All Things in Moderation

Morning Report: Job openings fall 7/12/16

24 Responses

1. 

   markinaustin, on July 12, 2016 at 8:40 pm said:

   As a senior citizen I regret having to note this, but RBG has become the essence of the argument for age limiting active Supreme Court Justices.

   It’s 8:40 PM and I am frist. Hmm.

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     Kevin S. Willis, on July 13, 2016 at 8:09 am said:

     Last two days have been student orientation at University of Memphis for me. Exhausting!

     Regarding RGB, gotta wonder what the point was. Did anybody think she might have had a positive opinion of Trump? Is anything she said surprising? Did she feel compelled to share her opinion because she was worried someone wouldn’t already know what she thought?

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       markinaustin, on July 13, 2016 at 9:16 am said:

       Kev, I posted a new quote which capsulizes the legal community’s response in the gentlest terms – it comes from a Known Liberal. But the basic understanding that judges have political views that they aspire to set aside in judging is critical, and captured by the quote.

       That her three [3!] appearances each went further down the rabbit trail is the clearest indication to me that as we get older, many of us lose rather than gain both empathy and the ability to hold our tongues.

       Scalia never did what RGB has done here. After 2007 or so his Opinions took on a more “colorful” and hard edge and were less tolerant of even good arguments against his position[s]. I am not making an invidious comparison or saying anything to justify RBG. That was just a point about some people getting less open/patient as they get older.

       Some people say that one’s worst personality traits are magnified with aging. I think I read that in the WSJ in a barber shop, however.

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         ScottC, on July 13, 2016 at 11:34 am said:

         Mark:

         With regard to your quotation of the day, it is one thing to say that political neutrality isn’t supposed to be a facade and is supposed to be an aspiration of a judge. It is something different to say that it is an aspiration of a particular judge. I doubt it has ever been an aspiration of RBG. To whatever extent her recent comments show an absence of that neutrality, it isn’t, as Tushnet says, indicative that she has stopped aspiring. It indicates to me that she has stopped trying to put up the facade.

         I think the idea that RBG isn’t simply openly displaying a lack of neutrality that has long existed anyway is itself just a facade designed to defend a reputation that neither RBG nor the Court itself has earned. SCOTUS is a political institution, and we ought not delude ourselves about that fact any longer. The whole idea of a “living constitution”, a judicial philosophy to which nearly half the court openly subscribes, pretty much forces the court to be a political institution.

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         ScottC, on July 13, 2016 at 12:53 pm said:

         Mark:

         I swear I only just read this, well after I wrote my above comment to you. From NRO’s Ed Whelan:

         http://www.nationalreview.com/bench-memos/437675/ginsburg-trump

         Rules and norms of judicial ethics arose to ensure, as much as possible, both the reality that judges are impartial and the appearance that they are. But the “living Constitution” approach that Ginsburg subscribes to—under which the Constitution will be said to mean whatever she wants it to mean—is nothing more than the thinly disguised imposition of her strongly held policy preferences. In short, for living-constitutionalists, the reality of impartiality is an illusion (even if it’s an illusion that some of them subjectively believe in—or at least find it useful to pretend to believe in). Having embraced a constitutional approach that makes a sham of actual impartiality, why—other than to deceive us yahoos—should Ginsburg try to maintain the false appearance of impartiality? Let’s give her credit instead for exposing, once again, how nakedly political she is.

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         Kevin S. Willis, on July 13, 2016 at 12:50 pm said:

         Indeed. I think the age comes in to play here with the idea that anybody could not predict her opinion, or that her opinion was relevant. I could have guessed she did not approve of Trump. She never had to say it. What she said in terms of disclosing her internal secret thoughts was not remotely surprising, so she’s pushing the boundaries of what it’s appropriate for a jurist to say publicly for no reason. There’s no erudition of unique judicial reasoning here . . . there was just no reason for her to weigh in. Time to retire!

         I don’t mind that she weighed in, in a general sense: I’ve long abandoned any notion of the Supreme Court being a dispassionate panel of objective jurists. And I have to be okay with that, I guess, given my favorite justice is Clarence Thomas. Although I feel he merely takes a very strictly constructionist view, most of the time. I don’t get the sense he’d weigh in on a given presidential election. 😉

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         ScottC, on July 13, 2016 at 1:06 pm said:

         KW:

         I don’t mind that she weighed in, in a general sense: I’ve long abandoned any notion of the Supreme Court being a dispassionate panel of objective jurists. And I have to be okay with that, I guess, given my favorite justice is Clarence Thomas.

         I’m not sure why you say that. Thomas is about as dispassionate and objective (about the Constitution) as any SCOTUS judge in my living memory.

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         markinaustin, on July 13, 2016 at 8:23 pm said:

         I think you wring your hands at “living constitution” while failing to accept the shortcomings of “originalism”.

         Much of the Constitution has never been in interpretive “danger”. But much of it is open to interpretation, either because the Founders meant it to be or because circumstances were not envisioned at the time.

         James Madison wrote, it “was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms & phrases necessarily used in such a charter . . . and that it might require a regular course of practice to liquidate & settle
         the meaning of some of them.”

         So over time, beginning as early as John Marshall, the Court looked to see what the history of practice of the political branches had been and gave it great weight. Youngstown Steel, which remains the Court’s defined limitation of Presidential power, is surely an example of the “living Constitution”.

         It’s critics say it denies the plain meaning of the text and its supporters say it clarifies the ambiguous meaning of text based on long standing practice of the political branches.

         Read NLRB v. Canning. 9-0, but Breyer’s Opinion has 5 votes and Scalia’s Concurrence has 4.

         Same conclusion reached under each theory. You will prefer Scalia here. I prefer Breyer on most, but not all of it. I agree with the unanimous result.

         This legal philosophical difference is less important IMHO then the doctrines of activism vs. incrementalism vs. restraint, which do not consistently correlate to the “text-original-living” debate.
         —
         BUT NONE OF THIS CHANGES JUDICIAL CONDUCT ETHICS – EVEN THE APPEARANCE OF IMPROPRIETY IS TO BE AVOIDED.

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         ScottC, on July 14, 2016 at 9:05 am said:

         Mark:

         I think you wring your hands at “living constitution” while failing to accept the shortcomings of “originalism”.

         I think Scalia answered this point best when he said (paraphrasing from memory) “I don’t have to show that originalism is perfect. It isn’t. I just have to show that it is better than the alternative. And that isn’t very difficult.”

         To me the issue isn’t whether or not the Constitution is open to differing interpretations. Of course it is, and that is precisely why one needs a method of interpreting it. And it seems to me that living constitution doctrine is nothing but the thinly disguised application of one’s own, personal values. That is contrary to both judicial ethics and democratic self-rule.

         Living constitutionalists say that the constitution should be read in light of “society’s changing values”. Has there ever been a case in which reading the constitution in light of “society’s changing values” has produced an outcome different than if the jurist read the constitution in light of his own values? Are a judge’s own personal values ever in conflict with what he perceives to be “society’s” values for the purpose of interpreting the constitution? Do you think it is even remotely possible that, when William Brennan proclaimed that capital punishment was a violation of the 8th amendment due to society’s “evolving standards of decency”, he did so despite his own support for capital punishment? Or did he rule as he did because capital punishment offended his own standards of decency, and he wanted to do what he could to get society to conform?

         To be clear, I don’t think that originalism is some panacea. There is nothing about originalism that suggests judges cannot still come to different conclusions about what a particular clause or law meant to the people who enacted it, or how that meaning applies to some new circumstance unique to today’s world. But if a judge is not sincerely trying to understand what the law meant to those who enacted it, and to apply it faithfully on that basis, then I think the judge has become unmoored from both democratic principles and the rule of law.

         This legal philosophical difference is less important IMHO then the doctrines of activism vs. incrementalism vs. restraint, which do not consistently correlate to the “text-original-living” debate.

         I’m not sure I would want activism (or restraint) to be a “doctrine”. The need for activism/restraint ought to be determined by the specifics of the case at hand. If the legislature has passed an unconstitutional law, then the court should be “active” in striking it down, even if it likes the law. If it hasn’t, then the court should “restrain” itself from doing so, even if it doesn’t like the law. Are there cases in which it is a close call? Of course, and in fact those are precisely the cases that are most likely to make it to SCOTUS. Which is to say those are precisely the cases for which SCOTUS’s judgement is most needed. And so to enter such cases with a predisposition one way or the other is, in my mind, to basically relinquish the job they were put there to do.

         BUT NONE OF THIS CHANGES JUDICIAL CONDUCT ETHICS – EVEN THE APPEARANCE OF IMPROPRIETY IS TO BE AVOIDED.

         I understand. I would simply say, however, that to me, to embrace the living constitution doctrine is, pretty much necessarily, to violate that code of ethics. Living constitutionalism is, by its nature, not impartial. It is doctrine which allows a judge to impose his own values instead of those of the law makers, ie the people, gussied up to sound impartial.

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         markinaustin, on July 15, 2016 at 6:29 am said:

         I don’t have any time right now, so briefly, a blanket determination that the DP is cruel and unusual cannot be supported under any theory, while a determination that an individual method of DP or the circumstances of imposing DP can be variously supported by all the theories.

         I think Heller is a good example of bending textualism in a way that obfuscates original intent and that it was decided totally on personal preference.

         The criticism of “personal preference” is legitimate in many cases – God knows Kennedy’s SSM ruling is outstanding among them. But I could find many others on both sides of the so-called original/living divide.

         I really do want you to take the time to read NLRB v. Cannon. It is not a case where personal preference dictated either approach [9-0] so it is more illustrative of the two approaches properly used.
         See what you think of the “what is a recess” discussion in both the Opinion and the Concurrence.

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         ScottC, on July 15, 2016 at 7:11 am said:

         Mark:

         I don’t have any time right now, so briefly, a blanket determination that the DP is cruel and unusual cannot be supported under any theory,

         I’m not sure why you think it cannot be supported under living constitution doctrine. It seems to me that LC doctrine is especially suited to justifying a determination that the DP is cruel and unusual.

         I didn’t get a chance to read NLRB yesterday, but I will do so today. I did, however, read Youngstown and I don’t understand why you think its determination that Truman was neither exercising a power explicitly given to him under the constitution nor enforcing a statute passed by congress, and therefore was acting beyond his legitimate powers, is an example of LC doctrine.

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         markinaustin, on July 15, 2016 at 9:32 am said:

         Scott – Life cannot be taken without due process, so there are, by necessary implication, situations in which life can be taken with due process. Legitimate use of “living constitution” cannot be used to DENY plain text.

         Whether juveniles or mental defectives can be executed might cause division between originalists and living constitutionalists in a legitimate fashion.

         I understand what you are saying about Youngstown. I should not have used it as an example. The whole relationship of the case to “living constitution” has to do with the extent of the war power – Truman claimed his authority because of the Korean War emergency, and likened his position to Lincoln’s Civil War directives.

         Not nearly the example I should have used.

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         ScottC, on July 15, 2016 at 2:06 pm said:

         Mark:

         Legitimate use of “living constitution” cannot be used to DENY plain text.

         Well, I suspect that the likes of Brennan would argue that it is not denying text at all. The text doesn’t say “plainly” that capital punishment is allowable. It sets out one circumstance in which it is not constitutional, ie in the absence of due process. But even with due process, punishments must conform with the rest of the constitution, and if, in the light of society’s changing understanding of the words “cruel and unusual” (as per LC doctrine), capital punishment itself qualifies, then CP has become unconstitutional.

         The above is a position that I personally think is absurd, but which, under the assumptions of LC, is entirely plausible and defensible, and one that I could easily see an LC jurist articulating. (It makes at least as much sense as, and I think even more sense than, an appeal to emanations of penumbras.) Uncovering legal ambiguity is pretty easy if one really wants to find it, and once that ambiguity is discovered, all things are possible under a living constitution.

         But even beyond the above rationalization, if the meaning of the text of the constitution can change due to changing circumstances or values in society, how could any text ever be considered to be “plain”? Plain to who, those who wrote and enacted the text or those who are interpreting the text now? The NLRB case (which I have now read) is a case in point. For roughly 130 years, it was “plain” to pretty much everyone what “the recess” meant in the Recess Appointments clause. But then in 1920 some clever lawyer realized that “recess” could be taken to mean something entirely different, and suddenly now “the recess” is no longer plain to anyone. (Well, at least, not to the lock-step liberals plus one (LSL+1).) Perhaps an even better example from NLRB of how plain text is denied is its naked re-writing of the clause from “vacancies that may happen during the recess” to “vacancies that may happen to be during the recess”.

         And with regard to NLRB, I’m not entirely sure what significance you attach to the fact that it was decided unanimously along two totally different lines of reasoning. It is not my contention that LC doctrine must inevitably produce the wrong result. On the contrary, my problem with LC doctrine is that it can produce pretty much any result. Once the LSL+1 took the first step of determining that “the recess” could mean something other than what it meant for the first 130 years of its existence, and that “may happen” actually means “may happen to be”, it had to move further and further away from the text of the constitution and into the realm of just making things up in order to reach the result it reached. Since virtually nothing it asserted is grounded in any actual text of the constitution it could have just as easily made up other things and reached the opposite conclusion.

         For example, crucial to its final ruling was the assertion that 3 days was “too short” a recess to qualify as one under the Appointments clause. But there is nothing in the text of the clause that stipulates that the recess had to last a certain amount of time. They just made it up. They could just as easily said 3 hours (or no time at all), ruled differently, and the quality of their argument wouldn’t have suffered at all. Yes, they tried to make the 3-day minimum limit (at least three days….it could be up to 10 days, apparently, the LSL+1 aren’t sure) appear less than arbitrary by citing a 3-day time period from an entirely different clause referring to an entirely different function, but had they wanted to reach a different conclusion, they could easily have ignored this totally unrelated clause and let the recess appointments stand. Or, they could have easily (and with frankly greater legal justification than their actual reasoning possessed) stated that since the Founders had stipulated a specific time period in the Adjournments clause but had not done so in the Appointments clause, they must have deliberately left it out of the Appointments clause and therefore there should be no minimum time period. Voila…Obama’s appointments are legitimate!

         Once one is no longer seeking to understand what the law meant to the people who actually enacted it, and a LC approach to interpretation is embraced, almost any result can be rationalized in one way or another. As I said earlier, one is unmoored from the rule of law in any objective sense, and has entered anything-goes territory. Which is precisely why progressives have embraced this doctrine. Since the time of Woodrow Wilson progressives have always lamented the fact that the constitution prohibits them from organizing society in the way they would like to. LC theory has provided them with a way around the that restriction.

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         Kevin S. Willis, on July 14, 2016 at 11:20 am said:

         @scottc1: “I’m not sure why you say that. Thomas is about as dispassionate and objective (about the Constitution) as any SCOTUS judge in my living memory.”

         Being a constitutional constructionist is highly ideological in the modern era! Saying you believe the constitution means what it says, etc., is (as I understand it) an extreme right wing position.

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       jnc4p, on July 14, 2016 at 10:45 am said:

       “But the basic understanding that judges have political views that they aspire to set aside in judging is critical, and captured by the quote.”

       I don’t think that’s a shared value anymore, even on the judiciary.

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2. 

   novahockey, on July 13, 2016 at 8:42 am said:

   Was pursuing the bookshelf last night and found a copy of the Communist Manifesto. what a load of horseshit.

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     Brent Nyitray, on July 13, 2016 at 8:57 am said:

     racist

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       novahockey, on July 13, 2016 at 9:14 am said:

       such distinctions will fade once the classes are eliminated.

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         Kevin S. Willis, on July 13, 2016 at 12:44 pm said:

         Tribal self-segregation and grouping will just stop, despite being pretty much hardwired into mammals for tens-of-millions of years, at a minimum. Because, you know, justice.

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     markinaustin, on July 13, 2016 at 9:42 am said:

     My father, a Republican, made me read the CM when I was 13. He then asked me what was wrong with it.

     “Duh…” I said.

     He said “Do you think all history is the story of ‘the class struggle?’ What about science, technology, the Ice Age, volcanoes, warfare, understanding family roles, religion, and natural resources and boundaries?”

     “Sure”, I said.

     “So if the thesis of the Manifesto is that all history is about the class struggle, and you know that is wrong, what can you say about the rest of it?”

     “It’s horse shit?”

     “Exactly.”

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     Kevin S. Willis, on July 13, 2016 at 12:43 pm said:

     I haven’t read the Communist Manifesto since I was in high school. I really ought to read it again, to see what a paradise on earth we could be living in, if only the right people were in charge—I mean, if the workers owned the means of production.

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       Kevin S. Willis, on July 13, 2016 at 12:51 pm said:

       I should confess, I remember almost none of it.

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       markinaustin, on July 13, 2016 at 12:58 pm said:

       KW –

       Did you ever read about the New England mine that was owned by the miners? They hired MBAs to manage the place. Well, the managers decided to get rid of seniority preference and institute profit sharing, in line with the general guidelines the miner/owners gave them. But then the older miners went on strike.

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         Kevin S. Willis, on July 13, 2016 at 1:03 pm said:

         No, everybody will opt for communism and shared ownership, it’s just that they’ve been deceived by the lies of the capitalists!

         Justice for me but not for thee! If you can extract that from human nature, then communism might have a shot.

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