I actually think we specifically don't require they "base their decisions in law", right?
They make legal arguments, but is there anything stopping Justices from saying "It's in keeping with the constitution because fuck you that's why"?
yup
there's a reason their title is Justice
Counterpoint: Our current Chief Justice.
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knitdanIn ur baseKillin ur guysRegistered Userregular
You only have to look at Scalia's embarrassingly bitter dissent in the gay marriage case. It's one long appeal to tradition and religion and it is very much rooted in his background.
It is ridiculous to pretend his background had nothing to do with his judicial reasoning.
“I was quick when I came in here, I’m twice as quick now”
-Indiana Solo, runner of blades
You only have to look at Scalia's embarrassingly bitter dissent in the gay marriage case. It's one long appeal to tradition and religion and it is very much rooted in his background.
It is ridiculous to pretend his background had nothing to do with his judicial reasoning.
Do you believe that he could have risen above it?
Marty: The future, it's where you're going? Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
I'm not even sure how I'm supposed to respond to that. You asked me a hypothetical then after I answered you changed a bunch of the assumptions so that you could talk about.. I don't even know. Can you rephrase it for me without all the absurdity because I honestly have no idea where you're going with this anymore.
Edit: Seriously. We went from six people to "maybe they're all the same person in different universes!" I think? Then you discarded 5 of them so you could make a different point altogether? I can't even.
Your argument is that a judge's background can never justifiably be used as a point in their favor.
Potential situation: There's a very experienced lower-circuit judge. Their rulings are consistently compassionate towards marginalized people of various stripes. I like this about them. Circumstances are such that they've never been asked to rule on a matter related to sexuality, as such. The judge is gay and has a history of advocating for gay rights in their personal life.
"The judge is gay and advocates for gay rights in their personal life" is part of the judge's background and not their formal body of work. But, since their constitutional ideology is such that they consistently rule compassionately for marginalized groups, it is perfectly reasonable to assume that they would rule compassionately with regards to gay rights as well, given the chance. It is preposterous to fear that they might turn out to have a specific blind spot for gay rights and only gay rights, given that they are themselves gay and and have a demonstrable interest in gay social issues. If they were straight and had never discussed gay rights in any context, then I would have had reason to question whether or not they had such a blind spot, even if their rulings on other issues were equally good. So in this case, the judge's personal characteristics does, in fact, fill in some blanks and help me understand their likely performance as a justice more fully.
You're assuming a clear, unbreakable line separating a judge's legal ideology from their personal life which, in reality, very rarely exists. It is far more typical for their personal and professional life to flow from the same set of shared principles, such that each informs the other.
Ok I can grapple with this before bed.
I think you could read your post above while omitting all references to the person's sexual orientation, and still make the argument. I simply don't think we should consider "who they like to fuck" when deciding whether or not they're competent to decide the law at the highest level. I guess this is just a point where we will diverge? I don't think it's unreasonable to expect these 9 people, above all others, to not consider who they like to fuck when deciding the law.
Moving on from that. I don't think it's preposterous that a Justice might surprise you dramatically once they're on the bench. Thomas is certainly no advocate for affirmative action despite his race and upbringing. Earl Warren was supposed to be a moderate Republican. Souter often votes with the 'liberals' despite being a Bush appointee.
Next: I don't think it's necessarily bad to consider a person's activism when deciding how they feel about certain legal questions, but it's a poor stand-in for actually knowing how they rule. Appearing on a PRIDE float tells me a lot less about a person than arguing a case or writing an opinion. Given the opportunity, it seems like we should go for the legal position over the advocacy every time.
Finally, I am expecting (not assuming) a clear and unbreakable line between ideology and personal life. Sure it rarely exists, but we've got a whole nation full of people and we only need to find two or three every generation. Assuming we're not trying to pack the Court with partisan activists who primarily act as an outgrowth of their personal advocacy, why wouldn't we try to find these rare minds who don't let their skin color or preference in the sack influence their legal opinions? Of course they'll fail sometimes, and of course the selection will go awry sometimes. That's no reason not to try.
I actually think we specifically don't require they "base their decisions in law", right?
They make legal arguments, but is there anything stopping Justices from saying "It's in keeping with the constitution because fuck you that's why"?
If we had to base our decisions purely in law we wouldn't necessarily have gotten Brown v. Board
That was appealing to statistical/sociological studies and a philosophical notion of equality, rather than any case law or statutory definition of equality, no?
I feel like a lot of the more celebrated cases in SCOTUS history only barely base their decisions on the law itself, sliding in some sideways-fitting thing like the commerce clause to justify changing norms
Eddy on
"and the morning stars I have seen
and the gengars who are guiding me" -- W.S. Merwin
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knitdanIn ur baseKillin ur guysRegistered Userregular
You only have to look at Scalia's embarrassingly bitter dissent in the gay marriage case. It's one long appeal to tradition and religion and it is very much rooted in his background.
It is ridiculous to pretend his background had nothing to do with his judicial reasoning.
Do you believe that he could have risen above it?
It's a moot point, because he didn't.
But as we seem to be talking about some theoretical future nominee, I think we could nominate a magical justice-dispensing robot and it would still have opinions informed by its background. It's unavoidable, and I believe any person who says their own background or personal views would not be a factor in their decisions is either being untruthful or naive.
“I was quick when I came in here, I’m twice as quick now”
-Indiana Solo, runner of blades
You only have to look at Scalia's embarrassingly bitter dissent in the gay marriage case. It's one long appeal to tradition and religion and it is very much rooted in his background.
It is ridiculous to pretend his background had nothing to do with his judicial reasoning.
Do you believe that he could have risen above it?
It's a moot point, because he didn't.
But as we seem to be talking about some theoretical future nominee, I think we could nominate a magical justice-dispensing robot and it would still have opinions informed by its background. It's unavoidable, and I believe any person who says their own background or personal views would not be a factor in their decisions is either being untruthful or naive.
I think all judges are predominantly informed by their background - their background in law. A judge who shares some demographic with the persons involved in their cases are not necessarily a boon to them - in fact, often it's quite the opposite. Ice cold, but it's professional.
I would rank a judge's personal background as informing their decision making process. Of course I would. But their legal background - the types of cases they've seen, presided, and reviewed? That ranks so much more, even if it goes in the opposite direction. And that correlates only loosely with their personal demographic, if at all. I'd trust a straight judge with experience and records in gay rights cases to have a more nuanced view on the subject than a gay judge who happens to be a novice at these and hasn't personally had to hear or review the related precedents and proceedings. But again, I am extrapolating from experience in other professional fields than law.
Marty: The future, it's where you're going? Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
You only have to look at Scalia's embarrassingly bitter dissent in the gay marriage case. It's one long appeal to tradition and religion and it is very much rooted in his background.
It is ridiculous to pretend his background had nothing to do with his judicial reasoning.
Do you believe that he could have risen above it?
It's a moot point, because he didn't.
But as we seem to be talking about some theoretical future nominee, I think we could nominate a magical justice-dispensing robot and it would still have opinions informed by its background. It's unavoidable, and I believe any person who says their own background or personal views would not be a factor in their decisions is either being untruthful or naive.
i dunno dude. A small group of cis straight guys and girls managed to recognize same sex marriage, transcending their backgrounds and in one case the same religious views he supposedly could not escape in the earlier Hobby Lobby case. I said it earlier, but I feel like this door only swings one way for you guys who argue that personal bias is inescapable: if they go the right way, they must've seen the light, but if they don't, it's proof they can never escape their bias.
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knitdanIn ur baseKillin ur guysRegistered Userregular
Do you think Ruth Bader Ginsburg's positions over the years would have been different if she had spent her legal formative years as a corporate lawyer or a prosecutor instead of working with the ACLU?
“I was quick when I came in here, I’m twice as quick now”
-Indiana Solo, runner of blades
A truly objective judge is fiction. All the more reason to have judges with a balance of subjective experiences so that one subjective view doesn't dominate.
Do you think Ruth Bader Ginsburg's positions over the years would have been different if she had spent her legal formative years as a corporate lawyer or a prosecutor instead of working with the ACLU?
Yes
Marty: The future, it's where you're going? Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
The question: Can a judge's background ever justifiably be used as a point in their favor?
I think it can be a weaker factor to be considered (just like college applications! heh) but it probably shouldn't be a major factor. The fact that the trailblazers of the court also happened to be generally brilliant people even speaks to this to a degree - RBG and Thurgood Marshall had impeccable pre-SCOTUS credentials, O'Connor somewhat lesser but her appointment was a bit more expressly political so...
I still think it is important that we retain variation as a small factor because although I imagine a decent slice of intelligent, learned people have a relatively good sense of empathy, it doesn't mean that they have a true understanding of the many ways that the law can impact people. Clarence Thomas is actually a great example of the fact that viewpoints within a minority aren't monolithic, and that there can be many ways to understand and try to rectify a situation, complexities that are inherently argued with a bit more oopmh if coming from inside the minority rather than a member of the dominant power telling us such. Belief in old school liberalism (formal equality -> substantive equality) is usually looked on as a complete joke in minority circles, but I don't think that means that we should only appoint minorities who adhere to the popular minority viewpoint. An all-minority court with a wide variety of ideological frameworks might even be more intellectually interesting than a carefully curated progressive vision. A gay guy that adheres to the Scalian vision of the Reconstruction Amendments would do far more for the conservative cause than a straight guy that says the same (this idea is copyrighted by me, GOP pls don't steal)
I guess my conclusion is that it definitely can be justified as bringing different viewpoints from different angles, which to me is an important component of any complex decision-making that requires a committee approach, but it in itself shouldn't be counted on to hint that they'll make decisions one way or another. You never know!
Eddy on
"and the morning stars I have seen
and the gengars who are guiding me" -- W.S. Merwin
Do you think Ruth Bader Ginsburg's positions over the years would have been different if she had spent her legal formative years as a corporate lawyer or a prosecutor instead of working with the ACLU?
Maybe? Do you think she'd be biased toward supporting a female petitioner in a case because she's a woman? How is that different from saying that a gay Justice would be more sympathetic to gay rights in his decisions?
Finally, I am expecting (not assuming) a clear and unbreakable line between ideology and personal life. Sure it rarely exists, but we've got a whole nation full of people and we only need to find two or three every generation. Assuming we're not trying to pack the Court with partisan activists who primarily act as an outgrowth of their personal advocacy, why wouldn't we try to find these rare minds who don't let their skin color or preference in the sack influence their legal opinions? Of course they'll fail sometimes, and of course the selection will go awry sometimes. That's no reason not to try.
Just want to submit that this standard would almost certainly rule out any sort of 'proper' heir to Scalia, as he failed this test on pretty much every account.
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knitdanIn ur baseKillin ur guysRegistered Userregular
To be honest I've kind of lost the thread of what we're even arguing about here and I'm tired and I think it's perfectly fine if Obama wants to nominate a gay Asian Muslim to the court if he wants to check off 3 boxes at once and all that really matters to me is that they have experience with constitutional matters. I don't really even care if they aren't the "most qualified" by some nebulous arbitrary standard.
“I was quick when I came in here, I’m twice as quick now”
-Indiana Solo, runner of blades
It is very difficult to find the "most qualified" candidate when there is no agreement on what the qualifications actually are. I'm actually somewhat surprised that President Obama has yet to submit a candidate to the Senate Judiciary Committee or whoever (there's probably something I'm missing like they are in "recess" or something). And now I have the image in my head of the Senate out on a playground.
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knitdanIn ur baseKillin ur guysRegistered Userregular
He can sum it a candidate at any time, my guess is he's waiting until Scalia is in the ground.
“I was quick when I came in here, I’m twice as quick now”
-Indiana Solo, runner of blades
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Inquisitor772 x Penny Arcade Fight Club ChampionA fixed point in space and timeRegistered Userregular
Let's take for granted that you can't draw any line at all between someone's past experiences and their future judgments. Done. Everyone is a blank slate. You know nothing about that person's background at all.
All those things being a given, what would the argument be for the qualifications of a Supreme Court Justice?
You only have to look at Scalia's embarrassingly bitter dissent in the gay marriage case. It's one long appeal to tradition and religion and it is very much rooted in his background.
It is ridiculous to pretend his background had nothing to do with his judicial reasoning.
Do you believe that he could have risen above it?
It's a moot point, because he didn't.
But as we seem to be talking about some theoretical future nominee, I think we could nominate a magical justice-dispensing robot and it would still have opinions informed by its background. It's unavoidable, and I believe any person who says their own background or personal views would not be a factor in their decisions is either being untruthful or naive.
I think all judges are predominantly informed by their background - their background in law. A judge who shares some demographic with the persons involved in their cases are not necessarily a boon to them - in fact, often it's quite the opposite. Ice cold, but it's professional.
I would rank a judge's personal background as informing their decision making process. Of course I would. But their legal background - the types of cases they've seen, presided, and reviewed? That ranks so much more, even if it goes in the opposite direction. And that correlates only loosely with their personal demographic, if at all. I'd trust a straight judge with experience and records in gay rights cases to have a more nuanced view on the subject than a gay judge who happens to be a novice at these and hasn't personally had to hear or review the related precedents and proceedings. But again, I am extrapolating from experience in other professional fields than law.
I mean, I'm not saying it's a one-to-one correlation of "judge has X background, therefore Y" devoid of all other context. Different people can grow out of a similar environment and each take a different thing out of the experience. You don't have to go very far to find proof of that. The context matters. It's not like Obama said, "Find me a latina judge. Literally any one will do; they're all probably the same."
There isn't some singular unified Black Experience that Clarence Thomas brings to the table. But growing up black in the era he did almost certainly affected his perceptions later in life. Exactly HOW is unique to him. But it's very unlikely that he could have been born as a white millionaire, gone to the same university, and arrived at precisely the same legal philosophy.
As to the rest: yeah, concrete rulings are the best thing to have. But not every judge has the luxury of getting to rule on every possible type of case, you know? You get whatever's thrown your way. You're never gonna find a potential justice who's been part of a landmark case for absolutely every issue you care about (unless you only care about one or two issues).
Let's take for granted that you can't draw any line at all between someone's past experiences and their future judgments. Done. Everyone is a blank slate. You know nothing about that person's background at all.
All those things being a given, what would the argument be for the qualifications of a Supreme Court Justice?
Worked in more than just one area of law as an attorney, preferably with some experience in the public sector
Professional, well respected by peers, absolutely no disciplinary history
Judcidal experience at both trial court level and appellate level
Has heard a large variety of cases
Demonstrated excellent research and writing skills (I.e. Knows how to pick excellent clerks)
Large ish body of written opinions that are well reasoned and well supported factually
Treats staff and clerks well, no history of harassment etc
Let's take for granted that you can't draw any line at all between someone's past experiences and their future judgments. Done. Everyone is a blank slate. You know nothing about that person's background at all.
All those things being a given, what would the argument be for the qualifications of a Supreme Court Justice?
I don't know about the argument but my expected qualifications would be:
-Law degree.
-Member in good standing of the ABA.
-Experience in both civil and criminal law.
-At least 45 years of age but no older than 60.
-any work in politics would be carefully scrutinized.
“I was quick when I came in here, I’m twice as quick now”
-Indiana Solo, runner of blades
You only have to look at Scalia's embarrassingly bitter dissent in the gay marriage case. It's one long appeal to tradition and religion and it is very much rooted in his background.
It is ridiculous to pretend his background had nothing to do with his judicial reasoning.
Do you believe that he could have risen above it?
It's a moot point, because he didn't.
But as we seem to be talking about some theoretical future nominee, I think we could nominate a magical justice-dispensing robot and it would still have opinions informed by its background. It's unavoidable, and I believe any person who says their own background or personal views would not be a factor in their decisions is either being untruthful or naive.
I think all judges are predominantly informed by their background - their background in law. A judge who shares some demographic with the persons involved in their cases are not necessarily a boon to them - in fact, often it's quite the opposite. Ice cold, but it's professional.
I would rank a judge's personal background as informing their decision making process. Of course I would. But their legal background - the types of cases they've seen, presided, and reviewed? That ranks so much more, even if it goes in the opposite direction. And that correlates only loosely with their personal demographic, if at all. I'd trust a straight judge with experience and records in gay rights cases to have a more nuanced view on the subject than a gay judge who happens to be a novice at these and hasn't personally had to hear or review the related precedents and proceedings. But again, I am extrapolating from experience in other professional fields than law.
I mean, I'm not saying it's a one-to-one correlation of "judge has X background, therefore Y" devoid of all other context. Different people can grow out of a similar environment and each take a different thing out of the experience. You don't have to go very far to find proof of that. The context matters. It's not like Obama said, "Find me a latina judge. Literally any one will do; they're all probably the same."
There isn't some singular unified Black Experience that Clarence Thomas brings to the table. But growing up black in the era he did almost certainly affected his perceptions later in life. Exactly HOW is unique to him. But it's very unlikely that he could have been born as a white millionaire, gone to the same university, and arrived at precisely the same legal philosophy.
As to the rest: yeah, concrete rulings are the best thing to have. But not every judge has the luxury of getting to rule on every possible type of case, you know? You get whatever's thrown your way. You're never gonna find a potential justice who's been part of a landmark case for absolutely every issue you care about (unless you only care about one or two issues).
switch paragraphs two and three and you've got my vote It's hard to know what "finding the best person for the job instead of the best _____ for the job" means, but I think the answer lies in giving each characteristic and criterion ranked weight. And I think that's what all of us have intrinsically been saying, along with a bunch of other crap I don't understand
Marty: The future, it's where you're going? Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
Let's take for granted that you can't draw any line at all between someone's past experiences and their future judgments. Done. Everyone is a blank slate. You know nothing about that person's background at all.
All those things being a given, what would the argument be for the qualifications of a Supreme Court Justice?
Worked in more than just one area of law as an attorney, preferably with some experience in the public sector
Professional, well respected by peers, absolutely no disciplinary history
Judcidal experience at both trial court level and appellate level
Has heard a large variety of cases
Demonstrated excellent research and writing skills (I.e. Knows how to pick excellent clerks)
Large ish body of written opinions that are well reasoned and well supported factually
Treats staff and clerks well, no history of harassment etc
Can poop rainbows on command
Probably some experience with, or demonstration of command of, constitutional law, seeing that was one of the major slams on Miers.
Would you consider Obama's criticism of Alito, that he always rules in favour of the powerful to be something that would be counted (negatively) here? Or so long as the opinions are well-reasoned, that's good enough?
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Inquisitor772 x Penny Arcade Fight Club ChampionA fixed point in space and timeRegistered Userregular
Let's take for granted that you can't draw any line at all between someone's past experiences and their future judgments. Done. Everyone is a blank slate. You know nothing about that person's background at all.
All those things being a given, what would the argument be for the qualifications of a Supreme Court Justice?
Worked in more than just one area of law as an attorney, preferably with some experience in the public sector
Professional, well respected by peers, absolutely no disciplinary history
Judcidal experience at both trial court level and appellate level
Has heard a large variety of cases
Demonstrated excellent research and writing skills (I.e. Knows how to pick excellent clerks)
Large ish body of written opinions that are well reasoned and well supported factually
Treats staff and clerks well, no history of harassment etc
Can poop rainbows on command
Let's take this to the next level and say that you can't evaluate a person's past history at all, both professional and personal. I'd like to hear an affirmative argument for some set of qualifications that extend beyond someone's past credentials, occupations, writings, etc. that would be indicative of the qualities one would want in a Supreme Court Justice. Because that appears to be the argument being made in some cases - you must necessarily discount past experience due to its fallibility. The example being Clarence Thomas's "blackness" not indicating a bias towards judgments "in favor of black people". Taken to its extreme, the argument appears to be that Supreme Court Justices should not take into account anything about themselves or their histories in assessing their judgments.
My question is, then what would you look for? Someone who is fair? Impartial? Objective?
How would you define those terms? What would examples of that behavior be? And how would you look for that behavior in such a way that it would be an infallible (since that's the standard being levied against using one's own experiences) predictor in the case of future judgments (that they would be similarly fair/impartial/objectively true)?
Let's take for granted that you can't draw any line at all between someone's past experiences and their future judgments. Done. Everyone is a blank slate. You know nothing about that person's background at all.
All those things being a given, what would the argument be for the qualifications of a Supreme Court Justice?
Worked in more than just one area of law as an attorney, preferably with some experience in the public sector
Professional, well respected by peers, absolutely no disciplinary history
Judcidal experience at both trial court level and appellate level
Has heard a large variety of cases
Demonstrated excellent research and writing skills (I.e. Knows how to pick excellent clerks)
Large ish body of written opinions that are well reasoned and well supported factually
Treats staff and clerks well, no history of harassment etc
Can poop rainbows on command
Probably some experience with, or demonstration of command of, constitutional law, seeing that was one of the major slams on Miers.
Would you consider Obama's criticism of Alito, that he always rules in favour of the powerful to be something that would be counted (negatively) here? Or so long as the opinions are well-reasoned, that's good enough?
Well thats the bare bones list. Of course further analysis of prior opinions is necessary. I think if you can determine a clear bias like that from the body of rulings they may not be so well reasoned.
You only have to look at Scalia's embarrassingly bitter dissent in the gay marriage case. It's one long appeal to tradition and religion and it is very much rooted in his background.
It is ridiculous to pretend his background had nothing to do with his judicial reasoning.
Do you believe that he could have risen above it?
It's a moot point, because he didn't.
But as we seem to be talking about some theoretical future nominee, I think we could nominate a magical justice-dispensing robot and it would still have opinions informed by its background. It's unavoidable, and I believe any person who says their own background or personal views would not be a factor in their decisions is either being untruthful or naive.
i dunno dude. A small group of cis straight guys and girls managed to recognize same sex marriage, transcending their backgrounds and in one case the same religious views he supposedly could not escape in the earlier Hobby Lobby case. I said it earlier, but I feel like this door only swings one way for you guys who argue that personal bias is inescapable: if they go the right way, they must've seen the light, but if they don't, it's proof they can never escape their bias.
It is unnecessary for cis straight white guys and girls to hold a monopoly on who gets onto the Supreme Court, everyone from every background should got a shot at it - if they're qualified for the position. What we should focus on are their qualifications, and open up the pool for candidates from all walks of life. Just because the Judges made the right decision sometimes, does not mean people whose lives have been effected by their status shouldn't get on the Court.
The door "swings" that way because it's the right thing to do, and when we don't like something we think it's wrong. If Scalia had his way we'd have more wrong things done in the name of justice and he was far from being unbiased on the bench.
That said, bias can be a good or bad thing. And how it effects someone can vary in whether they make good or decisions. In Scalia's case he was dead wrong on many issues due to racism etc. I'd consider someone who is gay may be bias for gay marriage as good, rather than a supposedly "unbiased" judge who'd prefer to keep gay marriage off the books because reasons.
edit: Not that judges have to be gay to be for gay marriage. It's just a weird hang up that due to their orientation they shouldn't be on the Supreme Court when clearly straight people have a history of letting their sexuality inform their decisions.
And yes inquisitor77 if you take the argument to the extreme it breaks down because duh. You can't assess someone for a job without knowing anything at all about what they've done in the past.
I guess you could make them sit for the supreme court "bar exam"
And yes inquisitor77 if you take the argument to the extreme it breaks down because duh. You can't assess someone for a job without knowing anything at all about what they've done in the past.
I guess you could make them sit for the supreme court "bar exam"
/laughs for hours while crying
(Bar exams are really dumb)
have all licenses require reinstatement every year, after 10 years the remaining 9 lawyers in the united states become justices
Marty: The future, it's where you're going? Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
Thinking about it, the fact that appointments are for life plays a big role in the need for diversity. As it is, once someone is in, they completely lose all accountability for their beliefs. They have no need whatsoever to diversify their experiences or to grow themselves as people, since they'll never face any negative consequences for not doing so. This means that in the worst case, the perspective of the members of the Supreme Court will be completely stagnant, regardless of how society changes around them.
Adding in members with more diverse experiences won't fundamentally fix this issue, but at least it will make the Supreme Court's bubble larger.
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Inquisitor772 x Penny Arcade Fight Club ChampionA fixed point in space and timeRegistered Userregular
And yes inquisitor77 if you take the argument to the extreme it breaks down because duh. You can't assess someone for a job without knowing anything at all about what they've done in the past.
I guess you could make them sit for the supreme court "bar exam"
/laughs for hours while crying
(Bar exams are really dumb)
I'd just love to hear an affirmative argument for what constitutes a great Supreme Court Justice that doesn't rely on evaluating past experience in some way, because apparently that's a thing that actually exists. Otherwise I find the constant harping on the fallibility of the former to be incredibly tedious.
It's not perfect, but it's all we have. Poking holes in people trying to make do with the existing process and the best information available is pretty easy. Find any douchebag philosophy major in any college campus in the country and you can get an adequately coherent critique on anything (I should know, I used to be one). Elaborating on your own argument and opening it up for criticism, not so much, apparently.
The underlying issue with "if they're qualified" is that the expectation for someone being "qualified" if they're not white, not male, not straight, not cis, and/or not a Yale/Standford alumni is higher due to institutional inertia. If you're not in that accepted group then to qualify you have to go above and beyond to prove you're equal. The people in charge of picking can help counter that unfair perception by explicitly giving additional value to diversity.
It's really vital that people who have a huge amount of power over, ultimately, the entire world and the future of the species have some sort of understanding of the consequences of their decisions. The decisions that the SCOTUS has made have dramatically altered the political landscape and culture of the US within the lifetime of even the youngest member of this forum, and their decisions in that narrow slip of time will have global repercussions for a minimum of generations.
These are some of the most powerful people in the entire world. Allowing them to be limited to the range of perspectives of an Ivy League frat house is a disservice to billions.
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FencingsaxIt is difficult to get a man to understand, when his salary depends upon his not understandingGNU Terry PratchettRegistered Userregular
I am mostly confused that people think that law school should have more bearing than the 20-30 years of professional practice that come after and are frankly more important. Harvard and Yale produce different kinds of lawyers, some good, and some Ted Cruz. They are unquestionably good schools, but not the end all and be all.
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syndalisGetting ClassyOn the WallRegistered User, Loves Apple Productsregular
Posts
Counterpoint: Our current Chief Justice.
It is ridiculous to pretend his background had nothing to do with his judicial reasoning.
-Indiana Solo, runner of blades
Do you believe that he could have risen above it?
Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
Ok I can grapple with this before bed.
I think you could read your post above while omitting all references to the person's sexual orientation, and still make the argument. I simply don't think we should consider "who they like to fuck" when deciding whether or not they're competent to decide the law at the highest level. I guess this is just a point where we will diverge? I don't think it's unreasonable to expect these 9 people, above all others, to not consider who they like to fuck when deciding the law.
Moving on from that. I don't think it's preposterous that a Justice might surprise you dramatically once they're on the bench. Thomas is certainly no advocate for affirmative action despite his race and upbringing. Earl Warren was supposed to be a moderate Republican. Souter often votes with the 'liberals' despite being a Bush appointee.
Next: I don't think it's necessarily bad to consider a person's activism when deciding how they feel about certain legal questions, but it's a poor stand-in for actually knowing how they rule. Appearing on a PRIDE float tells me a lot less about a person than arguing a case or writing an opinion. Given the opportunity, it seems like we should go for the legal position over the advocacy every time.
Finally, I am expecting (not assuming) a clear and unbreakable line between ideology and personal life. Sure it rarely exists, but we've got a whole nation full of people and we only need to find two or three every generation. Assuming we're not trying to pack the Court with partisan activists who primarily act as an outgrowth of their personal advocacy, why wouldn't we try to find these rare minds who don't let their skin color or preference in the sack influence their legal opinions? Of course they'll fail sometimes, and of course the selection will go awry sometimes. That's no reason not to try.
If we had to base our decisions purely in law we wouldn't necessarily have gotten Brown v. Board
That was appealing to statistical/sociological studies and a philosophical notion of equality, rather than any case law or statutory definition of equality, no?
I feel like a lot of the more celebrated cases in SCOTUS history only barely base their decisions on the law itself, sliding in some sideways-fitting thing like the commerce clause to justify changing norms
and the gengars who are guiding me" -- W.S. Merwin
It's a moot point, because he didn't.
But as we seem to be talking about some theoretical future nominee, I think we could nominate a magical justice-dispensing robot and it would still have opinions informed by its background. It's unavoidable, and I believe any person who says their own background or personal views would not be a factor in their decisions is either being untruthful or naive.
-Indiana Solo, runner of blades
I think all judges are predominantly informed by their background - their background in law. A judge who shares some demographic with the persons involved in their cases are not necessarily a boon to them - in fact, often it's quite the opposite. Ice cold, but it's professional.
I would rank a judge's personal background as informing their decision making process. Of course I would. But their legal background - the types of cases they've seen, presided, and reviewed? That ranks so much more, even if it goes in the opposite direction. And that correlates only loosely with their personal demographic, if at all. I'd trust a straight judge with experience and records in gay rights cases to have a more nuanced view on the subject than a gay judge who happens to be a novice at these and hasn't personally had to hear or review the related precedents and proceedings. But again, I am extrapolating from experience in other professional fields than law.
Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
i dunno dude. A small group of cis straight guys and girls managed to recognize same sex marriage, transcending their backgrounds and in one case the same religious views he supposedly could not escape in the earlier Hobby Lobby case. I said it earlier, but I feel like this door only swings one way for you guys who argue that personal bias is inescapable: if they go the right way, they must've seen the light, but if they don't, it's proof they can never escape their bias.
-Indiana Solo, runner of blades
Yes
Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
I think it can be a weaker factor to be considered (just like college applications! heh) but it probably shouldn't be a major factor. The fact that the trailblazers of the court also happened to be generally brilliant people even speaks to this to a degree - RBG and Thurgood Marshall had impeccable pre-SCOTUS credentials, O'Connor somewhat lesser but her appointment was a bit more expressly political so...
I still think it is important that we retain variation as a small factor because although I imagine a decent slice of intelligent, learned people have a relatively good sense of empathy, it doesn't mean that they have a true understanding of the many ways that the law can impact people. Clarence Thomas is actually a great example of the fact that viewpoints within a minority aren't monolithic, and that there can be many ways to understand and try to rectify a situation, complexities that are inherently argued with a bit more oopmh if coming from inside the minority rather than a member of the dominant power telling us such. Belief in old school liberalism (formal equality -> substantive equality) is usually looked on as a complete joke in minority circles, but I don't think that means that we should only appoint minorities who adhere to the popular minority viewpoint. An all-minority court with a wide variety of ideological frameworks might even be more intellectually interesting than a carefully curated progressive vision. A gay guy that adheres to the Scalian vision of the Reconstruction Amendments would do far more for the conservative cause than a straight guy that says the same (this idea is copyrighted by me, GOP pls don't steal)
I guess my conclusion is that it definitely can be justified as bringing different viewpoints from different angles, which to me is an important component of any complex decision-making that requires a committee approach, but it in itself shouldn't be counted on to hint that they'll make decisions one way or another. You never know!
and the gengars who are guiding me" -- W.S. Merwin
Maybe? Do you think she'd be biased toward supporting a female petitioner in a case because she's a woman? How is that different from saying that a gay Justice would be more sympathetic to gay rights in his decisions?
Hooooooooooooooooooooo boy Trump's definitely gonna make this a thing huh
and the gengars who are guiding me" -- W.S. Merwin
Just want to submit that this standard would almost certainly rule out any sort of 'proper' heir to Scalia, as he failed this test on pretty much every account.
-Indiana Solo, runner of blades
-Indiana Solo, runner of blades
All those things being a given, what would the argument be for the qualifications of a Supreme Court Justice?
I mean, I'm not saying it's a one-to-one correlation of "judge has X background, therefore Y" devoid of all other context. Different people can grow out of a similar environment and each take a different thing out of the experience. You don't have to go very far to find proof of that. The context matters. It's not like Obama said, "Find me a latina judge. Literally any one will do; they're all probably the same."
There isn't some singular unified Black Experience that Clarence Thomas brings to the table. But growing up black in the era he did almost certainly affected his perceptions later in life. Exactly HOW is unique to him. But it's very unlikely that he could have been born as a white millionaire, gone to the same university, and arrived at precisely the same legal philosophy.
As to the rest: yeah, concrete rulings are the best thing to have. But not every judge has the luxury of getting to rule on every possible type of case, you know? You get whatever's thrown your way. You're never gonna find a potential justice who's been part of a landmark case for absolutely every issue you care about (unless you only care about one or two issues).
Worked in more than just one area of law as an attorney, preferably with some experience in the public sector
Professional, well respected by peers, absolutely no disciplinary history
Judcidal experience at both trial court level and appellate level
Has heard a large variety of cases
Demonstrated excellent research and writing skills (I.e. Knows how to pick excellent clerks)
Large ish body of written opinions that are well reasoned and well supported factually
Treats staff and clerks well, no history of harassment etc
Can poop rainbows on command
and the gengars who are guiding me" -- W.S. Merwin
I don't know about the argument but my expected qualifications would be:
-Law degree.
-Member in good standing of the ABA.
-Experience in both civil and criminal law.
-At least 45 years of age but no older than 60.
-any work in politics would be carefully scrutinized.
-Indiana Solo, runner of blades
Well I bet you could find a bunch of judges that meet my list, then to differentiate you'd have to start looking at individual history, yes
Really I just wanted to make a list tho
switch paragraphs two and three and you've got my vote It's hard to know what "finding the best person for the job instead of the best _____ for the job" means, but I think the answer lies in giving each characteristic and criterion ranked weight. And I think that's what all of us have intrinsically been saying, along with a bunch of other crap I don't understand
Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
Probably some experience with, or demonstration of command of, constitutional law, seeing that was one of the major slams on Miers.
Would you consider Obama's criticism of Alito, that he always rules in favour of the powerful to be something that would be counted (negatively) here? Or so long as the opinions are well-reasoned, that's good enough?
Let's take this to the next level and say that you can't evaluate a person's past history at all, both professional and personal. I'd like to hear an affirmative argument for some set of qualifications that extend beyond someone's past credentials, occupations, writings, etc. that would be indicative of the qualities one would want in a Supreme Court Justice. Because that appears to be the argument being made in some cases - you must necessarily discount past experience due to its fallibility. The example being Clarence Thomas's "blackness" not indicating a bias towards judgments "in favor of black people". Taken to its extreme, the argument appears to be that Supreme Court Justices should not take into account anything about themselves or their histories in assessing their judgments.
My question is, then what would you look for? Someone who is fair? Impartial? Objective?
How would you define those terms? What would examples of that behavior be? And how would you look for that behavior in such a way that it would be an infallible (since that's the standard being levied against using one's own experiences) predictor in the case of future judgments (that they would be similarly fair/impartial/objectively true)?
Well thats the bare bones list. Of course further analysis of prior opinions is necessary. I think if you can determine a clear bias like that from the body of rulings they may not be so well reasoned.
It is unnecessary for cis straight white guys and girls to hold a monopoly on who gets onto the Supreme Court, everyone from every background should got a shot at it - if they're qualified for the position. What we should focus on are their qualifications, and open up the pool for candidates from all walks of life. Just because the Judges made the right decision sometimes, does not mean people whose lives have been effected by their status shouldn't get on the Court.
The door "swings" that way because it's the right thing to do, and when we don't like something we think it's wrong. If Scalia had his way we'd have more wrong things done in the name of justice and he was far from being unbiased on the bench.
That said, bias can be a good or bad thing. And how it effects someone can vary in whether they make good or decisions. In Scalia's case he was dead wrong on many issues due to racism etc. I'd consider someone who is gay may be bias for gay marriage as good, rather than a supposedly "unbiased" judge who'd prefer to keep gay marriage off the books because reasons.
edit: Not that judges have to be gay to be for gay marriage. It's just a weird hang up that due to their orientation they shouldn't be on the Supreme Court when clearly straight people have a history of letting their sexuality inform their decisions.
I guess you could make them sit for the supreme court "bar exam"
/laughs for hours while crying
(Bar exams are really dumb)
have all licenses require reinstatement every year, after 10 years the remaining 9 lawyers in the united states become justices
Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
Adding in members with more diverse experiences won't fundamentally fix this issue, but at least it will make the Supreme Court's bubble larger.
I'd just love to hear an affirmative argument for what constitutes a great Supreme Court Justice that doesn't rely on evaluating past experience in some way, because apparently that's a thing that actually exists. Otherwise I find the constant harping on the fallibility of the former to be incredibly tedious.
It's not perfect, but it's all we have. Poking holes in people trying to make do with the existing process and the best information available is pretty easy. Find any douchebag philosophy major in any college campus in the country and you can get an adequately coherent critique on anything (I should know, I used to be one). Elaborating on your own argument and opening it up for criticism, not so much, apparently.
These are some of the most powerful people in the entire world. Allowing them to be limited to the range of perspectives of an Ivy League frat house is a disservice to billions.
I envision Trump bringing it up in his strategy meetings and his campaign handlers going pretty much like this:
Let's play Mario Kart or something...
Someone went to Oxford