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Post by StPetersburgHoya (Inactive) on Jul 1, 2005 18:22:11 GMT -5
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EasyEd
Platinum Hoya (over 5000 posts)
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Post by EasyEd on Jul 1, 2005 18:31:33 GMT -5
Bush will nominate someone who reads the constitution and tries to interpret cases relative to what's in the consititution.
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Post by StPetersburgHoya (Inactive) on Jul 1, 2005 20:12:54 GMT -5
I actually think that all justices try to do that despite what some commentators say. Its really funny that to the extent that people claim there is judicial activism and law-making from the bench they fail to:
1) Look at the cases themselves, the briefs, the opinions, and the oral arguments to determine where the real disconnect is.
2) Some how believe that once they get "the right people" or "justices that do their job" (a real smack in the face to jurists who have been doing a very difficult no-win job for years) on the bench (whether that is liberal or conservative) that they can suddenly "fix" a lot of these problems through judicial activism - showing exactly how shallow the original claims were in the first place.
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Z
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Post by Z on Jul 1, 2005 22:26:26 GMT -5
i think he is going to nominate a hard-right winger to appease the significant constiuency of his for whom SCOTUS is priority number one. if the nominee crashes and burns in the confirmation process, fine, but i think things for him are going to crash and burn anyway among a sizable number of his supporters unless he nominates a hard RW'er.
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Post by StPetersburgHoya (Inactive) on Jul 1, 2005 22:39:54 GMT -5
I think you're right Z - this also couldn't have happened at a worse time for the Dems politically - its a significant domestic issue that will distract away from the debate on Iraq which had tipped pretty far away from Bush. The Dems also have a pretty lousy record on winning domestic issue debates excluding social security and Schaivo.
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Z
Bulldog (over 250 posts)
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Post by Z on Jul 1, 2005 22:49:35 GMT -5
for what its worth, i would be shocked if he nominated gonzalez, who would have to recuse himself from a number of cases addressing hot button political issues.
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Post by showcase on Jul 2, 2005 11:31:34 GMT -5
I think Dubya will go with a judge that is more conservative than O'Connor, but whose 'demographic credentials' would help insulate him from such criticisms. Alito (a/k/a 'Scalito') of the Third Circuit or Emilio Garza of the Fifth Circuit come to mind as hispanic judges with an established record of being reliably conservative. I would expect one of these. Gonzales is too moderate for informed conservatices. I think Dubya would like his chances of going to the Senate for a battle with the Gang of 14 with either Alito or Garza. He can then save a judge like Luttig of the Fourth Circuit or Edith Jones of the Fifth Circuit to replace the more consistently conservative (vs. O'Connor) Rehnquist.
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Post by showcase on Jul 2, 2005 11:35:16 GMT -5
Bush will nominate someone who reads the constitution and tries to interpret cases relative to what's in the consititution. As noted above, this is pablum for the uninformed or uninitiated. All Supreme Court justices attempt to resolve the issues before them relative to the language of the Constitution or statute at issue. The difficulty arises in identifying exactly what the language means, because the Constitution doesn't state how its terms are to be interpreted. Strict construction is an illusion, because it's not enought to simply plug in dictionary definitions. Constitutional clauses have to be squared with one another and the cases that explain what those terms or clauses mean. |
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Post by hilltopper2000 on Jul 2, 2005 17:18:56 GMT -5
Alito is an Italian-American, like his mentor Scalia. Don't sleep on Judge Clement on the 5th Circuit. Bob Novak reported that she has been to the White House this month. Unlike her fellow Fifth Circuit judge, Edith Jones, she does not have a hard-right track record but is still a dependable conservative, certainly to the right to Justice O'Connor. The only two Hispanics on the radar are Garza and Gonzalez according to all of the published reports.
Also, Showcase, thank you for rebutting easyed's comment -- which I hope was in jest. Lawyers need to speak out when we hear people (usually Republicans) talk about strict constructionism and following the language of the Constitution. Historical interpretation is just as pliable (and indeterminate) as any other method and can be wielded to get any answer an intellectually dishonest judge wants. The reason conservatives use this language is because they don't like the opinions that have resulted from more creative interpretations of the Constitution. In other words, their rhetoric reflects no genuine objection to the means. For instance, the recent decision on the takings clause was an example of judicial restraint (the opposite of hated judicial activism) and the right went ballistic. Also a lot of congressmen peddled a VERY creative interpretation of the 14th amendment to get the Court to intervene in the Schiavo case. There are a lot of competing principles in constitutional interpretation/decision making (activism v. restraint, various forms of originalism -- text v. intent, stare decisis, various balancing tests, etc.). Good judges balance all of them to reach the most reasonable conclusions (including often the revered Justice Scalia). There are no easy answers; this stuff is complicated; and the simplistic, ill-informed, and often demagogic language of the right does a disservice to how tough this is. (End of rant.)
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DFW HOYA
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Post by DFW HOYA on Jul 2, 2005 21:10:27 GMT -5
This is a classic "inside the Beltway" topic--95% of the nation has more important issues out there to deal with.
The court should not be a political football and those on both sides who use it as such are clearly in the wrong. It's the President's prerogative to choose a candidate of his choice and life as we know it will go on with a new justice. Stare decisis is not going to go away.
Nonetheless, it won't be long before some congressman who will get on TV and opine that civil rights, free speech, lawful assembly (and presumably the ban on billeting troops in one's home) now hangs in the balance.
No, it hung in the balance in 1776, not 2005.
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EasyEd
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Post by EasyEd on Jul 3, 2005 9:57:30 GMT -5
When a football team scores a touchdown it is awarded six points. Why? Because the rules of the game state that. Suppose the touchdown was scored by falling on the ball in the end zone and the referee decides to award the team only five points because he believes that is fair, considering the circumstances? The referee, in all good faith, beleves he is doing what is right, despite what the rules say.
That, I think, is what happens in the Supreme Court. I believe that all judges pass judgement on what they believe is right, whether or not it agrees with what's in the Constitution. For instance, to take on the real hot-button issue, in Roe v. Wade the justices believed it was not government's business to interfere in personal decisions of women. They based their decision on the "right to privacy". Now the right to privacy is certainly a good thing to have but it is not found in the constitution. If the "right to privacy" is to be part of our way of living then it is up to the Congress, with the President's signature, to enact legislation saying so. It is not the right of the Supreme Court to judge it is so.
In almost all cases, it is not difficult to determine what the words of the Constitution mean. All you have to do is to examine the Federalist Papers and you'll know. I have no problem with recognizing that circumstances have changed over the last 216 years since the Constitution was ratified. But the way to adjust to that is to amend the Constitution - just like the way to change the number of points for a touchdown scored by falling on the ball is to change the rules.
As for the Schiavo case, that's a difficult one, particularly when you consider that a very large number of Democrats supported it in Congress, something people choose to ignore. If Terri Schiavo had been a criminal convicted of first degree murder, many people would be pleading for her life. The same people have no trouble making the judgement that her "quality of life" was bad and her husband, who was living with another woman and had fathered two of her children, said she would not want to live. To kill her (or, as they would say, to allow her to die with dignity), is okay and the Federal government should stay out of it. In other words, let's allow Terri to die (kill her) but spare the convicted killer.
What makes the Schiavo case difficult is that I believe decisions such as this should be made at the state level, in the legislatures of the states, not in the Federal branch of government.
Back to the original subject, when I said Bush would nominate someone who reads the Constitution and makes judgements based on what the Constitution says, the above explains what I meant. Furthermore, if he nominates someone who does not function this way, Bush is violating the Constitution himself.
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Post by hilltopper2000 on Jul 3, 2005 10:31:49 GMT -5
When a football team scores a touchdown it is awarded six points. Why? Because the rules of the game state that.
The rules of interpretation have been developed over a long period of time. There is no indication in the Constitution about how it is to be interpreted. Most scholars look to the early rulings of John Marshall for guidance. His treatment of the commerce clause gives you an idea about how much play there is in Constitution interpretation.
I believe that all judges pass judgment on what they believe is right, whether or not it agrees with what's in the Constitution.
This is totally untrue. The only times personal belief may creep into an honest judge's decision is in truly indeterminate cases -- which often tend to be the hot-button political ones.
They based their decision on the "right to privacy". Now the right to privacy is certainly a good thing to have but it is not found in the constitution.
It is found everywhere in the Constitution. Read the Griswold opinion. It shows how a right to privacy can be reasonably inferred from the text of the Constitution. I'm not saying that is right but it is certainly plausible.
In almost all cases, it is not difficult to determine what the words of the Constitution mean. All you have to do is to examine the Federalist Papers and you'll know.
Why the federalist papers? Those were written by the Framers, but the Framers didn't make the Constitution the law of the land. It was the state conventions that ratified it and make the document the U.S. Constitution. Shouldn't we be looking at what the State's thought? (In case you were wondering there was a great difference of opinion among the various states.) Furthermore, even if we were to be look at the federalist papers, they only give the opinion of two (possibly three if we count Jay) of the Framers. Why should they get so much power? What about everyone else in the convention? The truth is there was no consensus about much of what is in the First Amendment for instance. Historical interpretations are fraught with ambiguity. In fact, there are two different schools of originalism: one looks at what the Framers intended; the other looks at what the words the Framers used meant to people in 1789. These two methodologies arrive at different results frequently.
Finally, the Schiavo case did not involve state action unlike the death penalty. The only part of the Constitution that covers private action is the 13th Amendment.
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Post by jerseyhoya34 on Jul 3, 2005 11:16:52 GMT -5
Interesting discussion here...
I think it is very important to remember the Ninth Amendment, which states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
In other words, simply because the Bill of Rights does not contain the words "right to privacy" or "right to choose" does not mean that those rights do not exist. In the case of privacy, I think the Framers showed a clear intent to protect privacy, especially in the Fourth Amendment.
Obviously, there is subjective activity involved in Supreme Court cases, as much as Scalia and others may not want to admit it, and conservatives, as well as liberals, are capable of so-called activism. The debate should really take place on the level of whether people "should have" certain rights, not specified in the Constitution verbatim, rather than whether they do because I think the Constitution is rather clear in saying that people have rights that are not delineated in the Constitution and its amendments.
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Post by jerseyhoya34 on Jul 3, 2005 11:21:59 GMT -5
This is a classic "inside the Beltway" topic--95% of the nation has more important issues out there to deal with. The court should not be a political football and those on both sides who use it as such are clearly in the wrong. It's the President's prerogative to choose a candidate of his choice and life as we know it will go on with a new justice. Stare decisis is not going to go away. Nonetheless, it won't be long before some congressman who will get on TV and opine that civil rights, free speech, lawful assembly (and presumably the ban on billeting troops in one's home) now hangs in the balance. No, it hung in the balance in 1776, not 2005. I think it is a mistake to minimize the importance of this selection and the attention it will receive throughout the country. While the fundamental values of this country, such as freedom of speech, do not hang in the balance, others, such as the right to choose, are also important to many people in this country and are under constant challenge in the legislative and judicial branches. However, I do agree with your comments about "political football." There is language used on both sides, such as "judicial activism" and "strict construction," that rings rather hollow upon more careful inspection. |
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Z
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Post by Z on Jul 3, 2005 15:09:29 GMT -5
This is a classic "inside the Beltway" topic--95% of the nation has more important issues out there to deal with. The court should not be a political football and those on both sides who use it as such are clearly in the wrong. It's the President's prerogative to choose a candidate of his choice and life as we know it will go on with a new justice. Stare decisis is not going to go away. Nonetheless, it won't be long before some congressman who will get on TV and opine that civil rights, free speech, lawful assembly (and presumably the ban on billeting troops in one's home) now hangs in the balance. No, it hung in the balance in 1776, not 2005. I think it is a mistake to minimize the importance of this selection and the attention it will receive throughout the country. While the fundamental values of this country, such as freedom of speech, do not hang in the balance, others, such as the right to choose, are also important to many people in this country and are under constant challenge in the legislative and judicial branches. However, I do agree with your comments about "political football." There is language used on both sides, such as "judicial activism" and "strict construction," that rings rather hollow upon more careful inspection. the impending SC selection reminds me of barney frank's quote just after bush's re-election: "I think a large part of the public likes the conservatives' theme music. Now they will be tested on whether they like the lyrics." on a different note, do conservative power brokers *really* want roe to be overturned? they would lose their most reliable rallying cry / fundraising tool. also, a large number of pro-choice repub's could no longer bite their tongues and tacitly support the anti-abortion campaign of more socially conservative members of their party, comfortable in the knowledge that it would never come to pass. i think that overturning roe would divide republicans and drive away some of the swing voter-types currently supporting the repubs based on their supposed national security "toughness." |
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EasyEd
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Post by EasyEd on Jul 3, 2005 15:27:10 GMT -5
"The rules of interpretation (i.e. football) have been developed over a long period of time".
False. The actual rules of football have been developed over a long period of time. There is no interpretation of whether or not to award 6 points for a touchdown. Likewise, the Constitution has been developed over a long period of time. And, it has been amended, using the procedures of the Constitution, 26 times.
"Most scholars look to the early rulings of John Marshall for guidance".
So, we are to look at the rulings of the first Chief Justice of the Supreme Court for guidance on what powers the Supreme Court has? Isn't that like saying we're looking for guidance on the powers of the presidency by examining the actions of George Washington? Or George Bush? Or Bill Clinton?
"The only times personal beliefs may creep into an honest judges decision is in truly indeterminate cases...."
Then how do you reconcile the fact that most decisions find one group of justices aligned on one side and another group on the other? As I said earlier I believe justices often pass judgements based on what they believe is right whether or nor it's in the Constitution (and that's giving them the benefit of the doubt). If I believe an embryo is not a human being, I am inclined to rule in favor of embryonic stem cell research - not necessarily based on what's in the Constitution.
Concerning the "right to privacy": "It is found everywhere in the Constitution. Read the Griswald opinion".
I have the Constitution in front of me. Show me! And, once again you refer to a court ruling to substantiate your claim, rather than words in the Constitution.
"Why the federalitst papers? They were written by the Framers but the Framers didn't make the Constitution the law of the land..." This was followed by words referring to the states.
I agree with you that we should look at more than the Federalist Papers to decide what was intended when the Constitution was written. The Framers, however, are the ones that knew what was intended and they provide the primary source of information. If there are other authoritative sources, they should also be considered but should not be paramount. The Framers wrote what they intended and the states ratified the words the Framers put on paper.
I'm not sure what your comments on the Schiavo case mean.
Finally, I want to compliment most who have responded to this thread. Most have responded with logic and have not resorted to name calling. That's the way issues should be discussed.
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DFW HOYA
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Post by DFW HOYA on Jul 3, 2005 22:46:18 GMT -5
Hyperbole quote of the day: "Everything we've ever believed in is at stake. If a right-winger replaces Sandra Day O'Connor, that right-winger can turn back the clock seven decades."--Ralph Neas, People for The American Way. "Seven?" Not just three or four? What was going on in 1935? www.baltimoresun.com/news/nationworld/bal-te.warrooms03jul03,1,1527253.story?coll=bal-news-nation |
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Post by StPetersburgHoya (Inactive) on Jul 3, 2005 23:34:03 GMT -5
I believe that's the hyperbole of the new century, DFW.
As already stated on this board it is very hard to overturn a court case specifically dealing with an issue because of stare decisis. The Supreme Court hears cases on which there is no guidance already existing - if its already covered by another case they either don't hear the case or remand it with instructions. The real legal trick for a group of five justices wanting to overturn Roe v. Wade would be for them to find a test case that somehow allowed them to reopen the issues of Roe v. Wade. When a Commerce case comes up before the court they do look at the rulings of Justice Marshall's court precisely because stare decisis is a legal principle on which the court system operates.
I also agree with Jersey that the 9th ammendment fairly explicitly states that there are other rights that are not explicitly stated in the constitution do exist with in the legal framework of rights derived from the document. It makes fairly good sense that if the federal government cannot tell me what religion I will worship, quarter troops in my home, make me convict myself, restrict my speech, or search and sieze my property without a warrant then I might have a right to privacy from the government in conducting my personal life - its just a deduction from what's already there. I think that's what the 9th Ammendment gets at - that there shouldn't be a restriction of positive liberties just because it is not explicitly granted in the constitution. Many of things that we take for granted are not actually in the constitution - most notably the President's Cabinet and its functions - sure the president is allowed to appoint secretaries in the constitution but no where does it state that he should hold a meeting with them. Are we to assume that this liberty is not extended to the president? The Constitution also says that there are rights which are not enumerated in the document and that may not be seen as flowing from the document that are given to the states in the 10th Ammendment - that is not a clear statement of what these laws are. In addition there can be unstated rights in the constitution which come from the power accorded to treaties in the constitution (there is a very strict way for interpreting whether a treaty is law as well, but that would make this post 5x longer than it already is). Given that these treaties are considered to be the "highest law of the United States" it is not surprising that rights not stated in the constitution can also come from these sources. So there are all kinds of rights IMHO that are not stated in the constitution but may be deduced from its clauses and from other sources (treaties) that it places on a par with itself as the highest law of the United States.
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Post by Badger Hoya on Jul 5, 2005 9:13:53 GMT -5
Hyperbole quote of the day: "Everything we've ever believed in is at stake. If a right-winger replaces Sandra Day O'Connor, that right-winger can turn back the clock seven decades."--Ralph Neas, People for The American Way. "Seven?" Not just three or four? What was going on in 1935? www.baltimoresun.com/news/nationworld/bal-te.warrooms03jul03,1,1527253.story?coll=bal-news-nation DFW -- my guess is that Neas is referring to the so-called "Constitution in Exile" group of judges that believe that the best interpretation of the Constitution took place in 1932, specifically with limitations on federal power and interpretations of the interstate commerce clause, before all of the New Deal legislation was enacted. According to popular wisdom, this "Constitution in Exile" would not have allowed the passage of any federal regulatory power, and would have stopped the passage of such laws as the Nat'l Labor Relations Act, Civil Rights Act, and the Social Security Act. |
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Post by AustinHoya03 on Jul 5, 2005 14:37:06 GMT -5
Hilltopper, I feel I should comment on some of your statements, particularly "Lawyers need to speak out when we hear people (usually Republicans) talk about strict constructionism and following the language of the Constitution." I just finished my first year of law school, vote independently, and am one of many lawyers/future lawyers who do not wish to join the hallelujah chorus. "Most scholars look to the early rulings of John Marshall for guidance. His treatment of the commerce clause gives you an idea about how much play there is in Constitutional interpretation." The court's interpretation of the Commerce Clause did begin with Justice Marshall, but had a long and tortured development over the course of the 19th and 20th centuries. Over time, Marshall's ideas about the commerce clause died. Some of the landmark cases from the 20th century, such as Wickard v. Filburn, demonstrate how ridiculous the consequences of judicial interpretation of the commerce clause can be. The development of the Court's interpretation of the Commerce Clause, despite Lopez, has come to mean that today the Federal government may regulate almost anything. Is it surprising that conservatives have a problem with this? A fun article relating to the above can be found here: www.washingtonpost.com/wp-dyn/content/article/2005/06/08/AR2005060800352.htmlThe truth is, judicial activisim occurs on the right and on the left. One only has to look at the current fight among special interests to realize this is true. Conservative groups want to overturn Roe and "protect property rights," Liberal groups want to preserve Roe and "stop the clock from being turned back 50 years." The problem that many people, myself included, have with the Supreme Court/judicial activism is that the Legislature is perfectly capable of handling many of the issues that the court takes on. Why should Congress handle these issues instead? Because they are accountable to the people, and the nine overeducated lawyers are not. Also, for those of you that aren't worried about the status quo due to stare decisis, you'll need to start worrying once Rehnquist resigns and Justice Thomas, whose belief in stare decisis is minimal at best, is considered for Chief Justice. |
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