appellate courts i would often say please don t quarrel with the facts in this you have a knocked down case. if you want to get the appellate court to relitigate the facts you re up against the harshest standard of review available. clear error is no small thing. outside of the narrow finding it somehow the district court got it wrong, filtered through that clear error standard are there other circumstances in which it is proper for for appellate courts to do their own independent fact-finding outside of the record of the case that they are reviewing? i m not aware of any. there may be, but in my experience the fact-finding is done at the trial level, the
judicial policymaking, is it not? senator, the supreme court has consider that to be an application of the substantive due process clause of the 14th amendment. and the constitution doesn t mention anything about the substance when it talks about due process? the 14th in the 15th amendment don t talk about substantive due process, talks about due process of law, correct? correct. oh one of the things that concerns me is here is an example of the court s finding a new fundamental right that is mentioned nowhere in the document of the constitution. it is the product of simply court made law that we are all supposed to salute smartly and follow, because nine people who
0 christianity, judaism, islam, embraces traditional definition of marriage, correct? i am aware that there are various religious faiths that define marriage in a traditional way. do you see that when the supreme court makes a dramatic pronouncement about the invalidity of state marriage laws, that it will inevitably sit in conflict between those who ascribe to the supreme court s edict and those who have a firmly held religious belief that marriage is between a man and a woman? woman? well, senator, these issues are being litigated, as you know, throughout the courts as people raise issues. i am limited with what i can say about them. i m aware there are cases i m not asking you to decide a case or predict how you would decide to, i m just asking isn t it apparent that when the supreme court decides that something that is not even in the constitution is a fundamental right, and no state can pass any law that conflicts with the supreme court s edict, particularly in an area w