slowly but only with people we deem politically appropriate.
The worst and most profoundly tragic part of this is that American's vaunted and once admired justice system has become little more than a rubber-stamp machine, not very different than the "justice" systems of the seediest banana republic.
In most of these personality driven states - Russia comes to mind - the ruler of the country rules the court and the court does what the ruler says - or else. There is no institutional justice based on precedent, consensus or even the Constitution, there is only ideology and political expediency. We have now entered an era where a political party will control justice in America and the law will say what the Party tells it to say. What Mitch McConnell and Republican senators did to Garland Merrick will go down in history as the most egregious and evil political act in the history of the nation.
The Supreme Court was once the most cherished, trusted and revered institution in America, but now when one mentions it people actually laugh. It has become just one more clown act at the circus.
We will pay dearly for McConnell's treachery. Watch and see.
In most of these personality driven states - Russia comes to mind - the ruler of the country rules the court and the court does what the ruler says - or else. There is no institutional justice based on precedent, consensus or even the Constitution, there is only ideology and political expediency. We have now entered an era where a political party will control justice in America and the law will say what the Party tells it to say. What Mitch McConnell and Republican senators did to Garland Merrick will go down in history as the most egregious and evil political act in the history of the nation.
The Supreme Court was once the most cherished, trusted and revered institution in America, but now when one mentions it people actually laugh. It has become just one more clown act at the circus.
We will pay dearly for McConnell's treachery. Watch and see.
Ross ordinarily manages to keep the most malignant aspects of his deviant brand of 'conservatism' bottled up.
I see today he's not only left the lid off but knocked the bottle over. What a disgusting mess.
I see today he's not only left the lid off but knocked the bottle over. What a disgusting mess.
4
So many misstatements, misleading statements, and half-truths in so little space? To wit:
"Bork was Borked...Garland pocket-vetoed."?
Utterly "false equivalency"! There's NOTHING comparable about the two scenarios. Bork GOT his hearing and made a hash out of it--ideological, belligerent, and injudicious in temperament. (The fact that Bork did Nixon's dirty work and fired Archibald Cox was also a factor--as it should have been, showing Bork put politics over the law!)
Garland got NO hearing, in clear violation of the spirit, if not the letter, of the Constitution. Garland had been widely praised as a "highly qualified" judge, even by Republicans. This was raw, ugly politics!
"The strangeness of the Souter appointment..."?
There was NOTHING "strange" about the Souter appointment! After Bork, the Republicans wanted a nominee with little or no tracks in terms of decisions and preferably not one well known. Souter was widely referred to at the time as a "stealth nominee," designed to slip through confirmation essentially unnoticed!
The fact that Souter turned out to be a person of conscience, not lockstep ideology, was really a coincidence -- and a nicely fortuitous one! (Cf. Earl Warren.)
And the idea that the purity of the nomination process would have been somehow better off has Souter "simply voted like a typical Republican appointee"and voted to kill Roe v. Wade, etc. is risible. Souter voted his conscience! As "typical Republican appointees" once did!
"Bork was Borked...Garland pocket-vetoed."?
Utterly "false equivalency"! There's NOTHING comparable about the two scenarios. Bork GOT his hearing and made a hash out of it--ideological, belligerent, and injudicious in temperament. (The fact that Bork did Nixon's dirty work and fired Archibald Cox was also a factor--as it should have been, showing Bork put politics over the law!)
Garland got NO hearing, in clear violation of the spirit, if not the letter, of the Constitution. Garland had been widely praised as a "highly qualified" judge, even by Republicans. This was raw, ugly politics!
"The strangeness of the Souter appointment..."?
There was NOTHING "strange" about the Souter appointment! After Bork, the Republicans wanted a nominee with little or no tracks in terms of decisions and preferably not one well known. Souter was widely referred to at the time as a "stealth nominee," designed to slip through confirmation essentially unnoticed!
The fact that Souter turned out to be a person of conscience, not lockstep ideology, was really a coincidence -- and a nicely fortuitous one! (Cf. Earl Warren.)
And the idea that the purity of the nomination process would have been somehow better off has Souter "simply voted like a typical Republican appointee"and voted to kill Roe v. Wade, etc. is risible. Souter voted his conscience! As "typical Republican appointees" once did!
2
Bork had his vote in the Senate. Ross Douthat was just 17 years old, so maybe he does not remember. Bork lost 42 for to 58 against. Both facts inform today's RD Times piece. Boren OK, Hollings SC, both Dems, voted for Bork. Warner VA, Stafford VT, Chafee RI, Spector, PA, Packwood OR, all Republican, voted Nay against Bork. John Stennis of Mississippi a rather conservative Dem voted against. Boy oh boy: by comparison those were heady times, with people who thought for themselves.
5
Oh my! Little Ross was a mere 7 years old in '87! Like a trooper GO-P, T-P, Freedom-P soldier, he is also a PAC animal.
"Glad that he effectively betrayed the party that put him on the court". Mr Souter did his job, which is to interpret and apply the constitution. Never has he pledged or promised to serve a partisan agenda. Arguing betrayal is implying that Mr Souter owed allegiance to a partisan agenda, where none was owed - on the contrary.
Mr. Douthat, your current framing only adds more fuel to the fire of cynicism.
Mr. Douthat, your current framing only adds more fuel to the fire of cynicism.
2
Whenever the Senate does anything, I'm reminded that California with 33 million people gets 2 senators. Wyoming with less than 500,000 people gets 2 senators. Representative democracy? I don't think so. Republicans have been taking advantage of that fundamental error committed by the founders for many years, decades, centuries if you count the GOP predecessors, the Whigs. What to do. I don't know either. Maybe, take away some of their authority on issues which the senate has a monopoly, like consenting to Supreme Court justices.
1
The role of a judge is not so serve the party of the President who appointed her. It is, instead, to serve the law. David Souter did that, much to the chagrin of conservatives who wanted him instead to serve ideology. His career was honorable and marked by intellectual honesty. Get over it, Douthat.
2
Douthat proves he is the weakest link by prefacing his contention with the false equivalency of Bork and Garland. This change is purely the result of the GOP's insistent will to power and disregard for democracy. The GOP essentially told Obama voters like me that our vote doesn't matter.
1
This article is guilty of Revisionism of the worst sort.
1
Is there a field more replete with chicken and goat entrail scrutinizers than supreme court reporting?
1
SCOTUS has always been an instrument of the federal government. Protection of the government and its prerogatives has thus quite naturally been the foremost consideration when ruling on cases in which the United States is a party. It is foolish to think that SCOTUS isn't biased in such cases. Its judges are dependent upon the fruits of the government's taxation, and no less is its jurisdiction, the source of its overwhelming power, dependent on the United States government and the taxes necessary to support and implement its authority. For these reasons, when SCOTUS is presented with cases involving taxes, the U.S. almost always prevails, justice and judicial integrity to the contrary notwithstanding.
So it was in the first tax case of any consequence to reach Scotus in 1796 when the ink on the Constitution had barely dried. Hylton vs. U.S. challenged the 1794 Carriage Tax, which Hylton argued was unconstitutional because it was a direct tax that had not been "apportioned" as required by two clauses of Article I of the Constitution. A direct tax was commonly understood to be one the government collected directly from the taxpayers, whereas an indirect tax was one collected from third parties but passed on to the ultimate taxpayer in the form of an addition to the cost of a product or service. Apportionment made it substantially harder to implement a direct tax. It was included in the Constitution as a "right" of the people.
So it was in the first tax case of any consequence to reach Scotus in 1796 when the ink on the Constitution had barely dried. Hylton vs. U.S. challenged the 1794 Carriage Tax, which Hylton argued was unconstitutional because it was a direct tax that had not been "apportioned" as required by two clauses of Article I of the Constitution. A direct tax was commonly understood to be one the government collected directly from the taxpayers, whereas an indirect tax was one collected from third parties but passed on to the ultimate taxpayer in the form of an addition to the cost of a product or service. Apportionment made it substantially harder to implement a direct tax. It was included in the Constitution as a "right" of the people.
The principle that McConnell established is that the majority party (if Republican) has the right to use procedural mechanisms to defy the mandate of the Constitution that the Senate advise on and consent to the appointment of federal judges.
What does it matter that Scalia died a year before the end of Obama's second term? What if Obama had had two, three, or four years left in office? True, Republicans would be hard-pressed to use their lame "wait and let the people decide (in the next election!)" rationale for scuttling the Constitution. (Uh, by the way, we chose in the LAST election, doofus.) But having successfully pulled off a bait-and-switch in a one-year time frame, the Republicans can now invent any new bumper-sticker rationale (or offer no rationale at all) and simply refuse to consider Democratic nominees for the Supreme Court.
What does it matter that Scalia died a year before the end of Obama's second term? What if Obama had had two, three, or four years left in office? True, Republicans would be hard-pressed to use their lame "wait and let the people decide (in the next election!)" rationale for scuttling the Constitution. (Uh, by the way, we chose in the LAST election, doofus.) But having successfully pulled off a bait-and-switch in a one-year time frame, the Republicans can now invent any new bumper-sticker rationale (or offer no rationale at all) and simply refuse to consider Democratic nominees for the Supreme Court.
I wish Mr. Douthat would end his sulking about Trump and get back in the game. These "what if" columns he keeps writing belong in Academia not the NYT.
2
Wait! Aren't justices supposed to listen to arguments and interpret the law? I didn't realize they were supposed to sign on as liberals or conservatives and stick to it, no matter what the case or argument. I had no idea that if a justice listened to arguments and thought something through that their decision would constitute a "betrayal" if it didn't adhere to the political ideology of the president who appointment them. Mercy me! I am about as far left of center as you can be on social issues and not be an extremist wacko, and I still think the best Supreme Court should be comprised of moderate justices who may just vote either way depending on the case.
What a weird column. But if you are going back to find long-forgotten branches, are you sure, Mr. Douthat, that President Thomas Jefferson wasn't the root cause of this latest travesty tipped by Sen. Mitch McConnell's warped sense of American fair play?
Well, the dam is unplugged now. No hope of a maintaining a reservoir of respect for difference of opinion by fellow citizens.
It is bare knuckles at all levels, just as Vladimir Putin thought would occur after he engineered Trump's campaign.
Well, the dam is unplugged now. No hope of a maintaining a reservoir of respect for difference of opinion by fellow citizens.
It is bare knuckles at all levels, just as Vladimir Putin thought would occur after he engineered Trump's campaign.
2
Souter? Seriously? McConnell killed the Filibuster. First by using against everything Obama did and second to pack the Supreme Court with Mr. Gorsouch. The Republicans did this, no one forced them to. They did it on purpose, for ideological reasons. They should at least own it, but instead they try to avoid responsibility. Typical. They did it despite the fact that the majority of Americans have tried to vote for Democrats in 6 of the last 7 elections, still the court is packed full of right wing extremists.
This is against the will of the American people. As if that ever counted for anything to the Republican Party.
This is against the will of the American people. As if that ever counted for anything to the Republican Party.
2
"and that the gay rights movement would have subsequently advanced through referendums and legislation rather than a sweeping constitutionalization of cultural debate."
I've seen Douthat and others make this argument before, that the Supreme Court did a disservice in Obergefell v. Hodges because it some how denied the electorate the chance to absorb and implement these advances in a more "democratic" way. I'd like to know if Mr. Douthat would assent to a vote that decides his own right to reproduce? A no would mean he never has kids and any that already exist are taken from him. Sound fair and "democratic"? The basic human right of people to love each other and choose to live their lives together should never be a part of a "cultural debate." It's nobody else's business.
I've seen Douthat and others make this argument before, that the Supreme Court did a disservice in Obergefell v. Hodges because it some how denied the electorate the chance to absorb and implement these advances in a more "democratic" way. I'd like to know if Mr. Douthat would assent to a vote that decides his own right to reproduce? A no would mean he never has kids and any that already exist are taken from him. Sound fair and "democratic"? The basic human right of people to love each other and choose to live their lives together should never be a part of a "cultural debate." It's nobody else's business.
The premise of this article is that liberal vs conservative is baked into the court and that a nominee owes allegiance to what the majority party intended. How about if we nominate excellent centrists and let them decide the cases based on low and their own evolving judicial philosophy? The seems to me to have been the intentions of the founding fathers when they structured the court to life long tenure--to place the court beyond the reach of factionalism. I know that the evolution of our culture distresses conservatives, and that Roe v. Wade in particular is a flash point, but it seems perilous to me that the Republicans in particular have so politicized the court. Is there any justification for their refusal to consider Merrick beyond naked partizan politics and a desire to reverse Roe v. Wade? I think not.
2
Terrible column by Mr. Douthat. Leaving abortion and gay rights to the states is akin to having each state set up their own Bill of Rights. Equality of opportunity, the right to life, liberty, and the pursuit of happiness applies to all American citizens. Douthat would have the states pick and choose who is more equal than others. I can just see southern states re-implementing segregation.
1
David Souter was one of the finest Supreme Court justices ever to take that bench. He went where the law led him. For example, in the pivotal decision upholding a woman's constitutional right to terminate a pregnancy (an opinion which he wrote) he shifted the legal basis for this right onto a much more sustainable basis (equal protection of the law instead of the more questionable right of privacy) and, most of all, recognized the importance of precedent. Precedent not as an legal abstraction but as what it is: the accumulation of experience. The entire decision is anchored on the notion that all the years since Roe was first decided had created a new generation of women for whom the level playing field created by Roe was a given -- and a court doesn't lightly pull the plug on that. It is a legally sound, humane, and very wise decision. But alas, for Mr. Douthat, not an ideological one. If only we had the likes of the non-ideological Justice Souter to protect us today.
126
thank you for a brilliant and accurate tribute to justice david souter. i am a proud progressive and was delighted when he took his place on the court. as a citizen of New Hampshire, i'm extremely embarrassed to admit the younger sununu son, chris, is now our gov.
Why would Mr. Douthat perceive Souter as some kind of a traitor?
It is just as possible that those justices on the Conservative spectrum of the Supreme Court have gone so far to the right that a justice like Souter becomes liberal by default.
Then there is that insidious theory of "Founders Intent" or "Originalism", as if the world of The Founders has any correlation to ours. I wonder if Mr. Douthat understands how many things have changed since the time of The Founders? If anything, a philosophy like this has to create some form of denial in terms of human evolution. in order for it to work. In effect, you end up cherry picking "intent", then whitewashing those elements that have an uncomfortable history behind it.
Even more ironic is how much more activist a Supreme Court like this becomes. To presume that The Founders created a document that was not meant to evolve as our living conditions evolves makes absolutely no sense.
In other words, I wonder what The Founders would think about the evolution of corporate "rights" that now shadow individual ones.
Somehow these kinds of Supreme Court rulings have evolved into what Conservatives now call "Founder's Intent", when clearly from the onset of the Constitution, they perceived it as something different.
Souter ruled on the here and now, whereas those with Scalia-like decisions involved a base ideology, using "Founder's Intent" as an excuse. The loss of the Filibuster was just collateral damage.
It is just as possible that those justices on the Conservative spectrum of the Supreme Court have gone so far to the right that a justice like Souter becomes liberal by default.
Then there is that insidious theory of "Founders Intent" or "Originalism", as if the world of The Founders has any correlation to ours. I wonder if Mr. Douthat understands how many things have changed since the time of The Founders? If anything, a philosophy like this has to create some form of denial in terms of human evolution. in order for it to work. In effect, you end up cherry picking "intent", then whitewashing those elements that have an uncomfortable history behind it.
Even more ironic is how much more activist a Supreme Court like this becomes. To presume that The Founders created a document that was not meant to evolve as our living conditions evolves makes absolutely no sense.
In other words, I wonder what The Founders would think about the evolution of corporate "rights" that now shadow individual ones.
Somehow these kinds of Supreme Court rulings have evolved into what Conservatives now call "Founder's Intent", when clearly from the onset of the Constitution, they perceived it as something different.
Souter ruled on the here and now, whereas those with Scalia-like decisions involved a base ideology, using "Founder's Intent" as an excuse. The loss of the Filibuster was just collateral damage.
80
"Founder's Intent" is basically unknowable. It is just a justification for confirmation bias in which we see what we want to see.
We are at the point today where any candidate will be confirmed if the same party controls the Senate and White House, and no candidate can be confirmed if the Senate and White House are controlled by different parties.
1
It all seems to come down to where one stands on God. It has become a very controversial issue since the US Congress legislated that its authority devolves from a deity, not specific delegated powers negotiated from the citizens.
Bork and Garland were not doomed by the same forces - one got a hearing.
10
The one consistency with Douthat's columns is to blame liberals, progressives, or Democrats for every single political problem no matter how obvious the GOP role is. He goes out of his way to make up narratives to reach his predetermined conclusion. It's often creative even if illogical.
6
The Constitution awards the President broad powers to nominate public officials with the “advice and consent” of the Senate. Whether we like the President or not, he was elected by the people and has the duty and right to nominate a Supreme Court Judge.
I am fine with having a simple Senate majority approving or rejecting the President’s choice. Too much is made of the voting rules of the Senate. The real travesty is the Senate’s refusal to even consider President Obama’s nominee. I believe we should concern ourselves with the Senate’s breach of the Constitution given its failure to vote over Merrick Garland, rather than the voting process relating to Judge Gorsuch.
I am fine with having a simple Senate majority approving or rejecting the President’s choice. Too much is made of the voting rules of the Senate. The real travesty is the Senate’s refusal to even consider President Obama’s nominee. I believe we should concern ourselves with the Senate’s breach of the Constitution given its failure to vote over Merrick Garland, rather than the voting process relating to Judge Gorsuch.
8
the true sadness comes from realizing that what is just can be perceived through an ideological lens. I don't care much about citizens united, but i do care about Roe v wade, and the Court's view of the fourth amendment, weakened over the years to give police more power. Fear and selfishness and cruelty drive our politics and the result is a court that hews close to the same views.
1
I can recall in grade school thinking that it was possible under the right circumstances that the supreme court might legally be made to vanish entirely without the use of a constitutional amendment by the senate refusing to confirm any appointees. While the court would then have vanished it would continue to exist in the legal equivalent of Schrodinger's cat.
Mr. Delta: unless you can run the counterfactual, which in this case you cannot, then everything you have to say is merely speculation and supposition. Unfortunately, I can see no correlation between the treatment of Garland Merrick and the appointment of Gorsuch to the Supreme Court with the full hearing given to Bork and the appointment of Justice Souter. The circumstances surrounding both incidences are completely different and any attempt to correlate them again is mere speculation and supposition.
2
Why do you characterize individual justices' positions in Supreme Court cases as matters of "swinging" right or left? Are these decisions fundamentally ideological, political, legal, historical? It seems to me that some justices who have claimed to be "originalist" in their philosophy are attempting to find (from their modern point of view) a way to seal up the language of the Constitution in a historical box that is no longer meaningful in contemporary society. The literalism/historicism of that point of view can only be speculative in retrospect, since we know that (for example) the Second Amendment's provision about the right to keep and bear arms applied to arms (muskets?) that are virtually nonexistent today, outside of museums. Go down that road and it leads to an 18th Century dead end.
Justices in other decisions have tried to find and understand the essential principles expressed in the Constitution's language and in the legal precedents that have been developed since. What does the phrase "equal protection of the laws" mean, for example, and to whom does it apply? Without placing those principles in the context of today's society, the Constitution loses its meaning and its relevance to contemporary life and may as well be an old, yellowed newspaper, good only for pulping.
Justices in other decisions have tried to find and understand the essential principles expressed in the Constitution's language and in the legal precedents that have been developed since. What does the phrase "equal protection of the laws" mean, for example, and to whom does it apply? Without placing those principles in the context of today's society, the Constitution loses its meaning and its relevance to contemporary life and may as well be an old, yellowed newspaper, good only for pulping.
1
Gee... and I thought it was all owed to the unprincipled tenure of Mitch McConnell.
3
Since when did 'religious liberty' come to mean the ability to use the coercive power of the state to force my religious views on someone else?
6
Isn't the point of lifetime appointments so the judge can not be influenced by needing to be "re-appointed" and rule on cases free of politics. Which is exactly what David Souter did.
4
Ross's column is a dramatic example of how Republicans would prefer to fool people with plausible-sounding narratives than to discuss actual facts.
First fact: Roe v Wade was NOT written, as seems to be implied by Republican essayists, by some kind of liberal woman on the Court. In fact, there had not been a single woman on the Court in its entire history at the time of Roe v Wade.
This decision was written by a Republican appointee from the Midwest who didn't think that State Legislatures should be telling doctors what to do.
Republicans like to trick sincere people who are opposed to abortion into imagining that there were no abortions all through history until Roe v Wade.
The issue was safety and not sending frightened women to risk infections, hemorrhage and death.
Fact Two: Republicans attacked Republicans such as Earl Warren for upholding (e.g. equal protection) the Constitution
In fact, today's Republicans are increasingly unAmerican. They attack people, like Souter, who are Republicans with a commitment to the Constitution, and, having moved to the extreme right, believe most of all in protecting corporate power with, e.g. their bought and sold Citizens United case, while reconstructing barriers to letting actual citizens vote.
Republicans use their power to crush the clearly expressed will of a majority of Americans.
McConnell wanted to protect his secret money Citizens United gravy train. That's all this stolen seat/Gorsuch appointment was about.
First fact: Roe v Wade was NOT written, as seems to be implied by Republican essayists, by some kind of liberal woman on the Court. In fact, there had not been a single woman on the Court in its entire history at the time of Roe v Wade.
This decision was written by a Republican appointee from the Midwest who didn't think that State Legislatures should be telling doctors what to do.
Republicans like to trick sincere people who are opposed to abortion into imagining that there were no abortions all through history until Roe v Wade.
The issue was safety and not sending frightened women to risk infections, hemorrhage and death.
Fact Two: Republicans attacked Republicans such as Earl Warren for upholding (e.g. equal protection) the Constitution
In fact, today's Republicans are increasingly unAmerican. They attack people, like Souter, who are Republicans with a commitment to the Constitution, and, having moved to the extreme right, believe most of all in protecting corporate power with, e.g. their bought and sold Citizens United case, while reconstructing barriers to letting actual citizens vote.
Republicans use their power to crush the clearly expressed will of a majority of Americans.
McConnell wanted to protect his secret money Citizens United gravy train. That's all this stolen seat/Gorsuch appointment was about.
78
It all seems to come down to who can buy the senate seats and electoral college votes of the least populated US states.
3
I was going to comment, but this comment pretty much summarized my reaction to Douthat's vexation at the notion that judges are responsible to the law and the Constitution, not his political and religious beliefs.
1
"But a liberal can be glad that Bush nominated Souter."
Ross, how could you possibly have any notion about what would make a Liberal glad?
In piece after piece you have consistently demonstrated that you have no comprehension of what "liberal" means let alone signifies.
Your so identified with your own views that your simply not able to deal with abstract concepts or IDEAS such as Liberty and Justice for all. This by the way is the problem with "right wing" intellects. They, and Neil Gorsuch seems to be a prime example, are simply not able to comprehend that IDEAS are Living Concepts in harmony with the Physics that run the Cosmos. Our effort is to continue to build a planet that more and more manifests these Concepts.The Chambered Nautilus by Oliver Wendell Holmes, "build thee more stately mansions oh my soul" this is what Liberalism is about. Can you go there Ross?
Ross, how could you possibly have any notion about what would make a Liberal glad?
In piece after piece you have consistently demonstrated that you have no comprehension of what "liberal" means let alone signifies.
Your so identified with your own views that your simply not able to deal with abstract concepts or IDEAS such as Liberty and Justice for all. This by the way is the problem with "right wing" intellects. They, and Neil Gorsuch seems to be a prime example, are simply not able to comprehend that IDEAS are Living Concepts in harmony with the Physics that run the Cosmos. Our effort is to continue to build a planet that more and more manifests these Concepts.The Chambered Nautilus by Oliver Wendell Holmes, "build thee more stately mansions oh my soul" this is what Liberalism is about. Can you go there Ross?
27
By projecting themselves, they debate with their own straw-men, not us.
1
They don't get evolution, and they don't get relativity.
Conservatives say that justices shouldn't be partisan and instead should be independent thinkers who enforce the constitution. But the only way justices can advance the conservative agenda is through activism and party loyalty. Douthat says that Souter "effectively betrayed the party that put him on the court," and that says a lot more about Ross and his party than the justice.
35
Wise jurists are objective. They know what their own biases are and put them aside to absorb the perspectives of litigants when judging disputes.
1
Start at the "beginning". Judge Bork is often used as the Republican reason for the massive use of the filibuster during the Obama years. Judge Bork, however, never faced a filibuster. The Senate, including Republicans, simply saw him as being far outside the norm and refused to seat him.
Next, leap to the Souter appointment, and his turn away from conservatively pure ideology.
Connect this to the Republican filibuster movement and ask yourself if anything would have changed the their decision not to allow hearings for judge Garland.
Remember, this is the same Republican Party and President who spent the entire Obama years denying his legitimacy even as a real American.
If you see various people achieving recognition of their basic civil rights as Mr. Douthat describes it as "Social Liberalism", then I suppose his deeply illogical wandering article makes sense.
Next, leap to the Souter appointment, and his turn away from conservatively pure ideology.
Connect this to the Republican filibuster movement and ask yourself if anything would have changed the their decision not to allow hearings for judge Garland.
Remember, this is the same Republican Party and President who spent the entire Obama years denying his legitimacy even as a real American.
If you see various people achieving recognition of their basic civil rights as Mr. Douthat describes it as "Social Liberalism", then I suppose his deeply illogical wandering article makes sense.
25
Thank god for David Souter! He might have killed the filibuster, but he saved the Republic!
While not politically possible at the moment, a constitutional amendment that would require that nominated judges are considered & voted upon within a prescribed period of time. Use of the pocket veto, as occurred in Garland's case, could be used to block a nomination in the future in near perpetuity - effectively "unpacking" the Court. That tactic in contrast to FDR's attempt to expand the Court in the 1930's.
3
Ross Douthat said it all when he said "But a liberal can be glad that Bush nominated Souter, glad that he effectively betrayed the party that put him on the court, and still recognize the peculiar impact of that nomination." Betrayed the party that put him on the court? Aren't Justices supposed to be above party? David Souter judged them as he saw them, so maybe the "party" was wrong. And as far as Souter killing the filibuster, sorry, it was Mitch McConnell and the "party" who did that. The third branch of government has been hijacked, and we can only hope that individual Justices rise to the occasion and think about the "people" and not the "party".
27
Douthat clearly never heard of Occam's razor.
13
The Roberts court will turn out to be the ultimate activist court. Citizens United proved it when the case was returned to siuing party and told by the court to broaden the complaint. Thereby the case became a ready made gop long held goal to monetize elections. If anything brought Trump and the crazy right to power it was this. The Kochs may not have supported Trump but looking at his proposed budget they are getting what they want.
Citizens now will take the back seat on the bus. The era of the robber barons is returning.
Citizens now will take the back seat on the bus. The era of the robber barons is returning.
15
Souter 'betrayed' the party that put him on the court? I didn't think Mr Douthat would endorse the call for party-line loyalty on part of the judges. Surely more political independence on part of the judges might have helped the filibuster survive.
12
The court needs more David Souters: He held the court, the constitution, and the country above political party.
23
Betrayal of the party is one thing, but betrayal of the people is another. When you look at decisions like Citizens United, the entire country has been betrayed by the Supreme Court in favor of the rich and powerful.
21
anachronistic and diarchy...after reading what I deem kind of profound and requiring a second read for interpretation reasons....two new words I learned
I lost all remaining respect for the court when they appointed Bush president. They called it a "decision," but it was the elevation of a candidate who had lost the election over the winner Gore. At that moment, we became the banana republic that today is presided over by a dangerous fool.
12
While we're spinning wild counterfactuals to whitewash over Mitch McConnell denying President Obama's constitutional right to appoint a Supreme Court justice, why not go back further than Souter? Without Nixon's Southern strategy, the Republican party wouldn't have fully incorporated into their platform the kind of toxic us-versus-them racism and intolerance that has infected the party for the last 50 years, given birth to the Tea Party, and enabled the disgrace that is the party-over-country modern-day GOP.
8
Yes, how can people blame McConnell for the loss of the Supreme Court justice filibuster? The blame belongs to David Souter because he did not vote in a tribal fashion, but according to the facts of the specific cases in front of him. He then retired when he needed to, instead of waiting it out to obey the (must be constitutional?) rule that any justice appointed by a Republican president must be replaced by another Republican president (with the only possible exceptions being for non-Republican presidents). His kind of judicial competence can never be tolerated.
22
Excellent article containing some substantitive points.
1
What struck me most about Gorsuch from the hearings and the impression he gave was that in many rather ' Aw shucks ' replies, he was still not quite the mature jurist that we prefer ascending to our highest court.
This is perhaps concerning, but may not be entirely bad. That is, as others before him at times he could choose positions more tempered, pragmatic an in some cases even turning slightly left.
At the tender age of 49 there is still time for one to benefit from thoughtful reflection and the comity that obtains left and right on the court.
This is perhaps concerning, but may not be entirely bad. That is, as others before him at times he could choose positions more tempered, pragmatic an in some cases even turning slightly left.
At the tender age of 49 there is still time for one to benefit from thoughtful reflection and the comity that obtains left and right on the court.
Douthat is always a careful wordsmith, and "effectively" may be a nearly-correct way to sneak the thought through, but Souder emphatically didn't "betray" anybody.
13
Ross Douthat sees Justice Souter as a unique "outlier" who betrayed conservatives with his liberal-leaning votes and opinions. But how unique? Did not Chief Justice Warren and Justices Brennan and Stevens (and, to a large extent, Blackmun), all appointed by Republican presidents, similarly surprise and disappoint Republicans? Perhaps there is something about the Constitution and its protection of minorities from the will and prejudices of the majority that transcends partisan politics and ideologies -- something that causes open-minded Republicans to see Constitutional issues differently when they reach the Supreme Court. It's a process that long pre-dates Justice Souter (and can even, to a lesser extent, be seen in the opinions of Justices Powell, O'Connor and Kennedy), although Ross Douthat, who is unusually young to have gained a spot on the Times's op-ed roster, may not discern it.
8
If Gorsuch serves a half-century, the stench of Mitch McConnell's corruption which gained him the seat and his own lack of character in being a part of it will still be there.
11
How will this new Supreme Court rule if a case comes before them challenging the Constitutionality of the Internet Privacy bill signed last week by the Congress and signed by President Trump? I am no lawyer but doesn't the bill flagrantly thwart the 4th Amendment which states:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
7
Or perhaps if the current-day GOP had not betrayed the cautious judicial conservatism represented by Justice Souter, then the filibuster would still exist.
3
Yes, the Filibuster has been killed for appointments to the federal courts in general. The latest being to the Supreme Court bench. Killing the filibuster to courts other than the Supreme Court was not as big a precedent as has been represented, since as judges leave the bench and are replaced at infrequent periods, the overall balance on the under courts, more or less, stays balanced. However at the Supreme Court, there are nine final arbiters of Circuit Court decisions. These nine "should" be middle of the road legal minds, objectively reviewing disputes within the context of the Constitution and potential consequences to the Republic (as it exists today not 1789). The Filibuster is the only way that the minority can get a fair day in court through a process that prevents the majority from having their ideas reviewed by a court bought and paid for by moneyed interests. This migration away from balanced jurists is less about Souter than about the partisan divided that has taken control of government. As a final note, next to be eliminated will be the Filibuster on legislation, and with that change who will protect the 99%?
4
What Dothan is trying to say without actually saying it is that the Republicans will break rules, lie, cheat and steal, whatever it takes to win the political game. They like the filibuster when they are in the minority, but as soon as they are in the majority, they do away with it. They don't mind following the rules and being reasonable, as long as a conservative majority on the Supreme Court is guaranteed, but as soon as that is in doubt, rules, fairness, and logic fly out the window.
14
I studied the Supreme Court while earning my MPA at NYU. That began my admiration for it. Justices were above partisan politics and purely and honorably followed the law and Constitution. So there were more than just Souter who did not do his party's bidding. I guess that is a bygone era. Sad!
1
Douthat is fudging here. Garland was not the victim of a "pocket veto," because Mitch McConnell has no right to a pocket veto, or any other kind, under the constitution. He had a choice between continuing an ideological war that the GOP, as a minority party, cannot win in the long run (and so much for that "long game" nonsense), and accepting a moderate justice who could help return the Court to the center and end its long string of 5/4 decisions. It's still the Kennedy Court, now, and still ideologically hidebound and destructive.
1
There is no evidence that "the gay rights movement would have subsequently advanced through referendums and legislation." Don't tell me states like Alabama, Mississippi, and Texas would have eventually seen the light on gay rights. They were always going to have to be dragged kicking and screaming into the 21st century. Surely you can't blame David Souter for this, Douthat.
3
"[Overturning Roe], in turn, would have dramatically lowered the stakes of judicial politics for many Republican voters..."
But would only have increased the stakes of judicial political for many DEMOCRATIC voters, in turn, who faced the casual dismissal of settled judicial precedent by raw politics.
Douthat's obliviousness demonstrates a pedestrian skill unworthy of a NYT columnist: "I'm perfectly willing to stop this tit-for-tat retaliation back and forth so long as I get to believe that the last act of retribution is mine and that it is you who "accepts" defeat."
Sheesh .... let's just appoint Douthat as Special Negotiator to Settle All Global Armed Conflict. (Who knew it was all so easy?)
But would only have increased the stakes of judicial political for many DEMOCRATIC voters, in turn, who faced the casual dismissal of settled judicial precedent by raw politics.
Douthat's obliviousness demonstrates a pedestrian skill unworthy of a NYT columnist: "I'm perfectly willing to stop this tit-for-tat retaliation back and forth so long as I get to believe that the last act of retribution is mine and that it is you who "accepts" defeat."
Sheesh .... let's just appoint Douthat as Special Negotiator to Settle All Global Armed Conflict. (Who knew it was all so easy?)
2
All this article did was prove that the Supreme Court is a partisan establishment. Republican picks are suppose to rule one way and Democratic picks another. if jurisprudence was blind like the statue of justice, we wouldn't have these articles.
3
In this column, Douthat admits the hypocrisy of all right wing complaints about "activist" judges. By stating that Justice Souter basically betrayed his party, he is making clear that conservatives want an "activist" court; one that casts their ideas in stone.
4
Douthat is correct that as our politics became more polarized, the fight over the court (vis a vis specific appointments or the process around it in whatever form) also became more polarized, ultimately dooming the filibuster. The irony is that conservatives won't acknowledge that the court is political, continuing their specious argument that their judges call balls and strikes, while Dem's judges go to bat.
I remember the confirmation hearings for Justice Souter; he actually answered questions, unlike Gorsuch, and Souter received 90 votes.
The voter's new what they were getting with their clear majority vote for Souter.
Scorched earth politics killed the filibuster.
The Federalist Society pushed Gorsuch's nomination, and Gorsuch stonewalled the hearings, enough said.
The voter's new what they were getting with their clear majority vote for Souter.
Scorched earth politics killed the filibuster.
The Federalist Society pushed Gorsuch's nomination, and Gorsuch stonewalled the hearings, enough said.
"effectively betrayed the party that put him on the court"
So by this statement you basically confirm that you believe the Supreme Court is not an independent caller of balls and strikes, but rather a group of partisan hacks.
I believe that as well.
So by this statement you basically confirm that you believe the Supreme Court is not an independent caller of balls and strikes, but rather a group of partisan hacks.
I believe that as well.
6
Republican zealots killed the filibuster as all sane knew they would when the zealots had the means.
Douthat enables every step of the way as he will until coups and slaughters.
Thanks Harvard for this piece of Harvard work.
Douthat enables every step of the way as he will until coups and slaughters.
Thanks Harvard for this piece of Harvard work.
The filibuster ended because the Republicans knew that no matter how qualified a Supreme Court nominee they put forth was he would not be approved by the Democrats. It was something that needed to happen if there was ever to be a ninth justice on the Supreme Court. There are many cases waiting to be decided and time is of the essence. Supreme Court justice Neal Gorsuch was an excellent pick and will be fair when deciding the cases soon to be brought before the court.
Yes, hopefully Justice Gorsuch will be fair when deciding cases and hopefully he will be an excellent justice. That said, Judge Garland is by all accounts an excellent judge and would have made an excellent justice. Mitch McConnell's refusal to allow Judge Garland a hearing is inexcusable and unprecedented. Justice Scalia died during President Obama's term and President Obama's pick for SCOTUS was entitled to a hearing and a vote. Period. End of story. Don't blame the Democrats for killing the filibuster; this is a fight Sen. McConnell picked when he refused to give Judge Garland a hearing.
As long as conservative legal players hew to an extremist agenda of overturning Roe, Griswold, etc., they will always be disappointed by the betrayal of an institutionalist. Roberts is already well on his way toward Souter's path.
Good riddance to the filibuster. Although it has been in the Senate Rules (xxii) since the beginning and was first employed against the National Bank, it was the tool of the slaveocracy and the proponents of Jim Crow. it was the federal version of nullification. Conservative and reactionary forces have benefited from it far more often than liberals. I can't wait until the Dems have the Presidency and Senate again and the radical right sputters in impotent rage.
1
Do not discount that the first Bush really was and is a committed New Englander himself. I do not think he needed much persuasion to put Souter on the Court.
1
The people who voted Trump in do not remember Bork and have no idea what's happening at the Supreme Court level. And what Just said below: McConnell rejected ANY Obama nominee as soon as he knew Scalia was dead.
4
If they had done what we wanted we wouldn't have had to resort to extreme measures. Please just do what we want and there won't be any more fuss or bother. Its really that simple. Why can't we all live together in peace?
Douthat's argument that Souter killed the filibuster makes absolutely no sense at all. There is no logical cause and effect. Whenever I hear Republicans claim that Democrats "started" the acrimonious partisanship with Supreme Court nominations (Robert Bork), they forget to mention that he got a hearing and an up and down vote, unlike Merrick Garland. Douthat, like many conservatives try to advance their false propaganda that the Supreme Court is somehow a liberal menace to society. Again, nothing could be farther from the truth. There has not been a liberal majority on the court in over 40+ years, since the early 1970's, when Roe v. Wade was decided in 1973. As for who really killed the filibuster, it was the GOP, specifically Mitch McConnell in the Senate. Under McConnell's "leadership", Obama faced total obstruction on his legislative agenda and judicial nominees to the Federal bench. When you add legislation and court picks together, the Republicans filibustered Obama literally several hundred times over 8 years. Yes, Reid and the Democrats eliminated the filibuster for judicial nominees below the Supreme Court level, but only in response to the extreme abuse and overuse of the filibuster by the GOP. Finally, it was McConnell who decided to use the "nuclear option" to eliminate the filibuster for Supreme Court nominations in order to ram Gorsuch through. Looking at the historical facts, it's clear that 99% of the blame belongs to the GOP for killing the filibuster.
4
So the blame for the filibuster's death isn't with a Senate majority leader who enforced a policy of unprecedented obstruction for more or less the entirety of Obama's term in office, but rather a Supreme Court justice who didn't display enough fealty to the Republican Party. Convenient, but rational only in a world where conservative orthodoxy is the accepted law of the land and anything left of center exists only at the whims of Mitch McConnell. Even for Douthat, this is a flimsy rationalization.
It often comes up in this debate that the warfare is asymmetrical, at least among people who are sane and reasonably honest. That's with regard to the fact Republicans will always win a race to the bottom. It's who they are, what they are, and how they got that way in the first place.
But I rarely even see it mentioned that Garland is a moderate whose nomination by President Obama was an olive branch, whereas Gorsuch is an extremist, with the track record to prove it, whose nomination extends the middle finger to half the country. And that's if you put aside all the other stuff, including the fact that Gorsuch now sits on the court. Which I don't.
But I rarely even see it mentioned that Garland is a moderate whose nomination by President Obama was an olive branch, whereas Gorsuch is an extremist, with the track record to prove it, whose nomination extends the middle finger to half the country. And that's if you put aside all the other stuff, including the fact that Gorsuch now sits on the court. Which I don't.
"Abandoned the Party..." This is authoritarian and unprincipled position in the USA. Perhaps liberty IS liberal. I fear Gorsuch will be a pure party-line corporate-power ideologue showing the Koch's and Mercer's with decades of gifts. One blind to change, progress and liberty and frankly, evidence. Perhaps, Democrats should have been as cynical, manipulative and yes, dictatorial as McConnell's authoritarian block and jettisoned the filibuster at the start of Obama's first term.
I would have expected that someone like Ross Douthat understood how the Supreme Court works. Judges may be selected by a president of a particular party but they don't "owe" anything to that president or his/her platforms. Souter didn't betray anyone. The judge of a judge is to be independent and to apply the law fairly and correctly. Bush v. Gore turned the Supreme Court into a political beast but it shouldn't. Souter did his job well. Accusing him of "betrayal" is just wrong and honestly idiotic.
Unrelated but there is no such thing as partial birth abortion. That is a made up phrase brought to us by the anti-choice movement. It is late term abortion and almost all are performed for medical reasons. The use of that erroneous phrase is not surprising coming from Douthat but clearly misleading.
Unrelated but there is no such thing as partial birth abortion. That is a made up phrase brought to us by the anti-choice movement. It is late term abortion and almost all are performed for medical reasons. The use of that erroneous phrase is not surprising coming from Douthat but clearly misleading.
1
So, cynically, we are admitting that whether the shortstop touches the bag at second or just gets in the neighborhood the umpire is going to call the base runner out for the sake of preserving the double play. Justices, on any court but especially the Supreme Court, are not supposed to view cases that come before them through a partisan lens. Justices are supposed to apply the law and its precedents without concern for the social or cultural impact of their decisions. Not much chance that we can expect Gorsuch, who mocked the confirmation hearings at the encouragement of Grassley, to be anything but partisan. Darn, that Constitution is a conservative rag.
Now RBG has to hang in there until 2021. Kennedy, too. Despite gerrymandering with a scalpel and voter suppression laws, the political pendulum swings and the crumpling of Senate Rule 22 will bite back. (Oh, and as to Senate Majority Leader, Harry Reid, starting all this by modifying Rule 22. He was facing more filibusters of judicial and Cabinet nominees, some 500, than had been seen in total between 1789 to 2009).
Now RBG has to hang in there until 2021. Kennedy, too. Despite gerrymandering with a scalpel and voter suppression laws, the political pendulum swings and the crumpling of Senate Rule 22 will bite back. (Oh, and as to Senate Majority Leader, Harry Reid, starting all this by modifying Rule 22. He was facing more filibusters of judicial and Cabinet nominees, some 500, than had been seen in total between 1789 to 2009).
Before Justice Souter, there was Justice Blackmun, a Nixon appointee and the author of Roe v. Wade, welcomed to the company of the 'liberals and the enlightened, to quote William Kunstler. What happened here, had nothing to do with either Justice Souter or inevitability.
1
"But on issues of burning concern to the Republican Party’s base — abortion above all . . .--the court . . . has often been an enemy, not an ally, . . . consolidating social-liberal gains . . . ."
Ross, Justices, unlike average citizens, recognize that questions associated with the interface of morality and positive legality are complex.
Do Pro-Life voters fully realize that they live alongside people with differing values and beliefs? That they are citizens within a representative democracy? Have they seriously reflected on the prudential issues associated with the interface of law and morality in such a context? Have Pro-Life voters actually thought through the likely consequences of heavy handed restrictions on access to abortion or the re-criminalizing of abortion?
If Pro-Life supporters are extremely heavy handed in imposing restrictions or succeed in re-criminalization:
What levels and types of resistance and social discord might we expect?
What degree of criminal activity--"back alley" abortions, etc.--should we anticipate?
What manner and quantity of policing would be necessary?
How much tax-payer funding would be required for policing and for prosecuting offenders?
What further levels of disrespect for legal authority and for lawfulness in general might arise?
Doesn't prudence demand that we ask and reflectively respond to these questions?
Prohibition indicated that the failure to think these issues through can result in disastrous social consequences.
Ross, Justices, unlike average citizens, recognize that questions associated with the interface of morality and positive legality are complex.
Do Pro-Life voters fully realize that they live alongside people with differing values and beliefs? That they are citizens within a representative democracy? Have they seriously reflected on the prudential issues associated with the interface of law and morality in such a context? Have Pro-Life voters actually thought through the likely consequences of heavy handed restrictions on access to abortion or the re-criminalizing of abortion?
If Pro-Life supporters are extremely heavy handed in imposing restrictions or succeed in re-criminalization:
What levels and types of resistance and social discord might we expect?
What degree of criminal activity--"back alley" abortions, etc.--should we anticipate?
What manner and quantity of policing would be necessary?
How much tax-payer funding would be required for policing and for prosecuting offenders?
What further levels of disrespect for legal authority and for lawfulness in general might arise?
Doesn't prudence demand that we ask and reflectively respond to these questions?
Prohibition indicated that the failure to think these issues through can result in disastrous social consequences.
1
This is twisted reasoning. How is Justice Souter responsible for the deeds of far-right Republicans, years after he has left the court? Is he at fault for voting his conscience on cases before the Supreme Court? And isn't it a very old story that nominees don't always vote as predicted?
Responsibility for the abolition of the filibuster for Supreme Court nominees belongs to McConnel and his lieutenants, who will almost certainly regret what they've just done.
Responsibility for the abolition of the filibuster for Supreme Court nominees belongs to McConnel and his lieutenants, who will almost certainly regret what they've just done.
I think myself to be a reasonably bright person - i wish i had a lawyer friend who would parse this for me. To me it was McConnell who set this in motion - determined to leave the seat vacant - forever - if HRC won.
I dont get this piece.
I dont get this piece.
This reads like a Rudyard Kipling "Just so" story.
No, I think the recent events that led to the nuclear option to instal a Republican "Justice" is basically another example of the GOP partisan interest over national interest.
No, I think the recent events that led to the nuclear option to instal a Republican "Justice" is basically another example of the GOP partisan interest over national interest.
1
A pathetic false equivalency. The history of the Supreme Court is littered with Justices who have disappointed their ideological followings. Why not go back to the Brennan appointment by Eisenhower to make the point here? Fact is that Bork had a hearing and has no one to thank for his failed nomination but himself as expressed in his radical writing. Despite Biden's ill advised musings when he was in the Senate, it is only McConnell, the avowed Obama-hating Senate ringmaster who failed to even allow an eminently qualified centrist even the courtesy of a hearing.
2
So what is to stop the Republicans from not voting on a nominee for a year? Two years? They can now hold up a nominee for any duration of time, and they will when the opportunity presents.
Reading Douthat's thinly veiled undergraduate essay on modal logic reminds me again about the sharp shards of fractured reasoning that entangles one in presuming necessity in any possible world.
Perhaps he can write a book about the resulting chain of events that may have followed if a fly had lit upon the nose of Grant at Shilo resulting, through many chains of twisted cogitation, in a modern day slave-holding South.
There is no need to create fantasies to explain reactionary political realities. Perhaps reporting the economic conditions of regions that vote for extreme right candidates is a more noble, yet futile exercise.
Generally speaking, Paul Ryan's and McConnell's supporters, and Trump's base, are the takers, being from states that take more from the federal government than they pay in. The makers and drivers of the economy are both educated and urban. Modality is useful to free thinkers with a vision for a more prosperous future, not conservative ideologues who wish to hyperbolically reinterpret the efficacy of possible past events to support hypothetical, pseudo-history.
Reactionary Jurists constrain free thought. Objective, true statement.
Grade C-
Perhaps he can write a book about the resulting chain of events that may have followed if a fly had lit upon the nose of Grant at Shilo resulting, through many chains of twisted cogitation, in a modern day slave-holding South.
There is no need to create fantasies to explain reactionary political realities. Perhaps reporting the economic conditions of regions that vote for extreme right candidates is a more noble, yet futile exercise.
Generally speaking, Paul Ryan's and McConnell's supporters, and Trump's base, are the takers, being from states that take more from the federal government than they pay in. The makers and drivers of the economy are both educated and urban. Modality is useful to free thinkers with a vision for a more prosperous future, not conservative ideologues who wish to hyperbolically reinterpret the efficacy of possible past events to support hypothetical, pseudo-history.
Reactionary Jurists constrain free thought. Objective, true statement.
Grade C-
Ross Douthat is stretching so much to defend the indefensible that he looks more like a pretzel than a human being today. This is not worthy of publication in the New York Times.
I reject the idea of Souter’s having “effectively betrayed the party that put him on the court”. If a jurist is qualified, which Souter was, and is seated, which he was, then he will follow the Constitution where it takes him on a case, which he did.
Too much has been made of an ideological splitting of the court, so much so that prospective Supreme Court justices have long since made efforts to hide ideological leanings, leaving the Senate and the rest of us only a few cases -- “signals” if you will, and often entangled in bad law-- on which to ruminate in that regard, like Gorsuch with the case of the truck driver and a really poor piece of legislation.
Now if Gorsuch as the heralded “originalist” allegedly “worthy” of replacing Scalia should ever pull a John Roberts and vote “the wrong way” on some case, the GOP as well as the Dems will call the guy “another Souter.” I’ve even heard a few liberals call Kagan “a Demo Souter in waiting” on occasion, at which moments the conservatives in the room were silent. Hey. Kagan is Kagan, just as Souter was Souter. Gorsuch will be... Gorsuch.
Bottom line I’m surely not the only ordinary citizen just sick to death of the politicization of the Supreme Court. The majority of cases they hear are not even about hot button cultural issues and may have even deeper significance for all of us in a nation far gone to oligarchs, even if (or especially since) related press coverage tends to land in the business pages.
Too much has been made of an ideological splitting of the court, so much so that prospective Supreme Court justices have long since made efforts to hide ideological leanings, leaving the Senate and the rest of us only a few cases -- “signals” if you will, and often entangled in bad law-- on which to ruminate in that regard, like Gorsuch with the case of the truck driver and a really poor piece of legislation.
Now if Gorsuch as the heralded “originalist” allegedly “worthy” of replacing Scalia should ever pull a John Roberts and vote “the wrong way” on some case, the GOP as well as the Dems will call the guy “another Souter.” I’ve even heard a few liberals call Kagan “a Demo Souter in waiting” on occasion, at which moments the conservatives in the room were silent. Hey. Kagan is Kagan, just as Souter was Souter. Gorsuch will be... Gorsuch.
Bottom line I’m surely not the only ordinary citizen just sick to death of the politicization of the Supreme Court. The majority of cases they hear are not even about hot button cultural issues and may have even deeper significance for all of us in a nation far gone to oligarchs, even if (or especially since) related press coverage tends to land in the business pages.
1
Yes Ross, you can think and write whatever you want from your lofty perch. But from my lowly perch here in Vermont, this reader is thinking that Yertle the Turtle is responsible for killing the filibuster. Lock, Stock, Barrel and Two Smoking Guns.
1
"Betrayed the party that put him on the Court..." Really Ross, is that how you perceive the duty of a Supreme Court Justice? Shame on you.
1
There is fake news and there is fake history. Nice try at the latter, Ross. The real killer of the filibuster is the man most responsible for the nasty partisan environment in DC, none other that your beloved Mitch McConnell. If you have any problems understanding why Mitch is the metastatic cancer on our body politic, read any other reader comments at ramdom and you will be enlightened.
Now with the tools of your trade still at hand- 'own goals' and pocket vetoes, for instance-why not have a go at Eisenhower's big ones: Cj Warren and J. Wm. Brennan?
No one can be sure that we humans will not defy another's prediction about us.
Oh, and let's not forget FDR's wild card Senator Hugo Black of Alabama!
No one can be sure that we humans will not defy another's prediction about us.
Oh, and let's not forget FDR's wild card Senator Hugo Black of Alabama!
Stop it.
Just stop it.
David Souter did not kill the filibuster for U.S. Supreme Court nominations -- Mitch McConnell did that.
Stop blaming everyone except the real culprit.
No one made Mitch McConnell do all in his power to make Barack Obama a one-term president -- McConnell did that all by himself.
No one made Mich McConnell refuse to give Merrick Garland even the decency of a hearing or an up or down vote -- Mitch McConnell did that!
Mitch McConnell killed the filibuster and needs to act like a man and take the incoming for his choices in life.
Just stop it.
David Souter did not kill the filibuster for U.S. Supreme Court nominations -- Mitch McConnell did that.
Stop blaming everyone except the real culprit.
No one made Mitch McConnell do all in his power to make Barack Obama a one-term president -- McConnell did that all by himself.
No one made Mich McConnell refuse to give Merrick Garland even the decency of a hearing or an up or down vote -- Mitch McConnell did that!
Mitch McConnell killed the filibuster and needs to act like a man and take the incoming for his choices in life.
4
Maybe Souter was just an independent thinker, who did not take into account which Party had been behind his appointment to serve on the Supreme Court, when rendering an opinion on a point of law. Imagine that in a Supreme Court Justice Mr. Douthat.
Judge Garland was a well qualified choice to serve on the Supreme Court. There was absolutely no reason why he should not have to been consideration by the Senate to become a Supreme Court Justice, other than an intransigent Party hell bent on destroying social progress by stacking the Supreme Court, with no thought to how people in this country would be affected.
One other thing. For all your piousness Mr. Douthat, I find it odd that "liberal" is such an offensive word to you. Have you failed to notice from church teachings that Jesus was a liberal, intent on ministering to the poor and sick? Hypocrite is a word that comes to mind.
As for Gousuch, the opinion he handed down on the truck driver who had to choose between staying with his truck or freezing to death, clearly demonstrated that Gorsuch does not interpret law with one thought to humanity. He does, however, however interpret law with undue consideration to corporations' interests.
Judge Garland was a well qualified choice to serve on the Supreme Court. There was absolutely no reason why he should not have to been consideration by the Senate to become a Supreme Court Justice, other than an intransigent Party hell bent on destroying social progress by stacking the Supreme Court, with no thought to how people in this country would be affected.
One other thing. For all your piousness Mr. Douthat, I find it odd that "liberal" is such an offensive word to you. Have you failed to notice from church teachings that Jesus was a liberal, intent on ministering to the poor and sick? Hypocrite is a word that comes to mind.
As for Gousuch, the opinion he handed down on the truck driver who had to choose between staying with his truck or freezing to death, clearly demonstrated that Gorsuch does not interpret law with one thought to humanity. He does, however, however interpret law with undue consideration to corporations' interests.
1
Calling what happened to Judge Garland a pocket veto is misleading and beneath a NYT writer. You just made the point that there are only two branches of government left and then suggested, tongue in cheek (I assume) that the Republicans in the Senate (the branch you dismissed) can pocket veto an appointment. Some of your readers don't know what a pocket veto is and the rest are insulted by the misuse of the term.
1
The Times is a liberal paper. More center left than far left but definitely liberal. I get it. We all get it. It's no secret. I also get that it's important to have some conservatives on the payroll to challenge liberal assumptions.
But those columnists are only effective if they seriously attempt to engage liberals. They should hone their arguments to the paper's actual readership, not some fantasy ideologically diverse audience that, let's be honest, has never and will never materialize.
Douthat is not that conservative.
He tries making a conservative case for something but casually dismisses cherished liberal beliefs along the way, offering no explanation other than, it seems, the mere fact that he's conservative. Where's the effort to persuade?
A perfect example is the way he invokes his faith. All liberals and even a handful of Republicans strongly believe in the separation of church and state. They understand that the country's laws must ultimately withstand scrutiny of the world's most secular/areligious constitution. Douthat doesn't. His political positions are based on his interpretation of Roman Catholicism, and the reasoning behind most of his arguments about social policies is BECAUSE RELIGION.
This is not a person concerned with arguing. What's the point of giving him a pulpit? I'm sure there are conservatives—actual scholars and thinkers—who'd sincerely love the opportunity to appeal to liberals. Give Douthat's column to one of them. He has failed.
But those columnists are only effective if they seriously attempt to engage liberals. They should hone their arguments to the paper's actual readership, not some fantasy ideologically diverse audience that, let's be honest, has never and will never materialize.
Douthat is not that conservative.
He tries making a conservative case for something but casually dismisses cherished liberal beliefs along the way, offering no explanation other than, it seems, the mere fact that he's conservative. Where's the effort to persuade?
A perfect example is the way he invokes his faith. All liberals and even a handful of Republicans strongly believe in the separation of church and state. They understand that the country's laws must ultimately withstand scrutiny of the world's most secular/areligious constitution. Douthat doesn't. His political positions are based on his interpretation of Roman Catholicism, and the reasoning behind most of his arguments about social policies is BECAUSE RELIGION.
This is not a person concerned with arguing. What's the point of giving him a pulpit? I'm sure there are conservatives—actual scholars and thinkers—who'd sincerely love the opportunity to appeal to liberals. Give Douthat's column to one of them. He has failed.
1
1. Souter turned out to be a liberal
2. ?????
3. Republicans had to end the filibuster.
Really, Ross: if you have absolutely nothing on a topic, write about something else.
2. ?????
3. Republicans had to end the filibuster.
Really, Ross: if you have absolutely nothing on a topic, write about something else.
2
Once again, Mr. Douthat is twisting himself in knots to find justification for Republicans' shallow, destructive, self-serving behavior. While bemoaning the extreme politicization of the the Supreme Court and the confirmation process, he lays the blame not on the Republicans' win-at-any-cost obstructionism but rather David Souter's lack of obedience to the party that nominated him. In other words, as far as Douthat is concerned, the Court has become too political because Souter wasn't political enough?
275
A great reminder how the religious fanatics that make up the base of the GOP want to use the courts to impose Evangelical Sharia law on the rest of us.
6
Mr. Douthat: You are not my favorite op-ed columnist but I am a regular reader. Your take on matters is generally well thought out and expressed. I was dismayed today, however, by your use of "pocket veto" to describe the Senate's refusal for a year to provide the President's nominee to fill Justice Scalia's chair on the Supreme Court with a hm earing and a vote. A "pocket veto" is a constitutional prerogative of the President to refuse to sign a bill passed by both houses of the Congress and results in an opportunity for the Congress to override the act. There is no similar constitutional prerogative for the Senate to ignore a nominee of the President for ten days much less a year. I consider your use of the term deliberate and far below your normal standards. As he who may not be named might say (SAD!)
You say Souter "betrayed the party that put him on the court", then lament that the court hads become a bitter partisan institution. Having it both ways again, are we Ross?
6
Could a nominee who is too far to the left or right to be accepted? America's right refuses to acknowledge to any degree that Bork might have been too extreme to render good decisions for the majority of citizens. Instead, his denial of a seat on the Court underlies a generation of payback.
Our politics have grown not merely increasingly harsh but also stupid. It is played out as a zero sum game in which the right must always win or at least damage the opposition severely in every battle. Of course, the Democrats can be starkly partisan, too, but they have been unable, by a factor of four or five, to manage to be as mean, unforgiving and downright nasty as the Republicans.
There are only a few good ways forward. One is for the Democrats to match them blow for blow until both sides come to realize that this is futile. The other is a constitutional convention that would redress some of the imbalance and unfairness in our crippled democratic system.
First stop, make Supreme Court justices subject to term limits. 12 year terms would be a starting point for consideration, terms that are staggered so that no president gets to dominate the Court save a season of dying off of elder justices. That way, the Court would be removed from some of the "do or die" of rabid partisanship.
Other reforms await, like stopping gerrymandering of House districts and a more democratic apportionment of the senate. Democracy. Our only hope to save the union and to thrive for the future.
Our politics have grown not merely increasingly harsh but also stupid. It is played out as a zero sum game in which the right must always win or at least damage the opposition severely in every battle. Of course, the Democrats can be starkly partisan, too, but they have been unable, by a factor of four or five, to manage to be as mean, unforgiving and downright nasty as the Republicans.
There are only a few good ways forward. One is for the Democrats to match them blow for blow until both sides come to realize that this is futile. The other is a constitutional convention that would redress some of the imbalance and unfairness in our crippled democratic system.
First stop, make Supreme Court justices subject to term limits. 12 year terms would be a starting point for consideration, terms that are staggered so that no president gets to dominate the Court save a season of dying off of elder justices. That way, the Court would be removed from some of the "do or die" of rabid partisanship.
Other reforms await, like stopping gerrymandering of House districts and a more democratic apportionment of the senate. Democracy. Our only hope to save the union and to thrive for the future.
4
Mr. Douthat's "analysis" is, once again, bogged down by two failing eyes. The one on the right is myopic and thus unable to focus on any of the faults and therefore responsibilities of the reactionaries to govern. The one on the left is blinded by a deep seated - near patholicial hatred for social welfare -- even as embodied by long standing Roman Catholic teachings.
Between the lines one can sense a smugness at the outcome.
Between the lines one can sense a smugness at the outcome.
2
Republicans have long nominated centrist moderate judges such as O'Conner, Kennedy and Souter to the Supreme Court while Democrats are only content with nominated highly politicized "left wing" nominees like RBG, Kagan and Sotamayer - never a centrist or a moderate in the mix.
1
Nyalman
The most recent of your moderate appointees hails from 26 years ago, before your party fell to ideologues and criminals. The earliest appointed in 1980, 36 years ago. There has not been a legitimate left in this country for forty years or more, but if there was you would be loudly accusing the Justices you cite here as being among its leaders.
So, sure, nice picks.
Of late, you have chosen exclusively doctrinaire nominees more beholden to personal philosophy, religion, and influence than to law. Many of them, like Ross himself, lapsed Catholics (what else can you say of men who no longer recognize the primacy of their Pope or the evolving nature of their Church?), to boot.
The GOP cynically demands litmus tests on issues that matter to the powerful and most antediluvian among them, ignoring its own members or misleading them with specious appeals to patriotism and a morality long lost among your leaders.
In those 26 years, your party has gone so far off the right side of the rails that even your glorious heroes of the past would be despised and dismissed should they have the temerity to return. In this context, you could no more recognize a centrist than you could a reason for economic equity.
With your unqualified endorsement of the politics of money and subterfuge, you have moved your so-called 'beloved country' onto the fringes of mean-spirited totalitarianism and wrested it from the very people who ought to be its stewards.
The most recent of your moderate appointees hails from 26 years ago, before your party fell to ideologues and criminals. The earliest appointed in 1980, 36 years ago. There has not been a legitimate left in this country for forty years or more, but if there was you would be loudly accusing the Justices you cite here as being among its leaders.
So, sure, nice picks.
Of late, you have chosen exclusively doctrinaire nominees more beholden to personal philosophy, religion, and influence than to law. Many of them, like Ross himself, lapsed Catholics (what else can you say of men who no longer recognize the primacy of their Pope or the evolving nature of their Church?), to boot.
The GOP cynically demands litmus tests on issues that matter to the powerful and most antediluvian among them, ignoring its own members or misleading them with specious appeals to patriotism and a morality long lost among your leaders.
In those 26 years, your party has gone so far off the right side of the rails that even your glorious heroes of the past would be despised and dismissed should they have the temerity to return. In this context, you could no more recognize a centrist than you could a reason for economic equity.
With your unqualified endorsement of the politics of money and subterfuge, you have moved your so-called 'beloved country' onto the fringes of mean-spirited totalitarianism and wrested it from the very people who ought to be its stewards.
".....counterfactuals don’t really work that easily; you can’t change one thing and hold everything else constant."
And for this reason, I'm afraid your argument fails to hold water. In fact, the assumptions travel to places so beyond the premise they seem to be in a different solar system.
While admittedly thought-provoking (and that's a good thing), can't go with you on the conclusions.
And for this reason, I'm afraid your argument fails to hold water. In fact, the assumptions travel to places so beyond the premise they seem to be in a different solar system.
While admittedly thought-provoking (and that's a good thing), can't go with you on the conclusions.
2
The Supreme court has a terrible track record for civil and individual rights. It supported jim crow laws and with corporations in Citizens United. It has and will give away all individual rights to corporations. Moral laws that only apply to minorities, women, lbgtq will be upheld and enforced. It will support the fascism that we are descending into. Yes, this is part of Nationalism that will persecute those that if percieves to be enemies of the state.
If only, if only! But, we can't change the past, can we?
If only the speed limit were higher, I wouldn't have a ticket!
If only the restaurant down the road didn't have such good food, I would be thinner!
If only Souter not been nominated, he wouldn't have been on the Supreme Court and our lives would all be sunshine and happiness.
If wishes were horses, beggars would ride.
If only the speed limit were higher, I wouldn't have a ticket!
If only the restaurant down the road didn't have such good food, I would be thinner!
If only Souter not been nominated, he wouldn't have been on the Supreme Court and our lives would all be sunshine and happiness.
If wishes were horses, beggars would ride.
1
It would seem that the Republican Party's aversion to 'quota's' in hiring does not extend to the courts. Their insistence that 'the Scalia seat' is a conservative seat would be a support of a form of affirmative action. I thought an eight member court actually reflected this split country pretty well but the Republican party does understand raw power and once again re-inforces the ancient Greek aphorism 'the strong do what they will and the weak do what they must'....
and nothing about the will of the people, what the majority of people want? only about party, nothing about country.
Politics as usual.
Politics as usual.
1
Glad I read the comments. Reading the op-ed was a hard slog. Made me think I was losing my marbles. However in my career as a lawyer I learned that if some supposedly well credentialed person spouted gibberish that I thought made no sense, 99 percent of the time I was right and the problem wasn't the bloviator, but my lack of self confidence when faced with nonsense emanating from a purported "expert."
1
Thank god, Nora, for your comment. I, too, thought that my gray matter was turning dark. Douthat can be dense at times, but this was a black hole of words.
It's amusing that Douthat euphemistically refers to McConnell's usurpation of the process and the theft of the Garland nomination as a "pocket veto." To paraphrase Shakespeare, garbage by any other name smells as foul, or, something is rotten in the state of Kentucky.
2
Why Souter, and why now? If the filibuster had to succumb to conservative backlash over an insufficiently conservative justice, it should have happened earlier. Think Warren, Blackmun, or Stevens. No, the blame lies with Senate "institutionalists" who've proved to be insufficiently institutionalist.
1
Whatever happened to doing what is best for the country? If we can't rely on the impartiality of the Supreme Court, what chance do we have of justice for all. And thanks to Mr. Douthat for adding to my pessimism.
For the sake of the country let us hope that Gorsuch is the next Souter. Thank you Mr. Douthat for reminding us that judges can change when they become justices.
Souter would have no truck with Gorsuch's equivocal "originalism." Souter would point out that Gorsuch's criterion of "original intent" simply masks his bent for revising history---in other words, for interpreting history subjectively, or from the parochial standpoint of a 21st-century Coloradan. As a New Englander, Souter was a far more cosmopolitan intellectual than Gorsuch will ever be.
3
America has moved away from the insight that late abortion of a healthy fetus is pretty close to murder. A pregnant woman needs to be told,
"After three months have passed and there is no medical emergency, it is time for you to face reality. You HAD a choice. But you do not any longer."
But America has never been willing to say that women too must respect the rights of others.
There is a lot of talk about women's rights. Hardly any talk about women's responsibilities. But rights and obligations go together. You cannot have a just society if you have one without the other.
"After three months have passed and there is no medical emergency, it is time for you to face reality. You HAD a choice. But you do not any longer."
But America has never been willing to say that women too must respect the rights of others.
There is a lot of talk about women's rights. Hardly any talk about women's responsibilities. But rights and obligations go together. You cannot have a just society if you have one without the other.
This was a great piece. Sometimes, especially while writing for the NYT, calling a spade a spade will spark outrage. This is noted by the comments already tallying up.
This was a terrible piece. Sometimes, especially while not writing for Breitbart, calling a spade a club will spark outrage. This is noted by the comments already tallying up.
5
In reading the comments I'm struck by the focus on whether or not Douthat is correct in his interpretation of Souter's politics. Am I missing the whole point of the essay? I thought it was about how more socially conservative rulings in the nineties would have lowered the impetus for republican or, at least, socially conservative republican, voter turnout. A lot of people seem to be inspired by single issues, abortion being a big one. If the question of who was going to pick the next supreme court justice was not so important, Douthat suggests the possibility that enough people would have either not voted for Trump, for instance, or voted for someone else.
This will be one of the last op-ed pieces I will read by this writer. His absurd mental gymnastics reveal an inability to reason or think logically rather than seeing everything through his pseudo conservative lens. The Right Winger is intellectually bankrupt, yet the masses swallow the sludge troweled out to the Booboisie, regardless of the fact that "Conservatives" cannot point to any social progress emanating from their concepts or proposals.
It's time for Mr. Douthat to return to the Sports pages where he can continue his ravings about the "abuse" of student athletes by the mean & nasty NCAA, regardless of how many leave early for multimillion dollar contracts. Contrast that to MLB's Farm System.
It's time for Mr. Douthat to return to the Sports pages where he can continue his ravings about the "abuse" of student athletes by the mean & nasty NCAA, regardless of how many leave early for multimillion dollar contracts. Contrast that to MLB's Farm System.
Manuel Soto
You say ""Conservatives" cannot point to any social progress emanating from their concepts or proposals", but you know its far worse than that.
They cannot point to positive economic developments under their watch, just turmoil and loss, and unending, successful rescue missions by Democrat administrations. Unless your only measures of success are a wildly fluctuating stock market and the unending growth of wealth at the very, very tippy top.
They can't point to positive developments around the globe. Unless you count successful creation of multiple record-setting military disasters based upon lies, deceit, and self interest. And a lust for the "low hanging fruit" conservatives always imagine is their due.
They certainly can't point to positive developments on the environment, health of the country, education, energy, and so on. Little things that add up.
Oddly, they can't even point to advancement of "conservative" ideas, having abandoned them decades ago to pursue power, money, intrusive government, and a fantasy of undying hegemony.
You say ""Conservatives" cannot point to any social progress emanating from their concepts or proposals", but you know its far worse than that.
They cannot point to positive economic developments under their watch, just turmoil and loss, and unending, successful rescue missions by Democrat administrations. Unless your only measures of success are a wildly fluctuating stock market and the unending growth of wealth at the very, very tippy top.
They can't point to positive developments around the globe. Unless you count successful creation of multiple record-setting military disasters based upon lies, deceit, and self interest. And a lust for the "low hanging fruit" conservatives always imagine is their due.
They certainly can't point to positive developments on the environment, health of the country, education, energy, and so on. Little things that add up.
Oddly, they can't even point to advancement of "conservative" ideas, having abandoned them decades ago to pursue power, money, intrusive government, and a fantasy of undying hegemony.
It's the right, not the left, that is guilty of the "sweeping constitutionalization of cultural debate." The left has expanded rights, leaving "cultural decisions" to the individual, instead of imposing denominational bias nationwide. That Douthat asserts otherwise without explanation is tiresome.
4
David Souter was a great Supreme Court Justice!
He was neither liberal nor conservative. He was a scholar who listened carefully to the arguments and wrote extremely thoughtful opinions.
It is unfortunate that he disliked the poisonous atmosphere in Washington so much that he retired while he was still capable of accomplishing much more.
He transcended the label of liberal or conservative by being thoughtful. That Ross Douthat fails to see this is disturbing.
He was neither liberal nor conservative. He was a scholar who listened carefully to the arguments and wrote extremely thoughtful opinions.
It is unfortunate that he disliked the poisonous atmosphere in Washington so much that he retired while he was still capable of accomplishing much more.
He transcended the label of liberal or conservative by being thoughtful. That Ross Douthat fails to see this is disturbing.
5
Fascinating analysis, Ross.
Hopefully, Gorsuch will turn out to be a more reliable choice. And will further luck, so will Trump's appointment to succeed Kennedy, Thomas and Ginsberg.
Hopefully, Gorsuch will turn out to be a more reliable choice. And will further luck, so will Trump's appointment to succeed Kennedy, Thomas and Ginsberg.
Good Grief! "But a liberal can be glad that Bush nominated Souter, glad that he effectively betrayed the party that put him on the court." Sorry Ross, Souter did nothing but act independently. It's remarkable to hear you seriously argue that by acting independently, Souter betrayed the Republican establishment. It is a repugnant argument and reveals that Douthat has no idea how our system of government is meant to function. The judiciary was created to be independent. Douthat actually whines because Souter failed, through activism, to advance the far Right-Wing Republican political agenda. It shows how profoundly dishonest and duplicitous the political right has always been when arguing that there should be no "activist judges" as Douthat's complaint boils down to Souter not being a right-wing activist. Souter had absolutely nothing to do with the end of the filibuster. Your problem Ross, like your right wing cohorts, is that you expect justices to be politicians in robes and legislate the far-right agenda from the bench. It's not how our Constitution was set up, but Douthat reveals here that he has utter contempt for the Constitution. Douthat not only wanted the court to transform society by destroying a host of settled precedents, he believes that the far-right was entitled to it, and since Supreme Court Justices Souter failed to deliver, he was a traitor. It’s Remarkable. Ross, you really belong in Russia, where the courts are nothing but puppets of the Putin regime.
3
This opinion is on point, but it is filled with too many "if only" type statements. They are what many people refer to as "woulda coulda shoulda". In other words, you cannot change the past, whether with intellect, or hand-wringing. Move on, please.
The only way is by what the brilliant science fiction writer H.G. Wells fictionalized: a time machine.
It should be noted that although Wells is best known as one of the greatest science fiction writers in history (and the rightly), he was trained as a scientist.
BTW, much of what Wells wrote about (most over a century ago) has come to pass; not the least of which are the television, cellphones and email; genetic engineering; liquid fueled rockets; lasers; atomic weapons and nuclear proliferation, and much more.
The only way is by what the brilliant science fiction writer H.G. Wells fictionalized: a time machine.
It should be noted that although Wells is best known as one of the greatest science fiction writers in history (and the rightly), he was trained as a scientist.
BTW, much of what Wells wrote about (most over a century ago) has come to pass; not the least of which are the television, cellphones and email; genetic engineering; liquid fueled rockets; lasers; atomic weapons and nuclear proliferation, and much more.
1
Law is gender, "race", color, ethnicity, faith, socioeconomics, politics, education and history plus arithmetic. Law is neither just nor fair nor moral nor logical. Both slavery and Jim Crow were legal. Douthat does not know law nor history.
Dwight Eisenhower appointed Earl Warren and William Brennan to the Supreme Court. Richard Nixon put Harry Blackmun, Warren Burger and Lewis Powell on the Supreme Court. Gerald Ford put John Stevenson on the Supreme Court. Reagan put Sandra Day O' Connor on the Court. George H.W. Bush putting David Souter was in line with these nominations. Bush's successful nomination of the sexual harassing prevaricating dim- witted Clarence Thomas to the Court killed the filibuster and nomination to SCOTUS by generally recognized bipartisan legally meritorious qualification. Followed by his son's nomination of Harriet Miers among the most unworthy nominees ever.
But I remember that Nixon nominees G. Harold Carswell and Clement Haynesworh along with Reagan's nominee Robert Bork all got hearings and votes. What happened to Merrick T. Garland is what really killed the filibuster and destroyed our bi-cameral legislative Constitutional structure.
Dwight Eisenhower appointed Earl Warren and William Brennan to the Supreme Court. Richard Nixon put Harry Blackmun, Warren Burger and Lewis Powell on the Supreme Court. Gerald Ford put John Stevenson on the Supreme Court. Reagan put Sandra Day O' Connor on the Court. George H.W. Bush putting David Souter was in line with these nominations. Bush's successful nomination of the sexual harassing prevaricating dim- witted Clarence Thomas to the Court killed the filibuster and nomination to SCOTUS by generally recognized bipartisan legally meritorious qualification. Followed by his son's nomination of Harriet Miers among the most unworthy nominees ever.
But I remember that Nixon nominees G. Harold Carswell and Clement Haynesworh along with Reagan's nominee Robert Bork all got hearings and votes. What happened to Merrick T. Garland is what really killed the filibuster and destroyed our bi-cameral legislative Constitutional structure.
2
Once again, Douthat's denigrating and self-righteous partisanship forces him into contorted "logic."
- Bork and Garland don't belong in the same sentence. Bork was afforded the proper nomination process; and his rejection by Democrats was based on his voting record and stated views about the law. Garland was denied even the first step of the proper process; Republi-Cants rejected him solely because he was nominated by a Democrat, without ever even considering his qualifications and legal perspective.
- Souter didn't "betray" a political party. He did exactly what a Justice is supposed to do: Make decisions on his interpretation of the law, without regard to political parties. It's the Republi-Cants who've reframed the "role" of the judiciary in a false manner, i.e. any judge who makes a ruling they disagree with is an "activist judge" (which is a ridiculous concept).
- And as always, Douthat conflates Democrats with Liberals. And he apparently spits out the L-word dripping with contempt, as if Liberals are deserving of scorn. He portrays Conservatives as "incrementalists," whereas Liberals "advance their causes." Court decisions are an "agent of social liberalism" like Communist spies who deserve to have "restraints put" on them. Liberals are "activists"; Sotomayor is merely an "inevitable coup-de-gras" and not a respectable jurist.
Douthat's constant modus operandi of veneering his rank partisanship in subliminal prolixity is nothing more than putting lipstick on a pig.
- Bork and Garland don't belong in the same sentence. Bork was afforded the proper nomination process; and his rejection by Democrats was based on his voting record and stated views about the law. Garland was denied even the first step of the proper process; Republi-Cants rejected him solely because he was nominated by a Democrat, without ever even considering his qualifications and legal perspective.
- Souter didn't "betray" a political party. He did exactly what a Justice is supposed to do: Make decisions on his interpretation of the law, without regard to political parties. It's the Republi-Cants who've reframed the "role" of the judiciary in a false manner, i.e. any judge who makes a ruling they disagree with is an "activist judge" (which is a ridiculous concept).
- And as always, Douthat conflates Democrats with Liberals. And he apparently spits out the L-word dripping with contempt, as if Liberals are deserving of scorn. He portrays Conservatives as "incrementalists," whereas Liberals "advance their causes." Court decisions are an "agent of social liberalism" like Communist spies who deserve to have "restraints put" on them. Liberals are "activists"; Sotomayor is merely an "inevitable coup-de-gras" and not a respectable jurist.
Douthat's constant modus operandi of veneering his rank partisanship in subliminal prolixity is nothing more than putting lipstick on a pig.
I like the "own-goal" analogy, if not the logic it supports. The Republicans now have a governmental "dream team in federal and state government and are doing a very good job of screwing up their opportunity, their own worst enemies.
1
Treating the court as an ideological prize has debased it. Mr. Douthat, ostensibly a conservative, is all for it. He insists on the primacy of party wishes in judicial decisions.
Besides the power position of the GOP - what precisely does Mr. Douthat wish to conserve?
Besides the power position of the GOP - what precisely does Mr. Douthat wish to conserve?
3
This is the most strained hypothesis I've read in quite some time. Douthat is looking WAY too deep into the tea leaves here.
The Republicans did not want to let Obama seat a moderate on the bench to provide a crucial swing vote. So, under McConnell's guidance, they stonewalled his pick, depriving him of one of his constitutionally-mandated Presidential powers.
It was a brutal, but ultimately effective maneuver. But what goes around, comes around. Roberts, Alito and Gorsuch aren't immortal, and may pass away while the Democrats control all three branches of government. If I've learned one thing, it's that life can be funny that way.
The Republicans did not want to let Obama seat a moderate on the bench to provide a crucial swing vote. So, under McConnell's guidance, they stonewalled his pick, depriving him of one of his constitutionally-mandated Presidential powers.
It was a brutal, but ultimately effective maneuver. But what goes around, comes around. Roberts, Alito and Gorsuch aren't immortal, and may pass away while the Democrats control all three branches of government. If I've learned one thing, it's that life can be funny that way.
2
Douthat has always been an impressive mental gymnast, but the fact that he's still blaming liberalism for what his party has become as opposed to, say, cynicism and racism and the enabling behavior of spineless, unprincipled so-called small-c conservatives is astonishing. Whatever happened to taking personal responsibility?
2
Well, Ross, at least you didn't place the blame on Obama for daring to actually make an appointment to the Supreme Court during his last term of office. McConnell then invoked the ultimate filiobuster -- he simply ignored the fact that President Obama made that appointment. Meetings? Hearings? For whom? There's no nominee here.
1
Mr. Douthat:
Why not go back to the beginning of time and blame the creator? This is a long way from substantive thinking. This is mean spirited revisionism and not worthy of the space it takes up in this paper. By the way: Syria.
Why not go back to the beginning of time and blame the creator? This is a long way from substantive thinking. This is mean spirited revisionism and not worthy of the space it takes up in this paper. By the way: Syria.
3
All was persuasive up to "betrayed." Douthat has a lot to offer until you step back and look at the whole. Despite sounding like Ginsberg on Roe, i.e., pressure released via state actions, he can not effectively avoid the proven pudding of Jim Crow or voter suppression when some states are left to their own devices. Also, despite his seemingly thoughtful conservatism, it is hard to not feel that in a pinch (pun intended) he would keep tight swaddling of infants to "force their bones to grow straight."
This column is an excellent example of question begging.
The problem posed by McConnell's decision to block the constitution's advise and consent provision for Supreme Court nominees is the real issue. Under the constitution, Merrick Garland was supposed to receive both hearings and a vote in the Senate. Senator McConnell decided to ignore the constitution on purely partisan grounds.
Instead of addressing this constitutional crisis, the column devises straw men that are completely irrelevant to the governance of the US. The column is nothing more than a distraction from an important issue.
The problem posed by McConnell's decision to block the constitution's advise and consent provision for Supreme Court nominees is the real issue. Under the constitution, Merrick Garland was supposed to receive both hearings and a vote in the Senate. Senator McConnell decided to ignore the constitution on purely partisan grounds.
Instead of addressing this constitutional crisis, the column devises straw men that are completely irrelevant to the governance of the US. The column is nothing more than a distraction from an important issue.
2
Hold on. You give too much credence to SCOTUS. Sure it's the court of last resort but it is not the penultimate authority in our democracy, that is reserved to the people. The court can only rule within the context of the box it is in called the constitution. If all of the conjecture of this piece is valid then the last act will be not Neil Gorshuch but a period of activism in amending the constitution at the state level. Amendment is hard but the results of the last election do not indicate that some needed changes would be thwarted by the process. What can't be gained through the Electoral College or SCOTUS might be possible through amendment.
Alas many think it should go beyond the constitution, bowing to public opinion, politics, modern feelings, etc. Things are often brought to the court(s) rather than the elected bodies as a short cut or back door means of achieving ends not otherwise quickly available, abettted by judges who sometimes rule on how things "should be" (in their opinion) rather than what is actually written in the constitution and laws.
Gee, and if only Republican (and Eisenhower appointed Chief Justice) Earl Warren had just stayed a predictably callous conservative voice on the Supreme Court.
Perhaps, if Gorsuch (spell check changes his name to GROUCH), reverses course as a Justice and engages in NOT punishing some future truck driver for not freezing to death for his company, Douthat will Souter (not Bork) him.
Perhaps, if Gorsuch (spell check changes his name to GROUCH), reverses course as a Justice and engages in NOT punishing some future truck driver for not freezing to death for his company, Douthat will Souter (not Bork) him.
2
The "filibuster" seems alive and well in the comments section where no idea is too small or poorly matched to a context to go away. Would that something could actually come to a vote here and put to rest some of the repeated, reused dogmathought-legos.
Remember the old jokes having some random bad situation and always ending with, "thanks Obama"? Remember how that dismissively summarized the right's senseless response to any problem? Well....
Remember the old jokes having some random bad situation and always ending with, "thanks Obama"? Remember how that dismissively summarized the right's senseless response to any problem? Well....
Right after Harry Blackmun was confirmed to the Supreme Court I met a friend of his at a Village Voice party. His friend, gray haired, pleasant, very distinguished looking, said to me I would be very surprised how good a justice he would be. How could he be any good if Nixon chose him? The friend said to me that Blackmun was an extremely serious person. That he took to heart the responsibility that the Supreme Court was the final place that people without power could turn to. He said this with such profound conviction that it made me question my own assumptions. He turned out to be right.
Gorsuch feels like an emotionally shutdown ideologue. Someone extremely small minded as well as literal minded. But he also feels like someone who genuinely wants not to be seen that way. And maybe, admittedly this is a huge stretch, might not even want to be that way.
Gorsuch feels like an emotionally shutdown ideologue. Someone extremely small minded as well as literal minded. But he also feels like someone who genuinely wants not to be seen that way. And maybe, admittedly this is a huge stretch, might not even want to be that way.
1
Equating a supreme court justice voting according to his own metrics instead of those of the party that nominated him is of a piece with the GOPers who said that Nunes worked for the so-called president.
This is a fault - or is it a feature? - of the Republicans that they fail to understand that elected officials work for the people in their district, not the party leader. They pledge to uphold the Constitution, not the party line.
This distortion of who a politician serves is a direct result of how our campaign funding works: it benefits the wealthy at the expense of the country. Our democracy and our Constitution are being eaten away piecemeal by corporate interests and the billionaires who control them.
McConnell, no doubt in the service of the American Legislative Exchange Council (ALEC), ended the filibuster. He will go down in history - provided there is anyone left to write it after climate change kills all the large mammals, including us - as the man who broke the Senate first by treason-level obstruction and then by ending the filibuster.
Go ahead Douthat and distort that.
This is a fault - or is it a feature? - of the Republicans that they fail to understand that elected officials work for the people in their district, not the party leader. They pledge to uphold the Constitution, not the party line.
This distortion of who a politician serves is a direct result of how our campaign funding works: it benefits the wealthy at the expense of the country. Our democracy and our Constitution are being eaten away piecemeal by corporate interests and the billionaires who control them.
McConnell, no doubt in the service of the American Legislative Exchange Council (ALEC), ended the filibuster. He will go down in history - provided there is anyone left to write it after climate change kills all the large mammals, including us - as the man who broke the Senate first by treason-level obstruction and then by ending the filibuster.
Go ahead Douthat and distort that.
1
Ross, Reagan played a big role in this dysfunction as well. Democrats warned Reagan that there would be a fight over Bork if nominated due to his extreme views and actions during Nixon's 'Saturday Night Massacre'. But of course the 'Saint' thumb his nose at Democrats and nominated Bork anyway.
Bork got a hearing and a vote. Senators heard too much from Bork and 6 Republicans voted against him (two Democrats voted for him).
Reagan's next nominee received a 97 - 0 vote from that same Senate. That was Justice Kennedy.
Bork got a hearing and a vote. Senators heard too much from Bork and 6 Republicans voted against him (two Democrats voted for him).
Reagan's next nominee received a 97 - 0 vote from that same Senate. That was Justice Kennedy.
1
It's refreshing to see a right-wing Republican finally acknowledge that Republican claims of "original intent" and "strict constructionism" are absurd and frivolous -- and that, instead, a Republican nominee who fails to enforce prevailing party cant and interests of the day has "effectively betrayed the party which put him on the court."
It took many years, and of course Republican claims of judicial purity never fooled anyone, but the admission is still welcome.
Balls and strikes, indeed. Who would have guessed the outcome of the game was fixed in advance and that an umpire who failed to throw the game "effectively" betrayed poor Ross?
It took many years, and of course Republican claims of judicial purity never fooled anyone, but the admission is still welcome.
Balls and strikes, indeed. Who would have guessed the outcome of the game was fixed in advance and that an umpire who failed to throw the game "effectively" betrayed poor Ross?
Justice Gorsuch is an illegitimate member of the Supreme Court. Any judge accepting the position under these circumstances is be definition not defending the constitution. And btw whatever happened to an independent judiciary? When the Pakistani Supreme Court looks more independent than the one in the US, we have really reached new lows.
1
What disturbs me about this piece is that Mr. Douthat assumes that Supreme Court justices "owe" the person and party who nominated them some kind of partisan obligation for action. I thought the court was there to "call balls and strikes," not to determine the ideology of a proposed law and work from there. What happened to the constitution? While I think the originalists are simply trying to use sometimes vague language in the constitution to cover ideological agendas, I do gain some hope from justices who vote unexpectedly as they try to stay true to what they think the constitution actually states. It doesn't happen often in this day and age, but I certainly approve when it does. Imagine--justice trumping ideology. Sorry Mr. Douthat, but if that's what Justice Souter accomplished, I'm all for it.
2
It is inexcusable for columnists like Ross Douthat to try to rationize the blockage of the Merrick Garland SCOTUS nomination. You simply can't put lipstick on what history will judge to be one of America's most blatantly partisan actions by Republican Senators who placed Party over country.
You can talk and write about angry white voters who elevated Trump to the White House. But you also need to acknowledge when a wrong was committed for purely partisan advantage -- a wrong, let's be clear, to Constitutional duty and the separation of powers. There are many citizens, myself among them, who will never forgive the Republican Party for this act of internal sedition.
You can talk and write about angry white voters who elevated Trump to the White House. But you also need to acknowledge when a wrong was committed for purely partisan advantage -- a wrong, let's be clear, to Constitutional duty and the separation of powers. There are many citizens, myself among them, who will never forgive the Republican Party for this act of internal sedition.
"Pocket-veto"? How benign sounding. In actuality, traitorous Repulsives willfully ignored the constitution and perverted justice by denying Merrick Garland a hearing.
Deplorable and despicable.
Deplorable and despicable.
4
Stuff and nonsense. The person who is responsible for the death of the filibuster is Mitch McConnell. Keep trying to defend the indefensible, Mr. Douthat. Keep blaming the other side. Call people traitors for refusing to follow your party's deeply unpopular agenda. It's only going to get worse from here.
2
Wow! That might be among the more convoluted arguments that I have ever read.
4
Either that was tortured logic or Mr. Douthat's essay was too Byzantine to comprehend. Souter betrayed the Republicans by sneaking his way onto the Supreme Court? Bush was betrayed by his own Republican advisors who tricked him into nominating a liberal? Am I following Mr. Douthat?
Because Souter was not a rabid Scalia/Alito-clone, he made Republicans so mad that they hold a grudge against Democrats... Democrats who did not nominate him? And this grudge explains why Garland never got a hearing, even though he was nominated with enough time left in Obama's democratically and electorally elected presidency to put through 6 nominations? That a non-democratically elected president could not only get his nomination through, but do it in a matter of weeks is not an issue? I get it.
If I put it that way.... It's tortured Byzantine logic.
Because Souter was not a rabid Scalia/Alito-clone, he made Republicans so mad that they hold a grudge against Democrats... Democrats who did not nominate him? And this grudge explains why Garland never got a hearing, even though he was nominated with enough time left in Obama's democratically and electorally elected presidency to put through 6 nominations? That a non-democratically elected president could not only get his nomination through, but do it in a matter of weeks is not an issue? I get it.
If I put it that way.... It's tortured Byzantine logic.
Uh-oh.
Sports metaphor.
Why is it that men haul out sports metaphors when their arguments grow thin?
Women have never hauled out crocheting or baking metaphors to make their points.
In fact that "got one in the oven" as a metaphor for pregnancy is from males.
You lose, Ross.
It wasn't David Souter who left Republican World.
It was the Republican Party that left David Souter.
Yes, the Supreme Court is one of the least respected members of our nation, but it got there the hard way: It earned it.
Bush v. Gore?
Hobby Lobby?
Originalist blather?
Dark Money?
You can't imagine how many times through the years I have thought of David Souter, out in a rippling brook somewhere, flicking his rod, silently watching the dismantling of this nation from afar.
I can only hope that he is writing his autobiography because I would love to know what he thought of this whole Garland/Gorsuch treason.
David: wherever you are today, I hope you have a lovely day.
Sports metaphor.
Why is it that men haul out sports metaphors when their arguments grow thin?
Women have never hauled out crocheting or baking metaphors to make their points.
In fact that "got one in the oven" as a metaphor for pregnancy is from males.
You lose, Ross.
It wasn't David Souter who left Republican World.
It was the Republican Party that left David Souter.
Yes, the Supreme Court is one of the least respected members of our nation, but it got there the hard way: It earned it.
Bush v. Gore?
Hobby Lobby?
Originalist blather?
Dark Money?
You can't imagine how many times through the years I have thought of David Souter, out in a rippling brook somewhere, flicking his rod, silently watching the dismantling of this nation from afar.
I can only hope that he is writing his autobiography because I would love to know what he thought of this whole Garland/Gorsuch treason.
David: wherever you are today, I hope you have a lovely day.
2
Simplistic nonsense. Any given appointee could be plugged in to this blather to make a case for the critical appointee. This essay is honors quality in junior high school.
I am not sure why so many people act surprised when you offer yet another iteration of your senseless drivel. It is your currency. Bork got a vote. Souter -- supported, as he was, by the White House and its operatives in the Senate -- got a vote. Garland did;t even get an interview, and although not technically due to a formal filibuster it doesn't matter, does it?
1
Your logic eludes me . . . if only we had no 'liberal' interpretations of the law we could have more guns, make women less able to make decisions about their own health, hidden non-heterosexuals and, of course, all companies could declare their 'religious views' make their female employees unable to have the health care provider allow them control over their own family planning. And if you were unlucky enough to be born in a state that controlled all of these things (because the Supreme Court would abdicate that right to the states) well . . . too bad. I definitely do not have to look at your byline to know that you are not a woman.
You have just declared yourself to be a proponent of the obscene notion that Supreme Court political appointees must obey the dictates of those (and their deep pocket handlers, such as the Koch brothers) who put them there.
That Souter refused to do so was a gift of fairness and decency to the people of the United States at a time when it was so desperately needed.
Tragically, it wasn't enough, and its poisoned spawn, along with the now dithering Shrub, includes the election rigging that brought us the Trumpian nightmare now unfolding.
Time for you to head to confession, Douthat.
That Souter refused to do so was a gift of fairness and decency to the people of the United States at a time when it was so desperately needed.
Tragically, it wasn't enough, and its poisoned spawn, along with the now dithering Shrub, includes the election rigging that brought us the Trumpian nightmare now unfolding.
Time for you to head to confession, Douthat.
2
Thank you Ross Douthat for a brilliant piece of writing. The top commentators think you are a fool and a knave, but they couldn't be more off course. Your basic premise is sound as rock. If Roe V Wade had been overturned, long ago, and returned to the States, the growing civil war over supreme court nominations probably not have happened with the same intensity.
I first read this analysis in the op-ed pages of the New Haven Register, when they ran a column 10 or 15 years ago by a conservative writer from some state like Colorado. The point has only made more sense over time.
If the pro and con abortion wars had been forced to be fought state by state, the pro abortion side would have slowly won, but there would have been no dramatic turn by the anti-abortion group to the Republicans, with an intense focus on changing the Supreme court to correct this perceived, ultimate wrong. You hit a nerve, when you point out that many Republicans were so concerned now over the importance of the supreme court, that they held their noses and voted for Donald Trump. The irony is enough to make a grown person cry.
I first read this analysis in the op-ed pages of the New Haven Register, when they ran a column 10 or 15 years ago by a conservative writer from some state like Colorado. The point has only made more sense over time.
If the pro and con abortion wars had been forced to be fought state by state, the pro abortion side would have slowly won, but there would have been no dramatic turn by the anti-abortion group to the Republicans, with an intense focus on changing the Supreme court to correct this perceived, ultimate wrong. You hit a nerve, when you point out that many Republicans were so concerned now over the importance of the supreme court, that they held their noses and voted for Donald Trump. The irony is enough to make a grown person cry.
1
It’s popular among conservatives to dismiss the concerns of liberals about choosing a right-wing supreme-court justice by arguing that the nominee will inevitably turn progressive anyway, like Earl Warren. By this logic, the liberals’ best friend on the court would be Clarence Thomas, not David Souter. We hear this argument every time an ultra-conservative is nominated to the court. Weak!
Ross also suggests how much better liberals feel if the Supreme Court had referred the conflicts over such issues as gay marriage and abortions to the states. Is he kidding? Thanks to a generation of republican gerrymandering, both practices would be widely illegal by now, against the wishes of the majority of the population. Un-democratic!
If you would like to hear an impassioned argument in favor of re-instating the judicial filibuster, just wait until the republicans lose their majority in the Senate. Hypocritical!
Ross also suggests how much better liberals feel if the Supreme Court had referred the conflicts over such issues as gay marriage and abortions to the states. Is he kidding? Thanks to a generation of republican gerrymandering, both practices would be widely illegal by now, against the wishes of the majority of the population. Un-democratic!
If you would like to hear an impassioned argument in favor of re-instating the judicial filibuster, just wait until the republicans lose their majority in the Senate. Hypocritical!
Mr. Douthat clearly forgets Harry Blackmun as David Souter's predecessor in black robles on the Court. Nominated by Nixon, he was reliably a vote for conservative principles for his first few years on the Court but then moved to a recognition of the effects of decisions on actual human beings and dropped his ideological straitjacket.
The history of the court in the latter half of the twentieth century shows that the longer the service on the court the less likely ideology is to control their votes if justices are capable of seeing the human beings behind and beyond the legal arguments. I attribute this to the facts of the cases that are likely to come before the Court..
The history of the court in the latter half of the twentieth century shows that the longer the service on the court the less likely ideology is to control their votes if justices are capable of seeing the human beings behind and beyond the legal arguments. I attribute this to the facts of the cases that are likely to come before the Court..
"the same forces that doomed Robert Bork and Merrick Garland"
Does Mr. Douthat even follow the news? What in the world is he talking about?
Does Mr. Douthat even follow the news? What in the world is he talking about?
1
Perhaps for Douthat's sake, to spare him the confusion, the justices should put away their black robes in favor of blue or red.
2
So the destruction of our democratic checks and balances doesn't fall where it belongs, on Dick Cheney who in 2005 threatened to simply, as President of the Senate, arbitrarily do away with the filibuster (and the Dems blinked). It wasn't Harry Reid, who when Republicans DELIBERATELY filibustered to try to hold the DC Circuit Court for a Republican President (Forgot that, Russ?) or when McConnell refused even a HEARING for Garland. No, it's David Souter's fault for not "admitting" that his judicial thinking didn't run like Rehnquist's and Scalia's. Right.
Ross's Republican Revisionist "History".
Like Robert Bork, a totally inappropriate pick being "Borked". As if that was the beginning.
Ross, like every other Republican forgets that Republicans "Borked" LBJ's pick for Chief Justice, Abe Fortas, and hounded him off the Court. They also "Borked" Fortas's replacement as associate, Homer Thornberry, and STOLE those 2 seats for Nixon to fill--with Warren Burger and Harry Blackmun, the latter whom they later detested for being judicial instead of reliably Republican.
Blackmun was Nixon's 3rd choice after the eminently inappropriate Clement Haynesworth and G. Harold Carswell (check WikiPedia for what we didn't know about Carswell during the hearings!).
But, no, in Republican revisionism, Ross Douthat picks David Souter. Mitch McConnell held the gun, and threatened to pull the trigger if Dems filibustered. McConnell pulled the trigger so the blame is his and the GOP's.
Ross's Republican Revisionist "History".
Like Robert Bork, a totally inappropriate pick being "Borked". As if that was the beginning.
Ross, like every other Republican forgets that Republicans "Borked" LBJ's pick for Chief Justice, Abe Fortas, and hounded him off the Court. They also "Borked" Fortas's replacement as associate, Homer Thornberry, and STOLE those 2 seats for Nixon to fill--with Warren Burger and Harry Blackmun, the latter whom they later detested for being judicial instead of reliably Republican.
Blackmun was Nixon's 3rd choice after the eminently inappropriate Clement Haynesworth and G. Harold Carswell (check WikiPedia for what we didn't know about Carswell during the hearings!).
But, no, in Republican revisionism, Ross Douthat picks David Souter. Mitch McConnell held the gun, and threatened to pull the trigger if Dems filibustered. McConnell pulled the trigger so the blame is his and the GOP's.
1
Ross Douthat writes that, "on the biggest cases — Planned Parenthood v. Casey, Lawrence v. Texas, Obergefell v. Hodges — and quite a few smaller ones, the post-Reagan Supreme Court has been an agent of social liberalism." When Douthat says "social liberalism," I assume he means "equal rights."
1
Just a couple of thoughts. The Republican Party of 1990 was not completely controlled by the Conservative Movement and Christianism. A substantial number of Republican Senators were "pro-choice," including Rudman, who no one at the time considered "liberal." And many movement conservatives considered H.W. Bush a "squish" having moved to the "pro-life" position while Vice-President under Reagan. The fact is Ross, the Movement Conservative political movement has become more radidal and extreme after each time it has failed at public policy. The Democrats basically had to surrender, promise not to filibuster when the last time Republicans controlled by the Senate and the Presidency, only to see it turn into a weapon of mass destruction under McConnell's leadership when a Democrat was President and they had a majority in the Senate. Good riddance. Gorsuch may be the figure to just take equal protection away from women, minorities, and gays, but it may turn into a ironic victory for Republicans as the current plutocratic Government brings ruin and disaster onto the country.
1
Today Douthat takes a break from speculating about what might happen to look into what never happened. Yet even his counterfactual history gets the facts wrong.
There is no "Borked". Bork was given his constitutional due process: nominated, and voted on. Voted down, as it happens, but if that never happened, why vote?
Raising Bork as some kind of original sin on the part of Democrats is ridiculous. Several Republicans voted against him, as did the MAJORITY of the Senate. No filibuster needed. He lost. Next case.
Compare Garland. No hearing. The Senate abrogated its constitutional duty. That's not a "pocket veto", as Douthat implies. Nowhere in the constitution does it say the senate may deny a nominee by failing to act.
And, by the way, gay marriage wasn't decided once at the top, a la Roe v. Wade. Many states had ratified gay marriage before the issue reached the Supreme Court. The court had to decide, else some states wouldn't recognize some marriages valid in other states. That's exactly the kind of constitutional question the court was established to decide.
The court wisely decided not to repudiate those referenda. To have decided otherwise would have been a historic first.
Wrong on Bork, Garland, and gay marriage. Three errors in 800 words. Not par for the course, but as expected for someone with Douthat's handicap.
There is no "Borked". Bork was given his constitutional due process: nominated, and voted on. Voted down, as it happens, but if that never happened, why vote?
Raising Bork as some kind of original sin on the part of Democrats is ridiculous. Several Republicans voted against him, as did the MAJORITY of the Senate. No filibuster needed. He lost. Next case.
Compare Garland. No hearing. The Senate abrogated its constitutional duty. That's not a "pocket veto", as Douthat implies. Nowhere in the constitution does it say the senate may deny a nominee by failing to act.
And, by the way, gay marriage wasn't decided once at the top, a la Roe v. Wade. Many states had ratified gay marriage before the issue reached the Supreme Court. The court had to decide, else some states wouldn't recognize some marriages valid in other states. That's exactly the kind of constitutional question the court was established to decide.
The court wisely decided not to repudiate those referenda. To have decided otherwise would have been a historic first.
Wrong on Bork, Garland, and gay marriage. Three errors in 800 words. Not par for the course, but as expected for someone with Douthat's handicap.
1
James: nor was Roe decided 'at the top'.
Prior to Roe 30 states deemed abortion 'illegal', but 20 states had already ruled it 'legal under limited circumstances'.
Prior to Roe 30 states deemed abortion 'illegal', but 20 states had already ruled it 'legal under limited circumstances'.
1
As long as we are dreaming.
Imagine if the Supreme Court hadn't gotten entangled in the Florida vote fraud. Allitto and Roberts would not be on the Supreme Court!
Imagine if the Supreme Court hadn't gotten into the Florida vote fraud, Dick Cheney would not have been lying about WMD's.
Imagine if the Supreme Court hadn't gotten involved in the Florida vote fraud, the citizens would hold and trust the court with great honor and reverence.
The court now will become an arrow in the quiver of partisan weaponry that will further dived an already divided country.
Imagine..... It is alway good to imagine. Someday the Democrats will return to power and repair the damage McConnell has single-handily done to that once honored institution, the United States Senate.
Imagine if the Supreme Court hadn't gotten entangled in the Florida vote fraud. Allitto and Roberts would not be on the Supreme Court!
Imagine if the Supreme Court hadn't gotten into the Florida vote fraud, Dick Cheney would not have been lying about WMD's.
Imagine if the Supreme Court hadn't gotten involved in the Florida vote fraud, the citizens would hold and trust the court with great honor and reverence.
The court now will become an arrow in the quiver of partisan weaponry that will further dived an already divided country.
Imagine..... It is alway good to imagine. Someday the Democrats will return to power and repair the damage McConnell has single-handily done to that once honored institution, the United States Senate.
The only reasonable statement in this column is "few liberals would trade the kind of big Supreme Court losses on social issues (and not only on social issues, of course) that I’m imagining for more comity in the nomination process."
This column suggests that if only we had spent the last few decades preventing women from making their own choices about pregnancy and failing to recognize the marriages of those who are gay, we might still have a judicial filibuster. That's a meaner suggestion than I expected from Mr. Douthat. Perhaps is secretly ashamed that his side has not been so willing to "lose" political power to advance civil rights.
This column suggests that if only we had spent the last few decades preventing women from making their own choices about pregnancy and failing to recognize the marriages of those who are gay, we might still have a judicial filibuster. That's a meaner suggestion than I expected from Mr. Douthat. Perhaps is secretly ashamed that his side has not been so willing to "lose" political power to advance civil rights.
The Supremes should be above partisanship yet all they have become is partisan. I am certain partisanship on the higher court was not what your precious powdered-whig racists who founded this place, thought.
So all the pious pennings I have had read from republicans about how independent Justice Gorsuch will be, that as a justice he is neither Republican or Democrat--all of that spilled ink belongs in the garbage, Mr. Douthat? I thought so. Your column has many flaws, as others have pointed out, but at least one conservative has now confirmed the idiocy of the blatherings of countless others. Yes, you are guilty of letting a scrap of truth in today's effort.
Oh, hey, everyone, the Supreme Court's job isn't to interpret the constitution and act as a check and balance against government. Per Ross Douthat, it's mission is to constrain liberalism. So, you see, according to Ross, David Souter, who was appointed by a conservative president, really wasn't doing his job when he followed judicial principles to make his rulings. And, now, because of him, we still have some form of reproductive rights for women and things like gay marriage. Sad, huh, Ross? Sad!
It's columns like this that really make me question anything Ross writes. Different perspectives are nice, but he's an alternate facts columnist.
It's columns like this that really make me question anything Ross writes. Different perspectives are nice, but he's an alternate facts columnist.
3
Robert Bork was the Solicitor General who fired the Watergate special prosecutor at President Nixon’s behest after the Attorney General and the Associate Attorney General both resigned rather than carry out this illegal act. When his nomination to the Supreme Court was sent to the Senate, both the Judiciary Committee and the full Senate, including Republicans, voted down his nomination. Give it a rest.
1
Blatant misleading journalism. Look no further than Mitch McConnell. I hope that it will be on his tombstone.
This is just marvelous. The long view and so insightful lacking in most NYTimes editorials. I can predict what each person will say so why read them. This was interesting, quite true, and concisely clearly written.
Give this man a raise and a cookie!
And no, I'm not Ross Douthat, and I am a liberal.
Give this man a raise and a cookie!
And no, I'm not Ross Douthat, and I am a liberal.
Ross - Your piece confirms how Dems feel about Republicans: they just don't play well with others. It's their way or the highway. Souter was a serious justice who applied the constitution with as much diligence as a Scalia or anyone else. Get over it.
Souter? Really? How far gone is the far right, the alt-right? So far that Republicans cannot remember the sanity that was once Republican. Republicans think that they have always been racist-southern-strategists, misogynists, xenophobes, enemies of the poor and all programs that benefit the majority: Social Security, Medicare, Medicaid, Unemployment Insurance, Food Stamps, Public Education, the EPA etc.
Ending the filibuster ended the Senate as a deliberative body. We now have a parliamentary government.
What Democrats learned is that, when they are in the majority, they can end a President's term whenever they want. Refusing to consider Garland was a Constitutional violation ignored by the Court and sanctioned by the entire Republican Congress. Democrats have also learned that they can shut the government down, with no real consequences to the party. Democrats have also learned that they can lie about the president's loyalty, national origin, religion, or policies. With that in mind, Ross Douthat is a hack who should be paid by the RNC or the Kochs and spare us the spin that is illogical and inaccurate.
Ending the filibuster ended the Senate as a deliberative body. We now have a parliamentary government.
What Democrats learned is that, when they are in the majority, they can end a President's term whenever they want. Refusing to consider Garland was a Constitutional violation ignored by the Court and sanctioned by the entire Republican Congress. Democrats have also learned that they can shut the government down, with no real consequences to the party. Democrats have also learned that they can lie about the president's loyalty, national origin, religion, or policies. With that in mind, Ross Douthat is a hack who should be paid by the RNC or the Kochs and spare us the spin that is illogical and inaccurate.
Total nonsense. Some 90 federal judgeships had become unfilled by 2014 due to Republican (minority) obstruction. Somebody had to do something, and Harry Reid did so. The Republican congressional failure to perform due diligence on David Souter's record of intellectual honesty is the reason why the GOP became the "party of NO" on judicial appointments??? Not.
The DNC still lives in the Political System of the late 20th Century, refusing to adapt to the New Age.
DNC operatives, known as "democrat senators" naively followed the old, shopworn tactic to "win".
AS if Teddy Kennedy were still alive and lording over the Senate, the DNC Senators took the view of "All or Nothing"....and refused to negotiate a single item on the nomination of Neil Gorsuch.
....
Now. Objectively speaking.
Neil Gorsuch.....just like Merrick Garland....presents himself to be thoughtful and wise in his own INDEPENDENT mind. He has demonstrated that he Upholds the Law. Nothing more....nothing less.
Similarly, Merrick Garland can impress the public with his own INDEPENDENT thinking and wise understanding of the Law, which he also seems to Uphold, regardless of narrow political agendas.
.....
The DNC has lost Merrick Garland...for good.
Had the DNC ultimately supported Neil Gorsuch, It is my belief that PRes Trump may have nominated Merrick Garland as the replacement for Ruth Ginsberg.............
Not gonna happen now..........
DNC operatives, known as "democrat senators" naively followed the old, shopworn tactic to "win".
AS if Teddy Kennedy were still alive and lording over the Senate, the DNC Senators took the view of "All or Nothing"....and refused to negotiate a single item on the nomination of Neil Gorsuch.
....
Now. Objectively speaking.
Neil Gorsuch.....just like Merrick Garland....presents himself to be thoughtful and wise in his own INDEPENDENT mind. He has demonstrated that he Upholds the Law. Nothing more....nothing less.
Similarly, Merrick Garland can impress the public with his own INDEPENDENT thinking and wise understanding of the Law, which he also seems to Uphold, regardless of narrow political agendas.
.....
The DNC has lost Merrick Garland...for good.
Had the DNC ultimately supported Neil Gorsuch, It is my belief that PRes Trump may have nominated Merrick Garland as the replacement for Ruth Ginsberg.............
Not gonna happen now..........
You should read your own newspaper, unless it's too liberal for you.
Mitch McConnell killed the filibuster.
Mitch McConnell unconstitutionally denied President Obama's supreme court nominee.
The GOP has usurped our government.
The GOP has coarsened and degraded the country by giving us that creature currently in the White House.
There are no alternate facts. Bork was never a Garland. Bork got a hearing. Everyone heard his freakish opinions, for example, on behavior of married couples, and his other arrogant, super-ultra-alt-right opinions.
I dream that Gorsuch might turn out to be a turncoat a la Justice Warren.
Mitch McConnell killed the filibuster.
Mitch McConnell unconstitutionally denied President Obama's supreme court nominee.
The GOP has usurped our government.
The GOP has coarsened and degraded the country by giving us that creature currently in the White House.
There are no alternate facts. Bork was never a Garland. Bork got a hearing. Everyone heard his freakish opinions, for example, on behavior of married couples, and his other arrogant, super-ultra-alt-right opinions.
I dream that Gorsuch might turn out to be a turncoat a la Justice Warren.
2
Aside from the usual rationalizations required of every right wing hack there's one thing that I think Douthat genuinely doesn't understand.
The court we've had since Souter's nomination is probably about the best the Republican party could have hoped for. Reliable on the things that matter to them and just close enough to overturning Roe vs Wade to keep people like Douthat strung along. The GOP only needs social conservatives for their votes but if they ever actually get their way there will be voter backlash that would make it much less likely for the party to do the things that it really does care in Congress and the White House.
The court we've had since Souter's nomination is probably about the best the Republican party could have hoped for. Reliable on the things that matter to them and just close enough to overturning Roe vs Wade to keep people like Douthat strung along. The GOP only needs social conservatives for their votes but if they ever actually get their way there will be voter backlash that would make it much less likely for the party to do the things that it really does care in Congress and the White House.
This opine reads like a wish list for the conservative apologist. One part fantasy and one part guilt trip. Of course liberals are to blame for the end of the filibuster. If they hadn't gotten a judge that actually represented their values in Souter, none of this would have happened. Merrick Garland would have been confirmed and the filibuster would still be in place. Oh, and by the way, let's build a conservative cross out of Robert Bork to climb on while we're at it.
Get real. The judicial process was politicized long before David Souter turned-coat on conservative orthodoxy. Republicans just didn't care because they were clearly winning at the time. When the tables so clearly turned after the death of Scalia, they refused to play the game until they could change the rules. That's the behavior of the child who throws the board game on the floor because they're losing.
The only part I'll agree with is that the judicial filibuster was indeed a fait accompli but not for the reasons stated. The filibuster died when Mitch McConnell began denying routine judicial appointments for purely political reasons. The Democratic mistake was not to go fully nuclear at the time. The stakes should have been all or nothing from the beginning. Clearly, they've lived to regret the decision. Hindsight is 20-20.
Get real. The judicial process was politicized long before David Souter turned-coat on conservative orthodoxy. Republicans just didn't care because they were clearly winning at the time. When the tables so clearly turned after the death of Scalia, they refused to play the game until they could change the rules. That's the behavior of the child who throws the board game on the floor because they're losing.
The only part I'll agree with is that the judicial filibuster was indeed a fait accompli but not for the reasons stated. The filibuster died when Mitch McConnell began denying routine judicial appointments for purely political reasons. The Democratic mistake was not to go fully nuclear at the time. The stakes should have been all or nothing from the beginning. Clearly, they've lived to regret the decision. Hindsight is 20-20.
A Supreme Court Justice should not be appointed because of any conservative or liberal values, but for their intelligence, experience, and reasonableness. Political partisanship and gaming the system to get a party's ideal candidate appointed smacks of a banana republic and not of a democracy.
110
The way things are going, we all better develop a real love of bananas because banana republic is exactly where we are headed.
Souter is just one example of a long history of politically conservative appointees to the supreme court who seemed to move to the left after appointment. I think this is because the Constitution as written is essentially a liberal document, codifying civil liberties and social justice. People often tend to be conservative because of a religious faith that is expressly not to be considered under constitutional directive of separation of church and state. Others tend to be conservative out of a strong belief in social hierarchy which has no place in the constitution. It has taken this "new" originalist judicial philosophy to justify consistently conservative decisions. This originalist philosophy works because conservatives can easily argue that the writers of the constitution who come from a more religious and socially stratified time did not mean exactly what they wrote
136
You reminded me of an old saying (C.S. Lewis, perhaps?): "To a circle, god is a circle and to a square, god is a square." The GOP steadfastly clings to the error of believing (if in fact they do) that the men of the Enlightenment who wrote our Constitution were really fanatical Puritans. They were not. Nor can you say with assurance that most of them took the Bible literally. They were men of reason, not men of god.
1
If you're trying to make me feel better about the present court make-up, you failed. I've have always believed the Court can bring the best out in its appointees, that partisanship and clinging to one side of the political spectrum can be overcome by men and women who are entrusted with interpreting the Constitution. There have been many examples throughout the history of the court. But we're in uncharted and dangerous territory here with lightweight appointees like Clarence Thomas who show no interest in doing anything other than confirming political decisions that favour the right.
The newest appointee would strongly suggest we have another of that type and the future of the country is further jeopardized.
The newest appointee would strongly suggest we have another of that type and the future of the country is further jeopardized.
111
And here we go again. Ross Douthat trying to impose his limited views on the Hon. David Souter without really understanding the man.
Ross, did it ever occur to you that Justice Souter's opinions could have been based on his understanding of the pertinent law in each case and the application of said law to the facts, while striving to leave ideology and partisan obligations - imagined or real - out of the equation?
This is why I abhor people's inclination to attempt to label everything as either left or right, liberal vs. conservative, republican vis-a-vis democrat.
Not everyone views the world through the same prism as you. And this might come as a shock, but judges are supposed to leave their ideology and political beliefs outside of the analysis. True, easier said than done. After all, no one can help being who they are. But please don't insult David Souter by ascribing to him the same activist mentality that so guided Justice Scalia.
If you clear your mind and read their decisions without bias, you will see that Scalia more often than not came into a case with a preordained agenda. Meanwhile, Souter seemed to strive to leave his personal views out of it.
Having said that, I don't expect you to see what I see. You wear your biases on your sleeve and have never proven to possess the intellectual heft you presume. In fact, I must confess that I rarely read your columns anymore. I just go straight to the comments to see other folks' reactions to your musings.
Ross, did it ever occur to you that Justice Souter's opinions could have been based on his understanding of the pertinent law in each case and the application of said law to the facts, while striving to leave ideology and partisan obligations - imagined or real - out of the equation?
This is why I abhor people's inclination to attempt to label everything as either left or right, liberal vs. conservative, republican vis-a-vis democrat.
Not everyone views the world through the same prism as you. And this might come as a shock, but judges are supposed to leave their ideology and political beliefs outside of the analysis. True, easier said than done. After all, no one can help being who they are. But please don't insult David Souter by ascribing to him the same activist mentality that so guided Justice Scalia.
If you clear your mind and read their decisions without bias, you will see that Scalia more often than not came into a case with a preordained agenda. Meanwhile, Souter seemed to strive to leave his personal views out of it.
Having said that, I don't expect you to see what I see. You wear your biases on your sleeve and have never proven to possess the intellectual heft you presume. In fact, I must confess that I rarely read your columns anymore. I just go straight to the comments to see other folks' reactions to your musings.
5
This is mental play, lacking any compelling argument and distracting from the political activism of most recent Republican Supreme Court judges, cloaked in words like originalism and textualism, but actually looking to justify arguments based on selective references to the Constitution and its older Amendments. Souter turned out to be a great judge who balanced careful attention to the law with an understanding that it is people who are affected.
26
Justice Souter did not purport to read the minds of God or the dead.
"political activism of most recent Republican Supreme Court judges"
Have we forgotten Chief Justice Earl Warren. perhaps the most politically active Justice of the past century.
Have we forgotten Chief Justice Earl Warren. perhaps the most politically active Justice of the past century.
The right wing sure wanted to hang Earl Warren from a sour apple tree.
There are too many antipodes to count in the division rending the US, but each is a mirror image of the same concept, such as the two forms of the golden rule, one of which commands action, the other commanding inaction. Equal protection of law is an alien concept to cronyism.
There are too many antipodes to count in the division rending the US, but each is a mirror image of the same concept, such as the two forms of the golden rule, one of which commands action, the other commanding inaction. Equal protection of law is an alien concept to cronyism.
No, the real turning point happened when the Senate Majority Leader, before Justice Scalia's corpse was even cold, outright refused to consider any justice nominated by a duly elected president.
79
The inequalities of Senate apportionment created a Frankenstein in this fool probably lead poisoned from breathing combustion products of coal as a child.
Souter did not betray the party that nominated him. Rather he refused to betray his own informed judgement on the matters at hand, free of the dictates of a rigid ideology like that held by Scalia. Douthat's opening statement that judicial appointments buffer the ebb and flow of presidential politics is ludicrous in light of the Garland episode. Finally, Douthat's analogy that John Sununu is to Republicans as Joe Lieberman is to Democrats must cause us to doubt Douthat's political acumen.
28
Mr. Douthat says that, "the same forces that doomed Robert Bork and Merrick Garland would have doomed the filibuster." That's interesting because neither Bork nor Garland were filibustered. Bork and Reagan were given the courtesy of a vote, but Bork was voted down 58-42 because of his extreme views. As we all know too well, the uber-cynical Mitch McConnell and the radical Republican Party would not give Obama and Garland even the courtesy of hearings, much less a vote.
34
A sixth-grade civics student would be flunked for blaming the discard of the filibuster on Souter, much less draw an absurd comparison of the Bork vs Garland nominating process (i.e. lack thereof).
17
Mr. Douthat assumes that supreme court justices are selected to further their party's objectives rather than uphold the constitution. The fact that David Souter was capable of learning on the job and making independent decisions angers him, but I think that is the way it is supposed to work.
25
The only satisfaction to be gained in light of the stolen Supreme Court seat and the nomination of another political hack Neil Gorsuch (payback for his mommy Anne being such a good foot soldier in the Reagan WH by neutering the EPA) and the loss of the filibuster, is that at some point in the very near future, there will be an opportunity to ram McConnell's folly back up where it belongs.
And boy will it be fun!
And boy will it be fun!
16
I would argue that demanding justices be ideologues is what has doomed the filibuster. Instead of filibustering the incompetent or unqualified, the procedure turned into the desperate measure to try to stop this trend. But given the lust for ideological warrior-justices, it is no wonder the filibuster would eventually have to be swept aside.
At this point it is the only way Republicans can get a satisfactory (to their tastes) nominee past the Senate.
What does that say about right-wing ideology?
At this point it is the only way Republicans can get a satisfactory (to their tastes) nominee past the Senate.
What does that say about right-wing ideology?
8
It's close to absurd to argue that without Souter, Garland would have been confirmed. The strange animus against Souter comes from ideological rigidity that cannot fathom a person who came to the bench and engaged in rich, tempered reflection. Souter wrote a number of opinions graced by incisive logic and near-lyrical resonance, and then left when he could no longer be part of the partisan facade that the Supreme Court had become, despite him. Souter was one of the most subversive - in the best sense - justices in history.
15
This is a sorry attempt to excuse the inexcusable. For a start, Souter was not the only justice to shift leftward during his tenure; Stevens and Blackmun are two other recent examples; and the right also complained about Sandra Day O'Connor because she didn't vote reliably enough on their side. No, what happened here was that, purely for partisan gain, the Republicans completely flouted their Constitutional duty to advise and consent in order to keep an Obama appointee from being confirmed ("pocket veto" is a ridiculous and completely inaccurate euphemism for their destruction of a Constitutional provision), and then abolished one of their own rules because it got in the way of their electing their own candidate to the Court. You're right about one thing: the Republicans don't want an independent judiciary; they want a win at all costs to the welfare of the nation and a partisan court to act as a rubber stamp for conservative legislation.
24
How about Earl Warren being the cause? Three-term Republican Governor of California leading perhaps the most liberal court in our history.
Democrats don't want an independent judiciary either. That's why all Democrat nominees vote in lockstep, especially on abortion- an issue that is not mentioned anywhere in the Constitution.
The Democrats haven't nominated someone who supports their agenda 90+% of the time since Byron White.
The GOP nominated Blackmun, Stevens, Souter and to a lesser extent O'Connor and Kennedy (some would also argue Roberts).
The Democrats haven't nominated someone who supports their agenda 90+% of the time since Byron White.
The GOP nominated Blackmun, Stevens, Souter and to a lesser extent O'Connor and Kennedy (some would also argue Roberts).
Senate Democrats never refused their duty to advise and consent to the nomination of a candidate for the Supreme Court; that was Republicans. Using the nuclear option and ending the filibuster in order to force their candidate through the appointment process? That was Republicans, too. And who really votes in lockstep on whether to abolish abortion rights? Yep, Republicans again.
The premise here is that Supreme Court justices should freeze their ideological positions for life once on the court. I have two words for that: Earl Warren.
4
It's long past time to drop the Ginsberg Rule that makes a farce of Senate confirmation hearings. Senators should demand answers, and vote against nominees who are not forthcoming in their views.
If we're going to recognize the Supreme Court as politics by other means, Senators and citizens alike deserve to know who they're voting for.
If we're going to recognize the Supreme Court as politics by other means, Senators and citizens alike deserve to know who they're voting for.
3
The problem is that Bork DID answer questions, and it cost him the seat. Now we are stuck with Anthony Kennedy's reign of terror.
Joe P
Your problem is you assume that, once nominated, candidates have a right to be confirmed.
It's like a court of law, if you say outrageous things your testimony will have an impact on your fate.
And few, if any, nominees said things more outrageous, or with such arrogant assurance, as Bork.
So, yes, he spoke truthfully and he was not confirmed, just as should happen when a jurist seems out of touch with those voting on his nomination.
Sadly, the lesson your party took from this was not that they should pay more attention to the quality of its nominees but, rather, that nominees should be coached to lie, dissemble, and distract.
Yet another sign of the death of patriotism among the Right.
Your problem is you assume that, once nominated, candidates have a right to be confirmed.
It's like a court of law, if you say outrageous things your testimony will have an impact on your fate.
And few, if any, nominees said things more outrageous, or with such arrogant assurance, as Bork.
So, yes, he spoke truthfully and he was not confirmed, just as should happen when a jurist seems out of touch with those voting on his nomination.
Sadly, the lesson your party took from this was not that they should pay more attention to the quality of its nominees but, rather, that nominees should be coached to lie, dissemble, and distract.
Yet another sign of the death of patriotism among the Right.
I think Mitch McConnell would weep to read this column. He is recorded as having said that blocking Garland from even having a hearing was one of the proudest achievements of his life. And after he blew up the Senate with his "nuclear option" in order to ram Gorsuch through, he again expressed huge pride over his accomplishment. The photos of the delighted smugness on his face following the Gorsuch vote spoke volumes about who he believes should be given credit for the wreckage.
10
"...and that the gay rights movement would have subsequently advanced through referendums and legislation rather than a sweeping constitutionalization of cultural debate"
Civil rights, protecting or even compelling the rights of oppressed minorities, don't belong in referendums! That's just allowing the majority to decide what rights the minority is entitled to - that's Scalia's (and presumably Ross Douthat's) idea of "originalism" but it's really just bigotry in disguise. These rights didn't get "constitutionalized," they were already there.
Civil rights, protecting or even compelling the rights of oppressed minorities, don't belong in referendums! That's just allowing the majority to decide what rights the minority is entitled to - that's Scalia's (and presumably Ross Douthat's) idea of "originalism" but it's really just bigotry in disguise. These rights didn't get "constitutionalized," they were already there.
12
Up until 17 years ago, exactly 0 societies recognized same-sex "marriage" so to claim this is a basic civil right is absurd.
The better question- what civil rights do people have IS a difficult question to answer. Letting 5 unelected judges make this up is inevitably going to result in backlash.
Do fetuses have the right to live? (SCOTUS said NO)
Do you have the right to own a gun? (SCOTUS and the Constitution say YES)
Do you have the right to keep all of your income? (Constitution says NO, previously SCOTUS said YES)
Do you have the right to build on your own property? (SCOTUS said NO)
The better question- what civil rights do people have IS a difficult question to answer. Letting 5 unelected judges make this up is inevitably going to result in backlash.
Do fetuses have the right to live? (SCOTUS said NO)
Do you have the right to own a gun? (SCOTUS and the Constitution say YES)
Do you have the right to keep all of your income? (Constitution says NO, previously SCOTUS said YES)
Do you have the right to build on your own property? (SCOTUS said NO)
We cannot allow bad actors such as McConnell to rule this country. The same can be said of partisans on the Democratic side. We need to amend the Constitution so that the incentive for court packing is reduced.
Justices should serve 18-year terms, with one term expiring every 2 years. A justice can be nominated for a second term but go through the process again. Finally, presidential appointments of all types: justices, judges, and agency positions must be voted up or down by the Senate within 120 days, otherwise they stand as confirmed.
This systems eliminates the McConnell gambit (e.g. the pocket veto), the filibuster, and it ensures that each president gets to nominate 2 justices. The court will experience a healthy turnover and be more accountable to the citizens as a result.
Justices should serve 18-year terms, with one term expiring every 2 years. A justice can be nominated for a second term but go through the process again. Finally, presidential appointments of all types: justices, judges, and agency positions must be voted up or down by the Senate within 120 days, otherwise they stand as confirmed.
This systems eliminates the McConnell gambit (e.g. the pocket veto), the filibuster, and it ensures that each president gets to nominate 2 justices. The court will experience a healthy turnover and be more accountable to the citizens as a result.
4
I like it but I doubt Washington has the wherewithal to look into your excellent suggestions. Many have opined the same for term limits on congress. No traction on that one either. Thanks got your thoughtful comment.
Is there any superiority for one kind of extremism over another? I don't think so, but if there is, I'd give the nod to protections for the rights of people over those for corporations, for tolerance over bigotry, and for assisting, not penalizing the less fortunate.
5
What about protecting the most vulnerable members of society, the unborn?
I'm still holding the naive belief that SC Justices should make decisions based on the law--not as payback to the party that nominated them. Guess I wasn't listening close enough to my grade school civics!
5
The elimination of the Senate filibuster is the result of the relentless movement of the Republican Party to the far radical right. Eisenhower and Nixon would now be considered ultra-liberals. The causes of this include huge amounts of money spent by right-wing tycoons establishing a right-wing media and the southernization of the Republican base. The Democrats have also shifted to the right, just not nearly as far as the Republicans. The funny thing is that the views of the American public, as opposed to our self-appointed "elites," remain remarkably supportive of New Deal style liberalism on economic issues. Those views just cannot receive a voice in either Party, as they're both intent on seeking the money of Wall Street and the financial industry.
3
You discuss this in political terms.
Liberals DO have political goals for the judiciary. They demand that judges read leftist policy, like abortion and gay marriage, into a document which can’t bear the weight, while reading out policies which are expressly permitted, like 2A rights and capital punishment.
Conservatives don’t see judges that way. If a legislature enact gay marriage, fine; the Constitution permits dumb policy. But we object strenuously to leftist courts refusing to permit conservatives to win elections and write policy.
We conservatives don’t want courts to restrain liberal policies, unless they violate the Constitution (ala restrictions on political speech). We want courts which read the law as it is and, if we win an election and get to write that law, we want it interpreted consistent with the language we use. (So that “sex” doesn’t judicially morph into “gender”.) Unlike the left, we don’t see the courts as political entities designed to advance policy.
Yes, AMK has a soft spot in his head for gays, which produces absurdities like Obergefell. It is precisely the assertion that judges might legitimately use their “reasoned judgment” to make policy to which we conservatives object. That is the assertion of legislative power, which courts lack.
Souter didn’t betray the GOP; he, like all leftist judges, betrayed the country and the judiciary, by asserting a power judges simply don’t possess.
Liberals DO have political goals for the judiciary. They demand that judges read leftist policy, like abortion and gay marriage, into a document which can’t bear the weight, while reading out policies which are expressly permitted, like 2A rights and capital punishment.
Conservatives don’t see judges that way. If a legislature enact gay marriage, fine; the Constitution permits dumb policy. But we object strenuously to leftist courts refusing to permit conservatives to win elections and write policy.
We conservatives don’t want courts to restrain liberal policies, unless they violate the Constitution (ala restrictions on political speech). We want courts which read the law as it is and, if we win an election and get to write that law, we want it interpreted consistent with the language we use. (So that “sex” doesn’t judicially morph into “gender”.) Unlike the left, we don’t see the courts as political entities designed to advance policy.
Yes, AMK has a soft spot in his head for gays, which produces absurdities like Obergefell. It is precisely the assertion that judges might legitimately use their “reasoned judgment” to make policy to which we conservatives object. That is the assertion of legislative power, which courts lack.
Souter didn’t betray the GOP; he, like all leftist judges, betrayed the country and the judiciary, by asserting a power judges simply don’t possess.
1
What dribble!
Over 100 years of precedent and established law was over turned in Citizens United to equate free speech with money. That is what right wing judicial activism looks like. Coming next eviseration of the commerce clause.
Over 100 years of precedent and established law was over turned in Citizens United to equate free speech with money. That is what right wing judicial activism looks like. Coming next eviseration of the commerce clause.
"But a liberal can be glad that Bush nominated Souter, glad that he effectively betrayed the party that put him on the court"
I wonder what the justices would say about Mr. Douthat's transactional view of a court appointment.
It may be hopelessly naive of me but I was always under the impression that Supreme Court Justices were supposed to uphold the Constitution and the law, not act as "politicians in robes" who invariably rule in favor of the party who put them on the court. Maybe that's what Souter was doing. Funny how Justice Kennedy is considered an outlier because he is not a predictable vote one way or the other. Imagine a court with nine justices like that.
I wonder what the justices would say about Mr. Douthat's transactional view of a court appointment.
It may be hopelessly naive of me but I was always under the impression that Supreme Court Justices were supposed to uphold the Constitution and the law, not act as "politicians in robes" who invariably rule in favor of the party who put them on the court. Maybe that's what Souter was doing. Funny how Justice Kennedy is considered an outlier because he is not a predictable vote one way or the other. Imagine a court with nine justices like that.
14
Mr. Douthat's analysis may be correct, in that the result of Souter was to halt the move of the court to the right, but I would take issue that Souter betrayed the party that confirmed him. Justice Roberts has confounded staunch conservatives on occasion, with some pretty ugly language coming out of the talkosphere.
Even when I would say I generally disagree with the disposition of a justice like Roberts, he and others settle the law in ways they believe fulfill their obligations to justice. Yes, they will have a conservative or liberal disposition to begin with, but at times they are capable of putting it aside in the interest of the law.
Even when I would say I generally disagree with the disposition of a justice like Roberts, he and others settle the law in ways they believe fulfill their obligations to justice. Yes, they will have a conservative or liberal disposition to begin with, but at times they are capable of putting it aside in the interest of the law.
2
Douthat twice calls the Senate's action on Garland a "pocket veto". That is another counter factual. If Congress is in session, the President must sign or veto passed legislation. If they are not in session he can decline to sign and thus pocket veto the bill at least until the next session.
When the Senate actually votes, as opposed to a filibuster, most votes including SCOTUS confirmations require a simple majority, not 51, but more yes than no votes. Non-votes by choice or by absence do not count. If in the case of Garland the Senate had held hearing, but then the Republicans had protested the appointment by declining to vote for or against an evidently qualified nominee, the result would have been something like 46 yea votes, 0 nay votes, 54 not voting, and Justice Garland would have been confirmed.
Instead they used the Rules of the Senate and their party-based control of whether votes are held to prevent any such vote. No Republican voted against Garland. The Senate rules are not in the Constitution. The convention of control of votes by the majority is one of the greatest powers of political parties, but are in no way in the Constitution. What is needed instead is an inverse filibuster, that is, the ability of 40 senators to bring any bill to a vote, or 200 in the House. Note that SCOTUS already has that. It takes 4 justices to bring a case before the court, not a majority.
When the Senate actually votes, as opposed to a filibuster, most votes including SCOTUS confirmations require a simple majority, not 51, but more yes than no votes. Non-votes by choice or by absence do not count. If in the case of Garland the Senate had held hearing, but then the Republicans had protested the appointment by declining to vote for or against an evidently qualified nominee, the result would have been something like 46 yea votes, 0 nay votes, 54 not voting, and Justice Garland would have been confirmed.
Instead they used the Rules of the Senate and their party-based control of whether votes are held to prevent any such vote. No Republican voted against Garland. The Senate rules are not in the Constitution. The convention of control of votes by the majority is one of the greatest powers of political parties, but are in no way in the Constitution. What is needed instead is an inverse filibuster, that is, the ability of 40 senators to bring any bill to a vote, or 200 in the House. Note that SCOTUS already has that. It takes 4 justices to bring a case before the court, not a majority.
4
Once on the Supreme Court, a justice is no longer beholden to the super rich and corporations. I think that David Souter began to look at the U. S. population as a whole and make his decisions on what was best for them. Mr. Douthat can call this liberal; I just call it the right thing to do. When the Supreme Court hands down a decision that corporations are people — I'm talking about Citizens United — there is something wrong with the Supreme Court. The same when the Supreme Court takes the position that certain conservative religions should be allowed to force their beliefs on the rest of us.
5
There have always been justices that didn't vote the way they were projected: Earl Warren, Byron White, Hugo Black, and the list goes on. What is different nowadays is the moralistic whining and shiv-in-the-dark tactics of the Right.
6
Here's the flaw in what the GOP did: Supreme Court seats are not conservative, liberal, African American, Jewish, Hispanic, or anything else. The people nominated to fill these seats should not be considered for their views as much as for their abilities look at the cases before them, decide them on the basis of current laws and whether or not constitutional standards are met. To put in a Scalia type justice is an insult to Scalia and America. The Originalist position seems to refuse to take into account the nearly 2.5 centuries since the country was formed and the constitution written.
I doubt that most women want to return to the days when they weren't allowed to vote. I don't see Thomas wanting to have himself and his fellow African Americans counted as 3/5 of a person. I doubt that any American wants to be told that he or she can't vote because they don't own land. Yet this is blithely ignored when the GOP carries on about how horrible liberals are. Have they considered where they'd be if the country hadn't evolved and changed? And while the GOP doesn't want to admit it, their preferred justices have done quite a bit of damage to our civil rights in the name of being conservative. This American didn't realize that being conservative meant being a judicial activist in order to keep corporations great and oppressive. Apparently, as with so many other things the GOP touches, it does.
I doubt that most women want to return to the days when they weren't allowed to vote. I don't see Thomas wanting to have himself and his fellow African Americans counted as 3/5 of a person. I doubt that any American wants to be told that he or she can't vote because they don't own land. Yet this is blithely ignored when the GOP carries on about how horrible liberals are. Have they considered where they'd be if the country hadn't evolved and changed? And while the GOP doesn't want to admit it, their preferred justices have done quite a bit of damage to our civil rights in the name of being conservative. This American didn't realize that being conservative meant being a judicial activist in order to keep corporations great and oppressive. Apparently, as with so many other things the GOP touches, it does.
31
I think it is a mistake to equate Neil Gorsuch to Antonin Scalia.
Any comparison of the two is merely a Media Sales job, attempting to persuade the narrow-minded to one narrow minded political agenda or the other.........old time "conservative" or old time "liberal".....both of which are out-dated, obsolete, irrelevant, shopworn 20th Century ideologies........
Any comparison of the two is merely a Media Sales job, attempting to persuade the narrow-minded to one narrow minded political agenda or the other.........old time "conservative" or old time "liberal".....both of which are out-dated, obsolete, irrelevant, shopworn 20th Century ideologies........
Your comment shows the correctness of the conservative position, and why liberals are so wrong. The two examples you give -- women gaining the right to vote, and slavery being eliminated – were not done by judicial fiat, but by constitutional amendment. Conservatives are totally in favor of constitutional amendments. They are opposed to judges just imposing their policy views on the country.
By the way, the 3/5 clause was designed to reduce the power of slave states. If you're saying that, when counting population, states should have had their entire slave population credited to them, giving them more representation in the House, then you are siding with the slave owners.
By the way, the 3/5 clause was designed to reduce the power of slave states. If you're saying that, when counting population, states should have had their entire slave population credited to them, giving them more representation in the House, then you are siding with the slave owners.
Interesting analysis, but one of the key premises of the piece is that the court has leaned liberal in recent years. This has been claimed by Douthat before and it seems clear to me that the repetition represents more intentional spin than error at this point.
The court has leaned conservative since the Clinton era, when a 5-4 GOP court awarded the presidency to George Bush in what can only be considered a coup in retrospect, and a disastrous one to boot. Since then an increasingly conservative GOP has tried to pass a truly radical conservative agenda including activist decisions to reverse decades (or centuries) of voting rights law, Second Amendment interpretation, labor/union norms and campaign finance law. The court has become an instrument of the wealthy. "Money is speech" and "corporations are people," remember?
The occasional libertarian impulse on social issues is best thought if as throwing the left a bone to distract from what amounts to creeping kleptocracy.
The occasional 5-4 decision pushing back on this radical conservative effluvium hardly represents any kind of liberal trend.
The court has leaned conservative since the Clinton era, when a 5-4 GOP court awarded the presidency to George Bush in what can only be considered a coup in retrospect, and a disastrous one to boot. Since then an increasingly conservative GOP has tried to pass a truly radical conservative agenda including activist decisions to reverse decades (or centuries) of voting rights law, Second Amendment interpretation, labor/union norms and campaign finance law. The court has become an instrument of the wealthy. "Money is speech" and "corporations are people," remember?
The occasional libertarian impulse on social issues is best thought if as throwing the left a bone to distract from what amounts to creeping kleptocracy.
The occasional 5-4 decision pushing back on this radical conservative effluvium hardly represents any kind of liberal trend.
49
Not only in retrospect: handing the presidency to Bush looked like a coup at the time, too, and it didn't take long for the disastrous effects to appear. I lost a great deal of respect for and trust in the Supreme Court at that time, and it hasn't recuperated yet.
21
Scalia did have what seems quaint now, the old conservative idea of protection from an intrusive government with unlimited rights to persecute the citizenry. Scalia, despite having hideous instincts on most issues, was good on illegal search and seizure
1
Mr. Douthat:
First, please do not equate Robert Bork and Merrick Garland. Bork got both a hearing and a vote. He lost the vote because he hung himself at his own hearing, acknowledging his extreme views and only assuring the Senate that he would not overturn civil rights precedents because that would make him a laughingstock. Read the record -- there is no comparison between these two events.
Second, have you forgotten Earl Warren? The Republican governor of California appointed by the Republican Dwight Eisenhower? Remember "Impeach Earl Warren"? That early harbinger of the Southern Strategy that has overtaken the Republican Party, and made it into the ideological extremist organization that it is today, rocket-fueled with Koch money and unwilling to compromise on anything whatsoever, is far more consequential than Justice Souter. You need to reacquaint yourself with mid-century history.
First, please do not equate Robert Bork and Merrick Garland. Bork got both a hearing and a vote. He lost the vote because he hung himself at his own hearing, acknowledging his extreme views and only assuring the Senate that he would not overturn civil rights precedents because that would make him a laughingstock. Read the record -- there is no comparison between these two events.
Second, have you forgotten Earl Warren? The Republican governor of California appointed by the Republican Dwight Eisenhower? Remember "Impeach Earl Warren"? That early harbinger of the Southern Strategy that has overtaken the Republican Party, and made it into the ideological extremist organization that it is today, rocket-fueled with Koch money and unwilling to compromise on anything whatsoever, is far more consequential than Justice Souter. You need to reacquaint yourself with mid-century history.
44
Bork chose career over Constitution in the Saturday Night Massacre, claiming he chose US stability over conscious. He deserved to get "Borked". He was the Scalia of the day, without the wit, but all of the graceless, gratuitous nastiness.
We need term limits for Justices to 20 years. That's plenty to maintain the long term moderation they bring, but not so long that they stay too long at the party. Times change and a 90 yr old justice is just so 1920's...
We need term limits for Justices to 20 years. That's plenty to maintain the long term moderation they bring, but not so long that they stay too long at the party. Times change and a 90 yr old justice is just so 1920's...
This column is little more than a mildly interesting parlor game resting on nuggets of alternate history. As long as we're playing it, let's continue: say at least one or two justices from the five-member conservative wing on the Supreme Court in 2000 had decided to put the law before ideology in Bush v. Gore. Now there is no Chief Justice Roberts or Justice Alito, but rather a solid 6-3 liberal majority on the Court.
Let's continue. Say that presidential elections were truly democratic and determined by popular vote rather than the slavery-era Electoral College. That 6-3 liberal majority would have still come about, but now be a 7-2 liberal majority with the swearing in of Justice Garland. And the Court would frequently rule 8-1 on key questions, with Justice Kennedy joining in the majority and a certain Justice infamous for asking no questions at oral argument sitting in the minority by his lonely self.
Let's continue. Say that presidential elections were truly democratic and determined by popular vote rather than the slavery-era Electoral College. That 6-3 liberal majority would have still come about, but now be a 7-2 liberal majority with the swearing in of Justice Garland. And the Court would frequently rule 8-1 on key questions, with Justice Kennedy joining in the majority and a certain Justice infamous for asking no questions at oral argument sitting in the minority by his lonely self.
It's a cute attempt to try to characterize the unprecedented and shameful treatment of Garland as a "pocket-veto" as though its something other than what it really was. The problem is that anyone with a passing understanding of the Constitution would understand that Congress can't "veto" anything, pocket or otherwise, that's a power solely reserved for the President. This only belies the rhetorical pretzels Douthat folds himself into to pretend like the Garland theft was something far more innocent than what it was...
Just why are republican males so concerned about abortion? In my view, unless and until men can get pregnant, their views on the subject are irrelevant.
32
This is like asking why white males should be so concerned about the shooting of unarmed black men. Unjustified killing of innocent persons should be a concern of all people.
Did you ask the same questions when it was an all-male Supreme Court that voted for Roe v Wade back in 1973? I am sure you were praising their decision. I wondered why women were not able to decide the final outcome as we might not have ended the life of over 50 million innocent babies in the womb.
There are two genders and both are needed to conceive perhaps? In parenthood, we count by twos. And I am a liberal pro-choice.
Mr. Douthat, until you took your sclerotic and bitter turn upon the papacy of Francis, who has had the temerity to be as joyfully blithe toward legalisms as our Lord himself, your warm, grounded, and intellectually rigorous Catholic analysis held the promise of a conservative future that didn't portend cruelty to actual humans. A "culture of life" not impossible for the actual living. You have the depth and the warmth to get back to that, and it seems to be reviving here. I am sure you also know more than I do about Burkean conservatism and all of the juridical conservatisms that descend from it, and I wish you could integrate this tradition of thought with the contemporary Republican radicalism that calls itself "conservative" and the Catholic "conservatism" that wouldn't want to conserve Jesus himself if he showed up. There is much more to conservatism than these two currently loud versions, and you know this so well.
I'd welcome the chance to see you pushing your way toward reforms in the spirit of these old traditions again, these older, better conservatisms. You have this platform and all the spiritual depth and knowledge to pick up this flag. A lot of us would cheer you on.
I
I'd welcome the chance to see you pushing your way toward reforms in the spirit of these old traditions again, these older, better conservatisms. You have this platform and all the spiritual depth and knowledge to pick up this flag. A lot of us would cheer you on.
I
7
With the help of McConnell, who did destroy the filibuster, Trump has already done everything he needs to do to be considered a successful president by the majority of the 400 wealthiest families in the USA, and the corporate titans, and especially of the 50 families that contributed over half the dark money to PACs in the recent election. Gorsuch is now on the Supreme Court. If Trump can replace Kennedy, Ginsburg, Breyer, Sotomayor, or Kagan while still in office, he will go down as the greatest president of the century in their eyes, and complete the conversion of the United States from a Democracy to a Plutocracy, Oligarchy, Kleptocracy, regardless of whatever else he does. Nothing else matters. How far this goes depends a lot on Roberts and Kennedy. But the Roberts court has already pointed the way and started us down that path with a long series of 5-4 decisions making it more difficult for minorities to vote, supporting voter suppression, making most of us less free, and freeing unlimited corporate and personal dark money to influence not only political elections but also supposedly non-political offices such as judicial nominations. John Roberts has said that 5-4 decisions make bad law and raise questions about the legitimacy of the court. He should know: he has lead many, only rarely making an decision contrary to the type of decision we have come to rely on from Scalia, Thomas, Alito, and himself. There is now a reliable replacement even more extreme than Scalia.
20
Let's hope Gorsuch fools them and becomes Trump's Earl Warren.
1
It must be nice having selective amnesia, or selective memory, or suchlike. Has Douthat forgotten Abe Fortas? Has he forgotten the abuses of obstructionism, in particular the 'virtual filibuster', wherein a Senator doesn't actually have to speak for the duration? Nevertheless, there are no examples of the filibuster that did not amount to grandstanding. The filibuster has not swayed votes away from a course of action, especially where matters of justice are concerned. As to the Bork nomination: he was never going to win that, and while Kennedy's vocal condemnation may have been unprecedented, at no time was Bork's nomination subjected to filibuster.
10
Douthat undermines his own argument when he says that Souter "betrayed the party that put him on the court". A judge owes no fealty to the party or person that appoints him. We supposedly threw that kind of patronage out with the English nobility we deposed 250 years ago.
Shame on Douthat for his lack of belief in our system and its separation of power. Shame on me for expecting more of him.
Shame on Douthat for his lack of belief in our system and its separation of power. Shame on me for expecting more of him.
23
Why don't we ever talk about putting constraints on social conservatism? We talk about social liberalism as if it's a disease that is spreading.
13
Wait a minute, this is ridiculous. Mitch McConnell is a craven political manipulator who has damaged the American democratic fabric for his own personal advantage. There is no principal involved at all. Further, the 'conversation' ideologues that Ross celebrates here are exactly analogous to those Southern partisans prior to the Civil War who made all manner of argument for slavery, except for slavery--states rights, economic nationalism, natural right, etc and so forth. Many of those argument resonate today from the 'conservative' sidelines. These are people who just don't want to cope with change, growth and tolerance. These is no moral justification for their policies except personal pique--making others do what they want. Or, as in the case of Alabama, what they image they want but can't actually achieve.
Ross's argument is scurrilous. He seems to believe that because someone 'believes' something that it has a claim on the public trust and policy. The proper answer is 'no'; some things are just wrong. He should further recall that gains taken on the basis of political maneuvering alone do not last and eventually cost far more pain than adaptation.
Ross's argument is scurrilous. He seems to believe that because someone 'believes' something that it has a claim on the public trust and policy. The proper answer is 'no'; some things are just wrong. He should further recall that gains taken on the basis of political maneuvering alone do not last and eventually cost far more pain than adaptation.
10
Many of the comments to Mr. Douthat's article were more an expression of the writers' frustrations with the process to replace Mr. Scalia than critiques of Mr. Douthat's hypothesis. Commenters express frustrations and anger with Republican gamesmanship in "hijacking" this nomination. Some speak about the problem of partisan judging and apparently read the article as support for the notion that the two parties should expect judicial nominees to rule in accordance with the partisan agenda.
I read Mr. Douthat's article as putting forth an hypothesis for why the "nuclear" option has been used by McConnell to advance Gorsuch. While I firmly believe that a good judge should weigh each case according to the legal merits, the reality is that the American citizen, and certainly the political parties, want nothing of the sort. They want the predictability of ideological purity. Souter "betrayed" GOP expectations to such a spectacular degree that neither party wants to risk "wasting" a precious Supreme Court nomination on an unknown quantity. Paper trails continue to be dangerous, but the parties insist upon greater assurance of commitment to ideologies.
I am not sure that I agree with the notion that Souter killed the filibuster, the issue is far more complex than Mr. Douthat suggests in the way he sets forth his hypothesis. But I read the article not as an endorsement of ideological purity in judging, but an hypothesis of how & why the confirmation process is a mess.
I read Mr. Douthat's article as putting forth an hypothesis for why the "nuclear" option has been used by McConnell to advance Gorsuch. While I firmly believe that a good judge should weigh each case according to the legal merits, the reality is that the American citizen, and certainly the political parties, want nothing of the sort. They want the predictability of ideological purity. Souter "betrayed" GOP expectations to such a spectacular degree that neither party wants to risk "wasting" a precious Supreme Court nomination on an unknown quantity. Paper trails continue to be dangerous, but the parties insist upon greater assurance of commitment to ideologies.
I am not sure that I agree with the notion that Souter killed the filibuster, the issue is far more complex than Mr. Douthat suggests in the way he sets forth his hypothesis. But I read the article not as an endorsement of ideological purity in judging, but an hypothesis of how & why the confirmation process is a mess.
3
Hank
The filibuster was a minor player in making the confirmation process a mess.
Crucial is a widely shared perception that the hearings are an embarrassing charade; candidates swearing fealty to positions bearing no resemblance to previous decisions and public statements.
From Robert's stunning "stare decisis" display to Gorsuch's protestations of "originalist" intent, we know these sturdy burghers are lying through their teeth. It's a dog and pony show with interlocutors posing for selfies and failing to pay attention to responses.
Of course, that's exactly how much attention should be paid these solemn men who degrade themselves to gain power and position.
Your complaints about Borking are foolish. Bork was unacceptable. Radical to the core, political to a fault. Nonetheless, the man was granted a hearing and a vote. As noted here, he hung himself on his own responses, arrogant and rigid throughout.
Bork did us the honor of being honest, mistakenly thinking his doctrinaire views are widely shared. In that, he was superior to many who followed him down this sordid trail.
If I were you, I'd write a column bemoaning politicization of our highest court. It is existentially dangerous and, in light of Trump's likely influence, will have consequences far beyond the calm of the courtroom.
You have demonstrated that "nation of laws" is an outdated fable, and shredded any confidence that a citizen could at least rely on a fair hearing and a reasonable decision.
The filibuster was a minor player in making the confirmation process a mess.
Crucial is a widely shared perception that the hearings are an embarrassing charade; candidates swearing fealty to positions bearing no resemblance to previous decisions and public statements.
From Robert's stunning "stare decisis" display to Gorsuch's protestations of "originalist" intent, we know these sturdy burghers are lying through their teeth. It's a dog and pony show with interlocutors posing for selfies and failing to pay attention to responses.
Of course, that's exactly how much attention should be paid these solemn men who degrade themselves to gain power and position.
Your complaints about Borking are foolish. Bork was unacceptable. Radical to the core, political to a fault. Nonetheless, the man was granted a hearing and a vote. As noted here, he hung himself on his own responses, arrogant and rigid throughout.
Bork did us the honor of being honest, mistakenly thinking his doctrinaire views are widely shared. In that, he was superior to many who followed him down this sordid trail.
If I were you, I'd write a column bemoaning politicization of our highest court. It is existentially dangerous and, in light of Trump's likely influence, will have consequences far beyond the calm of the courtroom.
You have demonstrated that "nation of laws" is an outdated fable, and shredded any confidence that a citizen could at least rely on a fair hearing and a reasonable decision.
Your belief is the right or left as political entities really care about specific ideas. It's really about power. The rich find wedge issues and exploit them. If not abortion, then lgbt. There is always something. The demise of the filibuster started with its creation. Originally in the Senate there was unlimited debate. Or 100% filibuster. Unlimited debate became a "problem" because senators used it stall legislation. So the 2/3rds threshold was set. Coalition parties became stronger using the 2/3rds. And so on. Now we have 50% 1. So be it. Blaming Souter is not to observe history over the long haul.
9
Stop comparing Garland and Bork to Gorusch. Bork was not filibustered he was voted down. Garland had a seat stolen from him by Gorusch and the GOP. What the GOP did is not the same as what the democrats did its not even close. That's like saying petty assault is the same thing as murder.
13
History will take a very dim view of Mitch McConnell.
11
Many conservatives trace the recent Senate battle over Supreme Court nominees to that anger that followed in the wake of the Senate's refusal to confirm Robert Bork in the 1980s. Ross Douthat traces it to Justice David Souter's surprising move toward the center or even toward liberalism. But the fact is that the roots of last week's Senate battle trace back to political divisions over Roe v. Wade, and, before that, over Brown v. Board of Education. So, as a historian, I would say that Douthat's account willfully omits much of the story.
9
Columnists get to write columns, wandering around the intellectual wilderness in search of counterfactuals.
Souter came from a different time, when neither Democratic nor Republican presidents filtered their nominees through ideological allies, nor were they compelled to select exclusively career judges with Ivy League degrees as part of a campaign to disarm the opposition. Souter "effectively betrayed the party that put him on the court" only through the lens of our current divide. Douthat might also remember that Roe, now the litmus test for all nominees, was decided 7-2 and written by a Nixon nominee, back when the Equal Rights Amendment was an uncontroversial plank in the GOP platform.
Souter came from a different time, when neither Democratic nor Republican presidents filtered their nominees through ideological allies, nor were they compelled to select exclusively career judges with Ivy League degrees as part of a campaign to disarm the opposition. Souter "effectively betrayed the party that put him on the court" only through the lens of our current divide. Douthat might also remember that Roe, now the litmus test for all nominees, was decided 7-2 and written by a Nixon nominee, back when the Equal Rights Amendment was an uncontroversial plank in the GOP platform.
369
Douthat creates a facile equivalence between Bork and Garland here. It's false. Bork was given extensive hearings. Garland was completely shut out of the process. Conservatives still smart over Bork's treatment, but it was his own words from his own writings that doomed his nomination, not some Democratic poohbah playing god.
539
Bork announced that he didn't think the ninth amendment counted. How could he have been confirmed, if he couldn't promise to uphold the Constitution?
2
Forgive two ideas in one comment. Bork's rejection was not ideological. He came across in both his writings and hearings as someone on the autism spectrum. Thank God enough senators were willing to react honestly.
The equation of outlawing abortion with conservatism is remarkable. I thought conservatives were for keeping the government out our personal lives. Abortion is, of course, the most reliable scam Republicans have used since 1973 to secure the votes of low rent voters. Is that what defines conservative? Nobody likes abortion, but the right question is what are the predictable outcomes of restrictions on legal abortion? It is not fewer abortions; it is more dead women. It is pretty clear that in Mr. Douthat's world, misogyny is also conservative.
The equation of outlawing abortion with conservatism is remarkable. I thought conservatives were for keeping the government out our personal lives. Abortion is, of course, the most reliable scam Republicans have used since 1973 to secure the votes of low rent voters. Is that what defines conservative? Nobody likes abortion, but the right question is what are the predictable outcomes of restrictions on legal abortion? It is not fewer abortions; it is more dead women. It is pretty clear that in Mr. Douthat's world, misogyny is also conservative.
2
Indeed. It would have been nice to hear from Mr. Garland. Ugh.
2
Mr. Douthat doesn't disappoint. As the knee-jerk right-wing Republican that he is, he fills the role that the Times wants him to fill.
Unfortunately, he has chosen to do his duty as the Times' Republican by besmirching the reputation of David Souter, a justice who quickly understood that upholding the backward-looking Republican agenda of stopping progress was like parting the Red Sea...impossible and regressive.
Time to retire to Breitbart, Mr. Douthat. As for the Times, you should repent the mistake made in employing Mr. Douthat.
Unfortunately, he has chosen to do his duty as the Times' Republican by besmirching the reputation of David Souter, a justice who quickly understood that upholding the backward-looking Republican agenda of stopping progress was like parting the Red Sea...impossible and regressive.
Time to retire to Breitbart, Mr. Douthat. As for the Times, you should repent the mistake made in employing Mr. Douthat.
10
Was David Souter a closet liberal in conservative New England cloth? Maybe. Perhaps we should be wary of independent thinkers who lack a reliable paper trail. But one thing you are forgetting is that once on the high court, liberals that becomes conservatives are as common as unicorns, not so with conservatives that become liberals, e.g., Harry Blackmun, Earl Warren, John Paul Stevens. I grant you that what once passed for conservative is now firmly in the center as that center has moved right, but still when the Court divines the rights of persons before them or contemplates the awesome power of our government over our lives, I want people liberal enough to know people are people and corporate person-hood is a legal fiction to permit limited liability not to confer personal rights. If that takes liberals, then more of those please.
287
Your observation "once on the high court, liberals that becomes conservatives are as common as unicorns, not so with conservatives that become liberals, e.g., Harry Blackmun, Earl Warren, John Paul Stevens." is on the mark. The reason these folks get lifetime appointments is to free them from the ideological constraints of those that appoint them, and to consider cases on their merits. There will always be a bias involved, as these are human beings. But they are (and should be) well versed in considering the merits of the cases brought before them in making their decisions, and the merits of "liberal" cases appear to win out in the long run, if not immediately.
1
So you think New England is conservative? It is socially conservative but politically progressive. My evidence, after a drunk driver Ted Kennedy killed his mistress, he was reelected with 80% plurality. Vermont has two Senators that are as left as anyone in the Senate, Bernie and his pal, Massachusetts has not voted a State Wide Republican in twenty years. So how is it you think New England is conservative?
Clearly David Souter seems an apparent traitor to conservatives. That is if you believe there is anything in the constitution that addresses abortion or that religious reasoning should be the basis for legal decisions. A true conservative would not. Also, it is a tremendous stretch to lay the current mess in the Senate with David Souter. If you want to go back to Bork, I would say it was GHW's mistake to nominate a judge so involved with the Saturday night massacre. Did he expect a Democratic Senate to appoint him? Conservatives have long resented his rejection and should blame GHW. Clearly, GHW was not so conservative, in fact socially quite liberal, and maybe Souter was his man all along. So in the end it was either GHW Bush or Mitch McConnell's filibustering Obama nominees and finally last weeks' vote that led to elimination of the SCOTUS filibuster. Not David Soutet.
175
Daniel, Bork was a Reagan nominee from 1987, after Lewis Powell retired. In retrospect, it was a saber-rattling move to nominate Bork to go before a Democratic-majority Senate for confirmation (which of course was denied). I agree with your observations on the senior George Bush. He didn't move to Texas until his twenties, and his roots were in the Northeast, which no doubt contributed to his relatively moderate views. "True conservatives" always distrusted him, going back to when the Republican establishment largely supported him as the main alternative to Reagan for the 1980 nomination. His deal with congressional Democrats in 1990 to raise taxes to reduce the deficit was the point of no return for many conservatives, who turned on him after that in favor of Pat Buchanan (in the primary) and esp. Ross Perot (in the general election) in 1992.
1
Reagan nominated Bork; (the elder) Bush did not.
— Brian
— Brian
Reagan nominated Bork, not Bush.
"...the same forces that doomed Robert Bork and Merrick Garland would have doomed the filibuster hereafter."
Another false equivalency. Merrick Garland never got the Senate review and vote to which he was entitled.
Another false equivalency. Merrick Garland never got the Senate review and vote to which he was entitled.
13
Perhaps Ross Douthat is too young to remember that the GOP was the party of Lincoln. In the 1970's and surviving through much of the 1980's, Republicans were quite liberal (particularly in the Northeast where they elected candidates like William Cohen). In fact, Prescott Bush was a very typical, moderate to liberal U.S. Senator. George Herbert Walker Bush spent most of his career as a moderate who refused to tough the abortion issue, preferring not to legislate on an issue so divisive.
What has changed, Ross, is the Republican party. Beginning with Nixon, the GOP saw the opportunity to pick up a huge swath of southern, racist voters (coming on the heels of LBJ's great society). They continued walking down this southern path when Carl Rove decided to cater to fundamentalist Christians. No, Ross, the party itself has changed. This is not the party of Lincoln. It is the party of Jefferson Davis now. Don't blame George H.W. Bush or Davis Souter. They were the last of their kind. Blame those who sell their souls to pick up voters.
What has changed, Ross, is the Republican party. Beginning with Nixon, the GOP saw the opportunity to pick up a huge swath of southern, racist voters (coming on the heels of LBJ's great society). They continued walking down this southern path when Carl Rove decided to cater to fundamentalist Christians. No, Ross, the party itself has changed. This is not the party of Lincoln. It is the party of Jefferson Davis now. Don't blame George H.W. Bush or Davis Souter. They were the last of their kind. Blame those who sell their souls to pick up voters.
21
McConnell killed the filibuster. The larger issue is that we went 14 months with an eight member court. If we could go one year with eight members, we could go two or four years. Why not twenty? Why not let the court attrition downward over time. With the present court we will likely have some changes in abortion and other social issues. What price this temporary victory? The present high fives in the cloak room won't last long. One day historians will look back and ask - Who killed the Supreme Court? I'm sure Ross will weigh in with an imaginative answer.
8
The filibuster seemed most often to serve as obstruction of good things and ideas rather than the opposite. If people come to their senses in senate majority elections it will be the Republicans spending their time hand-wringing. Keeping the filibuster is like compulsive gambler asking a casino to bar him from more gambling. Right now the House seems crazy and the Senate is nuts.
1
As long as you assert that a Supreme Court justice should have Party loyalty, we will suffer a duocracy and move one step closer to dictatorship of a monarchy. If American exceptionalism is, in part, founded on a separate but equal three branches of government (of the people), then you are misguided. Three separate branches of government, Ha!
2
Consider also Harry Reid: his machinations didn't just set up the destruction of the filibuster; he sealed our country's fate. When he LIED about hearing from a Romney friend that Romney had paid no taxes, he gave us four more years of the ultimate ideological partisan, the ultimate pendulum swing, and... Divided we fall.
2
Today Douthat is "too clever by half".
1
Time and again, I am stumped by a presumed "neutrality" of right or wrong denote by the terms "conservative" or "liberal". By this I mean there is no right or wrong when conservatism or liberalism are invoked. These are supposed to denote ideology, which is above a moral right or wrong.
For example, it is "conservative" to advocate for laws such as Citizens United or new voter ID requirement for voting, or to deregulate, or to bring religion into government etc.. And "liberal" to oppose them.
But beyond the "ism," some ideas or laws are right or wrong.
It is wrong to make it harder for citizens to vote, whether they vote Democrat or Republican. Need I elaborate more?
It is wrong to take away regulations that protect our environment, consumers and workers, even if it cost the businesses more.
It is wrong to equate corporation as people, for the simple fact that a corporation cannot go to prison, or bleed, or have family, or have feelings, etc. obviously "people" things. Douthat mentioned campaign finance, so let me asked, does he thins that the post Citizen superpac opaque funding is right for our democracy?
To categorize one as being conservative and liberal also rob us of the bridge to communicate and to understand by robbing us of our common ground of being human.
When we are in a power fight to assert our ideology over others, let it be known as such. And let's recognize that there is actual human cost involved in that process depending on who wins.
For example, it is "conservative" to advocate for laws such as Citizens United or new voter ID requirement for voting, or to deregulate, or to bring religion into government etc.. And "liberal" to oppose them.
But beyond the "ism," some ideas or laws are right or wrong.
It is wrong to make it harder for citizens to vote, whether they vote Democrat or Republican. Need I elaborate more?
It is wrong to take away regulations that protect our environment, consumers and workers, even if it cost the businesses more.
It is wrong to equate corporation as people, for the simple fact that a corporation cannot go to prison, or bleed, or have family, or have feelings, etc. obviously "people" things. Douthat mentioned campaign finance, so let me asked, does he thins that the post Citizen superpac opaque funding is right for our democracy?
To categorize one as being conservative and liberal also rob us of the bridge to communicate and to understand by robbing us of our common ground of being human.
When we are in a power fight to assert our ideology over others, let it be known as such. And let's recognize that there is actual human cost involved in that process depending on who wins.
1
The takeaway here is that liberal justices are indeed liberal but conservative justices are not necessarily conservative. Alternatively, perhaps those in the know, eg press, pols, and talking heads, really aren't. That is the beauty of the court. A final arbiter.
I'm still waiting for the Rs to complain about the stolen seat, you know, the one counted on when RBG moved to NZ or CA or wherever everyone goes when they can't have their way.
I'm still waiting for the Rs to complain about the stolen seat, you know, the one counted on when RBG moved to NZ or CA or wherever everyone goes when they can't have their way.
Douthat's amazing clause re: Souter--"he effectively betrayed the party that put him on the court." I'm not sure an "originalist" like Gorsuch, or Scalia, or (God forbid) Thomas would agree that the founders intended the Court to be in the service of what Madison called "factions," and we call "political parties." Has this fool ever heard of Earl Warren, appointed by Eisenhower, who was attacked by Douthat's right-wing partisans for years because he led the Court in a different direction from what his Party--the party of McCarthy and John Birch--would have preferred. Does this fool understand the dangers of the politicization of the Court? That we now have eight Justices of the Supreme Court and one Justice of Mitch McConnell?
2
In other words, Souter performed as a judge, rather than as Douthat's pamphleteer. Accordingly, the Republicans were forced to insure that, henceforth, their instrumentalist ethos, rather than the inconvenient and outdated one of ethical deference to the rule of law, prevailed.
"What a price we pay for this fanaticism!" -- Chief Justice Earl Warren
"What a price we pay for this fanaticism!" -- Chief Justice Earl Warren
4
Another off-kilter column from Mr. Douthat that just doesn't hold up under scrutiny - and I've figured out why: Mr. Douthat equates "liberalism" with "constitutional rights", as if both were things that a conservative court should repress. Based on his record, Justice Gorsuch should make Ross very happy indeed.
8
I wish Mr. Douthat could be more thoughtful of the realities of the gay experience, particularly since he has mentioned having gay friends. How can he so glibly say that "the gay rights movement would have subsequently advanced through referendums and legislation rather than a sweeping constitutionalization of cultural debate"? One of Souter's landmark cases was Romer v. Evans. I am a Coloradan who lived through that era. The case overturned Amendment 2, a state constitutional amendment forbidding all Colorado municipalities from enacting protections for gay people. So how exactly were "referendums and legislation" supposed to work when they were explicitly forbidden at the state level by the very moral constitutionalism that he decries when it comes from the left? Is it impossible for Mr. Douthat to understand that majorities of people may consistently find that stigmatiziing gay people provides a cheap way of demonstrating moral virtue? A good way to rally the conservative troops before addressing (or in reality, perpetually deferring) tough issues like the social repercussions of high divorce rates?
Would a world in which the Supreme Court supported the state-enforced stigmatization of Amendment 2 have been a small price to pay to ensure that decades later, the volk would not be enraged enough at having their own efforts at moral constitutionalism thwarted to subsequently demand that McConnell thwart Obama's perogative to fill a vacant Seat in turn?
Would a world in which the Supreme Court supported the state-enforced stigmatization of Amendment 2 have been a small price to pay to ensure that decades later, the volk would not be enraged enough at having their own efforts at moral constitutionalism thwarted to subsequently demand that McConnell thwart Obama's perogative to fill a vacant Seat in turn?
5
Does one detect a certain shame creeping into the argument of the moralistic Mr. Douthat? A writer who freely refers to the prior administration's attempts to wrestle some authority from an obstructionist Congress as "power grabs" introduces the counterfactual concept of a "pocket veto" to explain the Senate's failure to act on the Garland nomination. To describe his argument as Nesuitical woukd be to slander the Jesuits. Repent.
1
Souter? Give me a break. What planet does Douthat inhabit? Anything to give McDonnell more wiggle room. He's already upended the Congress and perhaps the Constitution Ross. How much more damage would suite you?
3
Douthat has found a new low. In one extraordinary column, he justifies McConnell's actions in preventing Obama's constitutional right to appoint a replacement for Scalia, stating it was "necessary" and caused by the Democrats. And, why was it the Democrats' fault? Because a justice appointed by a Republican decided to vote as a jurist instead of a political hack while on the Court. The absurdities of this contortion of logic is appalling and enlightening. Douthat, in one column, reveals his core belief that [his] ends justify the means. The goal--implementing "conservative" doctrine mandates that supreme court justices vote according to party lines and that any who don't are traitors to their party. And, if they have the audacity to retire or die while a Democrat is president, the original nominating party has the right--no, the justified obligation--to do whatever is necessary to restore the original intended order. Constitution be damned!! Party doctrine FIRST and ALWAYS. Dissenters suggesting constitutional process are to blame. The Constitution and the democratic process are mere temporary obstacles to the end.
4
This column is just another example of someone with a right wing viewpoint casting centrist objectivism as liberal activism.
11
The main effect of the relentless partisanship over judicial appointees is to diminish the people's respect for the rule of law that defines a true democracy.
4
I understand the historical point (and grumbling) about Justice Souter, but without the modern partisan duo of Harry Reid and Mitch McConnell it is difficult to understand our current situation. Had those two been willing to work things out through (the horrors of) compromise we might also be in a better place.
Perhaps our times simply mandated the events (thinking Lincoln and the Civil War), but so many what-ifs are of little help. It is clear that the history of partisan vengeance marches on, that the people we elect to high office follow their tribal leaders onto the battlefield.
Perhaps our times simply mandated the events (thinking Lincoln and the Civil War), but so many what-ifs are of little help. It is clear that the history of partisan vengeance marches on, that the people we elect to high office follow their tribal leaders onto the battlefield.
I would suggest that Justice Souter did not 'betray the party'; rather, that the Republican Party veered far away from republican, especially New England Republican, principles.
9
When the filibuster is used with the goal of obtaining a judge that will put political ideology ahead of the constitution and constitutional laws, it must be suspended. I hear criticisms of Gorsuch on Trucker firing decision. Those criticisms seem to be based on the outcome, (the trucker getting fired) rather than whether or not the law allows the firing. If a laws is constitutional and wrong, it is the job of congress to correct that. The first line of the constitution after the preamble reads "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." In other words, the judicial branch has NO legislative powers. If a law is constitutional but wrong, and the legislative branch will not correct it, then one of the two Article V amendment processes can be applied. Neither of those allows a judge to amend the constitution.
The role of a judge is not to bend the meaning of the constitution or law, it is to apply them. When the filibuster to used to obtain judges who stray from the meaning of the law, it should be suspended.
The root problem may be that a large minority of the Senate would support using the courts to change the laws and constitution through misinterpretation. We are not a Democracy, and the constitution is to be followed whether popular or not. In that days when we were a very Christian nation, it protected the minority from a State religion of Christianity.
The role of a judge is not to bend the meaning of the constitution or law, it is to apply them. When the filibuster to used to obtain judges who stray from the meaning of the law, it should be suspended.
The root problem may be that a large minority of the Senate would support using the courts to change the laws and constitution through misinterpretation. We are not a Democracy, and the constitution is to be followed whether popular or not. In that days when we were a very Christian nation, it protected the minority from a State religion of Christianity.
Perhaps David Souter was under the impression that, as an employee of the people of the United States, it was his job to interpret the Constitution as he saw fit, as opposed to furthering any particular agenda, left or right.
5
The US Senate is the most atrociously unfairly apportioned body in any country that purports to be democratic on this planet. The fact of radically unequal input into advise and consent to judicial and executive appointments and ratification of treaties is outrageous.
The filibuster is a band aid on a monstrosity that will probably lead to breakup of the US if it isn't rectified soon.
The filibuster is a band aid on a monstrosity that will probably lead to breakup of the US if it isn't rectified soon.
1
California has 39.5 million people and 2 senators. That is about the same number of citizens as the 22 least populous states from Wyoming to Iowa. https://en.wikipedia.org/wiki/List_of_U.S._states_and_territories_by_pop...
So, 42 senators to 2. BTW, the electoral votes those senator-equivalents represent broke 25 to 17 for Trump. Whatever else the system is, fairly apportioned it is not. But after all, Wyoming is certainly as important to the nation as California. Just think of all those great Wyoming movies like Brokeback Mountain!
So, 42 senators to 2. BTW, the electoral votes those senator-equivalents represent broke 25 to 17 for Trump. Whatever else the system is, fairly apportioned it is not. But after all, Wyoming is certainly as important to the nation as California. Just think of all those great Wyoming movies like Brokeback Mountain!
1
With the changing demographics in this country I think the *Republicans'* elimination of the filibuster of nominees will come back to bite them in the rear since its very likely that 4 years of Trump will be followed by 8 years of a Democratic president. If Kennedy and Thomas are still on the court 4 years from how I hope the Dem president appoints two extremely liberal justices to replace those conservatives, which are approved on party line votes. Poetic justice it would be.
4
your assumption fails to consider the effects of souters changed votes on the politics of the nation. liberals would have placed more pressure on supreme court, and perhaps president al gore would have nominated different justices thsn gbw. what souter did is what is expected of justices, to vote their conscience and apply the law.
4
Bush nominated Souter because a person he trusted recommended him and it appeared he could easily be confirmed, as he was. It turned out that he was not so ideologically pure, but back in the days of Bush I, neither was the Republican Party.
Even today, there are Republican libertarians who support the right of a woman to make decisions about pregnancy, but they don't run on that principle. There has been speculation that Republicans don't want Roe v Wade to be reversed because it's such a potent political weapon.
States' rights went out of style after the Civil War and only were resurrected after Brown v Board of Ed required that communities desegregate their schools. Republicans don't like states to have the right to oppose their orthodoxy and we are seeing examples of how that plays out in the urban-rural conflict that characterizes so many states.
The Bork rejection was a bitter pill for Republicans and may be a motivating force for the decision of McConnell to refuse a vote for Garland. That was a big risk, but it also played a part of encouraging conservatives to vote for a flawed candidate because he assured them he would nominate an acceptable candidate to the court. Given the closeness of the election, and, yes, even the electoral college vote was razor-thin, that might have been enough to give us the election of Donald Trump.
Conservatives can be glad that Trump nominated Gorsuch even though they may be appalled by what President Trump is doing.
Even today, there are Republican libertarians who support the right of a woman to make decisions about pregnancy, but they don't run on that principle. There has been speculation that Republicans don't want Roe v Wade to be reversed because it's such a potent political weapon.
States' rights went out of style after the Civil War and only were resurrected after Brown v Board of Ed required that communities desegregate their schools. Republicans don't like states to have the right to oppose their orthodoxy and we are seeing examples of how that plays out in the urban-rural conflict that characterizes so many states.
The Bork rejection was a bitter pill for Republicans and may be a motivating force for the decision of McConnell to refuse a vote for Garland. That was a big risk, but it also played a part of encouraging conservatives to vote for a flawed candidate because he assured them he would nominate an acceptable candidate to the court. Given the closeness of the election, and, yes, even the electoral college vote was razor-thin, that might have been enough to give us the election of Donald Trump.
Conservatives can be glad that Trump nominated Gorsuch even though they may be appalled by what President Trump is doing.
1
The heart of the problem lies in the following quote from this article "... he effectively betrayed the party that put him on the court..." There should be no expectations from the justices for them to betray. Any judge influenced by any kind of dogma of s not worthy of SCOTUS nomination. As a citizen, my expectation from the justices is very simple: remain true to your title of "justice." The Senate should also stop this ideological picking on justice nominees. And, the presidents should find judges who are known for their steady hand rather than their "conservative" or "liberal" labels.
The system has been broken for quite some time, and we are collectively trying to break it even further by constantly pulling at the seam where liberal and conservative ideas merge in an effort to split them further.
The system has been broken for quite some time, and we are collectively trying to break it even further by constantly pulling at the seam where liberal and conservative ideas merge in an effort to split them further.
5
The filibuster prevents the Senate from passing any controversial legislation opposed by 40% of its members. Requiring a supermajority to pass laws and ratify nominations is contrary to the spirit of the Constitution, and an "originalist" should know that. Shame on Douthat for writing at length on the filibuster with no mention of its antidemocratic intent. Next up, will he defend the "blue slip"?
1
At this point McConnell's gamble appears to have paid off but the game continues. Game theory predicts this was the right move if only one transaction is allowed but the wrong move if the game continues and cooperation will be needed in the future.
Wouldn't it be ironic if a liberal Democrat eventually nominates two liberals who are far to the left of Garland, two who never would have made it to the court at any time in our past and with their assistance we can reinvigorate the New Deal and Voting Rights Act to the great consternation of 'conservatives.'
If you believe the long-arch of history ushers in progress then this scenario is more likely than an authoritarian, plutocratic alternative. We've lost this battle but not the war. We have not yet begun to fight!
Wouldn't it be ironic if a liberal Democrat eventually nominates two liberals who are far to the left of Garland, two who never would have made it to the court at any time in our past and with their assistance we can reinvigorate the New Deal and Voting Rights Act to the great consternation of 'conservatives.'
If you believe the long-arch of history ushers in progress then this scenario is more likely than an authoritarian, plutocratic alternative. We've lost this battle but not the war. We have not yet begun to fight!
If Souter ended up supporting so-called liberal positions, might that not be just as easily explained as the result of his recognizing the merits of the positions being presented? Why does it have to be cast as a failure to serve the will of the party whose president appointed him?
Historically those in America who see themselves as conservatives have ended up on the wrong side. Tories -- i.e. conservatives -- did not want the colonies to be independent. Conservatives found justifications for the perpetuation of slavery, for restricting the vote to white male property owners, for denying suffrage to women, for the imposition of Prohibition, for maintaining an isolationist stance in the face of the rise of Fascism, and on and on.
Historically those in America who see themselves as conservatives have ended up on the wrong side. Tories -- i.e. conservatives -- did not want the colonies to be independent. Conservatives found justifications for the perpetuation of slavery, for restricting the vote to white male property owners, for denying suffrage to women, for the imposition of Prohibition, for maintaining an isolationist stance in the face of the rise of Fascism, and on and on.
6
"On the biggest cases ... the post-Reagan Supreme Court has been an agent of social liberalism notwithstanding its many Republican-appointed members."
This is as close as Mr. Douthat will come to admitting that "social liberalism" is ascendant, not because of ideological back-door deals, or tactics, or power play, but because it's the idea that the American Constitution was founded on ... it's a good idea.
This is as close as Mr. Douthat will come to admitting that "social liberalism" is ascendant, not because of ideological back-door deals, or tactics, or power play, but because it's the idea that the American Constitution was founded on ... it's a good idea.
6
Justice Souter did not betray the party. He upheld the Constitution. And, with respect to the filibuster rule change, a butterfly flapping it's wings in Brazil had nearly the same impact as the Souter nomination.
6
Interesting perspective. An activist judiciary in general ratcheted up the stakes of Supreme Court appointments, likely leading to the extreme partisanship we see today. Souter is somewhat unique in that he was a liberal justice nominated by a Republican president, but he was not the only one. Eisenhower nominated William Brennan, and Ford selected John Paul Stevens. You never know how a judge will actually perform on the court until he or she is seated -- and by then it's too late to call a Mulligan.
Bit of a stretch for a tipping point. Maybe had Nader not run; or, Comey not sent his letter....
1
The Garland 'pocket veto'? In the Constitution the pocket veto is an explicit power, but a power of the President. Now the Senate has taken unto itself the power to not Advise and Consent. Their refusal to formally consider Garland was not a pocket veto. It was dereliction of duty. Bad guys. Sad.
6
Well before Souter there is an example of unpredictability: In fact, the man whose court laid the groundwork for the 'activist liberal judiciary', who sent the right wing into paroxysms of indignation, whose name, preceded by the word 'impeach', appeared on lawn signs in suburbs across the nation.
Earl Warren. Eisenhower famously said nominating Earl Warren to SCOTUS was among the decisions of his presidency he most regretted. He thought he was getting a 'conservative'.
Wherever a judge may lie along the ideological line, once he's is on the bench, if intellectual honesty trumps (!) ideological purity, you cannot be sure where the facts, the law, and his reasoning will lead him.
Earl Warren. Eisenhower famously said nominating Earl Warren to SCOTUS was among the decisions of his presidency he most regretted. He thought he was getting a 'conservative'.
Wherever a judge may lie along the ideological line, once he's is on the bench, if intellectual honesty trumps (!) ideological purity, you cannot be sure where the facts, the law, and his reasoning will lead him.
2
Ah, if only the Republicans had received more victories outright, then they wouldn't have had to subvert our political discourse through obstructionism, gerrymandering, and ultimately the outrageous denial of a vote on Obama's nominee for Supreme Court.
Next, you'll blame the victims of Assad's latest chemical weapons attack for resisting him earlier in the war?
Next, you'll blame the victims of Assad's latest chemical weapons attack for resisting him earlier in the war?
3
"...the decay of the republic toward an executive-judicial diarchy"
Frightening words, and perhaps even more so in that many people seem to think it's okay. Have a celebrity like president (and I don't just refer to Mr. Trump) over whom we fawn and ooh and ahh (extending the same to their spouse as if her clothes and biceps are matters of national import), and people think the president is the head of government in an almost monarch-like way, not to be thwarted or questioned. One's like or dislike of this centers less on the issues than on party or perception. Then we have the courts, a group of unelected figures, who are tossed thorny issues that used to be decided by the people or their representatives but now are given huge sway over our lives sometimes based on their own views.
Factor in one additional piece- the rise of the bureaucracy, the unelected and virtually unaccountable power group that has been handed far too much power by the legislative branch to write rules and laws, take our property, fine or imprison us, all based on their supposed sagacity and wisdom.
All of this poses a dire threat to the constitution, the republic and the people. Some in here love the idea of being governed by "betters", those supposed experts in everything under the sun who will decide for us how to live our lives. But it all leads to a bad path in the end, though you may like some of the steps along the way, until the realization dawns that actual freedom has been surrendered.
Frightening words, and perhaps even more so in that many people seem to think it's okay. Have a celebrity like president (and I don't just refer to Mr. Trump) over whom we fawn and ooh and ahh (extending the same to their spouse as if her clothes and biceps are matters of national import), and people think the president is the head of government in an almost monarch-like way, not to be thwarted or questioned. One's like or dislike of this centers less on the issues than on party or perception. Then we have the courts, a group of unelected figures, who are tossed thorny issues that used to be decided by the people or their representatives but now are given huge sway over our lives sometimes based on their own views.
Factor in one additional piece- the rise of the bureaucracy, the unelected and virtually unaccountable power group that has been handed far too much power by the legislative branch to write rules and laws, take our property, fine or imprison us, all based on their supposed sagacity and wisdom.
All of this poses a dire threat to the constitution, the republic and the people. Some in here love the idea of being governed by "betters", those supposed experts in everything under the sun who will decide for us how to live our lives. But it all leads to a bad path in the end, though you may like some of the steps along the way, until the realization dawns that actual freedom has been surrendered.
2
Why bother with a government at all? You've just dissed every single thing a government does to keep things organized and under control. You don't like courts, you don't like the executive branch, and you don't like the legislature which is the mechanism by which we have those rules and laws you apparently don't like.
So why bother with a Constitution? What on earth good does a Constitution do if we are all free to do whatever we want whenever we want?
So why bother with a Constitution? What on earth good does a Constitution do if we are all free to do whatever we want whenever we want?
Lost in all this is the fact that there does not seem to be any demand for nominating ideological moderates anymore.
In the past, the threat of filibuster necessitated the nominating party to think twice before putting up an ideologue to the Supreme Court. Obama tried to placate both parties, by nominating Garland. Garland is an impeccable jurist, but remember the outcry from the far left that Obama did not nominate someone more radical.
Meanwhile, trump nominates gorsuch, by all accounts an excellent judge, but very very far to the right ideologically. Rather than compromise, or nominate another judge who sits more in the center, republicans remove the entire filibuster, and then blame democrats. I just don't get it.
This, after a majority of the country voted for the democratic ticket...
In the past, the threat of filibuster necessitated the nominating party to think twice before putting up an ideologue to the Supreme Court. Obama tried to placate both parties, by nominating Garland. Garland is an impeccable jurist, but remember the outcry from the far left that Obama did not nominate someone more radical.
Meanwhile, trump nominates gorsuch, by all accounts an excellent judge, but very very far to the right ideologically. Rather than compromise, or nominate another judge who sits more in the center, republicans remove the entire filibuster, and then blame democrats. I just don't get it.
This, after a majority of the country voted for the democratic ticket...
2
A judge doesn't "betray" his party. A judge puts justice above party. Souter did his duty with honor and (evidently!) courage.
2
As expected from the ideologue that is Douthat, his version of the US Supreme Court's shift in jurisprudence from Lochner to Carolene Products is not just oversimplified, it is wrong.
9
Mr Douthat, I cannot be silent while you slander one of the finest judges ever to grace the bench.
My mother knew and argued in front of Justice Souter regularly back when he was on the New Hampshire Supreme Court. She found him to be an absolutely brilliant and fair jurist, with a clear method of interpreting the law, drawing on precedent, and aiming for legal correctness. That is why Mr Rudman and Mr Sununu pushed him as a potential nominee for the Supreme Court: He was extremely good at his job. That's also why the Senate overwhelmingly confirmed his nomination.
His desire to be a fair judge, and for justice to prevail, is also why he left the Supreme Court when he did. He was absolutely disgusted by the blatantly partisan Bush vs Gore decision, not because he had lost, but because the court majority opinion didn't have a legal leg to stand on and everyone knew it (Vincent Bugliosi wrote an excellent book on this based on this article: https://www.thenation.com/article/none-dare-call-it-treason/ ).
Souter saw his role as being as fair a judicial referee as he could. The conservative Republicans thought they were getting an ideologue pretending to be a fair judge. Your condemnation of Souter, in a nutshell, is that he was exactly what he portrayed himself to be, rather than an ideologically-motivated liar.
My mother knew and argued in front of Justice Souter regularly back when he was on the New Hampshire Supreme Court. She found him to be an absolutely brilliant and fair jurist, with a clear method of interpreting the law, drawing on precedent, and aiming for legal correctness. That is why Mr Rudman and Mr Sununu pushed him as a potential nominee for the Supreme Court: He was extremely good at his job. That's also why the Senate overwhelmingly confirmed his nomination.
His desire to be a fair judge, and for justice to prevail, is also why he left the Supreme Court when he did. He was absolutely disgusted by the blatantly partisan Bush vs Gore decision, not because he had lost, but because the court majority opinion didn't have a legal leg to stand on and everyone knew it (Vincent Bugliosi wrote an excellent book on this based on this article: https://www.thenation.com/article/none-dare-call-it-treason/ ).
Souter saw his role as being as fair a judicial referee as he could. The conservative Republicans thought they were getting an ideologue pretending to be a fair judge. Your condemnation of Souter, in a nutshell, is that he was exactly what he portrayed himself to be, rather than an ideologically-motivated liar.
217
The Supreme Court generally applies only pretzel logic to equal protection of law, and it is sure to get even worse now.
Gore lost. Sorry. He banked his billion already.
Gore also lost every recount. Oops.
The Constitution requires a decision be made in time for the Electors to meet and make their decision. We would have run fake recounts for the entire time of Bush's Presidency had someone in authority not blown the whistle on the recount farce.
The solidly Democratic U.S. Civil Rights Commission found no cases where anyone who tried was not able to cast their vote.
Gore also lost every recount. Oops.
The Constitution requires a decision be made in time for the Electors to meet and make their decision. We would have run fake recounts for the entire time of Bush's Presidency had someone in authority not blown the whistle on the recount farce.
The solidly Democratic U.S. Civil Rights Commission found no cases where anyone who tried was not able to cast their vote.
Dave is correct, and I would go even further. David Souter served his country honorably. To denigrate his years on the Supreme Court is unfair, unjustified and grotesque. He correctly disdained the Bush v Gore decision, and his judicial demeanor made Scalia and Thomas look small in comparison. And, I have more than a suspicion that Gorsuch will more than justify my low expectations, in the mold of Alito.
2
====
I always pass right by Douthat's columns.
Today, for some strange reason, I started to read it and, then, remembered why I ignore him!
The first couple of commenters explain the reasons even better than I could!
I don't mind reading columns by conservatives (e.g., Will and Rubin in the Washington Post), but only if they are well written, coherent, logical, and facts-based.
That's clearly missing here!
====
I always pass right by Douthat's columns.
Today, for some strange reason, I started to read it and, then, remembered why I ignore him!
The first couple of commenters explain the reasons even better than I could!
I don't mind reading columns by conservatives (e.g., Will and Rubin in the Washington Post), but only if they are well written, coherent, logical, and facts-based.
That's clearly missing here!
====
30
Souter would have been a strange nominee from either side, given his lack of any political allegiance. You have your take, I have mine. He was a legal scholar, and a justice for whom the law - and the concept of justice under law - was what was most important.
The attempts to destroy established precedent, as in Roe vs wade, are, today, radical.
Your assertion that Souter "effectively betrayed the party that put him on the court" is evidence that you believe that an appointee OWES political loyalty to whichever party placed him/her on the Court -- that in no instances are they to apply their knowledge and talent to decisions - and that is poisonous.
The attempts to destroy established precedent, as in Roe vs wade, are, today, radical.
Your assertion that Souter "effectively betrayed the party that put him on the court" is evidence that you believe that an appointee OWES political loyalty to whichever party placed him/her on the Court -- that in no instances are they to apply their knowledge and talent to decisions - and that is poisonous.
68
Kelo v. City of New London is all we need to decide how estranged Justice Souter was from the original intent of the Constitution. He thought it was neat to take privately-owned land and see it sold to others just so the local government could earn more tax money.
The Roe v. Wade decision stirred a religious backlash because it din't go straight to the heart of the issue: separation of church and state. It should have rested on the constitutional prohibition of legislation based on articles of faith, such as the assertion that life begins at conception. As a practical matter, life begins at independent viability, and that what the law should reflect.
Sure enough, Douthat finds a way to blame liberals for the GOP abolishing the filibuster of Supreme Court nominees. What a crock. The filibuster was far more abused by the GOP under the repugnant Mitch McConnell. They got rid of it when the Democrats used it.
60
David Souter "betrayed" his party on abortion? If any betrayal took place, it was the betrayal of a Republican president (who once supported family planning initiatives before falling in line with cultural conservatives for political reasons) and the GOP leadership.
In fact, according to Pew, in 1995 Republicans were split equally on the question of whether or not abortions should be illegal in all cases. Overall, the divide was 60/40 in favor of abortions being legal. General public opinion on abortion has essentially remained the same over the past 20+ years, while Republicans have moved to the right.
But Ross Douthat is correct on one score. Counterfactuals don't really work. So why do Republicans insist on trading in them?
In fact, according to Pew, in 1995 Republicans were split equally on the question of whether or not abortions should be illegal in all cases. Overall, the divide was 60/40 in favor of abortions being legal. General public opinion on abortion has essentially remained the same over the past 20+ years, while Republicans have moved to the right.
But Ross Douthat is correct on one score. Counterfactuals don't really work. So why do Republicans insist on trading in them?
65
This is just trying to shift the blame for what the radicals among Republicans just did.
Souter was not a radical, and he did not divide the Senate.
Gorsuch is a radical, and he did start by alienating half the political system, not least because of what the radical Republicans did to get the seat to fill in the first place.
These are excuses for what they just did, and lame excuses.
The Court has been damaged in ways it has not seen since it did Bush vs Gore.
A bit more of this, and the whole branch of government will be in disrepute. That is especially important to the Court, because repute is all it's got. Congress controls money, the Executive has people to do things. The Court only has its reputation to restrain the others.
Now it is falling into disrepute, and will be meaningless. This is not abstract. It happened in Israel, as the political system largely ignored their Supreme Court. Their press and parties approved of that too. It can happen here.
Souter was not a radical, and he did not divide the Senate.
Gorsuch is a radical, and he did start by alienating half the political system, not least because of what the radical Republicans did to get the seat to fill in the first place.
These are excuses for what they just did, and lame excuses.
The Court has been damaged in ways it has not seen since it did Bush vs Gore.
A bit more of this, and the whole branch of government will be in disrepute. That is especially important to the Court, because repute is all it's got. Congress controls money, the Executive has people to do things. The Court only has its reputation to restrain the others.
Now it is falling into disrepute, and will be meaningless. This is not abstract. It happened in Israel, as the political system largely ignored their Supreme Court. Their press and parties approved of that too. It can happen here.
132
Every GOP representative is a "radical" today. It started with the moderate purge under Reagan, when the GOP's sole purpose became the elimination of taxes for the 1%.
That's the whole story.
That's the whole story.
2
Wow! So it's all about gay marriage, abortion, unlimited campaign finance and guns everywhere. Nothing about environment, labor, equal rights, public education, opportunity, and public health.
What Mr. Douthat overlooks is that implementing these stated conservative goals does nothing to reinforce or even maintain those liberal goals. The scary thing is that conservatives don't think that they have anything to do with freedom and liberty. Scary indeed!
This isn't about the good or bad of the filibuster. It's about a pathway to install a political agenda that is only concerned with abolishing gay marriage, outlawing abortion, guns everywhere, and allowing the super rich to run everything. Praise the Lord!
What Mr. Douthat overlooks is that implementing these stated conservative goals does nothing to reinforce or even maintain those liberal goals. The scary thing is that conservatives don't think that they have anything to do with freedom and liberty. Scary indeed!
This isn't about the good or bad of the filibuster. It's about a pathway to install a political agenda that is only concerned with abolishing gay marriage, outlawing abortion, guns everywhere, and allowing the super rich to run everything. Praise the Lord!
173
David Souter is proof-positive that no matter how political the Supreme Court may be individual justices can (and do) rise above themselves to do what's best for the country. Souter is a hero of independent thinking as was John Roberts in finding a way to save Obamacare. Who will rise above the fray in future Supreme Court cases? John Roberts may be our last best hope!
43
"But a liberal can be...glad that he betrayed the party that put him on the court." He was confirmed 90-9...clearly both parties put him on the court. That statement is exactly what is wrong with politics and punditry.
61
Mr. Douthat is an exceptional interpreter of our often shifting cultural values (I say so even as I often disagree with him on what they should be) but here he completely distorts the proper role of the judiciary, which is not a political one but, as the conservative firebrand and recently confirmed Justice Gorsuch has repeated, is to tell us "what the law is." The question is whether there "is" a constitutional right to abortion or gay marriage, and justices, if they are doing their jobs correctly, can only disagree on issues of interpreting whether the Constitution contains those rights. Douthat suggests that justices should merely reflect the political desires of the party that nominated them, when, in fact, a good justice is one like Souter, one who understands that the law at times contradicts or does not line up with the political preferences of governing parties. Conservatives may want to eliminate the practice of abortions or eliminate the marriages of two members of the same sex, but, as it is currently understood, our Constitution, the law of the land, guarantees those practices as rights embedded in the law. Thanks be to Souter for having a commitment to the law and not to the politicians who, with special interests, selected him.
98
the entire premise of this essay is disturbing in how it flips the function of the Supreme Court upside down. This attempts to place the political positions of each justice as their primary purpose, while evaluating the strengths of each case secondary.
No justice is ever apolitical, but their political beliefs and positions should always be secondary to the law -- particularly when the court is called upon to be the final authority on its interpretation. Indeed, the decision to make their term of office to be for life helps make each justice less beholding to the party or individuals who appointed them to the court.
No justice is ever apolitical, but their political beliefs and positions should always be secondary to the law -- particularly when the court is called upon to be the final authority on its interpretation. Indeed, the decision to make their term of office to be for life helps make each justice less beholding to the party or individuals who appointed them to the court.
23
It is not true that David Souter was a liberal justice. David Souter respected precedent as all judges are supposed to do. Unlike the activist conservatives who currently are trying to take the Supreme Court back to a place it was before the Franklin Roosevelt administration, David Souter acknowledged that he was bound by precedents and gave them the deference that they deserve. Respect for precedent is by definition conservative. There's nothing conservative about those who overturn precedent in their march to achieve their larger political agenda.
Well at least you're admitting that Republican actions led to the death of the filibuster. That's progress of a sort.
The Republicans haven't won many popular votes lately. It seems that the Republic which set out to protect the minority from the tyranny of the majority now subjects the majority to the tyranny of the minority. With the death of Scalia that minority felt its hold slipping, but they bounced back with a vengeance.
The fact that Republicans have only won one popular election in almost 30 years (Bush 2004) should tell them that their values are out of step with those of most modern Americans. But then they don't claim to speak for "most Americans", they claim to speak for "real Americans".
The Republicans haven't won many popular votes lately. It seems that the Republic which set out to protect the minority from the tyranny of the majority now subjects the majority to the tyranny of the minority. With the death of Scalia that minority felt its hold slipping, but they bounced back with a vengeance.
The fact that Republicans have only won one popular election in almost 30 years (Bush 2004) should tell them that their values are out of step with those of most modern Americans. But then they don't claim to speak for "most Americans", they claim to speak for "real Americans".
50
It is always the conservatives who believe that injustices will be cured eventually through referendums and the good people in local municipalities who will eventually come around and don't force them to change before they're ready! If he had been around during the civil rights era, he would, no doubt, have suggested that change would happen eventually, no need to get exercised about the current injustice.
12
The filibuster should be treated like time outs/reviews in sports like football.
Both parties should be allowed say three a year and it should be written into the constitution so it can't be easily changed.
This way the opposition party has a better chance of stopping majority tyranny but cannot abuse it.
Both parties should be allowed say three a year and it should be written into the constitution so it can't be easily changed.
This way the opposition party has a better chance of stopping majority tyranny but cannot abuse it.
5
No.
Historically the Senate is where legislation goes to die. The filibuster is convenient to the majority because they can blame failure to pass legislation on the minority.
The Senate is undemocratic by design, reflecting the constitution's structure as a pact between the states and the federal government. But, given that, why should a minority of states prevent passing legislation favored by the majority?
What legal calamity has the filibuster ever prevented? It's done a lot more to impede social progress than promote it.
Historically the Senate is where legislation goes to die. The filibuster is convenient to the majority because they can blame failure to pass legislation on the minority.
The Senate is undemocratic by design, reflecting the constitution's structure as a pact between the states and the federal government. But, given that, why should a minority of states prevent passing legislation favored by the majority?
What legal calamity has the filibuster ever prevented? It's done a lot more to impede social progress than promote it.
There's no comparison between the outcomes of the Bork and Garland nomination processes regardless of how often the right trots out that ridiculous analogy. Bork's rejection was the result of a judicious (yes, pun intended) use of discretion and deliberation while Mr. Garland was the victim of politics.
51
Classic Douthat -- blame the McConnell led attack on our democratic institutions on one person who wouldn't participate in legal persecutions of those on the societal margins, focusing on issues where people are having sex in ways Douthat doesn't approve of.
54
One appalling aspect of Douthat's piece is the implication that the Bork nomination and Garland non-nomination are two sides of the same coin. Robert Bork was rejected by a full vote of the Senate. Two Democrats voted in favor of confirmation and 6 Republicans voted to reject him. To suggest that Bork's rejection by a roll-call vote is equivalent to stonewalling Merrick Garland's nomination is ridiculous.
16
Actually it was the Republicans that killed the filibuster by using it more during the Obama administration than it had ever been used in the entire history of the US Senate that preceded those 8 years.
58
I've long thought that Supreme Court justices should serve 10-year non-renewable terms. Nearly annual presidential appointments would become "standard" and predictable, lessening the uproar and obstruction that occurs now, when an appointee may be there for 25-30 years. 10-year term limits would lead to appointment of new justices in synch with the current views of American voters. Also, age will no longer be an issue, and those in their 60s with lots of experience will be as likely to be appointed as someone in their 50s (or younger, Gorsuch is 49). They could remain on the federal bench for life, going on to another court, but 10-year terms would ensure equal (nearly one/year) appointments for elected presidents. By contrast, "lifetime" Supreme Court terms make for less predictability in when the court's make-up will change.
13
The blocking of Merrick Garland was not a necessity. It was treachery. By the way, George Bush Sr also gave us the clueless Clarence Thomas, which happened because Thurgood Marshall gave up too soon on the chance of Bush losing the 1992 election (Marshall would live into Bill Clinton's term as it turns out). One cannot blame Marshall considering how ill he was in 1991, but how much better would things be now if he had had the strength to hang in there.
If there is one positive note to come out of GOP's stolen seat strategy, it is the smashing of the myth that our justices, in the words of the Chief Justice, just call balls and strikes. It has been frustrating watching a decades worth of hearings where Senators keep pushing the myth that justices are appointed to rule on the law, not interpret the law. The assumption of our conservative Senators---like Hatch and Graham---is that a justice not bring social or cultural baggage to their decision making process---the myth of the perfectly objective judge. By now, is there any citizen that believes these judges exist? Let's be honest about the process --- it is highly political and so are the judges that are nominated.
14
Yes ACJ, it is a political process over which the voters have far too little control.
If the institution wanted to keep the filibuster and the power of the minority, could giving each party a set filibusters that they could exercise each session. Each would have chose carefully their battles
Souter was an outlier? They're ALL outliers, or supposed to be, not beholden to their appointing presidents or the party in power. And labeling widely popular social rulings as liberal and blaming them for Donald Trump's election is magical thinking, ignoring the arc of racism misogyny and outright bigotry that fueled his victory.
40
A gay person's right, in Douthat's view, is a cultural issue. The majority of people in the US disagrees with him. But, due to quirks of the Constitution, the real minority in this country, extreme conservatives like Douthat, is likely to continue holding sway over the rest.
19
Let's talk counterfactuals then. What if a Democratic president had appointed a nominee who appeared liberal but ended up siding with the Republicans in a number of consequential cases? Would Ross write that this "turncoat" killed the filibuster? I doubt it.
22
Souter was an embarrassing mistake for George H. Bush, but that's what you get when you don't properly vet your appointees.
This won't happen with Justice Gorsuch, so let's give President Trump credit where it's due.
The next nominee to the SCOTUS will be the game changer.
This won't happen with Justice Gorsuch, so let's give President Trump credit where it's due.
The next nominee to the SCOTUS will be the game changer.
2
When you discuss the Souter nomination in terms of betrayal to the party, you unintentionally reveal, as is common with Republicans and their apologists, that it is always party over country.
What was Souter's crime? That he looked at the facts of the case and judged them based on the Constitution? Isn't that what we expect?
No, that's not what Republicans expect, they expect, nee demand, that judges rule based on what is best for the GOP, at all times and in all cases. Justice plays no part, nor should it in their opinion.
What was Souter's crime? That he looked at the facts of the case and judged them based on the Constitution? Isn't that what we expect?
No, that's not what Republicans expect, they expect, nee demand, that judges rule based on what is best for the GOP, at all times and in all cases. Justice plays no part, nor should it in their opinion.
46
so much of this seems off the mark and simplistic. did souter become a reliable liberal or was he just doing his best to apply the law? did obama make power grabs or did he just try to get something done in the face of republican obstruction? can you really equate the bork and garland nominations? seems to me bork got a hearing.... and on and on. no wonder conservatives can't govern. their intellects are mired in ideology and blinded by the quest for power.
38
Looking more deeply, you'd probably find the irrationality of religion to be at the heart of most of the schisms in politics and culture today.
3
more complex, and interesting....
... we are done a great disservice by these 'one reason' analyses...
It's this kind of 'magical thinking' that leads to 'one reason' voting, leading to trumpp...
... we are done a great disservice by these 'one reason' analyses...
It's this kind of 'magical thinking' that leads to 'one reason' voting, leading to trumpp...
8
Wrong! Mitch McConnell killed the filibuster.
56
....and possibly congress and the American experiment as well...
Supreme Court justices are supposed to be appointed for their judicial temperament, honesty and intellectual capacity. Ideological tests and party loyalty are not supposed to count.
The actual process has devolved into a sham though. That's why we heard about skiing, rodeo and mutton busting last month. The Senate hearing was cocktail party all talk.
If nominees said what they thought, and violated the party loyalty/ideological test, they would not advance.
The real "hearings" are done in the dark, off the record. Pass that test and you go on to "hearings" that are just pap.
The actual process has devolved into a sham though. That's why we heard about skiing, rodeo and mutton busting last month. The Senate hearing was cocktail party all talk.
If nominees said what they thought, and violated the party loyalty/ideological test, they would not advance.
The real "hearings" are done in the dark, off the record. Pass that test and you go on to "hearings" that are just pap.
18
You know, Ross, once upon a time there was an America. It was a place where Supreme Court Justices voted in accordance with their understanding of a living instrument called a Constitution. they were not simply puppets of their respective parties. Even people called Conservatives acted in the best interests of the country. Here's an example. Republican Attorney General of California was zealous in enforcing the disgraceful incarceration of American citizens of Japanese descent. When he became Chief Justice and ruled contrary to the dictates of right-wingers they wanted to impeach him. He explained his difference from his former stance as follows: "Then I represented only California. Here I must deliberate to the benefit of the country. That country's gone and your devisive scorched earth one is here. Hope you enjoy it.
20
To rxfx in NZ; help me - Where is the end of that quotation?
A liberal can also be glad that Gorsuch was nominated to the Supreme Court as well. I don't think he was nearly as well vetted by the Trump so-called "team" and he too, like Souter, is a liberal in Republican garb. Cmon. Columbia college, bastion of left wing ideology, Oxford (A Bill Clinton fellow alumni), Harvard Law (say hello to Barack). I understand he spent some time working with the poor in South America. He may be Catholic, but aside from the abortion issue, he'll swing left, mark my words.
And liberals can rejoice that when the tables are turned in the next 2 year cycle, they will be in the majority and able to pack the bench without that pesky filibuster that the Republicans so nicely dispensed with for the liberal left. Such a classic Republican move: short sighted, self-serving, & self-defeating.
And liberals can rejoice that when the tables are turned in the next 2 year cycle, they will be in the majority and able to pack the bench without that pesky filibuster that the Republicans so nicely dispensed with for the liberal left. Such a classic Republican move: short sighted, self-serving, & self-defeating.
6
Ross, it's taking you more and more paragraphs into each column before you remind us that you are proposing a larger number of impossible things than in the previous column. Your best friend should remind you that there are simpler explanations for your complaint; in this case, Souter understood and applied the law better than your radical heroes.
21
C'mon Ross. Don't whitewash this.What the GOP did to Garland was not some kind of routine legislative maneuver, like a "pocket veto". Call it out for what it was -- an extraordinary act of institutional sabotage akin to the vicious Senate dysfunction that presaged our last Civil War.
74
If Gorsuch had a shred of decency, and any sense of honor, he would have turned down the offer, refused a hearing until after Garland's hearing.
Gorsuch is forever tainted, and in my eyes a completely disgusting worm. Everybody who had a hand in this is tainted. McConnell is guilty of sedition.
Please stop dancing around what happened. Drop equivocating drivel such pocket-veto, whitewash, the maneuverings, etc.
McConnell and republican senators stole a SCOTUS seat.
Gorsuch is forever tainted, and in my eyes a completely disgusting worm. Everybody who had a hand in this is tainted. McConnell is guilty of sedition.
Please stop dancing around what happened. Drop equivocating drivel such pocket-veto, whitewash, the maneuverings, etc.
McConnell and republican senators stole a SCOTUS seat.
58
What is all this nonsense about a justice "betraying" a party? The job of a justice (like all judges) is to rule upon the legal issues before her, including issues of constitutionality. It's not to favor one team over another.
Moreover, methinks Mr. Douthat needs to go back and read the Constitution, and in particular the Bill of Rights, if he believes that a woman's bodily autonomy should depend upon what state she lives in, or a gay man's right to establish a family with whomever he pleases should be left to the whims of the majority through referendum. That surely is not what the Founders had in mind, as the Bill of Rights specifically was enacted to protect the rights of the minority against the prejudices of the majority.
Moreover, methinks Mr. Douthat needs to go back and read the Constitution, and in particular the Bill of Rights, if he believes that a woman's bodily autonomy should depend upon what state she lives in, or a gay man's right to establish a family with whomever he pleases should be left to the whims of the majority through referendum. That surely is not what the Founders had in mind, as the Bill of Rights specifically was enacted to protect the rights of the minority against the prejudices of the majority.
26
Since when is the evolution -- to right or left -- of a justice's thinking an act of betrayal?
22
In Douthat's world, republicans are never ever responsible for the decisions they make. It's always someone else's fault.
25
Even Republican appointed Supreme Court justices want their daughters/nieces/second cousins to have the opportunity to end a pregnancy if they want. Roe isn't going anywhere.
3
Don't be so sure, Richard!
In many states, the right to choose, to get an abortion if needed, has essentially vanished, with few if any providers now left, their having been pushed aside by Draconian, misogynistic requirements passed by rightwing Republican legislatures.
In many states, the right to choose, to get an abortion if needed, has essentially vanished, with few if any providers now left, their having been pushed aside by Draconian, misogynistic requirements passed by rightwing Republican legislatures.
3
The rich have access to airplanes, even United airplanes...
1
As with so many other conservatives, Douthat seems to have lost the ability to understand some basic concepts. If the Senate holds a hearing then either confirms or rejects a nominee, that's Advise and Consent (Thomas, Bork, Gorsuch). If the Senate fails to hold a hearing, that's not Advise and Consent, nor is it a pocket-veto. (Garland) Refusing to do it's Constitutional duty, the Republican majority overturned 200+ years of governing norms, turning Advise and Consent from an obligation into an invitation to be declined. This is damage done to the Constitutional order that will never be undone.
18
Mr Douthat takes the classic Republican homage to Laurel and Hardy: "now look what you made me do!" Notice how the problem is framed as partisanship only occurs if people fail to give the Republicans everything they want?
20
It is astonishing the way Douthat characterizes Souter as a 'betrayal' rather than considering the fact that he was actually a non-political, non-activist, jurist who followed a rational judicial philosophy of *interpreting* foundational constitutional concepts under new conditions. This is a betrayal? Seems like thoughtful competence to me.
Douthat *really* seems not understand what the court is suppose to be (indeed what the Garland nomination was and the Gorsuch appointment isn't)
And to simply dispense with the disgrace of last year with the simple phrase "pocket veto"? As though this is just business as usual? Or equate the actual debate and vote on Bork (and subsequent appointment of Kennedy) as equivalent to the naked and unconstitutional power grab by the Senate in refusing to acknowledge the even the existence of Judge Garland?
Astonishing ... or not, I suppose ... it is a post-factual world after all ...so why should I be astonished by a post-factual column?
Douthat *really* seems not understand what the court is suppose to be (indeed what the Garland nomination was and the Gorsuch appointment isn't)
And to simply dispense with the disgrace of last year with the simple phrase "pocket veto"? As though this is just business as usual? Or equate the actual debate and vote on Bork (and subsequent appointment of Kennedy) as equivalent to the naked and unconstitutional power grab by the Senate in refusing to acknowledge the even the existence of Judge Garland?
Astonishing ... or not, I suppose ... it is a post-factual world after all ...so why should I be astonished by a post-factual column?
20
How bizarre to accuse Souter of betraying his party. We nominate these people to adjudicate the law, not to follow a political party's prejudices. Seeing justices evolve as their understanding grows is to be sought, not derided.
19
If only John Marshall had not been nominated and confirmed, we would not have activist courts imposing their will through "judicial review."
4
Overlooking the obvious. Republicans were panicked at the idea of a debate following Scalia's death. It is no secret that Scalia was not a jurist -- his "original intent" was not based on historical fact. He did nothing more than claim the founders beliefs were identical to his own. That was contrary to reality. For instance, the founders were highly suspicious of corporations, and in no way believed they should be given the same rights as individuals. Citizens United was a travesty, one that changed our politics. Debunking the myth that underlies that decision would cause Republicans, and too many Democrats, grief in the pocketbook.
16
Republicanism (defn.): Blaming someone else for a current state-of-affairs. Syn.: Deflection; Look, squirrel!; Unaccountable. Ant.: Accountable; Responsible.
Really, Ross? You're starting to sound a lot like Trump Administration officials, and Republicans, generally. Prior to Trump, it was Obama's fault. It, apparently, is still Obama's fault, but also Clinton's fault. Who else to blame? Let's see, who is somebody that was nominated by a Republican POTUS but actually turned out to be a turn-coat enemy of the state (i.e. Democrat)? Oh, yeah! David Souter, that's who! OK, it's his fault too.
I got one for ya, Ross: Merrick Garland.
And if you say Harry Reid dismissal of the filibuster for lower court picks in 2013, I rebut you with: Mitch McConnell filibustered Obama's picks a record 79 times. Now, I don't call that advice and consent. I call that downright obstruction. And the Dems and Obama had to do SOMETHING to prevent the obstruction from grinding govt to a halt for 8 years. Their dismissal of the filibuster for lower court picks was a good offer of a compromise to the GOP - a party that was acting completely in bad faith up to that time. And you know it, Ross.
Really, Ross? You're starting to sound a lot like Trump Administration officials, and Republicans, generally. Prior to Trump, it was Obama's fault. It, apparently, is still Obama's fault, but also Clinton's fault. Who else to blame? Let's see, who is somebody that was nominated by a Republican POTUS but actually turned out to be a turn-coat enemy of the state (i.e. Democrat)? Oh, yeah! David Souter, that's who! OK, it's his fault too.
I got one for ya, Ross: Merrick Garland.
And if you say Harry Reid dismissal of the filibuster for lower court picks in 2013, I rebut you with: Mitch McConnell filibustered Obama's picks a record 79 times. Now, I don't call that advice and consent. I call that downright obstruction. And the Dems and Obama had to do SOMETHING to prevent the obstruction from grinding govt to a halt for 8 years. Their dismissal of the filibuster for lower court picks was a good offer of a compromise to the GOP - a party that was acting completely in bad faith up to that time. And you know it, Ross.
36
What a strange and unsettling column.
Eisenhower regretted his nomination of Earl Warren and Byron White was more conservative than JFK.
What occurred with Souter is not without precedent, and to suggest that McConnell has the intellectual capacity to take the Souter mistake into consideration when the Garland seat was kidnapped and stolen is quite a stretch indeed.
Let's also remember that in many states Roe v Wade is a mere formality, and it is quite difficult, if not impossible, for a woman to obtain a legal abortion.
Ross's cynicism is disturbing, as David Souter tried to act as a true impartial referee in his tenure on the Supreme Court, and not as the knee-jerk, corporate-controlled lackey that a number of the current, Republican-nominated Justices are.
Eisenhower regretted his nomination of Earl Warren and Byron White was more conservative than JFK.
What occurred with Souter is not without precedent, and to suggest that McConnell has the intellectual capacity to take the Souter mistake into consideration when the Garland seat was kidnapped and stolen is quite a stretch indeed.
Let's also remember that in many states Roe v Wade is a mere formality, and it is quite difficult, if not impossible, for a woman to obtain a legal abortion.
Ross's cynicism is disturbing, as David Souter tried to act as a true impartial referee in his tenure on the Supreme Court, and not as the knee-jerk, corporate-controlled lackey that a number of the current, Republican-nominated Justices are.
545
Douthat's twisted view of cause and effect is ocassionally amusing, but usually just an insult -- this time to David Souter and the intelligence of his readers.
The filibuster is going away because Mitch McConnell is a Machiavellian schemer, and a very good one, at that. He took some big risks, but everything fell into place.
The filibuster is going away because Mitch McConnell is a Machiavellian schemer, and a very good one, at that. He took some big risks, but everything fell into place.
289
Everything falls into place for McConnell because the Koch machine and ALEC protect him with millions in campaign funding and advertising to make his voters think he is helping them. In fact, he is helping the corporate interest to fleece the republic for their benefit. Shamelessness bordering on treason.
1
Comparing what happened to Bork and Garland is just grotesque. Please just STOP IT already. Bork was a judicial extremist who got a vote; Garland was a well-liked moderate who was not given the dignity of a cup of coffee with Republican leaders.
870
Don't Republicans know that the Constitution requires them to hold hearings and have coffee with the nominee and have votes on a timely basis as demanded by readers of the NY Times. It's right there in Constitution in Article Umpteen right after it discusses abortion.
3
Plus after Bork, a Republican nominee, the Republicans still got to nominate and seat Kennedy. After Garland, a Democratic nominee, the Democrats did NOT get to nominate someone else -- the Republicans did. Massive difference.
2
1) Mitch killed the filibuster.
2) The original sin was employing a strategy to run out the clock on judicial appointments for Obama's entire second term, starting in 2013.
2) The original sin was employing a strategy to run out the clock on judicial appointments for Obama's entire second term, starting in 2013.
410
The first judicial nominee who clearly had the support of a majority of senators to be successfully filibustered was Miguel Estrada, whom the ABA unanimously rated as qualified. The Democrats prevented Estrada from becoming a judge on the DC Circuit, because they did not want Bush to have the opportunity to appoint an Hispanic to the Supreme Court. The only other time a filibuster was used against a judicial nominee was Abe Fortas who was corrupt and faced a bipartisan filibuster.
http://www.nbcnews.com/id/7747167/ns/politics-tom_curry/page/2/
Democrats, please spare me the rank hypocrisy. You invented the judicial filibuster. And then when it was used against you, you change the rules in the middle of congressional session by a simple majority vote. The Democrats always throw the first punch (Bork, Estrada, Nuclear Option), and then cry when the Republican punch back.
http://www.nbcnews.com/id/7747167/ns/politics-tom_curry/page/2/
Democrats, please spare me the rank hypocrisy. You invented the judicial filibuster. And then when it was used against you, you change the rules in the middle of congressional session by a simple majority vote. The Democrats always throw the first punch (Bork, Estrada, Nuclear Option), and then cry when the Republican punch back.
1
Charles
I welcome your open worship of party.
To hell with America and the constitution. This is but a game of Democrats and Republicans and sulkers saying sulking things like, democrats always throw the first punch.
A punch apparently being something like the nation electing a president with more recent African ancestors than other Americans.
Oh pray for Judgment day.
I welcome your open worship of party.
To hell with America and the constitution. This is but a game of Democrats and Republicans and sulkers saying sulking things like, democrats always throw the first punch.
A punch apparently being something like the nation electing a president with more recent African ancestors than other Americans.
Oh pray for Judgment day.
Both Bush and Souter are Episcopalians. Souter didn't "betray" the GOP. He voted his beliefs (all do, to a degree), whether long-held or evolved, and tried to defend the Constitution. There ARE GOP voters who prefer the party on economic and foreign policy, but loathe its social policies.
You're annoyed at Souter for being a malamute for social liberalism. This is pardonable, but it goes a tad bit far to blame him for the eradication of the filibuster. One heard a lot of protests from liberals that Gorsuch didn't answer questions. Only since Felix Frankfurter have judges even appeared before the Judiciary Committee; and Frankfurter answered no questions at all, saying his record spoke for itself. He was confirmed.
I'm not sure the origin of our divide lies in gay marriage and abortion, though one is often told this. Diversity, as you know and have said, has always been troublesome for democracy. Tribalism is quite difficult, maybe impossible, to eradicate. Many Southerners say they oppose marriage equality and abortion, but do so only because their tribe tells them to. It's somnambulistic.
One Supreme Court decision that truly lit a fire under people in the South is rather more awkward to explore than Roe v. Wade, namely Brown v. Board. As integration became a reality, as diversity increased, as America changed, we grew so far apart. Today's liberals, living by particularist appeals, shall not discard their social jihad to gain whites' support for economic liberalism.
You're annoyed at Souter for being a malamute for social liberalism. This is pardonable, but it goes a tad bit far to blame him for the eradication of the filibuster. One heard a lot of protests from liberals that Gorsuch didn't answer questions. Only since Felix Frankfurter have judges even appeared before the Judiciary Committee; and Frankfurter answered no questions at all, saying his record spoke for itself. He was confirmed.
I'm not sure the origin of our divide lies in gay marriage and abortion, though one is often told this. Diversity, as you know and have said, has always been troublesome for democracy. Tribalism is quite difficult, maybe impossible, to eradicate. Many Southerners say they oppose marriage equality and abortion, but do so only because their tribe tells them to. It's somnambulistic.
One Supreme Court decision that truly lit a fire under people in the South is rather more awkward to explore than Roe v. Wade, namely Brown v. Board. As integration became a reality, as diversity increased, as America changed, we grew so far apart. Today's liberals, living by particularist appeals, shall not discard their social jihad to gain whites' support for economic liberalism.
29
Republicans have had a hard time with democracy and also with the Social Gospel, which they do not seem to understand or care about and which enormously influenced our nation and Great Britain for the better, during most of the 20th Century, until Republicans began to broadly undermine it and its affirming good results. The Episcopal Church has been, and remains, an important participant in the Social Gospel Movement.
Many Roman Catholics have left the Roman Church in favor of the Episcopal
Church.
Many Roman Catholics have left the Roman Church in favor of the Episcopal
Church.
If you're not feeling in the mood for the usual blame it on a democrat, I guess finding a renegade republican is the next best thing.
111
"…Rudman and Sununu were quite right: Souter was confirmed 90 votes to 9, with only liberal activists and Ted Kennedy offering any substantial opposition.
That opposition would look ironic in hindsight, since once on the bench Souter spent a brief time voting with the conservatives, then cast one of the crucial votes to uphold Roe, then swiftly evolved into as reliable a liberal as Bill Clinton or Barack Obama could have ever hoped to appoint …”.
This only proves the point that most of these confirmation hearings, debates, and votes are a showcase for self-centered grandstanding that only serves to incite political rancor and monetary contributions for egotistical politicians.
That opposition would look ironic in hindsight, since once on the bench Souter spent a brief time voting with the conservatives, then cast one of the crucial votes to uphold Roe, then swiftly evolved into as reliable a liberal as Bill Clinton or Barack Obama could have ever hoped to appoint …”.
This only proves the point that most of these confirmation hearings, debates, and votes are a showcase for self-centered grandstanding that only serves to incite political rancor and monetary contributions for egotistical politicians.
9
Justice Souter was a conservative and voted on the Supreme Court as a conservative. He was a product of the conservatism at that time in the 70's and 80's.
The problem wasn't that David Souter somehow became more liberal, the problem was conservatives left conservatism behind in a rightward march into right wing extremism.
But it's probably a good thing to drop the filibuster for Supreme Court judges as it was necessary to drop it for Federal judges. Now all that remains is to drop it for legislation. Then and only then, can a political party govern as that political party and we can judge their performance on it's own.
The problem wasn't that David Souter somehow became more liberal, the problem was conservatives left conservatism behind in a rightward march into right wing extremism.
But it's probably a good thing to drop the filibuster for Supreme Court judges as it was necessary to drop it for Federal judges. Now all that remains is to drop it for legislation. Then and only then, can a political party govern as that political party and we can judge their performance on it's own.
37
You are assuming that the majority party in Congress as it stands today would let them people judge their performance.
If the GOP cabal is not above limiting the vote to white people, as they have been desperately trying to do for some time now, they are not above trying to strip it from anyone who disagrees with their profoundly backward looking dystopian vision for the country and the world.
If the GOP cabal is not above limiting the vote to white people, as they have been desperately trying to do for some time now, they are not above trying to strip it from anyone who disagrees with their profoundly backward looking dystopian vision for the country and the world.
5
Sad that such a significant political event is couched in the language of a soccer game. Even sadder, the "own goal" by "Team Conservative" is HW's failure to appoint a judge loyal to Jerry Falwell's Moral Majority -- which was invented exclusively to dupe religious voters into electing people with two interests: gutting regulations and redistributing wealth back to the wealthiest.
33
One of the reasons Douthat's article, or at least portions of it, made me stop and wonder whether I am getting early Alzheimer's is his use of what iI have just learned via one comment is terminology from the soccer field. Remember that a good percentage of women and even some men have no use for sports. Baseball and football terminology I can barely follow, soccer isn't even an American sport. Get your writers to lay off sports analogies.
I only wish people like you, who feel compelled to write about the Supreme Court, had a better understanding of the judicial branch and its role in our government.
91
Reach as far into the past as you like, conjure any train of events you wish, set your angels on the head of a pin to dancing, but at the end of the day Mitch McConnell with his marry band at his back refused to give Garland a hearing and the unspeakable Mitch McConnell with his merry band at his back voted to change the Senate rules and end the filibuster for Supreme Court nominations. the unspeakable Mitch McConnell drove the latest nail into the uniqueness of the Senate and he unspeakable Mitch McConnell will drive as many more as he finds needful to maintain his majority and thus his power.
340
The personal pay-day (money) to the unspeakable Mitch McConnell in all this has yet to be mentioned, let alone examined. And why should it, when so many "ordinary-American" voters think and believe he and his Republican brethren are saviors?
2
I've been trying to come up with the appropriate adjective for McConnell. Thanks for providing it: unspeakable. Remember Justice Stewart and his comment that we'll know obscenity "when we see it?" Well, that photo of Mitch high-fiving the successful theft of the Garland seat is obscene as anything you're likely to see. Pete McGuire, Atlanta
8
" Mitch McConnell will drive as many more as he finds needful to maintain his majority and thus his power."
Don't forget his pocketbook. McConnell dances with the men with the deepest pockets. He didn't become a millionaire by picking cotton or shoveling coal. He knows which side his bread is buttered on.
Don't forget his pocketbook. McConnell dances with the men with the deepest pockets. He didn't become a millionaire by picking cotton or shoveling coal. He knows which side his bread is buttered on.
This article is an embarrassment to the New York Times.
697
I was going to post a comment along the same lines, but I couldn't possibly say it more succinctly than you.
5
As are so many of his articles.
3
...it's just part of 'fair and balanced' which someday soon we'll dispense with...
3
Very strange to write that Supreme Court Justice David Souter betrayed the Republican party that put him on the bench. Aren't all justices free to vote and rule as free and independent agents? Isn't that the idea behind their lifetime appointments to be free from partisan interference or loyalty? Isn't Justice blind to partisanship?
Me thinks Douthat needs to update his civics and political science knowledge. There is nothing in the Constitution regarding his assertion.
Me thinks Douthat needs to update his civics and political science knowledge. There is nothing in the Constitution regarding his assertion.
683
C'mon now.
If Justice Sotomayor suffered a sudden attack of common sense wouldn't you be similarly discomfited?
If Justice Sotomayor suffered a sudden attack of common sense wouldn't you be similarly discomfited?
There is nothing in the Constitution regarding what the republican party has become. In fact most of it was probably written to forestall this fascist takeover of our democracy.
5
Actually she does exercise her common sense on a regular basis. Could it be that liberal policies are generally more in line with common sense?
5
Betrayed the party (and upheld the Constitution). Shame that Mr Douthat forgot the part in parentheses.
193
Upholding the Constitution? How quaint.
So it was gay people who had the temerity not to want to be criminalized for existing, see Lawrence v. Texas, that killed the filibuster. It couldn't have Newt Gingrich and his Contract on America that led to today's hyperpartisanship. And certainly it wasn't Mitch McConnell's vow to make Obama a one-term president and Republican obstructionism that destroyed comity in the Senate. No, in Ross's world, it was gay people. Got it.
146
Ross's assertion that David Souter's confirmation killed the Filibuster and initiated the politicization of the Supreme Court doesn't stand up to factual analysis. Bill Clinton's appointments of liberal jurists Steven Breyer and Ruth Bader Ginsburg, years after Souter's confirmation, were approved by non partisan votes of 87-9, and 96-3, respectively. The dispositive event in the politicization of the SCOTUS was the egregiously flawed 5-4 decision in Bush v Gore. The Conservative majority, apparently embarrassed by their partisan decision, took the unprecedented step of saying that their decision was unique, and should not be a precedent for any other case. David Souter was reportedly so upset at the vote that he left the court in tears and considered resigning from the court. Legal scholars have condemned it as among the worst decisions in Supreme Court history. After this case the confirmation process changed forever. avid Souter apolitical nature is well documented so Ross's allegation of his "betrayal"of the Republican Party is disingenuous. Ross also engages in false equivalency by linking Robert Bork and Merrit Garland, in case you've forgotten Ross, Bork had a hearing and an up or down vote.
279
Douthat is a Republican. He is immune to logic and honesty. I wish it were not true, but that is what the party has devolved in to.
5
Bork got two votes. One by the Judiciary Committee to forward his candidacy to a vote of the whole Senate and another one by the full Senate. He lost the second vote by a wider (thus bipartisan) margin than any other rejected SCOTUS nominee.
To argue that Bork's treatment is anything like that of the treatment of Garland is a departure from reality.
To argue that Bork's treatment is anything like that of the treatment of Garland is a departure from reality.
5
The columnist misses the lessons of the post civil war abuse of states rights, aided in the nineteenth century by a conservative court; where the South virtually re-enslaved blacks and then used states rights to defend even murder (lynching).
There is no reason to believe that the South would have ever allowed black Americans equal rights, and if anyone disagrees, think of how conservatives act when in power. Thus we had DOMA as conservatives could see change in the states - DOMA tells us that, in the end, they don’t want states rights at all, that states rights exist only as an excuse to thwart change. And even now, when progressive Southern cities try to open up locally, the conservative notion is not to celebrate local initiative, but to crush it.
It is easy to wrote social liberalism as if it is some strange cancer, but what, in the end, does the columnist think America should be like? Where family television has gay marriage, divorce and kids sneaking out to have sexual encounters, we simply cannot turn the clock back.
There is no reason to believe that the South would have ever allowed black Americans equal rights, and if anyone disagrees, think of how conservatives act when in power. Thus we had DOMA as conservatives could see change in the states - DOMA tells us that, in the end, they don’t want states rights at all, that states rights exist only as an excuse to thwart change. And even now, when progressive Southern cities try to open up locally, the conservative notion is not to celebrate local initiative, but to crush it.
It is easy to wrote social liberalism as if it is some strange cancer, but what, in the end, does the columnist think America should be like? Where family television has gay marriage, divorce and kids sneaking out to have sexual encounters, we simply cannot turn the clock back.
43
The prudishness of conservatives is only a fig leaf. They are guilty of every "sin" they condemn as we see in the tawdry affairs, men's room sexual encounters, insider dealing, and casual graft that occasionally come to light. Prudishness is a distraction. They point at sex, drugs, and rock and roll as they put their fingers in the federal cash drawer.
3
Here we go again. Yet another conservative author contends that Donald Trump would not have been elected if those darned liberals hadn't been so pushy and irritating. He uses Judge Souter to make that point.
Mr. Douthat, please read an article by Rick Perlstein, just published in the NYT Magazine, titled "I Thought I Understood the American Right. Trump Proved me Wrong." Perlstein is a historian, focused on (and sympathetic to) conservative American politics. He argues that many analysts, and he himself, were half-blinded by their fascination with snooty Bill Buckley and the National Review crew. As a result, they ignored the "brutish" (his word) nativist traditions of conservatives in the US, stretching back more than a hundred years, inflamed by men like Father Coughlin and Joe McCarthy (ally of Roy Cohn, advisor to the young Donald Trump), and by the Klan, energized by racism and anti-Semitism.
Your Republican Party, and the National Review editors, got Donald Trump because you all earned him by feeding off the powers of your base.
Oh, and please don't use the euphemism "religious liberty" to refer to the goals of mean-spirited, politicized Christian homophobes. They're not interested in liberty ... what they seek is power to discriminate against citizens who don't follow their laws.
Brutish politics. And what follows? Donald Trump. Congrats. He's all yours.
Mr. Douthat, please read an article by Rick Perlstein, just published in the NYT Magazine, titled "I Thought I Understood the American Right. Trump Proved me Wrong." Perlstein is a historian, focused on (and sympathetic to) conservative American politics. He argues that many analysts, and he himself, were half-blinded by their fascination with snooty Bill Buckley and the National Review crew. As a result, they ignored the "brutish" (his word) nativist traditions of conservatives in the US, stretching back more than a hundred years, inflamed by men like Father Coughlin and Joe McCarthy (ally of Roy Cohn, advisor to the young Donald Trump), and by the Klan, energized by racism and anti-Semitism.
Your Republican Party, and the National Review editors, got Donald Trump because you all earned him by feeding off the powers of your base.
Oh, and please don't use the euphemism "religious liberty" to refer to the goals of mean-spirited, politicized Christian homophobes. They're not interested in liberty ... what they seek is power to discriminate against citizens who don't follow their laws.
Brutish politics. And what follows? Donald Trump. Congrats. He's all yours.
331
As brutish a anti-Catholic and anti-working class bias as Pearlstein wants us to accept? Some of us long for equality. To go back to the day your religion didn't mean anyting, where blacks, browns, gays, transgender and women weren't somehow more noble than everyone else. Many of us believe the left no longer believes in equality.
Joe G
Because many of you have clearly forgotten how to define equality.
Frankly, Joe, I'd think you would realize that religion actually doesn't, and shouldn't, mean anything when it comes to the law. Except for your right to practice yours and me mine, or not.
If you really want to "go back to the day", go back there, to the very first day, to the very first Americans. And listen to them, for a change.
Because many of you have clearly forgotten how to define equality.
Frankly, Joe, I'd think you would realize that religion actually doesn't, and shouldn't, mean anything when it comes to the law. Except for your right to practice yours and me mine, or not.
If you really want to "go back to the day", go back there, to the very first day, to the very first Americans. And listen to them, for a change.
2
When you are used to being privileged, equality feels like discrimination to you. That is the problem of what men now--they are still privileged in relation to other groups, just not as unquestioningly astray used to be, so some like you feel oppressed. No-one is saying that women and others are more noble than white men, That is just your entitlement talking.
1
Once again, Mr. Douthat favors us with his version of a false equivalency, in this case by ignoring the vast differences between the Senate's treatment of Judge Bork and the upper chamber's behavior after the nomination of Justice Garland. Bork received a thorough and fair hearing, followed by an up-or-down vote. The GOP denied Mr. Garland either of those courtesies, thereby violating the spirit of the party's responsibility under the Constitution.
The filibuster, for its part, remains a strange practice for any advocate of majority rule to seek to preserve. In a body structurally designed by the framers to limit democracy and addicted to other procedures that enable individuals to block appointments or legislation, this further nod to minority empowerment confuses obstructionism with necessary checks and balances. The Republicans may benefit in the short run from the partial eclipse of the filibuster, but ultimately the American people will emerge as the true winners. A government somewhat more responsive to their demands, as expressed through elections, will inhibit the influence of elites.
The filibuster, for its part, remains a strange practice for any advocate of majority rule to seek to preserve. In a body structurally designed by the framers to limit democracy and addicted to other procedures that enable individuals to block appointments or legislation, this further nod to minority empowerment confuses obstructionism with necessary checks and balances. The Republicans may benefit in the short run from the partial eclipse of the filibuster, but ultimately the American people will emerge as the true winners. A government somewhat more responsive to their demands, as expressed through elections, will inhibit the influence of elites.
13
I take issue with the characterization of Sen. McConnell's failure to hold hearings on judge Garland as a "pocket veto". It was outright theft. It was a subversion of the constitution and a dereliction of duty. The outrageous measures taken by Mr. McConnell and his fellow Republicans to gain ideological advantage in the judicial branch must not be minimized. Judge Gorsuch is an illegitimate Supreme Court justice.
139
Where in the American constitution does it say that the senate majority leader is allowed to exercise a "pocket veto" over a nomination to the Supreme Court.
This was a constitutional coup d'etat.
Strict construction? or Constitutional fabrication.
Ross, we aren't all as stupid or infected with republican mendacity as you are.
This was a constitutional coup d'etat.
Strict construction? or Constitutional fabrication.
Ross, we aren't all as stupid or infected with republican mendacity as you are.
5
Some justices take their independence seriously. They're not traitors, and they don't owe either party their loyalty. This is by design. Why is that hard to accept?
84
In fact, I thought this was the essence of the way the Supreme Court was supposed to work.
1
We are a pluralistic society and benefit from pluralism which
"permits the peaceful coexistence of different interests, convictions and lifestyles." Wikipedia.
"permits the peaceful coexistence of different interests, convictions and lifestyles." Wikipedia.
2
I always get a kick, and invariably roll my eyes at the same time, whenever I hear political pundits talk about the political spectrum.
There is right, right of right and extreme right . There is no more liberal.
Except for a few social issues and human rights, the political spectrum ( and courts ) have been dragged so far right, that people have no clue anymore as to what actually certain terms mean.
Every day now I hear the monikers ''extreme'' and ''radical'' attributed to everything, that it really has become comical.
We are ALL socialists, yet almost none have a clue as to what it means, or even if they do, would never admit it.
We all want to be taken care of if we are sick and therefore, if we cannot pay, then we want the government to do so.
We all want to be taken care of in old age and therefore, if we cannot pay, then we want the government to do so.
We all want equal rights, yet somehow if we perceive someone is getting more than we are, we want to push them down or socialize the entire thing.
Go ahead and keep drawing lines if it makes you feel better, but the sooner we realize that the more of us contribute to the greater whole, the better we are off individually.
There is right, right of right and extreme right . There is no more liberal.
Except for a few social issues and human rights, the political spectrum ( and courts ) have been dragged so far right, that people have no clue anymore as to what actually certain terms mean.
Every day now I hear the monikers ''extreme'' and ''radical'' attributed to everything, that it really has become comical.
We are ALL socialists, yet almost none have a clue as to what it means, or even if they do, would never admit it.
We all want to be taken care of if we are sick and therefore, if we cannot pay, then we want the government to do so.
We all want to be taken care of in old age and therefore, if we cannot pay, then we want the government to do so.
We all want equal rights, yet somehow if we perceive someone is getting more than we are, we want to push them down or socialize the entire thing.
Go ahead and keep drawing lines if it makes you feel better, but the sooner we realize that the more of us contribute to the greater whole, the better we are off individually.
36
Interestingly, the Military is the largest socialist institution in the United States.
1
This is a good essay, and i think it carries its point, but it doesn't address the facts of the constitutional disaster of the moment, and what it implies for the destruction of authority of the Supreme Court.
Right-wing rage at "liberal" (meaning expansive of civil rights) Supreme Court decisions led to McConnell's maneuver to deny Obama an appointment.
The effect of this is to rewrite the constitution: no justice will be seated except by a party that controls both the Senate and the Presidency; the court is inevitably made more partisan, and the incentives to find an extremist greatly increased. The court is now nothing more than a means of 30+ year enduring partisanship for the positions of those in power.
Seen in the context of this essay, conservatives used an extraordinarily destructive means to "right" their failure with Souter. They felt that they are entitled to a right-wing Supreme Court, by "whatever it takes." This contempt for process tears at the fabric that holds our country together, that is badly strained now.
Perhaps the saddest part is that Gorsuch has destroyed all claim to being an honest judge, revealed as nothing but a hypocrite willing to be a tool of hyperpartisan politics. He declares himself an "originalist," but there is no originalist justification for the actions of McConnell and the Republicans in the Senate -- that is clearly not what those who wrote the constitution, or those who obeyed it for 200 years understood it to mean.
Right-wing rage at "liberal" (meaning expansive of civil rights) Supreme Court decisions led to McConnell's maneuver to deny Obama an appointment.
The effect of this is to rewrite the constitution: no justice will be seated except by a party that controls both the Senate and the Presidency; the court is inevitably made more partisan, and the incentives to find an extremist greatly increased. The court is now nothing more than a means of 30+ year enduring partisanship for the positions of those in power.
Seen in the context of this essay, conservatives used an extraordinarily destructive means to "right" their failure with Souter. They felt that they are entitled to a right-wing Supreme Court, by "whatever it takes." This contempt for process tears at the fabric that holds our country together, that is badly strained now.
Perhaps the saddest part is that Gorsuch has destroyed all claim to being an honest judge, revealed as nothing but a hypocrite willing to be a tool of hyperpartisan politics. He declares himself an "originalist," but there is no originalist justification for the actions of McConnell and the Republicans in the Senate -- that is clearly not what those who wrote the constitution, or those who obeyed it for 200 years understood it to mean.
26
There will always be those who look longingly back at the golden days of the past, when men were men and women minded the house and children, and those coloreds new their place. They call themselves Republicans. But time marches on and people want to be treated equally. Republicans should keep to what they do best, defending the wealthy against the interests of the rest. By trying to fool the rest by pretending to represent their social values they have lost their way. Where Democrats have lost their way is in trying to legislate morality. Let the judicial branch of the government decide the rights to property, and leave the moral issues out of it. Let the legislative branch of the government look after the well being of society as a whole by making laws that defend people's rights to a fair treatment from others and move us forward as the world around us changes. Those that have gained much have no desire to see changes that might effect what they have gained, even if it means others will be better off for the changes. If it were up to the Republicans of modern times women would not be able to vote, minorities would not have equal civil rights, cars would not have seat belts, and the robber barons would still govern the country. When Richard Luettgen looks into the future all that he sees is a false history of what was, and longs to return to that time when men were men, and everyone else knew their place.
12
So, let me get this straight: Mr. Douthat is asserting that the death of the Judicial filibuster is due to a collective conservative tantrum due to the fact that one nominee didn't vote the way they wanted. So much for the much ballyhooed intellectualism of the right. As demonstrated by this assertion, as well as the election of Donald Trump, the intellectual touchstones of modern American conservatism derive not from Burke, but from the rantings of a two-year old, deprived of his blankie.
171
After all is said, and done, in this regard, the Democratic Party should consider launching its next presidential campaign, by announcing that if its candidate wins, s/he will "pack the Supreme Court, in much the same manner President Roosevelt almost did.
There is no Constitutional reason why such can't be done.
Such a promise to do so, accompanied by an extraordinary PR campaign, might be enough to bring out enough apathetic, and/or frequently "not voting Democratic voters," who, it's understood, outnumber GOP voters nationwide by tens of millions.
Extraordinary, dire circumstances, sometimes bring on the need to use extraordinary remedial solutions.
There is no Constitutional reason why such can't be done.
Such a promise to do so, accompanied by an extraordinary PR campaign, might be enough to bring out enough apathetic, and/or frequently "not voting Democratic voters," who, it's understood, outnumber GOP voters nationwide by tens of millions.
Extraordinary, dire circumstances, sometimes bring on the need to use extraordinary remedial solutions.
5
I do enjoy these times when Mr Douthat turns from ranting about how the Pope isn't Catholic enough to how the US could have, should have remained the 1950s theocratic oligarchy it never was.
Why stop at Souter, Mr Douthat? Surely even your rigidity of thought could go back as far as Brennan and Warren, appointed by Eisenhower (who supposedly regretted both)?
Or, you could choose to live in a more recent century, perhaps even this one, and let go of the demonstrable falsehood of 'Originalism' and the perverted notion that the US Constitution somehow warrants forcing everyone to live by your own very very narrow theology.
The Merrick Garland and subsequent Justice Stolen-Seat debacles were low points for a party that has been bottom-feeding for decades. Yes, the Democrats asked for it, but let's just all stop pretending that Mitch McConnell cares about anything other than his own personal power.
Justice Stolen-Seat is such an 'Originalist' that we can foresee his finding no need to write opinions -- he'll just plagiarise ones already issued.
To quote the PNOTUS (Preening Narcissist of the United States) you and your ideological mates brought to power through forty years of continually lowering the bar of what is acceptable or moral in a free society, 'Sad!'
Why stop at Souter, Mr Douthat? Surely even your rigidity of thought could go back as far as Brennan and Warren, appointed by Eisenhower (who supposedly regretted both)?
Or, you could choose to live in a more recent century, perhaps even this one, and let go of the demonstrable falsehood of 'Originalism' and the perverted notion that the US Constitution somehow warrants forcing everyone to live by your own very very narrow theology.
The Merrick Garland and subsequent Justice Stolen-Seat debacles were low points for a party that has been bottom-feeding for decades. Yes, the Democrats asked for it, but let's just all stop pretending that Mitch McConnell cares about anything other than his own personal power.
Justice Stolen-Seat is such an 'Originalist' that we can foresee his finding no need to write opinions -- he'll just plagiarise ones already issued.
To quote the PNOTUS (Preening Narcissist of the United States) you and your ideological mates brought to power through forty years of continually lowering the bar of what is acceptable or moral in a free society, 'Sad!'
126
If Douthat wants to reside in "originalism" he ought to be looking into the "original" intent of of the Electoral College, which, if he read 'The Federalist Papers' he would glean that Hamilton and the framers wanted a mechanism to prevent an unfit and incompetent individual from becoming President.
Now there's a piece of originalism I can believe in.
Now there's a piece of originalism I can believe in.
4
To argue that David Souter brought about the death of the filibuster and the ascendancy Trump is a bit of a reach.
One hopes that Neil Gorsuch will be another Souter, perhaps even another Earl Warren, the California "conservative" who ended up leading I think the most liberal Supreme Court in our history. I remember well the enraged conservatives' "Impeach Earl Warren" bumper stickers.
One hopes that Neil Gorsuch will be another Souter, perhaps even another Earl Warren, the California "conservative" who ended up leading I think the most liberal Supreme Court in our history. I remember well the enraged conservatives' "Impeach Earl Warren" bumper stickers.
13
Doubtful. Judge Stolen-Seat supposedly prides himself on being Scalia's clone.
I assume the late Nino will be Judge Stolen-Seat's primary source to plagiarise.
I assume the late Nino will be Judge Stolen-Seat's primary source to plagiarise.
4
David Souter was an exceptionally fine jurist. Indeed, he was not an ideologue and for that reason, he was an ideal choice. He is extremely well-read in history and he avoided the world of the 24-hour news cycle by not owning a television. He followed the law and the constitution. He was not controlled by oligarchs. Would that there were more such justices on the court.
113
What a total hallucination. I mean you have got to be kidding. Imagine trying to summarize this argument for someone who has not read it. Souter what? My suspicion is that somewhere in the back of this writer's mind there lingered a conservative college professor's complaints about Souter, and now the seismic pressures of the current political miasma have caused it to erupt.
15
If guaranteeing equal rights for all is "constitutionalization of cultural debate" and a justice using his best independent legal judgement is "betraying the party", this column is "euphemistically unhinged".
41
I don't know. If Souter had turned out to be conservative and move the court even further to the right, causing abortion to be outlawed in most places, for example, I don't think that would have led to less polarized politics and court nominations. It probably would have polarized it more, because it would have moved it further from the cultural trends of the majority of Americans.
7
Letting the states decide about slavery did not work out very well. Letting them decide about abortion would mean that women who could afford to travel could get abortions and young or poor women would not. Letting them decide about gay marriage would produce chaos in administering national programs like Social Security or the income tax.
Years ago, New York had to recognize Nevada divorces that would never be granted under New York law, because states had to recognize the contracts of other states. This would mean that Alabama would have to recognize [gay] marriages performed in Connecticut (just as Connecticut had to return escaped slaves to their owners in Alabama, or at least allow them to be kidnapped back into slavery).
It is unfortunate that we debate moral and ethical issues through the Supreme Court rather than directly.
Years ago, New York had to recognize Nevada divorces that would never be granted under New York law, because states had to recognize the contracts of other states. This would mean that Alabama would have to recognize [gay] marriages performed in Connecticut (just as Connecticut had to return escaped slaves to their owners in Alabama, or at least allow them to be kidnapped back into slavery).
It is unfortunate that we debate moral and ethical issues through the Supreme Court rather than directly.
141
Douthat uses ' pocket-veto ' to whitewash the sedition of McConnell and the GOPers' refusal to even meet with Merrick Garland, which is much too innocuous a term for placing an asterisk by Gorsuch's name and by every decision he will take part in over the coming decades.
Killing the filibuster is fine - it's something Harry Reid should have done in Obama's first term, but he was buffaloed by GOP'ers who proceeded to epically obstruct a POTUS chosen by over 50% of the electorate. After Obama was re-elected with 50+% of the electorate again, even Reid had had enough, and killed the judicial filibuster. But GOPers' obstructionism had already wrought its fruit.
Forevermore, the McConnell precedent establishes that no POTUS shall nominate a SCOTUS justice if a seat becomes vacant on Valentine's Day or later in a presidential election year.
Commemorating the New Order, Scalia's seat should forthwith be known as Sen. Yertle's chair.
Killing the filibuster is fine - it's something Harry Reid should have done in Obama's first term, but he was buffaloed by GOP'ers who proceeded to epically obstruct a POTUS chosen by over 50% of the electorate. After Obama was re-elected with 50+% of the electorate again, even Reid had had enough, and killed the judicial filibuster. But GOPers' obstructionism had already wrought its fruit.
Forevermore, the McConnell precedent establishes that no POTUS shall nominate a SCOTUS justice if a seat becomes vacant on Valentine's Day or later in a presidential election year.
Commemorating the New Order, Scalia's seat should forthwith be known as Sen. Yertle's chair.
384
When complex matters are raised regarding the effect of individual justices, some, like you, are obsessed with Garland. The blocking of Garland is well understood as is its wrongfulness. To be the stuck on that issue ad infinitum is tiresome and unproductive. We know every thing you say. We basically agree. And yet you endlessly repeat it. You're like a husband who can't forget that his wife burned the chicken. Move on, Mr. Law.
2
Michjas - When something happens that affects the balance of SCOTUS for the next 3-4 decades, it is a totem which has to be well-marked and frequently referenced, especially when that event is the result of sedition; else sedition is normalized.
12
You almost got it right, but it goes even farther than that - the McConnell precedent is that no Supreme Court justices will be confirmed unless the President and the Senate are controlled by the same party. Many Republicans during the election, including so-called "maverick" John McCain said they were prepared to keep Scalia's seat open for 4 years if Hillary won.
4
I had almost brought myself to forget David Hackett Souter, the justice whom Bush the Elder regarded as his biggest mistake, and who finally, thankfully, retired in order to enjoy mountain hiking again before he became too aged to essay a trail. I respect Ginsburg and Breyer, because they never really pretended to be other than what they are; while Souter was a stalking horse for the remnantarians of the left who defend to their dying breath (and, thankfully it IS dying, at least for the next generation) a didactic, intrusive central government that imposes an elite’s sense of what is “right” despite the inability of exponents to assemble working majorities where it SHOULD count, in Congress.
It’s of secondary importance what actually caused the death of the filibuster for all federal judicial nominees, but it wasn’t Souter. It was Harry Reid’s inability to make sausage, a failure far greater than Obama’s because Obama had other fish to fry as president and making sausage effectively was Reid’s JOB. By his ideological stridence he precipitated the Republican resistance offered to Obama’s judicial nominees: a man who could more effectively horse-trade with those who opposed him would have gotten a lot of federal judges confirmed. Instead, he got a spurt through killing the major part of the filibuster, a spurt now about to be reversed with a generational vengeance. I’m expecting better of Schumer, once he gets beyond his shell-shock at the results of the last election.
It’s of secondary importance what actually caused the death of the filibuster for all federal judicial nominees, but it wasn’t Souter. It was Harry Reid’s inability to make sausage, a failure far greater than Obama’s because Obama had other fish to fry as president and making sausage effectively was Reid’s JOB. By his ideological stridence he precipitated the Republican resistance offered to Obama’s judicial nominees: a man who could more effectively horse-trade with those who opposed him would have gotten a lot of federal judges confirmed. Instead, he got a spurt through killing the major part of the filibuster, a spurt now about to be reversed with a generational vengeance. I’m expecting better of Schumer, once he gets beyond his shell-shock at the results of the last election.
8
Richard - read sdavidc9, above, a much more prescient analysis than your own of the reasons for decisions you don't like. Some decisions just have to "go national," and some justices - like Souter, I suppose - only really "get that" once SCOTUS cases are before them, and they realize the implications of their work for real people in the real world - nationally.
11
Your clowns cannot even pass a watered-down version of a hackneyed attempt at healthcare.
Get back to us when the proto-fascists do anything.
Get back to us when the proto-fascists do anything.
21
Souter was a great justice.
16