Tomorrow, the Senate will begin confirmation hearings for Judge Ketanji Brown Jackson, nominated by President Joe Biden on February 25, 2022, to take a seat on the Supreme Court of the United States. Judge Jackson is currently a federal judge on the United States Court of Appeals for the District of Columbia Circuit. This small circuit is prominent and prestigious because its location in Washington, D.C., means that it decides cases concerning the U.S. government. It is often seen as a stepping stone to the Supreme Court. Three current members of the court—Chief Justice John Roberts, Justice Clarence Thomas, and Justice Brett Kavanaugh—served previously asjudges on the D.C. Circuit.
Originalists pretend they are not interpreting texts but that they can divine the Founders' intent. They use the dictionary as their ouija board.
Originalism is a political ploy to perpetuate the Founders' unconscionable political expediencies, at the cost of their progressive aspirations. In other fields of textual analysis, the notion of 'author's intent' has long been dismissed as inadequate to the task of interpreting of texts.
Textualism pretends that dictionaries fix the meaning of words for all time. In fact, dictionaries trace the trajectories of signification over social space.
At Nuremberg, there was a focus on prosecuting judges who had perverted German law to appease/serve the Nazi regime. The point was to spotlight the importance of an independent judiciary.
Any justice, or judge, in whose appointment Leonard Leo aka The Federalist Society has had a hand is suspect - not by serving a conservative construction of the Constitution, which is legitimate, but in perverting the law itself, particularly as regards civil rights and the separation of church and state.
I have been an attorney since 1977 and was a District Judge for 20 years. I read your column most every evening and am amazed at how much I have learned and how much of what I know has been reaffirmed. Thank you HCR.
From tonight’s Letter: “But what is at stake with our current Supreme Court is far broader than the question of how a justice will vote on any one issue: it is whether the federal government can protect the rights of citizens from state laws taking away those rights.”
This sums up the major issue with the Supreme Court today. I used to believe that we were indeed UNITED States. I’ve come to realize that every state is basically a “mini country”, with their own laws and beliefs. Why is it illegal to get an abortion in Texas, but not in Michigan, for example. There is nothing “united” about the United States any longer.
I am not a historian with a deep understanding of our founders, but I do know that there was much disagreement and debate during the creation of the Constitution. When people claim to be Originalists I laugh to myself. To me the Constitution was created as a loose framework that we can improve upon over time as we recognize attitudes/practices that create inequalities in our society. That is when I am optimistic. When I am pessimistic, I think why are we still arguing about this hundreds of years later. When I am really down it becomes thousands of years. Humans have probably been having these same arguments for millenia.
Promoting democracy should be job 1 for all judicial appointees and federal legislators. Unfortunately despite their oaths to the contrary too many ignore that responsibility.
Heather, thank you for this Letter on the eve of Judge Ketanji Brown Jackson confirmation hearings. She is a solid choice to take a seat on the SCOTUS. I imagine it's too much to ask that the Republicans in the Senate treat her with the respect owed a woman of such tremendous accomplishment, particularly her focus on democracy.
All Americans would be wise to think deeply about Judge Jackson's words and what they really mean for us as a nation.
"Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.”
In December 1990, before the start of the Gulf War against Saddam Hussein for invading Kuwait, President George H. W. Bush asked himself
“ How many lives are you willing to sacrifice?’
I believe that this is the Hobson’s choice confronting President Zelensky at this moment. There is no question that Putin invaded independent Ukraine and that his ‘special military operation’ went dreadfully wrong. In any rational scenario, President Zelensky should stand firm in demanding that Putin order a cease fire followed by a swift withdrawal of Russian troops from Ukraine.
However, President Zelensky is faced with a brutal Putin who seems determined to kill countless Ukrainian citizens while destroying key areas of the Ukraine.
Zelensky is faced with an heartbreaking personal dilemma: stand fast on his principled position regarding Putin’s calumny, while watching many more Ukrainian civilians being murdered and key urban areas being destroyed, or ‘make a deal” with murderer Putin to save innocent Ukrainian citizens and much of Ukraine’s physical and economic infrastructure.
It reminds me of Meryl Strep in Sophie’s choice in which she had moments to decide which of her two children to decide.
Would you wish to be in President Zelensky’s shoes? I wouldn’t!
My take away from hearing Joe Trippi of the Lincoln Project and now also Join the Union movement inspiring talk is I would like to encourage everyone here to consider being a part of jointheunion.us , a grass roots organization to bring together all who want to defend democracy. This has nothing to do with political parties. It is above all that defending democracy itself. Groups can be members as well as individuals. They are looking for volunteers not donations to do the bottom up work of strengthening democracy. This was recently launched and already has 50,000 members. For me, this is the movement we need to bring millions of us together to hold on to democracy in 2022 and 2024. They are having a virtual townhall tomorrow Monday, March 21 at 7 pm eastern time on Youtube. https://www.youtube.com/watch?v=pobsVKBcWTQ Sign up for it at https://jointheunion.us/townhall/ See you there!
Things get underway tomorrow morning at 11am EDT...I may tune in to hear her opening remarks. Once the Republican grandstanding starts--and we KNOW it will be on ample display--I may just follow and tune in and out. At least, Republican Senators, many of them, are not quite like the loonies in the House, so maybe things will be a bit more civil. I forget who's on this committee...if Cruz or Rubio are on it I will definitely tune out because they get on my last nerve...if Graham is present he may be on good behaviour, we can hope. From what I've seen and heard of Ms Jackson, I think she'll be able to deal with whatever is thrown at her. A VERY sharp lady. HCR's summation of some SCOTUS history serves as a reminder of what is at stake.
The current SCOTUS of majority "originalists" are dismantling democracy piece by piece. 1. Citizens United making money "free speech" (seems an oxymoron to call money "free") thus legalizing bribery of candidates for elected office and our elected officials already in office. 2. In 2013 SCOTUS gutted the Voting Rights Act giving state legislatures carte blanche to make voting less accessible and therefore less democratic. 3. SCOTUS decisions on Texas Anti-Abortion law which takes away the EXISTING Constitutional Rights of over half the population (women) is based on anticipating that they will soon take away those rights. It is untenable that they are making decisions based on Future Law! When (it's hard to say if here) they do overturn Roe v. Wade it will be the first Court to take away the rights of citizens. Unprecedented you might say! Conclusion is SCOTUS is dismantling democracy and promoting autocracy which is already a reality in 19 states. There is the original guarantee clause, Article IV, Section 4, in the Constitution that guarantees that the states of the United States will be a Republican form of government -- of the people, by the people and for the people. We the People, all of us this time.
I think that some ideas from the 18th century or earlier are still applicable in America in the 21st century. The 1st, 4th, 5th, and 9th amendments come to mind. But other ideas have no place in our country today --the most obvious of these are acceptance of slavery, the counting of enslaved people as 3/5 of a person for purposes of the census and representation in the House and the denial of the rights of citizenship (owning property and voting) to women. These ideas have been dealt with by the 13th, 14th, 15th, and 19th amendments largely addressed these deficiencies in our constitution. More controversial is the 2nd amendment. Could the Framers have envisioned, automatic weapons, large capacity magazines, or even grenade launchers and anti-tank weapons for that matter when they wrote that "the right of the people to keep and bear Arms, shall not be infringed"?
What little I know about the law I gleaned from watching Law and Order on TV. One thing I remember from that show was the oft referenced Roscoe Pound's famous observation that "the law must be stable, but must not stand still." If we are compelled to interpret every law in terms of what the framers wrote in 1787 we are in deep trouble as a nation and as a society.
Having recently finished reading Jill Lepore's These Truths recently, I wrote down these two quotes as especially relevant to this point in our history. The first is from Jefferson, the second from Lincoln.
"in 1816, when Jefferson was seventy-three and the [religious] awakening was just beginning, he warned against worshipping the men of his generation. 'This they would say themselves, were they to rise from the dead,' he wrote: '... the laws and institutions go hand in hand with the progress of the human mind.' To treat the founding documents as Scriptures would be to become a slave to the past. 'Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched,' Jefferson conceded. But when they do, 'They ascribe to the men of the preceding age a wisdom more than human.'" (These Truths, p 201)
"As a nation, we began by describing that 'all men are created equal.' We now practically read is 'all men are created equal, except negroes.' When the Know-Nothings get control, it will read 'all men are created equal, except negroes, and foreigners, and Catholics.' When it comes to this I should prefer emigrating to some country where they make no pretense of loving liberty -- to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocrisy." (A. Lincoln letter to Joshua Speed, August 24, 1855, quoted in These Truths, p 266)
I must stand with Justice Breyer in his belief that the Constitution must be interpreted in light of how it advances democracy.
Thank you HCR. A very helpful summary. If only wishing could undo the 2016 election POTUS result. We knew then that the election was at bottom about the SCOTUS nominees. Enough people didn’t pay attention, and it’s panned out just as we feared with RBG the last to fall in the House of Cards. It’s been heading in a bad direction for so many years. I literally 🙏🏻 that KBJ has the strength to stand up for us, the people and write dissents for the ages. ❤️🤍💙
I am at a loss to understand the textual analysis applied by originalists. The clause in the 2nd amendment about a Well Regulated Militia might as well not exist.
And I'm blowed if the Citizens United decision is not "legislating from the bench". After all, the effect is to reduce individual citizens to less than 3/5 of a citizen.
“originalists” or “textualists" or "blickety-blank" is about the best I can do to describe them here. If I stated what they truly are, I believe Prof. Heather may truly ban me. Severe discrimination was not just confined to the state. It was rampant in places like Chicago too. I grew up there, attended an all-boys magnet school by the name of Lane Tech, a collection of boys from the north side. I graduated, decided against college for the time being and went to work with my dad on the scaffolds repairing the buildings or laboring. Late sixties.
Yeah, there is a story coming , , .
We were short-handed and they were always looking for experienced men. We were about the 20th story up and one day a window opened up and a man stepped on to the scaffold with his bag of tools. I did not think anything of it. He was black. My high school was integrated, no big deal.
I head the yelling coming from the far end of the cabled scaffolding. It was Marty Schleep calling this black man everything under the sun. That he would not work with him, etc. My 5'6" dad was no angel; but, he did treat people with respect and he taught us to be such too.
The man was leaving the scaffold through the same window he came out of and he looked at me as he left. That look of hurt has stayed in my memory for decades now. I can still see it. Yep, there was discrimination in the South. It was also prevalent in the large cities like Chicago, Detroit, etc. too. I did not know it, my dad never expressed it. We were on the northwest side of Chicago where there were few minorities.
Four months later I was in Marine boot camp along with every known type of person one could imagine. Just a bunch of mutts.
The sixties and seventies were tough times, the times of change.
Originalists pretend they are not interpreting texts but that they can divine the Founders' intent. They use the dictionary as their ouija board.
Originalism is a political ploy to perpetuate the Founders' unconscionable political expediencies, at the cost of their progressive aspirations. In other fields of textual analysis, the notion of 'author's intent' has long been dismissed as inadequate to the task of interpreting of texts.
Textualism pretends that dictionaries fix the meaning of words for all time. In fact, dictionaries trace the trajectories of signification over social space.
At Nuremberg, there was a focus on prosecuting judges who had perverted German law to appease/serve the Nazi regime. The point was to spotlight the importance of an independent judiciary.
Any justice, or judge, in whose appointment Leonard Leo aka The Federalist Society has had a hand is suspect - not by serving a conservative construction of the Constitution, which is legitimate, but in perverting the law itself, particularly as regards civil rights and the separation of church and state.
I have been an attorney since 1977 and was a District Judge for 20 years. I read your column most every evening and am amazed at how much I have learned and how much of what I know has been reaffirmed. Thank you HCR.
From tonight’s Letter: “But what is at stake with our current Supreme Court is far broader than the question of how a justice will vote on any one issue: it is whether the federal government can protect the rights of citizens from state laws taking away those rights.”
This sums up the major issue with the Supreme Court today. I used to believe that we were indeed UNITED States. I’ve come to realize that every state is basically a “mini country”, with their own laws and beliefs. Why is it illegal to get an abortion in Texas, but not in Michigan, for example. There is nothing “united” about the United States any longer.
I am not a historian with a deep understanding of our founders, but I do know that there was much disagreement and debate during the creation of the Constitution. When people claim to be Originalists I laugh to myself. To me the Constitution was created as a loose framework that we can improve upon over time as we recognize attitudes/practices that create inequalities in our society. That is when I am optimistic. When I am pessimistic, I think why are we still arguing about this hundreds of years later. When I am really down it becomes thousands of years. Humans have probably been having these same arguments for millenia.
Promoting democracy should be job 1 for all judicial appointees and federal legislators. Unfortunately despite their oaths to the contrary too many ignore that responsibility.
Heather, thank you for this Letter on the eve of Judge Ketanji Brown Jackson confirmation hearings. She is a solid choice to take a seat on the SCOTUS. I imagine it's too much to ask that the Republicans in the Senate treat her with the respect owed a woman of such tremendous accomplishment, particularly her focus on democracy.
All Americans would be wise to think deeply about Judge Jackson's words and what they really mean for us as a nation.
"Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.”
In December 1990, before the start of the Gulf War against Saddam Hussein for invading Kuwait, President George H. W. Bush asked himself
“ How many lives are you willing to sacrifice?’
I believe that this is the Hobson’s choice confronting President Zelensky at this moment. There is no question that Putin invaded independent Ukraine and that his ‘special military operation’ went dreadfully wrong. In any rational scenario, President Zelensky should stand firm in demanding that Putin order a cease fire followed by a swift withdrawal of Russian troops from Ukraine.
However, President Zelensky is faced with a brutal Putin who seems determined to kill countless Ukrainian citizens while destroying key areas of the Ukraine.
Zelensky is faced with an heartbreaking personal dilemma: stand fast on his principled position regarding Putin’s calumny, while watching many more Ukrainian civilians being murdered and key urban areas being destroyed, or ‘make a deal” with murderer Putin to save innocent Ukrainian citizens and much of Ukraine’s physical and economic infrastructure.
It reminds me of Meryl Strep in Sophie’s choice in which she had moments to decide which of her two children to decide.
Would you wish to be in President Zelensky’s shoes? I wouldn’t!
Thank you! Wonderful piece! Judge Jackson also said of Trump and Presidents; that they ‘are not Kings.’ She is correct!
My take away from hearing Joe Trippi of the Lincoln Project and now also Join the Union movement inspiring talk is I would like to encourage everyone here to consider being a part of jointheunion.us , a grass roots organization to bring together all who want to defend democracy. This has nothing to do with political parties. It is above all that defending democracy itself. Groups can be members as well as individuals. They are looking for volunteers not donations to do the bottom up work of strengthening democracy. This was recently launched and already has 50,000 members. For me, this is the movement we need to bring millions of us together to hold on to democracy in 2022 and 2024. They are having a virtual townhall tomorrow Monday, March 21 at 7 pm eastern time on Youtube. https://www.youtube.com/watch?v=pobsVKBcWTQ Sign up for it at https://jointheunion.us/townhall/ See you there!
Things get underway tomorrow morning at 11am EDT...I may tune in to hear her opening remarks. Once the Republican grandstanding starts--and we KNOW it will be on ample display--I may just follow and tune in and out. At least, Republican Senators, many of them, are not quite like the loonies in the House, so maybe things will be a bit more civil. I forget who's on this committee...if Cruz or Rubio are on it I will definitely tune out because they get on my last nerve...if Graham is present he may be on good behaviour, we can hope. From what I've seen and heard of Ms Jackson, I think she'll be able to deal with whatever is thrown at her. A VERY sharp lady. HCR's summation of some SCOTUS history serves as a reminder of what is at stake.
The current SCOTUS of majority "originalists" are dismantling democracy piece by piece. 1. Citizens United making money "free speech" (seems an oxymoron to call money "free") thus legalizing bribery of candidates for elected office and our elected officials already in office. 2. In 2013 SCOTUS gutted the Voting Rights Act giving state legislatures carte blanche to make voting less accessible and therefore less democratic. 3. SCOTUS decisions on Texas Anti-Abortion law which takes away the EXISTING Constitutional Rights of over half the population (women) is based on anticipating that they will soon take away those rights. It is untenable that they are making decisions based on Future Law! When (it's hard to say if here) they do overturn Roe v. Wade it will be the first Court to take away the rights of citizens. Unprecedented you might say! Conclusion is SCOTUS is dismantling democracy and promoting autocracy which is already a reality in 19 states. There is the original guarantee clause, Article IV, Section 4, in the Constitution that guarantees that the states of the United States will be a Republican form of government -- of the people, by the people and for the people. We the People, all of us this time.
I think that some ideas from the 18th century or earlier are still applicable in America in the 21st century. The 1st, 4th, 5th, and 9th amendments come to mind. But other ideas have no place in our country today --the most obvious of these are acceptance of slavery, the counting of enslaved people as 3/5 of a person for purposes of the census and representation in the House and the denial of the rights of citizenship (owning property and voting) to women. These ideas have been dealt with by the 13th, 14th, 15th, and 19th amendments largely addressed these deficiencies in our constitution. More controversial is the 2nd amendment. Could the Framers have envisioned, automatic weapons, large capacity magazines, or even grenade launchers and anti-tank weapons for that matter when they wrote that "the right of the people to keep and bear Arms, shall not be infringed"?
What little I know about the law I gleaned from watching Law and Order on TV. One thing I remember from that show was the oft referenced Roscoe Pound's famous observation that "the law must be stable, but must not stand still." If we are compelled to interpret every law in terms of what the framers wrote in 1787 we are in deep trouble as a nation and as a society.
Having recently finished reading Jill Lepore's These Truths recently, I wrote down these two quotes as especially relevant to this point in our history. The first is from Jefferson, the second from Lincoln.
"in 1816, when Jefferson was seventy-three and the [religious] awakening was just beginning, he warned against worshipping the men of his generation. 'This they would say themselves, were they to rise from the dead,' he wrote: '... the laws and institutions go hand in hand with the progress of the human mind.' To treat the founding documents as Scriptures would be to become a slave to the past. 'Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched,' Jefferson conceded. But when they do, 'They ascribe to the men of the preceding age a wisdom more than human.'" (These Truths, p 201)
"As a nation, we began by describing that 'all men are created equal.' We now practically read is 'all men are created equal, except negroes.' When the Know-Nothings get control, it will read 'all men are created equal, except negroes, and foreigners, and Catholics.' When it comes to this I should prefer emigrating to some country where they make no pretense of loving liberty -- to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocrisy." (A. Lincoln letter to Joshua Speed, August 24, 1855, quoted in These Truths, p 266)
I must stand with Justice Breyer in his belief that the Constitution must be interpreted in light of how it advances democracy.
Thank you HCR. A very helpful summary. If only wishing could undo the 2016 election POTUS result. We knew then that the election was at bottom about the SCOTUS nominees. Enough people didn’t pay attention, and it’s panned out just as we feared with RBG the last to fall in the House of Cards. It’s been heading in a bad direction for so many years. I literally 🙏🏻 that KBJ has the strength to stand up for us, the people and write dissents for the ages. ❤️🤍💙
Today there is NOT any justice being served @ the supreme court.
The R's have destroyed American's confidence in fairly representing the principles of our Constitution.
Kavanaugh, Thomas, Gorsuch, Barrett ... are the political puppets dangling from the purse strings of the KKKoch's elite moneyed republican Klan.
I am at a loss to understand the textual analysis applied by originalists. The clause in the 2nd amendment about a Well Regulated Militia might as well not exist.
And I'm blowed if the Citizens United decision is not "legislating from the bench". After all, the effect is to reduce individual citizens to less than 3/5 of a citizen.
Decidedly, lex asinus est.
“originalists” or “textualists" or "blickety-blank" is about the best I can do to describe them here. If I stated what they truly are, I believe Prof. Heather may truly ban me. Severe discrimination was not just confined to the state. It was rampant in places like Chicago too. I grew up there, attended an all-boys magnet school by the name of Lane Tech, a collection of boys from the north side. I graduated, decided against college for the time being and went to work with my dad on the scaffolds repairing the buildings or laboring. Late sixties.
Yeah, there is a story coming , , .
We were short-handed and they were always looking for experienced men. We were about the 20th story up and one day a window opened up and a man stepped on to the scaffold with his bag of tools. I did not think anything of it. He was black. My high school was integrated, no big deal.
I head the yelling coming from the far end of the cabled scaffolding. It was Marty Schleep calling this black man everything under the sun. That he would not work with him, etc. My 5'6" dad was no angel; but, he did treat people with respect and he taught us to be such too.
The man was leaving the scaffold through the same window he came out of and he looked at me as he left. That look of hurt has stayed in my memory for decades now. I can still see it. Yep, there was discrimination in the South. It was also prevalent in the large cities like Chicago, Detroit, etc. too. I did not know it, my dad never expressed it. We were on the northwest side of Chicago where there were few minorities.
Four months later I was in Marine boot camp along with every known type of person one could imagine. Just a bunch of mutts.
The sixties and seventies were tough times, the times of change.