1/ I disagree that Dems have treated the court as an apolitical institution. During the Gorsuch confirmation process, Schumer held a press conference to oppose him, featuring some individuals Gorsuch had ruled against despite their suffering.http://time.com/4702354/neil-gorsuch-chuck-schumer-decisions/ …
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2/ The argument had nothing to do with statutory/regulatory interpretation or precedent, but rather made the essentially political argument that Gorsuch was unfit b/c he ignored "human" considerations such as those litigants' hardships.
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3/ Of course, this implicates a broader debate over the proper role of empathy in judging and const'l interpretation. I discuss that debate re: Justice Sotomayor and her writings on the issue at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3110990 …
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4/ In my view, legal realism treats the Court as political institution, and it seems Democrats tend to embrace that approach much more than Republicans (though I know some argue Repubs often just pretend & use philosophies like originalism/textualism as fig leaves)
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[5/ I might have even read such a critique of originalism in A Justice of Contradictions, but apologies if I'm misattributing or misremembering]
End of conversation
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The Court has always been political. Warren Court was very political, just left of center. Conservatives stopped pretending that a long time ago ... which is why SCOTUS was such a huge reason for holding noses and voting Trump.
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