The elephant in the room:

Update [Kyle]: The really dangerous thing about the GOP’s behavior here is their abandonment of rule-oriented jurisprudence for results-oriented jurisprudence. The legal system defines a set of procedures and standards which, when followed, should result in justice to the greatest extent possible. Justice isn’t achieved 100% of the time because people are fallible and rules are limited. But if we throw the rules out the window because we don’t like the result we got from them in some specific instance, we’ve moved to a completely different model — one where we decide on the ‘right outcome’ based on some other criteria and then twist the laws until they say what we want. In such a system, it’s impossible for judges to simply apply the law, because the law isn’t meant to be applied. The law becomes a set of excuses or rationalizations deployed to justify previously-existing moral intuitions.

Both the left and the right have now demonstrated that they’re willing to use results-oriented jurisprudence to back up their own moral intuitions about just outcomes. This amounts to a wholesale abandonment of the principle of the rule of law. (This also explains why the judicial nomination issue has become so amazingly contentious. When the law is only a set of excuses for your moral intuitions, it’s vitally important that the judges who deploy the excuses share your moral biases.)

In a situation where the rules are found not to cover some new situation, or where it is decided they are resulting in systematically unjust outcomes, the right response is to update the rules. But that’s not what’s happening here. Bad GOP! No donut!

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