Brett Kavanaugh Caught Cherry-Picking Quote | Law & Crime
Category: News & Politics
Via: john-russell • 4 years ago • 23 commentsBy: New York University Law (law-newz)
S E E D E D C O N T E N T
The controversy surrounding the party-line confirmation and swearing in of Associate Justice Amy Coney Barrett to the U.S. Supreme Court was further compounded on Monday evening when the court's conservative justices sided with Republicans in Wisconsin, ruling that the critically important swing state can only count absentee ballots that arrive by Election Day. While the court did not provide a majority opinion, Justice Brett Kavanaugh's 18-page concurrence was widely criticized for embracing unsubstantiated partisan talking points, misstatements of fact, historical misrepresentations, and incorrect citations.
But most glaring error critics identified in Kavanaugh's opinion concerned his "Trumpian" justification for why "most states" do not accept mail-in ballots that arrive after Election Day. Kavanaugh a cherry-picked quote which-in the context of the whole law review article-ultimately contradicted his actual point.
"Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election. And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter," he wrote.
Kavanaugh then quoted from a law review article titled "How to Accommodate a Massive Surge in Absentee Voting" by New York University Law Professor Richard Pildes to bolster his point.
"The States are aware of the risks described by Professor Pildes: '[L]ate-arriving ballots open up one of the greatest risks of what might, in our era of hyperpolarized political parties and existential politics, destabilize the election result. If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode,'" Kavanaugh wrote. "The 'longer after Election Day any significant changes in vote totals take place, the greater the risk that the losing side will cry that the election has been stolen.'"
A closer reading of Pildes's article, or even the heading under which the cited paragraph appears, shows that Pildes unequivocally concluded that all states should make sure they count valid ballots received after Election Day.
"States that require absentees to be received by election night or shortly after should move this date back," Pildes wrote. "Moreover, if a significant number of votes come in after a receipt deadline that has not been changed and that is much tighter than in other states, ex post litigation challenging that deadline is easy to imagine. This is exactly what we do not want to face for a risk that can be mitigated in advance."
Kavanaugh ruled AGAINST the six-day extension for Wisconsin to accept ballots postmarked by Election Day. He cited an article from legal scholar (and CNN contributor) Rick Pildes. But in that article, Pildes says states SHOULD extend postmark deadlines. https://t.co/Uupirxyrgmpic.twitter.com/nEyj92Gh6p
— Marshall Cohen (@MarshallCohen) October 27, 2020
In her dissent, Justice Elena Kagan argued that Kavanaugh's claim that votes counted after Election Day might "flip" the election results is simply nonsensical.
"Justice Kavanaugh alleges that 'suspicions of impropriety' will result if 'absentee ballots flow in after election day and potentially flip the results of an election,'" Sotomayor wrote in a footnote. "But there are no results to 'flip' until all valid votes are counted. And nothing could be more 'suspicio[us]' or 'improp[er]' than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process."
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The idea that SC justices simply want to find the constitutional basis by which to make an unbiased decision is nonsense.
John, you don't seem to understand the first thing about originalism, or what the Supreme Court does. IF a clause of the Constitution is at issue, then "originalism" is relevant. That's a tiny percentage of cases. You've been bamboozled into thinking judges decide all cases by arguing over the text of the Constitution.
I know originalism is the left's new scare word and they will obsess over it and see originalism under every pillow for the next few weeks, but you should actually read the cases if you want to know what they are about.
"Originalists" make up their mind on a case, not by what is in the Constitution, but by what they personally prefer to see happen in the case. Then they send their law clerks looking for a constitutional justification.
Originalists" make up their mind on a case, not by what is in the Constitution, but by what they personally prefer to see happen in the case. Then they send their law clerks looking for a constitutional justification.
So now Justice Ginsburg was an originalist. Good stuff.
Maybe he was writing at home.
Or maybe they serve beer at the Supreme Court now?
I wonder what kind of grades he got in law school
It's not surprising that he is doing what he was put on the bench to do. Destroy the democratic process and help turn the country into an dictatorship. Kavanaugh is a political arm of the radical right GOP and the religious cults. We need to get rid of the Supreme Court
We just need to double the number of justices, then appointing one wouldn't be seen as such a political move since it would be much harder to have either conservatives or liberals controlling the court.
I think that approach opens the door to more abuse and radicalization. I know there's been discussion lately about Congress invoking their option to preclude the Supreme Court from ruling on certain issues but TBH I haven't spent much time learning about it. I like the idea of Justices having to divest their portfolios and we need to institute term limits. When the Life Appointment term was put in place it was a time when the life expectancy was much shorter. We also need to expand on the district courts to balance out the damage McConnell and the rest of the GOP is causing the country.
We need to match them, 6 conservatives and 6 liberals. That way when decisions are handed down, you can show that they are agreed on. Any partisan decisions will be put back to the lower courts.
Make the justices argue amongst themselves until they come to an agreement. Make them put some effort into it, so we don't have any that just sit there, never speaking, and only follow what the others of the same beliefs say.
I agree that an equal number is preferable... but that observation implicitly considers the Court to be a partisan instance. That's a pity. I think an even number of term-limited Justices might be progress.
I'd add three Justices (blatantly liberal!) immediately, to re-balance the court. Term limit 9 or 18 years... (I'm not sure which would be better) for all new Justices. I'm not sure what would be the best way to integrate the existing Justices.
That was then. Once the new rules, that will require argument among justices, to set in, you'll see a lot less wanting the job, and the remaining ones will be ready to with intelligent arguments.
Right now they have no need to justify themselves, they rule along ideology lines whether it is a Constitutional based argument or not.
Dunno. I'd like to believe there's principle involved somewhere... but I suspect that money is a simpler explanation.
Money...power, neither...both. Who knows, one thing is for sure, it is not based on the Constitution (many times).
Doing what he was put in there to do.
On another note, I read an article earlier that said Barret went to a donald political gathering after she was sworn in.
This has been their plan for a while. Put as many ideologues on the court as possible.
They use to have the nerve to say..don't legislate from the bench...notice we never here that meme anymore, as they send everything to the courts.
Reading these comments is like a stumbling into a den of 9/11 truthers bouncing increasingly wackier conspiracies off each other. You guys are going to radicalize each other to the point where end up living in armed compounds to protect yourself from "originalists."
Relax.
The Court held that an unelected district Judge can't rewrite state law (you know, passed democratically) right before an election. If you don't like "dictatorship" you should be applauding Kavanaugh for standing up for the democratic process and not allowing one unelected person to overrule a state legislature. .
I don't see the problem or how it is "cherry picking." The original writer and the justice both acknowledge the same problem (the allegedly cherry picked part) but reach different conclusions as to the appropriate response to the problem.
Pack the Court.
Cries every fascist.
You can do better than that, Sean...