Supreme Court

Buttigieg and Sanders Clash Over the Supreme Court

Progressive purity tests and Supreme Court wish lists

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Presidential candidate Pete Buttigieg has discovered a surefire way to shock and annoy progressives: Say something nice about retired U.S. Supreme Court Justice Anthony Kennedy. In a recent interview with Cosmopolitan, the South Bend, Indiana, mayor made the case for "depoliticizing the Supreme Court." One of his ideas for doing so, Buttigieg explained, would be to increase the number of justices to 15, "but 5 of them can only be seated if the other 10 unanimously agree. The idea here, is you get more justices who think for themselves. Justices like Justice Kennedy or Justice Souter."

Cue the outrage on Twitter. "But Citizens United!" cried progressives, who proceeded to lecture Buttigieg on the evils of Anthony Kennedy, particularly Kennedy's authorship of the Supreme Court's free-speech-affirming decision in Citizens United v. Federal Election Commission (2010). It didn't take long for another presidential wannabe to weigh in. Taking a swipe at Buttigieg, Sen. Bernie Sanders (I–Vt.) tweeted, "I'd like more justices like Ruth Bader Ginsburg and Sonia Sotomayor."

Other progressives would like to see the Court pushed further to the left. The activist group Demand Justice, for example, is currently urging the Democratic candidates to take a page from Donald Trump's playbook and release their own lists of potential Supreme Court picks. To get the ball rolling, Demand Justice has even released its own SCOTUS wish list, "one that prioritizes unabashedly progressive lawyers and legal thinkers, who have all too often been pushed aside."

It's an interesting selection, heavy on radical academics and activist litigators but relatively light on sitting judges. Among the notable names on it are Michelle Alexander, bestselling author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness; California Attorney General Xavier Becerra; and anti–Big Tech crusader Timothy Wu of Columbia Law School.

Another name that jumps out is Philadelphia District Attorney Lawrence Krasner. As Reason's C.J. Ciaramella has noted, Krasner "is one of the most high-profile members of a wave of progressive candidates who have run for prosecutor offices in major cities in recent years, promising to roll back policies they say contribute to mass incarceration." For advocates of sweeping criminal justice reform, Krasner would be a dream SCOTUS pick.

Strangely absent from the Demand Justice list is Judge Paul Watford of the U.S. Court of Appeals for the 9th Circuit. In 2106, Judge Watford was reportedly one of the final candidates under consideration by President Barack Obama to replace the late Justice Antonin Scalia. (Judge Merrick Garland famously got the nod.) Watford has a stellar reputation in the legal community and has written a number of standout legal opinions for the 9th Circuit, particularly in defense of the Fourth Amendment right to be free from unreasonable searches and seizures.

So why didn't Watford make the Demand Justice wish list? Probably because his resume includes stints at corporate law firms. "None of the lawyers on our list," Demand Justice brags, "are corporate lawyers."

Do you know who else once worked at a corporate law firm? In the 1980s, Sonia Sotomayor represented corporate clients on behalf of the New York outfit Pavia & Harcourt. Guess Justice Sotomayor fails the progressive purity test too. Sorry, Bernie.

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  1. The clash of the lightweights.

  2. Reason covers two more Democrats that will never be President in 2020.

    Meanwhile Libertarians are not covered for Election 2018 and Election 2020.

    1. Sheeeit, if Reason went by your standards of purity, there’d be no libertarian candidates.

      1. LC has no standards of anything. He actually posts pro-Trump ASCII art here.

    2. These two are reason staff supporters. Alphabet troll and Tony.

      1. OBL at least tries, and is occasionally clever. Pure repetitiveness is just boring.

        1. YOU are pretty repetitive and boring alphabet troll.

          Who’s OBL?

          1. “I know you are, but what am I?”

            And OBL is the parody account that occasionally breaks character to remind you of your Red Wave 2018 prediction, which makes me smile.

      2. You have such a strange way of looking at things.

        1. Call ’em as I see them.

          1. A regular Mr. McGoo.

            1. It all makes sense that 0=[] is a nearly blind short person who is not that smart.

              1. “I know you are but what am I?”

                1. Look at his troll doing exactly what he’s commenting about.

      3. Tony is still Paul Krugman. I don’t know who the other guy is.

        1. I always thought that Krugman took too much dick in the butt to think rationally.

    3. Libertarians are losing. Trump is the most Libertarian candidate that can win. At least his judicial nominations are more likely to uphold the constitution.
      We need to realize the purity test is a loser, better get some wins in the house and senate to get a voice for Libertarian ideas. Right now we are of no consequence.

  3. In a recent interview with Cosmopolitan, the South Bend, Indiana, mayor made the case for “depoliticizing the Supreme Court.”

    What’s the ETA for Roberts releasing a statement pointing out that there are no such things as Republican justices and Democratic justices and that SCOTUS is in no way politicized?

  4. Taking a swipe at Buttigieg, Sen. Bernie Sanders (I–Vt.) tweeted, “I’d like more justices like Ruth Bader Ginsburg and Sonia Sotomayor.”

    Fairness is stacking the court with enthusiasts for state power.

    1. Hey it’s not political if their side wins. Nope, not at all.

  5. One guy who wants to pretend this isn’t ideological war, and another guy who is satisfied shouting utopian dreams into the clouds.

    1. You guys hated Bernie Sanders right into Trump 2016. Way to go, morons.

      1. True Believer acolytes of Her absolutely despised the “old white Jew” and his refusal to just fall in line. Once he did, it was too late, and many of them hated him even more. Now all is forgiven and he must be protected at all costs.

        1. Or, the self-styled most radical member of Congress lost a primary by four million votes and his fanatics should have gotten over it like four years ago just like all the rest of us whose favorite candidates have lost primaries.

          1. Yeah I’ll get over it when people stop talking about Hillary Clinton boo boo.

            1. I’ll get over Hillary Clinton the day that the candidate for president who gets the most votes wins.

              1. Check out Tony not even knowing how our election system works in the USA.

                1. To be fair, Tony really doesn’t know much about how *anything* works. He’s just operating on feelings.

                  1. Tony would be in Heaven if quantity of semen meant a Hillary victory on 2016.

          2. And yet SHE never called Sanders a Russian Asset.

            1. I’ll bet he’s feeling left out.

      2. Not that I’m a fan of any of the options from 2016, but Trump was certainly less bad from a libertarian standpoint than Bernie would’ve been. But hey, Bernie might get his chance to be terrible still, though I rather doubt it.

  6. “one that prioritizes unabashedly progressive lawyers and legal thinkers, who have all too often been pushed aside.”

    Yeah, if there’s one thing that’s in short supply in DC, it’s progressive lawyers and legal thinkers.

    1. The thing that’s funny about it is that the supposed dearth of these “progressives” on the highest court is almost entirely because of their lack in lower appellate courts. Evidently they prefer academia to experience.

  7. Money isn’t speech!

    1. …but speech is money!

    2. Not true. Money talks.

      1. What is bullshit, chopped liver?

  8. how about none of those assholes gets anywhere near the Supreme Court wish list

  9. Bernie would actually like more “justices” like Felix Dzerzhinsky and Lavrentiy Beria.

    1. We should only nominate SC judges from the lawyers that advertise on TV. We need The Hammer on the SC.

    2. “Show me the xir”
      Did you say bro-zier?

    3. You forgot Vyshinsky

      1. “Noted Soviet Jurist, Diplomat Dies In New York City”

  10. That’s actually a pretty good interview in Cosmo. He’s got some libertarian inclinations and the areas where he devolves to coercion are more the ‘lazy’ kind of coercion (can’t think out of the box enough to figure out how to persuade it to get done without govt) rather than ‘principled’ coercion (I’m right, you’re wrong and I’ve got power so FYTW)

    1. In the Cosmo interview he seems to have libertarian instincts, but would gladly impose government controls for things he favors, most egregiously global warming.

      Maybe in 10 years he will come around…but don’t hold your breath.

  11. Nominating judges based on preferred policy outcomes is just gross. And yes, my preferred policy outcome is Constitutionally bounded limited government. But is that really just “policy”? I wouldn’t think so. A there should be some level out predictability regarding the Constitutional lens that a SCOTUS judge uses. And “the outcome I think is right” is not a Constitutional lens.

  12. I can’t think of a worse echo chamber than requiring SC justices to approve of the ‘new guy.’

  13. The court is politicized not because of structural defects but because the Left has consciously used it as a super legislature for implementing its policies and the Right has responded in kind. The rot really set in with Roe v Wade. Buttigieg does not want it to be depoliitcized, he wants to find a way to make the left in permanent control without outright saying it.

    1. Yup. Lefty fears of RBG dying and Trump replacing here in the next 5 years terrifies them.

      Goes to show how the SCOTUS does decide based on ideology. Otherwise, Lefties would not care.

      1. “…in the next 5 years ”

        Let’s see: Colon cancer, pancreatic cancer, malignant nodes on her lungs [Feb 2019] and a recurrence of pancreatic cancer [August 2019] “treated” with three weeks of radiation therapy and a bile stent. Those are palliative measures, meant to make a person more comfortable, not treat a terminal disease. I give her till end of this year when she won’t be able to show up and February till she is no longer on this earth. All the more need for them to push impeachment now and then say no nominee would be acceptable under after the next election. Just imagine if she is replaced with someone like Don Willett; talk about pants shitting.

        1. It’s all palliative when you’re 86.

          That’s certainly one of the motives for impeachment. In fact, I think about the only thing impeachment isn’t about, is actually removing him from office.

    2. Its worth noting that Roe v Wade was not that controversial when it was decided. It was a broad decision with support of 7 justices. It was also very libertarian allowing personal decisions early on in the pregnancy and only allowing the state to step in at a later stage. I think calling it super legislation is a reach.

      1. Blackmun could barely come up with a fig leaf for its constitutional justification, and the decision attempted to write policy. It is not considered a properly reasoned or authorized decision even by many who like the result.

        1. Not to mention that it led to much more expansive rules relating to abortion rights than even in progressive utopias like Northern Europe.

        2. The decision was well enough reasoned that 7 justices sided with the decision. Blackmun took the time to research laws about abortion and think about how they might be applied to balance personal freedom with the interest of the state. Again the idea that it was not well reasoned is opinion that has come in time. And I would ask In what ways is it not well reasoned?

          1. What we mean is that it wasn’t well reasoned in a constitutional sense. It’s hardly relevant that it would have been well reasoned if he’d been drafting legislation.

            1. Again I would ask how is it not well reasoned in a constitutional sense? The fact is it was well reasoned enough for 7 justices to accept the idea that there is a right to privacy in medical matters. If you think it is not well reason then explain why.

              1. Because they didn’t base that right on Privileges and Immunities.

                1. How would you apply Privileges and Immunities to the abortion question? Not sure how it would even apply.

                  1. You poor thing. Privileges and immunity clause presets states from discriminating against out of state Americans.

                    IOW California cannot enact a law making it illegal for a Georgian to carry a pistol while traveling in commifornia.

                    1. I know what the clause says. I asked how it applies to Roe v Wade. You gave a response about about gun laws.

                  2. “We find that one of the privileges and immunities within the constitution is the immunity of bodily autonomy. This necessarily extends to the immunity from prosecution for excising a part of that body.”

                    Pretty easy, actually

              2. Unlike you, most of us don’t believe that the 9th amendment is meaningless. Unfortunately, SCOTUS had largely rendered it meaningless prior to Griswold/Roe. It’s cute that you suddenly want us to believe that you’re into enumerated rights and individual liberty but no one is really buying it.

          2. Have you actually read the decision? I have and I would describe the reasoning as bizarre. And I am, for lack of a better term, pro choice. And the assertion that Roe “was not that controversial at the time” is utter nonsense.

            1. I would again ask the same question of you as other commenters. How do you find the reasoning unsound? I often hear this comment about Row v Wade being unsound reasoning and yet few people will explain the comment. They simple throw it out as a sound bite.

            2. I have read the decision, but at your suggestion I did reread the decision and found nothing in the decision significantly unsound. Justice Blackmun reviews the history of abortion law noting that most abortion laws are relatively recent. He noted that ancient law is inconsistent and prohibitions on abortions were more rooted in a male’s right to the fetus as his property. Modern laws were more rooted in concern about dangers of the procedure and in attempting to prohibit sexual activity. The ruling is based on privacy rights supported by a number of rulings. In the case of the Roe v Wade using the 14th Amendment, while noting lower courts had seen the 9th Amendment as the guarantee of privacy. Justice Blackmun noted that privacy rights did not override State interests. He balanced the interests based on standard understanding of a pregnancy using trimesters as markers for the defining the balance of personal privacy and State interests. I see nothing unsound in his reasoning.

      2. “Its worth noting that Roe v Wade was not that controversial when it was decided.”

        I am in awe of how wrong you are about that. About the only group it wasn’t controversial among was Supreme court justices.

        And it is seldom appreciated by people who aren’t familiar with the case that the Supreme court snatched back it’s promise of states being able to regulate late term abortion mere hours later, with Doe v Bolton, when they declared that if a doctor said an abortion was medically necessary, it wasn’t subject to review.

        That opened the door wide to pretextual declarations of medical necessity.

        1. You are wrong it was a busing case that was the most controversial decision for 1973 of the Burger Court. Many prolife conservatives (George Wills included) have point out that state legislators were in the process of legalizing abortion. Governor Ronald Reagan sign California abortion law in 1967. Row v Wade has become controversial over the years.

          1. Yes, the states were certainly moving in that direction, which should make you even more skeptical of the tortured reasoning in the SCOTUS opinions. Like I said above, SCOTUS tried to read the room and still couldn’t get it right, because immediately after Roe our abortion laws became the most liberal of any country and remain there to this day.

            1. Abortion is legal in most of the developed world. A number of less well develop countries heavily restrict abortion and in some cases outlaw it all together. So I don’t think we have the most liberal laws. If I am not mistaken some European countries pretty much want all pregnancies of Dow Syndrome fetus terminated.

              1. Yes, the Europeans still favor eugenics.

                But in most (all?) of them, elective abortions are only possible in the first trimester (some set the line by week, but they balance to about the same).

                If the US had European abortion laws most anti-abortionists would consider that a major (if impartial) win.

            2. Exactly. Somehow abortion was deemed a 9th amendment right to medical privacy but nearly all other medical privacy is not considered a constitutional right.

              Vaccinations are the huge hypocrisy in Lefty demands for medical privacy. There is zero constitutional authority to force vaccinations on Americans.

              1. I think there’s room in the General Welfare clause for that, oddly enough. The same with quarantine of contagion, like Typhoid Mary (note: going by the name, not knowing her details).

          2. Roe was a shocking decision and thus there was no pre-planned opposition. But it soon became the most controversial decision maybe ever.

            https://time.com/3669867/roe-v-wade-history/

  14. Proggies still shitting their pants over Citizens United? Sheesh.

    Their problem with it was it was aimed at an anti-Hillary video. If it were an anti-Bush video they would have had ZERO problems with it. Proggies are being rigidly partisan, and partisanship has no business on the Supreme Court.

    It’s not about Team Red versus Team Blue, the Supreme Court is about how the Constitution applies to law.

    1. They weren’t particularly bothered when George R.R. Martin stuck Bush’s head on a pike.

      1. Those were the producers. I do not think Martin had much to do with the show’s props.

  15. It is unlikely we can depolarize the court in the near future. The court itself reflect the deep divisions in our society. I think the biggest problem is a failure on the part of the legislative bodies at the state and federal level that are reluctant to address issues, leaving the court to decide issue best addressed through legislation. If the SC were only fine tuning laws there would be less pressure. I would also say the best justices are not of political bend, rather those who will read a case and consider the arguments. This is why you get surprise decision from some justices.

    1. “…a failure on the part of the legislative bodies at the state and federal level that are reluctant to address issues, leaving the court to decide issue best addressed through legislation.”

      Couldn’t agree more. Legislators need to legislate, not delegate this task to a vast, un-elected, un-accountable, and capricious bureaucracy to make, enforce, and unpredictably change their own rules. If we are truly going to abide by the Constitution, judges would be left a interpret laws apolitically while the executive would implement them.

      1. They also cede too much power to the Prez.

        Basically Congress is full of cowards who only want to get re-elected so they don’t have to get real jobs. Maybe if their pay was a lot lower they would GTFO.

        1. Agree that Congress give to much power to Presidency.

        2. Congress should be part time politicians, so fix that and then get back to me.

  16. What’s with the creepy photo of Buttigieg staring intently at Bernie’s groin?

  17. Where did Buttigieg get his 1Oth Justice?

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  19. Depoliticizing the supreme court. Sounds nice, but of course it’s a pure fantasy. Even if we started randomly drawing the justices names out of a hat, the court would still be inherently political with the immense power we’ve delegated to them.

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