The Supreme Court, bastion of conservatism

[falafel]

Kavanaugh will be interesting to watch on there. Does he act predictably like a traditional Conservative on the Court and like a Constitutional literalist, or does this episode push him to become the first unabashed Trumpian justice, the Constitution be damned as long as he backs up Trump? I might bet some money on the latter.

Why would you think he would be a "Trumpian" justice? Anything in his record that would suggest he disregard the Constitution??

[creekster]

My concern with him remains the same. I think his record shows he's weak on separation of powers issues as well as probably on 1st, 4th and 5th amendment issues. But those are too boring for the tabloids and popular media to spend any time talking about.

I seem to recall this is the second time you have referred to the idea of kavanaugh being “weak on separation of powers.” What are you talking about?


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[BlueK]

Why would you think he would be a "Trumpian" justice? Anything in his record that would suggest he disregard the Constitution??

Do you think he'd be unbalanced in his support of the executive branch over the others? That's a concern several have expressed. Also, some think there are some questions over how he'd interpret the 4th amendment. But if you have some arguments why that shouldn't be a worry I'm all ears. I tend to be a Constitutionalist in the traditional sense. I hope my concerns are unfounded and he becomes predictably conservative in the tradition of someone like Scalia.

[BlueK]

I seem to recall this is the second time you have referred to the idea of kavanaugh being “weak on separation of powers.” What are you talking about?


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Really? It was kind of a hot topic around this nomination until the current circus with the drinking and sex allegations.

https://www.acslaw.org/acsblog/for-b...ne-way-street/

https://www.politico.com/magazine/st...e-power-219634

https://www.vox.com/policy-and-polit...ve-power-legal

Julie Novkov, law professor, State University of New York at Albany:
Trump has been fairly clear all along that he was working with judges recommended from within the conservative legal networks of the Federalist Society and the Heritage Foundation, so the choice of Kavanaugh from among the contenders sends an interesting and potentially ominous signal.

We have become accustomed recently to thinking about Supreme Court picks in terms of where they line up on a number of key issues that have split liberals and conservatives: abortion, same-sex marriage, constitutional protections for criminal defendants, the Second Amendment, and the freedom of the states to regulate voting in ways that limit access to the ballot, to name only a few. Kavanaugh puts an additional issue into play — the question of executive authority and the capacity of the other branches to check it.

The evidence we have is not definitive, but it suggests that Kavanaugh would be a reliable vote in favor of expanding executive power, shrinking the capacity of Congress and the courts to serve as a counterweight, and sharply limiting investigations that might tend to disrupt or undermine executive functioning.

Kavanaugh has a history of service within the executive branch, including a stint in George W. Bush’s Office of Legal Counsel and as his staff secretary. The Bush OLC crafted an extraordinarily strong theory of executive power and authority that it used to justify and defend the Bush Administration’s controversial treatment of war detainees. While Kavanaugh did assist independent counsel Kenneth Starr in his investigation of the Clinton White House, he argued in a 2009 article that Congress should enact a law preventing a sitting president from being investigated while in office.

While justices’ prior writings and opinions are not always great predictors of how a justice will rule once elevated to the Supreme Court, it seems plausible that Kavanaugh will provide a reliable fourth vote along with Alito, Thomas, and Gorsuch to support strong executive authority, especially when a conflict entails claims of a security, emergency, or military threat. He also appears to be willing to draw lines to limit the scope of investigations of the president for wrongdoing.

[Omaha 680]

Kavanaugh will be interesting to watch on there. Does he act predictably like a traditional Conservative on the Court and like a Constitutional literalist, or does this episode push him to become the first unabashed Trumpian justice, the Constitution be damned as long as he backs up Trump? I might bet some money on the latter.

If he is the first unabashedly "Trumpian" justice, and the strict constructionists on the court would disagree with how he wants the pres to be king, then who would he joining him on these decisions that are going to destroy us? RBG and co?

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[BlueK]

Really? It was kind of a hot topic around this nomination until the current circus with the drinking and sex allegations.

https://www.acslaw.org/acsblog/for-b...ne-way-street/

https://www.politico.com/magazine/st...e-power-219634

https://www.vox.com/policy-and-polit...ve-power-legal

From the last article above:

Julie Novkov, law professor, State University of New York at Albany:
Trump has been fairly clear all along that he was working with judges recommended from within the conservative legal networks of the Federalist Society and the Heritage Foundation, so the choice of Kavanaugh from among the contenders sends an interesting and potentially ominous signal.

We have become accustomed recently to thinking about Supreme Court picks in terms of where they line up on a number of key issues that have split liberals and conservatives: abortion, same-sex marriage, constitutional protections for criminal defendants, the Second Amendment, and the freedom of the states to regulate voting in ways that limit access to the ballot, to name only a few. Kavanaugh puts an additional issue into play — the question of executive authority and the capacity of the other branches to check it.

The evidence we have is not definitive, but it suggests that Kavanaugh would be a reliable vote in favor of expanding executive power, shrinking the capacity of Congress and the courts to serve as a counterweight, and sharply limiting investigations that might tend to disrupt or undermine executive functioning.

Kavanaugh has a history of service within the executive branch, including a stint in George W. Bush’s Office of Legal Counsel and as his staff secretary. The Bush OLC crafted an extraordinarily strong theory of executive power and authority that it used to justify and defend the Bush Administration’s controversial treatment of war detainees. While Kavanaugh did assist independent counsel Kenneth Starr in his investigation of the Clinton White House, he argued in a 2009 article that Congress should enact a law preventing a sitting president from being investigated while in office.

While justices’ prior writings and opinions are not always great predictors of how a justice will rule once elevated to the Supreme Court, it seems plausible that Kavanaugh will provide a reliable fourth vote along with Alito, Thomas, and Gorsuch to support strong executive authority, especially when a conflict entails claims of a security, emergency, or military threat. He also appears to be willing to draw lines to limit the scope of investigations of the president for wrongdoing.

------------------------
Granted, these concerns of mine hopefully turn out to be nothing.

[BlueK]

If he is the first unabashedly "Trumpian" justice, and the strict constructionists on the court would disagree with how he wants the pres to be king, then who would he joining him on these decisions that are going to destroy us? RBG and co?

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destroy us? I didn't say that. But US vs. Nixon being "wrongly decided" in his words is a little troubling -- and radical considering it's a precedent set on a unanimous opinion.

[falafel]

Do you think he'd be unbalanced in his support of the executive branch over the others? That's a concern several have expressed. Also, some think there are some questions over how he'd interpret the 4th amendment. But if you have some arguments why that shouldn't be a worry I'm all ears. I tend to be a Constitutionalist in the traditional sense. I hope my concerns are unfounded and he becomes predictably conservative in the tradition of someone like Scalia.

You are the one that said you'd put some money on him becoming the first Trumpian justice and disregard the Constitution. Now you are saying there are questions by others (without identifying who) about his possible interpretations of the amendments. I just want to know if you have any specific worries that would lead you to "put money" on this proposition. It sounds like you don't.

[Moliere]

My concern with him remains the same. I think his record shows he's weak on separation of powers issues as well as probably on 1st, 4th and 5th amendment issues. But those are too boring for the tabloids and popular media to spend any time talking about.

Very valid concerns, but it’s been the dems that made this about the sexual assault allegations and not substantive issues. The media is just following suit and Diane Feinstein orchestrates the circus.

[creekster]

Really? It was kind of a hot topic around this nomination until the current circus with the drinking and sex allegations.

https://www.acslaw.org/acsblog/for-b...ne-way-street/

https://www.politico.com/magazine/st...e-power-219634

https://www.vox.com/policy-and-polit...ve-power-legal

Julie Novkov, law professor, State University of New York at Albany:
Trump has been fairly clear all along that he was working with judges recommended from within the conservative legal networks of the Federalist Society and the Heritage Foundation, so the choice of Kavanaugh from among the contenders sends an interesting and potentially ominous signal.

We have become accustomed recently to thinking about Supreme Court picks in terms of where they line up on a number of key issues that have split liberals and conservatives: abortion, same-sex marriage, constitutional protections for criminal defendants, the Second Amendment, and the freedom of the states to regulate voting in ways that limit access to the ballot, to name only a few. Kavanaugh puts an additional issue into play — the question of executive authority and the capacity of the other branches to check it.

The evidence we have is not definitive, but it suggests that Kavanaugh would be a reliable vote in favor of expanding executive power, shrinking the capacity of Congress and the courts to serve as a counterweight, and sharply limiting investigations that might tend to disrupt or undermine executive functioning.

Kavanaugh has a history of service within the executive branch, including a stint in George W. Bush’s Office of Legal Counsel and as his staff secretary. The Bush OLC crafted an extraordinarily strong theory of executive power and authority that it used to justify and defend the Bush Administration’s controversial treatment of war detainees. While Kavanaugh did assist independent counsel Kenneth Starr in his investigation of the Clinton White House, he argued in a 2009 article that Congress should enact a law preventing a sitting president from being investigated while in office.

While justices’ prior writings and opinions are not always great predictors of how a justice will rule once elevated to the Supreme Court, it seems plausible that Kavanaugh will provide a reliable fourth vote along with Alito, Thomas, and Gorsuch to support strong executive authority, especially when a conflict entails claims of a security, emergency, or military threat. He also appears to be willing to draw lines to limit the scope of investigations of the president for wrongdoing.

Really.

Thanks for the links and the lengthy quotation, but you never said what your concern is, apart from "weak on separation of powers." I am sure you also noticed that the sources you cite tend to be a bit alarmist about Kavanaugh.

That said, it appears the greatest expressed fear (and tbh most of the other fears expressed don't stand up to much scrutiny, IMO) is that Kavanaugh's view that a sitting president is not and should not be subject to criminal or civil legal processes while he is in office will allow Trump to avoid the inevitable result of the Mueller probe (which sounds like something you have to endure when you turn 50). Assuming, contrary to all apparent reasonable reports of which I am aware to date, that Mueller ends up with some sort of criminal charge against Trump, the fear is that Kavanaugh will galvanize support on the court for the idea that the criminal charge cannot proceed against Trump. Kavanaugh commented on this in the committee hearings and agreed that, in his view (and the view of many others, btw) this is the correct position on the issue. This does not mean, btw, that Trump cannot be impeached, but many of the articles sort of let that pass that by. I have mixed feelings about the question. Taking Trump out of the issue, I can see the logic of the position Kavanaugh is taking. ANd leaving Trump in the equation, I can live with a 'mere'
impeachment.

Is there something else that bothers you about Kavanaugh and the SOP issue?

[BlueK]

Really.

Thanks for the links and the lengthy quotation, but you never said what your concern is, apart from "weak on separation of powers." I am sure you also noticed that the sources you cite tend to be a bit alarmist about Kavanaugh.

That said, it appears the greatest expressed fear (and tbh most of the other fears expressed don't stand up to much scrutiny, IMO) is that Kavanaugh's view that a sitting president is not and should not be subject to criminal or civil legal processes while he is in office will allow Trump to avoid the inevitable result of the Mueller probe (which sounds like something you have to endure when you turn 50). Assuming, contrary to all apparent reasonable reports of which I am aware to date, that Mueller ends up with some sort of criminal charge against Trump, the fear is that Kavanaugh will galvanize support on the court for the idea that the criminal charge cannot proceed against Trump. Kavanaugh commented on this in the committee hearings and agreed that, in his view (and the view of many others, btw) this is the correct position on the issue. This does not mean, btw, that Trump cannot be impeached, but many of the articles sort of let that pass that by. I have mixed feelings about the question. Taking Trump out of the issue, I can see the logic of the position Kavanaugh is taking. ANd leaving Trump in the equation, I can live with a 'mere'
impeachment.

Is there something else that bothers you about Kavanaugh and the SOP issue?

I hope it is just baseless alarmism.

But to a non-lawyer and libertarian like me, his statement that US vs. Nixon was "wrongly decided" is weird and a little scary. I mean, it was a unanimous decision arrived at with three justices Nixon appointed and with Rehnquist having rightly recused himself since he had worked for Nixon before.

[creekster]

I hope it is just baseless alarmism.

But to a non-lawyer and libertarian like me, his statement that US vs. Nixon was "wrongly decided" is weird and a little scary. I mean, it was a unanimous decision arrived at with three justices Nixon appointed and with Rehnquist having rightly recused himself since he had worked for Nixon before.

Are you talking about the panel discussion presentation from 20 something years ago? That's not too much to hang your hat on and get upset about. Besides, I doubt the rest of the court would go along with that, and probably kavanaugh wouldn't either anymore. But maybe you have more that you're talking about?

[BlueK]

Very valid concerns, but it’s been the dems that made this about the sexual assault allegations and not substantive issues. The media is just following suit and Diane Feinstein orchestrates the circus.

I agree. the dems handled it like a stupid circus and should have been talking about the real questions instead, but those are boring and don't make for good Jerry Springer type TV.

[BlueK]

Are you talking about the panel discussion presentation from 20 something years ago? That's not too much to hang your hat on and get upset about. Besides, I doubt the rest of the court would go along with that, and probably kavanaugh wouldn't either anymore. But maybe you have more that you're talking about?

I would hope his ideas changed. Then again, there are probably other choices Trump could have made as well that were more like Gorsuch.

[creekster]

I would hope his ideas changed. Then again, there are probably other choices Trump could have made as well that were more like Gorsuch.

Look, kavanaugh is not a nut. These articles you point to call out comments he made in some panel discussion and a law review article he wrote a decade ago. They do not point to his opinions. If you’re really that worried about expansion of executive power you would do better to look at how he might react to undue expansion of regulatory authority. I think he stacks up well there, even in that LR article. The only concern is the national security exception and on balance I think it’s not a huge risk.


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