What is "judicial philosophy"?
tonyp
Folks,
Harvard-educated Mr. Roberts is up for a seat on the US Supreme Court. It
is widely asserted that we must not ask him point-blank whether he would
overturn Roe v. Wade -- we must confine ourselves to probing his "judicial
philosophy". Okay, what's a judicial philosophy? For instance, suppose we
ask him:
"Do you believe that we Americans have any rights over and above those
explicitly mentioned in the Constitution?"
Is that a fair question to ask a SCOTUS nominee?
How might he answer that question?
How would _you_ answer it?
-- TP
R Philip Dowds
Founding Authors harkened back to natural law philosophy — a
configuration of beliefs that God or the Universe vests humanity for
sure, and maybe all creatures in general, with certain rights and
duties. Today, most of us can remember our rights pretty well, although
our notions of duty are pretty fuzzy and flexible.
Anyway, I doubt that the Founding Authors would insist that their
documents represent a fully complete and entirely perfect expression of
all the principles of natural law. The Declaration and the Constitution
(and most particularly, the Bill of Rights) were put forward mostly as
policies and guidelines, not as the Complete and Thoroughly Detailed
Answer for All Time. As much as they would wish, neither the far left
nor the far right is entitled to enforce its idiosyncratic
interpretation of these documents on the rest of the country. One great
strength of America has been its ability to adapt and expand the general
principles of these documents to the evolving complexity of modern life.
And, with one great exception, to do so by legislation and litigation,
rather than by war.
With that as preamble ...
Yes, your specific question is a reasonable one -- and I think anyone
with a brain and education would answer it much as I did.
Unfortunately, Mr Roberts will not get such a high-falutin' question.
Questions will be mostly rhetorical ("Why did you say this about that in
1989? <You idiot!>"), and mostly hypothetical ("<If there were to be a
case about such-and-so [although I cannot describe in detail the
features of this hypothetical case]>, how would you vote?" I will not
hold Mr Roberts in disregard if he gives vague or evasive answers to bad
questions.
Finally, if it comes clear that he as Justice is unwilling to do what we
as voters also refuse to do (e.g., legalize abortion, gay marriage, or
euthanasia, call off our aggression in the Middle East, etc), should we
toss him out on his ear for that? Should we really expect the courts to
do for us what we won't do for ourselves?
>
> -- TP
>
>
>
RPD / Cambridge
Facts can be your friends if you treat them right.
Hugo S. Cunningham
<rpd...@earthlink.net> wrote:
[...]
>Finally, if it comes clear that he as Justice is unwilling to do what we
>as voters also refuse to do (e.g., legalize abortion, gay marriage, or
>euthanasia, call off our aggression in the Middle East, etc), should we
>toss him out on his ear for that? Should we really expect the courts to
>do for us what we won't do for ourselves?
[...]
The problem is that everyone concerned with politics has figured out
that the USSC has become a super-legislature, and nominations have
become hyper-politicized accordingly. It is time for Congress to
recognize that "judicial review" is irretrievably broken, and put
together a Constitutional settlement accordingly.
Possible elements of a settlement:
(1) Delegate certain divisive social issues to the States, eg
abortion, drug policy, gun policy, and death-with-dignity.
(a) Exceptions on abortion: rape (Thirteenth Amendment) and danger
to the mother's physical health (self-defense -- Ninth Amendment).
(b) The Second Amendment already delegates gun policy to the
States, but a general settlement could reconfirm this, alerting
Congress that any attempt to impose nationwide victim disarmament
would be grounds for rebellion.
(2) Accept Congress's New Deal powers to legislate for the economy
under the "Interstate Commerce clause" (Article I, Section 8,
paragraph 3). This can be justified as "levelling the playing field"
in the US common market, banning protectionists barriers between
States.
(3) Revive the 14th Amendment's "equal protection" clause as
justification for Federal civil rights laws. At the same time, end
the farcical claim that they are justified by the Interstate Commerce
clause (apart from special cases like travel accommodations).
(4) Decrease the stakes of USSC nominations by giving Congress the
authority to overrule USSC decisions (cf. Canada's "notwithstanding
clause"), except in First Amendment cases. (The First Amendment, very
soul of our free society, needs every friend it can get.)
(5) Deprive courts of authority to entertain lawsuits whose effect
would be to nullify provisions of the Bill of Rights, especially the
freedom of speech and the press.
--Hugo S. Cunningham
Hugo S. Cunningham
<checkw...@cyberussr.com> wrote:
[...]
> It is time for Congress to
>recognize that "judicial review" is irretrievably broken, and put
>together a Constitutional settlement accordingly.
>
>Possible elements of a settlement:
[...]
>(5) Deprive courts of authority to entertain lawsuits whose effect
>would be to nullify provisions of the Bill of Rights, especially the
>freedom of speech and the press.
I forgot to add to my list:
(6) Death penalty --
(a) Give Congress ultimate say on the permissibility of the death
penalty in cases of murder; maiming comparable to murder; crimes of
war (espionage; treason, etc.). Congress should also decide on the
importance of certain mitigating factors, notably intermediate age
(16-17) and alleged mental impairment.
(b) Set up a "Board of Factual Appeals" designed to ensure that
only those "guilty beyond any lingering doubt" are executed.
1. Jurors could not know the difference between "a reasonable
doubt" and "any lingering doubt." That would be a standard for
appeals courts.
2. A particularly important function of the Board would be to
punish States that send weak cases forward, fail to keep clear
records of all stages of a murder investigation, or show a general
lack of interest in innocence. (Example -- Fells Acres would
disqualify the MA legal system from maintaining a death penalty.
While Fells Acres was not a death penalty case, it betrays attitudes
that would taint any death penalty investigation)
--Hugo S. Cunningham
R Philip Dowds
> On Fri, 22 Jul 2005 00:58:00 GMT, R Philip Dowds
> <rpd...@earthlink.net> wrote:
>
> [...]
>
>
>>Finally, if it comes clear that he as Justice is unwilling to do what we
>>as voters also refuse to do (e.g., legalize abortion, gay marriage, or
>>euthanasia, call off our aggression in the Middle East, etc), should we
>>toss him out on his ear for that? Should we really expect the courts to
>>do for us what we won't do for ourselves?
>
>
> [...]
>
> The problem is that everyone concerned with politics has figured out
> that the USSC has become a super-legislature, and nominations have
> become hyper-politicized accordingly. It is time for Congress to
> recognize that "judicial review" is irretrievably broken, and put
> together a Constitutional settlement accordingly.
>
> Possible elements of a settlement:
>
> (1) Delegate certain divisive social issues to the States, eg
> abortion, drug policy, gun policy, and death-with-dignity.
> (a) Exceptions on abortion: rape (Thirteenth Amendment) and danger
> to the mother's physical health (self-defense -- Ninth Amendment).
> (b) The Second Amendment already delegates gun policy to the
> States, but a general settlement could reconfirm this, alerting
> Congress that any attempt to impose nationwide victim disarmament
> would be grounds for rebellion.
Many of the "rights" issues above were indeed State's Rights issues
until the Supreme Court discovered that the Constitution protected these
rights in some way. Taking the Court out of the rights discovery loop
does not imply, however, that Congress cannot intervene and resolve the
matter. No reason why, for instance, Congress cannot respond to the
two-thirds majority of Americans who favor a regulated right to choose,
and put same into national law applicable to all States. (Whether the
Second Amendment speaks chiefly to the right of States to organize a
militia, or chiefly to the right of private citizens to own
[unrestricted, or subject to regulation?] firearms, I leave to people
who care a lot.)
>
>
> (2) Accept Congress's New Deal powers to legislate for the economy
> under the "Interstate Commerce clause" (Article I, Section 8,
> paragraph 3). This can be justified as "levelling the playing field"
> in the US common market, banning protectionists barriers between
> States.
For better or worse, this has pretty well settled, and has widespread
national support. Most business groups, like the National Association
of Cardboard Box Manufacturers, do NOT want each State writing its own
distinctive set of rules for recycled content.
>
> (3) Revive the 14th Amendment's "equal protection" clause as
> justification for Federal civil rights laws. At the same time, end
> the farcical claim that they are justified by the Interstate Commerce
> clause (apart from special cases like travel accommodations).
Over the years, "equal protection" has proven to be the most elastic,
inclusive, and surprising component of the Constitution (recently making
a cameo appearance in the resolution of hanging chad). Many
Constitutional scholars believe that the 14th needs discipline more than
revival.
>
> (4) Decrease the stakes of USSC nominations by giving Congress the
> authority to overrule USSC decisions (cf. Canada's "notwithstanding
> clause"), except in First Amendment cases. (The First Amendment, very
> soul of our free society, needs every friend it can get.)
This is a very, VERY big change. I'm not convinced that the damage done
by the Supreme Court warrants such a re-balancing of power, and the
hyper-politicization that will accompany it.
>
> (5) Deprive courts of authority to entertain lawsuits whose effect
> would be to nullify provisions of the Bill of Rights, especially the
> freedom of speech and the press.
Sorry, but much controversy goes to Court because it represents a
*clash* of rights: One part of the law or Constitution seems to promote
X, while another part seems to deny X, or suggest the superiority of Y.
This is especially true of common law systems such as ours. For the
legislative branch to remove judicial discretion by declaring that this
principle of law ALWAYS supercedes this other principle, is to deny the
judgment of judges, and the important role played by a (presumably)
learned and impartial consideration of particular circumstance.
>
> --Hugo S. Cunningham
If I may read between your lines, you seem to want to put our process of
self-governance on auto-pilot, such that alternative outcomes are beyond
debate, and reasonable people will no venue in which to differ. I don't
think this is possible. At least, not in a democracy.
Jeffrey Turner
No, we should toss out the electorate. Or at least educate
them. The courts are supposed to protect the rights of
minorities, not just enforce the prejudices of the majority.
--Jeff
--
The shepherd always tries to persuade
the sheep that their interests and
his own are the same. --Stendhal
Padraigh ProAmerica
"Only two things are infinite, the Universe and human stupidity, and I'm
not sure about the former."
Albert Einstein
Padraigh ProAmerica
Your ideas are valid. In fact, if you review the part of the
Constitution concerning the establishment of the judiciary, you will see
that they are already pretty much in place, All we need is a Congress
with the intestinal fortitude to stand up and say so.
tonyp
"Padraigh ProAmerica" <ogr...@webtv.net> wrote
> The answer to your question is "Yes!" Read the 9th Amendment.
Sure. But here's the follow-up:
Name some rights not explicitly mentioned in the Constitution which you, Mr.
Nominee, would protect against incursion by federal _or_ state governments.
-- TP
Info Junkie
Somewhat of a "trick" question, and disingenuously applied, as there are too
many rights under Amendment IX to enumerate.
Mr Nominee: WRT "state governments", such "rights not explicitly mentioned in
the Constitution" would be those powers retained by the states per Amendment X
and have not been "incorporated" into Amendment XIV, are irrelevent to a federal
appellate court, as the court would not have original jurisdiction on such
matters, i.e. non sequitur.
Mr Nominee: For "rights not explicitly mentioned in the Constitution" wrt the
federal government, Amendment IX applies. As examples only, some of these
"rights" may include:
1. Homeschooling your children
2. Creating a tree farm where you sell the trees to an in-state business
3. Starting a private club that caters to the local business and/or community
4. Having a party at your place...every night
5. Joining (or starting) a group that complains (or agress) with the
President's selection of a nominee to the USSC, and what questions may (or may
not) be asked by the Senate Judiciary Committee.
The "9th Amendment" is the correct answer as the poster provided.
"...every person must be his own watchman for truth... -Justice Jackson
Padraigh ProAmerica
breathtakngly broad interpertation of the Interstate Commerce clause in
the California Medical Marajuana decision. We need to get rid of
Stevens, not O'Connor!
Info Junkie
wrote:
>Under the present Supreme Court, items 2 & 3 are not true, thanks to the
>breathtakngly broad interpertation of the Interstate Commerce clause in
>the California Medical Marajuana decision. We need to get rid of
>Stevens, not O'Connor!
If you're referring to Gonzales v. Raich*, note that item 3** does not involve
the Controlled Substances Act, and yes it was quite surprizing such a "broad
interpretation" was invoked.
Item 2** may be relevent to Wickard v. Filburn, 317 U. S. 111, 127-128, to which
is just silly IMO. OTOH, that case may apply to the business to whom you sell
your trees, but may be irrelevent to you, depending on the quantity of trees
you're trying to sell.
*http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=03-1454
** 2. Creating a tree farm where you sell the trees to an in-state business
** 3. Starting a private club that caters to the local business and/or community
FWIW, I'll be happier when several others leave the USSC...Kennedy is only an
occasional thorn-in-the-side that provides a balance at times in the form of a
"devil's advocate".
We don't have to like it but IMO, "balance" is a good thing to keep us from
going too far in either direction, where only time will tell if the scales have
been tipped too far...
Padraigh ProAmerica
to interpert the law, NOT to rewrite the laws to suit their fancy.
On a good day, Rhenquist, Scalia and Thomas understand this. The
arch-liberals (Stevens, Bryer, Ginsburg and Souter) do not. That leaves
Kennedy (squishy at best) as a balance. We need another Scalia on the
court.
R Philip Dowds
and assert that they always limit their activity to interpretation of
law as existing (with the caveat that under some circumstances, the
foundational Constitution trumps the imperfect efforts of Congress).
The problem you have is that the Justices are rarely unanimous in
reaching the conclusion you yourself have reached. The only sure and
certain way for you to remedy this shortcoming is to amend the
Constitution such that there is but One Justice, and that you are the One.
RPD / Cambridge
Absent companions, consensus is simple.
Jeffrey Turner
> What we need on the USSC are justices who understand that they are there
> to interpert the law, NOT to rewrite the laws to suit their fancy.
>
> On a good day, Rhenquist, Scalia and Thomas understand this. The
> arch-liberals (Stevens, Bryer, Ginsburg and Souter) do not. That leaves
> Kennedy (squishy at best) as a balance. We need another Scalia on the
> court.
And the difference is that YOU know the real original intent
(e.g. that some people should be counted as 3/5) and that anyone
who doesn't agree with you is rewriting the law. You've done a
great job of mastering the internet, Mr. Madison.
--Jeff
> "Only two things are infinite, the Universe and human stupidity, and I'm
> not sure about the former."
> Albert Einstein
Falling for "original intent" bollocks is the sureset symptom.
tonyp
"Info Junkie" <bond...@ifx.net> wrote
In answer to the question:
Name some rights not explicitly mentioned in the Constitution
which you, Mr. Nominee, would protect against incursion
by federal _or_ state governments.
> Mr Nominee: WRT "state governments",
> such "rights not explicitly mentioned in the Constitution"
> would be those powers retained by the states per Amendment X
> and have not been "incorporated" into Amendment XIV,
> are irrelevent to a federal appellate court,
> as the court would not have original jurisdiction on such
> matters, i.e. non sequitur.
>
> Mr Nominee: For "rights not explicitly mentioned in the Constitution" wrt
the
> federal government, Amendment IX applies. As examples only, some of these
> "rights" may include:
>
> 1. Homeschooling your children
> 2. Creating a tree farm where you sell the trees
> to an in-state business
> 3. Starting a private club that caters to the local business
> and/or community
> 4. Having a party at your place...every night
> 5. Joining (or starting) a group that complains (or agrees)
> with the President's selection of a nominee to the USSC,
> and what questions may (or may not) be asked
> by the Senate Judiciary Committee.
>
> The "9th Amendment" is the correct answer as the poster provided.
The 9th is about rights, the 10th is about powers. Rights and powers are
different things. In fact, they are conflicting things. You claim a right
(under the 9th) to homeschool your kids, the state claims the power (under
the 10th) to require childhood education. Is Mr. Nominee saying that the
federal courts can rule on your right without simultaneously ruling on the
state's power?
Do you have the right to kill yourself? Or does the state have the power to
forbid you? Suppose you want to kill yourself precisely because you are so
sick that you can't do it, unaided. But the state claims the power to
forbid anyone else to help you. Does the state's power here infringe one of
your "rights not explicitly mentioned in the Constitution"? Or is this not
a Constitutional question, "i.e. a non sequitur"?
-- TP
tonyp
"R Philip Dowds" <rpd...@earthlink.net> wrote
> I think each of nine Justices would agree with your proposition 100%,
> and assert that they always limit their activity to interpretation of
> law as existing (with the caveat that under some circumstances, the
> foundational Constitution trumps the imperfect efforts of Congress).
Well, this is the rub, isn't it? Every one of those nine justices was
claimed, on nomination, to be "eminently qualified" -- perhaps even "the
best person for the job". (And mostly by Republicans, at that.) Clearly,
"judicial philosophy" is not to be inferred from what judges say about
themselves in _general_ terms. But it is politically incorrect to ask them
_specific_ questions either. What's left? Their golf handicap?
-- TP
Padraigh ProAmerica
on that specific issue.In fact, if they are asked such a question they
will decline to reply.
Hugo S. Cunningham
<rpd...@earthlink.net> wrote:
>Hugo S. Cunningham wrote:
[...]
>> The problem is that everyone concerned with politics has figured out
>> that the USSC has become a super-legislature, and nominations have
>> become hyper-politicized accordingly. It is time for Congress to
>> recognize that "judicial review" is irretrievably broken, and put
>> together a Constitutional settlement accordingly.
>>
>> Possible elements of a settlement:
>>
>> (1) Delegate certain divisive social issues to the States, eg
>> abortion, drug policy, gun policy, and death-with-dignity.
>> (a) Exceptions on abortion: rape (Thirteenth Amendment) and danger
>> to the mother's physical health (self-defense -- Ninth Amendment).
>> (b) The Second Amendment already delegates gun policy to the
>> States, but a general settlement could reconfirm this, alerting
>> Congress that any attempt to impose nationwide victim disarmament
>> would be grounds for rebellion.
>
>Many of the "rights" issues above were indeed State's Rights issues
>until the Supreme Court discovered that the Constitution protected these
>rights in some way. Taking the Court out of the rights discovery loop
>does not imply, however, that Congress cannot intervene and resolve the
>matter. No reason why, for instance, Congress cannot respond to the
>two-thirds majority of Americans who favor a regulated right to choose,
>and put same into national law applicable to all States.
You are naive if you think that Congress will come up with some
moderate social-democratic compromise like what we have in Western
Europe and Canada. Our Religious Right is far more powerful and
single-minded, and will turn the clock back forty years. (If you
think "forty years" is an exaggeration, check out an article in the
latest issue of flagship conservative publication "National Review":
http://www.catholiceducation.org/articles/abortion/ab0099.html
Result: Congressmen will spend all their time screeching about
abortion, while neglecting genuinely national issues like defense and
the economy.
An advantage of the States-rights approach is that holy-bodies can
gravitate to some States, and social-libertarians to others, getting
out of each other's hair. By analogy, the Twenty-First Amendment
allowed some States to maintain Alcohol Prohibition, while "Repeal"
States put bootlegging gangs out of business.
[...]
>> (2) Accept Congress's New Deal powers to legislate for the economy
>> under the "Interstate Commerce clause" (Article I, Section 8,
>> paragraph 3). This can be justified as "levelling the playing field"
>> in the US common market, banning protectionists barriers between
>> States.
>
>For better or worse, this has pretty well settled,
The "New York Times" and the "New Republic" claim to fear it is not.
"New Republic" in particular ran an editorial praising the appalling
USSC decision (Gonzalez vs. Raich) allowing Bush's DEA to override
CA's medical marijuana program. (The USSC allowed DEA authority under
the "interstate commerce clause," even though there was no interstate
commerce.) In TNR's overwrought view, the torture of chemotherapy
patients (aka "Abu Ghraib medicine") is a price we must cheerfully
accept in order to preserve decent labor standards.
> and has widespread
>national support. Most business groups, like the National Association
>of Cardboard Box Manufacturers, do NOT want each State writing its own
>distinctive set of rules for recycled content.
I would restate the "interstate commerce" clause's relevance to
economic activity in order to reassure people like the editors of the
"New Republic" that the sky will not fall, if it is removed as
justification for non-economic Federal laws.
A question inevitably comes up: could a more literal (restrictive)
reading of "interstate commerce" support Federal environmental laws?
In some cases, clearly yes, eg. (1) pollution crosses State lines; or
(2) In the US common market, we need a level economic playing field
between States that protect their environment and States which might
not.
But how about "endangered species" protection for a species that
never crosses State lines? I tend to favor that Federal activity, but
am open to suggestions on Constitutional justification for it.
[...]
>> (4) Decrease the stakes of USSC nominations by giving Congress the
>> authority to overrule USSC decisions (cf. Canada's "notwithstanding
>> clause"), except in First Amendment cases. (The First Amendment, very
>> soul of our free society, needs every friend it can get.)
>
>This is a very, VERY big change.
True.
It should be noted, however, that Canada has almost (or absolutely?)
never invoked the "notwithstanding clause."
> I'm not convinced that the damage done
>by the Supreme Court warrants such a re-balancing of power, and the
>hyper-politicization that will accompany it.
The hyper-politicization would find its way into legislative and
executive elections at the Federal and State level, where it belongs.
>> (5) Deprive courts of authority to entertain lawsuits whose effect
>> would be to nullify provisions of the Bill of Rights, especially the
>> freedom of speech and the press.
>
>Sorry, but much controversy goes to Court because it represents a
>*clash* of rights: One part of the law or Constitution seems to promote
>X, while another part seems to deny X, or suggest the superiority of Y.
Certain rights (especially the First Amendment) should be superior.
The First Amendment right of petition, for example, should protect
neighbors who speak out against a proposed "wet" homeless shelter next
door. The right to candid intellectual and/or political debate should
supersede the right not to hear a political opinion that hurts one's
sheltered feelings.
> This is especially true of common law systems such as ours. For the
>legislative branch to remove judicial discretion by declaring that this
>principle of law ALWAYS supercedes this other principle, is to deny the
>judgment of judges, and the important role played by a (presumably)
>learned and impartial consideration of particular circumstance.
>If I may read between your lines, you seem to want to put our process of
>self-governance on auto-pilot, such that alternative outcomes are beyond
>debate, and reasonable people will no venue in which to differ.
> I don't
>think this is possible. At least, not in a democracy.
On the contrary, I propose increasing the authority of elected
officials at both the Federal and State level. What could be more
"democratic" than that?
--Hugo S. Cunningham
R Philip Dowds
For starters, I would presume that a proposed Presidential appointee is
innocent until proven guilty, and I would not launch into a hostile or
defamatory round of questioning unless I had a pretty good reason to
suspect guilt.
So, what's guilt, in this instance? What would disqualify a
Presidential nominee from taking a seat on the Supreme Court? If I were
a Senator, I would be worried about:
(1) Insufficient professional and intellectual attainment, as an
indicator of likely inadequate professional and intellectual
performance. Clarence Thomas certainly fell into this category —
although it's worth remembering that Democratic Senators got after him,
not for being a general jurisprudence mediocrity (which he is), but for
character defects and sexual harassment. Nothing I've heard so far
suggests that Mr Roberts will be found intellectually or professionally
inadequate, so I'd let that pass.
(2) Rigid and extreme ideology (or "philosophy") which could undo
decades of precedent (very important in a common law system like ours),
or take the Court in a bizarre direction, or make it impossible to
arrive at impartial and fair-minded decisions on a case-by-case basis.
This will be hard to get at by quizzing anybody as bright as Mr
Roberts, and I don't have a clear idea of how to frame or pursue
questions that would pin him to the mat. He's too smart for that — and
he's probably not guilty, anyway. Best shot at finding him
philosophically unqualified would be to build a case out of his prior
decisions and/or writings, which was a large part of what deep-sixed Mr
Bork (and Lani Guinere, for that matter). But if that case can't be
built, then let him take his seat. (Scalia probably should have tossed
out on this basis, but he wasn't...)
What I would NOT do is demand, of any Supreme Court nominee, that he/she
agree with me on my hot-button issue or case — Roe v Wade, Marbury v
Madison, Brown v Board of Education, the Dredd Scott decision, whatever.
If I were to demand this, then my 99 Senate colleagues could
reasonably demand the same, and we'd never again approve any appointment
to the Supreme Court.
R Philip Dowds
> On Fri, 22 Jul 2005 10:30:45 GMT, R Philip Dowds
> <rpd...@earthlink.net> wrote:
>
>
>>Hugo S. Cunningham wrote:
...
>
> You are naive if you think that Congress will come up with some
> moderate social-democratic compromise like what we have in Western
> Europe and Canada. Our Religious Right is far more powerful and
> single-minded, and will turn the clock back forty years. (If you
> think "forty years" is an exaggeration, check out an article in the
> latest issue of flagship conservative publication "National Review":
> http://www.catholiceducation.org/articles/abortion/ab0099.html
> Result: Congressmen will spend all their time screeching about
> abortion, while neglecting genuinely national issues like defense and
> the economy.
This is true. But we vote for these people, and send them back again
and again, year after year. This must be the government we want.
Well, maybe not all of us, but most of us. The real point is we cannot
ask the Supreme Court to save us from our own elected representatives.
> An advantage of the States-rights approach is that holy-bodies can
> gravitate to some States, and social-libertarians to others, getting
> out of each other's hair. By analogy, the Twenty-First Amendment
> allowed some States to maintain Alcohol Prohibition, while "Repeal"
> States put bootlegging gangs out of business.
I was not arguing either for or against State's rights — although I
would tend to agree with both you and Tocqueville that a local mediation
(administration) of national rule is much to be desired. I was simply
pointing out for many issues, in many circumstances, there is a strong
national majority in support of uniform federal regulation.
>
> [...]
>
>
>>>(2) Accept Congress's New Deal powers to legislate for the economy
>>>under the "Interstate Commerce clause" (Article I, Section 8,
>>>paragraph 3). This can be justified as "levelling the playing field"
>>>in the US common market, banning protectionists barriers between
>>>States.
>>
>>For better or worse, this has pretty well settled,
>
>
> The "New York Times" and the "New Republic" claim to fear it is not.
> "New Republic" in particular ran an editorial praising the appalling
> USSC decision (Gonzalez vs. Raich) allowing Bush's DEA to override
> CA's medical marijuana program. (The USSC allowed DEA authority under
> the "interstate commerce clause," even though there was no interstate
> commerce.) In TNR's overwrought view, the torture of chemotherapy
> patients (aka "Abu Ghraib medicine") is a price we must cheerfully
> accept in order to preserve decent labor standards.
Well, we've already seen, in Gore v Bush, that the Supreme Court has a
very opportunistic approach to State's rights. In terms of State's
rights v federalism, I find that both the courts and the politicians
maintain a pragmatic flexibility: If State's rights gets me what I want
today, great, but if federalism gets me what I want today, great!
>
>
>>and has widespread
>>national support. Most business groups, like the National Association
>>of Cardboard Box Manufacturers, do NOT want each State writing its own
>>distinctive set of rules for recycled content.
>
>
> I would restate the "interstate commerce" clause's relevance to
> economic activity in order to reassure people like the editors of the
> "New Republic" that the sky will not fall, if it is removed as
> justification for non-economic Federal laws.
> A question inevitably comes up: could a more literal (restrictive)
> reading of "interstate commerce" support Federal environmental laws?
> In some cases, clearly yes, eg. (1) pollution crosses State lines; or
> (2) In the US common market, we need a level economic playing field
> between States that protect their environment and States which might
> not.
> But how about "endangered species" protection for a species that
> never crosses State lines? I tend to favor that Federal activity, but
> am open to suggestions on Constitutional justification for it.
Lots of stuff, like many school children, never cross State lines.
Doesn't mean the feds won't set the rules for national educational
standards (at least, if you want some of your tax money back). In a
democracy, we do what we want to do.
>
> [...]
>
>
>>>(4) Decrease the stakes of USSC nominations by giving Congress the
>>>authority to overrule USSC decisions (cf. Canada's "notwithstanding
>>>clause"), except in First Amendment cases. (The First Amendment, very
>>>soul of our free society, needs every friend it can get.)
>>
>>This is a very, VERY big change.
>
>
> True.
>
> It should be noted, however, that Canada has almost (or absolutely?)
> never invoked the "notwithstanding clause."
>
>
>> I'm not convinced that the damage done
>>by the Supreme Court warrants such a re-balancing of power, and the
>>hyper-politicization that will accompany it.
>
>
> The hyper-politicization would find its way into legislative and
> executive elections at the Federal and State level, where it belongs.
Agreed. But now your back to the point I made at the top, which is that
we get the legislators we deserve.
>
>
>>>(5) Deprive courts of authority to entertain lawsuits whose effect
>>>would be to nullify provisions of the Bill of Rights, especially the
>>>freedom of speech and the press.
>>
>>Sorry, but much controversy goes to Court because it represents a
>>*clash* of rights: One part of the law or Constitution seems to promote
>>X, while another part seems to deny X, or suggest the superiority of Y.
>
>
> Certain rights (especially the First Amendment) should be superior.
> The First Amendment right of petition, for example, should protect
> neighbors who speak out against a proposed "wet" homeless shelter next
> door. The right to candid intellectual and/or political debate should
> supersede the right not to hear a political opinion that hurts one's
> sheltered feelings.
So say you. And maybe I don't disagree. But the Constitution isn't yet
written that way, and until it is, we will need a Court to sort out the
prioritization on a case-by-case basis. (Not sure, however, that I am
well acquainted with that portion of the Constitution which protects me
from stuff I don't want to hear. On the other hand, if my neighbor
shows up at the School Committee meeting, and wants to read from a
pornographic novel, may s/he do so?)
>
>
>> This is especially true of common law systems such as ours. For the
>>legislative branch to remove judicial discretion by declaring that this
>>principle of law ALWAYS supercedes this other principle, is to deny the
>>judgment of judges, and the important role played by a (presumably)
>>learned and impartial consideration of particular circumstance.
>
>
>
>>If I may read between your lines, you seem to want to put our process of
>>self-governance on auto-pilot, such that alternative outcomes are beyond
>>debate, and reasonable people will no venue in which to differ.
>>I don't
>>think this is possible. At least, not in a democracy.
>
>
> On the contrary, I propose increasing the authority of elected
> officials at both the Federal and State level. What could be more
> "democratic" than that?
I think what you're proposing is not more autonomy for the legislative
branch, but rather less discretionary intervention for the judicial
branch. Many people would agree with you, at least until their own
favorite ox is gored by the legislatures, in which case it is the Courts
that oughta do something...
>
> --Hugo S. Cunningham
Zor-El of Argo City
"Seperate but equal" and Dred Scott would still be the law of the land.
As for Justice Thomas as a "mediocrity"; it appears he follows the lead
of the late William O. Douglas and rarely asks questions during
hearings; his opinions, usually are somewhat shorter than what court
observers are used to, but are also clearly wwritten and develop ideas
and thoughts quickly and cleanly. Comapre his writings to Justice
Souter, whose writings can best be classified as 'gassy''; long, windy
sentences roaming the lanscape in search of an idea.
O'CONNORS FIRST POLITICAL OBSERVATION: Anyone who has held elective
office will tell you that the view from the inside looking out is a lot
different than being on the outside looking in.
tonyp
"R Philip Dowds" <rpd...@earthlink.net> wrote
> For starters, I would presume that a proposed Presidential appointee is
> innocent until proven guilty, and I would not launch into a hostile or
> defamatory round of questioning unless I had a pretty good reason to
> suspect guilt.
I don't know, Philip. My starting point is that no one is _entitled_ to a
lifetime job, let alone a seat on the Court. So the burden of proof should
be on the applicant. Mr. Roberts may have been nominated by the current
President, but he's still applying for a lifetime job. So, why should we
hire him?
> So, what's guilt, in this instance? What would disqualify a
> Presidential nominee from taking a seat on the Supreme Court? If I were
> a Senator, I would be worried about:
>
> (1) Insufficient professional and intellectual attainment ...
Good. I would add: insufficient age. A certain experience of life, over
and above professional accomplishment, is probably more useful to a judge
than to, say, a physicist.
> (2) Rigid and extreme ideology (or "philosophy") ...
Of course. But I argue that ideology and philosophy are generalizations
from particular positions. A job applicant may _profess_ punctuality, say,
but a smart employer would be wise to look at his actual past time-cards.
> What I would NOT do is demand, of any Supreme Court nominee, that he/she
> agree with me on my hot-button issue or case — Roe v Wade, Marbury v
> Madison, Brown v Board of Education, the Dredd Scott decision, whatever.
> If I were to demand this, then my 99 Senate colleagues could
> reasonably demand the same, and we'd never again approve any appointment
> to the Supreme Court.
Oh, I doubt that. There may be 100 Senators, but there are not 100 totally
distinct bundles of hot-button issues.
-- TP
R Philip Dowds
working from mostly second-hand information about the Justice, so I
hastened off to the website of SCOTUS, and rummaged a bit. All the
(recent) written decisions are readily available, and given constraints
on time, I sampled just two:
(1) Exxon v Allapatah, which seemed to have something to with
prioritizing competing claims in alternative jurisdictions. Justice
Thomas joined the five-person majority in affirming something or other.
He wrote nothing.
(2) Kelo v New London is a current famous case about the proper
justification for a public taking of private land. A five-person
majority found in favor of New London. Justice O'Connor wrote a dissent
joined by the other three; Justice Thomas wrote his own dissent, but was
joined by no one. His dissent was not short, but rather referenced a
grab bag of miscellaneous cases over time which he found enlightening or
disturbing. While the O'Connor team seemed to have narrow objections to
New London's claim against Kelo, Justice Thomas had much broader
objection to the history and trend of the Court over time to define
"public use" in an expansive rather than limited mode.
So: What did I learn from my limited excursion?
(1) There seems to be legitimate reason to hope or fear that
"conservative" Justices will work hard, for better or worse, to undo
some of the trends of the Court of the last couple of generations, and
thus to re-shape our common law tradition. In this respect, we may be
replacing one kind of activist Court — the kind which manages to
discover new rights buried within existing law — with another kind of
activist Court — one which places low value on the cumulative tradition
of American jurisprudence, and cheerfully substitutes its own ideology
for the development of law over time in a democracy.
(2) Justice Thomas may be a highly original thinker whose ideas
will require time before they take root among his peers. Or, he may be
a doofus who induces intense cringe among his compatriots.
(2) This is really complicated. Like, I didn't actually understand
what Exxon v Allapatah was about. Maybe Justice Thomas didn't either.
In any event, developing a first-hand detailed understanding of what
Justice Thomas is doing is beyond both my training and my time
availability. So I guess I will stick with relying on the views of
commentators who make sense to me.
RPD / Cambridge
Facts can be your friends if you treat them right.
Info Junkie
Agreed. Which is why Mr Nominee's role at the federal appellate level is non
sequitur wrt individual rights under Amendment IX, and non sequitur wrt those
powers retained by the states under Amendment X (for powers not incorporated
under Amendment XIV).
>You claim a right (under the 9th) to homeschool your kids, the state claims
> the power (under the 10th) to require childhood education.
As parents/guardians, according to the USSC, individuals retain the "right"
(Amendment IX) to "direct the upbringing and education of children under their
control". So IAW with the USSC, there is no "right" to an education that falls
under US Constitutional protections beyond Amendment IX, ie, non sequitur:
"Under the doctrine of Meyer v. Nebraska, 262 U.S. 390 , 43 S. Ct. 625, 29 A. L.
R. 1146, we think it entirely plain that the Act of 1922 unreasonably interferes
with the liberty of parents and guardians to direct the upbringing and education
of children [268 U.S. 510, 535] under their control. As often heretofore
pointed out, rights guaranteed by the Constitution may not be abridged by
legislation which has no reasonable relation to some purpose within the
competency of the state. The fundamental theory of liberty upon which all
governments in this Union repose excludes any general power of the state to
standardize its children by forcing them to accept instruction from public
teachers only. The child is not the mere creature of the state; those
who nurture him and direct his destiny have the right, coupled with the high
duty, to recognize and prepare him for additional obligations.
(http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=268&invol=510)
Since this would now falls under the powers of the state (Amendment X) vs an
individual right (Amendment IX), several states (over the last 20 years or so)
have passed legislation where some version of homeschooling is now legal in all
50 states. (http://www.homeschoolingislegal.info/insurance.htm)
> Is Mr. Nominee saying that the
>federal courts can rule on your right without simultaneously ruling on the
>state's power?
Some believe this is true, or it should be; for one example:
"On June 29, 1993, former President Bill Clinton issued Executive Order #12852
to create the President’s Council on Sustainable Development. Sustainable
development calls for changing the concept of private property, protected by the
Fifth Amendment to the Constitution, to nothing short of a national zoning
system. Under such a system, the federal government, backed by an army of
private, non-governmental organizations (NGOs) like the Sierra Club, Planned
Parenthood, and the National Education Association will influence, if not
dictate, property and other policies to the States and to local communities.:
(http://www.americanpolicy.org/prop/backroomdeal.htm)
(http://www.landrights.org/ubbs/ultimatebb.cgi?ubb=get_topic&f=7&t=000048)
>Do you have the right to kill yourself? Or does the state have the power to
>forbid you? Suppose you want to kill yourself precisely because you are so
>sick that you can't do it, unaided. But the state claims the power to
>forbid anyone else to help you. Does the state's power here infringe one of
>your "rights not explicitly mentioned in the Constitution"? Or is this not
>a Constitutional question, "i.e. a non sequitur"?
These questions, like many others, are currently being wrestled with at the
state(s) and federal levels. While it's not "non sequitur" to ask Mr Nominee to
provide an answer on such questions, doing so would be ask him to prejudge a
potential case before it comes to the court where he may have to provide his
opinion.
Info Junkie
>
>Folks,
>
>Harvard-educated Mr. Roberts is up for a seat on the US Supreme Court. It
>is widely asserted that we must not ask him point-blank whether he would
>overturn Roe v. Wade -- we must confine ourselves to probing his "judicial
>philosophy". Okay, what's a judicial philosophy? For instance, suppose we
>ask him:
>
>"Do you believe that we Americans have any rights over and above those
>explicitly mentioned in the Constitution?"
I'm not sure I'm adequately answered the above, so...
1. "judicial philosophy": This may be a belief in how the US Constitution may be
interpreted, i.e., the perception of the court's role as part of the federal
triumverate.
One may ask Mr Nominee would "label" himself in general...but not on any
specific issue: Liberal, Classical Liberal, Libertarian?
(followup) Would Mr Nominee apply this "label" to social, national, political or
economic areas of interest?
2. The second question you've posed (above) should be obvious: Yes. Individual
rights per Amendment IX are too numerous to be enumerated, and should be
protected, as long as they don't violate other another's individual rights. To
cite the old adage, "Your rights stop where my nose starts".
IMO, this adage should be applied as often as possible, not only between
individuals, but between states, the federal government or any combination of
the three...
Padraigh ProAmerica
Oath- First do no harm.
IOW, if what I am doing harms no one else, then I should be left alone.
The State, though, can step in if what I am doing is- or could result
in- harming others.
Any judicial nominee following the above would be a fine Justice on the
Supreme Court.
Jeffrey Turner
> The best way to understand what you are saying is from the Hippocratic
> Oath- First do no harm.
>
> IOW, if what I am doing harms no one else, then I should be left alone.
> The State, though, can step in if what I am doing is- or could result
> in- harming others.
>
> Any judicial nominee following the above would be a fine Justice on the
> Supreme Court.
That won't work as a test. First, drug laws, is monetary
support of the drug trade, in itself, harming others? Second,
is a foetus "someone else"? Where does privacy end in an
interconnected world, to a social animal? I know a Libertarian
on here who supports the Iraq war because it was right to help
the Iraqis! And Rehnquist voted _in favor_ of some aspect of
child care after helping his single mom daughter care for her
son, even though on a strict ideological test it was "wrong."
--Jeff
Padraigh ProAmerica
expert. If the money ois used to support narcoterrorist groups like FARC
in Colombia, then that's a problem.
As an example, I was bothered by the USSC ruling on the California
Medical Marijuana case...the fact is that there was NO interstate
commerce involved, thus NO grounds for the Government to interfere...but
the USSC saw it differently.
I was also angered by the Kelo vs. New London case. This was CLEARLY a
case of the liberals on the USSC extending Government power at the
expense of the people. Thanks to this insane ruling, the entire
"takings" clause of the Fifth Amendment has been effectively
eviscerated.
tonyp
"Info Junkie" <bond...@ifx.net> wrote
> These questions, like many others, are currently being wrestled with at
the
> state(s) and federal levels. While it's not "non sequitur" to ask Mr
Nominee to
> provide an answer on such questions, doing so would be ask him to prejudge
a
> potential case before it comes to the court where he may have to provide
his
> opinion.
Suppose we ask: "Mr. Roberts, do you agree or disagree with Justice
Scalia's opinion in X v. Y?" According to you, Mr. Roberts will be
"prejudging" some potential future case if he answers such a question.
But note that we know _Scalia's_ answer to that question. So, does that
mean Scalia has "prejudged" that same potential future case?
-- TP
R Philip Dowds
anything we want, and he will answer directly and honestly. Like for
instance ...
"What do you think of Roe v Wade?"
"I think it was mistake of Constitutional interpretation, and may
reasonably be reversed by future cases and decisions. But I also think
that the Constitution provides Congress with the latitude to promote
abortion access with federal legislation, if it so chooses."
Etc, etc.
And so, now what? Have we demonstrated that he is qualified, or
unqualified, to sit on the Supreme Court? Do you have in mind some set
of Aha, Gotcha! Wrong Answers that would prove him to be unqualified?
RPD / Cambridge
Facts can be your friends if you treat them right.
R Philip Dowds
More interestingly, you argue that Kelo v New London is a *liberal*
decision. In other words, it is "liberals" who seek to broaden and
deepen the reach of federal power into State and local affairs, and the
private lives of American citizens.
??? Why do you think this "liberal"? Would you agree that those who
support the Patriot Act are liberals, and those who seek to rescind it
are conservatives? Can you actually provide a one-sentence definition
of either term?
RPD / Cambridge
Facts can be your friends if you treat them right.
Info Junkie
>
>"Info Junkie" <bond...@ifx.net> wrote
>
>> These questions, like many others, are currently being wrestled with at
>the
>> state(s) and federal levels. While it's not "non sequitur" to ask Mr
>Nominee to
>> provide an answer on such questions, doing so would be ask him to prejudge
>a
>> potential case before it comes to the court where he may have to provide
>his
>> opinion.
>
>
>Suppose we ask: "Mr. Roberts, do you agree or disagree with Justice
>Scalia's opinion in X v. Y?" According to you, Mr. Roberts will be
>"prejudging" some potential future case if he answers such a question.
He may easily state that he agrees with Justice Scalia's opinion on some issues
but not others. Your "spin" is to pin Mr Nominee's opinion to a specific case by
tying his answer to another Justice's opinion. This may equate to a "guilt by
association" mindset in ascertaining how Mr Nominee would vote on a specific
case. Disengenuous at best.
>But note that we know _Scalia's_ answer to that question. So, does that
>mean Scalia has "prejudged" that same potential future case?
We know "Scalia's_answer" because he provided his opinion (dissented/concurred).
Justice Scalia already is a member of the appellate court, not a Nominee to the
court, and said opinion was part of the ruling.
Would you instead prefer Judge Roberts (Mr Nominee) use Canon 5 of the American
Bar Association's Model Code for Judicial Conduct? This is also known as the
"Ginsburg Rule", where as, "prohibits candidates for a judical office from
making statements that commit the candidate regarding cases, controversies or
issues likey to come before the court". It is being revised, but the intent has
not changed: http://www.abanet.org/judicialethics/draft_canon5_052605.pdf
Justice Ginsburg used that tactic quite effectively even though she was a known
activist in several very liberal causes prior to her nomination to the USSC. Yet
deomcrats never aggressively "called" on her those activities, because she
invokes this usage of this canon multiples times.
IMO, the ABA created this canon for judicial nominees to protect them
(politically). One may easily see the similarity of this canon to that part of
the fifth amendment as it pertains to "witness against himself".
You asked for examples and were provided the same.
tonyp
"R Philip Dowds" <rpd...@earthlink.net> wrote
> OK, where are we going with this? Let's say we can ask Mr Roberts
> anything we want, and he will answer directly and honestly. Like for
> instance ...
>
> "What do you think of Roe v Wade?"
> "I think it was mistake of Constitutional interpretation, and may
> reasonably be reversed by future cases and decisions. But I also think
> that the Constitution provides Congress with the latitude to promote
> abortion access with federal legislation, if it so chooses."
>
> Etc, etc.
>
> And so, now what? Have we demonstrated that he is qualified, or
> unqualified, to sit on the Supreme Court? Do you have in mind some set
> of Aha, Gotcha! Wrong Answers that would prove him to be unqualified?
"Qualified" is not the issue -- or at least, not the right word.
Professionally, Roberts is entirely qualified. But so are at least a couple
of hundred other judges and lawyers in America's vast legal system. Bush
did not pick Roberts because he could not find any other qualified
candidate. He picked him because Roberts answered certain questions (about
"judicial philosophy"?) to Bush's _political_ satisfaction.
I don't know what questions Bush asked Roberts -- or any other candidate he
considered. If I did, I would say that my Senators are completely entitled
to ask the same questions. If Roberts demurred on some of Bush's questions,
then maybe he is entitled to do the same before the Senate.
We cannot carry the above principle too far, though: if Roberts can demur
to _both_ Bush and the Senate, on important questions, then we should all
just admit we're buying a pig in a poke, and might as well pick future
Justices by drawing names from a (qualified) hat.
So let's get real: the President picks his nominee on more than
"qualifications", and the Senate ought to consent (or not) based on similar
considerations.
One consideration is this: Bush won't be President 4 years from now, but
Roberts could conceivably still be a Justice _40_ years from now. In that
time, it is demographically certain that we will have a funeral boom: the
baby boomers will be dying. "Abortion" will recede as an issue, to be
replaced by "the right to die". I don't know, and neither does Roberts,
what _cases_ will arise out of the right-to-die issue. But I do know, and
surely Roberts does also, that the two issues raise similar "privacy"
questions. If his position is that the Constitution does not protect
privacy from Congressional "latitude", I want to know that. If his position
is that the Constitution does not protect privacy from legislation by the
_states_, I want to know that, too.
Right now, I feel no more need to kill myself than to have an abortion. I
cannot imagine _ever_ wanting to kill myself -- except in circumstances
wherein I am so incapacitated that I need someone's help to do it. It is
entirely possible that such assistance would be forbidden to me, by either
state or federal legislation. Your imagined answer by Roberts to the Roe v.
Wade question leaves me in some doubt as to whether Roberts would uphold my
_right_, against the _power_ of government, on the assisted-suicide issue.
So I would press him further on "privacy" in general.
I repeat: none of us knows what _cases_ will arise in the future. Cases
are fact-specific. If a nominee (or a sitting Justice) states explicitly
how he would rule on a hypothetical case, we can be fairly sure that any
_real_ future case will not present the exact same facts as the hypothetical
(or any actual past) case. All we can glean from a nominee's answers about
specific but hypothetical (or past) cases is his general "philosophy". Not
what he _says_ his philosophy is, but what it _is_. We might like it, we
might not, and we can vote accordingly. But neither we nor the nominee are
"prejudging" future _cases_.
-- TP
R Philip Dowds
...
You are struggling with the same issue that much of America is
struggling with. And here it is:
Both "liberals" and "conservatives" have agenda items that they have not
been able to achieve by conventional political (electoral and
legislative) means. Thus "liberals" have never gotten a decisive,
unambiguous, and broad-based legislative mandate for abortion access,
universal health care, or gay marriage. Meanwhile, "conservatives" have
never gotten to their legislative goals of repealing zoning, nullifying
the endangered species act, or repudiating affirmative action.
Accordingly, frustrated quasi-liberals and pseudo-conservatives have
turned to the courts, seeking to get judges to do the heavy political
lifting that their legislators refuse to do.
And this is why Supreme Court nominations seem so fraught with
significance: Each side wants to appoint justices who will lower the
boom on an inert or recalcitrant legislative / executive branch. The
Supreme Court is the political weapon of last resort, and the trump card
in the competition. All of which creates vast sturm and drang in what
would otherwise be a pretty routine process of selecting someone who is
qualified -- by training, talent and temperament -- to make decisions
about how established law should apply to specific cases.
I've not signed up for this version of the game. I do not believe we
should ask our courts to do the work we, the voters, are unwilling to do
for ourselves. If we -- the voting majority -- want access to abortion
or euthanasia, we should get it. From our legislators. If we want an
end to zoning, or to affirmative action, we should get that too. From
our legislators. And if we can't get it from our legislators, then we
must learn how to become better voters, more attentive citizens, and
more persuasive to our neighbors.
What we DON'T need is judges with attitude, who feel empowered to do
what the legislature will not. And that proposed restriction is a
two-edged sword, inflicting disappointment on "liberals" and
"conservatives" alike.
tonyp
"R Philip Dowds" <rpd...@earthlink.net> wrote
> What we DON'T need is judges with attitude, who feel empowered to do
> what the legislature will not. And that proposed restriction is a
> two-edged sword, inflicting disappointment on "liberals" and
> "conservatives" alike.
But neither do we need judges who merely rubber-stamp the will of the
majority. The whole point of the Bill of Rights is that some things must be
protected even from legitimately elected governments. The hell of it is, we
disagree about what those things are -- even when we both read the same
Constitution.
Some people want to protect a woman's right to keep and bear arms but
abolish her right to abort a pregnancy. Others want the opposite. You
suggest that we should fight it out at the ballot box. In a grand sense,
you're absolutely right.
But there is an even grander conception behind the Bill of Rights. It's the
recognition that domestic tranquility requires the losers, at the ballot
box, to acquiesce to the winners -- and the further recognition that they
will not do so if the majority goes too far. What "too far" means is
largely what confirmation battles are all about.
Surely, no nominee would be confirmed if he asserted that Plessy v.
Fergusson was wrongly decided. Why might that be?
-- TP
Bruce Lewis
> "Qualified" is not the issue -- or at least, not the right word.
> Professionally, Roberts is entirely qualified.
I find that a surprisingly confident statement. He has only two years
experience as a judge. Are you saying this because you feel being a
clerk counts as high-level judicial experience?
I can't say with certainty what put Roberts at the top of GW's list, but
qualifications surely isn't it.
tonyp
"Bruce Lewis" <brl...@yahoo.com> wrote
Well, the difference is between being on the list and being at the top of
the list. Lots of people are "qualified" to attend MIT, lots of people are
"qualified" to sit on the Supreme Court, based on a narrow definition of
"qualified". My point was that selecting _this_ person over _that_ person
involves additional considerations, e.g. affirmative action on behalf of
minorities like right-wingers :-)
-- TP
R Philip Dowds
> "R Philip Dowds" <rpd...@earthlink.net> wrote
>
>
>>What we DON'T need is judges with attitude, who feel empowered to do
>>what the legislature will not. And that proposed restriction is a
>>two-edged sword, inflicting disappointment on "liberals" and
>>"conservatives" alike.
>
>
>
> But neither do we need judges who merely rubber-stamp the will of the
> majority. The whole point of the Bill of Rights is that some things must be
> protected even from legitimately elected governments. The hell of it is, we
> disagree about what those things are -- even when we both read the same
> Constitution.
Agreed, after a fashion. Part of the brilliance of the American system
of government is that the Constitution supercedes the will of the
majority, even the will of a legislative majority.
But, if the majority coalesces, and follows due process to
re-write the Constitution to condone the re-institutionalization of
slavery, then the Supreme Court has no option but to support this
Constitutional amendment. Of course, I'd like to think that under such
circumstances all the sitting judges would resign and move to Canada,
rather than cooperate with such barbarism, but that may be asking a lot.
And yes, you've hit the nail on the head. Parties disagree about what
the law means, and go to court for the answer. Since no Constitution or
body of law can anticipate and systematically address every possible
future contingency, a primary — *the* primary — purpose of the Courts is
to determine how law as a whole applies to specific circumstance. This
is where we need judges of experience and wisdom, not of attitude.
Neither right nor left attitude.
>
> Some people want to protect a woman's right to keep and bear arms but
> abolish her right to abort a pregnancy. Others want the opposite. You
> suggest that we should fight it out at the ballot box. In a grand sense,
> you're absolutely right.
>
> But there is an even grander conception behind the Bill of Rights. It's the
> recognition that domestic tranquility requires the losers, at the ballot
> box, to acquiesce to the winners -- and the further recognition that they
> will not do so if the majority goes too far. What "too far" means is
> largely what confirmation battles are all about.
But I'd take one step back: Not all SCOTUS confirmations need to be, or
should be, battles. We have a Congress with many "liberals" who refuse
to address the distribution of wealth and income, climate change and
environmental protection, universal health care, and whole host of
national agenda issues that are really, really important. Instead (just
like the Republicans), they waste their breath and strength on the
appointment processes, and character assassination of the hapless people
who find themselves in the loop.
>
> Surely, no nominee would be confirmed if he asserted that Plessy v.
> Fergusson was wrongly decided. Why might that be?
In Plessy v Ferguson, SCOTUS endorsed the principle of segregation. You
mean, perhaps, "rightly decided". In any event, no nominee will
celebrate Plessy v Fergusson because overt racism (secular or
faith-based) is off the public menu -- although in the private dining
room, it is still a favored entree.
But vigorously out of the closet, and currently prominent in the public
domain, is homophobia (both secular and faith-based). Public dumping on
niggers is unacceptable, but public dumping on queers is not. As
recently as 1986 (Bowers v Hardwick), the Supreme Court itself felt that
State's rights superceded personal rights in matters of sodomy. Only as
late as 2003 (Lawrence & Garner v Texas) did SCOTUS manage to determine
that rights of privacy extended to the sexual practices of all
consenting adults. The last frontier of civil rights, yes?
So, in my circuitous and maundering way, I have managed to come round to
your question of origin: What should we ask Mr Roberts? I think that
for both abortion and racism, folks on all sides of the issue have
pretty well learned their lines, and that queries to Mr Roberts will
garner only politically correct ambiguities. But sexual politics is
still up for grabs, and probing his views of how the Constitution and
Bill of Rights applies to gays and lesbians might mine a rich vein.
Marriage for homosexuals? Adoptions by same sex couples? Homosexual
teachers? Homosexual priests? Gays in the military? What does our
Constitution and our Bill of Rights suggest about these issues? This, I
think, would be interesting to ask, and interesting to hear about.
Additionally, it has the advantage of being prospective about the
future, rather than retrospective about the past.
Do not, however, hold your breath waiting for our Senatorial "liberals"
to make a courageous move and charge into this minefield.
>
> -- TP
tonyp
"R Philip Dowds" <rpd...@earthlink.net> wrote
> So, in my circuitous and maundering way, I have managed to come round to
> your question of origin: What should we ask Mr Roberts? I think that
> for both abortion and racism, folks on all sides of the issue have
> pretty well learned their lines, and that queries to Mr Roberts will
> garner only politically correct ambiguities. But sexual politics is
> still up for grabs, and probing his views of how the Constitution and
> Bill of Rights applies to gays and lesbians might mine a rich vein.
> Marriage for homosexuals? Adoptions by same sex couples? Homosexual
> teachers? Homosexual priests? Gays in the military? What does our
> Constitution and our Bill of Rights suggest about these issues? This, I
> think, would be interesting to ask, and interesting to hear about.
> Additionally, it has the advantage of being prospective about the
> future, rather than retrospective about the past.
>
> Do not, however, hold your breath waiting for our Senatorial "liberals"
> to make a courageous move and charge into this minefield.
I tell you, Philip, that end-of-life issues will loom largest over the next
few decades. Death is not as much fun to talk about as homosexuality or
race, but it effects more people. If I had 5 minutes to ask Roberts one
question, I would ask:
"Does the Constitution protect your individual right to die, or do state
legislatures own the lives of their citizens?"
-- TP
R Philip Dowds
issue -- and as baby boomers start to poop out, it will become even more so.
And yet ... nothing is more interesting to the majority of Americans
than the sex lives and practices of their family, friends and neighbors.
This is the obsession that underlies the "family values" agitations,
and a controversy that will ensare the Supreme Court for a long time to
come.
RPD / Cambridge
Facts can be your friends if you treat them right.
PS: As an aside, you might want to look in on the American hospice
movement, which struggles fairly intelligently with the challenges and
processes of dying well. Amazingly enough, Medicare supports and
subsidizes indefinitely (some of) the costs of hospice care and hospice
facilities, but there is still no public money available for "assisted
living", or caring for the frail elderly for whom a near-term date of
death is not (yet) projected.
tonyp wrote:
...