Judge Barrett has issued the text of her remarks ahead of the hearings.
She is President Trump’s third nominee and the hearings are liable to be contentious, one hopes the sort of accusations raised against Mr Kavanaugh will not occur.
It is to be noted that election year nominations to the Supreme Court have happened a significant number of times since the 1790’s. Over the past century and more, several times, nominees proposed by a president of one party with a Senate dominated by the other have failed, while same-party nominations have typically gone through. The US Constitution simply stipulates Presidential nomination and Senate “advice and consent.”
In past decades, such were not contentious, but the Court has deteriorated into being a life-tenure, super legislature.
It seems that that needs to be reformed and increasing the number of such legislators (court packing) is not a solution. Legislating from the life tenure bench is part of the problem, not a solution. The restoration of a recognition that we are inherently morally governed through built in law involving justice, i.e. natural law, seems to be a start point for judicial reform. There is a broad need to restore a more balanced order and some sort of term of office limit process may help. Say, one may ponder: limit at age seventy and/or seven years, with a phase in period that allows a gradual overlap.
For sure, a process that turns nomination into a media lynching by accusations, leaks etc only serves to feed fatal disaffection.
It is time for fresh, sound thinking. END
Judge Amy Coney Barrett begins US Supreme Court nomination hearings
Don’t worry, she’ll end up guaranteeing abortion just like the predecessor. The Supremes have never done anything less than perfectly evil since 1803. The only difference is that this new demon is easier on the eyes than the previous grotesquely horrible demon.
To be fair, using the words in the constitution to interpret the intent of the founding fathers is not an easy task. The versions of the amendments ratified by each state often have different punctuations, which can muddy the interpretation.
Live hearings https://www.dailymail.co.uk/ushome/index.html
Does she ever actually get to speak at this “hearing” besides her opening statement?
WJM, there will be questions. KF
MMT,
I pause on your complaints regarding text. Obviously, at that time, given printing technology, variants were all but unavoidable. However, the actual originals as written out are on display in the National Archives of the US (with scans available online). In addition, accurate transcripts are:
CONST: https://www.archives.gov/founding-docs/constitution-transcript
BILL OF RIGHTS (= Amdts 1 – 10): https://www.archives.gov/founding-docs/bill-of-rights-transcript
In short, the authoritative, fair on the face text coming from due chain of custody and/or repository is readily accessible. Further to this the Federalist and Antifederalist papers, other historical sources and a copious continuous academic/legal and historical literature down to today are readily accessible. So, it isn’t a matter of typos in copies circulated in the 1780’s however interesting such may be for textual criticism.
The issue is deeper.
It is not even original text and objectively credible meaning. That, too, falls into the trap of legal positivism. No, the pivot is that the US Constitution and Bill of Rights exist in the historic frame of recognised moral government of responsible, rational creatures through intelligible first principles of justice and sound community order. Precisely as was envisioned in the US DoI and wider context. Such built-in law tracing to first duties and principles that have long been recognised stabilises law by bringing us to recognise our limits and responsibilities. Such is why, for example, I have often put on the table a summary:
A classic description of course traces to the last lion of the Roman Republic, Cicero:
It is because we have been led to disregard such roots (starting with the legal profession itself) that we are in the current peril. A peril reflected in the folly of turning a last court of appeal into a life tenure, appointed super-legislature.
Which is the context for the current lawfare front battle in the US 4G civil war.
KF
The questions are a formality and the confirmation hearings little more than street theater.
The right-wing Federalist Society has connived with the White House to put up candidates with what they judge to be impeccable conservative credentials. If McConnell can rally enough Republican votes in the Senate then Barrett will be confirmed and Trump will have packed the Court with right-wing justices who will decide the way he wants because they owe some measure of loyalty to their sponsors. There are already rumblings from the Democratic side that if they win the election they will increase the number of seats and counter-pack the Supreme Court with liberal justices. This risks turning the Court into a political football and it would seriously undermine its credibility by increasing popular disaffection with it.
The authority of any court ultimately relies on the people trusting that the court will administer justice fairly and impartially. If it is possible to skew it into a partisan body, as Trump clearly is trying to do, then there is a case for a constitutional amendment to reform the structure of the court and prevent such a thing ever happening again.
The problem for any society is that, where there are irreconcilable differences of opinion on any issue, they must either be referred to some supreme body of arbitration by whose decisions all sides agree to be bound or eventually they will be decided by violence.
We should have no truck with complaints about legislating from the bench as they almost invariably emanate from those who disagree with the Court’s opinion. If there is sufficient support for the belief that the Court has overstepped the bounds of its authority then there is a legislature available to enact corrective measures.
We should also be wary of appeals to “natural law”. All to often it appears to be nothing more than a euphemism which makes a unwarranted attempt to elevate the personal beliefs of the proponent to the status of a well-established universal physical law. The best answer to that, in my view, comes from a 17th century Roman Catholic theologian called Pierre Charron who wrote in his work De La Sagesse (1601)
What is meant by the term, “right-wing?”
I have never seen a coherent definition of it.
While you are at it, define conservative too. I consider my self conservative (conserving want is good for society) but haven’t a clue how the term “right-wing” applies since I don’t know what its definition.
Seversky,
You have used intemperate, even slanderous language:
The reality is, that for cause, Ms Barrett has been given outstanding ratings as a US Supreme Court candidate. She is conservative, apparently an originalist. This means, likely to object to some of the more outrageous cases of legislation from the judicial bench of a court now deteriorated into a life-tenure, appointed superlegislature hitherto dominated by the factions that pushed for such rulings. Where, if you do not recognise the extreme danger of oligarchy that in effect makes up rulings under colour of law out of thin air, that in itself speaks volumes.
One of those rulings is directly responsible for the holocaust of 63+ million unborn children under US jurisdictions.
We have every right to read back from the projections to the source.
KF
KF
Actually, the typos do matter because it is these slightly variant texts that are ratified by each state, not the original text.
MMT, no. The mutual intent to pass a common constitution on ratification by nine states is what counts and people of that time were perfectly capable of seeing differences, recognising typos by comparison then accepting what is correct. Recall, the first Bible published in America, by Congressional authorisation, had some notorious typos (some, amusing). This is part of why original INTENT is relevant. Besides, the underlying context is recognition of deeper built in law — the laws of nature and of nature’s God, who endowed with unalienable rights (duly balanced with freedoms and responsibilities) — beyond whatever text was there, as the DoI so clearly acknowledges, there being a collective right to reform and if necessary replace failed government. In fact this was what the Constitution was, a second attempt, as the convention called to fix problems with the confederation of 1778, found it advisable to do a radical overhaul, nearly failed then broke through thanks to the Connecticut compromise to balance large and small states that there is talk of undoing now. What is now happening is ill considered manipulative attempt to overthrow. KF
PS: A significant aspect of your argument is the now dominant but fatally flawed view that law is whatever those with power decree, in the end; legal positivism. This directly leads to nihilism.
PPS: It is noteworthy that to try to persuade you implicitly appeal to what you and others have studiously evaded for months, the inescapable first duties of reason and their significance. Which lie at the heart of what law is and what law implies about us and our world.
F/N: As this lies at the unacknowledged heart of the debates and lawfare over this nomination hearing, I again clip a summary:
Let me also note from Locke, showing aspects that are often overlooked:
F/N: Let us contrast here, due interpretation on laws informed by context, relevance, comparable cases and precedents (a fortiori reasoning) and making up and imposing decrees by abuse of judicial position.
A bit of borrowing from Biblical hermeneutics [the classic context in which interpretation of longstanding text was developed as a technical art], will help. We contrast EXEGESIS, drawing out of text what is truly there as manifested in text [so, relevant language study], grammar, history, context, genre etc with EISEGESIS that reads into the text what cannot justly be drawn out of it. And of course we have whole cloth INVENTION and imposition of traditions that layer by layer may twist A into ~A.
Obviously, we are prone to error and interests may gradually impose their will, then demand superseding of what was original by the tradition and power structures they impose. This leads to the power of reformation, and if necessary revolution — where. the general election is a structured means of audit, replacement, reform and revolution. Here, however, there is not an unlimited power to vote in injustice and folly, hence the underlying premise of intelligible natural, built in law rooted in justice so the due balance of rights, freedoms and responsibilities of significantly free, morally governed creatures. Hence, the first principles and duties already pointed out. Notice, these INCLUDE first principles of right reason, i.e. identity, non-contradiction, excluded middle and many other principles. There is a reason why Cicero noted that the received consensus of his time was that law is “highest reason,” applied to moral government, i.e. justice. Where a fortiori reasoning is particularly relevant in legal contexts: how much more so, likewise, etc.
In said light, let us closely observe US DoI, 1776:
Here, we can see relevant context, the US Constitution being a reformation effort after the Articles of Confederation 1778 broke down.
Now, too, let us hear a voice from 1856:
Now, this readily becomes complex and technical, and law is notorious for obscure, rare, exacting terms, some still in the Latin or French. For instance to devise applies to passing on real property and to bequeath to personal, in the context of a will. Where in turn:
It is in this context that we must now go forward in sound reformation.
KF
The Democrats are making up a bunch of stuff and flinging it around in the hope that something sticks. And it’s very telling that the media is silent on their cowardly tactics.
Media amplified lawfare and agit prop. The court corrupted already into a life tenure super legislature is at stake and is under siege by a woman with the intellectual horsepower to deliver a breakthrough.
F/N: Note Wash Post oped:
This is utterly wrong-headed.
To fix it — and this sort of thinking is widespread in our civilisation, not just the USA — we need to reassess what law is at root and how our tendency to wrench it into rules imposed by power-holders distorts that.
Webster’s 1828 is helpful:
Here, we see law as a function of government, setting and upholding rules of civilised conduct, but with due recognition of an underlying regulation built into our rational, responsible, significantly free, morally governed nature. That regulation is testified to by sound conscience and the counsels of prudence, shaped by recognising others of like nature as our neighbours. In that context, justice is the due balance of rights, freedoms and responsibilities. That accountability restrains rules and rulings issued under colour of law, with the further premises of constitutional democracy that the judiciary should be politically independent, impartial, and should seek to elucidate, balance and apply the law rather than try to rewrite it under colour of making due judgements guided by objective facts and sound canons of correct interpretation. Where, antecedently, laws to be duly passed are bound under the duty of justice; as error is possible, provision for due deliberation, checks and balances on passage and for effective means of amendment are required.
Such is particularly important as judges are generally not accountable before the electorate on a periodic basis. Those who issue law should be accountable to the people so that the collective right of reformation can be applied. If instead judges and courts become an ideologised unaccountable oligarchy, the resulting polarisation, manipulation and domination open the door to the proverbial long train of abuses and usurpations; then, the time for drastic reformation has come.
In the case of the USA, the holocaust of 63+ million of living posterity in the womb, just by itself, is such a long train, and there are others. The patience to seek to restore judges who rule under the law rather than making it out of whole cloth, reflects a lawful intent of those seeking reform. And here, they are acting through representatives duly in office through proper election. Now, that has reached tipping point, after nearly 50 years of an arbitrary and murderously unjust ruling that has cost 63 millions their lives and has led to distortion and corruption of government, media, key professions and much more.
Accordingly, those who have been trying to paint this as illegitimate or even nazi-like are telling us a lot about themselves.
The threat to try to overturn this point by imposing a slate of additional judges to carry forward injustice under colour of law, so called court packing; speaks. If it succeeds, predictably, the American constitutional framework will be drastically, radically rewritten, through a patently lawless oligarchy.
The consequences of such would be horrific.
Not only for the USA but the whole world. We are all stakeholders on this; it is not just mere political moves and countermoves for one jurisdiction among many.
Instead, let those who have enabled the ideologisation and corruption of courts into legislatures stop. Argue whatever case can be made that the unborn have no natural law right to life and pass it through legislatures, then let such pass constitutional muster.
In the end, history will judge.
KF
F/N: Sen Ted Cruz, on the Super-Legislature issue, clipping a partial transcript:
Judge Amy Barrett had a mic dropping moment yesterday. When asked about the notes she was reading from to answer the questions posed to her, she help up a blank note pad. Everything was in her head.
Yes, she is that intelligent.
F/N: Further questioning https://www.upi.com/Top_News/US/2020/10/14/Amy-Coney-Barrett-says-Supreme-Court-cant-enforce-rulings/3321602669656/ it seems there are repeated attempts to get her to overstep prudence or give gaps that can be exploited for making accusatory headlines. She noted, correctly, that Courts rely on other arms of Gov’t to enforce their rulings. Prosecutors and police are not generally directed by the courts, unlike the case of investigatory magistrates in Roman Law jurisdictions such as Italy. There are observations on grandstanding by politicians to the point of sometimes sidelining the judge. There is of course concern over possible smear attempts. It is obvious that, on balance Ms Barrett has more than held her own and indeed the blank notepad moment is iconic of her expertise, situation awareness, balance and intellectual horsepower in a high stress, outright dangerous situation where people are trying to trap and discredit her. KF
F/N: Troubling aspects of “Constitutionality”. In much of the reference to the US Constitution, there is a hint of abandonment of its underlying frame of reference, the built in law that governs us through justice, prudence etc. There is a long term need to address this and its implication, that there is a need to grapple with our inescapably morally governed nature. KF
PS: I again note, as so often (and the studious evasion by inveterate objectors is telling):
Where, Epictetus takes up the logic aspect:
And, here is Blackstone:
We have some rethinking to do as a civilisation.
F/N: I am beginning to be inclined to the view that Constitutions now require an educational preamble that not only speaks to circumstances (including history), aspirations and concerns but first principles of law . . . including, reference to the universality of said principles built into us as responsible, rational, morally governed creatures bound to the due balance of rights, freedoms and responsibilities (i.e. to justice) . . . and a commitment to canons of good government and wider governance. In the case of the US Constitution, the DoI serves an educational function and frames the whole on first principles of natural law. And as a natural law document — contrary to common assertions — it does claim legal, generally binding force in that aspect. It should be seen in that light as being comparable to Magna Carta, 1215. KF
PS: Let us note, again:
Of course the US Constitution was a second attempt to deliver on new government, and was legitimate through this, even though the specific remit of the convention was exceeded. It then went to referenda for ratification to demonstrate consent of the governed.
Such brings out the universal law aspect of natural law, as opposed to whatever may be common practice of jurisdictions or a treaty (such as the UN Charter). For, insofar as a piece of legal argument successfully soundly lays out our built-in moral government in ways enforceable by legitimate government (as opposed to personal ethics etc), it is generally . . . globally . . . binding. We could term this The Universality of Sound Natural Law principle.
As an immediate application, the discoveries summarised in the US DoI regarding the rights-pivot of Law and Government (thus, the justice principle) would be properly regarded as legal reasoning pointing to binding universal law. Such law can indeed be disregarded, but only on pain of absurdity and needless chaos. Thus, too, we see the pivotal importance of effective means of reformation through the legitimate expression of the consent of the governed. This points to the significance of regular general elections, referenda and right to petition. Likewise, freedom of conscience, expression, publication and association duly tempered by the fairness import of due balance. That is, for yardstick instance, freedom to express and publish does not confer a right to defame. No one owes the duty of having their innocent reputation hostage to your ill-governed tongue or pen.
In this sense, sound conscience is a legislator, as Cicero noted.
Laws written by man tend to be much less complex than laws written by God. In the United States, there are 2 parts that any federal judge is required to use if they value law over usurpation of legislative powers. The first is the Supremacy Clause, which states anything is the US Constitution takes precedence over what is done at the state and local level. The 10th Amendment reaffirms the Supremacy Clause, when it makes clear anything not in the US Constitution is left to the states. US Code is not part of the Constitution. If something a state does is not included in the US Constitution, it is not a federal issue.
No wonder people have problems with objective morality of God’s laws are that complex.
Bob O’H/24
Maybe they need to be redrafted. Stop all that legislating from the pulpit.
Bob O’H:
Only the dim people have problems with objective morality.
BO’H, Seversky, BR:
First, human beings are complex and meet complex circumstances, so regulation will inevitably manifest complications. How one proceeds to evaluate more/less complex is of course a matter of metrics and I am not at all convinced that human moral reasoning is “uncontaminated” by the impact of the Divine, starting with sound conscience as a candle within.
In that light, I had at first thought to just let BR’s comment stand with opportunity to clarify. However, obviously, it was seen as a rhetorical opportunity to pounce; reflecting the point that just about everything here at UD is subject to hostile scrutiny. That then speaks volumes regarding the persistent silence for many months in reply to:
Such reasoning is unavoidably complex, but so is core reasoning on just about any other subject where many aspects have to be taken due note of. Consider, say, the axiomatisation of number theory or any reasonably complex contract.
At the same time, we can make a little observation on the above exchange: those who raised objections cannot escape appeals to said first duties. That is, we have here identified an objective core of morality. Of course, the seven principles and how they work together can become complex. That is inevitable, starting with Pilate’s notorious, what is truth. To which, a decisive first answer is, from Ari, that truth says of what is that it is; and of what is not that it is not. Accurate description of reality, which in a world of finite, fallible, morally struggling too often ill-willed people, then leads to others in the chain: first principles of reasoning, prudence, fairness, justice, need to listen to sound conscience etc. So, each points to the others and we find a tightly integrated whole. Which is complex.
However, the core of moral obligation turns on principles sufficiently clear that a child can initially grasp them. For instance, that we are all formed of one blood and participate in the grace of life so have a mutuality that leads to the neighbour-love pivotal principle. And here is some direct scripture on that subject:
Yes, that is the context for Golden Rule ethics as taught by the Judaeo-Christian tradition.
Where, the challenge of impartial judgement is directly relevant to the current hearings and the issue that there is obvious intent to pack the US Supreme Court with several additional, ideologically driven judges to restore dominance by progressivists and to exploit its corruption into a super legislature. In that context, it is significant to note the projections and accusations against a candidate who is eminently qualified but threatens to return to the view that judges are to soundly interpret and apply the law rather than invent by legislating from the bench. Precisely, because lawmakers should be accountable to the voting public so that the principle of reformation by the people advocated in the 1776 US DoI will be effective.
Should court packing succeed, not only will there be accelerated enabling of the worst holocaust in history but it is obvious that core rights recognitions will be gutted in favour of a progressivist, culture form marxist, critical x-theory agenda. First, second, fourth and tenth amendment provisions, in particular, are on the obvious target list. And at this stage evasions and denials aren’t worth the bits used to store them.
Yes, the abortion issue has metastasised into the potential ruin of the USA. Blood guilt is the most corrupting influence of all.
KF
F/N: Anti-Christian bigotry in protests against Mrs Barrett: “Amy Coney Barrett is a Christian theocrat” In fact, she is a distinguished jurist and clearly demonstrates sound knowledge of the US Constitutional framework. This is yet another case for the mirror principle, which points to the pernicious influence of the abortion agenda. KF
PS: It seems Mrs Barrett has done very well, on the whole, through the hearings. Certainly, she has impressed many.
F/N: To refocus, let me again put on the table a [slightly expanded] summary of the core of law:
It is in that context that we may ponder Mrs Barrett as an originalist. Which, has recently been challenged on claimed grounds that the post Civil War Amendments constituted a new constitution that in effect marked a second framing, one by implication ignored by Mr Scalia and his once clerk, Mrs Barrett.
Nonsense, sound reformation and emphatic clarification are not usurpation, supplanting or radical replacement. Yes, the issue of personal liberty and associated rights had to be hammered home by force of arms at cost of 600,000 needlessly lost lives, but tell me what is in those amendments that is not implicit in a certain notably foundational bit of natural law reasoning i/l/o the principles just noted:
Do, tell us, just what is there about the universality of what is drawn out as sound, built in law of our morally governed nature that is invented novelty (as opposed to, drawn out discovery and clarification)?
If something is indeed the natural law on a key matter, it was always there; it is our blindness, limited error-prone rationality and hardness of heart that suppressed it. So, when it is drawn out, we should rather recognise, prize and celebrate. Of course, one man’s reform is another man’s rebuke. However, once it is sound, it becomes duty to acknowledge its place in the canon of core principles of justice and sound order in community and family. Which, is the pivot of sound reformation.
In that context, we come to another form of reformation, counter-cultural restoration of what was once evident but which through “a long train of abuses and usurpations” has been suppressed, supplanted, disregarded. Here is a classic description of such, from what seems to have been a circular letter to churches c. 61 AD, written by a Missionary and appeals prisoner chained to a guard:
If our civilisation is to be restored to soundness, such will have to be the pivot.
And no, such is not Christofascist, theocratic tyranny. That is a hateful slander that will have to be rejected.
Coming back to judicial soundness, I am reminded of a provision of the Cayman Islands Constitution, by which Judges are instructed to draft in effect petitions to parliament, where they find a significant flaw in law up to and including the Constitution. (Of course, recently, a judge tried to short-circuit this, asserting power to in effect constitute himself a one man Constitutional Convention not accountable to the public, rewriting the Constitution as he willed. That is how far gone jurisprudential thought has fallen in our day of legal positivist will to power.)
We need to do some serious re-thinking. We are at kairos, needlessly but by our chosen march of folly in the notorious Ac 27 storm, with a ship of state already in seriously damaged condition.
Can we steer away from the sand bars of Syrtis and find our way to a haven, a Melita (Malta)?
In coming weeks and months across what is left of 2020 and across 2021, we will learn.
Learn, through pain and loss, needless loss occasioned by stubbornly blind march of folly.
For shame!
KF