Better Judicial Confirmations

 

I suppose I’m likely ignorant and/or naïve (I’m just a retired corporate patent lawyer who did not attend a top tier law school), but it seems to me that we could learn a lot better information about judicial nominees (especially Supreme Court nominees), AND the nominees would have a lot less wiggle room to avoid answering questions, if rather than grandstanding on particular issues, the Senators asked some basic questions about the nominee’s process for reading, understanding, interpreting, and applying documents.

  • How do you start reading and interpreting a document on which you are expected to make a decision (whether the Constitution, a statute, a regulation, or a contract)? Do you try to discern what the particular author intended the language to mean at the time it was written? Or do you read it as a bystander (member of the public) would have read it at the time it was written? Or do you read it as a person with specific specialized knowledge would have read it at the time it was written, such as people in specific industries or professions? Or do you read it with today’s understanding of the words and grammar used? Or do you read it as you believe the author would have wanted it to mean if the author were writing it today?
  • Can a document later have a meaning different from the meaning it had at the time it was written? [Possible follow-up questions about contracts, which will raise fewer red flags than asking about the Constitution or statutes – can a judge interpret a contract to mean something different than what it would have meant at the time the contract was signed?]. Can a document today have a meaning that it never had in the past?
  • If a document can have a different meaning today than it did when it was written, what types of sources are appropriate to use when determining what the proper meaning of the document is today? How would you decide what sources to use and what sources to reject (if any)? How would you approach conflicts among the selected sources if using different sources lead to different meanings?
  • If you find a document is ambiguous in meaning, how do you resolve that ambiguity? What types of sources do you consult? If you consult external sources, do the external sources need to be exactly parallel with the parties to the dispute before you? Same industry? Same financial system? Same cultural history? Same legal system? For example, if you are looking to law of another jurisdiction to interpret language, does it matter if the social or legal culture of the other jurisdiction is different from the culture where the dispute before you is? If it is appropriate to look at the law of other jurisdictions to help resolve an ambiguity in a document, are all other jurisdictions to be considered equally relevant? For example, would the law of Britain be as relevant as the law of Germany? Saudi Arabia? China? If so, why? If not, why not?
  • Can you imagine that an ambiguity in a document might render the matter so unclear that it would be inappropriate for a judge to resolve? Must a judge resolve every dispute that comes to the court? Might there ever be a circumstance in which a judge should return it to the people who drafted the document to resolve some other way?

I think questions of this type would be much more useful in discerning a nominee’s “judicial philosophy” than the subject-specific questions typically thrown out today. A nominee, especially one that has risen to the point of being considered for a state or national supreme court, should be prepared to answer such questions, and to explain the reasoning for those answers, regardless of whether the nominee takes a “strict originalist” or a “living document” approach or some other approach.

One of the things that bothers me about the current U.S. Supreme Court nominee (Ketanji Brown Jackson) is that she has overtly evaded questions about how she goes about making judicial decisions. She has given nonsense answers to questions about how she makes decisions, even at one point claiming she hadn’t thought about the subject. Either she’s lying and has thought about it but knows her thoughts are unacceptable, or if she truly hasn’t thought about it, she is the most incurious person ever nominated to high judicial office.

How a person makes decisions is a much more pervasive attribute than are the person’s views on particular topics.

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  1. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Full Size Tabby: If a document can have a different meaning today than it did when it was written, what types of sources are appropriate to use when determining what the proper meaning of the document is today?

    We have been witnessing a lot of changes in the meanings of individual words for several years now. Why would we expect this not to happen to groups of words composing complete thoughts? So there’s that.

    • #1
  2. kedavis Inactive
    kedavis
    @kedavis

    Full Size Tabby: If a document can have a different meaning today than it did when it was written,

    “For my money” as the saying goes, any judge who claimed this should be immediately disqualified.

    • #2
  3. Joker Member
    Joker
    @Joker

    I think when KBJ evades a question, its safe to assume the worst because she can give a straightforward answer if she wants to. She is obviously articulate enough to give a clear answer, but chooses not to. So when asked for the definition of a woman or whether, even though she’s heard arguments on both sides, she has no opinion. And no answer that she gives would sway a single Democrat senator from confirming her.

    Court packing – I have an opinion on that legal matter, even though I’m not an attorney. And it wasn’t some industry buzz think paper, it was part of the Biden campaign. He never shot it down, and since he had an infuriating few tough questions during his run, he wasn’t forced to commit while voters had choice. Then he appoints a panel to research the matter, so….. Anyway, court packing was pushed by Demand Justice, which endorsed her nomination.

     

    • #3
  4. RightAngles Member
    RightAngles
    @RightAngles

    She should be instantly disqualified for not being able to say what a woman is. For petes sake.  It makes you wonder what she’d do with any legal language she comes across. What a joke.

    • #4
  5. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    kedavis (View Comment):

    Full Size Tabby: If a document can have a different meaning today than it did when it was written,

    “For my money” as the saying goes, any judge who claimed this should be immediately disqualified.

    It would for my money, too, but many do not. So a nominee who believes this should not hesitate to say so. Then we can discuss why the rule of law can’t survive if that’s true. 

    • #5
  6. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    Joker (View Comment):

    I think when KBJ evades a question, its safe to assume the worst because she can give a straightforward answer if she wants to. She is obviously articulate enough to give a clear answer, but chooses not to. So when asked for the definition of a woman or whether, even though she’s heard arguments on both sides, she has no opinion. And no answer that she gives would sway a single Democrat senator from confirming her.

     

    That is certainly my assumption with respect to her failure to explain her judicial philosophy. 

    • #6
  7. kedavis Inactive
    kedavis
    @kedavis

    I sent a message to Ted Cruz’s DC office, maybe it will get somewhere.

    • #7
  8. Unsk Member
    Unsk
    @Unsk

    Asking about her horrendous ideas on pedophilia crimes and whether she can define a woman is all well and good, but in this time of a direct assault on virtually all our freedoms and the checks and balances of our Constitution, shouldn’t the questioning  of KBJ be of a more fundamental nature? Some may say I am wrong, but I think there needs to be an in depth discussion at this hearing of the many gross abuses that our government and their proxies have used to cripple and destroy many innocent Americans for political purposes.  Here are just a few of the many Constitutional rights and protections  that have been purposely crippled in an effort to destroy our Constitutional Republic:

    • Our Supreme Court has presided over a period where our Justice system has developed a decidedly unconstitutional “two tier” system of Justice where the Left is given wrist slaps for the most heinous of crimes while the Right has members who are languishing in jail for over a year on misdemeanor charges where the accused is not even allowed to see the evidence the State has against them. Essentially the Rule of Law is under direct assault.  Whatever happened to “Equal Justice under the law” or the “Equal Protection Clause”?

    • The current Administration has charged with people with serious seditious crimes for simply stating their opinion. Our Right to Free Speech is under assault by so many facets of our government is hard to keep track of them all.

    • This Court has enshrined the Administrative State and given it wide ranging powers superior to that of the President or Congress, in a gross abomination of Constitutional  law. The heinous behavior of Dr Fauci, the CDC, FDA and NIH were all done under the auspices of Administration State law that violates directly Article 1, Section 1 of the Constitution.

    • Just over a year  ago the Supreme Court refused to hear the  Trump election fraud case, deeming it does not have “standing”.  Except that “standing ” is not a Constitutional concept  and should not in anyway be discussed by this Court or used to determine the outcome of a case; it is nowhere to be found in the Constitution, and that case in some way  was perhaps the most important case to come before the Supreme Court ever because the fraudulent acts of the last Presidential election if allowed to continue will certainly doom our Democracy.

    • Discrimination based on race, ethnicity and religion are rampant throughout our government and it ‘s favored Corporate entities, as are now discrimination based upon political views.

    I could on and on because there are many problems with our Justice systems and our courts right now, but part of the real problem is that the politicians we elected to protect no longer are willing to do that and are seemingly bought off by the forces of evil.

    • #8
  9. kedavis Inactive
    kedavis
    @kedavis

    Unsk (View Comment):

    Asking about her horrendous ideas on pedophilia crimes and whether she can define a woman is all well and good, but in this time of a direct assault on virtually all our freedoms and the checks and balances of our Constitution, shouldn’t the questioning of KBJ be of a more fundamental nature? Some may say I am wrong, but I think there needs to be an in depth discussion at this hearing of the many gross abuses that our government and their proxies have used to cripple many innocent Americans. Here are just a few of the many Constitutional rights and protections that have been purposely crippled in an effort to destroy our Constitutional Republic:

    • Our Supreme Court has presided over a period where our Justice system has developed a decidedly unconstitutional “two tier” system of Justice where the Left is given wrist slaps for the most heinous of crimes while the Right has members who are languishing in jail for over a year on misdemeanor charges where the accused is not even allowed to see the evidence the State has against them. Essentially the Rule of Law is under direct assault. Whatever happened to “Equal Justice under the law” or the “Equal Protection Clause”?

    • The current Administration has charged with people with serious seditious crimes for simply stating their opinion. Our Right to Free Speech is under assault by so many facets of our government is hard to keep track of them all.

    • This Court has enshrined the Administrative State and given it wide ranging powers superior to that of the President or Congress, in a gross abomination of Constitutional law. The heinous behavior of Dr Fauci, the CDC, FDA and NIH were all done under the auspices of Administration State law that violates directly Article 1, Section 1 of the Constitution.

    • Just over a year ago the Supreme Court refused to hear the Trump election fraud case, deeming it does not have “standing”. Except that “standing ” is not a Constitutional concept and should not in anyway be discussed by this Court or used to determine the outcome of a case; it is nowhere to be found in the Constitution, and that case in some way was perhaps the most important case to come before the Supreme Court ever because the fraudulent acts of the last Presidential election if allowed to continue will certainly doom our Democracy.

    • Discrimination based on race, ethnicity and religion are rampant throughout our government and it ‘s favored Corporate entities, as are now discrimination based upon political views.

    I could on and on because there are many problems with our Justice systems and our courts right now, but part of the real problem is that the politicians we elected to protect no longer are willing to do that and are seemingly bought off by the forces of evil.

    Since all of those are current issues which may come (again) before the court, I expect she would refuse to answer.

    • #9
  10. kedavis Inactive
    kedavis
    @kedavis

    Unsk (View Comment):
    Just over a year  ago the Supreme Court refused to hear the  Trump election fraud case, deeming it does not have “standing”.  Except that “standing ” is not a Constitutional concept  and should not in anyway be discussed by this Court or used to determine the outcome of a case; it is nowhere to be found in the Constitution, and that case in some way  was perhaps the most important case to come before the Supreme Court ever because the fraudulent acts of the last Presidential election if allowed to continue will certainly doom our Democracy.

    And as I recall, the Constitution specifies that the Supreme Court is exactly where disputes between the states are supposed to go.

    • #10
  11. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    kedavis (View Comment):

    Unsk (View Comment):

    Asking about her horrendous ideas on pedophilia crimes and whether she can define a woman is all well and good, but in this time of a direct assault on virtually all our freedoms and the checks and balances of our Constitution, shouldn’t the questioning of KBJ be of a more fundamental nature? Some may say I am wrong, but I think there needs to be an in depth discussion at this hearing of the many gross abuses that our government and their proxies have used to cripple many innocent Americans. Here are just a few of the many Constitutional rights and protections that have been purposely crippled in an effort to destroy our Constitutional Republic:

    • . . . 

    I could on and on because there are many problems with our Justice systems and our courts right now, but part of the real problem is that the politicians we elected to protect no longer are willing to do that and are seemingly bought off by the forces of evil.

    Since all of those are current issues which may come (again) before the court, I expect she would refuse to answer.

    Also the Left is very practiced at denying any of what we see happening has occurred, or if they acknowledge it has occurred, either evading responsibility for its occurrence or blaming “conservatives” for it. So directly attacking them on the failures of the legal system is not likely to produce useful answers. 

    • #11
  12. The Reticulator Member
    The Reticulator
    @TheReticulator

    kedavis (View Comment):
    Since all of those are current issues which may come (again) before the court, I expect she would refuse to answer.

    She should be given the opportunity to refuse. But the questions can be framed in more general terms than the specifics of the cases that are likely to come before the court. 

    • #12
  13. Unsk Member
    Unsk
    @Unsk

    Reticular: She should be given the opportunity to refuse. But the questions can be framed in more general terms than the specifics of the cases that are likely to come before the court. 

    Exactly.  Those who refuse to ask the tough questions are allowing the Left to control the discussion.

    • #13
  14. kedavis Inactive
    kedavis
    @kedavis

    The Reticulator (View Comment):

    kedavis (View Comment):
    Since all of those are current issues which may come (again) before the court, I expect she would refuse to answer.

    She should be given the opportunity to refuse. But the questions can be framed in more general terms than the specifics of the cases that are likely to come before the court.

    You mean like asking about her judicial philosophy?  Didn’t she refuse to answer those questions already too?

    • #14
  15. The Reticulator Member
    The Reticulator
    @TheReticulator

    kedavis (View Comment):

    The Reticulator (View Comment):

    kedavis (View Comment):
    Since all of those are current issues which may come (again) before the court, I expect she would refuse to answer.

    She should be given the opportunity to refuse. But the questions can be framed in more general terms than the specifics of the cases that are likely to come before the court.

    You mean like asking about her judicial philosophy? Didn’t she refuse to answer those questions already too?

    I don’t know what she does. I rely on Ricochet for that information.  But I was thinking of something a little more specific than judicial philosophy without getting into specific cases. If anyone could come up with good questions, Ted Cruz probably could. I don’t know that he would, though.

    • #15
  16. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    kedavis (View Comment):

    The Reticulator (View Comment):

    kedavis (View Comment):
    Since all of those are current issues which may come (again) before the court, I expect she would refuse to answer.

    She should be given the opportunity to refuse. But the questions can be framed in more general terms than the specifics of the cases that are likely to come before the court.

    You mean like asking about her judicial philosophy? Didn’t she refuse to answer those questions already too?

    She has continued to refuse to answer questions about how she makes decisions. All she did Wednesday is repeat the most anodyne of platitudes about “fair” and “neutral.” That she will not answer should prompt bipartisan opposition to her nomination, as if we take her at her word, she is not intellectually ready to take on the role of justice of the U.S. Supreme Court (not really ready for the court of appeals role she currently occupies either, but it’s too late to fix that). 

    • #16
  17. RightAngles Member
    RightAngles
    @RightAngles

    • #17
  18. The Reticulator Member
    The Reticulator
    @TheReticulator

    RightAngles (View Comment):

    I hope that’s not a quote from the SC nominee. 

    • #18
  19. Hank from the Internet Contributor
    Hank from the Internet
    @HankRhody

    Full Size Tabby: I think questions of this type would be much more useful in discerning a nominee’s “judicial philosophy” than the subject-specific questions typically thrown out today.

    I think you’re right, except for one thing. I don’t think the left is nominating a justice, I think they’re nominating a super-legislator. I think that her judicial philosophy is ‘whatever the left wants goes’, and that this is exactly why the administration nominated her. Which means the senators aren’t asking her questions to determine what her philosophy is (because it’ll be different when a fresh cause needs it to be different next week), but to highlight just what kind of super-legislator the general public will be getting should this nomination go through. 

    Seems almost suspiciously competent for a senator, I know.

    I could come up with all kinds of clever questions to ask my mechanic which won’t give me any useful results because the reason my car isn’t moving is Joe Biden’s gas prices. You have to know what problem you’re trying to solve.

    • #19
  20. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    Hank from the Internet (View Comment):

    Full Size Tabby: I think questions of this type would be much more useful in discerning a nominee’s “judicial philosophy” than the subject-specific questions typically thrown out today.

    I think you’re right, except for one thing. I don’t think the left is nominating a justice, I think they’re nominating a super-legislator. I think that her judicial philosophy is ‘whatever the left wants goes’, and that this is exactly why the administration nominated her. Which means the senators aren’t asking her questions to determine what her philosophy is (because it’ll be different when a fresh cause needs it to be different next week), but to highlight just what kind of super-legislator the general public will be getting should this nomination go through.

    Seems almost suspiciously competent for a senator, I know.

    I could come up with all kinds of clever questions to ask my mechanic which won’t give me any useful results because the reason my car isn’t moving is Joe Biden’s gas prices. You have to know what problem you’re trying to solve.

    I keep hoping though that there are enough Senators who still hold (either for principle or for fear of voters, even Democrats) that the Supreme Court should not be a super-legislature despite the desires of the people pushing the nominee, and that good questions will reveal the super-legislator intent of the nominee, that those Senators would vote the nomination down. 

    • #20
  21. Al Sparks Thatcher
    Al Sparks
    @AlSparks

    The last Supreme Court nominee to answer questions in a forthright manner was Robert Bork.  The game of cat and mouse before the Senate Judiciary Committee has been baked in ever since.

    While other senators have participated in the charade, the two worst and most flamboyant have been Cory Booker and Ted Cruz, both of whom display presidential ambitions.

    You don’t get approved for a Supreme Court seat by being honest and direct, as the Bork nomination shows.

    If you want these charades to end, you have to take power away from the federal judiciary, which would lower the stakes.  Congress has that constitutional power, since it gives that branch the ability to limit the judiciary’s scope.

    • #21
  22. kedavis Inactive
    kedavis
    @kedavis

    Al Sparks (View Comment):
    Congress has that constitutional power, since it gives that branch the ability to limit the judiciary’s scope.

    And if courts decide that Congress doesn’t, would Congress have the guts to perp-walk the judge(s) into a cell for Contempt of Congress?

    • #22
  23. Al Sparks Thatcher
    Al Sparks
    @AlSparks

    kedavis (View Comment):

    Al Sparks (View Comment):
    Congress has that constitutional power, since it gives that branch the ability to limit the judiciary’s scope.

    And if courts decide that Congress doesn’t, would Congress have the guts to perp-walk the judge(s) into a cell for Contempt of Congress?

    It would take the support of the exectutive.  Congress overwriting a veto would be a non-starter (unless Congress actually removed judges using it’s impeachment power).

    With both the executive and legislative on the same page, rulings by the judiciary would simply be ignored if they went beyond the bounds Congress has set.

    • #23
  24. Ontheleftcoast Inactive
    Ontheleftcoast
    @Ontheleftcoast

    Unsk (View Comment):

    . . .Here are just a few of the many Constitutional rights and protections that have been purposely crippled in an effort to destroy our Constitutional Republic:

    • Our Supreme Court has presided over a period where our Justice system has developed a decidedly unconstitutional “two tier” system of Justice where the Left is given wrist slaps for the most heinous of crimes while the Right has members who are languishing in jail for over a year on misdemeanor charges where the accused is not even allowed to see the evidence the State has against them. Essentially the Rule of Law is under direct assault. Whatever happened to “Equal Justice under the law” or the “Equal Protection Clause”?

    • The current Administration has charged with people with serious seditious crimes for simply stating their opinion. Our Right to Free Speech is under assault by so many facets of our government is hard to keep track of them all.

    • This Court has enshrined the Administrative State and given it wide ranging powers superior to that of the President or Congress, in a gross abomination of Constitutional law. The heinous behavior of Dr Fauci, the CDC, FDA and NIH were all done under the auspices of Administration State law that violates directly Article 1, Section 1 of the Constitution.

    • Just over a year ago the Supreme Court refused to hear the Trump election fraud case, deeming it does not have “standing”. Except that “standing ” is not a Constitutional concept and should not in anyway be discussed by this Court or used to determine the outcome of a case; it is nowhere to be found in the Constitution, and that case in some way was perhaps the most important case to come before the Supreme Court ever because the fraudulent acts of the last Presidential election if allowed to continue will certainly doom our Democracy.

    • Discrimination based on race, ethnicity and religion are rampant throughout our government and it ‘s favored Corporate entities, as are now discrimination based upon political views.

    I could on and on because there are many problems with our Justice systems and our courts right now, but part of the real problem is that the politicians we elected to protect no longer are willing to do that and are seemingly bought off by the forces of evil.

    The views she holds are mainstream in academia, particularly in “elite” institutions. The “elites” are at war with the American middle class and the institutions that have sustained it.  The “elites” are leading the charge in crippling our rights and protections, and their classmates staff the NYT and the rest of the organs of mass disinformation. Those “constitutional protections?” They’re in the way of Total Transformation.

    • #24
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