16 April 2017

The Pipeline

The legal journalist Jeffrey Toobin wrote an excellent article for The New Yorker that appears in their April 17, 2017, print issue and is available for free online (link here).

The piece profiles Leonard Leo, executive vice-president for the Federalist Society, a legal think-tank of sorts and membership group that operates as a de facto and powerful lobbying organization for hardcore ultra-conservative lawyers and their legal philosophy.

The central tenant of the Federalist Society -- and of Supreme Court justices like Antonin Scalia and Samuel Alito -- is something called "originalism," a point of view stressing that the constitution must only be interpreted based on what the original 18th century founders and men of their era were thinking.

With this approach, roughly speaking, since something like LGBT rights or civil rights weren't an issue to the country's 18th century founders, then laws cannot regulate or protect such matters. So if you want to discriminate against African-Americans or Jews or lesbians or gays, then courts shouldn't stop you because certain people believe the founders weren't thinking about that.

Many legal and political minds think that originalism is a steaming pile of horseshit. It's an intellectual farce that would require judges to play mindreaders to decide what individuals like Alexander Hamilton and James Madison were thinking when they drafted the constitution.

There's nothing in the Constitution that says originalism is mandated in judicial interpretation and analysis. So if you're sticking to the founder's alleged original intent, shouldn't that have been mandated by the founders, too?

The New Yorker article is of interest here because of what he has to say about Donald Trump. Toobin notes that "Leo served, in effect, as Trump’s subcontractor on the selection of Gorsuch," a reference to the Supreme Court's newest justice.

Leo will not only pick Trump's candidates for the Supreme Court, he will do so for all of the federal judiciary -- dozens of district court judges and appellate court justices. The ultra-conservative LGBT-hating Heritage Foundation will do the same.

And then Trump will simply select all judiciary appointments from these two lists.

As an American, albeit a naturalized one, I find this deeply troubling. The Federalist Society insists we must interpret the Constitution strictly, yet nowhere in that Constitution is there any mention that ultra-conservative special interest lobbyists and think tanks will be the only ones allowed to make lists of acceptable justices and judges.

Not only is this shockingly un-American, it's deeply hypocritical. If the Federalist Society believes the Constitution should be followed, then they should bow out of any selection process.

That's because, according to the Constitution, only the President selects Supreme Court nominees. If they want us to strictly follow the Constitution, they should start with themselves.


  1. Anonymous04:35

    Que vaina con estos estos tipos que se creen que están por encima de todos.Amigo venezolano,Cucuta

  2. This is such as evident as a nose in your face that the USA Constitution is no more up to date and was written by men of the 18th century for men of those era.

    Now, many things as changed in modern societies, USA like others in the world.
    We no more live in the same conditions as Daniel Boone. They didn't have cellphones, internet, guns as AK-47 etc.

    That is why the second amendement, to only speak of that one, is no more relevant.
    It was put in the Constitution to help the first Americans to protect their land and family.
    The RNA is making a big fus about that RIGHT no matter if it's against any other human rights to LIVE FREELY and PEACEFULLY.

    For LGBT, in the 18th century even the knowledge of what it meant was none existing.
    Also the big immigration waves as we see since the 20th century wasn't in their minds.

    Modernizing your Constitution SHOULD be a big improvement to update it to our times.

    Must admit that here too, in Canada, our 1867 Constitution should be modernized.
    But as in 1981 it was brought back from UK, our prime minister P. Elliott Trudeau had the bright idea to join it with a new « Canadian Charter of Rights and Freedom» to ensure ALL Canadians that they will be well protected who ever we are.


    Trudeau said that the government shouldn't be aloud in bedrooms of any Canadians.
    Ensuring also freedom of religion, association, race and sex.

    For LGBT Canada is one of the best country to live in.


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