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Open Discussion Discuss Honesty--and Brett Kavanaugh at the General Forum; Originally Posted by pjohns Let's just be honest , please. The Democrats are not really concerned about Brett Kavanaugh's (alleged) ...

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  #21 (permalink)  
Old 10-17-2018, 08:33 AM
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Default Re: Honesty--and Brett Kavanaugh

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Originally Posted by pjohns View Post
Let's just be honest, please.

The Democrats are not really concerned about Brett Kavanaugh's (alleged) sexual exploits--either now or back in high school.

That is merely a convenient tactic to try to deny the man a seat on the Supreme Court--since he would solidify a 5-4 majority of originalists there. (When Anthony Kennedy was there, it was 4-4--and Kennedy represented the "swing" vote.)

I would have much more respect for the Democrats if they would merely say--honestly and explicitly--why they truly oppose the man, rather than trying to destroy the man's character.

But some people appear to play by the principle that the end (supposedly) justifies the means...
I would agree that the Democrats didn't want to confirm Brett Kavanaugh to the Supreme Court but it wasn't because Brett Kavanaugh was an "originalist" in his judicial opinions. Democrats have never had a problem with confirming "Originalists" to the Supreme Court. Antonin Scalia, often cited as the model of Originalism, was confirmed unanimously by the Senate (98-0). It was because Brett Kavanaugh was unsuitable for a seat on the Supreme Court for numerous reasons and there were numerous other candidates that were far superior to Brett Kavanaugh.

The allegations of sexual assault from his high school and college days were only a symptom of the problems justifying objecting to Brett Kavanaugh.

Kavanaugh was suspected of committing perjury before the Senate during testimony in 2004 and 2006. The release of Bush administration documents confirmed that Kavanaugh, at the very least, mislead the Senate Judiciary Committee in 2004 and 2006 and, at worst, blatantly lied in his testimony at that time. To mislead or lie both constitute perjury under the law.

Kavanaugh grossly misrepresented his legal position in addressing abortion before the Senate Judicial Committee by falsely claiming he adhered to the Supreme Court precedent on abortion established by the Roe v Wade and Planned Parenthood v Casey decisions. In Garza v Hargan Kavanaugh's dissenting opinion was a direct violation of Planned Parenthood v Casey because it used false arguments that would have postponed the abortion until it would have become illegal to obtain the abortion. Planned Parenthood v Casey established that the government could impose limited restrictions but that those restrictions could not infringe upon the right of a pregnant woman (of any age) to obtain an abortion.

The allegations of sexual assault from Kavanaugh's youth when he was in high school that he committed sexual assault by groping Christine Blasey Ford when drunk out of his mind were secondary to the fact that today he intentionally covered up the fact that it could have happened and he just didn't remember it. Kavanaugh was, according to several people that knew Kavanaugh at the time, a binge drinker that became aggressive and he could have easily groped a young girl while drunk out of his mind. A lot of young people do things that are inappropriate and even criminal when they're young and stupid especially when drunk. We don't hold that against them when they become responsible adults. We do hold it against them if they lie about it when they become adults.

What I find truly disturbing is the Republican position on Brett Kavanaugh that was summarized by Donald Trump when he said this weekend, "It doesn't matter, we won."

It didn't matter to the Republicans if Brett Kavanaugh had committed perjury in the past or during his recent confirmation hearings. It didn't matter if Brett Kavanaugh sexually assaulted women when he was in high school and college. I didn't matter if Brett Kavanaugh ignored the letter of the law or established Supreme Court precedent in his decisions. It didn't matter if Brett Kavanaugh demonstrated that he didn't have the judicial temperament to sit on the highest court in the land during his confirmation hearings. It didn't matter to Republicans that they had far better candidates to sit on the Supreme Court than Brett Kavanaugh.

All that mattered to the Republicans and Donald Trump was WINNING even if it meant putting the worst possible person on the US Supreme Court.

Democrats didn't oppose Kavanaugh because he was an conservative justice. They knew the seat would be filled by a conservative. Democrats opposed Kavanaugh because he wasn't a good candidate to sit on the Supreme Court.
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Old 10-17-2018, 09:20 AM
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Default Re: Honesty--and Brett Kavanaugh

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Originally Posted by ShivaTD View Post
I would agree that the Democrats didn't want to confirm Brett Kavanaugh to the Supreme Court but it wasn't because Brett Kavanaugh was an "originalist" in his judicial opinions. Democrats have never had a problem with confirming "Originalists" to the Supreme Court. Antonin Scalia, often cited as the model of Originalism, was confirmed unanimously by the Senate (98-0). It was because Brett Kavanaugh was unsuitable for a seat on the Supreme Court for numerous reasons and there were numerous other candidates that were far superior to Brett Kavanaugh.

The allegations of sexual assault from his high school and college days were only a symptom of the problems justifying objecting to Brett Kavanaugh.

Kavanaugh was suspected of committing perjury before the Senate during testimony in 2004 and 2006. The release of Bush administration documents confirmed that Kavanaugh, at the very least, mislead the Senate Judiciary Committee in 2004 and 2006 and, at worst, blatantly lied in his testimony at that time. To mislead or lie both constitute perjury under the law.

Kavanaugh grossly misrepresented his legal position in addressing abortion before the Senate Judicial Committee by falsely claiming he adhered to the Supreme Court precedent on abortion established by the Roe v Wade and Planned Parenthood v Casey decisions. In Garza v Hargan Kavanaugh's dissenting opinion was a direct violation of Planned Parenthood v Casey because it used false arguments that would have postponed the abortion until it would have become illegal to obtain the abortion. Planned Parenthood v Casey established that the government could impose limited restrictions but that those restrictions could not infringe upon the right of a pregnant woman (of any age) to obtain an abortion.

The allegations of sexual assault from Kavanaugh's youth when he was in high school that he committed sexual assault by groping Christine Blasey Ford when drunk out of his mind were secondary to the fact that today he intentionally covered up the fact that it could have happened and he just didn't remember it. Kavanaugh was, according to several people that knew Kavanaugh at the time, a binge drinker that became aggressive and he could have easily groped a young girl while drunk out of his mind. A lot of young people do things that are inappropriate and even criminal when they're young and stupid especially when drunk. We don't hold that against them when they become responsible adults. We do hold it against them if they lie about it when they become adults.

What I find truly disturbing is the Republican position on Brett Kavanaugh that was summarized by Donald Trump when he said this weekend, "It doesn't matter, we won."

It didn't matter to the Republicans if Brett Kavanaugh had committed perjury in the past or during his recent confirmation hearings. It didn't matter if Brett Kavanaugh sexually assaulted women when he was in high school and college. I didn't matter if Brett Kavanaugh ignored the letter of the law or established Supreme Court precedent in his decisions. It didn't matter if Brett Kavanaugh demonstrated that he didn't have the judicial temperament to sit on the highest court in the land during his confirmation hearings. It didn't matter to Republicans that they had far better candidates to sit on the Supreme Court than Brett Kavanaugh.

All that mattered to the Republicans and Donald Trump was WINNING even if it meant putting the worst possible person on the US Supreme Court.

Democrats didn't oppose Kavanaugh because he was an conservative justice. They knew the seat would be filled by a conservative. Democrats opposed Kavanaugh because he wasn't a good candidate to sit on the Supreme Court.
Democrats opposed Kavanaugh for the same reason they oppose everything Trump, it's called the Resistance. There was no evidence Kavanaugh misled the Judiciary back in the day or that he was going to lurch into the SCOTUS to repeal Roe. It was only after the Democrats failed at borking Kavanaugh that they trotted out the sexual misconduct smears. The hope was Democrats could scuttle the nomination then take the Senate majority so they could block Trump from filling the seat. It's Resistance politics pure and simple.

Yes, Scalia was confirmed unanimously but that was prior to Democrats wholesale enrollment in the Resistance. Contemporary Democrats actively court favor with the organized mobs of protesters intent on rendering the country ungovernable unless they get their way.
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  #23 (permalink)  
Old 10-17-2018, 10:04 AM
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Default Re: Honesty--and Brett Kavanaugh

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Originally Posted by AZRWinger View Post
Democrats opposed Kavanaugh for the same reason they oppose everything Trump, it's called the Resistance. There was no evidence Kavanaugh misled the Judiciary back in the day or that he was going to lurch into the SCOTUS to repeal Roe. It was only after the Democrats failed at borking Kavanaugh that they trotted out the sexual misconduct smears. The hope was Democrats could scuttle the nomination then take the Senate majority so they could block Trump from filling the seat. It's Resistance politics pure and simple.

Yes, Scalia was confirmed unanimously but that was prior to Democrats wholesale enrollment in the Resistance. Contemporary Democrats actively court favor with the organized mobs of protesters intent on rendering the country ungovernable unless they get their way.
There actually are documents from Kavanaugh's time working for the Bush administration recently released that establish that in 2004 and 2006 when Kavanaugh under oath denied any knowledge or involvement in the nominations of some justices, his knowledge of torture under the "enhanced interrogation" techniques, and the use of stolen information from the Democrats the documents establish that he knew and/or was involved in those cases. That's perjury even when if it was only an attempt to be misleading in his answers.

I agree that the late release of the allegations by Christine Blasey Ford is problematic but it's also irrelevant to the issue. Did Brett Kavanaugh get plastered as a binge drinker and grope (sexually assault) Dr Ford as a high school student is even secondary to the fact that Kavanaugh has implied in his current testimony that he wasn't a "binge drinker" when there are numerous people that knew him at the time that claim he was and that he got stumble and fall down drunk.

It's Kavanaugh's apparent lying or being misleading under oath today that would disqualify him from serving on the Supreme Court just related to his drinking habits when he was in school. Lying or misleading the Senate under oath is a disqualifier. Kavanaugh was given the opportunity to quantify how much he drank when he (admittedly) became over intoxicated and he refused to answer the simply question, "How many beers did you drink?"

Kavanaugh also demonstrated his lack of judicial temperament when he went far beyond just denying the allegations by initiating a partisan conspiratorial rant against Democrats while under oath. "It's the 2016 election" and "It's Hillary Clinton" and "It's an Anti-Trump conspiracy" (the same conspiracy that you refer to) that was responsible for his actions when he was in school and became over-intoxicated and very possibly groped Christine Blasey Ford or for his misleading or refusal to answer simply questions put forward to him about his drinking behavior (that other potential witnesses could have provided supportive testimony to Dr Ford's sworn testimony that Kavanaugh was staggering drunk).

But all of this still pales to the fact that the Republicans didn't care. They didn't care if Kavanaugh committed perjury. They didn't care if he was lying or misleading in his statements about his apparent binge drinking episodes where getting as drunk as humanly possible, drunk beyond the point of self-control and judgement, and drunk to the point that a person can't remember what they'd done, where he may have committed sexual assault before he was even legally an adult. Republicans didn't care that Kavanaugh demonstrated right in front of everyone, on live TV, that he didn't have the unbiased and detached temperament necessary to inspire confidence in his future decisions on the Supreme Court.

Republicans only cared about "Winning" regardless of whatever Kavanaugh did that would have prevented any previous nominee from being confirmed to the US Supreme Court. Mitch McConnell has admitted it was "all about winning" and Donald Trump has admitted it was "all about winning" in spite of the fact that most Americans, more than all of the Democrats combined, opposed the confirmation of Brett Kavanaugh.

Mitch McConnell and Donald Trump cared more about "Winning" than they cared about putting someone on the Supreme Court that undermined the confidence the American People in the Supreme Court.

Try as you might you can't blame that on the Democrats.
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Old 10-17-2018, 10:14 AM
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Default Re: Honesty--and Brett Kavanaugh

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Originally Posted by pjohns View Post
When Anthony Kennedy was there, it was 4-4--and Kennedy represented the "swing" vote.
Kennedy has often been referred to as the "swing vote" on the Supreme Court but that's very misleading. Over 80% of the time Kennedy voted with the conservative majority. A swing vote would be closer to voting 50% of the time with one side or the other.

Kennedy was an Originalists that believed in textualism and original intent. The only time he deviated from the "Conservative" opinion was on issues of the rights of the person as he believed the Original Intent of the Constitution and our government was to protect the rights of the People. When laws or actions of our government violated the Rights of the People then Kennedy would side with the "liberals" that support the Rights of the People as opposed to the "Conservatives" that don't have any problems with government violating certain rights of the people that disagree with a right-wing partisan agenda.
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Old 10-17-2018, 11:11 AM
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Default Re: Honesty--and Brett Kavanaugh

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Originally Posted by ShivaTD View Post
Kennedy has often been referred to as the "swing vote" on the Supreme Court but that's very misleading. Over 80% of the time Kennedy voted with the conservative majority. A swing vote would be closer to voting 50% of the time with one side or the other.

Kennedy was an Originalists that believed in textualism and original intent. The only time he deviated from the "Conservative" opinion was on issues of the rights of the person as he believed the Original Intent of the Constitution and our government was to protect the rights of the People. When laws or actions of our government violated the Rights of the People then Kennedy would side with the "liberals" that support the Rights of the People as opposed to the "Conservatives" that don't have any problems with government violating certain rights of the people that disagree with a right-wing partisan agenda.
Change Conservative to Progressive and right-wing to left wing and you would be correct.
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Old 10-17-2018, 04:06 PM
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Default Re: Honesty--and Brett Kavanaugh

[quote=GetAClue;951252]Change Conservative to Progressive and right-wing to left wing and you would be correct. [/QUOTE

"Conservative" and "Progressive" are political terms and if a judge is "conservative" or "progressive" then their decisions are based upon a political agenda and not the law or the Constitution.

"Originalist" and "Non-Originalist" are two theories related to how the Constitution is to be interpreted by the Supreme Court.

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There are five sources that have guided interpretation of the Constitution: (1) the text and structure of the Constitution, (2) intentions of those who drafted, voted to propose, or voted to ratify the provision in question, (3) prior precedents (usually judicial), (4) the social, political, and economic consequences of alternative interpretations, and (5) natural law. There is general agreement that the first three of these sources are appropriate guides to interpretation, but considerable disagreement as to the relative weight that should be given to the three sources when they point in different directions. Many interpreters of the Constitution have suggested that the consequences of alternative interpretations are never relevant, even when all other considerations are evenly balanced. Natural law (higher law, God's law) is now only infrequently suggested as an interpretive guide, even though many of the framers of the Constitution recognized its appropriateness. Persons who favor heavy reliance on originalist sources (text and intentions) are commonly called "originalists." Persons who favor giving a more substantial weighting to precedent, consequences, or natural law are called "non-originalists." In practice, disagreement between originalists and non-originalists often concerns whether to apply heightened judicial scrutiny to certain "fundamental rights" that are not explicitly protected in the text of the Constitution.
Theories of Constitutional Interpretation

It should be noted that both Originalists and Non-Originalists apply a textualism and original intent in their interpretation of the Constitution while the Non-Originalist may also apply pragmatism and natural rights as considerations in their final decision. Sometimes even a staunch Originalist will include pragmatism in their final decision. Antonin Scalia, an iconic Originalist, once stated that he would deviate if required because he wasn't a "nut" when it came to Constitutional interpretation. If a strictly textual interpretation resulted in significant harm and a gross injustice even Scalia would bend to that and be pragmatic in his decision to prevent the injustice or harm that would result.

Ironically Roe v Wade presents to different decision and one is an Originalist decision and one is a Non-Originalist decision. First the Supreme Court struck down all laws restricting abortion. That was an "Originalist" decision based upon the text of the Constitution that only protects the Rights of the Person, personhood begins at birth, and the woman was the only "person" with protected rights. Then, based upon a pragmatic consideration that a fetus at viability was "almost a person" and would be if removed from the womb (i.e. born) the decision invented the pragmatic "potential person" and established protections based upon the "potential rights of the potential person" none of which is included in the text or intent of the Constitution.


If Roe v Wade was to be overturned then the part that would be overturned based upon "Judicial activism" it would be the part that provides for restrictions on a woman's right to have an abortion when the fetus become naturally viable. The overturning of all anti-abortion laws was a very strict interpretation of the actual text of the Constitution.
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Old 10-17-2018, 10:52 PM
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Default Re: Honesty--and Brett Kavanaugh

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Originally Posted by ShivaTD View Post
"Conservative" and "Progressive" are political terms and if a judge is "conservative" or "progressive" then their decisions are based upon a political agenda and not the law or the Constitution.
Two points...

1)First of all, that is PATENTLY untrue...

That CAN happen, but there is nothing that automatically makes it an absolute truth...

2) Secondly, let's see what Sotomayor and Kagan are...

Elena Kagan Confirmation: I'm 'Generally Progressive'

Top 20 US Progressives: Sonia Sotomayor

According to YOUR VERY OWN LOGIC, Kagan and Sotomayor are as "non-qualified" as Kavavaugh, being "Progressive" prevents them from doing their job due to their personal "political agenda and not the law or the Constitution"...

I think your logic is absurd, but if you TRULY believe it, than at least be consistant with it and attack Kagan and Sotomayor as equally as you've done with Kavanaugh...

...or (as I suspect), you'll say "It's different"...Because it's ALWAYS "different"...
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Old 10-21-2018, 11:36 AM
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Default Re: Honesty--and Brett Kavanaugh

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Originally Posted by cnredd View Post
Two points...

1)First of all, that is PATENTLY untrue...

That CAN happen, but there is nothing that automatically makes it an absolute truth...

2) Secondly, let's see what Sotomayor and Kagan are...

Elena Kagan Confirmation: I'm 'Generally Progressive'

Top 20 US Progressives: Sonia Sotomayor

According to YOUR VERY OWN LOGIC, Kagan and Sotomayor are as "non-qualified" as Kavavaugh, being "Progressive" prevents them from doing their job due to their personal "political agenda and not the law or the Constitution"...

I think your logic is absurd, but if you TRULY believe it, than at least be consistant with it and attack Kagan and Sotomayor as equally as you've done with Kavanaugh...

...or (as I suspect), you'll say "It's different"...Because it's ALWAYS "different"...
In the link it states that Kagan said her 'political outlook is "generally progressive"' but, as I noted, this is a political statement. This is not a judicial statement on how she interprets the law and the Constitution. A political progressive is arguably more inclined to be a Non-Originalist because of politically they tend to be pragmatic and respect the unalienable rights of the person. That's not an absolute of course because they could be a strict Originalist when it comes to interpreting of the law and Constitution. Kagan was confirmed to the Supreme Court with bipartisan support.

Sotomayor is listed as a "Progressive" justice by the New Statesman America, a spinoff of the British New Statesman. In the link it erroneously claims that Sotomayor was confirmed along party lines when, in fact, 25% of Senate Republicans also voted to confirm Sotomayor to the US Supreme Court. We can also noted that prior to her confirmation to the US Supreme Court that Sotomayor was alleged to be a "judicial activist" but a review of the 1,194 Constitutional cases that Sotomayor was involved in over her time on the Second Circuit U.S. Court of Appeals failed to support that allegation.

Quote:
Monica Youn, an attorney in the Democracy Program of NYU's nonpartisan Brennan Center for Justice, presents this study of Judge Sonia Sotomayor's record. To contextualize Sotomayor's decisions and inform the ongoing debate over the U.S. Supreme Court nominee's purported history of "judicial activism," Youn looked at every constitutional case — 1,194 in total — decided by the judges of the Second Circuit U.S. Court of Appeals during Sotomayor's decade of service.

Youn finds that "fears that Judge Sotomayor is an 'activist' or 'outlier' or 'out of the mainstream' have no basis in her record of constitutional cases." Instead, Youn argues, her judicial profile is "very much in line with her colleagues."
It is also worthy of note that Kagan and Sotomayor were both in the dissent in the recent Supreme Court decision of Trump v Hawaii (the travel ban) where their arguments were based upon textualism while the five "conservative" justices presented political arguments in supporting Trump's travel ban and ignored what the law actually required.

As I noted "Originalists" and "Non-Originalists" both start with textualism and original intent when addressing a dispute under the law or Constitution. A "Non-Originalist" will also consider whether the decision based upon
"Textualism" and "Original Intent" is "Pragmatic" (i.e. would the decision cause an injustice or harm to the people of the United States) and whether it violates "unenumerated rights" protected by the 9th Amendment.

Brett Kavanaugh, in his own words, goes beyond being an Originalist or Non-Originalist when it comes to his position on the investigation, criminal indictment, and prosecution of a sitting president. Kavanaugh has claimed that not only can a sitting president not be indicted or prosecuted but goes even further in claiming the federal government can't even investigate a sitting president to address whether the president violated the law.

We can start with the fact that the issue of whether a sitting president can be indicted and prosecuted has never been resolved. The Constitution does not grant this immunity from prosecution to the president.

The argument against the indictment and prosecution has always been related to a "pragmatic" (Non-Originalist) argument. The argument is that the indictment and prosecution would interfere with the fulfillment of Presidential responsibilities under the Constitution.

The Non-Originalist making this pragmatic argument takes the position that if the president has committed "high crimes and misdemeanors" that the Congress will impeach and remove the president so that the "former" president could then be indicted and prosecuted of those "crimes" were violations of statutory laws.

There are two problems with this. First of all it assumes that if the president did violate the law that the Congress would impeach and remove the president from office but in our current "tribal" state of partisan politics that becomes unlikely. Members of the House and Senate are often more supportive of their party than they are of the United States and that would allow a "criminal president" to continue in office and that would violate the American ideology that "no person is above the law" in the United States.

Next is the fact that the criminal prosecution would be addressed by lawyers for the President and that would remove any barriers to the president fulfilling their responsibilities of office.


The pragmatic argument of the Non-Originalist basically fails because the indictment and prosecution would not interfere with the responsibilities of the President and that there's no assurances that a President would be removed from office by impeachment that would allow the prosecution.

But, as noted, Kavanaugh goes even beyond this "pragmatic" consideration of the Non-Originalist in stating that the federal government can't even investigate the president. There's no pragmatic reason to prevent the investigation. This is argument pulled directly from the
"Authoritarianism for Dummy's" book that directly violates the following First Principle of Government that America was founded upon:

Quote:
The rule of law is a First Principle that mandates that the law governs everyone
America’s First Principles

Brett Kavanaugh isn't an "Originalist" and he isn't even a "Non-Originalist" because his proposal on immunities for the President go beyond even the scope of "Non-Originalist" interpretation of the Constitution.
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