Quote:
Originally Posted by Ronaldo9
As an originalist I, of course, disagree slightly with this. I would like a 9-0 originalist court, frankly.
That said, I do agree with your position that one raw exercise of power invites the next. I would just note, however, that the Democratic Party would have the power to block and filibuster the ACB nomination right now except McConnell removed the filibuster on SCOTUS judges. He did that to make good on a promise he made to the Democrats that he would take that course of action if they used their 2011 Senate majority to remove the filibuster on Circuit and District court judges, which - despite the warning this would be the response - they did.
So, yes, we are seeing the raw exercise of power inviting the next, however, this process was set in motion - not this year - but in 2011 and by Harry Reid. In other words, were it not for an action taken by Harry Reid nine years ago, there would be no chance ACB will be confirmed the week after next as will happen.
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So your response is that the Dems did it first and that justifies equal retribution. Okay. I guess that's fair. It's a bit juvenile--and "He hit me first" in the schoolyard nowadays still results in both students going home. It's regrettable that option is not really available.
And if that continues, absent intervention, that'll spell the end of the significance of being a Senator rather than a Representative and we'll have a "judicial" body consisting of 30 some-odd justices acting as essentially a super-legislature. I don't want that. I would hope no one wants that. I would hope one side would pump the brakes, but everyone is so cynical, that they rightly or wrongly believe that one side pumping the breaks would simply invite the other side taking full advantage of that situation.
I'm not sure there are really any true originalists on the Court or whether there ever have been. Off of the top of my head, Scalia had a rather expansive interpretation of the interstate commerce clause when it came to finding federal jurisdiction under the interstate commerce clause exists to regulate marijuana grown entirely within a State using only implements from within the State. I've found "originalist" judges are often using originalist arguments to complete the mental gymnastics necessary to obtain a certain result, e.g., reading the Second Amendment's clause regarding "a well-regulated militia" to essentially be without meaning or importance in interpreting the right to bear arms.
I used to think I was an originalist. Then I went to law school and saw how inconsistently the philosophy was applied. And now I'm a lawyer who uses whatever argument to advance my cause which I think has a chance at working. Was I to serve on the bench, I would aspire to originalism, but recognize it's a much more squishy proposition than anyone wants to admit considering the Bill of Rights contains that whole 9th Amendment thing.