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The 115th Congress and The Trump administration

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When he is inevitably asked about the "travel ban" during the hearings, what do you think his response will be?

It'll be that he can't comment on an issue that is likely to come up before the court. That's almost a dead-certainty. But, I'd say the key is that he is a textualist, which is something a bit different from an originalist. Originalists tend to look for the "original meaning", and will often look outside the text of the law at issue to determine that meaning. Textualists focus much more heavily on the final result -- the text of the law itself, to determine that original meaning. To put it differently, an originalist is more likely to look at legislative history -- public statements made by supporters of the bill. A textualist (like Scalia or Gorsuch) will say that self-serving, biased statements prior to passage aren't what matter, because ultimately, what people vote on is the text of the law. And that there are often compromises/changes of heart along the way that make those prior statements inapplicable to the final product.

What that may mean in this context is that Gorsuch would focus on the actual text of the EO itself, not on all the campaign statements and other extrinsic evidence relating to a Muslim ban. And the EO doesn't say a word about Muslims.

My stepdad is a pretty liberal attorney who said that, while he may disagree with Gorsuch on matters of legal interpretation, he's a brilliant legal scholar. And that Gorsuch is not easy to shoe into a political box.

I think he's pretty strongly in the "textualist" box, but it is very true that doesn't always dictate consistent political results.

He's sickeningly bright, though. Incredibly agile mind.
 
It's more raising of a thought than an argument. It just seems to me that taking a couple of years to vet refugees kind of defeats the purpose of helping people who are in imminent peril.

I think you and I are actually in agreement on this.

As long as they are in areas controlled by Assad -- which is something our government was trying to ensure would not exist -- that's true.

Yeah, Obama really fucked up here. Nonetheless, the majority of Christians live in Damascus right now, and contrary to media reports are relatively safe, especially considering the civil war.


The avowed focus of BLM/ALM was interactions between citizens and police domestically -- police brutality concerns. So you wouldn't expect it to pay any particular attention to what was happening overseas, just as you wouldn't expect it to be involved with global warming. But ALM has largely died out anyway because the theme was all citizens uniting to ensure that all citizens are treated right by police, but that theme was rejected by BLM. Any Democrat, in particular, who pushed ALM was verbally attacked/badgered/harass until they recanted. You can't have a unity movement if only one side wants to participate.

Indeed, and this has been my main criticism of both groups. Their focus was overly specific, and this led to problematic views on the wide spectrum of issues. I see this more with ALM, but it is true with BLM too.

In any case -- and I freely admit this is my own bias based on my own experiences in the military -- I do not believe that you can achieve a color-blind society unless you actually work to minimize the importance of race. I thought from the outset that the net effect of BLM would be to divide people, worsen race relations, and encourage destructive radicalization, and I think that's happened. I got attacked pretty heavily for that here, but I'd say the polls and some events proved that right.

Sad thing is that I think a lot of black people felt the same way (polls showed a 2-1 preference by black Americans for ALM over BLM), but the louder, more aggressive voices drowned them out.

http://thehill.com/blogs/blog-briefing-room/251667-poll-most-black-people-prefer-all-lives-matter
Interesting stuff! I'll need to read into this some more! Thanks!
 
It'll be that he can't comment on an issue that is likely to come up before the court. That's almost a dead-certainty. But, I'd say the key is that he is a textualist, which is something a bit different from an originalist. Originalists tend to look for the "original meaning", and will often look outside the text of the law at issue to determine that meaning. Textualists focus much more heavily on the final result -- the text of the law itself, to determine that original meaning. To put it differently, an originalist is more likely to look at legislative history -- public statements made by supporters of the bill. A textualist (like Scalia or Gorsuch) will say that self-serving, biased statements prior to passage aren't what matter, because ultimately, what people vote on is the text of the law. And that there are often compromises/changes of heart along the way that make those prior statements inapplicable to the final product.

What that may mean in this context is that Gorsuch would focus on the actual text of the EO itself, not on all the campaign statements and other extrinsic evidence relating to a Muslim ban. And the EO doesn't say a word about Muslims.



I think he's pretty strongly in the "textualist" box, but it is very true that doesn't always dictate consistent political results.

He's sickeningly bright, though. Incredibly agile mind.
Awesome stuff. I really respect your opinion on these matters. So thanks a ton! I'm feeling happier about this right now. I may disagree with Scalia, but I respect the hell out of his rationality. The dude was sharp as a straight razor. If Gorsuch is even close to as bright this will be a very good choice.
 
It'll be that he can't comment on an issue that is likely to come up before the court. That's almost a dead-certainty. But, I'd say the key is that he is a textualist, which is something a bit different from an originalist. Originalists tend to look for the "original meaning", and will often look outside the text of the law at issue to determine that meaning. Textualists focus much more heavily on the final result -- the text of the law itself, to determine that original meaning. To put it differently, an originalist is more likely to look at legislative history -- public statements made by supporters of the bill. A textualist (like Scalia or Gorsuch) will say that self-serving, biased statements prior to passage aren't what matter, because ultimately, what people vote on is the text of the law. And that there are often compromises/changes of heart along the way that make those prior statements inapplicable to the final product.

What that may mean in this context is that Gorsuch would focus on the actual text of the EO itself, not on all the campaign statements and other extrinsic evidence relating to a Muslim ban. And the EO doesn't say a word about Muslims.



I think he's pretty strongly in the "textualist" box, but it is very true that doesn't always dictate consistent political results.

He's sickeningly bright, though. Incredibly agile mind.

Clearly more informed than me; isn't a judges duty in SCOTUS to interpret law? And isn't an interpretation going to have some sort of bias in regards to how you perceive the text?
 
Clearly more informed than me; isn't a judges duty in SCOTUS to interpret law? And isn't an interpretation going to have some sort of bias in regards to how you perceive the text?

I think it boils down to which law are you interpreting? The one you think the author's meant, the one you think the text states, or the one you think the text implies in society today?
 
"Clearly more informed than me; isn't a judges duty in SCOTUS to interpret law? And isn't an interpretation going to have some sort of bias in regards to how you perceive the text?"

That would be right at the heart of the divide. Some judges want to interpret the constitution in light of the prevailing current thought/cultural norms, while others seek to interpret it as the writers intended it. You get two different results.

Where I come down is that if the document had no mechanism for change, then interpreting it in light of changing cultural norms has more leeway, but since it does have a mechanism for change, judges should stick close to the original intent as it is amended.

The constitution is the definition of what the US is, and the framers intended it to be that way. They were after a nation defined by its ideas as opposed to the whim of the ruler. But ideas are fluid, and the document was a way to nail down the ideas so they could not be spun into something else.

The constitution can be changed and in fact has been changed more than once to reflect cultural shifts. If we want to expand or clarify it there is a way to do that, by expressing the will of the people through a voting process. I do not think the justices should be allowed to legislate form the bench, by "interpreting" something into the document which is not there. That practice endangers all of the parts of the constitution to the opinions of 9 people. I think we have become lazy in the sense we think we can fix whatever we think is wrong with our society through the courts, so we don't bother with actual legislation or amendment of the constitution. We view the courts as the shortcut to get what we want, which is why everyone sees control of the courts as so important to the political agenda. If the courts were more literal, and less creative with interpretation, the impact of a competent new justice would not be a political football.
 
I think we have become lazy in the sense we think we can fix whatever we think is wrong with our society through the courts, so we don't bother with actual legislation or amendment of the constitution.
I don't know that I'd say it's lazy. More than Congress is too corrupt to have 2/3rds of them vote to change it.
 
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