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PaperclipPerfector  3mo ago (text post)   32894 thread views

Culture War Roundup for the week of August 5, 2024

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I mostly understand and certainly respect your point, but I think you're using the wrong vocabulary, or at least, using words the way most people do not mean them. When we say "intelligence" with regard to anyone in or adjacent to the field of law, we usually talk about some mix of competence, rigorous logic, and holistic grasp of issues including their context. None of which is cast into question here. Of course a SC nominee has double adjacency here, to politics as well as law, and politics might have a slightly different connotation of "intelligent" -- one that may include manifesting this intelligence in all of their comments, but I still don't think that's the prevailing connotation.

Second of all, I don't view her refusal to answer as "corruptible" much less "evil". I view it as a -- correct! -- suspicion that she was being presented with a "gotcha!" question, and decided it was better for her to avoid the question, and that any potential benefit from a frank and honest response was outweighed by the chance of her comments being misconstrued or used as a political cudgel. Plus, she's kind of correct on the face of it. If we're being completely fair and practical, if the question of the definition of "woman" were indeed to come before the court, subject matter experts would be available if the question was one where being incredibly precise were important. In law this is very often the case (the easy cases don't usually make it to the Supreme Court!). Additionally, you'd have plenty of time to consider your exact wording and any implications in great detail. This kind of time and attention to detail cannot be done in any meaningful way in front of a panel during your nomination. In fact, giving an "honest" answer but with an implication you didn't consider is potentially even harmful! Realizing this is a positive trait, thinking before you speak, is it not?

Don't get me wrong. I'm very sad that our current politics makes this a gotcha question in the first place. But her answer improved my opinion of her as a judge. It says more about our current politics than it does about her specifically.

I view it as a -- correct! -- suspicion that she was being presented with a "gotcha!" question, and decided it was better for her to avoid the question

It's not a gotcha question because the questioner is trying to trick her into saying something. It's a gotcha question because the position that she wishes to promote is incoherent and having to answer the question exposes this. The problem is with the underlying position, not with the question, and the fact that this position is vulnerable to gotchas is entirely of her own making. As such, it isn't an excuse.

Second of all, I don't view her refusal to answer as "corruptible" much less "evil". I view it as a -- correct! -- suspicion that she was being presented with a "gotcha!" question, and decided it was better for her to avoid the question, and that any potential benefit from a frank and honest response was outweighed by the chance of her comments being misconstrued or used as a political cudgel.

The latter one sounds pretty corruptible to me. Corruption is shirking one's professional responsibilities due to personal incentives, and SCOTUS justices have a professional responsibility to the truth.

I view it as a -- correct! -- suspicion that she was being presented with a "gotcha!" question, and decided it was better for her to avoid the question, and that any potential benefit from a frank and honest response was outweighed by the chance of her comments being misconstrued or used as a political cudgel.

Ah--but she didn't avoid the question, did she! She answered it, and her answer was stupid. Even by your proffered metric, an intelligent answer might have been to respond, as Souter once did (when asked about abortion),

". . . with respect to that . . . I think that is the point at which I must respectfully draw that line . . . this kind of discussion would take me down a road which I think it would be unethical for me to follow is something that perhaps I can suggest, and I will close with this question: Is there anyone who has not, at some point, made up his mind on some subject and then later found reason to change or modify it? No one has failed to have that experience. No one has also failed to know that it is much easier to modify an opinion if one has not already stated it convincingly to someone else. With that in mind, can you imagine the pressure that would be on a judge who had stated an opinion, or seemed to have given a commitment in these circumstances to the Senate of the United States, and for all practical purposes, to the American people?"

But no! Her answer was:

Can I provide a definition? No. I can't. Not in this context. I'm not a biologist. . . . Senator, in my work as a judge what I do is I address disputes. If there is a dispute about a definition, people make arguments, and I look at the law, and I decide.

Even the reference to experts I have no sympathy for; cases sufficiently contested to arrive at the Supreme Court essentially never lack for "expert" representation on both sides, disagreeing over the correct outcome. Leaning on "experts" is lazy jurisprudence.

In fact, giving an "honest" answer but with an implication you didn't consider is potentially even harmful! Realizing this is a positive trait, thinking before you speak, is it not?

I don't see evidence of that here. This response was not clever, however one might wish to backfill cleverness into it. I mean, just... look at Souter's response. It's practically boilerplate at this point: "that is a question that seems likely to come before the Court." Jackson was so worried about accidentally saying something non-Woke that she didn't even think to use the boring boilerplate. To be either so zealous in that cause, or so cowed by it, as to elicit such a flub... no. There is nothing to be impressed about in her response.

It says more about our current politics than it does about her specifically.

Certainly it is harder to be a virtuous person when one does not live in a virtuous state.

I won't say it's impossible, but it often feels that way.

But she's right, isn't she? That is her job: to look at a dispute, people make arguments, and she (and others) decide. To jump straight to the "deciding" step is illogical (that's what Sen. Blackburne was asking her to do, in effect, to jump right to an answer/decision by providing a rigid definition) and so I view her answer as fundamentally similar to Souter's. Souter basically said "I don't want to say one thing and then end up deciding another and so I'm going to keep my mind open" and Jackson basically said "I'm not going to say something because I don't need to" and the second is, I will grant you, obviously much less eloquent but they get at the same general idea? Can't you see the Souter motivation could equally apply to Jackson's answer even if she didn't explicitly say so? That's my view on it, at least.

If I had to point a finger of blame about the process, I've said this before but I feel the questions asked of potential nominees are in many cases insufficient and misdirected. I think there's a higher burden on the members of the committee and Senate to conduct a better hearing and would love to see that improve before putting the main burden on the "defendant" as it were. More job interview, less grandstanding. If we get that, I'd feel more comfortable taking the nominee to task for "bad" answers.

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