A Guide to Supreme Court Vacancies for GOP Candidates

"Reject clichéd calls for 'judicial restraint'"

Credit: C-SPAN

In the latest issue of The Weekly Standard, libertarian law professors Randy Barnett and Josh Blackman have a piece titled "The Next Justices: A guide for GOP candidates on how to fill Court vacancies." In brief, Barnett and Blackman advise the current crop of Republican presidential hopefuls on how to avoid repeating the judicial disappointments of the past by nominating genuine "constitutional conservatives" to the bench. It's a very interesting article and well worth your attention. Here's a snippet:

Reject clichéd calls for 'judicial restraint'

…In National Federation of Independent Business v. Sebelius, Chief Justice Roberts found that Obamacare's individual mandate exceeded Congress's powers under the commerce clause. But he didn't stop there. After finding the law Congress wrote was unconstitutional, the chief justice then employed a "saving construction" to rewrite the mandate so he could uphold it as a tax. This he did in the name of judicial restraint and deference to Congress….

"Judicial restraint" and "deference to the legislature" are easily manipulable concepts that distract attention from what really should matter to any constitutionally conservative voter or president: Who has the fortitude to follow the Constitution wherever it may lead and let the chips fall where they may? Any judicial nominee can claim he or she will be "restrained" or "deferential" but what exactly do they think "restrains" them? The popularly elected Congress, or the popularly enacted Constitution? Invocations of "restraint" and "deference" are designed to avoid this crucial issue. The same goes for deference to the executive and its administrative agencies.

Presidential candidates should reject the vapid labels of "restraint" and "legislating from the bench" and focus instead on what a prospective nominee's proven track record and paper trail (see above) say about his or her constitutional philosophy. The heart of the inquiry should be whether the nominee is willing to engage and enforce the Constitution against the other branches, not whether they can parrot clichés about "strict constructionism" or "calling balls and strikes" during a confirmation hearing.

Read the whole thing here.

Related: John Roberts' Judicial Abdication

Comments

[Fist of Etiquette]

Any judicial nominee can claim he or she will be "restrained" or "deferential" but what exactly do they think "restrains" them?

Cocktail party invites?

[Corning]

Totally not staglfation

"This means that on an inflation adjusted basis, 82% of the US population can't even keep up with inflation!"

http://www.zerohedge.com/news/.....sing-wages

[Jordan]

Green shoots! Recovery summer!

[Almanian Bridges, Not Walls]

REMAIN CALM!! ALL IS WELL!

[WTF]

Recovery Summer VI: The Miracle Continues!

[sarcasmic]

Checks and balances are so quaint. I mean, they're like supposed to slow down government and stuff, when in this modern age we need government to solve problems quickly. It can't if it is restrained by old fashioned judges who actually read that old piece of parchment written by white slave owners. It's totally outdated. The old people who wrote it couldn't have conceived of the world we live in today. Things have changed. We can't have courts tossing out legislation just because it violates some old document that nobody except bitter clingers cares about. I mean, if we're going to follow the Constitution then lets bring back slavery and take away women's right to vote (which is what Republicans and libertarians really want).

[Almanian Bridges, Not Walls]

The old people who wrote it couldn't have conceived of the world we live in today.

Many in their 30's and 40's (excepting oldsters like Franklin, of course), unlike the fucking geriatric pricks we have in most "leadership" positions these days. Obama at 53, 54 is a youngster in comparison! But the dudes who wrote that old piece of paper (cause they were ALL dudes) - mostly they were just old FASHIONED, with their slaves and Enlightenment and powdered wigs and women-not-votin' and stuff.

[sarcasmic]

Oh I know that. But most people only see the paintings of them when they were old, and assume they were always old.

[Loki]

most people only see the paintings of them when they were old, and assume they were always old are fucking dipshits.

FTFY.

[Derpetologist]

OT: idiot/liar says ISIS does not represent Islam

http://www.cnn.com/2015/09/01/.....m-message/

"...ISIS has been forcing ethnic Yazidi women into sexual slavery, a practice it says is rooted in historic precedence. Such a claim is absurd and false..."

Liar! Mohamed himself took women as sex slaves and allowed his followers to do the same.

Rayhana was originally a member of the Banu Nadir tribe who married a man from the Banu Qurayza. After the Banu Qurayza were defeated by the armies of Muhammad in the Siege of the Banu Qurayza neighborhood, Rayhana was among those enslaved, while the men were executed for treason.

According to Ibn Ishaq, Muhammad took her as a maiden slave and offered her the status of becoming his wife if she accepted Islam, but she refused. According to his account, even though Rayhana is said to have later converted to Islam, she died as a slave.

https://en.wikipedia.org/wiki/Rayhana_bint_Zayd

Slavery & Sex Slavery in the Qur'an:

https://en.wikipedia.org/wiki/Ma_malakat_aymanukum

[Derpetologist]

Islam should be seen as a breath of fresh air, a refuge from war and persecution, whether at the hands of religious or secular rulers. Unless pundits and politicians stop giving ISIS so much attention, then efforts to share this message will be undermined.

WHAT?!

Problem: ISIS makes Islam look bad
Solution: Stop talking about ISIS

By the way, the ISIS theme song was voted as the best Arabic song of 2014 at the Arabic Music Festival in Doha. ISIS is not happy as they consider music festivals to be un-Islamic.

[Heroic Mulatto]

the ISIS theme song

Are you talking about Salil Sawarim (Clashing of Swords)?

[Derpetologist]

Yes. They have their music production group called Al Ajnad.

http://www.memri.org/report/en...../8701.htm#

[WTF]

Why am I hearing the theme song for "Archer" in my head?

[Heroic Mulatto]

Stop "Islamsplaining", dude!

[Francisco d'Anconia]

Didn't Christians have slaves in the US a while back?

Fucking Christians!

*runs*

[Derpetologist]

Funny, I found an article that had the same line of thinking: ISIS is bad, but we must remember other people did bad things too, herp herp herpa derp.

http://www.cnn.com/2015/02/03/.....hy-brutal/

Of course, ISIS is not the first organization to use barbarism as a weapon of war; to use cruelty as a method of policy enforcement. In the Middle Ages, the Inquisition, an institutionalized effort to root out heresy and strengthen the hold of the Catholic Church and its allies, made it well known that those who did not fully comply with its wishes would suffer unspeakable punishments, from torture to being burned alive.

Thanks, Captain Obvious! That really needs to be said!

[Heroic Mulatto]

There have been a huge amount of terrible Op-Eds lately on all things ISIS. The "Islamsplaining" guy wrote one for CNN which, correctly in my opinion, bemoans the hypocrisy of the wealthy Gulf states refusing to accept any refugees while adopting a posture of piety.

Of course, Moghul deemed it necessary to insert a two paragraph rant about the devil state of Israel in the middle of the article, buttressed to the main argument by rhetorical bubble-gum and cardboard.

[Derpetologist]

In other ISIS news, their Egyptian branch in the Sinai is kicking the crap out of the Egyptian army:
https://videopress.com/v/VQfLWWMJ

And a Dutch Air Force member recently defected to ISIS. I hope he doesn't pass on any knowledge that will help them shoot down Dutch planes.

http://www.cnn.com/2015/09/03/.....ch-airman/

[Free Society]

I don't think it's fair to call him "Dutch". Things are getting a little multicutli

[Ken Shultz]

I don't know why it's important for you to slag Islam and ISIS, but showing that Muhammad offered a conquered woman the chance to escape slavery probably isn't a great example of forcing her into slavery. Looks to me like he went out of his way to...

Also, just because she ended up both a slave and a Muslim doesn't necessarily mean she was a sex slave, does it? Or that the Quran specifically endorses sexual slavery?

I don't know. It just seems to me that if you want to slag ISIS, there's so much low hanging fruit out there. There's plenty to slag Islam about, too. Why not go after some real issues?

Did you know that some of the earliest mosques point to Jerusalem rather than Mecca? Some people say that was a miscalculation. Others say Islam originated as a sect of messianic Jews and Christians who allied themselves with Arabs that were already monotheist.

http://www.nybooks.com/article.....ew/?page=1

Either way, ISIS is evil because of all the awful things they do--not because of what Mohamed did or didn't do centuries ago--and fighting a religion embraced by 1.5 billion people is stupid.

I don't really care what other people believe. I just care that they don't violate each other's rights. The world would be a much better place for Muslims if they embraced libertarian ideas, and there isn't any need for them to abandon Islam in order to embrace libertarian ideas. So, why make problems out of non-issues?

[Derpetologist]

Dude, Mohamed enslaved her in the first place! He and his gang also killed all her male adult relatives. Buying someone a crutch after you break their leg is not generosity. This is important because it is the reason why ISIS is doing it today. They cite the example of Mohamed. And the Qur'an does specifically endorse sex slavery.

"...fighting a religion embraced by 1.5 billion people is stupid."

You forgot to mention the Crusades and the other retarded talking points.

[Ken Shultz]

"Dude, Mohamed enslaved her in the first place! He and his gang also killed all her male adult relatives."

Conquering means you kill the men and enslave the women. That's been pretty standard practice throughout human history--everywhere in the world. According to your telling, he offered to spare her that slavery, and when she refused, he apparently didn't force himself on her. And she eventually converted to Islam anyway?

I don't know. Maybe the guy that owned her as a slave forced her to convert. Regardless, Mohamed offering to save what amounted to spoils from slavery by marrying her, and Mohamed subsequently respecting her rejection of him does not seem like a good example of Mohamed being supportive of sex slavery to me.

"This is important because it is the reason why ISIS is doing it today. They cite the example of Mohamed."

Just because they rationalize what they're doing by citing Mohamed doesn't mean their rationalizations are correct. Should we believe everything else they say or just this one thing?

P.S. The Cristian Identity movement cites Jesus's as their rationalization, too. So what, right?

[Ken Shultz]

I mean, is it wrong to think that ISIS' interpretation of the hadith might be incorrect?

[Derpetologist]

"According to your telling, he offered to spare her that slavery, and when she refused, he apparently didn't force himself on her."

First, it's not my telling. Second, the story is Mohamed TOOK HER AS A SEX SLAVE then offered to let her be his wife if she converted. Mohamed broke that promise because she did convert, but never became his wife:

According to Ibn Ishaq, Muhammad took her as a maiden slave and offered her the status of becoming his wife if she accepted Islam, but she refused. According to his account, even though Rayhana is said to have later converted to Islam, she died as a slave.

https://en.wikipedia.org/wiki/Rayhana_bint_Zayd

There's nothing to interpret. Mohamed specifically said in the Qur'an that his warriors could enslave any unmarried woman they captured.

In a similar way, the reason ISIS and similar groups destroy pagan temples and statues is because that's what Mohamed did. When he captured Mecca, he ordered the destruction of all the pagan idols in the Kaaba shrine.

Muslims generally regard Mohamed as THE example of correct conduct: they call him al insan al kamil, which means "the perfect person".

[Ken Shultz]

"According to Ibn Ishaq, Muhammad took her as a maiden slave and offered her the status of becoming his wife if she accepted Islam, but she refused. According to his account, even though Rayhana is said to have later converted to Islam, she died as a slave."

This doesn't say anything about sex slavery or Mohamed endorsing sex slavery.

If ISIS is using that hadith to justify sex slavery, then ISIS is wrong--which shouldn't be surprising to anybody. They seem to be wrong about practically everything.

And why endorse ISIS' interpretation anyway? Why do you want Islam to be about sex slavery? Isn't it better to challenge them on that?

There isn't any attack on ISIS I would support or attack I would oppose--just because of their interpretation of the hadith on sex slavery. If attacking them is a good idea, it's a good idea regardless of how they interpret the hadith, and if attacking ISIS is a bad idea, it's a bad idea regardless of how ISIS interprets the hadith.

Jesus Christ, the foreign policy of the United States should never be to change people's religion. I shudder to think what those who think otherwise would support doing here at home to rid our country of racism. Strategic bombing? Drone strikes? You're not proposing we use the U.S. military to change people's religious beliefs, are you?

[Derpetologist]

"This doesn't say anything about sex slavery or Mohamed endorsing sex slavery."

Yes it does. The term maiden slave refers to female sex slaves.

According to Muslim theologians, it is lawful for male masters to have sexual relations with female captives and slaves.[52] The purchase of female slaves for sex was lawful from the perspective of Islamic law, and this was the most common motive for the purchase of slaves throughout Islamic history.[53]

link

Sex slavery IS part of Islam.

"...the foreign policy of the United States should never be to change people's religion."

I do not recall saying that it should be. I am saying that we ought to be honest about what Islam teaches.

"You're not proposing we use the U.S. military to change people's religious beliefs, are you?"

[sigh] It is impossible to wake a man who is pretending to be asleep.

Fine, Ken. Keep believing that Islam is a great religion recently hijacked by extremists who pervert its noble teachings and take the Qur'an out of context. You'll have plenty of company.

[Ken Shultz]

"Yes it does. The term maiden slave refers to female sex slaves."

"Maiden", translated from anything, typically refers to young girls (read virgins).

What you're describing sounds like Mohamed tried to save that girl from being sold into slavery and being brutalized by someone else--if anything.

This is like reading about an abolitionist movement in the 1850s raising money to buy some runaway slave's daughter from her owner--and denouncing them for it.

This is telling people a whole lot more about your state of mind in regards to Islam than it is telling anybody anything interesting or factual about Mohamed or Islam.

If Mohamed bought her himself as a slave and kept her as part of his household--despite her rejecting him as a husband--then that doesn't mean he was an evil bastard (or that he was recommending sex slavery for Muslims). It seems to me that he was being magnanimous. Even after she rejected him, he took her in and protected her as part of his own household anyway?

What a nice guy! If only ISIS treated defenseless young girls half as well.

Most people would have just left her to be sold off to the highest bidder--and I bet the whorehouses paid a premium for virgins. But not Mohamed. I guess we should all try to be more like Mohamed in the way we treat women--is that what you're saying?

[Ken Shultz]

"I guess we should all try to be more like Mohamed in the way we treat women--is that what you're saying?"

Mohamed treated this slave girl so well, she eventually converted to Islam of her own free will--isn't that what this hadith is saying?

[Derpetologist]

You're really bending over backwards to defend an evil man.

[Derpetologist]

Mohamed didn't buy her. He captured her in war after killing her adult male relatives.

Earth to Ken: this is not nice behavior!

Mohamed was not any more noble than Genghis Khan. He was just another bloodthirsty warlord.

[John]

They need to come out against the Ivy League conlaw priesthood and promise to nominate someone who has experience either in government or as a practicing attorney. I suppose it would be too much to hope that one of them promise to put someone from the defense bar on there. They could at least however make the case that we are not well served by having nine justices who have virtually no experience outside of academia and the appellate bench.

It is really appalling how similar the nine are. They are all form the east coast. All grew up rich and went to the same or very similar schools. All worked as clerks for some judge and then moved on the DOJ or some political job then to be appointed to the bench. RBG was an attorney for women's groups and actually tried some cases and the Magic Latina was a trial judge. Outside of those two, their backgrounds and experience is virtually identical. And that has not served the country well.

[Derpetologist]

I move that the Supreme Court be replaced with a Magic 8 ball. The decisions would be just as unpredictable and no more time would be wasted on stupid confirmation hearings.

[John]

Try the cases before the Senate and decide them by a majority vote.

[Gilbert Martin]

Nominate Janice Rogers Brown to be appointed to the Supreme Court and watch the liberals all have a collective heart attack.

[Loki]

most people only see the paintings of them when they were old, and assume they were always old.

Clarence Thomas grew up rich? I don't think so.

[Loki]

What the shit? Copy/ paste fail. That should be:

All grew up rich and went to the same or very similar schools.

NEED MOAR CAFFEINE

[John]

Yeah. Good catch. Thomas is not the same as the other eight. My mistake.

[Almanian Bridges, Not Walls]

Well, yeah - he's black so...

/jk

[RBS]

My old evidence professor (a District Court Judge) use to argue that all appellate judges should have at least some experience as a trial judge.

[Apatheist ?_??]

Clarence Thomas grew up rich on the east coast?

[John]

I know. I meant the other 8. Thomas slipped my mind for some reason.

[John]

And one other thing, please never nominate anyone again who is known to have crafted their writing in law school to ensure it didn't hurt their future confirmation chances. That is a sign of a very weak and depraved character. Appointing justices with this sort of character hasn't worked out very well.

[Agile Cyborg]

Goddamn plate of White Castle chezburgers every single one lovingly creamed with a solid dollop of Sriracha sauce. Angel turds for my face, bitches.

[Ken Shultz]

"The heart of the inquiry should be whether the nominee is willing to engage and enforce the Constitution against the other branches, not whether they can parrot clich?s about "strict constructionism" or "calling balls and strikes" during a confirmation hearing."

Why not just come right out and talk about making abortion less of a nomination issue?

I'm looking for a used car. It needs to run well, get decent mileage, and it has to cost less than $1,000.

...and, oh yeah, it has to be painted yellow?

That last one's kind of a deal breaker if you care about finding all the other items on that list, right?

We raise the level of difficulty substantially by insisting both that a nominee's approach is one way--and that they come to the right conclusion on one single issue, too. Chances are, you're going to have to give up something substantial on the process side in order to get a nominee that's definitely on your side on one single issue--regardless of how he got there.

[John]

What is so wrong with abortion being an issue? We have really extreme laws about abortion that go against what the majority would prefer. The reason for this is the courts enforce this regime by striking down virtually any law that restricts abortion. That is kind of a big deal. Unless you like it that way, why would you not consider that important in a judge?

[Ken Shultz]

If you're choosing a nominee based on his or her process, then also giving them a litmus test on any one issue is likely to water down that nominee's suitability on the process side of the equation.

It would be the same on another issue. Again, if I select a car out of a database, and my first criteria is that the car has to be yellow, I am necessarily eliminating a large number of cars--many that might suit my other criteria better.

If your primary criteria is that you want a nominee who "is willing to engage and enforce the Constitution against the other branches", then you want someone who will do that regardless of the implications that may have on any one issue. On the other hand, if you select your nominee based primarily on how they land on issue x, then you're not as likely to get the judge whose primary feature is a willingness "to engage and enforce the Constitution against the other branches".

[John]

I would have some litmus tests. You never know what they are going to do. So, no process is perfect. I would however never consider anyone who didn't have a very expansive view of the 2nd Amendment and political free speech. I would never risk putting someone on the court whose views were not clear on those areas. For me at least, those things are too important to risk.

Given that, I can totally understand why someone who felt the same way about abortion would have a similar test for that issue.

[The Last American Hero]

Well after the court's ruling on gay marriage, we now have 2 issues to serve as a bizarre litmus test for Supreme Court nominations. See, when things move through the legislative/initiative/referendum process, the issues take longer to resolve, but they don't lead to kabuki theater when selecting Supreme Court nominees. When you resolve issues by judicial fiat, everyone gets to hold their collective breath because it can be flipped when the new guy is in charge.

Same thing for executive orders.

[Raven Nation]

Plus, you get justices approved who have the right position on cultural issues but are not absolutists on free speech.

[Jessy08]

"According to your telling, he offered to spare her that slavery, and when she refused, he apparently didn't force himself on her."

First, it's not my telling. Second, the story is Mohamed TOOK HER AS A SEX SLAVE then offered to let her be his wife if she converted. Mohamed broke that promise because she did convert, but never became his wife: