Couple things to end this:

(1) You really should acknowledge some of the historical errors in your posts—I get it that it’s hard to have perfect recall of things when dashing off a comment on a blog, but accuracy is important.

(2) It’s a weak debating tactic to declare yourself unconvinced. The wholesale stiffing of judges started with Dems and Reagan and continued with Bush 41. The GOP responded by stiffing some Clinton appointees, although it is very relevant that a lot of Clinton nominees were terrible. See, e.g., Kim McLane Wardlaw, someone who has eaten four, count ’em four, summary reversals with per curiam opinions. And she is not an isolated case. And the GOP left fewer Clinton nominees hanging than the Dems did to Bush 41.

(3) Then we get to Bush 43, ’nuff said. And, just to note, remember the big brouhaha over Ronnie White and the Ashcroft nomination and how the Dems mercilessly demagogued the issue–without, of course, mentioning that White failed the bar the first time around (a bar with a 90% passage rate). By the way, he’s a federal judge now, due to an Obama appointment.

So yeah, Dems started it, and escalated it—you can deem yourself unconvinced all you want. But the record seems pretty clear,

SPO,

We are going way off topic. I would be glad to argue about the relative extremism of Bork or Ginsburg and whether supporting a woman’s right to choose to have an abortion is an extreme position. While I willing to argue with you about the soundness of Roe v. Wade, it would likely lead to naught, as we probably agree on the issue. Perhaps there will be another opportunity to discuss this.

Your original point was “the Democrats started it”. My response is “that is not the case.” I do not think you have made a persuasive case.

Minor error? The table shows the current 9th circuit with 31 judges: 9R, 16D, 6 vacant. Wikipedia shows an unchanged total of 29 from 2017: 7R, 16D, 6 vacant.

Carter appointed Stephen Reinhardt to the Ninth Circuit–and quite a few others–suffice it to say, the idea that Reagan’s appointments were out of line is weak. Compare and contrast Bork and Ginsburg. Bork was certainly not to the right of Scalia. And, unlike Sonia Sotomayor, Bork never linked the quality of judging to ethnicity.

With respect to Marshall, Brennan and Warren, their appointments blow your thesis out of the water, and the idea that Marshall wasn’t a liberal is, um, curious.

Thomas, by the way, was appointed by Bush 41. Reagan got O’Connor, Kennedy and Scalia—two moderates and a conservative.

I wasn’t going to bring this up, but since you insist on talking about Bork as an extremist, let’s get acquainted with RBG’s views on partial birth abortion. She thinks that procedure is protected by the Constitution–certainly radical. Her views support the deliberate killing of healthy, viable fetuses with no discernible medical benefit to the mother (unless you want to count “not being a mother as a medical benefit). So, under Ginsburg’s view, a state is powerless to prevent an abortionist from injecting a healthy 8 month fetus with Digoxin to kill it before delivery—that is extreme.

If I am not wrong, Warren and Brennan appointed by….Eisenhower. Marshall was appointed by a Democrat, but the southern conservatives had lost their edge by then. I am not sure he was a true liberal, but I will give that one to you. He certainly was more liberal than, say, Thomas.

How exactly would the GOP have done to Carter what the Dems did to Reagan? They were in the minority (I am not sure if they even had enough to filibuster). Moreover, is there any empirical evidence that Carter tried to appoint fringe candidates and that Reagan was more centrist? Finally, whether Bork was on the fringes is a matter of debate. Please note that, other than Bork, Reagan did get a bunch of justices confirmed, promoting Renquist and appointing Thomas, O’Connor, and Scalia.

Again, my point is not to argue about whether the Democrats or the Republicans are worse. It is to argue that what is happening is nothing new and that, unless there is a big majority of the president’s party in the Senate, or the president makes centrist appointments, there have always been tensions about advice and consent.

First of all, Bork was not “on the fringes”–compare his record to say, Judge Kim McLane Wardlaw, who has eaten four per curiam reversals by opinion from cases in which she authored the lower court opinion. Judge Clay–look at his opinions in Bobby v. Bies.

But I really wasn’t focused on Bork. You’ll note that I haven’t mentioned him at all until now. Dems started stiffing Reagan lower court nominees. The GOP never did that to Carter. And if you look at how Breyer and Ginsburg were treated (Ginsburg had some pretty radical writings), there’s clearly more deference on the part of the GOP.

And weren’t Warren, Brennan and Marshall true liberals?

I don’t disagree that the appointment process is problematic. I think, however, that it has been so since Washington’s tenure ended. There were some less volatile times, but they were the result of one party control of the Senate and Presidency. When that has not been the case (or when there is not a filibuster-proof majority), the appointment process has been problematic.

IMHO, the current problem started when presidents started appointing people on the fringes when they did not control the Senate. That would be Reagan.. Hence, people like Bork get fried. Then Obama could not get a single judge through, even the non-controversial ones.

Please note that the Senate was under Democrat control for the majority of the time between 1933 to 1981 (after the New Deal, so the Democrats were generally the more liberal economic party) . But many of those Democrats were from the south, so it was impossible to appoint and get affirmed truly liberal judges. And because of the party issues, it was impossible to get truly conservative judges affirmed. Thus, for 50 years, only moderates could be confirmed. It was not until 1981 that a president dared to nominate a right-wing zealot to the bench.

My point is not that the modern Democrats or Republicans do not bear some responsibility. My point is that 1980 was a turning point in the disposition of the Senate. And that, more than anything else, had an impact on judicial appointments. I might even go so far as to blame it on Nixon. Had he not been a crook, Reagan might not have had the influence he did (for example, sinking Ford’s chances in 1976), and everything would be different. But, then again, maybe we should blame LBJ, whose screwing up the Vietnam War led to Nixon’s ascension. One could also blame CJ Burger who wrote and the 6 other justices who joined the opinion in Roe v. Wade.

That said, before you blame one party or another, I would think you would have to look into history to see whether the judiciary was as politicized as it is now. See https://ilr.law.uiowa.edu/print/volume-100-issue-2/the-politics-of-early-justice-federal-judicial-selection-17891861/.

Carter had judges confirmed after he lost an election. Then the Dems started stiffing Reagan.

Just to be clear, I did not express a position on any of the law referenced, just pointing out that there are reasons a person might not want to go by a strict reading of the Constitution.

It is worth noting that in your explanation, you used context of the time (British seizure) as support. This is not a strict reading of the Constitution, but a contextual one. However, for the right to privacy, you are using a different standard. A standard that is more in line with an “in the spirit of the law” reading of the fourth and fifth amendments.

So standards for interpretation matters. What one person thinks is obvious, another will think is not. After all, time flies like a banana.

SPO,

John Adams and John Marshall “started it.”

Regards.