We're told that the good things Trump did outweigh all possible bad things. And we're told that Trump's SCOTUS nominations were one of his best achievements.
While I agree that better Trump nominate to the court than Biden, it also seems like the good/bad evaluation of a justice is something that is measured over a long period of time.
In this case, one of Trump's nominees joined with the liberal justices to effectively stop Texas from controlling at least parts of the US/Mexico border. It's actually possible that Barret's decision was the correct decision, but in a world where partisans expect ideological lockstep from their justices, this is probably not a welcome message.
Nonetheless, whatever the metric of good/bad that is assigned to ACB and Trump probably should take a tick toward the bad side after today's ruling.
17 comments:
FUI, this really isn't a commentary on the decision as much as it is on the people who'll say that Trump's SCOTUS picks were one of his big wins. Really just pointing out that judging a SCOTUS lick as a objectively "good" thing for Trump probably can't be done for many years.
Yet even in that, in the aggregate...as regards SCOTUS decisions...I would say those picks have been "good", though not at all perfect. But all in all, I agree that judgement is fluid while they're seated. Some rulings will be good and others not. How it will balance by the end is obviously what remains to be seen. They'll have to totally turn leftist in order to say that Clinton's choices would have served us better.
This is one area where I feel that, despite Trump's picks being in general better than what could have been imposed upon us..and all we need to is review who was responsible for the three other women on the court to see just how bad things would've been had Clinton won...Cruz in office would more likely have resulted in more picks like Thomas and Alito, since Cruz has a good grasp of the Constitution. I would like to see people like Cruz, or maybe someone like Mark Levin, be tapped by Trump to help gather selections of nominees the next time a seat opens up. These men are 75 and 73 respectively and may be thinking of retiring, or may succumb to age related health issues which would compel them to retire. Of course, soon to turn 69, I don't regard them as too old. But Old Age is a fickle oppressor.
We may indeed find in the end that Trump's picks to this point were total crap. Each has at least one problematic ruling on the balance sheet. I hope that doesn't continue, but one never knows.
By the way, I don't know what "FUI" is, unless you mean "FYI" and just mistyped.
Another BTW, I just caught a bit of Levin as I was doing a quick trip to the convenience store and he was opining on the ruling. His take was that the ruling ignored Biden's failure to fulfill his obligation to enforce the law, thus allowing Texas to defend themselves and their border as they did. (This assumes you're referring to that ruling) What authority the president has is outlined in the Constitution and without abiding the Constitution, he has no authority.
"Obviously you'd say they've been "good" because to do otherwise would undercut one of your significant reasons for supporting Trump. My point remains, that it's pointless to call them good or bad at this point."
Obviously you'd say that because you're not keen on acknowledging the good things Trump if you can help it. I say they've been "good" in the aggregate because I believe it's true. The Dobbs decision is the most prominent example which comes to mind. In a July 2 article by Clarice Feldman, she reminds us of more wonderful rulings thanks to Trump's picks:
"The Supreme Court handed down three major decisions this week, limiting an executive order that fabricated presidential authorization to forgive billions of dollars in school loans; denying governmental authority to compel people to create works that violate their free speech and freedom of religion; and prohibiting schools from considering the race of applicants in admissions in public and private institutions."
Yet again, I agree that these picks can't be judged properly until their time on the bench is concluded. But that doesn't mean we can't judge how they've done up to this point, and what they've done is more good than bad, and I'd say considerably so.
"Comparing them to any other presidents nominees seems ridiculous."
Not in the context I did so. Certainly Sotomayor, Kagan and Jackson are low bars for the purpose of weighing Trump's picks. By contrast, Thomas and Alito would represent high bars. But those three represent the quality of picks most likely to have befallen us had Trump not been elected. Jackson alone is an example of how bad it can be if a moron is elected president.
"1. Clinton supporters would argue that Clinton's choices have been good based on their subjective standards. Likewise you'll likely claim Trump's are good, presuming they do what you want."
Standards can be debated and found wanting, as we see in almost every discussion involving Dan Trabue. My standard for Supreme Court Justices is simple: following the Constitution as it was written and as it was understood at the time. How anyone would want a Justice to do otherwise is beyond me, and whether one is actually do so or not can also be debated. I'd wager I could defend or debunk a ruling of any Justice on those grounds effectively.
"2. Comparing brand new justices to justices who've been there for decades seems like an unfair comparison."
Really good thing I haven't done that.
"3. It kind of depends on what you define as good in a justice. I'd argue that a good justice is more concerned with fidelity to the constitution that to the partisan wishes of the supporters of the president that nominated them. The reality is that it's likely that a good justice could maintain high fidelity to the constitution in their decisions, while not advancing the partisan agenda of one side or the other."
This reflects my position just fine as can be seen by my response to point #1. My partisan agenda is the Constitution, so a Justice satisfies both if the Justice is true to the Constitution.
"4. The DFL has set the expectation that their justices will decide based on fulfilling the wishes of their "base". I find applying this same expectation to justices on the right problematic. I'm not sure the answer is to simply do what the other guys are doing."
Where do you see that happening on the right but where you see a right-winger concerned about fidelity to the Constitution? Again, that's my wish and I don't see that as problematic at all. It's a righteous and I'd say rational expectation. After all, it's their job and my expectation is that they do their job.
Doing their job might still result in a ruling I find improper or unfortunate. But if the argument in defense of the ruling is difficult to rebut on Constitutional grounds, they've done their jobs despite the ruling coming out against my position. Sometimes, the issue isn't the problem Constitutionally, but how attorneys for the plaintiff presented the case. That is, the Court may find favor in the intention but is bound by the Constitution to deny on the basis of a less than Constitutional argument in its favor. For example, I feel Texas did indeed have standing to plea for relief regarding the election fraud in other states, as they are impacted directly by the outcome of an election for POTUS. How could it not? But the court didn't see it that way and I believe the argument had to have been poor in order for that to happen as it did.
"5. Based on some cursory research, I think that it's likely that the constitutionally correct decision was reached. Unfortunately, the right wing social media types were out in force yesterday bashing ACB."
As I indicated by referencing Levin's argument, the president is obligated by the Constitution and his oath of office to enforce the law. He ignored his responsibility in allowing illegals to flood across our border as they have been since he took office. If the president isn't going to do his clearly defined job, his negligence leaves border states at great risk, as we've seen. They've no choice but to take action to do what the president clearly refuses to do. ACB and Roberts is hanging their hats on the fact the Constitution gives authority to the president to enforce our border policy, but he's reneged on that obligation. It doesn't give him authority to ignore the law.
"The reality is that we have the justices we have, they were put there legally, even if they weren't it's too late to do anything, and you are predisposed to dislike virtually anything those justices do because of their partisan stance."
You're free to think so, even without evidence that such is true of me at all. I dislike rulings which aren't good regardless of partisanship and you have absolutely no call to assert otherwise. The Constitution doesn't give the president authority to refuse to enforce the law. He refused to enforce the law, and any ruling deferring to the Constitution stating what authority the president has regarding the border doesn't justify that.
"We may indeed find out that Trump's picks were not as good as you think. Yet you are giving Trump credit for something that is (at best) incomplete."
We may indeed and clearly I'm only giving Trump credit for their performance THUS FAR. I've given you no call to suggest I'm doing anything beyond that. And should you decide to respond to this fact, keep in mind I've also allowed for the fact that each has at least one mark against them so far as well.
"I agree that Clinton's picks would have been subjectively worse, but that doesn't automatically make Trump's picks objectionably good. Just subjectively better than Clinton's theoretical picks."
Again, it's good I wasn't doing that.
"I'm not a constitutional scholar, but I am unaware of any constitutional provision that allows a governor to usurp something that is explicitly delegated to the federal government just because that governor believes that the feds aren't doing a "good job". Again, in this case "good job" is obviously subjective and I also don't think that that subjective opinion is enough basis to change or ignore the constitution."
As I've explained, Abbott is acting due to Biden refusing to enforce the law regarding immigration and border protection. This is an unassailable fact. And while we're talking about a national border, it's also a state border and a governor has an obligation to protect the citizens of his state, just as Biden has an obligation to protect the citizens of the nation and Biden ain't freaking doing that. Biden's refusal to do his Constitutionally mandated job is putting Texans as well as Americans at risk. If he's not doing what the Constitution mandates he must, then how is it Constitutional to deny Abbott the ability to do what his state constitution mandates of him? This ruling is excusing that abdication of Biden's and the fact that his abdication is a clearly unConstitutional action.
The difference between us us that you would say that they've been objectively "good", while I'd say that they've done some good things but it's way to early to make any sort of generalization.
The bigger point here is that it is currently impossible to reach a conclusion on their tenure as justices, regardless of what you might think. The secondary point is that judging Supreme Court justices primarily on their adherence to a partisan agenda, as opposed to their fidelity to the constitution is not the proper measure of "good" in this context.
Liberal politicians have set this standard that "good" politicians/justices are the ones who get their constituency what that constituency wants. I'd argue that partisan wish fulfillment is not the best measure of success, and that for conservatives to merely get in a wish fulfillment competition with liberals is the wrong approach.
"Really good thing I haven't done that."
Really? You literally in your #1 compared these two to Alito and Thomas. Or at least suggested that they could/should be compared to Alito/Thomas.
"Where do you see that happening on the right but where you see a right-winger concerned about fidelity to the Constitution?"
Most recently in the case in question. I'm seeing all sorts of crap being hurled at ACB because she's thrown Texas under the bus on this.
" It doesn't give him authority to ignore the law."
While I agree with this, I also don't see anything in the constitution that allows a state to usurp the powers/responsibilities of something clearly granted to the feds. The 10th amendment doesn't seem to address things that the feds are derelict in doing, only things that aren't specifically delegated to the feds.
I agree in principle that Texas is doing the right thing in stopping a small portion of the flood of people coming across the border. What concerns me is establishing the precedent that states can usurp federal responsibilities because they don't like the way the feds are performing. I'd have to look at the specific language, but I'm not sure the the constitution specifies that the borders must be controlled in a certain way. Clearly (Mr original intent) there is no way to suggest that the framers had a problem with "open borders". Hell, US policy was based on US citizens crossing the French, Spanish, British, Russian, and Native borders in order to expand the borders of the US.
Don't misunderstand me, I agree that our current border situation is being handled horribly, I just don't know if Texas (as much as I applaud them) has the constitutional authority to do what they're doing. I'm also concerned about the precedent. I suspect you'd be less enthusiastic about this situation if it was a blue state and a red federal government.
"The Constitution doesn't give the president authority to refuse to enforce the law. He refused to enforce the law, and any ruling deferring to the Constitution stating what authority the president has regarding the border doesn't justify that."
The constitution also doesn't mandate that the president enforce the law, or adopt policies in specific ways. As noted above, the framers certainly were not opposed to "open borders". But, specifically, what law are you referring to? What section of US code mandates that the borders must be controlled in a specific way?
"As I've explained, Abbott is acting due to Biden refusing to enforce the law regarding immigration and border protection."
OK, Dan< simply repeating this doesn't help. Where specifically in the constitution does it give governors the unilateral authority to usurp powers delegated to the feds? What specific law is Biden failing to enforce?
Again, I agree that the border situation has been abysmal for years, maybe decades, but the answer seems to be legislative, not usurpation.
I get it, you like what Abbott is doing, it's great PR for him and it harks back to the "Come and take it." lore of the Texas republic. But, if he's really so concerned about not enforcing the law, why is he not protecting the whole border of TX?
"If he's not doing what the Constitution mandates he must, then how is it Constitutional to deny Abbott the ability to do what his state constitution mandates of him?"
In the absence of the specific sections of the appropriate constitutions that specifically lay out border security and how that border security must be accomplished, I don't see how your claim stands.
"This ruling is excusing that abdication of Biden's and the fact that his abdication is a clearly unConstitutional action."
From what I've seen this overstates the ruling. I fail to see the problem with adjudicating the constitutionality of Abbott's and Biden's actions.
"The difference between us us that you would say that they've been objectively "good", while I'd say that they've done some good things but it's way to early to make any sort of generalization."
There's no difference between us because I'm not judging an entire career which is still ongoing. I speak only to their record thus far, which despite missteps, is good. How it may look when they retire is not at issue. I may find that their balance sheets tilt heavily towards SUCK! Until then, they're doing OK at worst in my opinion.
"The bigger point here is that it is currently impossible to reach a conclusion on their tenure as justices, regardless of what you might think."
Which is why I only judge what they've done so far.
"The secondary point is that judging Supreme Court justices primarily on their adherence to a partisan agenda, as opposed to their fidelity to the constitution is not the proper measure of "good" in this context."
My "partisan agenda" IS fidelity to the constitution. That's true even if I'm arguing whether or not a ruling demonstrates such fealty.
" I'd argue that partisan wish fulfillment is not the best measure of success, and that for conservatives to merely get in a wish fulfillment competition with liberals is the wrong approach."
What if my wish is fidelity to the Constitution? To me, that's the essence of any wish fulfillment competition which may exist between the typical conservative and lefties. We wish only that laws, actions and judicial rulings demonstrate fidelity to the constitution.
"Really? You literally in your #1 compared these two to Alito and Thomas. Or at least suggested that they could/should be compared to Alito/Thomas."
No. My point was holding up Thomas and Alito as standards by which to compare nominees. With that in mind, Kagan, Jackson and Sotomayor fell well short before nominating them, while Gorsuch, ACB and Kavanaugh are closer. I would also use Scalia as one with whom one should compare picks for the Court. I wouldn't use Ginsburg, even though Scalia was fond of her.
However, with that said, I think it's not a stretch to say the three conservative justices I mentioned are not as conservative constitutionally as Thomas, Alito OR Scalie, and Roberts doesn't seem to be so either. Or maybe they just aren't as wise in that regard despite perhaps intending to be.
"Most recently in the case in question. I'm seeing all sorts of crap being hurled at ACB because she's thrown Texas under the bus on this."
Well, I wouldn't know about what you've personally seen. So far, the only real review of this ruling with which I'm at all familiar is Mark Levin's, who's no slouch when it comes to the Constitution.
" While I agree with this, I also don't see anything in the constitution that allows a state to usurp the powers/responsibilities of something clearly granted to the feds."
Not having read the Texas state constitution, I would imagine the ruling puts any governor in a bind if the result of it means the governor must allow harm to the people he serves. I can't see how taking things into his own hands for that reason amounts to usurping federal authority if the president ignores his Constitutional mandate to see that the laws are enforced. He's doing precisely the opposite and Texans are seriously jeopardized as a result. Said another way, the feds AREN'T performing at all! That's more than a little obvious.
"Hell, US policy was based on US citizens crossing the French, Spanish, British, Russian, and Native borders in order to expand the borders of the US."
Are you really equating Americans crossing our borders to leave with foreigners illegally crossing our borders to enter? I don't think US policy was set without some sort of negotiations with those other nations. But that doesn't matter as we're speaking of what current established policy demands.
"Don't misunderstand me, I agree that our current border situation is being handled horribly, I just don't know if Texas (as much as I applaud them) has the constitutional authority to do what they're doing."
I really don't see how the Constitution necessarily prevents them from acting when the federal government refuses to do their duty under that same Constitution, but I'd have to study the Constitution to see how it might. I'd also need to read the SCOTUS opinions to see what their rationale actually is. Reading the Texas constitution, again, might inform us as to the duties and obligations of the governor as regards protecting the people he serves. There could be conflict there, not from a federalist perspective I would imagine.
"There's no difference between us because I'm not judging an entire career which is still ongoing."
Yet there is. I'm not as sold on Trump's choices being "good" long term, that I'm willing to give that factor as much positive credit as you are.
"My "partisan agenda" IS fidelity to the constitution."
This may be True, yet I can't recall you every applauding any ruling that wasn't in line with your partisan political preferences. This one is a good example so far.
You deny comparing other justices to Thomas/Scalia, then proceed to compare other justices to those two. You literally called them "standards by which to compare", but your not comparing the others to your standards.
Interesting that you're basing your certainty on ONE source, and aren't really familiar with what others are saying. Sounds like a you problem, not a me problem.
"Not having read the Texas state constitution, I would imagine.."
Interesting, you were quite certain about the Texas constitution and it's requirements earlier, yet that certainty was based on nothing it seems. I'll start by noting that the US Supreme Court ruled years ago that the role of law enforcement is not to prevent crime. Yet, you seem to be arguing that this one particular crime is so unique that it is the exception to the rule. You also seem convinced that the only possible way for Abbott (in this case) to perform the constitutional duties you assume he has, is to station national guard troops in one location directly on the border. It seems as though, with a tiny bit of creativity, it would be possible for TX to do their thing in ways other than this one specific method.
"I cant see that...", this seems to be similar to Dan's logic. The noting that your inability "to see" something means that that "something" isn't there. In this case, it should be relatively easy for you to search the constitutions in question as well as US and TX codes and find an answer based in facts. Not in your inability to "see".
"Are you really equating Americans crossing our borders to leave with foreigners illegally crossing our borders to enter?"
1. Yes.
2. When they "left" US territory, they "entered" the territory of the other listed nations.
3. You are the one who said " My standard for Supreme Court Justices is simple: following the Constitution as it was written and as it was understood at the time.". If that is the case, then it stands to reason that looking at how immigration/border security was treated "at the time" would be right in line with your standard.
"I don't think US policy was set without some sort of negotiations with those other nations."
Then you are clearly now aware of how westward expansion was handled in the early years of the US. In most cases, negotiations followed immigration because the US was trying to "protect it's citizens" who had moved to these other countries territories without permission.
"But that doesn't matter as we're speaking of what current established policy demands."
No, we're speaking about a supreme court ruling about the constitutionality of certain actions. If your "...standard for Supreme Court Justices is simple: following the Constitution as it was written and as it was understood at the time.", then it seems like you'd actually look at that.
"I really don't see how the Constitution necessarily prevents them from acting when the federal government refuses to do their duty under that same Constitution, but I'd have to study the Constitution to see how it might. I'd also need to read the SCOTUS opinions to see what their rationale actually is. Reading the Texas constitution, again, might inform us as to the duties and obligations of the governor as regards protecting the people he serves. There could be conflict there, not from a federalist perspective I would imagine."
The above being the case, perhaps it would behoove you to avoid making statements about something you clearly have very little information about.
Abbott released a letter laying out constitutional justification for his actions which does actually seem reasonable. I guess we’ll have to see if Biden is willing to use more force against TX than his is against the immigrants. Ultimately it’ll get litigated and we’ll see what happens.
Craig
Abbot references the specific sections of the constitution, and they definitely seem to apply in this situation. Perhaps more so because crime is more often a state issue than a federal issue, and so it's more on TX to protect (to the degree they can) their citizens from crime, than it is on the feds.
Federalist 46 also speaks to this situation to some degree.
The problem as I see it is that the more evidence that comes to light supporting the constitutional issues that TX is citing, the worse it makes ACB's vote on the verdict, which tips the scale away from ACB being something "good" on Trump's ledger.
"Yet there is. I'm not as sold on Trump's choices being "good" long term, that I'm willing to give that factor as much positive credit as you are."
Simply your anti-Trumpism showing. With each Justice, regardless of who it is so long as each remains on the bench, grading is incomplete. Pick one still there and pretend you can give a final grade. I'm not doing that at all, but it's not unreasonable to suggest that Trump's picks, while each having a mark or two against them, still grade better than others. Reject the notion all you want, but based on your comments so far, there's no convincing me your position isn't always tainted where there's some Trump connection.
"This may be True, yet I can't recall you every applauding any ruling that wasn't in line with your partisan political preferences. This one is a good example so far."
How many have we discussed? How many have you highlighted with a post? I can say that I was pissed at Gorsuch for his ruling on gender issues. He saw fit to regard non-descrimination on the basis of sex to include transsexuals, as if because they cut off body parts they're now the opposite sex. Pick a ruling one of Trump's picks submitted an opinion and I'll tell you if I disagree and why. Until you do, your "recall" is fairly meaningless.
"You deny comparing other justices to Thomas/Scalia, then proceed to compare other justices to those two. You literally called them "standards by which to compare", but your not comparing the others to your standards."
I'm quite certain I was clear in that I was referring to selecting those a president chooses to nominate, not those already seated. However, if it makes you happy, those who don't act in a manner similar to Thomas, Scalia and Alito are not among my faves. But to use those three as the standard by which one chooses whom to nominate is appropriate since they are examples of justices with a good grasp of the constitution and a proper interpretation according to what was intended and understood when the Constitution was ratified.
"Interesting that you're basing your certainty on ONE source, and aren't really familiar with what others are saying."
Why would I base my position on what I haven't heard? That makes no sense. I never said I wasn't open to other sources, but only that Levin is the only one I heard thus far. WTF!!!
Further more, I didn't cite him to criticize you in any way, and didn't. Again...WTF??!
"Interesting, you were quite certain about the Texas constitution and it's requirements earlier, yet that certainty was based on nothing it seems."
I've only expressed certainty in my assumption that the Texas constitution must require in some way that its governor act on behalf of the best interests of Texans, not that I know that it does. Does this really sound problematic to you? Why would I suspect it wouldn't? Why do you?
" I'll start by noting that the US Supreme Court ruled years ago that the role of law enforcement is not to prevent crime. Yet, you seem to be arguing that this one particular crime is so unique that it is the exception to the rule."
I wasn't speaking of preventing crime. I was speaking of enforcing laws. Do you not see a difference here? If the laws regarding entry require that all who wish to do so enter according to a specific protocol, law enforcement suggests officers are to be sure that's how people enter. Opening the border to allow the current flood of invaders is clearly NOT enforcing border policy. Biden is ignoring his obligation under the Constitution.
And by the way, laws are generally enforced by apprehending/arresting law breakers and subjecting them to some manifestation of justice. Doing so prevents crime, or said another way, encourages obedience to our laws which means less criminal activity and less law breaking.
Why are you giving me so much shit about this?
"You also seem convinced that the only possible way for Abbott (in this case) to perform the constitutional duties you assume he has, is to station national guard troops in one location directly on the border."
If that's what you care to imagine. In the meantime, I've never so much as hinted as such a thing. The subject of alternative methods hasn't come up, so I don't know from where you're pulling this one.
""I cant see that...", this seems to be similar to Dan's logic."
FTS, Craig! It only means that in lieu of not having read specifics of either constitution, I can't see that Abbott is prevented for acting to prevent more incursion. So again, FTS!
More later...
One more note on this evolving situation. From what I've seen the court did not actually tell TX to do or stop doing anything. There is a narrative out there that TX is defying the court. I don't think that this is an accurate assessment of the situation.
"Simply your anti-Trumpism showing."
No, it's my realism and my experience of watching justices appointed by conservative presidents drift to the left once they've got the lifetime appointment.
My point was, regarding Levin, more about your absolute certainty based on a single source, than on the single source. The notion of basing things on a single source in intelligence or journalism is that you don't do it. You always want multiple sources to confirm if at all possible.
Yes, I find it problematic when someone bases their certainty on their assumption. Of course I do. It's too easy to communicate the exact same point without the certainty.
I believe that you referenced keeping the people of TX safe, or something similar. The only way to do that is to preemptively arrest criminals before they commit crimes. The courts have held that this approach is problematic. Further, I'd be shocked if TX law addresses illegal immigration. So, if enforcing (state) laws is your reason, then LE would have to wait until those (state) laws have been violated to do much of anything,
I'm pushing back on this because I'm not impressed with the emotional, visceral, response.
Exactly my point. Based on nothing more than what you can "see", you are making claims and statements that may or may not be True because of something Levin said. It's pretty easy, do some research before you make these claims with such absolute certainty.
Whether or not you write more is immaterial to me. It's clear that you are committed to a certain narrative (or two) and that it would be almost impossible to persuade you otherwise.
While you revel in your certainty and Levin, I'll keep looking for more information and adjusting my views as I get it.
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