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Post by StPetersburgHoya (Inactive) on Jul 5, 2005 15:42:24 GMT -5
I really wonder about Justice Thomas. I have yet to read a decision that only he authored, so its really hard to say anything about what he would do as a Chief Justice without a lot of conjecture.
Btw, there was an excellent article in the New York Times on sunday discussing the various types of conservative interpretations of the law - I wonder if anyone has a link to it - I really don't feel like trying to figure out what my old password on nytimes.com was.
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Post by jerseyhoya34 on Jul 5, 2005 21:23:07 GMT -5
St. Pete, I don't think Thomas stands a chance to be nominated Chief Justice over Scalia. Thomas already went through a bruising confirmation battle, and I don't think even the most hard-nosed conservatives would want to endure the Anita Hill battle all over again.
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Post by hilltopper2000 on Jul 5, 2005 22:15:30 GMT -5
"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?My point is only that the Constitution itself does not provide us with any guidance as to how it is to be interpreted. The point of departure is John Marshall. "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 judgments 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.The vast majority of cases on most courts (including the Supreme) have little or no dissent. Those aren't often the interesting ones, so you won't hear about them. On political issues, personal philosophies often do creep in and in some instances dictate. There are judges and justices who do a better job of checking their personal beliefs at the door, though. Justice Kennedy for instance proved the decisive swing vote in Casey (which basically affirmed the central holding of Roe) and he's a conservative Catholic. 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.Just to build a bit what Jersey & St. Pete said about creatively finding "penumbras" of rights in the Bill of Rights -- if you want to read the Bill of Rights literally, you will end up in some pretty odd places. Why is the government allowed to arrest me for publicly threatening the life of the president? Can I own nuclear arms to protect my family from South Korea? You get the idea. The spirit of the law is sometimes more important than the letter. Look, a lot of Catholics don't like the idea of a right to privacy, but because of that right the government can't enforce mandatory family planning or force unmarried women to have abortions. Most Americans would be appalled if you told them that the Constitution doesn't shield unborn fetuses from governmental harm. "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 can't agree with you that the Framers are the most important. Most scholars think of the Constitution as a contract (perhaps irrevocable) between the states. They were the ones who adopted it; not the Framers. In any event, the Framers often didn't agree. Their views can be manipulated to get the result a judge wants anyway. Read Justice Scalia's dissent in the Kentucky 10 Commandments case. It is largely ahistorical and illogical but it is an example of originalism. (For those law nerds out there, Jack Balkin did a great analysis of this on his blog.) I'm not sure what your comments on the Schiavo case mean.Republicans (and some Democrats) wanted the courts to intervene to save Terri Schaivo. Many talked on the floors of the House and Senate about the right to life found in the Constitution. This is both wrong and ironic. First, you have a right not to be killed by your government without due process (some would argue the 8th amendment makes this absolute). But you do not have the right not to be killed by someone else. The Bill of Rights never touches the relationships between private citizens with one exception -- the 13th Amendment which prohibits slavery. The second thing that is remarkable about (particularly) the Republicans' argument is that for a court to find a right to life in the Constitution it would have to use the same substantive due process judicial law-making they've been criticizing for three decades. 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.We should expect nothing less from Hoyas. Seriously, I do this for a living so I apologize if my tone was too didactic. I really do think that lawyers have to speak up about this stuff. It is not really common sense. AustinHoya, it is great to hear a fellow legal scholar speaking up -- especially a fellow Austinite (I'm spending the year here in Texas). My point about Marshall wasn't his actual interpretation of the commerce clause but rather his method of interpretation. If you are at UTlaw certainly you've encountered Phillip Bobbitt's modalities of interpretation. That's what I was getting at. You are right about the commerce clause's history being "tortured." This is one area where the Constitution in Exile crowd will inevitably lose as Wickard's recent application shows us. The Rehnquist Court has lurched forward and back. I think we are in agreement on the recent takings case. I thought the Court's decision was logical and well-reasoned -- I was frankly surprised at how close it was. I was even more surprised that politicians like Tom Delay talked about how out of control the Court was -- it exercised judicial restrain by saying it couldn't act in this case. It curtailed its own power and got criticized for being "activist." I loved Will's column; he was one of the few outside of the legal world that picked up on this irony. I also agree with you that the main issue facing the Court is the role of stare decisis. I happen to be a big fan, but that's a discussion for another day. The democracy-deficit inherent in the Supreme Court making decisions can be troubling but for me it depends on the issue. Takings strikes me as one where the public officials shouldn't be excessively second guessed by the courts, unlike say private issues of sexuality or minority rights -- I largely buy Ely's argument. Finally, the reason I singled out Republicans is because I can't remember the last time I heard a Democratic leader demagogue a Supreme Court decision -- even Bush v. Gore was largely accepted albeit grudgingly by Dems in national office. Compare that with the Frist/Delay/Santorum parade. (The recent comments on Justice Kennedy were particularly upsetting and stupid.)
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Post by AustinHoya03 on Jul 6, 2005 14:14:06 GMT -5
AustinHoya, it is great to hear a fellow legal scholar speaking up -- especially a fellow Austinite (I'm spending the year here in Texas). My point about Marshall wasn't his actual interpretation of the commerce clause but rather his method of interpretation. If you are at UTlaw certainly you've encountered Phillip Bobbitt's modalities of interpretation. That's what I was getting at. You are right about the commerce clause's history being "tortured." This is one area where the Constitution in Exile crowd will inevitably lose as Wickard's recent application shows us. The Rehnquist Court has lurched forward and back. I think we are in agreement on the recent takings case. I thought the Court's decision was logical and well-reasoned -- I was frankly surprised at how close it was. I was even more surprised that politicians like Tom Delay talked about how out of control the Court was -- it exercised judicial restrain by saying it couldn't act in this case. It curtailed its own power and got criticized for being "activist." I loved Will's column; he was one of the few outside of the legal world that picked up on this irony. I also agree with you that the main issue facing the Court is the role of stare decisis. I happen to be a big fan, but that's a discussion for another day. The democracy-deficit inherent in the Supreme Court making decisions can be troubling but for me it depends on the issue. Takings strikes me as one where the public officials shouldn't be excessively second guessed by the courts, unlike say private issues of sexuality or minority rights -- I largely buy Ely's argument. Finally, the reason I singled out Republicans is because I can't remember the last time I heard a Democratic leader demagogue a Supreme Court decision -- even Bush v. Gore was largely accepted albeit grudgingly by Dems in national office. Compare that with the Frist/Delay/Santorum parade. (The recent comments on Justice Kennedy were particularly upsetting and stupid.) The problem with message boards is that I don't always read through everything carefully. After re-reading your post, I see the point you were trying to make on Marshall's interpretations. My bad. It's my understanding that Prof. Bobbitt doesn't get anywhere near first-year classes, so I haven't had the chance to take any courses with him, but his name has been mentioned in my other classes quite often. In fact, my Business Associations prof. mentioned his latest book in class today. (I haven't read it yet, in part due to the near-1000 page length.) As far as R's vs. D's go, I see your point. I think the bile spewed by Delay and Friends may be largely due to the fact that "Democratic" interest groups such as NARAL, the ACLU, etc. primarily view the Court as a protector of personal rights, whereas "Republican" interest groups such as Focus on the Family, the NRA, etc. primarily view the court as an obstacle to achieving their aims. Delay has to keep his money machine running, and I think it's appropriate to view anything he says as an attempt to gain leverage when asking for donations. Hope you're enjoying Austin. Hit me up with a PM if you ever want to go get a beer and share Georgetown stories. Are you doing work at the Law School or elsewhere?
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EasyEd
Platinum Hoya (over 5000 posts)
Posts: 7,272
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Post by EasyEd on Jul 6, 2005 17:30:34 GMT -5
Though the Schiavo case is a bit off target in the thread, I note that the Senate voted unanimously in the case and the House passed it by a voice vote. That means that Democrats, as well as Republicans, passed the measure with virtually no opposition. Now, of course, it's treated as a blast at Bush. Dishonest.
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Post by hilltopper2000 on Jul 6, 2005 19:12:15 GMT -5
Regarding the "Save Terri" bill: The Senate passed it with a "unanimous" vote: Frist, John Warner and Mel Martinez (all R) voted for it and 97 abstained. I watched a good part of the debate and don't remember a single Dem speaking in favor of it, but it is possible that a few did. By my count only 47 Dems in the House voted for it (out of 205); 53 of 58 "no" votes were also Dems; the rest didn't show up. Again, all of those speaking against it were Dems. There may have been some Republicans somewhere who spoke out -- I can't recall. But this was a strategist-crafted, political stratagem by the Republican party, as was evidenced by Brian Darling's memo. More importantly, I can't recall a single Democrat, let alone anyone in the Democratic leadership, attacking a single judge in the wake of the Schaivo controversy. I can't say the same for the Republicans. I'm not arguing that those 47 House Democrats shouldn't be ashamed, but let's be clear about who made this a national issue and who sought to benefit politically by exploiting a family's tragedy. As far as the Democrats as a party in this matter, I think that their shame comes from not fighting the Republicans -- they were cowardly, not malefic
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Post by StPetersburgHoya (Inactive) on Jul 6, 2005 19:57:51 GMT -5
Regarding the "Save Terri" bill: The Senate passed it with a "unanimous" vote: Frist, John Warner and Mel Martinez (all R) voted for it and 97 abstained. I watched a good part of the debate and don't remember a single Dem speaking in favor of it, but it is possible that a few did. By my count only 47 Dems in the House voted for it (out of 205); 53 of 58 "no" votes were also Dems; the rest didn't show up. Again, all of those speaking against it were Dems. There may have been some Republicans somewhere who spoke out -- I can't recall. But this was a strategist-crafted, political stratagem by the Republican party, as was evidenced by Brian Darling's memo. More importantly, I can't recall a single Democrat, let alone anyone in the Democratic leadership, attacking a single judge in the wake of the Schaivo controversy. I can't say the same for the Republicans. I'm not arguing that those 47 House Democrats shouldn't be ashamed, but let's be clear about who made this a national issue and who sought to benefit politically by exploiting a family's tragedy. As far as the Democrats as a party in this matter, I think that their shame comes from not fighting the Republicans -- they were cowardly, not malefic I completely agree that it was shameful for the Republicans to adopt that strategy, however I think that the Democratic strategy of letting the Republicans shoot themselves in the foot publically and then force them to choke on their words later has been highly effective. If the other party has cocked the gun and pointed it at their foot why start yelling that they are about to shoot themselves in the foot?
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Post by jerseyhoya34 on Jul 6, 2005 21:02:36 GMT -5
The NYTimes did a good piece today about "judicial activism," which, like other terms, has been used as a codeword to fire up the Republican base. Interestingly, some, including President Bush, liken such activism to "legislating from the bench." The NYTimes article, linked below, examines how often Supreme Court Justices have overturned Congressional legislation, thereby intruding upon the legislative branch of government. Interestingly, Republican appointees to the SCOTUS to a person have overturned Congressional legislation more often than their colleagues who were appointed by Democratic Presidents. More often than not, Scalia, Thomas, and Kennedy have decided to overturn legislation. The authors of the piece include a Yale Law prof and a recent Yale law graduate. www.nytimes.com/2005/07/06/opinion/06gewirtz.html?th&emc=th&oref=login
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Post by hilltopper2000 on Jul 6, 2005 21:33:09 GMT -5
St. Pete: I'd be very impressed if you were right. The sense I got at the time (and I have no inside info) is that the Dems didn't want to support it but thought they'd be crucified (pun intended) by the right in vulnerable red state districts if they didn't "save Terri." I could be totally wrong and, if I am, kudos to the Dems. I, for one, didn't see the popular backlash coming. And I grew up in a pretty conservative community and now live in Texas.
On the judicial activism stuff, the classic definition (as I learned it in law school) is to strike down legislation -- which makes sense since otherwise the judge would be passive. That's how this editorial uses it. This last week I've heard it used differently though -- to mean interpreting the Constitution in a way that diverts from the classical or history-based understanding (which can often be at odds). I don't know why that is more or less active than any other form of interpretation but the expansion of the term shows how successful Republicans have become in defining the terms of these debates. Activism is bad, just like liberalism.
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Post by showcase on Jul 7, 2005 13:39:36 GMT -5
"Judicial activism" is a conveniently amorphous term that means whatever is useful to the party that uses it. When it first gained currency with the right, I think it was used appropriately, as they were complaining about the Supreme Court (and the courts of appeals to a lesser extent) striking down laws that they deemed to be within the province of 'state's rights.' This 'redefinition' or broadening of the definition has come as the term as gained increasing recognition, and I think stands for nothing more than opposition to Roe.
Speaking of which, brace yourselves, folks - Bob "Doooshebag for Liberty" Novak is rumor-mongering that Rehnquist will announce his retirement tomorrow.
If it's true, I predict this will alleviate some of the tension that has arisen over naming O'Connor's successor. It could take some of the wind out of the sails of reactionary right that demanded someone more conservative than Gonzales be named to replace O'Connor (as Rehnquist's replacement will be unambiguously conservative, I bet many of their number will be placated), and provides the Bush Administration more room to manouever in navigating dual nominations through the Senate.
Either way, the rest of this summer should be interesting...
interesting that Jon Stewart's favorite nickname for Novak can't get past the board's editor...
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Post by StPetersburgHoya (Inactive) on Jul 7, 2005 14:10:34 GMT -5
"Judicial activism" is a conveniently amorphous term that means whatever is useful to the party that uses it. When it first gained currency with the right, I think it was used appropriately, as they were complaining about the Supreme Court (and the courts of appeals to a lesser extent) striking down laws that they deemed to be within the province of 'state's rights.' This 'redefinition' or broadening of the definition has come as the term as gained increasing recognition, and I think stands for nothing more than opposition to Roe. Speaking of which, brace yourselves, folks - Bob "Doooshebag for Liberty" Novak is rumor-mongering that Rehnquist will announce his retirement tomorrow. If it's true, I predict this will alleviate some of the tension that has arisen over naming O'Connor's successor. It could take some of the wind out of the sails of reactionary right that demanded someone more conservative than Gonzales be named to replace O'Connor (as Rehnquist's replacement will be unambiguously conservative, I bet many of their number will be placated), and provides the Bush Administration more room to manouever in navigating dual nominations through the Senate. Either way, the rest of this summer should be interesting... interesting that Jon Stewart's favorite nickname for Novak can't get past the board's editor... I think if anything it will intensify the fight - Rhenquist retiring lets there be three very big appointments, and conservatives will finally see their openning to pack the court - however I think that once this is completed (after some terrible hearings, in which we can be sure that some of the recent tactics like the Gitmo hearings will probably be employed and a failed cloture vote resulting in Cheney changing the rules of the game) - the right should be very wary of falling in to the trap of getting all that they want by naming two ultra-conservative justices and appointing Thomas to be chief justice - this would create a court (and some great sound bytes on rolling back the right to die, Roe v. Wade, affirmative action, etc.) that would show a very moderate electorate how out of step the far right (which has taken over the GOP) has become. The Dems will make it a battle but always be sure to give the GOP just enough rope to hand themselves with.
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Post by showcase on Jul 7, 2005 15:38:13 GMT -5
Yes, but that opportunity only really came when Justice O'Connor, the moderate/swing vote on the Court, decided to step down. Replacing Rehnquist with Luttig doesn't change the how the Court votes. Replacing O'Connor with, say, Edith Jones, works a sea-change. That's why we heard all of this talk about both sides gearing up for a big fight before Dubya even made his choice.
All of which, of course, involves rank speculation that the Dooshebag for Liberty is being fed good info. He has in the past, and Kristol predicted O'Connor's departure based on rumor the week before she announced (so maybe all the conservative commentators have the inside access these days), but it's still all just so much speculation right now.
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EasyEd
Platinum Hoya (over 5000 posts)
Posts: 7,272
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Post by EasyEd on Jul 7, 2005 15:54:32 GMT -5
Can't we discuss this issue without the "Dooshbag"-type name calling?
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Post by showcase on Jul 7, 2005 15:55:55 GMT -5
Novak? Is that you?
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Post by StPetersburgHoya (Inactive) on Jul 7, 2005 16:57:42 GMT -5
At least no one has used the H-word yet. I think that Rhinquist stepping down is just as big because it lets Bush also nominate someone like Thomas, who we said earlier wouldn't mind seeing stare decisis stepped all over in order to get the decisions he believes in - you need a Chief Justice who is willing to steer the court just as much as the court splitting for conservatives - this is a far right dream come true - I just think they'll trip all over themselves to get there.
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Post by jerseyhoya34 on Jul 7, 2005 20:45:01 GMT -5
RAW Story, which is similar to Drudge, is running a story on Rehnquist as well.
"According to one source, Republican judiciary aides have told other staffers to be prepaired for a possible resignation tomorrow between 10 and 11 am." (http://rawstory.com/news/2005/Rehnquist_may_resign_0708.html)
We could have as many as 4 nomination fights in the coming weeks, not including Bolton. I think Bush will nominate Gonzalez along with a conservative who makes our hair stand on end as Associate Justices. My guess is that he'll bump Scalia up to Chief Justice. (There's no prayer of having Thomas there simply because his nomination fight would be utterly gruesome. Anita Hill revisited. I don't think Bush will want to create problems there, when Scalia is the more respected thinker.) Then, we'll also have a confirmation battle on Bush's replacement for Attorney General.
Maybe Robert Nofacts wasn't so wrong on this one... Tomorrow could be interesting.
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Post by StPetersburgHoya (Inactive) on Jul 7, 2005 20:59:44 GMT -5
With Scalia as the head of SCOTUS how long do you think it takes for him to start destroying "the homosexual agenda"? I say it somewhere between and 10 and 15 minutes - depend on whether he's distracted for 9 or 14 minutes.
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