Well, it's more important than an election
(MODERATOR'S NOTE: This post was originally made in response to the vacancy created by Justice O'Connor's recently-announced Court retirement. -Luigi Novi)
Well, it's more important than an election
Particularly since the rumored first round draft choice for her replacement is Attorney General Alberto Gonzales, who apparently signed his name to a Justice Department report that said that the treatment of politcal prisoners in Gitmo is not torture unless it includes "injury such as death, organ failure, or serious impairment of body functions."
More discussions of O'Connor's retirement and speculations on her replacement can be found here.
Gonzalez? Wow: I didn't think even Bush had the balls to do that.
Gonzalez? Oh boy I may actually start praying if they actually do nominate him. Because if he gets in then its goodbye constitution, bill of rights and basic freedoms and human rights.
Grr. As much as I want a Rice graduate on the Supreme Court... I want it to be *me*. Sorry, Alberto, but no.
I doubt it. Conservatives don't trust Mr. Gonzolez, mostly because his views are still unknown. It's thought he might be a easy nomination, due to the Democrat's fear of opposing a hispanic nomination in broad daylight. Oh, and we didn't vote for W twice not to get a real conservative Supreme Court Justice. I mean, come on. Getting Clarence Thomas Jr. is just payment for having to listen about "Compassionate Conservatism", and the veto free presidency for five years.
But on the so-called torture memos. He was a White House Attorney, and writting legal opinions for the President was part of his job. That's like criticizing him for defending a guilty man, it's part of Bar Ethics. His own views of the law may or may not be reflected in that document (not that there's anything wrong with thinking that "Terrorists will crack from a few rounds of good cop, bad cop.") Also, as the current AG, he would have to recuse himself from from a lot of decisions affecting the Administration.
But, given the etymology of the phase "Borking", any nominee by the President will result in the twilight of the republic, at least according to Democrats.
Fred Thompson named advisor.
Need I wonder if his advice will be to make a deal? Will he make a clever comment after the final vote? Can he hire Angie Harmon as his assistant?
No really, I'm serious about the last one
Steven Hill was usually the one to make a deal.
Hey, Fred fired Elisabeth Rohm, so he must know something...
Was it because she was a lesbian?
No; it was because she sucked.
(Apologies to those who liked her; I just could not stand her character at all)
How could she stink at it? It's ADA Barbie! All she has to do is stand up, sit down, act as a foil for Jack, complain about how this case is unwinnable, recite the feminist position in the "Ripped" stories, wear a cute winter hat and coat, and eat Chinese take out every so often. I mean, what could be so hard about that?
Wasn't being an originalist what lead to the Dred Scott Decision?
It is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the declaration of independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation...
But there are two clauses in the constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the government then formed.
I think originalism is a faulty way of looking at things. The framers of the Constitution could not have anticipated many things happening.
However, I disagree with the article's premise that NOT being an originalist is synonymous with being liberal. I'm not even sure if the three conservatives on the bench are "originalists."
Brian F:
Hey Brian, we have the 13,14 and 15th amendments today. The legal logic behind Dred Scott is obsolete.
Originalism is an agreement to what constitutes valid sources for a Court Decision, they can and do disagree on the arguments, as Thomas and Scalia often do.
Also, a decision that overturned the Missouri Compromise, the Kansas Nebraska Act and ignited the Civil War isn't the poster child for judicial activism.
And the dissent to Dred Scott was also originalist.
Mike C: That's what amendments and by-laws are for. Originalism isn't just about What would the Founders do?, It's what were the American people thinking when when they agreed with this being added to the consitution, as opposed to other tests.
But that's still a faulty premise in my opinion. The American people weren't thinking about the Internet at all when they added the Bills of Rights, but the First Amendment still applies to it.
Hey Brian, we have the 13,14 and 15th amendments today. The legal logic behind Dred Scott is obsolete.
No, the decision itself is obsolete due to the Civil War Amendments, but logic does not change. If you are a pure originalist, you have to agree that Dred Scott was decided correctly at the time.
The status of originalism as the only legitimate method (or class of methods) of constitutional interpretation inheres in the very nature of the Constitution as law. As Chief Justice Marshall explained in his landmark 1803 opinion in Marbury v. Madison, the Constitution is "committed to writing" so that its "limits may not be mistaken or forgotten." To disregard its limits is to "reduce[] to nothing what we have deemed the greatest improvement on political institutions — a written constitution." (From the linked article)
But in Madison v Marbury, the Supreme Court assumed a power (judicial review) that was not in the original document, so it was not an "originalist" ruling. The other evidence that Marshall was not originalist is that he found against James Madison, who was the author of the Constitution.
Tom M: "At the time" is not what we are debating. At the time, slavery was legal and blacks were second class citzens under the law. The court made a valid decision, which was nullifed by the amendment process. That is not the case today, nor would such things result from the Supreme Court embracing Judical originalism.
Judcial review is certianly implied in Article III, section 2 of the constitution, and the concept was part of Common Law at the time.
Unless having written the Constitution gives you a right to a Federal Job in spite of having lost an election, your second point is null. Considering the original decision was about the Court refusing to enforce a federal appointment in deference to the Secretary of State.
Mike C: Most legal traditions, American included, have a concept called Analogy, which accounts for new technologies and other discoveries.
How far should this concept be taken? Using a fairly loose interpretation, one take Analogy to refer to ANYTHING new.
Anologies are an argument, and should be judged by their validity. And "how far" comes from consensus amoung jurists.
Thus in theory, if your Jurists are originalists, they would restrain their analogies to the intent of the part of the constitution in question. For example, if the First Amendment is supposed to protect the Press from the state, then it protects the press regardless of what tools the Press uses to send information.
Tom M: "At the time" is not what we are debating. At the time, slavery was legal and blacks were second class citzens* under the law. The court made a valid decision, which was nullifed by the amendment process. That is not the case today, nor would such things result from the Supreme Court embracing Judical originalism.
So you agree that under the law at the time, Dred Scott was a valid ruling. At least you are consistant in that regard. That was my only point in that paragraph.
Judcial review is certianly implied in Article III, section 2 of the constitution, and the concept was part of Common Law at the time.
Unless having written the Constitution gives you a right to a Federal Job in spite of having lost an election, your second point is null. Considering the original decision was about the Court refusing to enforce a federal appointment in deference to the Secretary of State.
My point in Madison v Marbury is that Madison, who should definitely have known his own original intent, claimed that the Constitution did not give SCOTUS the right to judicial review, not whether or not it could be justified. I agree it is justifiable by implication, by analogy with English common law, and by common sense.
At the same time, your reliance on analogy and on "implied" powers shows that you are not, nor has SCOTUS ever been, totally pure in respect to "originalism."
My own stance is to respect originalism as much as possible, but to recognize that sometimes that legislators do not always think through all of the consequences of the language they employ, or how it interacts with other laws or Constitutional principles.
That is precisely why in Ohio the so-called "marriage amendment" which specifically prohibits granting any "marriage-like" rights to unmarried couples was used by "activist" judges to reduce domestic abuse cases to simple assault when the couple was not married. It was not because the judges thought the violence was not abuse, but because of the Constitutional principle that all laws must be enforced fairly and impartially. The "originalist" intent to enforce it only against gays is simply unconstitutional.
* Actually, black citizens may have been treated as second class, but they were full citizens. Slaves were neither citizens nor even persons under the law (except for the 3/5 evaluation in the census which gave their masters more than the equitable "one man/one vote" compared to citizens in free states).
Re: Scott: Hey, just because it was originalist doesn't make it moral.
Re: Marbury: The opinions of the Founders concerning the constitution are important, and should be used as a guide, but they should not take precedence over the text itself, which is how the case worked out.
Your definition of originalism is way too narrow. An originalist can use implication or analogy, as long as it is the original intent of constitution supports the analogy or the implication. What the originalist has problems with is when you go to sources and arguments outside the constitution to resolve matters of constitutional law.
Laws were in place governing the behavior and activities of Free Blacks called Black Codes.
Oh, and one person, one vote didn't exist until the later 20th century.
Actually I don't have a definition of "originalist" (or of "activist) beyond the popular claims. I just pointed out that a claim to originalism isn't the be-all and end-all of the law. I suspect that we are closer in philosophy than you seem to believe. I do believe that the Court has been too "activist" at times, especially in the late 20th century, but that a lot of what has been claimed to be "activist" rulings have merely been logical extrapolations from either the language of the law in question, or or the Constitutional principle.
As for the details of Black history (beyond the Dred Scott ruling itself) they are a derailment of this thread that I am sorry I encouraged, and while they might be important under other circumstances, they do not affect the points involved here. (And yes, I am admitting that I do not know all the details as well as I'd like. If you want to count that as a victory, be my guest.)
Tom M: Fair enough.
John Roberts, eh? Interesting pick.
Interesting indeed. It will be interesting to see exactly which way he spins.
Spins, in *both* senses of the word
What do you mean (what's the other sense?)?
As in where does he finally end up pointing in the long run.
Oh, okay. I think Roberts is a very shrewd pick; he's conservative, but since he hasn't made many rulings, we don't know HOW conservative. He has integrity and is respected by most people. He's religious, but not of the fundamentalist Protestant movement associated with Bush. He was just appointed to the Appellate Court not three years ago, so it's hard to say he's not fit ex post facto.
I think he'll be confirmed fairly easily.
Love him or hate him, Supreme Court Cheif Justice William Rehnquist has died today at the age of 80 after a bout with thyroid cancer. Full story can be found here.
Wow, I coulda sworn I read this somewhere....
Really? This one's different. I spelled "Rehnquist" correctly this time. K
Actually, I double-posted on purpose in case anyone looked for the info on the Supreme Court board. Not to mention that Rehnquist's death could easily spark a discussion about who will now be nominated for the Court. (Though it hasn't. But then again, that discussion's already been held, hasn't it?)
Incidentally, both posts have another error. I misspelled "Chief". We regret the error.
"...but as for me, give me liberty or give me death."
On the news at USAToday there is an article where Roberts appears to be taking a more moderate view of things. Stating that he believes constitutional principles should evolve over the times. He also hinted at concern over discrimination against homosexuals.
So maybe Bush isnt getting what he wanted afterall and the people are getting what is needed. A moderate able to look at both sides of the coin.
To play devil's advocate, what would you expect Roberts to say? "I hate gays and women?"
Also, the concept of changing constitutional principles goes both ways--a lot of pro-choice people said this implies a possible changing of Roe v. Wade in the future.
For the record, I think Roberts will be a fine justice and I think he is an example of an intelligent conservative judge.
intelligent conservative judge. Ther eis such a creature? ;-)
But seriously. I know he hasn't come out and shown a real indication of either direction or even moderation totally yet. I am at least being hopeful that he isn't too conservative a judge and may still protect the rights and freedoms we have managed to wrestle from the govt and forces of evil and continue the struggle away from the totalitarian lifestyle the CT would want to impose on the country.
what would you expect Roberts to say? "I hate gays and women?"
And to answer your question there are those I would expect ananswer like that from.
Hmm...no posts here regarding Harriet Miers, Bush's latest Supreme Court nominee. She's had no judicial experience, and her main qualification seems to be that she's part of Bush's loyal inner circle. Smacks of cronyism to me.
Warren, Earl.
Baby (Oil Man) Bush picked Judge Samuel Alito to replace the retiring Justice Sandra Day O'Connor. Conservative groups already have TV ads up urging the general population to give Judge Alito a chance. IMHO, he seems to have been chosen for his views on abortion and Roe V. Wade, which the Republicans are itching to overturn. I have never caused a woman to have an abortion (although my ex-wife had two before we met) and I never will cause a woman to have one, as I'm now sterile. But, if Roe v. Wade is overturned, and abortion is made illegal, a lot of women will die from back alley butchers. I specifically remember a segment of an HBO film from 1996, If These Walls Could Talk, in which Demi Moore effectively played an ultimately doomed widow, circa 1952, who seeks one of those butchers. The ending of that segment is especially chilling.
I'm not itching for Roe v. Wade to get overturned, but the argument about "lot of women will die from back alley butchers" is frequently thrown around. Is there any evidence to support this conjecture?
Oh my god. If abortion were overturned, does this mean that people would (gulp) have to take responsibility for their own actions?
Mike, figures on such things are hard to come by, as in the time period you're referring to, abortion was... illegal. Suffice it to say, overturning Roe v. Wade would not end the demand for abortions, thus the risk for anyone seeking such a procedure would skyrocket.
However, I'm of the opinion that overturning Roe v. Wade would be incredibly foolish, as a) most of the American public supports it and b) would it ever be overturned, the left-wing would be awakened faster than you can say "whoa."
here are the Straight Dope figures.
Relevant quotes:
For 1972, the last full year before Roe, the federal Centers for Disease Control reported that 39 women died due to illegal abortion. (The death total for all abortions, including legal ones, was 88.) That figure is low, thanks to underreporting, but in any case the number of deaths had been dropping sharply for the previous few years. ...
Tietze comments in his article that "some 30 years ago [i.e., around 1940], it was judged that such deaths might number 5,000 to 10,000 per year." He gives no source, but if we turn to W. Cates et al ("Trends in national abortion mortality, United States, 1940-1974," Advances in Planned Parenthood, 1976), we find that 1,682 abortion-related deaths were officially reported in 1940. If we guess that this figure represents roughly a quarter of actual mortality due to illegal abortion, we get 6,800 deaths – somewhere below the middle of the range given by Tietze, whereas Ellen Goodman's number is at the very top. ...
Most importantly, how important an argument is the actual figure in the whole abortion debate?
None of this argues for or against abortion, ...sex researcher Alfred Kinsey estimated in the 1950s that around 85 percent of illegal abortions were performed by physicians, even if the physicians weren't all in good standing. The fact is that prior to legalization abortion had become relatively safe and easy to obtain – for those who could afford it. Studies done at the time show that the risks were borne disproportionately by those who couldn't, mostly minorities. Were abortion to be recriminalized, that would likely be the case again.
Fizzle Von Shizzle: Oh my god. If abortion were overturned, does this mean that people would (gulp) have to take responsibility for their own actions?
Luigi Novi: They already take responsibility for their actions when they choose to end the pregnancies that would either be too burdensome, expensive or dangerous to their lives. Bringing unwanted children into a world that cannnot care for them is hardly "responsible."
Yes, the women take responsibility for their own actions... when they're raped... when they find out they are going to have a severly handicapped child and know they can't cope with it financially and emotionally...
Of course, it would be better if people used birth prevention methods (pill, condom) more often, but with sex ed. being fought by Bush and the Christians, unwanted pregnancies (and therefore, abortions) are often the logical outcome.
The abortion debate is understandably but sadly divisive. I believe the key to making real headway here is to find common ground. Most people, I would say, most sane, reasonable people, do not think abortion is a good thing. Working to find ways to reduce the numbers of abortions (not necessarily arbitrarily banning it) is something we can all approve of.
MikeC that's a nice idea but saddly not the case. Many of the same groups who are aginst abortion are also aginst teaching birth control in sex-ed, aginst making birth control easier to obtain by young people and aginst the morning after pill.
But, are any of those groups against vasectomies? I had one in February, 2002, and I do not regret it. Most men are scared to get one, possibly due to some false notion of possible castration. NOTHING could be further from the truth. It cost me a $10 co-pay, and about three or four hours of my life. The only problem I had, and it's an excruciatingly minor one, was a slight burning sensation when I was injected with an antibiotic. The anaesthetic itself was very effective, and gave me a nice buzz afterward; about the equivalent of three beers. Which is why the doctor doing the procedure insists you don't drive to and from the doctor's office, but arrange for a ride home. If anyone has questions about vasectomies, e-mail me at the link in the "By" box.
Some are. The cathlic church believes that God said to be fruitful and multiply and if you use condoms, birth control pills, or sergical means to avoid a pregnancy comming from the encounter you are sinning.
I personally would like to never see abortion outlawed but I would like to see it replaced as the prime choice for many women.
Either by developing technology to transplant the embreyo, grow it artificially outside the body, education on prevention methods and ease of access of prevention methods (There has been research into a male pill, so far nothign really useful that I have heard about) and generally try and change the social and religious outlook on what is an intensely private and personal decision for a person. Who in many cases is already going through some major emotional trauma.
The Supreme Court Agreed to hear the case on the Federal Partial Birth Abortion ban. While being agaist abortion in general and dialation and exaction in specific, I think the likely decision is one saying this exceedes the General Government's power, which is a very Federalist answer.
Which while I will agree that late term is bad as it is pushing the limits of viable birth as technology progresses having the federal government grab power like this is not a good thing either. In this at least it is a lose-lose scenario. Although it is good in that it will not be a springboard for the Christian taliban to try and get rid of all abortion.
Newly appointed Supreme Court Justice Samuel Alito has written a letter of thank you to Dr. James Dobson of Focus on the Family, and to his readers and radio listeners for their support during the confirmation process.
"As I said when I spoke at my formal investiture at the White House last week, the prayers of so many people from around the country were a palpable and powerful force," Alito said in the letter.
"As long as I serve on the Supreme Court I will keep in mind the trust that has been placed in me."
On his radio show Wednesday Dobson read Alito's letter and told listeners that their support had "affected history" by helping put Alito on the court.
.......
“He’s not sounding like a fair and independent judge,” Barry Lynn, the organization's executive director, told the Colorado Springs Gazette. Focus on the Family is based in Colorado Springs.
Lynn said the note can be interpreted as a pledge to rule as Dobson wants on key issues, such as gay marriage, abortion and church-state separation.
“This strongly suggests Alito is going to do just what he was entrusted to do - change the law dramatically in many key areas,” said Lynn, whose group, and all national LGBT rights groups, opposed Alito’s nomination.
Anyone see the picture of Ruth Bader Ginsburg falling asleep at yesterday's hearing on Texas redistricting? Hilarious!!
Very interesting, refreashing and wonderful to see that. I especially love this quote: "without an independent judiciary to protect individual rights from the other branches of government those rights and privileges would amount to nothing."
Monday, 1/22/07, is the 34th anniversary of Roe V. Wade, and at church today, the priest sure made mention of it. What he failed to mention (in fact, it's never been spoken of by any priest I've ever heard) is that the Jane Roe of the case, Norma McCorvey, never had the abortion, as the case took so long (three years) to go through the courts, she wound up giving birth. In fact, she had three children total. She is now 59 years old, and a prominent anti-abortion figure.
Whoa...Obama may face TWO court vacancies???
This Spring. But they are not going to change the political balance by much. Still, he has a few more years, there very well may be other nominations
Suspects must speak up to claim their Miranda rights, according to the Court.
So to remain silent, you can't be silent. Isn't the Law wonderful?