The Pardu

The Pardu
Watchful eyes and ears feed the brain, thus nourishing the brain cells.

Friday, September 28, 2018

As Trump's World Turns: SCOTUS Justice Temperament




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Oh, how our word has changed. Yesterday as I watched parts of the Kavanaugh Senate Hearing, I was struck by a few displays of personal traits (either coached, natural or both) from Trump's nominee.

A couple of points emerge. If Kavanaugh actually wrote the words you are about to hear (and see), he doesn't fit the SCOTUS profile delineated in the 2005 blog post.  Another point.  If the comment was written for the nominee. it is obvious he is little more than a judicial activist vying to enhance conservative America's grip on the US SCOTUS. Either scenario is frightful.

Watch as Kavanaugh clearly denotes to trump and conservative America the level to which he is immersed in conservatism.


In 2005, Melinda Penner posted an opinion on the Stand for Reason web page. The option related to the temperament of SCOTUS Justices and the critical nature of Justices who will uphold the US Constitution Vs serving as an activist from either political lean. Remember what follows is an opinion piece, but we feel it offers a cogent treatise on Judicial temperament at the SCOTUS level. We identified one glowing misuse of a word but left other grammatical punctuation use as originally posted. 

Stand for Reason


SCOTUS Temperament

What kind of temperament best serves a justice of the Supreme Court - and lower courts? There's an important difference between being an originalist/activist justice and being a conservative/liberal (or whatever synonym you want to use). The former are descriptions of Constitutional philosophy, the later (SIC latter) are political opinions or views. Judges are to have neutral temperaments. They are not to substitute their personal political opinions for the judgment of the electorate expressed through legitimate democratic processes when the law is not un-Constitutional. Some laws may not be wise, but that doesn't necessarily mean they are un-Constitutional. We don't need activist judges who too often don't respect the democratic process - whether they are politically conservative or liberal. Neither personal opinion should be expressed in judicial findings.
What we need are judges who are temperamentally originalist, who base their findings on the principles expressed in the Constitution, and who respect the judgment of the people. Originalists might be politically conservative or liberal, but because of their temperament their personal opinions are irrelevant. That's why it's inappropriate to inquire about their views ahead of time. And with originalists it doesn't matter, because what matters is interpreting the principles of the Constitution.
I'll say one other thing about judicial temperament. We need judges with a humble and accurate assessment of their role in government. The judiciary is a third equal branch of government, with its own important role. But because justices are appointed rather than elected, we leave much of the checks and balance of this branch to their own temperament. So we need to know they recognize their role as interpreting the Constitution, rather than substituting their own judgment for other democratic processes.

Kavanaugh clearly fails the parameters delineated in the Penner post.  But, does it matter?  A full half of American voters opted out of the 2016 Genera Election thus offering up our nation to what seems an authoritarian candidate. A man who once elected quickly embarked on placing his stamp on or molding a nation which in many ways appears like Putin's Russia.  


For an audience of one.

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It is also critical to recall, authoritarian states are propped up by judicial systems which facilitate and support the wishes and whims of the leader.

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