The Power of Supreme Court Choices by Linda Greenhouse

[elleng]

'A combative approach from George H.W. Bush put Clarence Thomas on the court and and has been embraced by Mitch McConnell and other Republicans.

It’s not hard for a new president, in concert with Congress, to erase a predecessor’s legislative, regulatory and diplomatic accomplishments. It’s a president’s Supreme Court legacy that lasts.

Many retrospectives on the life of President George H.W. Bush, who died last Friday, noted that one of the two men he named to the court, Clarence Thomas, is now in his 27th year as a justice and, at age 70, is on track to become one of the longest-serving Supreme Court justices in history.

Justice David H. Souter, who in 1990 became President Bush’s first Supreme Court appointee, has received much less attention in recent days, perhaps because he retired nine years ago and has avoided the spotlight ever since. The soft-spoken New Hampshire judge never became a lightning rod except to those on the right who, while thrilling to Justice Thomas’s hard-edge originalism, were sorely vexed by Justice Souter’s modestly progressive jurisprudence. While one became an icon, the other became the object of a negative mantra: “No more Souters.”

My goal here is not to appraise the two Bush 41 justices. It’s to compare the approaches — one conciliatory, the other, confrontational — that in the space of a single year (July 1990 to July 1991) produced such different nominees. Those approaches remain today as contrasting archetypes for how to fill a Supreme Court vacancy.'>>>

https://www.nytimes.com/2018/12/06/opinion/bush-supreme-court-thomas.html?

[guillaumeb]

1. Recommended.

The only thing original about the self-described originalists, in my view, was their habit of creating and discovering original intent that conflicted with the clear language of the Constitution.

And in the case of D.C v Heller, the originalists ignored 50% of the clear language of the Second Amendment, and precedent, by declaring one clause to be "merely prefatory".

[elleng]

2. Right, don't mean NUTTIN,

'A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.'


There are several versions of the text of the Second Amendment, each with capitalization or punctuation differences. Differences exist between the drafted and ratified copies, the signed copies on display, and various published transcriptions.[23][24][25][26][27][28][29][30] The importance (or lack thereof) of these differences has been the source of debate regarding the meaning and interpretation of the amendment, particularly regarding the importance of the prefatory clause.[31][32]

One version was passed by the Congress, and a slightly different version was ratified.[a][33][34][35][36] As passed by the Congress and preserved in the National Archives, with the rest of the original handwritten copy of the Bill of Rights prepared by scribe William Lambert, the amendment says:[37]

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The amendment was ratified by the States and authenticated by Secretary of State Thomas Jefferson as:[38]

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

https://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution#Text

[guillaumeb]

3. And the clear intent of the Framers,

was ignored as 1/2 of the words were dismissed as merely prefatory.

As a thought experiment, delete the last half of the Amendment, and we have:

"A well regulated Militia, being necessary to the security of a free State"

and we have an acknowledgment that a free state has the right of self-defense. And that right is assured, in part, by a well regulated militia.

The Jeffersonian version that you supplied makes the intent even clearer.

[Igel]

4. It's an absolutive construction.

https://en.wikipedia.org/wiki/Absolute_construction

That makes it subordinate. The grammar matters. Absolutive constructions were more common a couple hundred years ago than they are now. We still use them now and again, but they're clearly literary and formal, not colloquial, and the participle is much less often in the present form. When we do use them, it's really hard to get a nominative subject in the clause.

Avoiding details, it's true that much of the text is left out of consideration. That, of course, asserts that it's necessary to avoid details--something that's actually not true. It's not an assertion; it's a backgrounded condition or assumption.

The comma's unimportant here--there's some kind of a intonational break, and that's the comma. It's one mode of comma usage, currently considered ill-advised. (I still use that style because, well, I find it convenient to use commas when I pause in speech or thought. It's still, generally, ill advised.)

I'm used to Old Church Slavic, which had dative absolute constructions for the same kinds of thing. It often said something that had gone before, as prologue; something that was considered an adjunct; a fact that was somehow connected, perhaps causally or temporally, and often gave a reason for the main clause. Sometimes it gave *the* reason, but often it just gave *a* reason. That the connection was largely paratactic and implicit, unstated, often made them a bit ambiguous. That ambiguity was often intended, or wasn't obvious to the speaker, or just wasn't important enough to be foregrounded. (That's mostly how I think of it: It's a bit of backgrounded information, pertinent but unspecified as to connection.)

I'd go a bit further than you: A state doesn't have the right to self defense, the militia is a prerequisite for a free state's security.

"Security," by the way, has also shifted meaning. It covered a semantic range wider than at present: http://webstersdictionary1828.com/Dictionary/security That condition of being secure could be when faced with external danger, or internal danger; it could be a threat against the state itself as a singular entity, the way I tend to interpret the phrase now; or it could be against the confidence or perception of people in the state that they are secure or safe. Internal insurrection, widespread upheaval, occasional raids would count every bit as much as a threat by an external power or by the central power. The police force, state and combined local forces, contribute to the security of a free state, part of whose freedom is precisely that they're not dependent on external forces for their security. If you're in an embattled community and do not feel safe, you lack "security", whether that's because ISIS is at your doorstep or your community's internally riven by gangs and criminals. An "armed neighborhood watch" would be a militia.

[Haggis for Breakfast]

5. Reflect a minute on WHO Clarence Thomas was replacing

and it will make your blood boil.

Thurgood Marshall.