Sen. Durbin's Attack on the Federalist Society at the Kavanaugh Hearing Is Silly.

I hope the hearing gets more serious. So far the hooting and hollering from the audience have been embarrassing for the Democrats.

|The Volokh Conspiracy |

Today's Kavanaugh hearing appears to have descended into chaos. Amid the hooting and hollering is the accusation by Senator Durbin that Kavanaugh is the nominee of the Federalist Society. Untrue. But if it were true, I'd be happy about that (and Trump's detractors should be happy too). You'd be hard-pressed to come up with an organization that that tries harder to engage in free and fair debate. Don't take my word for it. I'm a member. Listen to the positive views of these left-of-center lawyers about this 65,000-member organization:

"For over a decade, I have been privileged to be involved in Federalist Society events, and it's a really interesting thing that they have seen fit to invite me even though I generally don't think like them on a lot of things, and the quality of the speakers and the free-for-all discussion is unparalleled, so it's really been a privilege."—Neal Katyal, Acting Solicitor General (Obama Administration).

"I think one thing your organization has definitely done is to contribute to free speech, free debate, and most importantly, public understanding of, awareness of, and appreciation of the Constitution. So that's a marvelous contribution, and … in a way I must say I'm jealous at how the Federalist has thrived a law schools."—Nadine Strossen, Professor of Law, New York Law School & Former President, American Civil Liberties Union.

"[T]he Federalist Society has brought to campus the commitment to real, honest, vigorous, and open discussion. It is a result of the works of the Federalist Society to create a wonderful environment for discussing social, political, legal and constitutional issues."—Paul Brest, Professor of Law & Former Dean, Stanford Law School.

The Federalist Society's programs are not held in secret; even Sen. Durbin is welcome. It is one of the most open organizations I have ever known. And it strives to include speakers from across the ideological spectrum in its panel discussions. I can recall only one occasion, in 2003, when I panel I was involved in was not balanced (only because the liberal speaker failed to show up). Although, as a speaker, I had already given my own view on the topic (which was a more conservative view), I spontaneously got up and gave the liberal point of view too, just to make sure that the Federalist Society maintained its tradition of presenting the many sides of each issue.

By contrast, the supposedly mainstream Association of American Law Schools is famous for having brought in over 20 speakers to discuss the then-recent passage of California's Proposition 209 (which prohibited discrimination or preferential treatment on the basis of race, sex, or ethnicity in public employment, public contracting and public education). Every last one of the speakers opposed the initiative; not a single supporter was invited to speak, despite the fact that several law professors who had worked on the campaign, including me, were present at the meeting.

NEXT: Global Tree Cover Has Expanded More Than 7 Percent Since 1982

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Durbin’s point is not about the Federalist Society events, but about the ideology of its members.

    Criticize him if you like, but at least try to understand his point. That’s important in a “free and fair debate.”

    1. Exactly! And ideology is the reason Garland isn’t on the Court. Perhaps it’s time to amend the Constitution to take ideology out of the equation in the appointment of SCOTUS justices?

      1. Perhaps it’s time to amend the Constitution to take ideology out of the equation in the appointment of SCOTUS justices?

        Riiiiight . If you could work that, you’d be lega scholar of the eon.

        1. Oh, that would be easy. But selecting Supreme court justices by lot would have its own downsides.

          1. I’m forced to agree with Brett here.

        2. It wouldn’t eliminate ideology completely, but eliminating the public committee hearings and giving every nominee an up/down vote from the full Senate would take a bite out of it.

        3. Alright, you guys think you are pretty smart … but Josh R said “appointment”, not confirmation. That’s what he’d get lawyer of the eon for.

          1. Then Josh has no idea what he’s talking about. Appointment happens AFTER confirmation and is largely a formality. Before confirmation, it’s just a nomination.

            1. Ah. Interesting distinction. I believe you are right.

              shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States

              Heh. Tried to get quibbly with a bunch of lawyers, did I?

              1. I’m not a lawyer.

            2. By “appointment”, I mean the entire process of nomination and confirmation.

        4. More accurately, a time traveler who could take us back to 1987 and Ted Kennedy is not allowed to sink the judicial nomination process into a circus and cesspool of political shenanigans.

          1. You’d have to go back quite a bit further than 1987 to find a time when the public confirmation hearings weren’t a circus and a cesspool of political shenanigans.

    2. But the appropriate response to that is: If you want nominees whose ideology you like, win elections. The party which currently controls the White House, both chambers of Congress, and the majority of state houses, happens to like the Federalist society.

      “How dare you nominate a Justice you like, rather than nominating a Justice we, the losers, like!”; It’s not a persuasive argument.

      Now, if he wants to identify something about the Federalist society’s ideology that is objectionable, he’s free to do so. But just identifying the nominee as somebody the Federalist society recommended? Tell us something we didn’t already know.

      1. In the case of Garland, controlling the White House wasn’t enough. That will come back to haunt Republicans in the future.

        1. Not doing it would have haunted them more. There really isn’t any point in avoiding irritating the scorpion, it’s going to sting you regardless.

          1. It sounds like you are supporting the idea that SCOTUS appointments should only occur when the same party controls both the White House and Senate.

            1. “It sounds like you are supporting the idea that SCOTUS appointments should only occur when the same party controls both the White House and Senate.”

              Should? Perhaps not. But this is the reality of the situation and it wasn’t brought to you strictly by the Republicans.

              Long term, it only benefits the Republicans because Democrat support is concentrated in fewer states. The GOP will have a built in advantage in the Senate for the foreseeable future. They ought to have factored this before Senator Reid triggered his own nuclear option.

          2. Not doing what? They could have had hearings and turned him out. Not having a vote will haunt Republicans.

            1. No, I agree that they should have had hearings, and turned him down. They were trying to be a bit tricky: By not holding the vote, they kept the nomination live, and if Hillary had won, probably would have attempted to confirm Garland in a flash, before the nomination could be withdrawn.

              He was being held as an insurance policy, so to speak. A dirty business, should have just voted him down, saying, “Sorry, too close to the election, let the next President have this one.”; Presidents should not really expect to fill important lifetime appointments when the vacancy happens in a Presidential election year, and the Senate is controlled by the opposing party. (Mind, lifetime appointments shouldn’t BE “important”, that’s the real problem here!)

              The only thing I disagree with you about, it the idea that there will be payback. It isn’t really “payback” if it’s going to happen anyway.

              1. “…before the nomination could be withdrawn.”

                If that was the strategy, that’s really stupid. I don’t think the Republicans are that stupid.

                “It isn’t really “payback” if it’s going to happen anyway.”

                The Democrats have never denied a vote to a Republican Presidential nominee. So it wasn’t certain they would do so until the Republicans went there.

                “Presidents should not really expect to fill important lifetime appointments when the vacancy happens in a Presidential election year…”

                Why? This is fucking stupid. Was the prior election not a real election? When you say “win elections” who do you think won the 2012 presidential election? The real reason Republicans created this new rule is because it was a replacement for Scalia and therefore was really important to Court political ideological makeup. It RBG had died, they’d have given Democrats a vote. Don’t piss on my leg and tell me it’s raining. You’re smarter than that.

                1. The Democrats have never denied a vote to a Republican Presidential nominee.

                  Tell it to Miguel Estrada.

                  1. Fair. I meant SCOTUS.

                    1. Fair. I meant SCOTUS.

                      See the Biden Rule.

                      And is it your position that the Democrats were willing to deny a vote to lower federal judicial nominations but they would not have done so to a Supreme Court nominee? The Washington Post described their record:

                      “According to a report by the Congressional Research Service (CRS), in 1992 Biden killed the nominations of 32 Bush appointees to the federal bench without giving them so much as a hearing. And that does not count an additional 20 nominations for the federal bench where Biden did not hold hearings that year, which CRS excluded from its count because they reached the Senate “within approximately [four] months before it adjourned.”

                    2. The Biden Rule is not a real rule adopted by Democrats, it did not involve categorically refusing to vote on a nominee, and it contemplated Democrats voting on a GHWB nominee during an election year.

                      My position is that Democrats would have had a vote on a Republican presidential nominee for SCOTUS, even if they didn’t like the nominee, as they did with Bork.

                2. “If that was the strategy, that’s really stupid. I don’t think the Republicans are that stupid.”

                  You know what the not so affectionate nickname Republicans have for their own party is? “The Stupid party”.

                3. “The Democrats have never denied a vote to a Republican Presidential nominee. So it wasn’t certain they would do so until the Republicans went there.”

                  Not only is this false, but even if….So what?

                  Or do you believe the Democrats are rightfully to be the ones to open new avenues of partisanship maneuvering? Are Republicans only supposed to follow suit strictly in the footsteps of the political moves of the Left?

                  A fun game for you, I suppose. Leftist entitlement knows no ends!

                  1. “Are Republicans only supposed to follow suit strictly in the footsteps of the political moves of the Left?”

                    No. They’re supposed to prove to the American public that they’re better than the Democrats, and by doing so destroy their opposition. I’m the one arguing that the Republican race to the bottom will haunt them, remember? They had the votes to say no to Garland. If they thought it was the right thing to do, why not just sell that position to the electorate?

              2. “before the nomination could be withdrawn.”

                Well, since after the confirmation vote there is a separate step of the President appointing the nominee, that would not have worked well. Garland could have received Advice and Consent, but then Obama could have just said “Nevermind” if he had wanted to. No need to race to withdraw the nomination.

        2. Bork, Bork, Bork.
          Bork?
          Bork!

          The wheel always turns.

          1. Bork got a vote. You fucking know that.

          2. Bork not only got a vote, he was rejected on the merits.

            1. What about Bork’s ‘merits’ did you find so objectionable?

              1. I was at most a toddler for Bork (when was that, ’84?), but did he disparage the 9th before or after his nomination was rejected?

                1. Before.

            2. Got to agree with you on that. There are no “inkblots” in the Bill of Rights, and nobody who thinks there are should be on the Supreme Court.

        3. “hat will come back to haunt Republicans in the future.”

          Maybe but we do politics in the present.

          The future will take care of itself.

      2. But the appropriate response to that is: If you want nominees whose ideology you like, win elections.

        Are you really saying it’s inappropriate for a Senator from the minority caucus to criticize a nominee on ideological grounds?

        No. It’s not.

        1. No, it’s perfectly appropriate. Unless they can make a case that the ideological ground is something significant and genuinely offensive, though, they shouldn’t expect the criticism to have any bite.

          But, just yelling “Federalist society!” isn’t an ideological criticism. It’s just attacking the nominee for being approved of by the other party.

          1. It’s perfectly appropriate now. Prior to 2001 it was not. I attended the senate hearings where Senator Schumer proposed that senators overtly consider the political leanings of nominees. Prior to that, they had to pretend that they weren’t.

    3. Which is still retarded. The Federalist Society doesn’t take a position on any issue whatsoever and does not support any candidates for office. Kavanaugh is not the Federalist Society’s candidate. Nobody is. He’s a candidate who was vetted by the White House and Trump campaign by people who are also Federalist Society members.

      1. “The Federalist Society doesn’t take a position on any issue whatsoever”

        OK, now THAT is a bit of a stretch. The Federalist society is famous for listening to opposing viewpoints, but that scarcely means they don’t have a viewpoint of their own.

        1. It’s not a stretch at all. The Federalist Society does not take positions on any issues. Go find me a single press release that gives a position on abortion or the unitary executive or disparate impact or anything else. Go find one that supports or codemns Citizens United or Carpenter. You can’t because they don’t do it. The Federalist Society has a broad and simple mission statement and let’s everyone debate any issue the sun. It’s the most unique organization I’ve ever seen (and no, I’m not a member). It’s also the strangest target for a boogeyman.

          In a world where the ACLU runs political attack ads and the Federalist Society won’t even take a position on eminent domain, it’s amazing that one is considered a hyper partisan organization and the other is the neutral defender of law.

          1. Josh beat me to it; Just the link I was going to provide.

      2. The Federalist Society describes itself as “a group of conservatives and libertarians” that believe “the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”

        That strikes me as very ideological. It also strikes me as no coincidence that applying this ideology has led to results on specific issues that conservatives and libertarians support.

        1. Everybody is an originalist about the law where they don’t have a strong reason to reject originalism, because “originalism” is just a restatement of how texts are normally interpreted when you have a disinterested desire to understand them.

          So it is only natural that, where they left abandons originalism, and the right sticks with it, you will find that originalism supports outcomes the right favors, and the left opposes. If the left didn’t oppose the outcome originalism dictated, they’d not have abandoned it.

          1. Brett,

            I think you substitute “left” for “right” and “right” for “left” and be equally correct.

            1. Of course that’s true, but since the left has won far more virtually irreversible SCOTUS victories than the right, the current interpretive alignment is pretty much exactly as you’d expect if you had a bunch of unprincipled shitheads on both sides.

              1. You may very well be correct, but I’d like to see the data on virtually irreversible SCOTUS victories.

          2. Everybody is an originalist about the law where they don’t have a strong reason to reject originalism

            And everyone is a “living Constitutionalist,” or some other flavor of non-originalist, where they don’t like the originalist outcome.

            The notion that one side is principled and the other isn’t is ridiculous.

            1. “And everyone is a “living Constitutionalist,” or some other flavor of non-originalist, where they don’t like the originalist outcome.”

              Every adulterer thinks everybody else cheats on their spouses, too. Virtue has no trouble admitting the existence of vice, but vice always denies virtue can every be real, because if it could be, what excuse does vice have?

              1. So your define of a virtuous interpretation is:

                “Agrees with what Bellmore thinks.” Is that right?

                1. There are parts of the Constitution I really dislike. (The 16th and 17th amendments, for instance.) Other parts I think strike an unwise balance between the states and federal government, or are structurally screwed up. (Routing the calling of constitutional conventions through Congress was a really stupid idea!)

                  I admit I don’t like them, I don’t “reinterpret” them.

                  If a jurist can’t admit there are parts of the Constitution they really don’t like, and, yes, they really do mean something enforceable that they don’t like, then they’re not honest jurists.

                  1. I don’t like the impairment clause, as it didn’t contemplate that states could be a party to contracts and thus leave no teeth to general sovereign immunity principles.

                  2. “Routing the calling of constitutional conventions through Congress was a really stupid idea!”

                    IMHO it was makes sense in light of the balance between the federal government and States when the House was the Peoples’ representative and the Senate was the States’ representative in Congress. However that was ripped apart by the 17th Amendment where the States no longer had representation in the Congress.

            2. This:

              And everyone is a “living Constitutionalist,” or some other flavor of non-originalist, where they don’t like the originalist outcome.

              translates to “no one is principled” and is (at least at the margins) incorrect. Principles are good. Some principled people exist, even if few are in power.

        2. I didn’t say it wasn’t idealogical. What I said was it doesn’t take a position on any legal issue or any candidate or nominee. What is the conservative and libertarian position on gay marriage? Abortion? What is member Jonathan Adler’s positon on climate change in relation to the organization? How about Somin’s on unitary executive? Or Heriot’s position on whether it’s appropriate to reclassify yourself as non-partisan for appointment to the Commission on Civil Rights?

          Perhaps you think there is no difference between an organization which says it generally a group of conservatives and libertarians and the ACS issuing statements condemning court decisions or the ACLU running attack ads against senate candidates. I think there is a hell of a difference.

          1. But broadly speaking, the members do have an ideology, which is what Durbin (and I) were referring to.

            If you consistently nominate Federalist Society members to judgeships you are going to get lots of conservative and libertarian judges.

            Why is it hard to admit that? Why doesn’t Heriot understand it?

            1. Don’t kid yourself. Durbin doesn’t know the Federalist Society doesn’t endorse candidates and neither did you.

            2. “But broadly speaking, the members do have an ideology, which is what Durbin (and I) were referring to.”

              Bullshit. If this were true, you wouldn’t keep describing them as conservative and libertarian.

            3. I never would have guessed that you were a “navel gazer” like Durbin.

          2. I think it is pretty clear where most of the Federalist Society members come down on the constitutionality of DOMAs and abortion bans, and the applicability of Chevron deference. Perhaps there is a legitimate split on some issues such as the unitary executive. But, that fact doesn’t detract from the claim that the Federalist Society is seeking a set of specific outcomes even if they don’t claim to be.

            1. “the constitutionality of DOMAs and abortion bans”

              And those positions are?

              1. Can’t you read? It’s pretty clear. Once you declare something pretty clear no further explanation is needed.

              2. Those positions are that both are constiturional. Duh.

          3. What is the conservative and libertarian position on gay marriage? Abortion?

            Typically, libertarians who are members of the Federalist Society personally believe that gay marriage and abortion should be a matter of personal choice. However, they also typically believe that the Constitution doesn’t speak to gay marriage or abortion. This is a position on a legal issue.

  2. Dems must be really pissed at Reid right now. If not for him, Garland would be on the court.

    1. That’s pretty speculative.

    2. What could Reid have done to get him on the Court?

      1. The filibuster largely prevented type of crap that we saw with the Garland nomination. It would have been alot more difficult to put of the vote, because the Dems would have had the means to retaliate.

        1. That doesn’t make any sense whatsoever. The Republicans controlled the senate in 2016. Any legislation they wanted passed would have to be able to survive an Obamacare veto.

          The only thing that makes even plausible sense is that the Republicans would not have one-upped the Democrats by not holding hearings on Garland if the Democrats hadn’t done the nuclear option to get rid of the filibuster on judicial and execution nominations. Which is, as I said, pretty speculative.

          1. Not sure why Obama autocorrected to Obamacare.

          2. All I’m saying is that, before the nuclear era, it didn’t make sense for a Senate to delay a confirmation until the presidency changed parties, because the minority party could simply retaliate by filibustering the new president’s nominees. That may be speculative, but it’s hard to dispute the timing. Garland was the first post-nuke SCOTUS nominee.

            1. How do you reconcile this theory with the fact that the senate had been doing that for a good 25 years before Garland? Albeit district court and circuit court seats, but they did indeed do it. Which led to filibusters under GWB and threatened nuclear option and then Filibusters under Obama with completed nuclear option and the actual filibuster under Trump which led to nuclear option 2, electric boogaloo.

              1. Reconcile? It sounds pretty consistent. With an intact filibuster, the Dems could have prevented the Gorsuch confirmation, which would have removed the incentive to delay the Garland confirmation.

                1. Which could (would?) have led to the Republicans blocking Garland and then using the nuclear option to get Gorsuch on board.

                  Perhaps I’m living on a different planet, but I’ve yet to hear any Democrats or mainstream pundits say that blocking Garland was a logical one-upsmanship response to the nuclear option. So when the commentary on the Garland block is “look what the Republicans did” and the commentary on the nuclear option was “look what the Republicans made us do,” I have a hard time saying the Republicans would have confirmed Garland to Scalia’s seat out of principle or not wanting to look like the bad the guys.

                  1. “Which could (would?) have led to the Republicans blocking Garland…”

                    There’s no reason to think that the Republicans would have gone nuclear if the Dem’s hadn’t. There’s a reason it’s called the nuclear option.

                2. “…which would have removed the incentive to delay the Garland confirmation.”

                  The incentive to delay the Garland confirmation had nothing to do with the lack of a filibuster.

        2. Sure, the filibuster did give them more opportunities to threaten retaliation, but the fact is that, in 2016, the expectation was that after the election it would be the Republicans doing the filibustering. Which is why Democratic leaders were actually openly talking, that October, about how they’d abolish the filibuster entirely after they took power.

          The fact remains, it was the Democrats who started the ball rolling on abolishing the filibuster for lower court nominees, and they’d already stated their intent to abolish it for Supreme court nominees and legislation.

          “How dare you do to me what I said I was going to do to you!”; It isn’t a very moving complaint. You should be happy the Republican leadership have kept the filibuster around at all; They wouldn’t have, if they didn’t need an excuse for failing on issues where they’d never intended to deliver in the first place.

          1. The filibuster for SCOTUS nominees was gone the moment that Reid nuked it for lower court nominees. But the only way sinking Garland makes sense if there’s a chance that you have the Presidency and the Senate, and no filibuster.

            1. “The filibuster for SCOTUS nominees was gone the moment that Reid nuked it for lower court nominees.”

              This is so twisted. You think that because Reid (not alone) did away with the filibuster for lower court nominees in 2013, and Republicans took out the SCOTUS exception in 2017, that Democrats should be mad at Reid??? First of all, Democrats voted with him for simple majority on lower court nominees. Second, the SCOTUS filibuster was kept in place until Republicans took it out in 2017, after they’d already killed Garland. There wasn’t a SCOTUS nuclear option on the table when Garland was nominated. And since Republicans already controlled Congress, they could have invoked the nuclear option in 2016, just as they had in 2017.

              1. As Adler pointed out here at the time, the SCOTUS filibuster was gone as soon as Reid nuked it for lower court nominees. The Repubs publicly said that at the time. So the SCOTUS filibuster was off the table when Garland was nominated, and there was no reason to confirm Garland if there was a chance to confirm a Repub nominee after the election.

                1. So the SCOTUS filibuster was off the table when Garland was nominated

                  But a filibuster is an action taken by the minority party to thwart the will of the majority, and the Republicans were in the majority.

                  1. Sigh. As I explained, there would be no point to running out the clock on Garland if the filibuster were still there, since even if Trump won there’s no way he’s getting a cloture vote to put his guy in, after the Garland stunt. The Dems would have filibustered that seat until 2020 if they could have.

              2. It’s not twisted. You can debate the merits of the filibuster in general, but removing the filibuster for Supreme Court justices after it’s already been removed for lower court justices are different only in degree, not in kind. There’s no principled way to support the latter without the former.

                1. “There’s no principled way to support the latter without the former.”

                  Of course there is. Political norms had already failed for lower court nominees because nobody can get the electorate angry about them. It just became a pointless game of obstructionism with no win. SCOTUS seats are different because SCOTUS seats are more important, and the public gives a shit (or at least can be made to give a shit). And by “give a shit” I’m speaking relatively.

              3. I find it interesting that you don’t think that if the Democrats had won both the White House and the Senate in 2016 and a Republican minority filibustered Hillary’s SCOTUS nominations that the Democrats wouldn’t have immediately moved to kill the filibuster for SCOTUS nominations.

                Once Reid nuked the filibuster for lower court nominations, it was inevitable that the next time either party held both the White House and a Senate majority that the filibuster for SCOTUS nominations would be nuked the first time the majority threatened to filibuster a nominee.

                1. “I find it interesting that you don’t think that if the Democrats had won both the White House and the Senate in 2016 and a Republican minority filibustered…”

                  Why would the Republican minority filibuster? Wouldn’t that depend on the nominee? Before Gorsuch, the last actual filibuster was Abe Fortas on bipartisan grounds. The reason the Republicans had to do away with the filibuster is because they created the basis for it with their pointless race to the bottom.

  3. Reading the SCOTUSblog love blog and it’s driving me nuts. This is all 100% bullshit theatre. The only silver lining is that the senate got what it deserved by letting this devolve to this point.

    1. SCOTUSblog live blog?

      1. Yes. That’s what I meant. I’m I understand it’s kind of an awkward sentence (even when my fingers don’t mess up love and live) but I don’t know how else you’d reference it.

    2. The devolution to this point was inevitable, back when the Senate first decided to start holding public confirmation hearings all the way back in 1916. The public hearings where the Nominees are interviewed by the committee have NEVER been about anything other than political theater.

  4. Would someone please remind me why Prof. Heriot is a VC blogger?

    What legal or academic insight did she provide here?

    She linked to some goofy blog (which I did read some) and noticed it had a Blah Blah Blah entry, so you know, not the highest quality.

    Then she mentions an event from 15 years ago, so, um, relevancy…

    At least she doesn’t disappoint us in the consistency of her disappointing blogs.

    1. She gave a place to talk Kavanaugh without outright hijacking the guest blogger’s posts on stoicism. A little gratitude wouldn’t be the end of the world.

      1. You’re saying I should be grateful she didn’t write a brilliant blog?!?

    2. Doesn’t every self-respecting decent blogger have a space-wasting buffoon as a co-blogger? And VC’s got more than one decent blogger, so they need more than one space wasting buffoon co-blogger. You don’t expect Kerr and Volokh to share a buffoon, do you?

  5. Silly seems to be the nicest thing one can say about Democrat Senators on the Judiciary Committee. And, with respect to Dick Durbin, incredibly generous.

    1. Dan, does Chris Coons of Delaware seem silly to you?

    2. You want silly? The batshit loons on twitter are claiming that that the (non-white) gal behind him was throwing out a white power sign.

      1. They’ve dialed up the gain on their racism detectors so high, that they trigger on static.

        If they ever encountered actual racism, the things would probably explode in a shower of sparks.

      2. It is a truly sad situation where the Progressives’ projection has become delusion.

  6. “So far the hooting and hollering from the audience have been embarrassing for the Democrats.”

    From the perspective of rational adults this is correct. But I don’t think the democrats are embarrassed?I believe they see it as establishing their boba fides.

    1. “bona fides” obviously

      1. boba (as in bubbles) fides works too! 😉

      2. boba fides may be more where they are headed.

  7. The Federalist Society argument is a classic ad hominem logical fallacy. Kavanaugh is attacked by criticizing his supporters rather than by criticizing his positions. Of course, given the difficulty of nailing down the positions of these nominees, this approach is understandable.

  8. “You’d be hard-pressed to come up with an organization that that tries harder to engage in free and fair debate.”

    I wish that were true but when it comes to the Second Amendment the Federalist Society’s position is that when the US Supreme Court said that Open Carry is the right guaranteed by the Constitution and that concealed carry is not a right and can therefore be prohibited; what SCOTUS really said is that Open Carry can be banned in favor of concealed carry.

    Only a drug-addled mind or a pathological liar can claim that SCOTUS said Open Carry can be banned in favor of concealed carry.

    Fortunately, Judge Kavanaugh has already proven that he is neither in his dissent in Heller II in which he said that concealed carry is not a Second Amendment right as per the original Heller decision.

    1. No one has claimed that SCOTUS said that. I find Heller to be a very unpersuasive, unoriginalist opinion for many reasons. That said, I believe that the CONSTITUTION only requires that a person be allowed to bear arms. The “how” is not guaranteed.

      You have a right to march. You don’t have a right to march down any particular street.

      1. “No one has claimed that SCOTUS said that.”

        Are you high?

        Every one of the so-called gun-rights lawyers in the NRA and SAF concealed carry lawsuits has said that Open Carry can be banned in favor of concealed carry. Alan Beck, the lawyer in Young v. Hawaii also said that.

        I am the only one who has argued from the beginning that the Heller decision meant exactly what it said about Open Carry being the right guaranteed by the Constitution and concealed carry not being a right and can therefore be prohibited.

        “I believe that the CONSTITUTION only requires that a person be allowed to bear arms. The “how” is not guaranteed.”

        And you just said it, so you must be high.

        1. So you’ve jumped from ‘a couple lawyers involved in the case said it’ to ‘the court deciding the case said it’ to ‘the Federalist Society must believe it because they said the court said it’.

          Regardless of whether you’re right about the carry laws, you have some problems with attribution of those beliefs.

          And by the way, ‘a whole bunch of high-powered lawyers independently disagree with me on a point of law, you agree with them and not me, therefore you must be high’ is not a very compelling argument.

    2. “the Federalist Society’s position is that when the US Supreme Court said that Open Carry is the right guaranteed by the Constitution and that concealed carry is not a right and can therefore be prohibited; what SCOTUS really said is that Open Carry can be banned in favor of concealed carry.”

      Really curious where the Federalist Society took this position.

    3. “when the US Supreme Court said that Open Carry is the right guaranteed by the Constitution and that concealed carry is not a right and can therefore be prohibited; ”

      But, that’s not what they ruled. Perhaps they should have, but what they ruled was that “carry” was the right guaranteed by the Constitution. Not “open” carry.

  9. The Federalist Society may invite liberals to its debates, but it still only attempts to represent conservatives and libertarians exclusively and is certainly not in the business of or in anyway interested in getting more liberals confirmed to the bench. An excessive number of Federalist Society picks in general would be harmful to those who thought that the judiciary ought to serve Americans in general, not just those who are conservative and/or libertarian.

    The Federalist Society is not evil. But it is certainly what James Madison called a faction. As such, it is devoted to elevating its own views over the views of others. In fact, the Federalist Society admits as much about itself. “The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order.” (https://fedsoc.org/about-us) That statement implies that if you are not conservative or libertarian, the Federalist Society is NOT for you.

    The majority of the American public is neither conservative or libertarian. Just as the majority of the American public is not liberal. Federalist Society endorsed judges, when they proliferate in numbers that are too high, would result in a judiciary that was alienated from the public that it is supposed to serve. And needless to say, that if you are a liberal, you could expect a Federalist Society endorsed judge to be mainly hostile to your values and your way of life.

    1. Well said. Kavanagh and the other Federalist Society endorsed judges are good friends of the amoral dark money crowd that does not want the outcome of disputed cases to be a 50-50 proposition.

    2. “The majority of the American public is neither conservative or libertarian. Just as the majority of the American public is not liberal.”

      It depends on how you ask. If you ask if they want to be left alone from government, you get a majority of libertarians.

      If you ask if they want government benefits, you get a majority of liberals.

      If you ask what should be done about “those people”, you get conservative or progressive, depending on which “those people” you pick.

    3. David,
      I you can find this supposed endorsement of judges by the Federalist Society, please link us to it. Such an endorsement would be a violation of the Federalist Society’s rules. It’s been a rather glaring error in newspapers and otherwise that the Federalist Society approved, endorsed or created the nominee list. It’s a mistake that Senator Leahy is repeating in his opening statement, although not the one Professor Heriot is calling attention to.

  10. Not sure why the Federalist Society is a target all of a sudden, but the Daily on NPR spent a half an hour last night going over the history of it. And if you didn’t know much about the judiciary, you would have come out at then end thinking that most of the federal judges in the US are now members of some cabal bent on overturning Roe v Wade. And apparently the only reason Harriet Miers wasn’t confirmed as a Supreme Court justice was because “the Federalist Society didn’t know who she was,” no mention of the fact that she had no experience as a judge or that pretty much everyone else opposed her nomination. Nope, apparently it was just the Federalist Society that nixed her appointment.

Please to post comments

Comments are closed.