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Post 23 Mar 2017, 5:08 pm

geojanes wrote:Was there another Supreme Court Justice that was comparable? I was not aware.


Of course you're not aware. Democrats always like to be outraged. Playing victim suits them.

As I demonstrated in Monday’s column, Democratic efforts to claim that Judge Gorsuch should be defeated because Republicans “stole” a seat that rightfully belonged to Merrick Garland and President Obama collapse when you look at the history of election-year nominations. This is the seventh time that the Senate has left an election-year Supreme Court vacancy open for the next president, and of the ten such vacancies to happen when the president and the Senate were from different parties, six were left vacant, three were confirmed after Election Day in favor of the party that won the election, and only one (in 1888) was confirmed before Election Day.

There are a couple of common responses to this. One is to note that the Senate confirmed Anthony Kennedy, a Reagan appointee, in the election year of 1988. But Justice Kennedy was a victory for Democrats on a vacancy that long predated an election they ended up losing badly. Lewis Powell’s swing seat came open in June 1987, and Reagan’s first two, more conservative choices were thwarted (Bork by his defeat in the Senate, Douglas Ginsburg by withdrawal). The Senate in February 1988 — after more than seven months of delay, and a week before the Iowa caucus – confirmed an Earl Warren protégé who would go on to deliver massive victories for liberals on a number of key cultural issues (such as abortion and same-sex marriage). Moreover, Democrats in 1988 were acting in their partisan self-interest in taking the Kennedy nomination while they could, rather than run the 1988 campaign on cultural wedge issues (exactly what their nominee, Michael Dukakis, tried and failed to avoid).

The second is to complain that Garland never got an up-or-down vote. But as I noted in my column, majority parties in the Senate have used a variety of procedural devices to thwart Supreme Court nominees; of the 34 failed nominations (not counting one who was withdrawn and resubmitted for technical reasons), only twelve received a direct vote, and five were withdrawn in the face of opposition. The rest were prevented from moving forward due to a variety of Senate procedures. Some of those involved a vote on the record to table the nomination, some did not (William Micou’s nomination by Millard Fillmore in 1853 died without any action by the Senate). But Garland would have received a vote if there had been significant defections from the GOP majority; the absence of such defections (aside from Mark Kirk) means that a majority decided not to confirm him. A filibuster by a minority of the Senate would have been a radical step, but in this case, it was the Senate majority exercising its power.

Democrats are hardly on pristine ground here. Since the bipartisan (24 Republicans and 19 conservative Democrats) 1968 election-year filibuster of Abe Fortas and Homer Thornberry, there have been two efforts at filibusters of Supreme Court nominees, both by Democrats: against Samuel Alito and William Rehnquist. There’s some debate over whether the first of Rehnquist’s nominations can truly considered to have been filibustered: in 1971, Democrats denied that they were filibustering him, then defeated a Republican cloture motion (the 52–42 margin for cloture fell short of the 67 votes then required), but proceeded to allow an immediate vote. But in 1986, when he was nominated for chief justice, a cloture motion was filed to stop a Ted Kennedy filibuster, and passed 68–31, with sixteen Democrats voting for cloture and 31 against (senators voting against cloture included Joe Biden, John Kerry, and Al Gore). A more organized effort, led by Kerry, was made to filibuster Alito. This time, cloture passed by a vote of 72–25, with Kerry, Kennedy, and Biden now joined by Barack Obama, Hillary Clinton, Chuck Schumer, and Dick Durbin, among others, voting to filibuster Alito’s nomination.

Read more at: http://www.nationalreview.com/corner/44 ... et-hearing


For the record, it seems like Gorsuch is a good guy and a reasonable choice, but I completely understand the D's desire to show the R's that there has to be payback. And how is that position childish? One of the most important thing a parent does is teach their kids that there are consequences . . .


Yes, there are consequences. Clinton lost.

Deal with it.
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Post 23 Mar 2017, 7:13 pm

Doctor Fate wrote:
For the record, it seems like Gorsuch is a good guy and a reasonable choice, but I completely understand the D's desire to show the R's that there has to be payback. And how is that position childish? One of the most important thing a parent does is teach their kids that there are consequences . . .


Yes, there are consequences. Clinton lost.

Deal with it.


Oh please. This has nothing to do with Clinton. Bad behavior needs a response. Let people walk all over you, no matter who they are, and they'll keep doing it. This is the political version of that lesson we've all learned one way or another. Yes, elections have consequences, for sure, but any Gorsuch payback has zero to do with the presidential election.

But we'll see. It's not like the Dems show a lot of backbone. They may just cave.
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Post 24 Mar 2017, 5:58 am

The real difference between the parties is success. The Republicans used the rules to their advantage (which appeals to the hard core) and were successful (which appeals to the rest of the party). They look good to their base and they delivered. The Democrats are using the rules to their advantage but will be unsuccessful. That may appeal to the base, but it does not garner respect among anyone else. It's not a winning formula. It's better to win graciously than petulantly (neither party). It's better to win petulantly than to lose graciously (Republicans). It's better to lose graciously than to lose petulantly. It's worst to lose petulantly (Democrats).
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Post 24 Mar 2017, 6:23 am

rayjay
The real difference between the parties is success.


You think whats going on in Washington now is "success"?
If Trump Care doesn't pass today, doesn't it demonstrate that republicans, as a party, can't govern ?
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Post 24 Mar 2017, 7:39 am

freeman3 wrote:Exactly. Fairness demands that every Democrat vote against Gorsuch as retaliation for refusal to consider Garland. That was absurd and there is no simply no good reason to accept whoever Trump nominates until that is corrected.

By the way, Gorsuch's dissent in Maddin v.Transam where he refuses to grant deference to the DOL's construction of a federal statute--said dissent by Gorsuch would have forced truckers stranded in freezing temperatures to opt between risking death or leaving their vehicle and face being fired-is appalling.


I think you are focusing on the wrong agent. As Gorsuch pointed out, it was the Company's decision whether to apply mercy and common sense to the trucker's situation and not treat it like a zero-tolerance company policy. That is where you should cast your "appalling" sentiment.

As a judge, he is bound to go by the law as written, which does not deal with the situation. If people want this law to consider such life-saving situations, for example, it is the duty of Congress to amend the law in that way. It is not the role of the court to change the law to fit the circumstances. It is then not a law, but simply a guideline to be used any way a judge personally feels.

And isn't that what was want judges to do? Rule, not legislate?
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Post 24 Mar 2017, 7:51 am

rickyp wrote:rayjay
The real difference between the parties is success.


You think whats going on in Washington now is "success"?
If Trump Care doesn't pass today, doesn't it demonstrate that republicans, as a party, can't govern ?


I was talking about the supreme court ... see the topic and the other comments .. you on the other hand continue to have conversations with the voices in your head. Leave me out of it.
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Post 24 Mar 2017, 8:27 am

if Trumps plan does not pass it means the Republicans "can't govern"?
One bill, a really BIG one doesn't pass right away and they can't govern?

How long did it take Obama to push through Obamacare?
and as it is, he pushed through a watered down product he himself nor the Democrat party did not really prefer. But no, if the Republicans can't immediately push this through, they "can't govern". I heard it all now, yes, only the Democrats can govern successfully I suppose???
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Post 24 Mar 2017, 8:37 am

georgeatkins wrote:
freeman3 wrote:Exactly. Fairness demands that every Democrat vote against Gorsuch as retaliation for refusal to consider Garland. That was absurd and there is no simply no good reason to accept whoever Trump nominates until that is corrected.

By the way, Gorsuch's dissent in Maddin v.Transam where he refuses to grant deference to the DOL's construction of a federal statute--said dissent by Gorsuch would have forced truckers stranded in freezing temperatures to opt between risking death or leaving their vehicle and face being fired-is appalling.


I think you are focusing on the wrong agent. As Gorsuch pointed out, it was the Company's decision whether to apply mercy and common sense to the trucker's situation and not treat it like a zero-tolerance company policy. That is where you should cast your "appalling" sentiment.

As a judge, he is bound to go by the law as written, which does not deal with the situation. If people want this law to consider such life-saving situations, for example, it is the duty of Congress to amend the law in that way. It is not the role of the court to change the law to fit the circumstances. It is then not a law, but simply a guideline to be used any way a judge personally feels.

And isn't that what was want judges to do? Rule, not legislate?


Correct sir! You advance to Final Jeopardy!
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Post 24 Mar 2017, 8:39 am

geojanes wrote:Oh please. This has nothing to do with Clinton. Bad behavior needs a response. Let people walk all over you, no matter who they are, and they'll keep doing it. This is the political version of that lesson we've all learned one way or another. Yes, elections have consequences, for sure, but any Gorsuch payback has zero to do with the presidential election.

But we'll see. It's not like the Dems show a lot of backbone. They may just cave.


So, you didn't read the long excerpt from the article I posted, wherein the history of the politicization of the Court was partially recounted? To blame the Republicans and pretend they are THE guilty party is to ignore history.
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Post 24 Mar 2017, 9:36 am

Well, you have to read the opinion. Actually, he did the opposite of judicial deference--he arrogantly decided that a Department of Labor's interpretation of a statute was not due any deference because he thought the statute was unambiguous. This is Chevron deference--when Congress passes a statute in an area administered by a federal agency and from the statutory construction it appears that the agency was entitled to speak with the force of law with regard to any ambiguity in application of the statute then courts are supposed to give great deference to the agency's interpretation of the statute. Laws invariably have grey areas where it is not clear they apply--if nothing else words never have invariably precise borders--so agencies are given broad deference to make judgment calls on this when Congress has essentially by the terms of the statute given them power to do so. With courts interpreting statutes in ambiguous situations there are rules of statutory construction that govern how courts decide these issues, but the idea that legislatures can go back and change laws to get rid of all ambiguities is ridiculous because it is impossible.

So there is no doubt that the Department of Labor was entitled to interpret the meaning of operate, which clearly was ambiguous in what occurred in this case. There is no dispute in the case that the Department of Labor had this power under the statute to decide areas of ambiguous application. Again, the courts are supposed to give the agency great deference in interpreting ambiguities in the statute. But Gorsuch ignores this because he decided there is no ambiguity--if there were ambiguity then Gorsuch would be bound by the agency's interpretation unless it were clearly unreasonable.

The statute itself protected workers from being fired if they refused to operate a vehicle when they have a reasonable fear of serious injury to the employee or public due to the vehicle's hazardous safety or security condition. The agency interpreted operate to include situations other than refusing to drive because they found operate to have a broader meaning than drive. In this instance the driver was essentially freezing to death because he was stranded with a heater they did not work for several hours. His feet were numb, chest was numb, and he had trouble breathing. He spoke to his cousin via phone who said he was slurring his speech and sounded confused.

The trailer's brakes had frozen. His employer ordered him to either drag the frozen trailer or wait until they got help to him. Maddin (the trucker) waited for quite a while but ultimately unhitched the trailer and drove to safety. He was fired for abandoning the trailer. The majority opinion decided that under the agency's interpretation of operate (which the court notes a dictionary definition indicates means to "control the function of") Maddin was protected under the statute both for refusing to operate the vehicle with frozen brakes and for driving the truck without the trailer.

Basically, Gorsuch's opinion would have required Maddin to risk freezing to death or getting fired. Not only was his decision callous but it was legislative because he just decided he knew better than a federal agency with far more experience in these matters. Moreover, his interpretation did not further the purposes of the statute which appear to be primarily two main ones: (1) protecting employees from having to endanger themselves to save their jobs, (2) protecting the public from having vehicles driven in dangerous situations. If Gorsuch had the majority then truckers with a dangerous trailer but operative truck ordered to stay put by their employer in freezing conditions might risk going on the road with the trailer because they would fear losing their job. Of they might get frostbite waiting for relief because otherwise they would have no protection or they would refuse a ride away from their trucks because otherwise they would have no protection under the statute.

Gorsuch's opinion was legalistic, arrogant and wrong. And he was not being deferential to the executive branch--he was making the law up himself instead of letting the agency decide an ambiguity.
Last edited by freeman3 on 24 Mar 2017, 10:08 am, edited 2 times in total.
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Post 24 Mar 2017, 9:52 am

freeman3 wrote:Well, you have to read the opinion. Actually, he did the opposite of judicial deference--he arrogantly decided that a Department of Labor's interpretation of a statute was not due any deference because he thought the statute was unambiguous. This is Chevron deference--when Congress passes a statute in an area administered by a federal agency and from the statutory construction it appears that the agency was entitled to speak with the force of law with regard to any ambiguity in application of the statute then courts are supposed to give great deference to the agency's interpretation of the statute. Laws invariably have grey areas where it is not clear they apply--if nothing else words never have invariably precise borders--so agencies are given broad deference to make judgment calls on this when Congress has essentially by the terms of the statute gave them power to do so. With courts interpreting statutes in ambiguous situations there are rules of statutory construction that govern how courts decide these issues, but the idea that legislatures can go back and change laws to get rid of all ambiguities is ridiculous because it is impossible.

So there is no doubt that the Department of Labor was entitled to interpret the meaning of operate, which clearly was ambiguous in what occurred in this case. There is no dispute in the case that the Department of Labor had this power under the statute to decide areas of ambiguous application. Again, the courts are supposed to give the agency great deference in interpreting ambiguities in the statute. But Gorsuch ignores this because he decided there is no ambiguity--if there were ambiguity then Gorsuch would be bound by the agency's interpretation unless it were clearly unreasonable.

The statute itself protected workers from being fired if they refused to operate a vehicle when they have a reasonable fear of serious injury to the employee or public due to the vehicle's hazardous safety or security condition. The agency interpreted operate to include situations other than refusing to drive because they found operate to have a broader meaning than drive. In this instance the driver was essentially freezing to death because he was stranded with a heater they did not work for several hours. His feet were numb, chest was numb, and he had trouble breathing. He spoke to his cousin via phone who said he was slurring his speech and sounded confused.

The trailer's brakes had frozen. His employer ordered him to either drag the frozen trailer or wait until they got help to him. Maddin (the trucker) waited for quite a while but ultimately unhitched the trailer and drove to safety. He was fired for abandoning the trailer. The majority opinion decided that under the agency's interpretation of operate (which the court notes a dictionary definition indicates means to "control the function of") Maddin was protected under the statute both for refusing to operate the vehicle with frozen brakes and for driving the truck without the trailer.

Basically, Gorsuch's opinion would have required Maddin to risk freezing to death or getting fired. Not only was his decision callous but it was legislative because he just decided he knew better than a federal agency with far more experience in these matters. Moreover, his interpretation did not further the purposes of the statute which appear to be primarily two main ones: (1) protecting employees from having to endanger themselves to save their jobs, (2) protecting the public from having vehicles driven in dangerous situations. If Gorsuch had the majority them truckers with a dangerous trailer but operative truck ordered to stay put by their employer in freezing conditions might risk going on the road with the trailer because they would fear losing their job. Of they might get frostbite waiting for relief because otherwise they would have no protection or they would refuse a ride away from their trucks because otherwise they would have no protection under the statute.

Gorsuch's opinion was legalistic, arrogant and wrong. And he was not being deferential to the executive branch--he was making the law up himself instead of letting the agency decide an ambiguity.


That's your opinion and your entitled to it.

However, you don't know the totality of the facts of the case, unless you've read them, and you certainly didn't hear any of the facts argued in court.

I take exception to your characterization of Gorsuch's opinion as "arrogant." He did not agree that the Department of Labor's interpretation of the statute was necessary.

While I won't accuse you of cribbing, your opinion seems remarkably close to this one. http://www.slate.com/articles/news_and_ ... _like.html

Here's an actual excerpt of what Gorsuch wrote in his dissenting opinion:

It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one. . . . The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not. And there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid. Maybe the Department would like such a law, maybe someday Congress will adorn our federal statute books with such a law. But it isn’t there yet. And it isn’t our job to write one — or to allow the Department to write one in Congress’s place.

Read more at: http://www.nationalreview.com/article/4 ... tices-role


In other words, he followed the law as written. How truly outrageous! Doesn't he know he is an appointed super-legislator, able to right any wrong with the stroke of a pen?
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Post 24 Mar 2017, 10:01 am

I did not crib. I just wrote this on my I-phone right now. But if my opinion were similar to one on another site it's probably because (1) lawyers analyze cases in certain, customary ways, and (2) this case really is only susceptible to one reasonable analysis...

As for your other arguments I have already disposed of them (see above). I am not going to repeat them.

Your best argument--not made--is that this is only one opinion and it's unfair to draw conclusions from one opinion. But even from this one opinion I think you can gain some valuable insight into his judicial temperament.
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Post 24 Mar 2017, 10:47 am

freeman3 wrote:I did not crib. I just wrote this on my I-phone right now. But if my opinion were similar to one on another site it's probably because (1) lawyers analyze cases in certain, customary ways, and (2) this case really is only susceptible to one reasonable analysis...

As for your other arguments I have already disposed of them (see above). I am not going to repeat them.


Right, so Gorsuch is "unreasonable." That's the *only* reasonable inference one can take from your statement.

Your best argument--not made--is that this is only one opinion and it's unfair to draw conclusions from one opinion. But even from this one opinion I think you can gain some valuable insight into his judicial temperament.


Yes, and shockingly, he held to the law. I know that's not a very popular place for liberals who believe judges should just change the law to fit the outcome they desire. That's the difference between left and right on judicial appointments.
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Post 24 Mar 2017, 6:45 pm

Doctor Fate wrote:So, you didn't read the long excerpt from the article I posted, wherein the history of the politicization of the Court was partially recounted? To blame the Republicans and pretend they are THE guilty party is to ignore history.


I read it, but most of it was all so old that it's just not relevant to what happen last year. With the exception of the Alito mention (which wasn't successful, so is not noteworthy) 1988 was the most recent date. That was 30 years ago and completely irrelevant to the world, politics and parties of today.
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Post 25 Mar 2017, 11:38 am

geojanes wrote:
Doctor Fate wrote:So, you didn't read the long excerpt from the article I posted, wherein the history of the politicization of the Court was partially recounted? To blame the Republicans and pretend they are THE guilty party is to ignore history.


I read it, but most of it was all so old that it's just not relevant to what happen last year. With the exception of the Alito mention (which wasn't successful, so is not noteworthy) 1988 was the most recent date. That was 30 years ago and completely irrelevant to the world, politics and parties of today.


Right. So, everything that happened 30 years ago is irrelevant? Out with Roe v. Wade then!

With all respect, and much is due, you're not being serious here.