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Kavanaugh Hearing

Discussion in 'GC Hall of Fame' started by ursidman, Sep 4, 2018.

  1. lhnewman

    lhnewman Premium Member

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    Republicans are Pro-Life....until you're born!
     
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  2. lhnewman

    lhnewman Premium Member

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    simply put: B. Kavanaugh is pro-corporations more than pro-people....and BTW Roe is dead
     
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  3. lhnewman

    lhnewman Premium Member

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    he is a scary gentleman indeed....and was not even on the lists presented for consideration for Scotus until Trump needed someone to hopefully bail him out of trouble
     
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  4. lhnewman

    lhnewman Premium Member

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    I oppose Kavanaugh...but the protests were worthless...and if anything made Kavanaugh more sympathetic to the public....goodbye Roe
     
  5. lhnewman

    lhnewman Premium Member

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    the Repubs have given the docs they want to give and held back the ones they don't want seen...it is unprecedented....Kavanaugh is way right of right....
     
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  6. lhnewman

    lhnewman Premium Member

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    out with the fossils: schummer, Pelosi, McConnell, Ryan,Graham, in with Sasse, Beto, Harris, Booker...then maybe we can find some compromises
     
  7. gatorpika

    gatorpika GC Hall of Fame

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    The vast majority of cases seem to be criminal matters, but yeah if it was an issue it probably would have come up in cases where lower officers were removed.

    That's ultimately the point. If there are multiple avenues for removal and these situations are inevitably political, then it creates several problems. Could the state of New York, who are generally unhappy with Trump, figure out some way to charge him with criminal negligence or fraud related to his real estate days and remove him from office? Or could a rogue independent counsel like Ken Starr probe every nook and cranny of a politician's life in a politicized investigation until he found something to charge, go to the courts and constructively have the president removed from office by arrest or later potentially by incarceration? Brining a single congressman to trial doesn't decapitated the entire institution, so there is a difference.

    In Federalist 65 Hamilton said, "What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? It is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. Will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry?" In other words the power to impeach should be shared broadly by both houses of the arm of government most accountable to the people. He further elaborated on whether the supreme court should have that power instead: "Could the Supreme Court have been relied upon as answering this description? It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. A deficiency in the first, would be fatal to the accused; in the last, dangerous to the public tranquillity." So in constructively removing the president from office, the court faces the quandary of doing its job while potentially facing political backlash from an unsettled public that could diminish its legitimacy. Do then then not lean more towards a higher bar for conviction than they might if the question of the individual remaining in office is settled? Can justice be served in those circumstances? Leon Jaworski recognized this issue when he didn't ask for a grand jury indictment ahead of impeachment in the Nixon case.

    I don't think Kavanaugh has ever advocated for an exemption from congressional investigation as the bit I read was related to judicial proceedings. I may be wrong though. It's a good point though and I would agree that it's ridiculous to say that the executive couldn't investigate itself and use the subpoena power provided by the courts. The court itself affirmed this in U.S. v. Nixon and Kavanaugh said he agrees with the outcome of the case. To that end, the court also ruled that the president could be sued while in office in Clinton v. Jones. There is a lot of hand wringing about this point, but in effect Kavanaugh's point of view is unlikely to affect anything. He is bound by the precedents of those previous cases unless the court applies a bunch of tests to determine that they were wrongly decided and then still there would only need to be one vote against him from the conservative side to make it all go away. That could be Roberts, or Thomas who previously ruled against immunity in the Jones case. Even Scalia went against it, so my guess is that there probably isn't a whole lot of support for the idea on the court from a constitutional perspective, not to mention the recusal issue if the case was indeed heard.
     
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  8. fubar1

    fubar1 Premium Member

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    If we used your ideological standard to disqualify judges, then only Breyer would be a sitting Justice.

    Regarding the docs, which docs related to any of his over 300 opinions on legal cases has the committee not seen?

    And his ideological leanings aside, he is considered highly qualified by any reputable legal body, even those who are notoriously liberal with their politics.
     
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  9. PerSeGator

    PerSeGator GC Hall of Fame

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    Whatever the system we have, it must be run by people, and those people can always act with improper motives. It's a hard reality that many criminal cases today are a result of "picking the defendant and then finding the crime." And that applies across the spectrum to politicians and non-politicians alike. But although that behavior is not in the spirit of justice and fair government, and is arguably an abuse of prosecutorial discretion, it is ultimately not a defense to criminal behavior. If you commit a crime, you can be brought to account. The only way to avoid that reality is to not commit crimes.

    Now, perhaps there are too many crimes, and it's too easy to be found violating our laws; but that complaint seems something that our politicians are uniquely suited to address, and certainly not something that should shield them from the consequences they would purport to impose on others.

    Could New York charge Trump with a crime? Well, the federal government has charged state governors with a crime, so it works in one direction. But would it work in the opposite? It's hard to say. Perhaps the president could claim some kind of sovereign immunity as the head of state. Or perhaps he could just ignore the arrest warrant. Who could hold him to account? What would the Secret Service do? Would the federal courts even hear the issue? How would the 25th amendment come into play? No one knows. The constitution doesn't give us answers these questions, and perhaps they are better left unanswered. The circumstances of a president's criminal behavior could be so varied that what is sensible in one situation may be disastrous in another.

    An important distinction is that the Court itself cannot charge a person with a crime. It can hear cases, but to bring a criminal prosecution you need a prosecutor. If the DOJ charges the president with a crime and the Court hears the case, does that diminish the legitimacy of the Court? Or alternatively, an independent prosecutor, appointed by Congress itself? It's not as much a usurpation, as the branches themselves appealing to the Courts for legal process.

    I agree that Kavanaugh alone is unlikely to tip the balance significantly on the broad issues, but that doesn't make his views less extreme. The more important piece is the narrower questions. While Nixon allows the president to be subpoenaed as a general matter, the courts must balance numerous factors before such a subpoena can actually issue. It's likely that Kavanaugh will say those factors are not satisfied, or that executive privilege applies, in pretty much every situation involving the president. On that, he could tip the balance, and I think that is precisely why he was nominated.
     
  10. g8trjax

    g8trjax GC Hall of Fame

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    The left wing scotus sleeper that was confirmed 96-3 says hello. Amazing and sad that killing babies has become the left's benchmark for good judges.
     
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  11. gnvgator

    gnvgator GC Hall of Fame

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    Best friend NOW ever had on SCOTUS.
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    Stealth candidates, one succeeding the other.
    The voting margins between then and now, on these two marginally qualified justices, typifies the extreme dysfunction of the senate. Mr Sasse is profoundly correct in calling it a broken institution. Irrevocably broken?
     
    Last edited: Sep 8, 2018
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  12. gator_lawyer

    gator_lawyer VIP Member

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  13. Tasselhoff

    Tasselhoff GC Hall of Fame

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  14. rivergator

    rivergator Too Hot Mod Moderator VIP Member

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    You know, when something is labeled "opinion" that means it's a not ... nevermind ...
     
  15. Tasselhoff

    Tasselhoff GC Hall of Fame

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    Yes I know
    Kind of was my point.
     
  16. BobK89

    BobK89 GC Hall of Fame

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    It’s sad that the whole benchmark for an SC Justice is his/her position on abortion. I read an Op-Ed in today’s Tampa Bay Times that talked about a Justice’s opinions on Women’s Health. Can we get clear that Roe v. Wade deals with an inherit right to privacy that was not enumerated in the Constitution?

    To me, I have only found two nominees not qualified: Harriet Miers (smartly withdrawn) and Elena Kagan (who had never been an appellate judge). Glad to say that so far Kagen has been a good justice.
     
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  17. citygator

    citygator VIP Member

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    Charlotte
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  18. gatorpika

    gatorpika GC Hall of Fame

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    Ultimately our system of government is there to curb the improper motives of men. For example we have a constitution whose provisions can't be thrown away at a whim without a vast consensus. Likewise the structure segregates power amongst three branches to ensure that the immediate passions of the people or of a few in government aren't reflected in great social change. So the structure was of great importance to the people that designed it for just that reason. As Hamilton points out the act of impeachment is inherently political and therefore a political body that is most directly accountable to the people should sit in judgement. The judicial is a non-political body and accountable to nobody. Removing a president from office forces them to step into the political arena and would force the people to abide by a decision by a small body of people they didn't get a chance to vote for. Removal is much easier to accept when it was approved by the congressman you voted in in the last election. We see how even reasonable decisions by the court on matters of law bring out the passions of people who don't agree with them, imagine what it would be like if the guy who is the embodiment of the government in their eyes was removed by that group?

    So you are saying he should just ignore the rule of law and exercise some sort of immunity while in office? Hmmm.... To me resolving the question via legislation makes more sense because because you embed thinking not done during the passions of a the political maelstrom surrounding you. If you just let it evolve then the precedent set by one president in a "sensible" situation affects the reaction towards one in a disastrous situation. Uncertainty can lead to paralysis in a situation where maybe the congress doesn't want to act and makes a case that the court should make the move and they likewise don't want to act first. If the rule is that removal must precede trial, then it puts the ball squarely in congress's court.

    The important thing isn't who is prosecuting, but who is issuing the decision. Charging the president is inherently a political act and can come from any number of avenues, but ultimately what is important is whether the charge warrants removal and the public acceptance of that decision. Kavanaugh's views on the matter were formed during the independent counsel era when the position had much broader investigative power and much less accountability than the special counsel does now. The court also ruled that civil lawsuits are fair game in Clinton v. Jones and charges could presumably be brought by the states as well, so the charges could come from anywhere. That's a good thing because limiting the avenue of addressing your grievances to one thing reduces accountability. Even the DOJ has shown deference toward congressional impeachment power in the few times the issue has come up. As far as congress having their own independent prosecutor power, that makes little sense since they are charged with charging and conducting the trial already through the impeachment process. They already have investigative and subpoena power.

    To come to that conclusion, you would have to assume that Kavanaugh is ideologically bent towards his ideas and unwilling to adhere to the precedent of the court or consider the ideas of his peers on the bench. The guy wrote a couple of articles years ago expressing advocacy for an idea, which doesn't mean he will inevitable vote that way in the face of the rules and traditions of the court. In fact the history of the court shows us it's the opposite where justices often go against things they wrote when they were young and idealistic. I'm pretty sure Reagan was ecstatic about what Kennedy wrote early on when he decided to appoint him to the bench, but that didn't quite turn out how they expected it to, did it? As much as everyone wants to paint Kavanaugh as an extremist ideologue, there are cases he has written that fly in the face of many of those examples. My guess is that more likely than not he will go along with the court in these matters and they have indicated that they lean in favor of issuing subpoenas and allowing charges to be brought whenever. At the very least if he voted in favor of immunity, that vote is unlikely to create a majority.
     
  19. gator_lawyer

    gator_lawyer VIP Member

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    Looking at his judicial record, I don't think that's an unreasonable assumption.
    Why Everyone Should Oppose Brett Kavanaugh’s Confirmation | Current Affairs
    Brett Kavanaugh Respects Precedent About As Much As I Respect Brett Kavanaugh
     
  20. GatorRade

    GatorRade Rad Scientist

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    It's true that we can't know what Kavanaugh would actually do as a SC justice (especially after that hearing), or whether he would change as time passes. And frankly, I don't think it's a crime not to be all about precedent either. We need rule of law, but there's kind of balance with how our society evolves as well, where laws need to evolve with us. Plus, the whims of one particular supreme court would obviously be different than another, so I'm not sure we want a single ruling to be eternally branded into our fabric. Again, I'm not arguing for "activist" judges exactly, but I could easily see a 1950s supreme court viewing same sex marriage very differently than one today.

    In addition, I agree with traditional guidance that we shouldn't be using ideological perspective to determine fitness of justices. So what if he is for or against something that I'm not. These positions aren't political. (of course this goes for Trump as well, who should not be saying things like "we are going to get Roe v Wade overturned".)

    All that said, I am a little worried about the presidential power thing. We weren't given enough to know if Kavanaugh was selected specifically to protect Trump, but I do believe that this would be a corrupt approach to selection - and overly corrupt if this was an explicit deal as some have wondered. However, it is a very tough thing to prove, so in the end, I don't see a legitimate reason to deny him, even if I'm a little queasy about it in my gut.
     
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