Rewatching scenes like this and listening to Aaron Sorkin’s dialogue is just an absolute delight! We should all aspire to this kind of genius in conversation.
You mean topical, vapid, pith of no merit? Suggesting that it’s somehow a bad thing that a judge would refrain from striking down a obviously absurd law because he doesn’t have the power and making it sound smart and witty is why our nation is a joke; since all the fans of the show are now in management positions in bureaucracy and politics.
Not just genius in conversation but also a bit of a prophets it seems. From this scene to all the pre season 4 talk about qumar and the Middle East and killing shariff etc. remember this al happened on the show before 9/11
"Well then, you're really going to enjoy meeting the US Senate." That exchange always amused the heck out of me and has stuck. I really ike the guy Bartlet eventually picked and how he interviewed him.
"In a country born on the will to be free - " The Sorkin touch - sentences that start with prepositions to add to the rhetorical quality of the dialogue. The kind of stuff that makes you want to tear up.
One of the most profoundly prophetic scenes of the entire series. I think of it often when I'm doing anything on the Internet, including commenting on TH-cam clips.
@2legit64 - When the judge said "Now you have me taken to school by some kid" it reminded me of the Kavanaugh hearing. Both judges showed a lack of respect and a lack of judicial temperament. Unfortunately Kavanaugh got confirmed.
@@theolamp5312 Honestly I don't see the parallel at all. I watched the entire confirmation of Kavanaugh and he didn't display the kind of arrogance this guy did. I would argue he was actually very judicial in his behavior, especially considering he was being falsely accused of rape.
Sam Seaborne was such a massive character and Lowe nailed Sorkin’s dialogue despite his comprehensive personal objections to the politics. This is when the joint artistry is at its best!
@@CobisTaba Think he went from democrat to republican but not sure. Probably a bit in between. And from what I know he was a democrat during the show. Or acted like one to get on Sorkins good side maybe. Awesome actor whatever his opinions are 🙂
How do you know so much about his personal politics? I can’t imagine even an actor (excuse me) agreeing to such a large role if he objected to virtually everything this show espoused. No sir.
@@fifthbusiness1678 FFS dude, people play all sorts of roles that have nothing in common with them personally, that's why it's called ACTING! Some do it simply for the fat paycheck and some do it because it's a great opportunity or a great script which I would think most of Hollywood knew about Sorkin by the time this series was about to start casting.
Sorkin was ahead of his time. He has called so many things that apple to current events & the last 20 years of politics, government, & American culture.
And what drives me crazy is the Season 5 episode The Supremes completely ignores him. I still feel that's the best ep in the post-Sorkin era, certainly in the Top 5 of the entire show, and shows that TWW didn't suffer all that much when Sorkin left.
I have thought frequently about what Sam said during the past couple of years. I guess even Aaron Sorkin could not have expected how accurate his prediction was going to be.
"Losing the votes of coffee drinkers" and losing Roe v. Wade on arguments based on the ones demonstrated here shows how great - and sometimes educative - this show has been.
States passes law banning people from using objects all the time, they ban the uses of guns, drugs, etc. Those are just objects, similar to cream in coffee. Pal, the argument made is this show is through the mind of a guy who doesn't understand anything about the law. Get a better source.
@@markarmage3776 except the Supreme Court struck down the phantom right of privacy. If you wanted privacy to be that absolute a right you should have proven it wasn't by having vax/mask mandates.
3:05 if he went through exeter, princeton, and Harvard law, was it, yet the questioning sam gave him was unprecedented, then he was wasting his time. the point of going to a top law school is that the people there, students and professors, will be the best arguers and questioners you'll ever meet. if you didn't face any rigorous questions there, then that's money down the drain.
The fact that a judge looks at polling data should automatically disqualify him from sitting on the Supreme Court. A judge is not a politician, he/she will need to make unpopular decisions for the sake of equality.
Reasonable to assume he saw the poll reported in a newspaper or on television. Should a judge never read the newspapers? Should I judge be intentionally unaware of the opinions of American society?
"Reading poll data in the newspapers" is incomparable to "looking at the same polling data" which implies the judge is actively looking at polling data. The implication comes from the fact that the polling data used in the White House is not the same as that which is condensed and dumbed down into pretty graphics for the masses, which is what gets published in the papers. Sentinel501 made a good point, and you demonstrated your partisan orientation by false equivalency and the introduction of data that was not originally part of the equation. Nowhere was it mentioned the data was in "newspapers" Checkmate.
Whilst +smarterthananyone was wrong about his assumption, sentinel501 argument was based on a flaw as well. A judge will have to make unpopular decisions not for the sake of equality but the enforcement of the law. Now the constitution has equality baked in to some degree and the equalities that the constitution refers to have been expanded over time.
The judge destroys his own argument starting at 00:50. When President Bartlett asks him if his has the right to wear an ugly suit, the judge says he does because it’s protected by the 1st Amendment “Freedom of Expression”. There is no “freedom of expression” within the text of the 1st Amendment. The five enumerated freedoms of the 1st Amendment are: religion, speech, press, assembly, and petition of the government for redress of grievances. Judges have interpreted freedom of speech to include nonverbal expression such as an ugly suit, but a strict interpretation of the 1st Amendment could find that there is indeed no such right to wear that suit. Like with the right to privacy, judges took the words of the Bill of Rights and found that the right to expression was implied within them. Yet the judge seems perfectly fine with an implication for freedom of expression but not the right to privacy. So yet another reason to keep on off the Supreme Court; there are enough inconsistent hypocrites on the real Supreme Court without adding a fictional one.
Because expression is an easily understood concept, but privacy is not, dummy. Why don't you go learn actual law? Freedom of expression was understood at that time and applied regularly since that time. But this nonsense of "privacy" that nobody knows what it includes or not, that was never enacted at that time. Go study real law, you need more than a poorly written TV show.
If it had been con 101 he would have had the judge say " and that Sam is why the founding fathers created an amendment process to the constitution. If you want privacy to be a constitutional right then follow that process"
@@aaronjjacques Absolutely. Glad someone else said this. This scene to me just screamed of "how can I write this character to just get defensive rather than shooting down my incredibly flimsy political opinion?". Literally just Sorkin writing a strawman to argue against and creating a character who, for some reason, is unwilling to point out the obvious strawman.
@Falllll except as the Supreme Court just ruled that exactly what it needs. The squint real hard and morph one right into another was invalidated (roe v wade).
The way Aaron Sorkin knows about the future of politics and gets it right so damned often is incredible and nothing short of prophetic. And people wonder why we in the left hold him up like a God. HOW DID HE GET EVERY SINGLE ONE OF THOSE PREDICTIONS RIGHT? It's not like they were obvious. FFS this guy is amazing.
I have reflected, and continue to reflect, on the words Sam spoke. And your correct to point out that it wasn’t obvious what the internet was going to be, it was 1999. Or that Cell phones would morph into smart phones that was still 10 years away. How Sorkin could see it is nothing short of true brilliance.
@@RickSolid1 "Brilliance"? No, those scenarios had been predicted way before that by people far more intelligent than a bunch of liberals who think this is how you could run a White House. It's FICTION! It's not real and you people think that "oh, it would be so easy if we all thought that way"! Just as a side note, The Terminator was released in 1984 (an interesting year for those of you wish George Orwell didn't predict most of what you idiots stand for now) and that was 15 years before your new god Aaron Sorkin was crowned your new king. The Terminator was a great study in AI and the fact that DARPA has been worried for years about this. The original problem was how to keep the Soviets out of the military Internet. Packet switching was a key invention that went back to 1965. IP and TCP dates to the 70's....Are you gals catching on? Somehow I think you'd rather live in your pretend world. Best of luck with facts and all that boring stuff...
The 9th amendment could cover the right to privacy. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Not really a gut feeling. I think that, in addition to the text of the Constitution, the court should look at what the framers were thinking-what they were trying to accomplish.
Rule is very simple. If the Constitution doesn't say the Government can do a thing, it can't. If the Constitution does not explicitly prohibit an individual from doing a thing, the Government can't. Same rule for State constitutions, many of which preceded the Federal government by a number of years.
Two problems with that idea: 1) it assumes that a 21st century technological society can be run with exactly the same rules as an 18th century agrarian one. You may think "Well, then just amend the Constitution as necessary", but we'd end up with about 300 amendments to cover things that weren't around when the Constitution was written. I used to work in radio. From where I live in California, I can pick up AM stations 900 miles away at night. Clearly, radio waves aren't something that can be contained within state borders, but the Constitution is silent on a product that hadn't been invented. So we'd need a constitutional amendment to keep KOA in Denver or KOMO in Seattle from broadcasting such a strong signal on whatever frequency they choose that it blows other broadcasters out. And because I'd guess you'd want the amendment written as narrowly as possible, it probably wouldn't cover television. So, we'd need an amendment to cover that as well Airplanes weren't around, either. So, we'd need another amendment to cover that. Actually, we probably wouldn't have air travel, because no airplane manufacturer is going to get 50 different approvals from each of the states. Because photography, film, and video recording hadn't been invented, then according to you, the government doesn't explicitly prohibit how someone may use them. There's no way that you could have federal statutes prohibiting child pornography. Remember, it's not explicitly prohibited by the Constitution, so that must be OK. By your standard, the _US_ _Air_ _Force_ is unconstitutional, because it's not authorized in the Constitution, although an Army and Navy are. 2) It ignores Article 1, Section 8, Clause 18. If you accept that one of the basic purposes of the Constitution is "to promote the general welfare", then passing laws that Congress believes will do that is part of their remit.
The Courts should, given the clear language on the 'Ninth', be required to show that the *non-existence* of a 'right' has been clearly and expressly enumerated; and even then, times change, which is why 'Originalism' is such a crock! This is exactly why intelligent people in Australia have constantly argued against the calls for incorporating a Bill of rights in our own Constitution .
Associate Justices Thomas & Scalia called themselves "originalists". And yes, they were appointed by Republican Presidents. Scalia would complain from time to time that justices were picked from what he called the "judicial monastery". He thought the Court should be more diverse in educational backgrounds outside of law school.
It's amazing how true this is today. Aired 2004 and "next 2 decades will be privacy..whos gay and who's not..." and individual rights (abortions). How true!!
9th Amendment, US Constitution: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. A judge who does not recognize this is not fit to sit on any bench, let alone the Supreme Court. Why this was not mentioned in the scene is beyond me.
😅 I would imagine it’s because to so summarily shut down the argument and conversation would not allow for the moment and dialogue that followed. If the screen play does not attempt to depict the exhaustion of the argument, some viewers who are not as knowledgeable as yourself might not be as heartily affected by the subsequent exchange.
I mean, that's fine. But that still doesn't tell us what the "rights retained by the people" ARE. Do they include cream in coffee? To healthcare? You're still in a bun fight about what natural rights to include.
What does that really MEAN, though? There are many things we have banned that are not explicitly banned by the constitution. If all things not mentioned are protected, then it should be nigh impossible to make ANY laws limiting ANYTHING. In practice, the 9th amendment is meaningless.
@@demiserofd Take the 9th with the 10th. The 10th basically says any power not specifically granted is denied. Those two amendments taken together are far more important than most people realize.
Sam was supposed to be one of the stars of the series, and whoever they would hire as POTUS just a repeating minor character. Martin Sheen was only hired the day before his one scene at the end of episode one was taped. Unfortunately for the original plans for the series, he was a bit too good, and ended up sucking up script pages and screen time :-) .
@@jimmy2k4o Hey dumbass; this isn't "art". It is a fantasy world where liberals pretend that they hold the higher moral high ground and pretend that they can be objective, intellectually superior, etc for 1 hour a week. I suppose the "art" in this show was tricking the left into the falsehood that this was a pretend reality that they once lived in for a while. I'd pay good money to see the biden/harris behind the scenes walking brain dead advisors who can't get an idiot savant VP to stop giggling like a school girl when she doesn't know the answer to a question on the international stage adding to the fact that she is a dilettante in foreign affairs and still can't find the Southern border and/or locate ANY problems that might be of concern to the United States. The art that you speak of is the equivalent of children drawing pictures then showing them to actual so-called experts who quibble over the artists interpretation of post modern blah, blah, blah..... You must have been a writer on that show scouring youtube and shilling for a reboot of the show.
Great dialogue, as usual, from Sorkin. But all one has to do to debunk their caricature of a Supreme Court nominee is to read the 9th Amendment. Or the 10th.
This show and especially this scene are an abject lesson for America. I wonder how many people learned it. Because not too long from now, we are about to find out.
2:01 and that sam is why we have a process to amend the constitution that way if a right deserves the absolute protection of being a constitutional right it can be added to the bill of rights.
I hate to be the guy who quotes the scene. But "I wasn't calling you a fool sir, the brand new state of Georgia was" is absolutely jaw droppingly hilarious.
"That's not up to me" I flinch every time I hear that. The man has almost as much power as God yet he's ducking and weaving and trying to skirt his responsibility to make society a better place.
Judges are not Gods and that is not their responsibility. They must adjudicate cases, no matter how happy or sad they are with the law. If you want it to be otherwise, it is the legislature the one who must make the changes.
@@jfallas At the time there was concern about the 5-4 conservative majority on the supreme court. Later in the show Amy makes a comment like "They could overturn Roe in the future" and it was considered a worst case scenario at the time. Now that the conservatives have a 6-3 majority, Roe has been overturned which has undermined the rights of millions of American women. So you better believe that with the "checks and balances" style of modern republics, that all three branches of government have a responsibility to make society a better place. In saying that "Only congress can write laws" you may as well be saying that the president has no power to do anything either, which if you've watched the show, you can clearly see that's not the case.
@@Gredddfe Roe was a bad decision, whether you are for or against abortion. There was no reason for the Court to decide whether aborion had to be legal or not. This was something that was up to each state to decide. Which is what the overturn of Roe did. It devolved the decision to the states. The President has powers. But he does not have the power to make laws. Neiher the court. Otherwise, it would be a tiranny. The legislature makes the laws. Of course for liberals it was very easy for much of the time to push their own agenda thru the Courts instead of convincing the majority. Now they have to explain and convince that having unlimited aborion up to 9 months is reasonable. Or perhaps agree to a compromise on an earlier date.
That's because Roe was a terribly decided case, as even Ginsburg noted, and its an issue Congress should debate and handle like European countries. Relying on judicial fiat for things is fragile and the overturning of Roe shows that. Any rights government giveth, government may taketh away.
The problem with this scene is right from the start. At 0:10, the judge says that the Constitution doesn't provide for a right to privacy; the right doesn't exist. This is in direct contravention of the 9th Amendment, which states that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." He's right that the Constitution doesn't provide the right; he's wrong to say the right doesn't exist. And that character would have known that. The 9th is not a well-known Amendment. It was added to the Bill of Rights specifically to address the concerns of the people such as the Georgia delegate that Sam quoted.
Well, today the Alito decision in Dobbs which purports to overrule Roe v. Wade was leaked. I felt the need to re-watch this scene. It sure feels differently when it becomes real. #Dobbs #RoeVWade
This was the scene that came to me when I heard the ruling last week; Aaron Sorkin is astonishingly prescient. Terrifying that the Supreme Court are going the wrong way.
He also played The White Shadow. If they had cast William Daniels for a guest role, I would be as impressed as when St. Elsewhere sent him to Philadelphia during a heat wave, and had him reprise the first line of his first song, "Sit down, John."
It seems to me the battles over privacy mostly take place within the FISA court. The Supreme Court nowadays has become the branch of Government which deals with contentious issues which political paralysis prevents the other two branches from confronting, and as such has become politicised to a dangerous degree.
One of the best things about this show was variety of viewpoints. They might be unified in purpose and patroitism, but their personal takes and ideas varied wildly. Often they were wrong too, and had to re-evaluate themselves. That made it even better...because they NEVER made the other side the villain. Just the other side. They had Republicans who were just as noble and just as right as they were. What a better world it would be.
The fact that the 9th amendment was never mentioned in this scene is mind-boggling . It's text completely eviscerates the judge's argument: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'
Article 3 section 2...."The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." This means The Supreme Court is supreme ONLY to the judicial branch of government. Congress has the authority (if they had any guts) to over rule the court.
The problem is that to overrule the Supreme Court, they have to pass a constitutional amendment since Marbury vs. Madison. I feel that the Supreme Court is against what Madison intended for our country. It has too much balance. There's not enough checks or balances to keep them from the misuse of power.
No no. What Madison intended from what I remember from my history class, and I had a very good teacher dedicated to his craft, was that Madison didn't mean to set up the "Supreme Court" to have supreme power. He was more of a state's rights guy. M vs. M established the premise of judicial review because of what the case was about: Adams had lost to Jefferson and because he wanted the Federalist party to stay strong, he spent his last hours doing what was dubbed "midnight appointments" of federal judgeships to dozens of Federalist. William Marbury was appointed to be JOP in D.C. but the paperwork didn't get delivered in time. It was a case similar to an argument some school kids have had with their teacher over a test. "Mrs. Brown, I did finish the test though!" "But Bobby, you turned it in 20 minutes late so it doesn't count." That kind of thing. Madison, the Sec of State, refused to deliver the papers after Jefferson was sworn in. A judicial act allowed Marbury to sue for his papers. Some critics would say John Marshall should've just decided if the man got his papers or not. Most likely, he would've said Madison should deliver the documents because they were completed, just not delivered, and remember this is 1803, everything took longer then. But Marshall went further and semi-twisted the wording of the judicial act Marbury used to sue for his papers and declared it unconstitutional stating that while Madison would normally have to deliver the papers, the act that Marbury sued under was unconstitutional and therefore this was null and void. Now because of that case establishing judicial review, we need constitutional amendments to fully change the law forever because the Supreme Court can interpret any law it wants beyond the actual text of the Constitution to mean whatever it wants. If it wasn't for the 13-15th amendments, coloreds would be slaves still because of the Dred Scott decision. After those amendments passed, several racist judges ruled in Plessy vs. Ferguson for "Separate but equal" facilities that created segregation for nearly an additional 100 years until 1954 Brown vs. Board of Education. Abortion is an issue still hotly dividing the country because Roe vs. Wade decided to make it legal all over instead of letting states' rights handle itself. The same thing with gay marriage now. And a lot of other things too like line-item veto and what not. Regardless of political standpoints, I think it's best if the entire country acts like the democratic republic it is and has the people and the legislatives decide as a whole how the country should be versus allowing 9 people in robes, who are not in the public eye, who are not appointed by the people, and have dictatorial power over how long they serve, what cases they can pick, and what their decisions can be etc. to create the law of this country. "Progress" is hindered this way, true. And I'm for progress. However, I'm also of the humility to know that what I think it progress is an opinion and that my opinion isn't golden law. So what I think is progress may not be progress in the grand scheme of things because we're a democratic republic. Second, this type of system, as I've illustrated, can show "progress" in the forms of allowing gay marriage, abortion, and what not, but it also sets up a system to where the 9 Justices could rule in ways that cripple our freedoms by twisting amendments to exclude things from us while not outright overruling the amendment itself. The second amendment is one that we must fear for especially. An non 2nd amendment example is US vs. Wade in the right against self-incrimination. The court ruled that only testimonial evidence can be prohibited. So now what? Can my personal diary or journal be put into evidence? (not 100% sure there) and I know that a DA can force you to show your tattoos, birthmarks, or participate in lineups for witnesses. Some of these things are reasonable sure, but what logical conservatives like myself are rationally fearful of is a system that goes over the line. And there's not enough checks and balances to keep the Supreme Court from going over the line. There's not an option for the President along with say a majority of congress to overrule a SC decision. Or for the people of the United States to vote on a SC decision. Or for the President to ask the court to review it's decision further down the line. A court just waits however many years it takes for another case to be called up and then law is re-made. That doesn't sit well with me.
Stephen Cogan I am aware of the case as well as the back story and correctly assumed you brought this up because of judicial review. What I am asking you, is it your contention that we need a contitutional amendment to repeal judicial review? Oh and we are NOT a Democratic Republic. We are a Contitutional Republic.
the moment the judge stops arguing facts ands tries to use his position of authority to shut Sam up and twist his words so he can pretend to be insulted rather than discuss the issue he lost his credit, it is one thing to have different beliefs but these tactics of argument are for those that refuse to have their mind changed and are more afraid to be seen as wrong than to make good choices, not qualities of a great judge.
I'd say it's a natural response to someone who is trying to dance around the issues and obscure them with irrelevance. And if you watch the scene, that's exactly what he was doing. He was basically saying, 'you are too stupid to see that the other rights must obviously exist', when the judge's statement immediately prior had been disproving that with strong evidence. It would be like if you said, "The sky is blue", and someone replied, "Just because the sky isn't red, green, or yellow, doesn't mean it isn't blue." What do you say to that? There is no arguing at that point, the other person is obviously wrong and indulging their irrelevant statements only gives them credence they don't deserve. It's sad that they rejected this judge just because he didn't agree with their political agenda. The correct solution to a textualist is changing the text, not picking someone who will support you via judicial legislation.
@@demiserofd I found the first part hard to follow since you said "he" without clarifying who you meant. I still think the Judge was too dismissive of Sam's points. I would prefer the Judge have no preconceived bias about the rights of privacy and listen genuinely to the points. being made. I just didn't feel like the he was disagreeing with the points Sam was making. I feel like the Judge was merely indignant anyone was disagreeing with him.
It’s interesting watching this as a citizen of a country with a unwritten constitution built on culture and tradition rather than carefully collected rules. Ours is strong yet elusive.
Yours is one vote in Commons away from God Knows What. A few years ago, they passed a law to take effect in 1938, to avoid paying damages for WWII bombing.
I’m not familiar with that vote……. It seems strange to me that in the last few years they refused to pay for bombing damage for world war 2 was this in the uk or abroad? Regardless we have a House of Lords and a Supreme Court that can quash any ridiculous or evil bills that pass through parliament. Our parliament accomplished a lot of great things like abolishing slavery, without having to fight a civil war over it.
This scene is a good example of the reason why politicians should not be responsible for appointing judges. Judicial appointments should be done on the recommendation of a totally independent body to the Head of State.
Michael Vidal Indeed ... Likewise, I personally feel judical sentencing should not be created by politicians alone, but a similar independent body, made up by law-makers, the judiciary themselves, and a body of well-versed laymen. Ultimately, imho, it should only define certain scopes within a judge can sentence in relation to a specific crime, but allow maximum lee-way within that scope. For instance, I throughly disagree with mandatory minimums; they don't take into account the character of the offender, both the mens rea & actus rea, and much else besides. If the accused has no prior convictions relating to violent behaviour, or is not accused of a violent offense, and is a addict themselves, then by allowing judical lee-way via court approved manditory residental treatment, and a suspended prison sentence, you have both the carrot and the stick. As late, and much missed, friend who was both a alcoholic and a addiction counsellor, said to me once, "not all addicts are violent people; the act of having the addiction itself is enough to drive them into very dark places. The irony is that addictions, in themselves, is nothing more than pain control. But when that pain control itself sprials out of control, then you have a right mess. Classic positive feedback loop." This maybe unpopular, but I believe not all criminals are equal. Granted, there are some that should be given solitary confinement for their whole natural life, with no parole, not because of the crimes they committed, but the utter lack of remorse for what they did. But in the same jail, you have those who have committed non-violent offenses, in which there maybe several mitigating circumstances, then a suspended prison sentence, with mandatory court-orderd treament, with an ankle bracelet, may well be the more appropriate sentencing. I could say more, relating to removing the gender bias in sentencing, and the problem of, at least where I am, sentencing that baffles the mind (hence the need for an independent body on sentencing), along with comments from the judge themselves (judges, imho, need, and ought, to be apprasied regularly on their competency to sit on the bench); but both are different fish to fry ...
@@GLH5MHIL As to appointment I would say in the US it would have to be the President. On accountability there is an inherent risk in having judges accountable to anybody as there will be a risk that they will always side with the body they are accountable for fear that they could be removed from office for making unpopular decisions. Also where they are elected there is the risk that they may make decisions based on the need to get elected. In the UK Judges are appointed by the Queen on the recommendation of the Prime Minister who has to recommend the person selected by the Judicial Appointments Commission. The problem with the US system is that the process can be manipulated for political purposes as in 2016 and 2020.
Obviously they should be appointed by someone with a lifetime appointment themselves, so she/he would also be independent. We can call the office “the King”, and make it hereditary, too. _end_sarc_ People who want to remove politics completely from legal philosophy, like those who want to remove money from politics, just want to remove it so that it all follows their personal beliefs.
Ha, not a lawyer myself but the judge actually made very solid points regarding the role of Judicial Review. If a law was passed banning putting cream in coffee, I agree that the Supreme Court has no constitutional basis for overturning the law. Neither do they have jurisdiction to enforce natural laws. I'm all for protecting privacy but perhaps the mechanism doesn't rest in the Supreme Court unless a constitutional amendment made it so.
The point made hopefully highlights how terrible strict constitutionalism is for people who enjoy freedom and rule of law, emanating from the natural right to life, liberty and pursuit of happiness.
Binh Ho, actually there is a Constitutional right to privacy. As Sam says at the end, preserving and extending that right is critical to what Americans think of as "freedom".
Can you elaborate? To which clause/principal would the Supreme Court point to in order to overturn a law? I'm guessing what Americans think of as "freedom" doesn't weigh heavily in typical Supreme Court rulings since 1) Americans are likely to be all over the place with a concept like "freedom" and 2) there are many Americans who use 'unconstitutional' as a stand-in for 'stuff I don't like'.
Whatever clause (and there is one) provides for unenumerated rights. Some utopian constitution that predicts every eventuality with mathematical precision would be nice. But unfortunately, what these guidelines come down to in the end is someone saying "I don't want to be the good man who did nothing."
Something I don't get though is how they even considered such a strict constitutionalism. These are Liberal Democrats. I know it is part of the story line and stuff, but that is my biggest flaw with the episode. No way this administration would have let this dude get so close to appointing him.
Jefferson essentially wrote the constitution, and proposed that enslaving new generations to it might be an act of force rather than to ensure liberty - "We seem not to have perceived that, by the law of nature, one generation is to another as one independant nation to another… On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation… Every constitution, then, and every law, naturally expires at the end of 19. years. If it be enforced longer, it is an act of force and not of right"
The only silly thing about this scene is the idea that a Democratic administration would ever consider nominating a rigid Textualist like Harrison in the first place.
Honestly, why were the politicians and staff excited about who would be getting nominated as a Judge ? Why were they counting it as a “victory” ? Aren’t they supposed to be neutral ? Isn’t the judiciary not supposed to be a political tool. Moreover, the final reason for not appointing him was not incompetence but ideological difference. People should be appointed or not on the basis of merit. Not on the basis of whom you agree with and which vote bank their opinions align with. You need people on something as important as the judiciary to have diverse viewpoints. The initial reason for rejecting Mendoza was because he didn’t appeal to enough people. And he was chosen because he happened to agree with this people in the White House at the time. He was neither selected for nor rejected for his merit or performance or talent.
Nothing in life is as simple as you'd like it to be. The judiciary is not a political tool? If that's the case, there wouldn't be political consequences to what appointments are made, but there are. People will react and many will vote in part based on what judicial nominations are made. Politicians don't get to decide what the voters care about, so they have to take the voice of the people into consideration, making judicial appointments an inherently political process. And yes, people should be appointed based on merit. Which merits should be given the most weight? Career advancement? Number of papers published? Number of decisions upheld? Should it be entirely mathematical, or should character be taken into account? Every single justice is going to have a unique judicial philosophy, and there is no one-to-one comparison to be made between them, so again, it's simply natural that nominations are going to be made based on which justices' views on the role of the judiciary most align with the president's. Mendoza was on the short list, so he was clearly qualified. He had an advocate in the judge who was retiring, which put him near the top of the list. With that in mind, how can you say he wasn't chosen based on his merit? I often find that advocates for a meritocracy use it as a justification for society to take the path of least resistance. Social progress is never achieved by that method.
@@SpydeyDan Respected Sir, Do you not think the judiciary should be independent of politics ? I am not denying that Mendoza had merit. Only that he wasn't picked because of his merit. But you are right. It is difficult to define merit exactly.
To quote Sherlock "The wheel turns, nothing is ever new." Some writers, like this one, just see the whole chess board more clearly than some. And share their insights to help. Thankful for Aaron Sorkin's writing.
@@JMT1985MO The Constitution can't explicitly list everything that is a right or protected in this country, It would be a document 5 million pages thick. It's both insane and impractical to take such an extremist "interpretation" of how to interpret what it is the *core* book defining the US and its rights and freedoms, not a *comprehensive* shopping list. Judges are in existence to defend liberty, promote fair outcomes, and provide the best unbiased rulings that best serve the citizenry. Not to be robots reading from a book. We wouldn't need "judge"s for it then. Arrogant simple-minded approaches like those Judges (and the people who cheer them on) who try to pretend it's only what's literally in the text.....are just making excuses for what will fit their political and social bias and pre-judged views about issues. It's insincere, irrational, and unreasonable. It's the most ironic thing in the world that their pretending to be "pure" readers of the legal bible that is the Constitution.....are the most biased and angle-playing preference-exercising people on the bench. It might carry a bit more water if they were ever using that to rule in ways that ran contrary to their own preference and world views.....but they never use that excuse for anything other than the decisions that are self-serving law alterations (even so far as to REWRITE legal precedent). The "letter of the law" excuse is just an unreal, un-truthful tool to cover for their bias. it bears no reality in using an actual Constitution that has to be written down in a finite length, and it pretends a legal mind that freezes itself hundreds of years in the past. It's fake rules.
It's sad how often the 9th amendment gets ignored. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
How prophetic that a show from more than 20 years ago would predict where our rights would play out and change during the last 20 years. Interestingly, the show, in another e poo isode, also addressed the real possibility of finally publishing the Equal Rights Amendment (ERA) to our Constitution. Here we are, at the end of 2024 and the final days of President Biden's presidency and he has an opportunity to leave his presidency with the legacy of entering the order to the publishing department to formally add the ERA as our next amendment. For those who don't know, both houses of Congress have approved the amendment and in 2020 the 38th state (the number needed out of 50 states) ratified the ERA. President Trump's legal counsel argued that a technicality nullified the ERA but the law is fairly clear that it should be formally published. The department in charge of formally loo publishing amendments has been waiting for a formal presidential directive to publish since there is a contrary executive order from President Trump.
Until this point in his career, Rob Lowe was the charming, likable "pretty boy" actor. A movie star of the 80's and former member of the Brat Pack "The West Wing" showed he had depth and substance and could deliver solid noteworthy performances as an actor.
The more important point that they danced around but touched on not at all is not about whether or not there is a codified "right to privacy" in the constitution but whether or not the constitution explicitly empowers the government to infringe upon it. There is a right to put cream in your coffee (federally speaking) because there is no legitimate constitutional authority for the government to forbid it. Which is how a real strict constructionist would have answered that line of questioning.
I can appreciate the need to keep your roster of star actors in the show as their established characters, but I think in this situation the president had other more credible advisors for judicial appointments. Sam and Toby are lawyers by trade, but it has never been established that they were heavy weights who argued in front of the supreme court. They are intelligent, well educated and accomplished. However, they wouldn't necessarily be the choice to help nominate an associate supreme court justice.
Judges wouldn't have to interpret the laws of the country if Congress did it's job and passed the laws they are supposed to care about like the right to privacy.
@Dionne Hendricks Sam was portrayed as someone wasting his brilliance working in corporate law until a greater cause was presented to him to use his gifts. But it was never established that he had clerked for a federal judge, argued before the supreme court, worked as a federal prosecutor or for the justice department. If anything he was a legal mercenary.
![AbbaJoe26 [BrBr]](http://yt3.ggpht.com/2QIJtnVK4QWJmTOuGiDawGqljF_zKqBBwa9RKAVx6Al8x1ujL1TVa2czWedHqkzKF3b4kjnLXw=s48-c-k-c0x00ffffff-no-rj)
"The next 20 years are going to be about privacy". Ain't that the truth.
I'll bet Sam never even imagined how much of their privacy Americans would just give away to social media.
Social media hadn't been invented yet.
Yeah, as I said, I'll bet Sam never even imagined of it.
Howard Treesong Actually there was it was called chat rooms.
they where right
Rewatching scenes like this and listening to Aaron Sorkin’s dialogue is just an absolute delight! We should all aspire to this kind of genius in conversation.
You mean topical, vapid, pith of no merit? Suggesting that it’s somehow a bad thing that a judge would refrain from striking down a obviously absurd law because he doesn’t have the power and making it sound smart and witty is why our nation is a joke; since all the fans of the show are now in management positions in bureaucracy and politics.
Not just genius in conversation but also a bit of a prophets it seems. From this scene to all the pre season 4 talk about qumar and the Middle East and killing shariff etc. remember this al happened on the show before 9/11
It definitely got this one wrong.
@@Billsbob you sir are an imbecile
"So do I, Your Honor." Badass
"Well then, you're really going to enjoy meeting the US Senate."
That exchange always amused the heck out of me and has stuck. I really ike the guy Bartlet eventually picked and how he interviewed him.
"In a country born on the will to be free - "
The Sorkin touch - sentences that start with prepositions to add to the rhetorical quality of the dialogue. The kind of stuff that makes you want to tear up.
Yes. Straight to the heart of why this stuff matters to me…
One of the most profoundly prophetic scenes of the entire series. I think of it often when I'm doing anything on the Internet, including commenting on TH-cam clips.
@2legit64 - When the judge said "Now you have me taken to school by some kid" it reminded me of the Kavanaugh hearing. Both judges showed a lack of respect and a lack of judicial temperament. Unfortunately Kavanaugh got confirmed.
@@theolamp5312 Honestly I don't see the parallel at all. I watched the entire confirmation of Kavanaugh and he didn't display the kind of arrogance this guy did. I would argue he was actually very judicial in his behavior, especially considering he was being falsely accused of rape.
@@theolamp5312 yeah reminds of Ketanji Brown too.
He does this for a living? Sheesh, he hasn't heard of the 9th amendment
Yeah I liked the part of the show where they made the bad guy the only one in the room willing to leave lawmaking to congress.
The dialog in this episode was eerily prophetic.
Sam Seaborne was such a massive character and Lowe nailed Sorkin’s dialogue despite his comprehensive personal objections to the politics. This is when the joint artistry is at its best!
Lowe had personally a complete opposite opinion? Or did I understand you wrong? Never knew.
@@CobisTaba Think he went from democrat to republican but not sure. Probably a bit in between. And from what I know he was a democrat during the show. Or acted like one to get on Sorkins good side maybe. Awesome actor whatever his opinions are 🙂
How do you know so much about his personal politics? I can’t imagine even an actor (excuse me) agreeing to such a large role if he objected to virtually everything this show espoused. No sir.
@@fifthbusiness1678 Paychecks are very persuasive. They're tradespeople, like many others.
@@fifthbusiness1678 FFS dude, people play all sorts of roles that have nothing in common with them personally, that's why it's called ACTING! Some do it simply for the fat paycheck and some do it because it's a great opportunity or a great script which I would think most of Hollywood knew about Sorkin by the time this series was about to start casting.
Sorkin was ahead of his time. He has called so many things that apple to current events & the last 20 years of politics, government, & American culture.
"I do this for a living, Mr. Seaborne."
.....
"So do I, your Honor." 🔥🔥
Sam is so smug and self-satisfied
@@marcokiteand right
This show hit the nail on the head with so many topics today
It’s 2020 and this is perfect for our time! Aaron Sorkin is a genius.
Wish we could’ve gotten to see more of Mendoza during the show
And what drives me crazy is the Season 5 episode The Supremes completely ignores him. I still feel that's the best ep in the post-Sorkin era, certainly in the Top 5 of the entire show, and shows that TWW didn't suffer all that much when Sorkin left.
I have thought frequently about what Sam said during the past couple of years. I guess even Aaron Sorkin could not have expected how accurate his prediction was going to be.
I love the subtext that this meeting is as much about his temper under questioning as it is about the constitution.
The most underappreciated aspect of this scene is the utter scorn Toby has for Paton. Richard Schiff makes scornful apathy look attractive.
Schiff was beyond amazing in this show. One of my absolute favourite performances in tv or movies. 🙂
He makes everything look attractive.
I miss this show so much...Thanks
"Losing the votes of coffee drinkers" and losing Roe v. Wade on arguments based on the ones demonstrated here shows how great - and sometimes educative - this show has been.
States passes law banning people from using objects all the time, they ban the uses of guns, drugs, etc.
Those are just objects, similar to cream in coffee.
Pal, the argument made is this show is through the mind of a guy who doesn't understand anything about the law. Get a better source.
@@markarmage3776 except the Supreme Court struck down the phantom right of privacy. If you wanted privacy to be that absolute a right you should have proven it wasn't by having vax/mask mandates.
Sorkin's dialogue - one of the wonders of the world.
I used to watch and re-watch with subtitles because the dialogue was so dense. Pure joy.
The man was a friggin genius.
He didn’t write this episode. I agree, though: he is a genius.
@@samsouyave-murphy986 Sorkin co-wrote "The Short List" with Patrick Caddell.
3:05 if he went through exeter, princeton, and Harvard law, was it, yet the questioning sam gave him was unprecedented, then he was wasting his time. the point of going to a top law school is that the people there, students and professors, will be the best arguers and questioners you'll ever meet. if you didn't face any rigorous questions there, then that's money down the drain.
From 3:34 to 3:56....Hard to believe whoever wrote those lines could have imagined how true they would ring.
The fact that a judge looks at polling data should automatically disqualify him from sitting on the Supreme Court. A judge is not a politician, he/she will need to make unpopular decisions for the sake of equality.
Reasonable to assume he saw the poll reported in a newspaper or on television. Should a judge never read the newspapers? Should I judge be intentionally unaware of the opinions of American society?
"Reading poll data in the newspapers" is incomparable to "looking at the same polling data" which implies the judge is actively looking at polling data. The implication comes from the fact that the polling data used in the White House is not the same as that which is condensed and dumbed down into pretty graphics for the masses, which is what gets published in the papers.
Sentinel501 made a good point, and you demonstrated your partisan orientation by false equivalency and the introduction of data that was not originally part of the equation. Nowhere was it mentioned the data was in "newspapers"
Checkmate.
Whilst +smarterthananyone was wrong about his assumption, sentinel501 argument was based on a flaw as well. A judge will have to make unpopular decisions not for the sake of equality but the enforcement of the law.
Now the constitution has equality baked in to some degree and the equalities that the constitution refers to have been expanded over time.
prigg88 Unreasonable to assume he saw the poll in a newspaper or on television?!? What is your assumption?
prigg88 So the Constitution only recognizing some members of the population as 3/5ths of a person is equality "baked" into it?
The judge destroys his own argument starting at 00:50. When President Bartlett asks him if his has the right to wear an ugly suit, the judge says he does because it’s protected by the 1st Amendment “Freedom of Expression”. There is no “freedom of expression” within the text of the 1st Amendment. The five enumerated freedoms of the 1st Amendment are: religion, speech, press, assembly, and petition of the government for redress of grievances. Judges have interpreted freedom of speech to include nonverbal expression such as an ugly suit, but a strict interpretation of the 1st Amendment could find that there is indeed no such right to wear that suit. Like with the right to privacy, judges took the words of the Bill of Rights and found that the right to expression was implied within them. Yet the judge seems perfectly fine with an implication for freedom of expression but not the right to privacy. So yet another reason to keep on off the Supreme Court; there are enough inconsistent hypocrites on the real Supreme Court without adding a fictional one.
Because expression is an easily understood concept, but privacy is not, dummy.
Why don't you go learn actual law? Freedom of expression was understood at that time and applied regularly since that time. But this nonsense of "privacy" that nobody knows what it includes or not, that was never enacted at that time.
Go study real law, you need more than a poorly written TV show.
When Sam says next it’s going to Privacy etc has come home to well & truely roost. Subbed.
I love how Sorkin takes Con Law 101 and makes it compelling.
If it had been con 101 he would have had the judge say " and that Sam is why the founding fathers created an amendment process to the constitution. If you want privacy to be a constitutional right then follow that process"
@@aaronjjacques Absolutely. Glad someone else said this. This scene to me just screamed of "how can I write this character to just get defensive rather than shooting down my incredibly flimsy political opinion?". Literally just Sorkin writing a strawman to argue against and creating a character who, for some reason, is unwilling to point out the obvious strawman.
@@aaronjjacques Getting an amendment passed is incredibly difficult. And shouldn't be necessary for this.
@Falllll except as the Supreme Court just ruled that exactly what it needs. The squint real hard and morph one right into another was invalidated (roe v wade).
20 Years they were right, it's about privacy. Also sounds like the GA delegates were also right a few hundred years ago.
The way Aaron Sorkin knows about the future of politics and gets it right so damned often is incredible and nothing short of prophetic.
And people wonder why we in the left hold him up like a God.
HOW DID HE GET EVERY SINGLE ONE OF THOSE PREDICTIONS RIGHT?
It's not like they were obvious.
FFS this guy is amazing.
I have reflected, and continue to reflect, on the words Sam spoke. And your correct to point out that it wasn’t obvious what the internet was going to be, it was 1999. Or that Cell phones would morph into smart phones that was still 10 years away. How Sorkin could see it is nothing short of true brilliance.
@@RickSolid1 "Brilliance"? No, those scenarios had been predicted way before that by people far more intelligent than a bunch of liberals who think this is how you could run a White House. It's FICTION! It's not real and you people think that "oh, it would be so easy if we all thought that way"! Just as a side note, The Terminator was released in 1984 (an interesting year for those of you wish George Orwell didn't predict most of what you idiots stand for now) and that was 15 years before your new god Aaron Sorkin was crowned your new king. The Terminator was a great study in AI and the fact that DARPA has been worried for years about this. The original problem was how to keep the Soviets out of the military Internet. Packet switching was a key invention that went back to 1965. IP and TCP dates to the 70's....Are you gals catching on? Somehow I think you'd rather live in your pretend world. Best of luck with facts and all that boring stuff...
@@ieeyore4989 The Trump sauce sure got salty fast. :)
Well George Orwell got it in 1948, and wrote "1984". Sorkin is just a smart and literate person that can relate.
And now the left want to pass the most restrictive internet bill in Western history. Whoops
The 9th amendment could cover the right to privacy.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
But if it's not enumerated, how can a court be empowered to enforce it? Gut feeling?
So goes the argument, anyway.
Not really a gut feeling. I think that, in addition to the text of the Constitution, the court should look at what the framers were thinking-what they were trying to accomplish.
Rule is very simple. If the Constitution doesn't say the Government can do a thing, it can't.
If the Constitution does not explicitly prohibit an individual from doing a thing, the Government can't.
Same rule for State constitutions, many of which preceded the Federal government by a number of years.
Two problems with that idea: 1) it assumes that a 21st century technological society can be run with exactly the same rules as an 18th century agrarian one. You may think "Well, then just amend the Constitution as necessary", but we'd end up with about 300 amendments to cover things that weren't around when the Constitution was written. I used to work in radio. From where I live in California, I can pick up AM stations 900 miles away at night. Clearly, radio waves aren't something that can be contained within state borders, but the Constitution is silent on a product that hadn't been invented. So we'd need a constitutional amendment to keep KOA in Denver or KOMO in Seattle from broadcasting such a strong signal on whatever frequency they choose that it blows other broadcasters out.
And because I'd guess you'd want the amendment written as narrowly as possible, it probably wouldn't cover television. So, we'd need an amendment to cover that as well
Airplanes weren't around, either. So, we'd need another amendment to cover that. Actually, we probably wouldn't have air travel, because no airplane manufacturer is going to get 50 different approvals from each of the states.
Because photography, film, and video recording hadn't been invented, then according to you, the government doesn't explicitly prohibit how someone may use them. There's no way that you could have federal statutes prohibiting child pornography. Remember, it's not explicitly prohibited by the Constitution, so that must be OK.
By your standard, the _US_ _Air_ _Force_ is unconstitutional, because it's not authorized in the Constitution, although an Army and Navy are.
2) It ignores Article 1, Section 8, Clause 18. If you accept that one of the basic purposes of the Constitution is "to promote the general welfare", then passing laws that Congress believes will do that is part of their remit.
The Courts should, given the clear language on the 'Ninth', be required to show that the *non-existence* of a 'right' has been clearly and expressly enumerated; and even then, times change, which is why 'Originalism' is such a crock!
This is exactly why intelligent people in Australia have constantly argued against the calls for incorporating a Bill of rights in our own Constitution .
There's no way an originalist/textualist would be a Democratic President's potential nominee to the Supreme Court.
For an approval rating bump and votes swinging their way in the House and Senate, they might. Lolz.
If I remember right this was like the only issue the character had written a decision in in that manner
@@darkhorseash4337 He hadn't written a decision on it. It was an unsigned note he wrote for his law review when he was in law school.
Associate Justices Thomas & Scalia called themselves "originalists". And yes, they were appointed by Republican Presidents. Scalia would complain from time to time that justices were picked from what he called the "judicial monastery". He thought the Court should be more diverse in educational backgrounds outside of law school.
Aaron Sorkin is a genius. The fact that he wrote this so many years ago is amazing.
God this is more relevant than ever
Is this argument not invalidated by the 9th and 10th amendments?
"So do I your honour!"
Sam the assassin.
Sam the smug and self-satisfied tedious git
It's amazing how true this is today. Aired 2004 and "next 2 decades will be privacy..whos gay and who's not..." and individual rights (abortions). How true!!
9th Amendment, US Constitution:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
A judge who does not recognize this is not fit to sit on any bench, let alone the Supreme Court. Why this was not mentioned in the scene is beyond me.
😅 I would imagine it’s because to so summarily shut down the argument and conversation would not allow for the moment and dialogue that followed. If the screen play does not attempt to depict the exhaustion of the argument, some viewers who are not as knowledgeable as yourself might not be as heartily affected by the subsequent exchange.
I mean, that's fine. But that still doesn't tell us what the "rights retained by the people" ARE. Do they include cream in coffee? To healthcare? You're still in a bun fight about what natural rights to include.
This is why about 4 justices should not be there.
What does that really MEAN, though? There are many things we have banned that are not explicitly banned by the constitution. If all things not mentioned are protected, then it should be nigh impossible to make ANY laws limiting ANYTHING.
In practice, the 9th amendment is meaningless.
@@demiserofd Take the 9th with the 10th. The 10th basically says any power not specifically granted is denied. Those two amendments taken together are far more important than most people realize.
Sam Seaborne might just be the best character in West Wing
Sam was supposed to be one of the stars of the series, and whoever they would hire as POTUS just a repeating minor character. Martin Sheen was only hired the day before his one scene at the end of episode one was taped. Unfortunately for the original plans for the series, he was a bit too good, and ended up sucking up script pages and screen time :-) .
My favorite line: "Well, that Sam is young drives me nuts too, but he took you out for a ride sir because that's what I told him to do."
When the background music starts, you sit up and listen because something great is about to happen.
The power of music is amazing.
West wing is like my Bible, whenever I read about moral issue, I come back to these clips for solace
Have you tried the Real one? Don't get too lost in this fantasy where the government cares about you, they don't.
@@ieeyore4989 west wing is art not government and you really wanna differentiate religion from this by saying this is fantasy.
@@jimmy2k4o Hey dumbass; this isn't "art". It is a fantasy world where liberals pretend that they hold the higher moral high ground and pretend that they can be objective, intellectually superior, etc for 1 hour a week. I suppose the "art" in this show was tricking the left into the falsehood that this was a pretend reality that they once lived in for a while. I'd pay good money to see the biden/harris behind the scenes walking brain dead advisors who can't get an idiot savant VP to stop giggling like a school girl when she doesn't know the answer to a question on the international stage adding to the fact that she is a dilettante in foreign affairs and still can't find the Southern border and/or locate ANY problems that might be of concern to the United States. The art that you speak of is the equivalent of children drawing pictures then showing them to actual so-called experts who quibble over the artists interpretation of post modern blah, blah, blah..... You must have been a writer on that show scouring youtube and shilling for a reboot of the show.
Yea you leftists would make political ideology a religion. Have to fill that Godless void in your hearts somehow. So why not leftist dogma and drivel?
Were you just calling me a fool?
Sam: Yes I was.
Great dialogue, as usual, from Sorkin. But all one has to do to debunk their caricature of a Supreme Court nominee is to read the 9th Amendment. Or the 10th.
Having watched parts of the Ketanji Brown Jackson confirmation hearing I wonder how he would have performed under similar questioning.
Wow, Sorkin really knew what was coming!
Should have nominated Sam.
This show and especially this scene are an abject lesson for America. I wonder how many people learned it. Because not too long from now, we are about to find out.
"Abject"?
@@wholeNwon Object. 😉His abject word-choice failure was in choosing an aye over an oh. Oh, my. 😁
Sam was the best part of this show.
2:01 and that sam is why we have a process to amend the constitution that way if a right deserves the absolute protection of being a constitutional right it can be added to the bill of rights.
I hate to be the guy who quotes the scene. But "I wasn't calling you a fool sir, the brand new state of Georgia was" is absolutely jaw droppingly hilarious.
"That's not up to me" I flinch every time I hear that. The man has almost as much power as God yet he's ducking and weaving and trying to skirt his responsibility to make society a better place.
Judges are not Gods and that is not their responsibility. They must adjudicate cases, no matter how happy or sad they are with the law. If you want it to be otherwise, it is the legislature the one who must make the changes.
@@jfallas At the time there was concern about the 5-4 conservative majority on the supreme court. Later in the show Amy makes a comment like "They could overturn Roe in the future" and it was considered a worst case scenario at the time. Now that the conservatives have a 6-3 majority, Roe has been overturned which has undermined the rights of millions of American women.
So you better believe that with the "checks and balances" style of modern republics, that all three branches of government have a responsibility to make society a better place. In saying that "Only congress can write laws" you may as well be saying that the president has no power to do anything either, which if you've watched the show, you can clearly see that's not the case.
@@Gredddfe Roe was a bad decision, whether you are for or against abortion. There was no reason for the Court to decide whether aborion had to be legal or not. This was something that was up to each state to decide. Which is what the overturn of Roe did. It devolved the decision to the states.
The President has powers. But he does not have the power to make laws. Neiher the court. Otherwise, it would be a tiranny. The legislature makes the laws. Of course for liberals it was very easy for much of the time to push their own agenda thru the Courts instead of convincing the majority. Now they have to explain and convince that having unlimited aborion up to 9 months is reasonable. Or perhaps agree to a compromise on an earlier date.
That's because Roe was a terribly decided case, as even Ginsburg noted, and its an issue Congress should debate and handle like European countries. Relying on judicial fiat for things is fragile and the overturning of Roe shows that. Any rights government giveth, government may taketh away.
God this is so important now. The number of times the crazies doxxed someone over an internet argument is insane.
The problem with this scene is right from the start. At 0:10, the judge says that the Constitution doesn't provide for a right to privacy; the right doesn't exist.
This is in direct contravention of the 9th Amendment, which states that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." He's right that the Constitution doesn't provide the right; he's wrong to say the right doesn't exist. And that character would have known that. The 9th is not a well-known Amendment. It was added to the Bill of Rights specifically to address the concerns of the people such as the Georgia delegate that Sam quoted.
Prescient right?
God he was so right about privacy over the next 20 years.
Really annoying that the pendulum doesn't move on what I assume to be a prop clock.
This aged well.
@the “next 20 years are going to be privacy”
I gotta call up Mr Sorkin and ask him what’s gonna happen next.
Well, today the Alito decision in Dobbs which purports to overrule Roe v. Wade was leaked. I felt the need to re-watch this scene. It sure feels differently when it becomes real. #Dobbs #RoeVWade
This was the scene that came to me when I heard the ruling last week; Aaron Sorkin is astonishingly prescient. Terrifying that the Supreme Court are going the wrong way.
I still am impressed that they chose the same actor who played Thomas Jefferson in '1776' to play this guy.
Wait what? - looks on IMDB - Holy shit.
He also played The White Shadow. If they had cast William Daniels for a guest role, I would be as impressed as when St. Elsewhere sent him to Philadelphia during a heat wave, and had him reprise the first line of his first song, "Sit down, John."
@@JnEricsonxyep it’s Ken Howard
It seems to me the battles over privacy mostly take place within the FISA court. The Supreme Court nowadays has become the branch of Government which deals with contentious issues which political paralysis prevents the other two branches from confronting, and as such has become politicised to a dangerous degree.
It's been political from the start.
I've been watching TV for 60 years. TWW is the best ever.
One of the best things about this show was variety of viewpoints. They might be unified in purpose and patroitism, but their personal takes and ideas varied wildly. Often they were wrong too, and had to re-evaluate themselves. That made it even better...because they NEVER made the other side the villain. Just the other side. They had Republicans who were just as noble and just as right as they were.
What a better world it would be.
A guy with his views would not be a democrat..therefore not be a leading candidate for a denocratic president.
Love how president bartlet would refer back to toby for the final confirmation to give him the respect of making the decision above sam.
The fact that the 9th amendment was never mentioned in this scene is mind-boggling . It's text completely eviscerates the judge's argument:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'
Article 3 section 2...."The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."
This means The Supreme Court is supreme ONLY to the judicial branch of government. Congress has the authority (if they had any guts) to over rule the court.
The problem is that to overrule the Supreme Court, they have to pass a constitutional amendment since Marbury vs. Madison. I feel that the Supreme Court is against what Madison intended for our country. It has too much balance. There's not enough checks or balances to keep them from the misuse of power.
Stephen Cogan Marbury vs Madison? Are you referring to judicial review? Is that what we need an amendment for?
No no. What Madison intended from what I remember from my history class, and I had a very good teacher dedicated to his craft, was that Madison didn't mean to set up the "Supreme Court" to have supreme power. He was more of a state's rights guy. M vs. M established the premise of judicial review because of what the case was about: Adams had lost to Jefferson and because he wanted the Federalist party to stay strong, he spent his last hours doing what was dubbed "midnight appointments" of federal judgeships to dozens of Federalist. William Marbury was appointed to be JOP in D.C. but the paperwork didn't get delivered in time. It was a case similar to an argument some school kids have had with their teacher over a test. "Mrs. Brown, I did finish the test though!"
"But Bobby, you turned it in 20 minutes late so it doesn't count."
That kind of thing. Madison, the Sec of State, refused to deliver the papers after Jefferson was sworn in. A judicial act allowed Marbury to sue for his papers. Some critics would say John Marshall should've just decided if the man got his papers or not. Most likely, he would've said Madison should deliver the documents because they were completed, just not delivered, and remember this is 1803, everything took longer then. But Marshall went further and semi-twisted the wording of the judicial act Marbury used to sue for his papers and declared it unconstitutional stating that while Madison would normally have to deliver the papers, the act that Marbury sued under was unconstitutional and therefore this was null and void.
Now because of that case establishing judicial review, we need constitutional amendments to fully change the law forever because the Supreme Court can interpret any law it wants beyond the actual text of the Constitution to mean whatever it wants. If it wasn't for the 13-15th amendments, coloreds would be slaves still because of the Dred Scott decision. After those amendments passed, several racist judges ruled in Plessy vs. Ferguson for "Separate but equal" facilities that created segregation for nearly an additional 100 years until 1954 Brown vs. Board of Education.
Abortion is an issue still hotly dividing the country because Roe vs. Wade decided to make it legal all over instead of letting states' rights handle itself. The same thing with gay marriage now. And a lot of other things too like line-item veto and what not.
Regardless of political standpoints, I think it's best if the entire country acts like the democratic republic it is and has the people and the legislatives decide as a whole how the country should be versus allowing 9 people in robes, who are not in the public eye, who are not appointed by the people, and have dictatorial power over how long they serve, what cases they can pick, and what their decisions can be etc. to create the law of this country.
"Progress" is hindered this way, true. And I'm for progress. However, I'm also of the humility to know that what I think it progress is an opinion and that my opinion isn't golden law. So what I think is progress may not be progress in the grand scheme of things because we're a democratic republic. Second, this type of system, as I've illustrated, can show "progress" in the forms of allowing gay marriage, abortion, and what not, but it also sets up a system to where the 9 Justices could rule in ways that cripple our freedoms by twisting amendments to exclude things from us while not outright overruling the amendment itself. The second amendment is one that we must fear for especially. An non 2nd amendment example is US vs. Wade in the right against self-incrimination. The court ruled that only testimonial evidence can be prohibited. So now what? Can my personal diary or journal be put into evidence? (not 100% sure there) and I know that a DA can force you to show your tattoos, birthmarks, or participate in lineups for witnesses. Some of these things are reasonable sure, but what logical conservatives like myself are rationally fearful of is a system that goes over the line. And there's not enough checks and balances to keep the Supreme Court from going over the line. There's not an option for the President along with say a majority of congress to overrule a SC decision. Or for the people of the United States to vote on a SC decision. Or for the President to ask the court to review it's decision further down the line. A court just waits however many years it takes for another case to be called up and then law is re-made. That doesn't sit well with me.
Stephen Cogan I am aware of the case as well as the back story and correctly assumed you brought this up because of judicial review. What I am asking you, is it your contention that we need a contitutional amendment to repeal judicial review?
Oh and we are NOT a Democratic Republic. We are a Contitutional Republic.
Please continue...
the moment the judge stops arguing facts ands tries to use his position of authority to shut Sam up and twist his words so he can pretend to be insulted rather than discuss the issue he lost his credit, it is one thing to have different beliefs but these tactics of argument are for those that refuse to have their mind changed and are more afraid to be seen as wrong than to make good choices, not qualities of a great judge.
I'd say it's a natural response to someone who is trying to dance around the issues and obscure them with irrelevance.
And if you watch the scene, that's exactly what he was doing. He was basically saying, 'you are too stupid to see that the other rights must obviously exist', when the judge's statement immediately prior had been disproving that with strong evidence.
It would be like if you said, "The sky is blue", and someone replied, "Just because the sky isn't red, green, or yellow, doesn't mean it isn't blue."
What do you say to that? There is no arguing at that point, the other person is obviously wrong and indulging their irrelevant statements only gives them credence they don't deserve.
It's sad that they rejected this judge just because he didn't agree with their political agenda. The correct solution to a textualist is changing the text, not picking someone who will support you via judicial legislation.
@@demiserofd I found the first part hard to follow since you said "he" without clarifying who you meant. I still think the Judge was too dismissive of Sam's points. I would prefer the Judge have no preconceived bias about the rights of privacy and listen genuinely to the points. being made. I just didn't feel like the he was disagreeing with the points Sam was making. I feel like the Judge was merely indignant anyone was disagreeing with him.
Designated Survivor is good but this will always be better, still mad they cancelled it even after all these years.
It was not cancelled, the producer decided to end it while on top.and it was good decision.
It’s interesting watching this as a citizen of a country with a unwritten constitution built on culture and tradition rather than carefully collected rules.
Ours is strong yet elusive.
Yours is one vote in Commons away from God Knows What. A few years ago, they passed a law to take effect in 1938, to avoid paying damages for WWII bombing.
I’m not familiar with that vote……. It seems strange to me that in the last few years they refused to pay for bombing damage for world war 2 was this in the uk or abroad?
Regardless we have a House of Lords and a Supreme Court that can quash any ridiculous or evil bills that pass through parliament.
Our parliament accomplished a lot of great things like abolishing slavery, without having to fight a civil war over it.
This ages like fine wine 🍷
Ages...yes, it does.
Sam definitely saw the forest through the trees on this one.
Turns out that 20 years later no one cares about privacy and they gladly put pictures of every sandwich they eat on the internet.
Aaron Sorkin truly knew "what's next".
Watching this after Dobbs hits different.
This scene is a good example of the reason why politicians should not be responsible for appointing judges. Judicial appointments should be done on the recommendation of a totally independent body to the Head of State.
Michael Vidal
Indeed ...
Likewise, I personally feel judical sentencing should not be created by politicians alone, but a similar independent body, made up by law-makers, the judiciary themselves, and a body of well-versed laymen. Ultimately, imho, it should only define certain scopes within a judge can sentence in relation to a specific crime, but allow maximum lee-way within that scope.
For instance, I throughly disagree with mandatory minimums; they don't take into account the character of the offender, both the mens rea & actus rea, and much else besides. If the accused has no prior convictions relating to violent behaviour, or is not accused of a violent offense, and is a addict themselves, then by allowing judical lee-way via court approved manditory residental treatment, and a suspended prison sentence, you have both the carrot and the stick. As late, and much missed, friend who was both a alcoholic and a addiction counsellor, said to me once, "not all addicts are violent people; the act of having the addiction itself is enough to drive them into very dark places. The irony is that addictions, in themselves, is nothing more than pain control. But when that pain control itself sprials out of control, then you have a right mess. Classic positive feedback loop."
This maybe unpopular, but I believe not all criminals are equal. Granted, there are some that should be given solitary confinement for their whole natural life, with no parole, not because of the crimes they committed, but the utter lack of remorse for what they did.
But in the same jail, you have those who have committed non-violent offenses, in which there maybe several mitigating circumstances, then a suspended prison sentence, with mandatory court-orderd treament, with an ankle bracelet, may well be the more appropriate sentencing. I could say more, relating to removing the gender bias in sentencing, and the problem of, at least where I am, sentencing that baffles the mind (hence the need for an independent body on sentencing), along with comments from the judge themselves (judges, imho, need, and ought, to be apprasied regularly on their competency to sit on the bench); but both are different fish to fry ...
A totally independent body...appointed by whom? Accountable to...?
@@GLH5MHIL As to appointment I would say in the US it would have to be the President. On accountability there is an inherent risk in having judges accountable to anybody as there will be a risk that they will always side with the body they are accountable for fear that they could be removed from office for making unpopular decisions.
Also where they are elected there is the risk that they may make decisions based on the need to get elected. In the UK Judges are appointed by the Queen on the recommendation of the Prime Minister who has to recommend the person selected by the Judicial Appointments Commission.
The problem with the US system is that the process can be manipulated for political purposes as in 2016 and 2020.
Obviously they should be appointed by someone with a lifetime appointment themselves, so she/he would also be independent. We can call the office “the King”, and make it hereditary, too.
_end_sarc_
People who want to remove politics completely from legal philosophy, like those who want to remove money from politics, just want to remove it so that it all follows their personal beliefs.
Ha, not a lawyer myself but the judge actually made very solid points regarding the role of Judicial Review. If a law was passed banning putting cream in coffee, I agree that the Supreme Court has no constitutional basis for overturning the law. Neither do they have jurisdiction to enforce natural laws. I'm all for protecting privacy but perhaps the mechanism doesn't rest in the Supreme Court unless a constitutional amendment made it so.
The point made hopefully highlights how terrible strict constitutionalism is for people who enjoy freedom and rule of law, emanating from the natural right to life, liberty and pursuit of happiness.
Binh Ho, actually there is a Constitutional right to privacy. As Sam says at the end, preserving and extending that right is critical to what Americans think of as "freedom".
Can you elaborate? To which clause/principal would the Supreme Court point to in order to overturn a law? I'm guessing what Americans think of as "freedom" doesn't weigh heavily in typical Supreme Court rulings since 1) Americans are likely to be all over the place with a concept like "freedom" and 2) there are many Americans who use 'unconstitutional' as a stand-in for 'stuff I don't like'.
Whatever clause (and there is one) provides for unenumerated rights. Some utopian constitution that predicts every eventuality with mathematical precision would be nice. But unfortunately, what these guidelines come down to in the end is someone saying "I don't want to be the good man who did nothing."
Something I don't get though is how they even considered such a strict constitutionalism. These are Liberal Democrats. I know it is part of the story line and stuff, but that is my biggest flaw with the episode. No way this administration would have let this dude get so close to appointing him.
"I don't appreciate this line of questioning" .... I wish I could say that in a job interview.
When you already have a lifetime appointment you can.
Well, if this scene didnt absolutely nail what we're seeing today...
Jefferson essentially wrote the constitution, and proposed that enslaving new generations to it might be an act of force rather than to ensure liberty -
"We seem not to have perceived that, by the law of nature, one generation is to another as one independant nation to another… On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation… Every constitution, then, and every law, naturally expires at the end of 19. years. If it be enforced longer, it is an act of force and not of right"
a passage second amendment fanatics love to forget.
@@jedinxf7 Because that's not a law, that's a freedom.
@@orangefox1231 "an act of force and not of right."
@@jedinxf7 The right to defend oneself is an act of force in a righteous cause. Period. You need to understand that.
Jefferson was in France when the constitution was written. Get your facts right. In fact he was not a fan of it initially.
Aint this the coach from white shadow?
Yes he is. He also played Thomas Jefferson in the 1972 MOVIE "1776".
He stepped up from private eye, to coach, and now to judge! Good ol' Ken Howard.
The only silly thing about this scene is the idea that a Democratic administration would ever consider nominating a rigid Textualist like Harrison in the first place.
You want a right to privacy pass an amendment. Otherwise the constitution is just what ever the sitting justices want to make up.
Very prescient conversation.
Honestly, why were the politicians and staff excited about who would be getting nominated as a Judge ? Why were they counting it as a “victory” ? Aren’t they supposed to be neutral ? Isn’t the judiciary not supposed to be a political tool.
Moreover, the final reason for not appointing him was not incompetence but ideological difference. People should be appointed or not on the basis of merit. Not on the basis of whom you agree with and which vote bank their opinions align with. You need people on something as important as the judiciary to have diverse viewpoints.
The initial reason for rejecting Mendoza was because he didn’t appeal to enough people. And he was chosen because he happened to agree with this people in the White House at the time. He was neither selected for nor rejected for his merit or performance or talent.
Nothing in life is as simple as you'd like it to be.
The judiciary is not a political tool? If that's the case, there wouldn't be political consequences to what appointments are made, but there are. People will react and many will vote in part based on what judicial nominations are made. Politicians don't get to decide what the voters care about, so they have to take the voice of the people into consideration, making judicial appointments an inherently political process.
And yes, people should be appointed based on merit. Which merits should be given the most weight? Career advancement? Number of papers published? Number of decisions upheld? Should it be entirely mathematical, or should character be taken into account? Every single justice is going to have a unique judicial philosophy, and there is no one-to-one comparison to be made between them, so again, it's simply natural that nominations are going to be made based on which justices' views on the role of the judiciary most align with the president's.
Mendoza was on the short list, so he was clearly qualified. He had an advocate in the judge who was retiring, which put him near the top of the list. With that in mind, how can you say he wasn't chosen based on his merit?
I often find that advocates for a meritocracy use it as a justification for society to take the path of least resistance. Social progress is never achieved by that method.
@@SpydeyDan Respected Sir, Do you not think the judiciary should be independent of politics ?
I am not denying that Mendoza had merit. Only that he wasn't picked because of his merit.
But you are right. It is difficult to define merit exactly.
Are they Nostradamus?
To quote Sherlock "The wheel turns, nothing is ever new."
Some writers, like this one, just see the whole chess board more clearly than some. And share their insights to help. Thankful for Aaron Sorkin's writing.
Surely y'all are watching this today and thinking how Right this is.
the constitution doesn't provide a right to privacy.
9th?
@@JMT1985MO The Constitution can't explicitly list everything that is a right or protected in this country, It would be a document 5 million pages thick. It's both insane and impractical to take such an extremist "interpretation" of how to interpret what it is the *core* book defining the US and its rights and freedoms, not a *comprehensive* shopping list.
Judges are in existence to defend liberty, promote fair outcomes, and provide the best unbiased rulings that best serve the citizenry. Not to be robots reading from a book. We wouldn't need "judge"s for it then.
Arrogant simple-minded approaches like those Judges (and the people who cheer them on) who try to pretend it's only what's literally in the text.....are just making excuses for what will fit their political and social bias and pre-judged views about issues. It's insincere, irrational, and unreasonable.
It's the most ironic thing in the world that their pretending to be "pure" readers of the legal bible that is the Constitution.....are the most biased and angle-playing preference-exercising people on the bench.
It might carry a bit more water if they were ever using that to rule in ways that ran contrary to their own preference and world views.....but they never use that excuse for anything other than the decisions that are self-serving law alterations (even so far as to REWRITE legal precedent).
The "letter of the law" excuse is just an unreal, un-truthful tool to cover for their bias. it bears no reality in using an actual Constitution that has to be written down in a finite length, and it pretends a legal mind that freezes itself hundreds of years in the past. It's fake rules.
It's sad how often the 9th amendment gets ignored.
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
"I do this for a living Mr. Seaborne." Then you've been doing it wrong for all that time
Timely.
Tv shows like this only existed on network TV before HBO became popular. A tv show like this nowadays would only be on HBO
So in real life we completely botched that 20 years. Oh well.
They need to do a reboot of tww... with Sam Seaborne as President Samuel Seaborne
How prophetic that a show from more than 20 years ago would predict where our rights would play out and change during the last 20 years. Interestingly, the show, in another e poo isode, also addressed the real possibility of finally publishing the Equal Rights Amendment (ERA) to our Constitution. Here we are, at the end of 2024 and the final days of President Biden's presidency and he has an opportunity to leave his presidency with the legacy of entering the order to the publishing department to formally add the ERA as our next amendment. For those who don't know, both houses of Congress have approved the amendment and in 2020 the 38th state (the number needed out of 50 states) ratified the ERA. President Trump's legal counsel argued that a technicality nullified the ERA but the law is fairly clear that it should be formally published. The department in charge of formally loo publishing amendments has been waiting for a formal presidential directive to publish since there is a contrary executive order from President Trump.
And today it came to pass ...
Until this point in his career, Rob Lowe was the charming, likable "pretty boy" actor. A movie star of the 80's and former member of the Brat Pack
"The West Wing" showed he had depth and substance and could deliver solid noteworthy performances as an actor.
The more important point that they danced around but touched on not at all is not about whether or not there is a codified "right to privacy" in the constitution but whether or not the constitution explicitly empowers the government to infringe upon it.
There is a right to put cream in your coffee (federally speaking) because there is no legitimate constitutional authority for the government to forbid it. Which is how a real strict constructionist would have answered that line of questioning.
5/4/2022. And now it has happened
Judges ride the gravy train and wait for customers to file briefs with their local bar.
I can appreciate the need to keep your roster of star actors in the show as their established characters, but I think in this situation the president had other more credible advisors for judicial appointments. Sam and Toby are lawyers by trade, but it has never been established that they were heavy weights who argued in front of the supreme court. They are intelligent, well educated and accomplished. However, they wouldn't necessarily be the choice to help nominate an associate supreme court justice.
Judges wouldn't have to interpret the laws of the country if Congress did it's job and passed the laws they are supposed to care about like the right to privacy.
@Dionne Hendricks Sam was portrayed as someone wasting his brilliance working in corporate law until a greater cause was presented to him to use his gifts. But it was never established that he had clerked for a federal judge, argued before the supreme court, worked as a federal prosecutor or for the justice department. If anything he was a legal mercenary.
@Dionne Hendricks A scene with him preparing to argue a case in federal court or working in the justice department would have helped.
nailed it.
Absolutely called that future. Damn.
This scene was pure prophecy.