Amy Coney Barrett

National Law Journal Symposium on Possible Questions for Judge Amy Coney Barrett's Confirmation Hearings

The National Law Journal asked several legal commentators to suggest questions for the president's Supreme Court nominee.

|The Volokh Conspiracy |

Judge Amy Coney Barrett.

 

The National Law Journal has posted a symposium in which eight legal commentators from across the political spectrum each suggest a question to be asked at Judge Amy Coney Barrett's Supreme Court confirmation hearings next week (free registration required to access). The contributors include co-blogger Jonathan Adler and myself, among others. Here is my proposed question:

One of the most important legal issues of our time is whether constitutional constraints that apply to other exercises of government power should also apply with the same force to immigration restrictions. The text and original meaning of the Constitution make no distinction between constitutional standards that apply to immigration and those that apply to other policies. Yet courts often read such distinctions into the Constitution, nonetheless.  Do you believe immigration policy should be subject to the same level of judicial review as other federal policies, or should it get little or no scrutiny? Why?

Jonathan's  question also strikes me as well worth asking:

"Judge Barrett, in your academic writing on the importance of precedent, you wrote that judges must 'take account of reliance interests' in order to avoid unnecessarily 'upsetting institutional investment' in prior precedents or disrupting continuity. Can you explain what sorts of reliance interests would justify adhering to an erroneous constitutional precedent, and how you, as a justice, would seek to balance the demands of your oath to the constitution and the need for stability and continuity in the law?"

Other contributors include David Lat (founder of Above the Law), Elizabeth Wydra (Constitutional Accountability Center), Kate Shaw (Cardozo Law School), and Ilya Shapiro (Cato Institute), among others. I should perhaps note that Ilya Shapiro, who I often get confused with, is in fact different person from me.  If you have trouble telling us apart, read my handy guide to avoiding #IlyaConfusion.

I expect Judge Barrett may well try to sidestep difficult questions, especially those that touch on controversial issues. Most recent SCOTUS nominees have adopted that strategy in order to minimize the chance of saying something that might hurt their confirmation chances. But the purpose of asking these types of questions is not just to get the nominee's response, but also to highlight the importance of the issue for the many people likely to watch the hearings.

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  1. 1. Is it okay to lie to get what you want? (I assume she will say no)

    2. Okay, since you believe lying is wrong, why are you accepting this nomination? You are benefitting from the acts of liars. Are you not sending the message to everyone that lying should be rewarded?

    1. 1. Do you think that Hitler was a bad person?

      2. Then why do you accept a nomination from Trump, who is just like Hitler?

      1. You make a strawman argument because you can’t refute the fact that she is about to be rewarded because Mitch McConnell and other Senate Republicans lied to Americans about whether they thought they deserved a voice in SCOTUS nominations.

        1. McConnell and the rest are crooks whose rhetoric is worthless. Why should the country be punished for their worthlessness? The one thing they’re good for is voting on nominations so that the American people can get an idea of what kind of judges each party wants for the country.

          1. Why should he and Amy Barrett be rewarded because of their poor moral behavior?

            1. It depends on whether the country would be better off with her on the Supreme Court, or some Democratic nominee.

              If the country would be better off, then the behavior of McConnell’s ilk shouldn’t get in the way, since after all the public showed in 2016 what they thought of the crooked, swampy McConnell type of politician.

              1. So a utilitarian argument where everything is justified so long as someone can say it is for a greater good.

                1. Now who’s straw-manning?

                  Not everyone accepts your premise about the dolorous martyrdom of St. Merrick Garland.

                  The Senate should have just held a vote and rejected him.

                  1. It’s not a straw man. You literally said the issue is country would be better off. That’s a straightforward utilitarian argument.

                    And I actually care a lot less about Garland being blocked because at least their reasoning was tied to democratic values. But then it turns out they lied about those. That’s the problem.

                    1. You used the phrase “everything is justified” and attributed it to me. Yep, straw man.

                    2. No. I was describing the practical consequences of utilitarian approaches to morals.

                    3. Here’s how you “paraphrased” me:

                      “So a utilitarian argument where everything is justified so long as someone can say it is for a greater good.”

                      Or in your terms, if you were a Senator no judicial candidate should consent to have you vote on their confirmation.

                    4. By @LTG’s terms, nothing would ever get done, since everyone has told a lie at one time or another. Including of course LTG, so we should ignore him first, which means we can continue to not ignore everyone else.

                  2. No, I don’t agree = The Senate should have just held a vote and rejected him.

                    Why tar the man with that kind of process and vote? Merrick Garland did nothing to warrant the humiliation of a hearing and rejection by the Senate. There is no question whatsoever in my mind that he would have been dragged through something like ‘Kavenaugh lite’. He would have been called radical (he wasn’t particularly radical); or unfit (he was qualified); or some stupid shit from his high school or college days would have come out as some kind of disqualifying event (who hasn’t done some spectacularly stupid shit in high school or college).

                    He was not a saint. But he would not have deserved that circus. He can finish out his judicial career with his dignity intact.

                    1. As long as I’m constructing an alternative reality, why not a process which focuses solely on the judge’s willingness to follow the Constitution – and of necessity this would be the Constitution as the Senators understand it, not as it’s been interpreted for them by others.

                    2. Assuming for the sake of argument you are correct and Garland would have lost in a vote, he still would have been categorically rejected because it was an election year.

                    3. “finish out his judicial career with his dignity intact”

                      While I wouldn’t wish the modern confirmation process on anyone, I can see how that sort of treatment can potentially increase a judge’s empathy with the underdog and with those who are targeted with false accusations.

                    4. Josh R….I believe you are also correct.

              2. “If the country would be better off…”

                This is not the fucking Court of National Better Offedness.

            2. Senator McConnell didn’t nominate Justice Barrett. By your reasoning there is no one that the President nominates who would be entitled to a vote.

              1. He is enabling the circumstances to allow her to be easily confirmed though. Ignoring that is being willfully blind.

                1. So what? Of course he is enabling it, he’s the Majority Leader in the Senate. Who else do you think would help enable a confirmation? And it’s a dumb question. If she agreed that she’s not entitled to take the spot, she would have already withdrawn her nomination. You might as well ask her “Do you want to be a Supreme Court Justice?”

                  1. It’s not a dumb question, because it’s about her morals, values, and character. People who enable and reward immoral acts have questionable character and should themselves not be rewarded.

                    1. I understand your point. But it wasn’t President Trump or Judge Barrett who committed the immoral act, in this case. They are both just doing what the constitution says they should do. What Senate Republicans did in 2016 was wrong, and it would be just as wrong for it to happen again in 2020. I don’t see how you can criticize what happened in 2016 and then say the exact same thing should happen now. I agree that it’s galling, but at some point we need to return to some kind of constitutional normalcy. Otherwise it’s just an escalating shit show.

                    2. I’d be happy to entertain another solution besides categorically denying Barrett the seat because Garland was categorically denied, but that solution requires equity for the Democrats.

                    3. “but that solution requires equity for the Democrats.”

                      OK, then let’s agree that the next time the Democrats control the Senate, THEY get to control who gets votes or gets confirmed. Seems equitable, and has the advantage of being self-implementing.

                    4. No Brett, that is not equitable because the argument put forth to categorically deny Garland confirmation was not that the Republicans controlled the Senate.

                    5. It’s a dumb question because the fact that she’s answering it already gives you the answer. The point of questions is to discover new information.

        2. By that logic, let’s ignore the entire Declaration of Independence, Articles of Confederation, and Constitution as well, since it is without doubt that everyone involved, even George Washington, has told at least one lie.

          1. There is a casual connection here though. We don’t ignore fraud because the prosecutors, judge, jury, and victim have told lies in the past. Here we now know they were lying in 2016 about Americans deserving a voice and Barrett intends to reward them and herself for that lie by accepting this nomination.

            1. YOU are the root causal connection here. YOU are the Gordian knot to cut.

      2. In lawfare, lying is a patriotic duty. The Democrat Party is conducting lawfare against the President, the election of 2016, and our American way of life. Lying to a Democrat is an affirmative patriotic duty.

        1. Congrats on being a bad person I guess.

          1. The lawyer is making war on our nation. Deception is a duty in war. Lying to the FBI is not just wrongly criminalized, it is a duty. They are enemies of our nation. Most are lawyers. They allow billions of federal crimes on tech platforms. They spend their time attacking conservatives, nitpicking paper work crimes. They are the enemy.

        2. Yawn, Behar. As always.

          1. I hope you can stay bored when 25000 members of the lawyer hierarchy are rounded up in a mass arrest for their insurrection.

      1. Lying does make me sad, yes. Do you like it when people feel bad because of the poor behavior of others? If so that’s basically just sadism.

        1. Have you never told a lie, not even once? By your argument, then, we should ignore you. A nice paradox.

          1. Of course I have lied. But I don’t expect to be rewarded for a lie if it is discovered. I should suffer consequences. Nor would I debase myself by happily giving a liar what they want because it also personally benefits me.

    2. 1. No.

      2. Because it’s not a perfect world, and the best way to make it better is to have me as a SCOTUS justice.

      Because someone is a liar (and aren’t we all liars, at some point) doesn’t mean that this particular action (nominating me as a SCOTUS justice) was a lie. And in fact, I will do my best as a Justice to make sure liars don’t prosper and I will judge with an honest and just viewpoint.

      1. The lie is that McConnell lied about Americans deserving a voice. So did every other Republican Senator. This was a lie. If it wasn’t a lie, they would wait until the election is decided. They are now going to politically prosper off of that lie and Amy Coney Barrett is going to personally benefit from the machinations of liars. And vague utilitarian appeals to the “good of the country” cannot change that fact. And moreover, if the person who stands to benefit from the lie promises to work for the greater good, how on earth can one trust that their statement is honest?

        1. Dems also flipped. They also lied. Why did you leave them out of the pantheon of liars?

          1. The Democrats have flipped because they accepted the truth of the Republican lie: that Americans deserve a voice in SCOTUS nominations in Presidential election years.

            1. Nobody with an ounce of political sense believed either of them. The fact is the Republicans had the votes and the Democrats didn’t.

              1. I actually believed that they would at least be consistent going forward given the broad scope of their pronouncements in 2016.

            2. I don’t think I’ve seen any prominent Democrats acknowledge that they think the Republicans were correct in their handling of Garland: the rhetoric still seems to be that the a Republicans “stole” the seat. Can you point me to some comments showing Democrats “accept[ing] the truth” of the Republican position in 2016?

              1. I may not be prominent but I am a Democrat and I believed them. I honestly did not think any politician, no matter how shameless would actually lie to Americans to their face about their value to the system. And here I am, the only person who appears to think this is an extremely serious moral transgression. It is still shocking to me that this occurred and it shocks me further still that someone who supposedly cares about moral issues, like Barrett, would accept the nomination under these circumstances.

                1. Fifty Four Forty or Fight

                  Don’t send American boys to do what Asian boys can do

                  If this bill requires quotas I’ll eat it page by page

                  I am not a crook

                  Read my lips, no new taxes

                  I did not have sexual relations with that woman

                  Weapons of Mass Destruction

                  If you like your doctor you can keep your doctor

                  1. These aren’t the same as lying about American’s own value in their system of government. The lie was that Americans deserve a voice. That’s a crazy thing to lie about! They degraded everyone with that lie.

                    Also historical lies don’t mean that politicians should be off the hook for lying now. Especially for a lie of this magnitude.

                    1. “And here I am, the only person who appears to think this is an extremely serious moral transgression.”

                      Well, I did say that “McConnell and the rest are crooks whose rhetoric is worthless. Why should the country be punished for their worthlessness?”

                      That apparently doesn’t count because I don’t want to punish the whole country for McConnel’s behavior.

                    2. Except it is punishing them, because it’s denying them the choice that he said they deserved four years ago! Deprivation of choice is a punishment. Indeed, this why Kant thought lying was the worst moral transgression.

                      Not confirming Barrett now isn’t punishing the country, it’s letting them decide what they want. If they signal they want her as a Justice by re-electing Trump and keeping the Senate Republican then she’ll likely be confirmed in due course. They’ll get the best Justice for them AND have a say in the matter.

                    3. I’ve said that McConnell’s rhetoric was worthless. Why should I care about the ersatz “principles” he pulled out of his butt in 2016?

                      If the principle is giving the people a say, it’s fairly clear that one of the parties is for court-packing, so if the people want *that* party, they’ll get new justices.

        2. Mmmm. It’s your view that was a lie.

          Other people have a different view, that McConnell repeatedly references the difference between the Senate and Presidency sharing opposite parties during an election year, versus them sharing the same party.

          Leaving out that context makes it look like you’re lying, not McConnell.

          1. Except that is not what he said on the Senate floor, his press statement, or in his tweets. This was a post-hoc justification to excuse his prior lie.

            https://www.cbsnews.com/news/mitch-mcconnell-supreme-court-vacancy-election-year-senate/

            1. Just a reminder…

              ” “Of course it’s within the president’s authority to nominate a successor even in this very rare circumstance — remember that the Senate has not filled a vacancy arising in an election year when there was divided government since 1888, almost 130 years ago … ” ”

              “You did have to go back to 1888, when Grover Cleveland was president, to find the last time a vacancy created in a presidentially elected year was approved by a Senate of a different party. I think you all understand where we are.” (Sen. McConnell, Press Conference, 2/23/2016)”

              ““[Y]ou’d have to go back to 1888 when Grover Cleveland was in the White House to find the last time a vacancy created in a presidential year was confirmed by the party opposite the occupant of the White House.” (Sen. McConnell, Press Conference, 3/01/2016)”

              “ou have to go back to 1888 when Grover Cleveland was in the White House to find the last time when a vacancy was created in a presidential year, a Senate controlled [by the] party opposite the president confirmed.” (Fox’s “Fox News Sunday,” 3/20/2016)

              SEN. McCONNELL: “You have to go back to Grover Cleveland in 1888 to find the last time a presidential appointment was confirmed by a Senate of the opposite party when the vacancy occurred in a presidential year.” (NBC’s “Meet the Press,” 3/20/2016)”

              ““You’d have to go back to 1888, you do remember Grover Cleveland, right, to find the last time a vacancy created in the Supreme Court in a presidential year was confirmed by a Senate of a different party than the president.” ([Louisville] Courier Journal, 3/22/2016)

              April 5, 2016:

              SEN. McCONNELL: “You’d have to go all the way back to 1888 with Grover Cleveland, a Democrat in the White House, to find the last time a Senate of the opposite party confirmed a nominee to a vacancy on the Supreme Court occurring in a presidential year.” (The Hugh Hewitt Show, 4/05/2016)”

              But those are just facts. Don’t let them get in the way.

              1. You know that using the BS historical precedent approach actually confirms that his comments about the American people deserving a voice are lies, right? If he thought blocking Garland was compelled by historical practice he wouldn’t have tried to sell it as voters deserve a voice. But he did sell it that way and he was lying. He lied to you too: he praised your value to the system and then stomped all over it four years later. Don’t let him degrade you like that.

                1. Yep, never let those pesky facts get in the way….

                  1. Never let logic get in your way.

                    GOP Senators besides McConnell routinely spoute dthe BS about letting the voters decide.

                    Tom Cotton:

                    Why would we cut off the national debate about this next justice? Why would we squelch the voice of the people? Why would we deny the voters a chance to weigh in on the makeup of the Supreme Court?

                    Thom Tillis:

                    It is essential to the institution of the Senate and to the very health of our Republic to not launch our nation into a partisan, divisive confirmation battle during the very same time the American people are casting their ballots.

                    McConnell himself:

                    The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be.

                    You can find these, and more, here.

          2. That argument just gets lamer every time you make it.

      2. If Justice Barrett said she will decide cases on the basis of making the world “better” that would be disqualifying.

        1. Of course, that’s not actually what was said….

    3. lawTalkingGuy, would you agree that, because Obama lied about his position on gay marriage, his appointees should not accept appointment from a liar?

      He was elected to office saying he opposed gay marriage and then turned around and supported it.

      I am personally not inclined to be so quick to call politicians who changed their position liars. But if you take the position that they are, would you then agree that this should apply to all supreme court nominees of liars?

      I’m not sure if a major politician has ever been complerely consistent, and hence if an ethical judicial candidate could ever accept alpointed office under your rule.

      I agree that the time a formal vote should have been held and the Republicans were being hypocritical. I also agree they should simply have admitted they were blocking Garland because they were hoping for a more conservative candidate if a Republican won the next election, and they had the votes and the power to take this action.

      But the fact that they didn’t give their real reasons does not make it unethical for a judicial candidate to accept a nomination. They didn’t have to give any reason.

      1. There is a difference between changing your position based on reflection and never believing what bullshit you spouted in the first place. Obama has happily explained his evolution on the topic, including the discussions he had with his daughters about it.

        By contrast, Mitch McConnell and co. clearly never believed that Americans deserved a voice in SCOTUS elections. They were lying about that. If they actually believed that there would have been some period of reflection on the matter after Ginsburg died. If they actually ever believed it was important they wouldn’t have been issuing statements about how they were going to rush to confirm within an hour of her death six weeks before the election. If any of them actually believed it at least some Senators would have continued to hold that belief and say: this is wrong. None of them did.

        It was easy to ditch their position on a moment’s notice because it was a lie the whole time.

        1. *SCOTUS nominations

        2. “Obama has happily explained his evolution on the topic”

          He started his political career in favor, then switched to being against.

          That is unusual no? Face it, he lied to gain political advantage.

          1. It’s called “being a politician”.

            The number of times Biden has “swapped positions” is amazing.

    4. Okay, since you believe lying is wrong, why are you accepting this nomination? You are benefitting from the acts of liars. Are you not sending the message to everyone that lying should be rewarded?

      A: “I believe that the good that I could do as a SCOTUS justice would far outweigh whatever you perceive to be the ‘message’ being sent by my accepting the nomination at this time. Not everyone takes the childishly simple-minded approach to such matters that you do.”

      1. “Not everyone takes the childishly simple-minded approach to such matters that you do.”

        What you’re saying here is that part of being an adult rather than a child is acceptance of lying as a matter of course. Apparently immorality is the essence of adulthood. You and Bob appear to agree on that. So thanks for telling on yourself.

        P.S. Immanuel Kant had even stronger views on the morality of lying. No one ever accused him of being “simple-minded.”

        1. Politicians lie all the time. Only a child thinks otherwise.

          Its not immoral to think politicians lie all the time, its merely reality.

          1. It is immoral to enthusiastically support it, however. You seem to think that just because this is a common occurrence one should just accept it and praise it when the consequences are in your favor. If anything this “I got mine, screw you” mentality is the childish one. I am not as cynical as you are, however, and think lying is wrong and that people should say it is wrong.

            1. It’s not just a common occurrence, it is universal.

              All politicians lie about everything. The last “honest” politician was George Washington, and I’m not 100% sure about him.

              1. Even so it’s wrong and people shouldn’t just accept it.

                It’s like how some people do something deliberately unfair and then say “the world is unfair” as an excuse. I mean the world is unfair, but it would have been less unfair if they didn’t just do the unfair thing!

                1. The people shouldn’t just accept it really only applies to things they can control.

                  What does it even mean to not accept something over which you have no control?

                  That’s like saying people shouldn’t just accept the sun rising in the east or that they shouldn’t just accept the tide rising.

        2. What you’re saying here is that part of being an adult rather than a child is acceptance of lying as a matter of course.

          No, I’m not saying any such thing. I quite clearly spelled out what I was saying, which is not at all what you’re saying it was. The question now is, are you just too dumb to understand plain English, or are you being a hypocrite and lying yourself?

          1. What else could you possibly mean by saying my approach to lying was childish and simple-minded?

            1. By that I meant that you’re actually too stupid to understand the difference between, “The good I can do as a SCOTUS justice outweighs any negative message being sent by my accepting the nomination under these circumstance” and “I think lying is a good thing”.

              1. If that’s what you meant why didn’t you say that? What do you think is childish and simple minded? Is it concern for lying?

                And FWIW, while I am confident in my intelligence, I would rather be stupid than an immoral train wreck like you are.

                1. If that’s what you meant why didn’t you say that?

                  OK, now I’m going to have to conclude that you’re both stupid AND dishonest. Here’s what I said, verbatim (with emphasis on the part where I say exactly what you’re claiming I didn’t say):

                  “I believe that the good that I could do as a SCOTUS justice would far outweigh whatever you perceive to be the ‘message’ being sent by my accepting the nomination at this time. Not everyone takes the childishly simple-minded approach to such matters that you do.”

                  You’re a moron.

    5. That would disqualify every nominee ever.

      1. This isn’t about lying generally, this is about rewarding this particular lie. Like I said elsewhere, we don’t just ignore or even reward fraud simply because other people lie in other circumstances. If the lie is transparent, people shouldn’t reward the liar by giving them exactly what they want.

        1. What lie specifically (by Trump) contaminates this nomination?

    6. So by the standard you propose, LawTalkingGuy, no person nominated to be on the Court by Mr. you-can-keep-your-plan-if-you-like-your-plan, also known as Mr. shovel-ready-jobs, should have received a hearing.

    7. Are you prepubescent?

  2. “balance the demands of your oath to the constitution and the need for stability and continuity in the law”

    Hmmm…if you put it like that, stability doesn’t sound so great, doesn’t it?

    1. It’s a softball. Justice Barrett wrote out her answer to this question in 2017. Per what she wrote, she would balance it the same way Justice Scalia did; “agenda control”. Originalism and Stare Decisis, Notre Dame Law Review Volume 92, Issue 5, Article 2.

      1. OK, but the phrasing of the question indicates that following a bad precedent for the sake of stability would violate the constitutional oath.

        It’s perhaps unintentionally a fairly loaded question..

        It should be spun a bit to say something like “balance the demands of precedent against…” well, whatever neutral term they can come up with for applying the law as they interpret it.

        I’m not a sock for Judge Barrett, but I’d suggest that she say “I will start with the assumption that a precedent is correct – that if I’m disposed to think previous justices were wrong I should also consider that maybe I’m the one who was wrong, and in short I’ll put the burden of proof on whoever wants a precedent overturned. If it’s debatable I’ll defer to the precedent, but if the precedent is clearly mistaken I’ll say so.”

  3. Two questions I would like to ask.

    How would you describe your judicial philosophy, and how do you see your philosophy playing out in future decisions that you will make? [Example: John Roberts spoke a lot during his confirmation hearing about getting consensus on decisions, and in looking at the Roberts Court, it has a much higher proportion of 9-0, 8-1 decisions than the historical average]

    In cases involving religious free exercise, when it is justifiable to not use a strict scrutiny standard, and why?

    1. She almost certainly won’t answer your free exercise question because Fulton v. City of Philadelphia, Pennsylvania is scheduled for oral arguments the day after the election.

      1. Yeah, you’re right Josh R. But I would surely love to know the answer. Precisely because of cases like Fulton, and the numerous cases we have now stemming from covid craziness.

        1. I did not see you comment on Josh Blackman’s latest post on this topic. He argues for a new standard by which any secular exemptions to a neutral and generally applicable law would trigger a burden on the state to justify why religious objections are included in the exemption. Paraphrasing what I said in the comments section:

          What isn’t clear is when is a justification good enough. Do you agree the state meets its burden in Eugene’s Fulton’s amicus brief hypotheticals (trespass law, duty to testify, breach of contract, anti-discrimination) even though each area has secular exemptions? If so, how does your standard work to accept the state’s explanations in those cases while rejecting them for COVID-19?

          1. Josh R…I took a look at your the post. If I am reading correctly, the standard Justice Kavenaugh articulated would place a substantial hurdle in front of state legislators/governors to stop them from arbitrarily suspending our free exercise rights….which states have done (wrongly, IMHO).

            I much prefer Kavenaugh’s reasoning to that of Chief Justice Roberts. Actual covid craziness experience has now shown that leaving the classification of ‘essential’ in a governor’s hands is too arbitrary.

            1. Your interpretation of Kavanaugh’s standard begs the question whether your free exercise rights have been suspended. I believe the correct interpretation is he would place (what I believe is a nebulous) burden on the state to justify secular exemptions not given to religious exercise. I would like Kavanaugh or Blackman to answer whether the state has met its burden in Eugene’s hypotheticals.

              1. Josh R….So why would it be wrong to require a state to justify not giving a religious exemption when a secular exemption is given? Isn’t that the crux of the matter?

                Our free exercise rights are specifically enumerated in 1-A. To me, that enumeration places a much higher bar for a state to clear.

                This whole area of law is fascinating to me. I only wish I had the time and brainpower to go to law school.

                1. Firstly, your argument that free exercise rights are enumerated, and thus the state must clear a higher bar, continues to beg the question of what a free exercise right is.

                  Secondly, what are the criteria for a valid justification of not giving a religious exemption when a secular exemption exists, and how do those criteria apply to Eugene’s examples (trespass law, duty to testify, breach of contract, anti-discrimination) where I would hope you agree religious exemptions should not be required? Eugene claims any criteria would result in virtually every law (including the four examples) being mandated to provide religious exemptions (just about every law has secular exemptions), thus effectively reversing Employment Division v. Smith.

    2. When is it justifiable to not use a strict scrutiny standard for any fundamental right?

      1. Strict scrutiny is made up by SCOTUS in the first place, so they can make up whatever standards they want, I suppose.

        The invented test doesn’t really work for Free Exercise anyway, since not everything that interferes with a religious exercise could possibly be off the table. Since that would subject all laws of general applicability to the religious whims of anyone.

  4. “Would you please put a damn mask on? Haven’t you learned anything??”

    1. She already had it earlier in the summer. Nothing left to protect from, in either direction.

      1. I’d call it a near certainty that she’s been exposed again, if not at the Sept. 22 ceremony then certainly by being around any White House personnel. The White House is the country’s current “hot spot”. In fact a mask should be placed around the entire White House. If it makes Trump feel better the project can be contracted out to one of his industry friends.

        1. I’d call it a near certainty that she’s been exposed again

          And therefore?

          1. It was September 26. October 12 hearing.

            So, even if she could be re-infected, its 16 days.

            CC is being stupid about it.

            1. No, I don’t think playing technicalities with 14 vs 16 is being stupid, with over 200,000 dead, and with Barrett willing to throw her lot in with a supersspreader, I-refuse-to-wear-masks White House establishment.

              The truth is, Barrett will hug and shake hands with a clearly infected person to advance her career.

              1. Look, you don’t seem to be grasping this: Barrett had Covid 19 this summer. She is now neither capable of catching it, nor capable of transmitting it. Her wearing a mask serves no rational purpose, and hugging and shaking hands with an infected person is perfectly risk free for her.

                Literally, you’re asking her to wear the mask as a Halloween costume, nothing more.

              2. ‘The truth is, Barrett will hug and shake hands with a clearly infected person to advance her career.’

                And you know this because?

  5. Your suggested questions seem to be based on the assumption that anyone involved in the upcoming confirmation hearing is interested in an honest discussion of constitutional interpretation. Color me skeptical.

  6. She should refuse to answer any questions until after she is confirmed. That way the news isn’t about her answers.

    1. “Now, look, I know it’s a great question, and y’all — and I don’t blame you for asking it. But you know the moment I answer that question, the headline in every one of your papers will be about that.”

    2. Yes, the new Biden Rule.

      1. The old Clarence Thomas rule. “I’ve never thought about my opinion on Roe.”

  7. My question: Suppose New York State enacted by law a one-child policy, requiring any woman who already had a child to abort all subsequent pregnancies. Relying only on the laws you say you will uphold on the Supreme Court—and without reference to any personal values or moral values outside the law, which you say you would always eschew—please say why New York’s law would or would not be Constitutional.

    After she answers, I want to ask her why whatever legal principle would prohibit New York from interfering in a second pregnancy does not equally prohibit any state from interfering in any pregnancy.

    1. Don’t let her off the hook on section 230 of the communications decency act!

    2. 1. It would not be constitutional, as per the 10th Amendment. Such 1 child mandates are not permitted to the state, and the number of children one is allowed to have is a right reserved to the people.

    3. I don’t think she would have difficulty in distinguishing between laws that require abortion and laws that make it more difficult to have one. Both infringe on the liberty rights of a woman, but only the latter may advance the state’s interest in potential personhood or the health of the woman.

      1. The obvious point that Lathrop is missing is that there is no parallel between compelling abortion and outlawing abortion (i.e. requiring that a pregnancy that has already occurred be carried to term). The parallel would be between compelling a pregnancy, and compelling an abortion.

        1. “obvious point that Lathrop is missing ”

          He does that a lot.

        2. I don’t agree with this argument. The woman’s liberty interests are infringed in all three cases (compelling an abortion, compelling a pregnancy and compelling a birth for an existing pregnancy).

          1. The woman’s liberty interests are infringed in all three cases (compelling an abortion, compelling a pregnancy and compelling a birth for an existing pregnancy).

            Gee…I wonder if there’s another consideration that you’re ignoring here when making your comparison.

            1. Even if you consider the rights of the embryo/fetus as having the greater interest you’re still infringing the liberty of the woman in each case.

              1. When does the baby become human, the magic of the birth canal?

                Anyway, I support abortion, the world is in danger of to many black and brown people. I hope Bill Gates hurries up with his advocacy for it in Africa too.

              2. Even if you consider the rights of the embryo/fetus as having the greater interest you’re still infringing the liberty of the woman in each case.

                And you somehow…through some bizarre twist of “logic”…managed to conclude that means that compelling abortion and prohibiting it are the same in terms of rights infringement?

                1. Lol now who’s the one who can’t read? And is either dumb or a liar? I said it infringes, not that they’re the precisely same infringement or equally burdensome infringements. I also didn’t make a claim as to what the appropriate balancing of rights should be in any case. It’s simply that matter whether you compel an abortion, a pregnancy, or a birth, the liberty of the woman is restricted in some way.

                  If you compel a pregnancy, a woman’s liberty is restrained because she has no choice but to be impregnated.

                  If you compel an abortion, a woman’s liberty is restrained because she has no choice but to submit to the procedure and not give birth.

                  And if you prohibit abortion or compel a birth, the woman has no choice but to carry the baby for nine months, and have it exit her birth canal or through Caesarian section. That’s an infringement to her liberty because her choice is reduced. It may be perfectly justifiable to infringe on it in favor of the baby, but you can’t deny it’s also an infringement.

                  1. Lol now who’s the one who can’t read? And is either dumb or a liar?

                    It’s still you. Go back and read the subthread again, particularly the comment on “parallels”.

                    1. I did. You were obviously criticizing Josh R’s position that liberty is infringed in all three cases because he was ignoring the obvious consideration of the rights of the fetus.

                      I then pointed out that it’s still an infringement regardless of how you weigh the rights of the unborn against that.

                      You took that to mean I said infringement in all three cases were exactly the same. I said no such thing.

                      But I don’t expect good faith arguments from people who think that lying and hypocrisy are a-okay if it gets you what you want.

                    2. I did not ignore the fetus. I said the woman’s liberty interests are all infringed in the three cases (forced pregnancy, forced abortion, forced carrying a pregnancy to term) and before that I said

                      but only the latter may advance the state’s interest in potential personhood [of the fetus] or the health of the woman.

                    3. Josh R, I didn’t mean to imply you were ignoring it necessarily, but Wuz clearly thought you were. I think you and I are on the same page about what you were saying.

    4. Weakest ‘gotcha’ attempt I’ve seen in years. Would you have smug look on your face the entire time?

  8. Do you condemn white supremacists?

    Will you overturn the “super precedent” of Roe v. Wade?

    Here is a list of precedent I don’t like, will you over turn these?

    Do you think ordered liberty requires the right to insert things into ones rectum or anus?

    Are those all really your kids and who is going to take care of them when you are busy on the court? (Only conservative women get asked questions like this anymore)

  9. “If you were a tree, what kind of tree would you be?”

    If she were quick-witted enough, she’d say “the Ankerwycke yew.”

    https://www.dailymail.co.uk/news/article-2934633/Now-yew-ll-live-Magna-Carta-Tree-bore-witness-King-John-sealed-Charter-saved-eternity.html

    1. I got that question in a job interview for a technical position.
      I answered “the kind that leaves” and walked out.

      1. I was lectured about dress code during one interview, the guy upbraiding me for not dressing like a salesman because during an interview, you are a salesman. It took me a few seconds to realize what he was talking about, and probably a full minute to realize he was deadly serious and that I needed to walk out.

      2. I was in a job interview and I opened a book and started reading. Then I said to the guy, “Let me ask you a question. Suppose you are in a space bus traveling at the speed of light, and you turn on the headlights–what happens?” He said, “How should I know?!” I said, “Forget it, I don’t want to work for you.”

  10. The Pope supports universal health care and climate change action…do you support those things??

    1. Biden is Catholic but he will tell you after the election. Until then “shhh” “it’s a secret…”

      1. No secret at all; he enthusiastically supports both expanding the supreme court and adding democratic states to the union to expand the democratic power in the legislature.
        If this were not true, he would say it was not true.
        Q.E.D.

        1. I’m not sure it’s that as much as he’s realized that taking a firm position risks alienating a segment of the coalition he’s trying to cobble together, so his safest move is to punt and let everyone believe he’s going to go their direction.

          He saw that tactic work with Mr. “change you can believe in,” so it’s not terribly surprising he’d give it a whirl.

          1. He doesn’t have to be enthusiastically in favor of it, from their perspective. It’s enough that he’s not opposed enough to veto the bill or refuse to fill the seats.

            “You’ll know my opinion on court-packing the minute the election is over.” ought, in a sane world, to automatically disqualify somebody from holding office, by the way. You can’t exaggerate just how outrageous a thing that is for a candidate for public office to say, in a democracy. People should be freaking out over him saying something that outrageous.

            1. Is that because of the inference you draw, or because he ought to answer the question directly?

              If the latter, then you must think almost all candidates should be disqualified.

            2. Why is it so outrageous? Is it worse than lying about it? I imagine lots of people care about lots of issues more than the number of justices on the Supreme Court. Is a candidate required to clearly articulate their position on every policy issue in advance of the election, or just the ones that Brett Bellmore happens to care about?

              Separately, I’m going to posit that it’s much more outrageous to not commit to a peaceful transition of power to the winner of the election than any possible thing anyone could say about court packing.

              1. It’s outrageous because how are the voters supposed to decide how to vote for if the candidates are asserting their right to keep their policy positions secret?

                1. Are you seriously claiming that Trump has been “forthright” about anything?

                  And what about Pence? He didn’t answer a single question at the VP debate, jut acted his usual platitudinous, smarmy, sanctimonious self.

            3. Is it more outrageous than saying “The American people deserve a voice” without any qualification and then doing them that voice four years later and after people have actually started voting?

      2. Do you truly think that Joe Biden is the only politician who ever dodged a question?

        Trump won’t even tell us when he was tested for Covid.

  11. I would give my pension so see her walk into the hearings wearing a Handmaid’s Tale robe, walking two steps behind her husband. The husband politely seats her and says “I give you permission to answer questions from these anti-Catholic bigots”.

    1. See, this is why I believe the universe is not a computer simulation run by super beings. It is exactly the kind of fun I would have with such a simulation. And then restore to a previous and try it again, differently.

  12. I really hope on Senator asks her what is the air speed velocity of an unladen swallow.

    1. “Racist Trump nominee says African swallows slower than European swallows”

  13. The original text of the constitution contained an importation clause, separate from immigration, addressing forcibly kidnapping and bringing importees into the country against their will. It temporarily forbid the fedsral government from banning importation.

    Nothing in the text or original meaning even hints that prospective immigrants were to be regarded as having rights analogous to those of citizens.

    The original constitution supported slavery. It wasn’t banned until the 13th amendment.

    1. Nothing in the text or original meaning even hints that prospective immigrants were to be regarded as having rights analogous to those of citizens.

      More to the point, the contrary: nothing in the Constitution allows the government to control non-kidnapping immigration.

      1. Fortunately, it does permit regulating “migration”.

    2. Nothing in the text or original meaning even hints that prospective immigrants were to be regarded as having rights analogous to those of citizens.

      Not perfectly analogous, of course, but pretty similar.

      Citizens can vote, and hold office, and have some set of “privileges and immunities,” but beyond that not much distinguishes them from non-citizens.

      I don’t see anything in the Bill of Rights that says the listed rights, and protections from government action, are restricted to citizens.

      The First Amendment, for example, bars Congress from passing certain types of laws. It doesn’t say “Congress shall make no law .. prohibiting the free exercise [of religion] by citizens.”

      The Fifth says “no person,” not “no citizen.”

      etc.

      1. Jacob Howard Explains Privileges or Immunties

        ““The next question is whether this aot infringes that section of the Constitution which declares that ‘the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States?’ The inquiry -what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are In their nature fundamental, which belong of right to the citizens of all free Governments and which have at all times been enjoyed by the citizens of the several States whice compose this Union from the time of their becoming free, independent, and sovereign What these fundamental principles are it would, perhaps, be more tedious than diffllenlt to enumerate. They may,however, be all comprehended under the following general heads: protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety subject nevertheless to such restraints as the Government may justly prescribe for the general good of the whole. The right of the citizen of one State to pas through or to reside In any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold, and dispose of property, either real or personal, and an exemption from higher taxes or impositions than are paid by the other citizens of the State, maybe mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental, to which may be added the elective franehise, as regulated and established by the laws or constitution of the State in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each State in every other State was manfestly calculated (to use the expressions of the preamble of the corresponding provision in the old Articles of Confederation) ‘the better to secure and perpetuate mutual friendship and intercourse among the people of the different States of the Union.”‘”

        Senator Howard added, “Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be — for they are not and cannot be fully defined in their entire extent and precise nature — to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virte.of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.”

        So, there you have it: The rights citizens get, that non-citizens don’t. There’s a lot of them.

        1. It seems to me that the rights mentioned in the second paragraph are not restricted to citizens at all. They are from the Bill of Rights, which makes no mention of citizens.

          As for the first, without going through them all, some at least do not seem restricted to citizens. Does a non-citizen resident not have a right “to pursue and obtain happiness and safety subject nevertheless to such restraints as the Government may justly prescribe for the general good of the whole?”

          1. You’re looking at this from a perspective that is colored by the Court’s use of ‘substantive due process’ to incorporate rights that were supposed to be incorporated via the P&I clause. One of the side effects of that end run around the Slaughterhouse cases, (Instead of just forthrightly overturning them!) is that rights that actually were reserved for citizens get extended to non-citizens.

            1. I have no idea WTF you are saying.

              Do you disagree that the second paragraph you quote merely restates the Bill of Rights, which, I repeat,says zip about rights being limited to citizens?

              1. Seriously, you genuinely don’t understand the whole P&I vs due process issue?

                Let me directly quote the guy who WROTE the 14th amendment:

                “I hope the gentleman now knows why I changed the form of the amendment of February, 1866. Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States.”

                “the privileges and immunities of citizens of the United States”

                1. By the text in the Amendments, its Congress shall make no law. That’s a negative, not a positive – it applies to Congress and has no caveat about citizens.

                  1. “Congress shall make no law” appears in only one amendment and only applies to that specific amendment.

                2. I still don’t get your point. Are you claiming that rights specified in the Bill of Rights are, by the 14th Amendment, now restricted to citizens? That’s absurd.

                  Here is an example. You quote Howard as listing, among the Privileges and Immunities,

                  the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage;

                  Here is the Sixth Amendment:

                  In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

                  Nothing about this being restricted to citizens.

                  And so what if Howard wrote the Amendment? He wrote it; he didn’t hand it down on Mt. Sinai.

                  1. I suppose Brett is arguing the right to a speedy trial applies to all people in federal cases (Sixth Amendment) but only citizens in state cases (Sixth Amendment incorporated against the states by the P&I clause of the 14th Amendment).

                    1. And why would only the P&I clause be relevant?

                      There is that business about:

                      nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ”

                      Person, not citizen.

                    2. I believe Brett doesn’t accept the substantive component of due process.

                    3. And what about the procedural component?

      2. Indeed precisely. And since the Suoreme Court has long held and recently reaffirmed extraterritorial liens are not persons within the meaning of the Fifth Americans, it necessarily follows that the idea the 5th Amendment somehow protects them from the consequences of immigration decisions is as inapplicable as the idea that the 5th Amendment somehow protects fetuses from the consequences of abortion decisions.

        That’s what Roe v. Wade was all about. No rigbts, no personhood. No personhood, no rights.

    3. Depends on the right, no? Some of the constitutional amendments use very broad language that does not seem in any way limited to citizens (e.g., the fifth amendment talks about “person”s). Is your theory that the founders didn’t regard immigrants as people?

      1. The Supreme Court recently affirmed as exactly this point regarding prospective immigrants. So far as the constitution is concerned, the idea that life can begin before entry into US territory is as much a part of the realm of religion as the idea that life can begin before birth.

        Agency for International Development v. Allince for Open Society (2020) said that “foreign citizens outside US territory do not possess rights under the US constitution,” and this is a “bedrock principle” of American constitutional law.

  14. “Can you explain what sorts of reliance interests would justify adhering to an erroneous constitutional precedent, and how you, as a justice, would seek to balance the demands of your oath to the constitution and the need for stability and continuity in the law?”

    Sure, let’s take Dred Scott as an example …

  15. Question:

    What constitutes a “plurality decision,” and how should a justice treat such a decision in a subsequent case?

  16. You praise Jonathan Adler’s proposed question “Can you explain what sorts of reliance interests would justify adhering to an erroneous constitutional precedent, and how you, as a justice, would seek to balance the demands of your oath to the constitution and the need for stability and continuity in the law?”

    In your “Two Ilyas” guide, you note that you two differ on the question of the constitutionality of many laws. One can also note that the Supreme Court justices frequently differ among themselves. Then isn’t it absurd to claim that one can objectively identify any precedent as “erroneous”? (Answer: yes)

    Nor are constitutional precedents “true”. They are simply precedents.

    1. Excellent point, thank you.

    2. “One can also note that the Supreme Court justices frequently differ among themselves. Then isn’t it absurd to claim that one can objectively identify any precedent as “erroneous”? ”

      No. Disagreement tautologically creates a “controversy”, but it doesn’t automatically create a real basis for one.

      The justices frequently disagree with each other because they’re not all trying to do the same thing.

      The honest umpire thinks his job is figuring out who won.

      The crooked umpire thinks his job is deciding who wins.

      They’ll disagree over whether a particular ball was fair or foul, but that doesn’t mean figuring out whether it was fair or foul isn’t an objective matter. That’s not why they’re disagreeing. They’re disagreeing because one of them is looking to see whether the ball was in the strike zone, and the other is looking to see which team was at bat.

      1. I don’t think you have a hope of understanding people who disagree with you, so long as you’re committed to a Manichean worldview in which everybody who disagrees with you does so from horrific motives.

        1. I don’t think Justices like Ginsberg do this out of horrific motives. I think they do it out of the best of motives. They really, really do think they are pursuing justice and the good of society, and that the end justifies the means.

          This doesn’t change the fact that they’re doing something different from what the originalist justice will think is their job.

          The living constitutionalist and originalist justice don’t disagree because one is evil and the other good, but they also don’t usually disagree because there aren’t objective answers to many of the questions they face.

          They disagree because they’re answering different questions: For one, “What should the law be?”, for the other, “What IS the law?”

          1. I don’t think Justices like Ginsberg do this out of horrific motives

            What you describe may not be “horrific.” But it’s a serious accusation.

            So I disagree.

            You don’t like their approach to figuring out what the law is, so you mischaracterize it.

            I think the liberal Justices do believe they are saying what the law is.

            It happens, as you know, that I am no fan of the type of originalism that conservatives espouse. I think it’s a poor approach and that much of what Scalia, for example, wrote was just foolish, just as I think many of the conservative decisions of recent years are plainly incorrect. Not that anyone much cares what I think. What if I said he was just trying to justify his policy preferences? You would, based on your comment, tell me I was nuts, and that it was all based on an honest reading of the law.

            Well, accept that I feel that way about your position. Look, Justices are human. I have no doubt that, left or right, they are influenced in their thinking by their politics. And just as you think the left is worse, so do I think the opposite.

            But I think it would be wrong of me to say that the conservative Justices are just trying to make the law be what they want it to be. That’s the difference between our positions.

            1. ‘I think the liberal Justices do believe they are saying what the law is.’ This can be a problem, if they are interpreting through a lens of advocacy or activism rather than upholding the law in service of the nation. I might argue that our current group of liberal SCOTUS justices wax more left than liberal, but that’s a different discussion. I hold the same opinion true for conservative, far-right judicial activism.

    3. I think we should assume Adler meant “a precedent that in your opinion is erroneous.”

  17. Question:

    Is stare decisis strictly a left-turning ratchet, or is it okay to flip the pawl and turn it to the right once in a while?

    1. Janus v AFSCME immediately comes to mind. Some recent pawl flipping there. How about Shelby County v Holder?

      1. Citizens United?

  18. What’s the hardest decision you have ever made?

  19. This, Prof. Somin, is why I don’t think we should have hearings; we should just go directly to a vote.

    The Senators on the judiciary committee just want to score political points. Democrats will ask “gotcha” questions, or use their question time to excoriate the nominee, in the same way the House used their time with Bill Barr to excoriate him; no interest in his view.

    Some will try to show how smart they are, how clever they can be, also usually in the form of a gotcha question.

    It starts to resemble the absurdity of George Carlin’s “stump the priest routine,” a phenomenon I remember very well from my Catholic school days. ‘So, you’re on a ship crossing the ocean and it’s Easter Sunday, and you neglect to go to church and receive communion, and it passes midnight. But then you cross the international dateline, and it’s Sunday again….’ You get the idea.

    It’s pointless and embarrassing, frankly. Just take a vote.

  20. Taking Heller to its logical conclusion—the KKK and Al Qaida sleeper cells in America are covered by the 2A as part of the “unorganized militia”, so must the federal and state governments stand down and let them exercise their 2A rights to keep and bear arms??

    1. That’s the logical conclusion to the right to keep guns in the home for self-defense?

      1. Exactly, that’s why Scalia chose to make the RKBA about an individual right to self defense in the home…the problem is he said “militia” meant “unorganized militia” and we still have that little word “bear” in RKBA. So why use the term “well regulated militia” when you simply mean individuals?? Such a head scratcher. 😉

        1. It’s not a head scratcher once to stop ignoring that it’s a right of the people, not of the militia. And that “well regulated” doesn’t mean “under the thumb of bureaucrats”, it means “made regular”.

          A “well regulated” militia, like a well regulated machine, is one in proper working order. And citizens having a right to own arms, and train with them, and carry them about, obviously contributes to the militia being armed, and knowing how to use those arms, because the militia is a subset of the citizenry.

          1. So it was to protect groups like the KKK and Al Qaida sleeper cells…sounds like it was well thought out. 😉

            1. Is the right to free speech to protect con-men?

              1. Except Scalia formulated a very limited right in Heller for a reason…you think he did that because he was a big pussy. I think he had a very good reason to formulate the limited right.

                1. Yeah, because he was a big pussy. That was a very good reason so far as he was concerned.

                  But you didn’t answer the question: Is the right to free speech for con men?

                  1. The 1A protects free speech and peaceful protest. So one can talk all day long about how they want to pass amendments in order to make America a socialist nation…so a con person like Bernie does get 1A protections…but Democrats figured out he was a con man and voted in near record numbers for Biden.

                    What the pro-Heller poster in other thread argued was that “unorganized militia” refers to a group like the Sons of Liberty plotting a violent overthrow of the government. I am not putting those words in your mouth I was simply wondering if other commenters believed unorganized militia referred to a group like the Sons of Liberty or if it simply was a synonym for “everyone”. So like at a hip hop concert can the hype man do a call and response like “now the unorganized militia throw your hands in the air, and wave ‘em around like you just don’t care!!”

                    1. Similarly the right to keep and bear arms protects your right to be armed, and to carry about those arms, so long as you don’t misuse those arms.

                      Being a member of the KKK, or an Al Qaida sleeper cell, doesn’t constitute misusing your arms. It may qualify as proclivity or intent, but we don’t take away rights on the basis of pre-crime. We take away rights on the basis of convictions for crimes.

    2. Yes. Until or unless they commit a crime, are convicted, and are incarcerated.

      1. What about “bear”??? On the other 2A thread a pro-Heller poster said the 2A was protecting groups like the Sons of Liberty…do you agree with that??

        1. You can own, “keep”, and carry, “bear”.

          To the extent the Sons of Liberty were citizens, the 2nd amendment was protecting them. What’s odd about that?

          1. I just find it strange that they wanted to protect groups like the KKK…and not a militia controlled at the state level by elected representatives. Such a head scratcher. 😉

            1. It’s not a headscratcher at all. If you guarantee a right to the people in general, you’re guaranteeing it to people who might misuse the right. That’s true for EVERY right.

              Until a person has been legally identified as a wrongdoer by a trial with the right to a jury, they’re legally entitled to the presumption that they are as good as anybody else.

              1. You do know the point of concealed handgun licenses?? So in Texas traditionally guns were celebrated as part of life in Texas. But Texans didn’t like criminals and crime so what they did is heavily regulate handguns outside the home. So criminals that used handguns could be arrested for simply possessing a handgun outside the home. Then they figured criminals wouldn’t apply for a concealed handgun license so they legalized handguns outside the home if one applied for a license. What you are positing is the 2A says Al Qaida can plan an attack on America and surround the White House and we can’t do anything about it until they pull a trigger or set off a bomb…you just stepped on another rake Sideshow Brett!!!

                1. Yes, until somebody has been legally adjudicated guilty, they have all the rights of the innocent, whether or not they actually happen to be guilty.

                  That adjudication is how the government determines whether they’re guilty. Because they lack your crystal ball.

                  1. My crystal ball?? Cops arrest people before they are adjudicated. But the unorganized militia in Michigan and KKK are what the Framers were hoping to inspire when they drafted the 2A. Citizens meeting in secret and building up an armory because things could take a turn for the worse if a certain group of Americans with more melanin ever got the right to vote like citizens with less melanin. 😉

        2. Also “bear”. If someone is too dangerous to own and bear a firearm they are too dangerous to be loose in society.

          1. Traditionally guns outside the home have been relatively heavily regulated. So prior to 1995 one couldn’t openly carry a handgun in Texas except under very limited circumstances because Texans figured that criminals were more likely to use handguns. Btw, the Kyle Rittenhouse incident shows why going forward open carry might not be a great idea because his gun attracted the attention of a suicidal nut and a tragedy ensued. So as homelessness and mental health get worse open carry could lead to more tragedies.

    3. Well, yeah, if they’re citizens, and they haven’t yet been convicted of a crime, they have the same rights anybody else does. Does this somehow seem wrong to you?

      1. Except on the other thread a poster said it was to protect an “unorganized militia” like the Sons of Liberty that ended up bearing arms. You don’t find it strange that the Framers used the term “well regulated militia” to mean “individuals”?? Was “individual” not a word yet?? Watch out for that rake. 😉

        1. The answer is, they didn’t use the term “well regulated militia” to mean “individuals”. Notice they used both “militia” and “people” in different clauses of the 2nd amendment? That’s because they’re different things.

          A well regulated, (Properly equipped and trained.) militia is necessary to the security of a free state. So the people, not the militia, are guaranteed the right to keep and bear arms, in order that there will be an armed population from which a militia can be raised.

          Raised even if the government doesn’t WANT it to be possible for a militia to be raised. Because nothing guarantees that the people running the government will want freedom to be secure, after all.

          If the right were guaranteed to the militia itself, and not the people, then the right could be rendered moot by simply discontinuing the militia. Guaranteeing it to the people forecloses that option, and guarantees that a militia can be raised in an emergency even if the government wanted doing it to be impossible.

          Remember, the whole Bill of Rights is based on the idea that sometimes the government will want to do the wrong thing, and will need to be stopped.

          1. So you believe the Framers preferred to live in a lawless Afghanistan type country then England??? That sometimes democracy should be scrapped so a secret militia composed of a minority of people, like the KKK, can take over the country in the event of tyranny?? Once again, we had a bout with tyranny in 1861 and the state governments took the lead on resisting tyranny and they organized an army and didn’t rely on the unorganized militia. Now you are correct that at some point the KKK did come out of the woodwork and so you believe the KKK was protected by the 2A?? Very interesting. 😉

            1. No, I believe they preferred to live in a free country, not the dystopia you’d prefer they had crafted.

          2. “The answer is, they didn’t use the term “well regulated militia” to mean “individuals”. Notice they used both “militia” and “people” in different clauses of the 2nd amendment? That’s because they’re different things.”

            The thing that makes the second amendment confusing is that the two concepts are inherently linked. It doesn’t say “we want to allow militias, and by the way we also want to let people have guns”. It comes closer to saying “because we want to allow militias, we want to let people have guns”. I agree it also doesn’t say “as long as they’re using them as part of a militia we want to let people have guns”. But the middle statement is open to a lot more confusion/interpretation than either the first or the third.

            1. Notice how Scalia didn’t develop the argument “militia” refers to the “unorganized militia”. Because if he did everyone would have thought he was referring to the KKK. So he just sort of casually threw it out there and got back to discussing the individual right to self defense which everyone agrees with. If the 2A was truly limited to self defense I believe the Framers were capable of drafting an amendment that was much clearer…because the states ratified amendments that included the phrase “self defense”

            2. I’ll agree the amendment would have been better without the preface. All it really accomplishes is to confirm that the arms in question really ARE military arms, and the Supreme court doesn’t really give a damn about that, hasn’t since shortly after US v Miller was decided.

              They are linked: The private right is guaranteed so that raising a militia will always be possible even if the militia system were discontinued. Like guaranteeing a private right to own and train with firefighting equipment, because you think volunteer fire departments are superior, and worry that the mayor might end up being an arsonist, and shut down the fire department.

              1. Except according to the Framers disbanding the state militia means it is no longer a “free state”. So once again—balance liberty with order. Framers fear tyranny equally with anarchy. So if the KKK comes out of the woodwork then that means the state has failed and unless they get control of the situation they are no longer a “free state”.

                Look, I support the outcome of Heller because it is responsible and limited and in 2008 literally every American believed we had a right to keep guns in the home for self defense…it just has nothing to do with the 2A. That said just like Obergfell won’t lead to polygamy Heller won’t lead to the freeing of the Michigan militia because the Supreme Court can do whatever it wants and doesn’t have to acknowledge the logical conclusion of its rulings. Still, this is a fun thought exercise for me with my pea brain 125 IQ. 😉

                1. “Except according to the Framers disbanding the state militia means it is no longer a “free state”.”

                  You could probably pick up a copy of this: The Fallacy Detective: Thirty-Eight Lessons on How to Recognize Bad Reasoning

                  If a well regulated militia is necessary to the security of a free state, disbanding the state militia implies the free state is no longer secure. Discontinuing your homeowner’s insurance doesn’t set your house on fire, you know.

                  We do agree, though, that the Supreme court doesn’t consider itself bound by the logic of its rulings. Or logic at all, really.

                  1. Every president says homeland security is job #1. The 2A prefatory clause implores the states to take their respective militia seriously because they were neglected during the AoC…which is why the Constitution was necessary. So if Indians are raiding towns or the British are burning down the Presidential Mansion or drunk hillbillies are refusing to pay taxes or the KKK is lynching Blacks then you no longer have order which inevitably undermines liberty.

        2. I won’t speak for anyone else. But the right is an individual one. Were “state” and “government” not words yet?

          Or is it only states and other governments whose rights are protected by the First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth Amendments?

          1. So when you read the text of the 2A you think—yep, the right to keep a gun in the home for self defense…and that’s the name of that tune! I wonder why the drafters just didn’t write that instead of the word salad that is the 2A??…such a head scratcher. 😉

    4. Proving XY’s point, this is a ridiculous take on Heller. And, when was the last time you saw or heard from the KKK? Not in ignorant breathless the-sky-is-falling-it’s-raining-white-supremacists rhetoric, but hard fact-based stories.

  21. “Since what Scalia would call ‘the well-understood meaning in 1787’ of ‘judge’ did not include women, and since the only mention of women’s rights is the 19th Amendment, which is restricted to voting — wouldn’t you be always recusing yourself?”

    1. This is one of those gotchas liberals think are witty only because they don’t genuinely understand the other side, and probably don’t really care to.

      Nothing in the meaning of “judge” in 1787 would have precluded a woman from being a judge.

      1. Up there with their “You were all supportive of bailouts for banks, but now you oppose enhanced unemployment?” No, jerkoffs, I opposed both of them.

      2. How many people when they heard the word “judge” in 1787 ever envisioned a woman in their mind’s eye?

        1. Probably none, at least by Scalia’s lights. He considered the Framers to have very limited imaginations.

      3. Now you know how liberals feel reading all of Sam Gompers’s posts.

      4. “Nothing in the meaning of “judge” in 1787 would have precluded a woman from being a judge.”

        Great, so can I stop wading through Tillman & Blackman’s ridiculous historical practice arguments? Or is that just more conservative bad faith arguing? Like originalism in general.

  22. Only idiots think that the Constitution constrains immigration policy, as opposed to the rights of immigrants in the U.S.

    1. The constitution constrains the power of the government to set policy in all areas, including immigration.

  23. No questions. They shouldn’t hold a hearing at all.

    Don’t give the Democrats a platform to smear the nominee with impunity.

    Schedule a vote of the full Senate on the nomination at the earliest opportunity.

    Public committee hearings on Presidential nominees is a relatively new phenomenon. They didn’t become routine until after WWII and the very first one didn’t happen until after 1900.

    Prior to this the relevant committees would some times issue a recommendation on a nominee, but this was done without a hearing, without any testimony from anyone, without public speeches by committee members masquerading as questions.

    Also, the full Senate was not obligated to wait on said recommendation before holding a vote on the nomination.

    We should go back to this.

    1. True enough, but bad habits die hard, I guess. And once you’ve gotten Senators used to having access to TV cameras, getting them to give it up is like getting them to give up heroin.

    2. Eliminating hearings for Supreme Court nominees would come in handy next spring. I have been a bit concerned about logistics and logjams.

  24. These hearings are rent seeking lawyer, worthless make work. The questioning of the opposition is nasty hate speech, not a real inquiry for information. Wasting time on a federal salary is unethical.

  25. Why would anyone other than a lousy mother take her unmasked children, while not wearing a mask herself, to a superspreader event during a pandemic?

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