Editore"s Note
Tilting at Windmills

Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

January 9, 2006
By: Kevin Drum

ALITO THREAD....Atrios and Dan Drezner both have basically the same idea: to keep ourselves awake during the Alito hearings, we should be on the lookout for the stupidest and/or most pompous phrase uttered by a United States senator. The winner either gets a prize or gets pleasantly blitzed.

That's probably OK for today, but I have a different idea for the balance of the hearings: take a drink every time Alito claims he can't answer a question because it might prejudice his opinion in a future case. There's only one problem with this game: you won't just end up drunk, you'll probably end up lying face down in a gutter dead from alcohol poisoning.

In a remarkable evolution of democracy, we have now entered an era in which candidates for the Supreme Court are allowed to glide through their hearings without once giving a straight answer about anything having to do with the laws or constitution of the United States. After all, Supreme Court justices might conceivably rule on anything in the future. It's yet another sign that the separation of powers envisioned by the founders has slowly morphed into a de facto parliamentary system except without any of the institutional means of accountability normally built into a parliamentary system. Someday Congress is going to regret that.

Kevin Drum 2:31 PM Permalink | Trackbacks | Comments (121)

Bookmark and Share
 
Comments

AmBlog:

The far right wants us to believe that Supreme Court nominee Alito is similar to Ruth Bader Ginsburg. Even though everyone knew Ginsburg was a liberal, she was passed by a vast majority in the Senate. They are both in the mainstream of judicial philosophy, the far right says. So Alito deserves the same treatment because he's "qualified."

So why is Alito so ashamed of his entire career?

Ginsburg IS in the mainstream of judicial philosophy, even though she's clearly a strong liberal. But she never pretended to be anything else. And everything on Ginsburg's resume was something she was proud of. Every group she belonged to, every organization she worked for, every position she staked out on the issues of the day and every promise she made reflected who Ruth Bader Ginsburg was, what she stood for and what she believed in.

Did she insist you shouldn't read anything into her work for the ACLU? Of course not; she was proud of that work. Did she insist you shouldn't read anything into her activism over the years, her push for equality among the sexes? Don't be absurd. Did she break her word on solemn pledges made before the Senate? Never.

Nothing could be further from the truth for Alito. He is apparently ashamed of everything he's ever done. Alito boasted on an application for promotion in the Reagan administration about belonging to the racist, Neanderthal-ish Concerned Alumni For Princeton. Now he pretends he can't remember ever belonging to them at all.

Alito said he wanted to become a lawyer because he was so distraught about Supreme Court rulings that led to "one person, one vote," a cornerstone of our modern democracy. Now, he says we should ignore his consistent, persistent attacks on affirmative action.

Alito also cannily helped to devise the incremental approach to dismantling Roe v Wade that has been the very tactic the far right has used. Now Alito says to ignore all that.

Alito has repeatedly proven he believes the president is more like an emperor -- someone who deserves almost unlimited deference from the Supreme Court, especially during a time of war.

Finally, Alito pledged to the Senate that he would recuse himself under certain situations as a federal judge. He repeatedly broke that pledge. His excuses vary: he forgot, the computers shouldn't have assigned him those cases in the first place, he never HAD to recuse himself, and finally he never promised he would recuse himself forever. The reasons change, but the fact remains: Alito gave his word and then he broke it. He can't be trusted.

Since Alito is so clearly ashamed of himself, shouldn't we be ashamed of him and keep him off the Supreme Court?

Posted by: Gore/Obama '08 on January 9, 2006 at 2:33 PM | PERMALINK

This is a variation of a game invented by Dahlia Lithwick of Slate for the Roberts hearings.

I suppose imitation is the most sincere form of flattery.

Posted by: hey on January 9, 2006 at 2:33 PM | PERMALINK

What's worse is that everyone involved knows the answers to the unanswered questions perfectly well. It's all a complete farce.

The only surprise is for the idiot electorate 5+ years down the road...

Posted by: cdj on January 9, 2006 at 2:38 PM | PERMALINK

Atrios and Dan Drezner both have basically the same idea: to keep ourselves awake during the Alito hearings, we should be on the lookout for the stupidest and/or most pompous phrase uttered by a United States senator.

Every time Edward Kennedy opens up his mouth he says something stupid. *Snicker*

In a remarkable evolution of democracy, we have now entered an era in which candidates for the Supreme Court are allowed to glide through their hearings without once giving a straight answer about anything having to do with the laws or constitution of the United States.

Why weren't you complaining about it when leftists like Ginsburg and Breyer were appointed? HYPOCRITE.

Posted by: Al on January 9, 2006 at 2:41 PM | PERMALINK
In a remarkable evolution of democracy, we have now entered an era in which candidates for the Supreme Court are allowed to glide through their hearings without once giving a straight answer about anything having to do with the laws or constitution of the United States. After all, Supreme Court justices might conceivable rule on anything in the future. It's yet another sign that the separation of powers envisioned by the founders has slowly morphed into a de facto parliamentary system

Er, no. Parliamentary systems are over there (waves off in the direction of London), executive dictatorships are over here (waves at Washington).

A system in actions which are Constitutionally assigned to the executive and a legislative body where the legislative body's substantive review role has atrophied from disuse is not an indication of sliding into anything like a "parliamentary" system, but rather the opposite.

Posted by: cmdicely on January 9, 2006 at 2:42 PM | PERMALINK

God damn you Kevin, you should be kept awake during the hearings by the desperate need for liberals to create a compelling, clear and concise vision of the Constitution to compete with "no individual rights not explicitly in the Constitution, no limitations on Presidential power not explicitly in the Constitution."

I'm a lawyer. I was a ConLaw TA. Anything I come up with will be too damn legalistic. We need non-lawyers like YOU.

Posted by: Max on January 9, 2006 at 2:44 PM | PERMALINK

Potential Employer: Please tell me what your opinion of the Windows XP operating system is.

Candidate: Well, I can't really answer that, because I might have to use such a system when I work here, and I wouldn't want you to think I had prejudged the work before I was assigned it.

Employer: Good bye. Don't call us, we'll call you.

Yet strangely, at the highest levels of law and government, this is what we are now supposed to accept.

Posted by: craigie on January 9, 2006 at 2:45 PM | PERMALINK

I'm not a legal scholar, but I'm equally surprised that they are so reluctant to comment on what they might decide. The key word, of course, is might.

After all, wasn't Souter selected with the idea that he might overturn Roe v. Wade? Yet, that's the opposite of what happened.

So I ask, why is it out of bounds for them to say, "Listen, I would probably do this for this reason if such a case came up, but since there are so many different factors, I can't guarantee everything?" I can't think of any good reason why not, particularly when it's not the biggest shock in the world that the judges the Republicans pick are, in fact, likely to overturn a ruling like Roe v. Wade.

Posted by: Brian on January 9, 2006 at 2:46 PM | PERMALINK

Why weren't you complaining about it when leftists like Ginsburg and Breyer were appointed? HYPOCRITE.

Al's last name is TuQuoque.

Posted by: cleek on January 9, 2006 at 2:47 PM | PERMALINK

The Dems have to keep their powder dry!
Why? Why -- to make sure they get invited to all the good parties in DC!

Government has no consequences....

Posted by: Gore/Obama '08 on January 9, 2006 at 2:53 PM | PERMALINK
Why weren't you complaining about it when leftists like Ginsburg and Breyer were appointed?

I don't know about Kevin, but I've been complaining about the Congress shirking its duty in both the Senate's approval of (particularly judicial) nominees without adequate substantive questioning and the whole Congress's approach to issues of war since I was in High School.

Posted by: cmdicely on January 9, 2006 at 2:54 PM | PERMALINK

God damn you Kevin, you should be kept awake during the hearings by the desperate need for liberals to create a compelling, clear and concise vision of the Constitution to compete with "no individual rights not explicitly in the Constitution, no limitations on Presidential power not explicitly in the Constitution."

Perfectly put. I don't usually jump on the lambaste-Kevin-for-his-lack-of-wild-eyed-passion bandwagon, but this is a bit rich. Could you at least try to pretend like this stuff matters, Kevin? Because, you know, it does.

Posted by: shortstop on January 9, 2006 at 2:54 PM | PERMALINK

No system of government can be better than the people that use it. Any tool can be misused.

Posted by: Michael7843853 GO in 08! on January 9, 2006 at 2:56 PM | PERMALINK

Hey, the Repugs gave Bush's first nominee for this vacancy a fair hearing and a staight up-or-down vote, so the Dems can do the same!

And it isn't as though Alito has LIED to the Senate before!

Posted by: Gore/Obama '08 on January 9, 2006 at 2:56 PM | PERMALINK

My favorite so far:

Hatch: (roughly) Since you're a baseball fan, I'm confident you'll be a good judge.

I almost spit up my coffee on that one.

Posted by: gq on January 9, 2006 at 2:58 PM | PERMALINK

Kevin: "Someday Congress is going to regret that."

I have a feeling the rest of us are going to regret it even more.

Posted by: Taobhan on January 9, 2006 at 3:01 PM | PERMALINK

Rashi Fein, writing in the Boston Globe about the Meirs nomination, had a good idea for questioning potential Supreme Court justices: Ask them to comment on the quotations engraved on the side of the federal courthouse in Boston.

How to question Harriet Miers
By Rashi Fein | October 14, 2005

A FEW DAYS ago I had occasion to visit the John Joseph Moakley United States Courthouse in Boston. The building is adorned with numerous inscriptions: the preamble to the US Constitution; the First, Fourth, Sixth, and 14th Amendments; excerpts from the constitutions of Puerto Rico, Rhode Island, Massachusetts, New Hampshire, and Maine, and great quotations carved in stone.

I stopped to read and think about the two inscriptions at the entrance stairways of the courthouse, one by Justice Louis D. Brandeis, the other by Justice Oliver Wendell Holmes. I then walked through and around the building and read others.

All of them, from the first by John Adams in 1776 to the last by Justice Stephen Breyer in 1991, are deeply moving. They are part of our rich history and legal tradition, a ''democratic conversation," in the words of the courthouse brochure. And so I offer a suggestion: Suppose the members of the Senate Judiciary Committee were to spend less time asking questions a nominee to the Supreme Court would either choose not to answer, deem ''inappropriate," or just plain evade. Suppose instead they were to engage with the nominee in a conversation about the quotations from Boston's federal courthouse. Wouldn't the members of the committee and we, the public, learn more about the nominees' views than we do from questions that go unanswered?

Just over there, at the entrance stairway, is a statement by Oliver Wendell Holmes, made in 1881 before he was elevated to the Supreme Court: ''The life of the law has not been logic: It has been experience." And from the brochure, we learn that Holmes went on to say, ''In order to know what [the law] is, we must know what it has been and what it tends to become." In Holmes's view, then, the law is alive and ever-changing.

Does Harriet Miers stand with Holmes or does she find his statement wanting, thinks Holmes ''too activist" a justice? Let's talk that through with Miers.

And let's have a look at the words of Justice Louis D. Brandeis and talk about the role of the Executive Branch and the application of executive power. Here is what he said in 1914: ''Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole world by its example." Brandeis, the brochure notes, went on to say, ''In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously" and ''if the government becomes a lawbreaker, it breeds contempt for law . . ." Does that statement inform our discussion about the application of the Geneva Convention and, if so, how?

Or we might focus on and discuss what Justice Frankfurter in 1951 wrote, in words that some would argue apply to ''enemy combatants" and others: ''No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it." He went on to emphasize that ''the validity and moral authority of a conclusion largely depend on the mode by which it was reached" and, as the brochure states, ''He warned that a fair process is especially critical 'at times of agitation and anxiety, when fear and suspicion impregnate the air we breathe.' " Does Miers agree with Justice Frankfurter? If not, how would she amend his statement?

There are more than 30 engravings on the Moakley Courthouse. Every one is both a witness to and a maker of history. It would be useful for the US Senate to know what Miers thinks about those statements, statements that the designers of the courthouse considered significant to the understanding of the role of law and the pursuit of justice.

In the jury assembly hall of the courthouse are inscribed the words of Justice Brandeis: ''Those who won our independence believed . . . that the greatest menace to freedom is an inert people; that public discussion is a political duty and that this should be a fundamental principle of the American government."

Applying those words in the forthcoming hearings would enable the citizenry to listen to the discussion and to be educated in the issues involved. Such a ''democratic conversation" would be invaluable, far more useful and instructive than yet another round of predictable questions and equally predictable responses.

Rashi Fein is professor emeritus of the economics of medicine at Harvard Medical School.

Posted by: Tom Parmenter on January 9, 2006 at 3:03 PM | PERMALINK

Sen., Lindsay Graham suggests that Pres. Bush's election was a mandate to appoint judges. Do exit polls or other post-election polls support Sen. Graham's notion? How many voters in 2004 actually had the courts in mind as they cast their votes?

Posted by: yesh on January 9, 2006 at 3:08 PM | PERMALINK

We're wasting bits even discussing this.

Alito will be confirmed.

Roe v Wade WILL be struck down.

There is nothing Dems can (or will) do to stop this. There's only one hope: if they can get Republicans to defect. Republicans are so terrified right now over the bribery scandals, they need to stick together to tap into the religious fanatic base.

On the bright side, Democrats will have a reason to vote for Dem congressmen again. So this might actually help us in 06. Even if our daughters are all going to be killed in back-alley abortions.

Posted by: Osama_Been_Forgotten on January 9, 2006 at 3:14 PM | PERMALINK

Why weren't you complaining about it when leftists like Ginsburg and Breyer were appointed? HYPOCRITE.

Possibly because he wasn't blogging then. DUMBASS.

Posted by: Monstertron on January 9, 2006 at 3:16 PM | PERMALINK

I'm of the opinion that the Left's misplaced devotion to solving heated political questions through the Court has lead, inexorably, to this situation. As judges have garnered more and more power to decide hot-button political issues instead of cases before the bar, it is a natural reaction to ask more questions about more hot-button political issues that are likely to reach the Court.

So the battles over nominees become ever more important and ever more meaningless. Next time try winning political debates through political channels instead of through the judiciary.

Hoisted on your own petard, as they say.

(And the excesses of a too Right-leaning Court will produce poor results -- just like the Left-leaning one did. Sadly.)

Posted by: Birkel on January 9, 2006 at 3:19 PM | PERMALINK

led, you probably mean.

Posted by: Kenji on January 9, 2006 at 3:27 PM | PERMALINK

yesh,

I think the document that supports the idea that Presidents get to select judicial nominees rests with the Constitution.

Just a guess!

Posted by: Birkel on January 9, 2006 at 3:29 PM | PERMALINK

"Next time try winning political debates through political channels instead of through the judiciary."

Who are you addressing? "The left?" Is there a governing body of their actions? Whose plan was it to address debates "through the judiciary", the International-Pro-Civil-Rights-Pro Regulation Federation, and it's acting President, Mr. Lefty Lefterson?

Everything's so simple with a stupid, artificial dichotomy, isn't it?

I blame all the bad people.

Posted by: clockwork on January 9, 2006 at 3:35 PM | PERMALINK

So what if Roe is overturned? Nearly every state in the union will maintain abortion rights at a level used in 95% of abortions and some states will have laws that are completely unchanged in such an event. As Democrats, you should be hoping for such an overturning since it will cause Republicans more problems than Democrats, while having the additional benefit of placing the issue where it truly always belonged- in the legislative arena. Roe v Wade is no better a decision than a hypothetical court decision that banned abortion altogether.

Posted by: Yancey Ward on January 9, 2006 at 3:35 PM | PERMALINK

Birkel: Next time try winning political debates through political channels instead of through the judiciary.

Perhaps you should review the role of the courts instead.

Posted by: Advocate for God on January 9, 2006 at 3:37 PM | PERMALINK

Birkel: Next time try winning political debates through political channels instead of through the judiciary.

Pretty rich from a guy whose hero obtained the presidency through the courts and not the political process.

Posted by: Advocate for God on January 9, 2006 at 3:38 PM | PERMALINK

Kenji,

Thanks for the correction.

Posted by: Birkel on January 9, 2006 at 3:39 PM | PERMALINK

Yancey Ward,

I've always said that Roe was a bad decision and that abortion laws should be up to state legislatures (abortion was legal here in NY before Roe).

I'm Hugo Black fan myself. Overly creative SCOTUS decisions can cut both ways, and substantive due process was way overused long before Roe. See Lochner v. NY.

Posted by: alex on January 9, 2006 at 3:42 PM | PERMALINK

Oh, my. Can we just chill for few moments? Then look at every opinion Alito has signed onto, ever. Then look at the laws state majorities could not enact were Alito's opinions (in memos as well as opinions) made Constitutional law. (Leave aside for the moment that they would not actually become law without four other Justices agreeing with him.)

Are there any? I did not find any, but possibly I didn't look hard enough.

Posted by: waterfowl on January 9, 2006 at 3:42 PM | PERMALINK

try winning political debates through political channels instead of through the judiciary.

Birkel, whenever we do then the Right shouts, "Why don't you bring the issue to the voters, instead of having the legislature decide?" When the Left does things that way and the voters support the Liberal position the Right bitches about it anyway.

But I'm still wondering what these aweful judicial decisions have been that got conservatives all tied up in knots.

What's wrong with equal rights and the right of the individual to choose what medical proceedures she deems necessary?

Posted by: Dr. Morpheus on January 9, 2006 at 3:43 PM | PERMALINK

Advocate for God,
You may wish to check the record of who sued for the recounts in Florida after the Sec. of State certified the results in favor of then-Gov. Bush.

Furthermore, I don't think you know what the role of the Court is to lecture me on it. Just a guess.

clockwork,
Blame who you like but it's typically the Left who turns to the Courts. Think Michael Newdow. Think partial birth abortion, aka partial dialation and extraction (which is widely disfavored in public opinion polls). Think parental notification for minors seeking abortions. Think poasifaphifuhnfiewufn

Sorry fell asleep going through what is a long and well-known list.

Posted by: Birkel on January 9, 2006 at 3:47 PM | PERMALINK

So what if Roe is overturned? Nearly every state in the union will maintain abortion rights at a level used in 95% of abortions and some states will have laws that are completely unchanged in such an event. As Democrats, you should be hoping for such an overturning since it will cause Republicans more problems than Democrats, while having the additional benefit of placing the issue where it truly always belonged- in the legislative arena.

Yes, you guys keep telling us how groovy it will be for Dems when Roe goes down and nothing changes except Dems' suddenly-booming approval ratings. And yet, if I'm not mistaken, Republicans in 20-odd GOP-held state legislatures have legislation outlawing or severely restricting abortion written up and ready to go. If I'm wrong about this, I'd sure like to be corrected.

Now, we can have a discussion about whether or not overturning Roe is a good thing or a bad thing. We can even discuss whether people having to travel hundreds and thousands of miles for an abortion is an undue burden (Alex, who lives in a firmly blue state, doesn't seem to think so). But for cryin' out loud, you guys need to drop this line about "almost all" states retaining the same access they have today. It's just garbage.

Posted by: shortstop on January 9, 2006 at 3:48 PM | PERMALINK

In a remarkable evolution of democracy, we have now entered an era in which candidates for the Supreme Court are allowed to glide through their hearings without once giving a straight answer about anything having to do with the laws or constitution of the United States.

That's the way it started out, and that's the way it almost always has been. Not one of the justices who decided Roe v. Wade was asked his opinion on abortion -- to pick just one example. Officers of the defeated Confederate army were confirmed to the SC without being asked to comment on Dred Scott or the 14th ammendment as it applied to the drawing of congressional district boundaries.

In view of restrictions on payment for political and commercial speech, I wonder if you could pass a law prohibiting payment for abortion. I doubt that a right to "privacy" covers the collection of a fee for service in a commercial establishment. But that's a topic for a different thread.

Alito will be confired, and the Democrats who filibustered Bolton and the SC nominees during the Schiavo episode will be laughing-stocks. After Alito is confirmed, Bolton will be confirmed.

Posted by: contentious on January 9, 2006 at 3:48 PM | PERMALINK

cmdicely, if Roe is overturned, you'll be able to re-visit the proposition that it makes no difference, in terms of individual freedom, as to whether national government, as opposed to state government, has the power to regulate various activities. My view is that Congress has no constitutional authority to regulate abortion, but I suppose that is merely a laughable concern, in your words, in terms of human freedom.

Of course, people who have voted with their feet, and there are millions of them, may beg to differ.

Posted by: Will Allen on January 9, 2006 at 3:50 PM | PERMALINK

Liberals, who spent so much time and effort building up the judiciary and - more importantly - cutting down other institutions in society, have only themselves to blame if this turns around and bites them.

It should have been obvious that there is nothing inherently liberal ( in any sense ) about the courts, the judiciary, or the rule of law.

In the exercise of ordinary care, liberals should have taken measures to ensure there policies would endure even given some potential righward turn in the judiciary.

Posted by: Thinker on January 9, 2006 at 3:52 PM | PERMALINK

I hate to think how much more pissed I would be if I weren't menopausal and hadn't had my abortions years ago before the wing-nuts came into power.

And thank fucking god my daughter is a lesbian!

Posted by: diane on January 9, 2006 at 3:57 PM | PERMALINK

Alito won't make a difference either way on Roe--it was upheld 6-3 in the Casey decision.

Republican anti-choice zealots will have to join Pat Robertson in praying that one of the other pro-choice justices dies or gets a terminal disease.

Posted by: Ringo on January 9, 2006 at 4:10 PM | PERMALINK
Blame who you like but it's typically the Left who turns to the Courts.

Insofar as that is true at all, it is because it is typically the Right that fails to follow the established law (whether Constitution or statute or otherwise) and forces resort to the courts to give effect to the law already established through the political process intended to resolve contentious political issues.

Posted by: cmdicely on January 9, 2006 at 4:13 PM | PERMALINK

Thank you for supporting us in our fight for freedom. I'm in Iraq as we speak and I'll make it home safe and soon. Again, we are thinking of you all and Thanks!
Justice Bailey/PFC/U.S.Army, Newnan, Ga.

Posted by: Justice Bailey on January 9, 2006 at 4:19 PM | PERMALINK

2006 is shaping up as the year the Bush Administration will be forced to bring the men and women of the US Armed Forces home from the unjust and deadly occupation of Iraq.

Posted by: david on January 9, 2006 at 4:20 PM | PERMALINK
cmdicely, if Roe is overturned, you'll be able to re-visit the proposition that it makes no difference, in terms of individual freedom, as to whether national government, as opposed to state government, has the power to regulate various activities.

Why are you directing this at me? It seems tangentially, but only so, related to a comment I made on a previous thread.

My view is that Congress has no constitutional authority to regulate abortion, but I suppose that is merely a laughable concern, in your words, in terms of human freedom.

I fail to see what your view of Congress's constitutional authority (or the absence of same) to regulate abortion has to do with anything that I've said, or anything discussed in this thread.

But if one grants, as presumably an overturn of Roe (Doe, Casey, etc.) of the type you prefer would, that states have a plenary authority to regulate abortion, it certainly makes no difference in terms of the freedom of actual individual humans whether one level of government (state) has such authority or whether another (federal) would.

Of course, under the established case law, neither state or federal governments have much power to regulate abortion, so overturning Roe and allowing either the state or federal government power to regulate abortion substantially would have a substantial negative effect on individual human freedoms.

Of course, people who have voted with their feet, and there are millions of them, may beg to differ.

WTF are you talking about?

Posted by: cmdicely on January 9, 2006 at 4:22 PM | PERMALINK
As judges have garnered more and more power to decide hot-button political issues instead of cases before the bar...

Er, judges have zero power to decide hot-button political issues except insofar as they are encapsulated in cases before the bar. So, as the premise is clearly faulty, we need not examine your argument further.

Posted by: cmdicely on January 9, 2006 at 4:24 PM | PERMALINK

shortstop,

Supporting an end to abortion is an easy position for any Republican candidate to take since there is nothing he/she can actually do about it in state legislatures, and voters know it. There is a significant fraction of voters who vote Republican who are pro-choice (myself among them). As of this moment, I don't care about a particular candidate's position on abortion since it is irrelevant. I and others will take it into account should Roe be overturned, and the candidates will modify their positions based on this reality. I don't doubt that there are a few states that will outlaw abortion in most circumstances, but already those states have almost no abortion services today with Roe v Wade in effect.

Posted by: Yancey Ward on January 9, 2006 at 4:29 PM | PERMALINK

"Of course, people who have voted with their feet, and there are millions of them, may beg to differ."

I tried to vote with my feet last time, but I fell out of the booth trying to stand on my hands that long. I blame Diebold.

Posted by: booger on January 9, 2006 at 4:31 PM | PERMALINK

In the exercise of ordinary care, liberals should have taken measures to ensure there policies would endure even given some potential righward turn in the judiciary.

The whole point of the judiciary is to protect individuals, and their rights, from the majority. Given that the law making channel, the legislature, is by definition governed by the majority, what measures would you suggest?

Posted by: tinfoil on January 9, 2006 at 4:34 PM | PERMALINK

You may wish to check the record of who sued for the recounts in Florida after the Sec. of State certified the results in favor of then-Gov. Bush.


Hmmm,

Bush v. Gore (00-949). Opinion [ Per curiam ], Concurrence [ Rehnquist ], Dissent
... GEORGE W. BUSH, et al., PETITIONERS v. ALBERT GORE, Jr., et al. ...


It seems George brought the suit. So what's your point? Oh, that's right, you don't have one.

Typical.

Posted by: Dr. Morpheus on January 9, 2006 at 4:34 PM | PERMALINK

Blame who you like but it's typically the Left who turns to the Courts.

Um. Maybe because the left thinks that everybody's rights should be protected whether the "majority" thinks so or not?

Or, to put it another way, the rights granted by the constitution are granted to *everybody*, whether they are a minority or not. Under the constitution, the rights of the minority aren't subject to the will of the majority. If the left goes to the courts more often, it's because the right seems to forget that more often.

Posted by: KarenJG on January 9, 2006 at 4:38 PM | PERMALINK

Amidst all this whining about activist judges, I'd like to defend 3 "activist" rulings:

1) Brown vs. the Board of Education. Broke the Pressey precedent - any objections?

2) Miranda ruling. Forced police to give everyone their rights. Yes a few people got off, but do any commentators think that was a bad idea?

3) One man - one vote. Any deep moral objections to getting rid of lop-sided districts that let minorities rule. (minority as in less than the majority, BTW)

Those were activist rulings, but they all pushed this country towards attaining some of the basic goals enshrined in the Constitution and Declaration of Independence. And yes, I don't have any objections to the court looking at both documents for guidance, not just the constitution.

Posted by: Samuel Knight on January 9, 2006 at 4:45 PM | PERMALINK

Cmdicely, you recently asserted...

"But to try to make a big deal about "freedom" over the fact that powers traditionally held and exercised vigorously by one level of government are now being taken and preempted by a higher level of government is laughable."

...which ignores those circumstances in which the higher level of government exercising a power negates the ability of citizens to avoid the exercise of said power by re-locating to a polity in which no such power is exercised . If a majority on the Court shifts on Roe, it will matter intensely whether a majority holds to the opinion that although Roe may be incorrectly reasoned, Congress has no authority to regulate abortion. No doubt there are some in Congress who will attempt to do so, and if they succeed, the fact that such a power has been successfully asserted by the highest legislative body will not be, in your words, a laughable matter to those women who desire abortions in states which do not heavily regulate the procedure. Allowing people to vote with their feet can often be an effective method of preserving freedom, which is why it distinctly is not a "laughable" matter as to whether higher levels of government take on greater powers to regulate behavior, powers that previously had only been asserted by lower levels of government.

Mind you, I oppose all regulation of abortion, while maintaining that it matters quite a bit as to whether Congress or a state legislature is trying to assert such power.

Posted by: Will Allen on January 9, 2006 at 4:47 PM | PERMALINK

Amidst all this whining about activist judges, I'd like to defend 3 "activist" rulings:

Gasp! He broke our code!

Posted by: Just-Us Sunday (No Non-Uncle Toms Allowed) on January 9, 2006 at 4:51 PM | PERMALINK

I really don't understand the conservatives saying that there is a "liberal" judiciary. Haven't most of the current judges been appointed by Republican presidents.

Posted by: gq on January 9, 2006 at 4:52 PM | PERMALINK

I really don't understand the conservatives saying that there is a "liberal" judiciary.

it's just more working-the-ref from those whiny-ass crybaby bitches.

Posted by: cleek on January 9, 2006 at 4:56 PM | PERMALINK

I've written at length on the so-called "Ginsburg standard," which can be viewed at http://heuriskein.blogspot.com

Posted by: Tom Orange on January 9, 2006 at 5:01 PM | PERMALINK

"we have now entered an era in which candidates for the Supreme Court are allowed to glide through their hearings without once giving a straight answer about anything having to do with the laws or constitution of the United States."

Was there really a previous era when candidates did give such answers? If so, can anyone provide cites?

I believe that prior to Bork, nominees were confirmed as long as they were qualified -- a standard easily met by Roberts, Scalia, Ginsberg and Breyer.

Posted by: David on January 9, 2006 at 5:07 PM | PERMALINK
...which ignores those circumstances in which the higher level of government exercising a power negates the ability of citizens to avoid the exercise of said power by re-locating to a polity in which no such power is exercised.

Given that most citizens can relocate outside of even states only at considerable expense and difficulty, I don't think its unreasonable to hold that a "leave the state to avoid the exercise of power" situation is substantially similar to a complete deprivation of the right, though it does compound that by being unequal and selective rather than equal and universal.

If a majority on the Court shifts on Roe, it will matter intensely whether a majority holds to the opinion that although Roe may be incorrectly reasoned, Congress has no authority to regulate abortion.

It will matter, of course, in practice because the actual exercise of the power will be different in each case, not because of inherent features of the level at which it is exercised. Because if Congress has authority to regulate abortion, it will also be able to preempt more restrictive state laws, and therefore the durable national pro-choice majority will, even through the distorting lense of Congress' disproportionality, probably be able to largely hold the line on the status quo nationally (with perhaps a brief interregnum), whereas lasting abortion bans are more likely in some states if Congress does not have the power to act nationally.

Allowing people to vote with their feet can often be an effective method of preserving freedom, which is why it distinctly is not a "laughable" matter as to whether higher levels of government take on greater powers to regulate behavior, powers that previously had only been asserted by lower levels of government.

As long as the US doesn't impose emigration controls, people will always be allowed to vote with their feet. But even state level controls deny a vast swath of the population the practical ability to vote with their feet.

Posted by: cmdicely on January 9, 2006 at 5:12 PM | PERMALINK

The Roe v Wade issue is dead, Big pharma has a pill,If R v W is struck down oh well it don't make a bit of diffrence,Beside the gov.going in and looking at your med records( Which we can thank Rush for fighting that battle for us.)abortion pills can be gotten from many sources.I'm more worried about presidential power abuse.

Posted by: scott on January 9, 2006 at 5:13 PM | PERMALINK

The whole point of the judiciary is to protect individuals, and their rights, from the majority. Given that the law making channel, the legislature, is by definition governed by the majority, what measures would you suggest?

This is the sort of nonsense I was referring to. There is nothing, nothng about the judicial function that necessarily serves to protect individuals.

Insofar as recourse to the judiciary has been used to advace chronically unpopular hot button social issues, this activity has served to retard economic justice, which could command majority support.

Various social issues could be pursued on state and local levels. And it is past time the Church and other non-governmental social institutions started providing healthcare and other services.

Posted by: Thinker on January 9, 2006 at 5:14 PM | PERMALINK
3) One man - one vote. Any deep moral objections to getting rid of lop-sided districts that let minorities rule. (minority as in less than the majority, BTW)

You mean, of course, other than those in the US Senate, to a lesser extent the US House of Representatives, and, as a consequence of both of those, the electoral college, which allow the minority (even the losing side of a plurality win) to rule the federal government, if their support is concentrated in the less-populous states.

(Which really is a better argument for decentralization of government power in the US than any abstract concerns about different levels of government -- the argument that US federal government is concretely far less democratic than it requires the state governments to be, and therefore should not be entrusted with any important power that can practically be devolved to the states. Of course, the natural response is that the best solution to that problem is fixing the federal government, since the powers that are clearly not practically devolvable -- including, but not limited to, national defense and foreign relations -- are important enough that you want them done right, which includes, in a government of, by, and for the people, democratic accountability.)

Posted by: cmdicely on January 9, 2006 at 5:19 PM | PERMALINK

Here's a question I've always had about that whole "prejudging future decisions" thing. When SC judges make decisions while on the Court, aren't they also prejudging how they would handle a similar case in the future? In other words, if Thomas and Scalia have already gone on record in an abortion-related case 10 years ago, haven't they prejudged how they would respond to an abortion-related case in the future? Should they recuse themselves from an abortion-related case in the future because they've already offered their opinions regarding the fundamental law at issue? So why shouldn't a judicial nominee be allowed to state where he or she would rule, or would have ruled in a particular case? Would their "prejudging" of a future case be any different than what Scalia and Thomas (or Breyer and Stevens on the other side) have done while on the bench? There seems to be something fundamentally wrong with this whole excuse to dodge confirmation questions, and I don't know why Ginsburg did it either, BTW.

Posted by: Elrod on January 9, 2006 at 5:25 PM | PERMALINK

Before Roe v. Wade large states repealed their abortion regulations: New York, Illinois, Florida, Texas, California.

Since Roe v. Wade, abortions have become unavailable in numerous states because doctors refuse to perform them: S. Dakota, N. Dakota.

There are about 1.1 million abortions per year performed in the US nowadays. I doubt that overturning Roe v. Wade would eliminate even 1% of the abortions performed in the US, but it would be nice if the late-term abortions could be eliminated.

Another question: If privacy is the basis of the right to abortion, how can there be restrictions on who performs them, or the cleanliness of the rooms in which they are performed? How can a state pass a law that requires taxpayers to pay for an abortion if it is a private matter?

Posted by: contentious on January 9, 2006 at 5:28 PM | PERMALINK

There is nothing, nothng about the judicial function that necessarily serves to protect individuals.

Except the fact that I can challenge a law that I believe violates my rights as an individual.

Various social issues could be pursued on state and local levels.

No, they can't. That's the whole point. The idiots in my town could pass a law banning redheads. What recourse would I have beyond the courts?

Posted by: tinfoil on January 9, 2006 at 5:29 PM | PERMALINK
Was there really a previous era when candidates did give such answers?

Yes.

If so, can anyone provide cites?
I believe that prior to Bork, nominees were confirmed as long as they were qualified -- a standard easily met by Roberts, Scalia, Ginsberg and Breyer.

The myth that prior to Bork confirmation hearings were largely a simple matter of reviewing a candidates resumes seems popular -- an example fo successful Republican propaganda starting at the time of the Bork fight that that fight was "unprecedented". But its not true -- the first notable counterexample being the Rutledge confirmation battle in 1795, where George Washington's nominee failed to be confirmed, not because of judicial qualifications, but his prior political position on the Jay Treaty.

And there were many contentious fights centered around ideology and politics, rather than objective qualifications, in the 19th Century. The easing of the process into near rubberstamping was a 20th Century innovation that corresponded to the growing practical power of the Presidency. But where there were battles there, they were largely still not about objective qualifications, but ideology and policy and politics, even before Bork.

The resistance to Harriet Miers was exceptional in being about less, at least overtly, about ideology and more about qualifications.

Posted by: cmdicely on January 9, 2006 at 5:31 PM | PERMALINK

Birkel: You may wish to check the record of who sued for the recounts in Florida after the Sec. of State certified the results in favor of then-Gov. Bush.

Bush sued first, between Gore and Bush.

You conservatives keep promoting this myth that Gore sued first.

You are all liars.

Posted by: Advocate for God on January 9, 2006 at 5:31 PM | PERMALINK

Er, I meant to delete the first part of that before posting, and I made some formatting errors. I meant it to just be:

I believe that prior to Bork, nominees were confirmed as long as they were qualified -- a standard easily met by Roberts, Scalia, Ginsberg and Breyer.

The myth that prior to Bork confirmation hearings were largely a simple matter of reviewing a candidates resumes seems popular -- an example fo successful Republican propaganda starting at the time of the Bork fight that that fight was "unprecedented". But its not true -- the first notable counterexample being the Rutledge confirmation battle in 1795, where George Washington's nominee failed to be confirmed, not because of judicial qualifications, but his prior political position on the Jay Treaty.

And there were many contentious fights centered around ideology and politics, rather than objective qualifications, in the 19th Century. The easing of the process into near rubberstamping was a 20th Century innovation that corresponded to the growing practical power of the Presidency. But where there were battles there, they were largely still not about objective qualifications, but ideology and policy and politics, even before Bork.

The resistance to Harriet Miers was exceptional in being about less, at least overtly, about ideology and more about qualifications.

Posted by: cmdicely on January 9, 2006 at 5:33 PM | PERMALINK

Birkel: Furthermore, I don't think you know what the role of the Court is to lecture me on it. Just a guess.

You guess wrong.

Pretty much par for the course with respect to your comments on these threads.

Posted by: Advocate for God on January 9, 2006 at 5:33 PM | PERMALINK

Cmdicely - excellent point that the basic structure of the Senate is undemocratic. And the skewing of the electoral college does the same.

For example, even giving Florida to Bush in 2000, the states that voted for Gore had a higher population than the Bush States. The only reason Bush won that count is due to the unequal number of electors created by the disproportionate distribution of the Senate seats.

Also excellent point on the contentious hearing of Court nominees being common - contrary to GOP myth. And why not, this is one of THE most important institutions in the country - shouldn't there be vigorous debate on how to staff it?

And that all reminds us, what was so wrong about attacking Bork vigorously. Hasn't he proven in spades since that rejection that he was a bit of a nut? Does anyone seriously think that Kennedy hasn't been a better justice than Bork would have been?

The hearings revealed Bork to be unsuited to the Supreme Court - the system worked.

Posted by: Samuel Knight on January 9, 2006 at 5:45 PM | PERMALINK

cmdicely, you may wish to examine the migration of several million dirt poor descendents of slaves in the first half of the 20th century, in part spurred by the desire to avoid the worst aspects of Jim Crow, before declaring that relocating to a different state in order to avoid a state's laws is substantially similar to complete deprivation. Several million extremely poor people who relocated to northern cities likely would have disagreed with you. In today's society, someone whose discomfort is best alleviated by smoking marajuana would also likely disagree with you that it matters not whether national government can prohibit activities that a state legislature does not outlaw.

As to what Congress is likely to do if Roe is overturned, it is entirely unpredictable. Your suppositions of a durable pro-choice majority holding forth in Congress are merely an expression of what you desire, which is your perogative, of course, but should not be taken as a reliable indicator of what the future holds.

As to emigration, you assume a country which is willing to take the emigree, which is far less predictable than the ability of a U.S. citizen to relocate from one state to another, as millions of extremely poor U.S. citizens have done.

Posted by: Will Allen on January 9, 2006 at 5:57 PM | PERMALINK
As to what Congress is likely to do if Roe is overturned, it is entirely unpredictable. Your suppositions of a durable pro-choice majority holding forth in Congress are merely an expression of what you desire,

No, its not.

But shifting the grounds of debate by pretending to read minds and changing the issue to your opponents internal motivation is a fairly common tactic.

Posted by: cmdicely on January 9, 2006 at 6:15 PM | PERMALINK

Fair enough, cmdicely, I should have said it was likely an expression of your desires. There is no empirical basis for your assertion pertaining to a durable pro-choice majority in Congress, in terms of actually prohibiting state regulation, therefore it is not unreasonable to posit that you were likely engaging in the sort of exercise that nearly all people pursue from time to time, that of fervently believing that what one desires will likely be borne out.

Posted by: Will Allen on January 9, 2006 at 6:24 PM | PERMALINK

liberals to create a compelling, clear and concise vision of the Constitution to compete with "no individual rights not explicitly in the Constitution

Among other generally written Amendments, I have one answer for you: the 9th Amendment. I win fucktard.

Posted by: Praedor Atrebates on January 9, 2006 at 6:28 PM | PERMALINK

What cmdicely said was, "the durable national pro-choice majority".

Not "durable pro-choice majority in Congress".

It seems likey that he is refering to a popular majority rather than a congressional one.

Posted by: jefff on January 9, 2006 at 6:29 PM | PERMALINK
There is no empirical basis for your assertion pertaining to a durable pro-choice majority in Congress...

There is considerable empirical basis in the overwhelming, durable pro-choice majority in the population.

Now, of course, their could be a radical change in the future that alters that, but that change would be the thing for which there is no empirical evidence.

...therefore it is not unreasonable to posit that you were likely engaging in the sort of exercise that nearly all people pursue from time to time, that of fervently believing that what one desires will likely be borne out.

Since it is, in fact, not what I would desire Congress to do in the hypothetical posed (which would involve vigorous demonstrations of the power of the legislature to "check and balance" the judiciary, using "check" perhaps more in the sense used in hockey than that generally used in Constitutional discussions) through some combination of proposing Constitutional Amendments, resizing the court, and liberal use of the impeachment power, I think I can fairly safely say that your presumption is, as such mind-reading efforts usually are, incorrect.

Posted by: cmdicely on January 9, 2006 at 6:32 PM | PERMALINK

Well, jeff, since what was being examined is the prospect of Congress preventing state regulation of abortion....

"Because if Congress has authority to regulate abortion, it will also be able to preempt more restrictive state laws, and therefore the durable national pro-choice majority will, even through the distorting lense of Congress' disproportionality, probably be able to largely hold the line on the status quo nationally (with perhaps a brief interregnum), whereas lasting abortion bans are more likely in some states if Congress does not have the power to act nationally."

....it is how that supposed durable majority translates into Congressional action which matters. There is no empirical basis for believing that such a sufficient majority holds now, or will in the future, in both the House and the Senate, to take such action, even if the possible need to overcome a veto is ignored.

Posted by: Will Allen on January 9, 2006 at 6:38 PM | PERMALINK

Perhaps, Will, you should pay a bit more attention to what people are actually saying while debating them.

Posted by: jefff on January 9, 2006 at 6:45 PM | PERMALINK

Of course, cmdicely, you now leave off the qualifier of Congressional action, which is the entire point. Now, do you care to re-state your assertion as you originally did, or do wish to make a new assertion which has little to do with what we were discussing, which was the likelihood of a future action by Congress which may affect the powers of states?

If it would not be your desire for your supposed durable pro-choice majority in the population to influence Congress so as to prevent states from banning or heavily restricting abortion, I stand corrected.

Posted by: Will Allen on January 9, 2006 at 6:46 PM | PERMALINK

Uh, Jefff, it wasn't I who introduced the notion of how the supposed durable majority would be filtered through Congress. That was cmdicely. Perhaps, Jefff, you should pay a bit more attention to what people are actually saying while debating them.

Posted by: Will Allen on January 9, 2006 at 6:57 PM | PERMALINK
Of course, cmdicely, you now leave off the qualifier of Congressional action, which is the entire point.

No, I don't. I am saying that the clear and demonstrated and overwhelming durable pro-choice majority in the population is an empirical basis (though not proof) of the idea that were there a susbtantive effect to Congress' position on the issue, there would become a durable pro-choice Congressional majority.

Since I was responding to a different claim (your claim that my earlier statement lacked any empirical basis), I made a different statement, which was relevant to your new claim, than my original claim. It in no way modified the original claim, merely explained the empirical basis for it.

Now, do you care to re-state your assertion as you originally did...

I don't see that making a new claim that argues against your false characterization of my earlier claim but does not modify my earlier claim requires restating the earlier claim, but if you feel it does, you may consider the original claim restated.

Posted by: cmdicely on January 9, 2006 at 7:08 PM | PERMALINK

Delay is toast,HEY troll Told you so na na na na. ha ha ha h aha h h ahh ahahh hahhaha!

Posted by: scott on January 9, 2006 at 7:11 PM | PERMALINK

Looks like the Neocon part is all but done,Too bad I was staring to like them.HA ha ha h hah hahh ha hh h hh !

Posted by: scott on January 9, 2006 at 7:12 PM | PERMALINK

Anywho, the focus on Roe in this discussion is probably somewhat tangential; it is almost certainly less important both to this administration and its critics, and to the long term effect that Alito on the Court would have on the nation, than Alito's understanding of executive power.

Posted by: cmdicely on January 9, 2006 at 7:20 PM | PERMALINK

cmdicely, I'll ignore for now the dubious proposition that there is a clear and demonstrated and overwhelming durable pro-choice majority, since we would then need to get into a precise definition of "overwhelming". In any case, if you need for me to outline the extremely numerous situations in which durable majorities have not had their will translated into congressional action, to say nothing of overcoming veotes, I can do so, in an effort to educate you on the dubious value of predicting Congressional behavior regarding contoversial issues.

Posted by: Will Allen on January 9, 2006 at 7:40 PM | PERMALINK
In any case, if you need for me to outline the extremely numerous situations in which durable majorities have not had their will translated into congressional action, to say nothing of overcoming veotes, I can do so

No, I don't need you to do so; if you would like to claim that should be expected to be more likely than not in this case, then, of course, you might want to (especially if you wanted to be able to claim a substantive empirical basis for the claim) to, instead of merely listing some such cases, discuss the history of some particular of those cases, what contributed to the failure, and provide some evidence that similar features exist today with regard to abortion.

Of course, again, I'll repeat my previous statement about this whole snarl here over Roe missing the key issue in the Alito nomination debate anyway.

Posted by: cmdicely on January 9, 2006 at 7:46 PM | PERMALINK

There is nothing, nothng about the judicial function that necessarily serves to protect individuals.

Except the fact that I can challenge a law that I believe violates my rights as an individual.

Anybody can sue anybody for anything - the question is - can they prevail. You presume the couts would support you. It is equally possible that they might oppose you - not only denying your claim but possibly punishing you somehow as a troublemaker.

Various social issues could be pursued on state and local levels.

No, they can't. That's the whole point. The idiots in my town could pass a law banning redheads. What recourse would I have beyond the courts?

If five judges of the Supreme Court rule that redheads should be banned, you're out of luck.

You presume that the Courts somehow will protect you. There is nothing to prevent their targeting you for punishment, instead.

Under my proposal, you could vote with your feet and move to another town.

Posted by: Thinker on January 9, 2006 at 7:47 PM | PERMALINK
Under my proposal, you could vote with your feet and move to another town.

Er, if my locality declares, to use the existing hypothetical, being a redhead a capital offense, and arrests and executes me for being a redhead, well, then, I can't really "vote with my feet", can I?

And, while that's an extreme example, the general rule applies to due process violations in general.

While becoming a political refugee is a resort just short of armed rebellion, its hardly the ideal day-to-day remedy for violations of rights.

Posted by: cmdicely on January 9, 2006 at 7:53 PM | PERMALINK

And, to backtrack a little...

As to emigration, you assume a country which is willing to take the emigree, which is far less predictable than the ability of a U.S. citizen to relocate from one state to another, as millions of extremely poor U.S. citizens have done.

The general ability to do so does not exist ab initio, it is, itself, a product of exclusive Congressional power (or perhaps, like abortion, a personal privacy right that even the federal government cannot generally infringe; there is some debate about the exact source and parameters of the freedom of internal migration.) But both of these sources of authority are ones you argue for minimizing in favor of unbounded state power.

Posted by: cmdicely on January 9, 2006 at 7:59 PM | PERMALINK

It's yet another sign that the separation of powers envisioned by the founders has slowly morphed into a de facto parliamentary system except without any of the institutional means of accountability normally built into a parliamentary system.

I'm not sure you'd like the way supreme court justices are appointed up here in good old parliamentary Canada:

- a party (usually the Liberals) wins the election by winning the majority of seats in the House of Commons.

- the leader of that party becomes Prime Minister.

- the Prime Minister gets to pick supreme court justices all by himself when a position becomes vacant. If he's nice he consults with other Liberals, but nothing says he has to.

The Prime Minister also gets to appoint Senators all by himself.

Posted by: Joe Canuck on January 9, 2006 at 8:11 PM | PERMALINK

Er, if my locality declares, to use the existing hypothetical, being a redhead a capital offense, and arrests and executes me for being a redhead, well, then, I can't really "vote with my feet", can I?

Well, I guess that's a case where, to quote an old professor of my, "you go wee wee all the way home."

You have failed to establish how the courts, in this scenario, necessarily provide you with any relief. Perhaps you're just a looser whom the judges dislike as much as anyone else does.

Indeed, hypothetically the courts could hold the town in contempt should it fail vigorously to go after you.

Posted by: Thinker on January 9, 2006 at 8:19 PM | PERMALINK

contentious,

The decision to have an abortion is a private matter. The quality of standard medical care in America is not a private matter.

Just wanted to clear that up for you.

Posted by: may on January 9, 2006 at 8:28 PM | PERMALINK

Will Allen must suffer from a severe form of Attention Deficit.

Will, you chased cmdicely into this thread with an argument from a previous thread in which you waved the Commerce Clause as an example of gov't over-reaching.

cmdicely responded by saying that whether it is state gov't or federal gov't (the Commerce thing) is mostly immaterial to the question of whether there is a right of gov't to restrict individual freedoms.

You responded with a classic non-sequitur, pointing to cases where citizens may have migrated from one state to another to avoid state-level curbs on rights.

Why is this a non-sequitur? A) It doesn't support your suggestion that federal power is somehow more insidious than state power and B) you are confusing arguments about the fundamental powers and proper structure of gov't with particular policy decisions. Whether Alabama can revoke the right to abortion, while Arizona maintains that right makes zero difference to your 'argument' since the policies are subject to the whims of the state legilatures. The positions could reverse in the next election cycle.

Indeed, granting federal powers to pre-empt state powers can just as easily result in safeguarding individual freedoms as it can the opposite. That would be obvious from this discussion about abortion rights.

But Will completely loses track of why he chased cm here in the first place.

Posted by: obscure on January 9, 2006 at 8:31 PM | PERMALINK

Will Allen wrote-

If a majority on the Court shifts on Roe, it will matter intensely whether a majority holds to the opinion that although Roe may be incorrectly reasoned, Congress has no authority to regulate abortion.
Right. Because then individual states could, at the whim of their legislatures, ban abortion. Which would appear to be an argument in favor of federal over state power if one, such as you, favors abortion rights.

cmdicely responded-

It will matter, of course, in practice because the actual exercise of the power will be different in each case, not because of inherent features of the level at which it is exercised. Because if Congress has authority to regulate abortion, it will also be able to preempt more restrictive state laws, and therefore the durable national pro-choice majority will, even through the distorting lense of Congress' disproportionality, probably be able to largely hold the line on the status quo nationally (with perhaps a brief interregnum), whereas lasting abortion bans are more likely in some states if Congress does not have the power to act nationally.
And here cmdicely covers the bases nicely...

Will Allen comes back with-

Of course, cmdicely, you now leave off the qualifier of Congressional action, which is the entire point. Now, do you care to re-state your assertion as you originally did, or do wish to make a new assertion which has little to do with what we were discussing, which was the likelihood of a future action by Congress which may affect the powers of states?

A) He didn't leave off the qualifier of Congressional action, you rube. He specifically addressed it. B) No, what you were discussing was the legitimacy of federal vs. state power.

Jackass.

Posted by: obscure on January 9, 2006 at 8:52 PM | PERMALINK

cmdicely, for many months I have appreciated your clear thinking and erudite commentary.

It aggrivates me to hear even such liberals as Eric Alterman say that Roe v Wade was bad law. I don't think it is.


It seems to me that the Constitution has, ( like the Bible ) been more a quoted-from then an adhered-to document.

I understand there exists a correspondence between Jefferson and Madison addressing the question of whether the new constituition should enumerate human rights. One thought it should ( can't recall which, ) and the other said it was bad to actually list rights because then people might think the constitution gives us rights, rather then people possesing those rights naturally.

So no such list of rights was included, and that made them worry that the message of natural rights would be missed. This led to the ninth amendment, which hits us on the head with the existence of natural, non-given rights.

So, isn't Roe v Wade simply an all-too-rare acknowledgement of a natural right? Why do so many, ( even liberals ) insist on calling it "bad law?"

( I agree that it may not have been the most politically stable way to progress the nation. )

Posted by: Archie on January 9, 2006 at 8:56 PM | PERMALINK

I disagree with Kevin. Having SC nominees testify about how they would rule invites a disaster. As soon as that occurs, lobbyists will be working on senators relating to particular issues and (sooner than you would believe) particular cases that will appear on the court's calendar.

"Senator, if you could ask this question and indicate to the nominee your view of the right answer and also tell him that the issue is of special importance to you...my clients would be....very grateful."

Pretty soon a nominee wouldn't even have to testify except at a cursory and formal hearing. He could simply negotiate the vote with lobbyists - the lobbyists would deliver the votes.

Of course, it would soon tell us how many millions a special interest would pay for one vote in an upcoming case. That would, at least, be interesting.

Posted by: ursus on January 9, 2006 at 8:56 PM | PERMALINK

Obscure, you illiterate twit, I don't have time to respond to all your inanities, so just a few will suffice. My response which you quoted was not to the cmdicely post you excerpted, but to a later one. Secondly, moron, my assertion regarding poor citizens migrating to other states was not in response to what you stupidly mischaracterized as cmdicely's point about the power of various levels of government and freedom, but another point of his, which was that giving the citizen the opportunity to relocate to another state, to avoid his curent state's laws which restrict his freedom, is substantially similar to deprivation of the freedom altogether.

Thus, half-wit, examples provided which demonstrate that even the poorest citizens have been able to migrate to other states, and thus expand their freedom, directly contradicts the assertion that as cmdicely puts it...

"Given that most citizens can relocate outside of even states only at considerable expense and difficulty, I don't think its unreasonable to hold that a "leave the state to avoid the exercise of power" situation is substantially similar to a complete deprivation of the right,..."

...And this still doesn't exhaust all the idiocies in your post above, obscure. Once again, I must inquire, obscure; are you truly so stupid?

Posted by: Will Allen on January 9, 2006 at 9:37 PM | PERMALINK

cmdicely, I am of the opinion that a state no more has the power to prevent a U.S. citizen from relocating within it's borders than it does to legalize slavery. Somehow you have gotten the misimpression that I favor unlimited power on the state level. I do not.

Posted by: Will Allen on January 9, 2006 at 9:40 PM | PERMALINK

Before Roe v. Wade large states repealed their abortion regulations: New York, Illinois, Florida, Texas, California.

Not true, I'm afraid. New York repealed its abortion regulations in 1970, while Florida and California reformed their laws based on the American Law Institute's "Model Penal Code on Abortion," which allowed for abortions in the case of rape or incest, where the pregnant woman's life or health would be endangered, or where the fetus would be born with a severe physical or mental defect. Illinois and Texas did not reform their laws prior to Roe. Roe struck down harsh anti-abortion laws like Texas's, while its companion case, Doe v. Bolton, struck down state laws (in this case, Georgia's) based on the ALI model legislation.

Posted by: Jeremy B. on January 9, 2006 at 9:45 PM | PERMALINK

Roe v. Wade originated out of Texas didn't it? They sure as hell hadn't repealed their anti-abortion laws before that.

Posted by: Ringo on January 9, 2006 at 10:11 PM | PERMALINK

"Hey, if your state restricts certain freedoms, then just pick up and move to another state that doesn't--other poor people did it in the past, so no big deal."

--the genius of Will Allen

Posted by: haha on January 9, 2006 at 10:16 PM | PERMALINK

Sucked in.

You Dems f-upped your strategy and gave the other party control of next to everything when Supreme Court jusges were aging and due for retirement. You even made it an issue in the election...but screwed it all up by picking the wrong candidate.

I laugh at your stupidity.

Enjoy whining about polls and life in the bubble. The other side knows how to win a poll called the election.

Posted by: McAristotle on January 9, 2006 at 10:48 PM | PERMALINK

Unfortunately, since we currently have a President who asserts the right to suspend any law at any time in the interest of national security, this whole Supreme Court argument may turn out to be moot...

Posted by: dr sardonicus on January 9, 2006 at 11:55 PM | PERMALINK

Didn't the Supreme Court Appoint Bush President?

Now he gets to Appoint Republican lawyers to the Supreme Court.

The cycle is complete.

Meanwhile, Tom DeLay Gerimanders Texas for 5 extra Republican seats in Congress. Republicans run unopposed in many places in Texas. You don't like the One Party State? Go back to Russia!

Republican Election Officials in Ohio send fewer voting machines to traditionally Democratic inner city polling stations to insure long lines in the November Cold for people fearful of loosing their job for taking too long to vote. I saw the Mayor of Cleveland call an employer of a woman in that predicament to ask for more time, given the situation.

Having gained power, it is easier to fix the game to your advantage.

You ARE being watched.

Posted by: deejaays on January 10, 2006 at 12:03 AM | PERMALINK

this whole Supreme Court argument may turn out to be moot...

Posted by: dr sardonicus on January 9, 2006 at 11:55 PM | PERMALINK

Actually their choosing to support him, would be part of makes that possible.

Posted by: McAristotle on January 10, 2006 at 12:03 AM | PERMALINK

The other side knows how to win a poll called the election.

Too bad they can't govern worth shite.

Posted by: tam1MI on January 10, 2006 at 1:04 AM | PERMALINK

cmdicely wrote this: And there were many contentious fights centered around ideology and politics, rather than objective qualifications, in the 19th Century. The easing of the process into near rubberstamping was a 20th Century innovation that corresponded to the growing practical power of the Presidency.

But the issue here is whether the nominees had to answer many detailed questions, not about whether the process was free of contention. "Near rubberstamping" applied to S. P. Chase, who was sworn in less than 3 weeks after being nominated.

Posted by: contentious on January 10, 2006 at 2:34 AM | PERMALINK

I watched much of the hearing on Fox News because sitting here in my office watching a web C-Span stream would eventually put severe bruises on my slender ectomorphic ass.

Anyway, in the middle of it--and I really wish I could remember which senator was speaking at the time--Fox went to News Flash mode and ran a double screen showing the NYSE board approaching the 11,000 DJA.

As for analysis, it depends on who was talking when that news flash occurred.

If it came during an anti-Alito rant by a Democrat, well, what a great way for the wingnuts to shift the focus from the strip-searcher to how great the Bush tax-breaks-for-the-rich economy is.

If the news flash came as a Republican was kissing the strip searcher's ass, well Jeeze Louise, what a lucky friggin' break!

Posted by: John Palcewski on January 10, 2006 at 2:35 AM | PERMALINK

cmdicely,
I agree with you that "Roe in this discussion is probably somewhat tangential" compared to his understanding of executive power.

However, I don't think you are correct when you say that "The resistance to Harriet Miers was exceptional in being about less, at least overtly, about ideology and more about qualifications."

The resistance to Harriet came from the right who felt that she was way to moderate.

On the other hand it was exceptional because her nomination was withdrawn so quickly.


Posted by: DR on January 10, 2006 at 10:18 AM | PERMALINK

cmdicely, I am of the opinion that a state no more has the power to prevent a U.S. citizen from relocating within it's borders than it does to legalize slavery.

Given that you are equating it with slavery, I assume yopu have some proposal to stop states (and their subdivisions) from doing that (or, alternatively, forcing citizens to relocate whether they will or no) , as states deliberately, and often quite directly, do one or the other, particularly to the poorer citizens, in practice now.

Posted by: cmdicely on January 10, 2006 at 11:05 AM | PERMALINK
It aggrivates me to hear even such liberals as Eric Alterman say that Roe v Wade was bad law. I don't think it is.

IMO, Roe v. Wade is wrong in its reasoning, but nevertheless reaches largely the correct result (part of the problem may be that the reasoning in Griswold is more convoluted than it needed to be), at least viewed on its own. I'm a little less sure about Doe v. Bolton and the breadth of the application of the health exception under it in subsequent practice, but erring on the side of freedom is probably better than on the opposite side, when considering government power rather than personal morality.

Posted by: cmdicely on January 10, 2006 at 11:11 AM | PERMALINK

Pomposities? I was prepared to take Alito seriously at least until I heard his remarks about his college experience -- about as snobby and ill-tempered and revealing as any would-be Justice has been.

Posted by: PW on January 10, 2006 at 11:32 AM | PERMALINK

Randi Rhodes put it best Roe V Wade will never be overturned it is too good of a wedge issue for the right,Politics over babies. humfph.

Posted by: scott on January 10, 2006 at 11:52 AM | PERMALINK

Perhaps it's a little retro of me, but men of my generation notice things that other don't--like Alito's birthdate, 1950.
How'd he get out of the draft?
I realize that people like Slippery Sam are the civilization that others are supposed to defend with their lives, but once you went through the reality enhancement of waiting to see if your birthday came up high in the draft lottery, you never forget.

Posted by: Steve Paradis on January 10, 2006 at 11:53 AM | PERMALINK
Randi Rhodes put it best Roe V Wade will never be overturned it is too good of a wedge issue for the right

Its a good wedge issue only so long as the right is credible to their base on the issue, which they lose the longer they are in power without reversing it. The cynical manipulators using it that way eventually risk losing power to some other faction (either real ideologues or other cynical manipulators pretending to be by pointing out the failure of the current manipulators) if they lose credibility by failing to overturn it.

Posted by: cmdicely on January 10, 2006 at 11:59 AM | PERMALINK

cmdicely: Its a good wedge issue only so long as the right is credible to their base on the issue, which they lose the longer they are in power without reversing it.

Absolutely right, although two factors that must be considered are:

--How willing the base is to put aside the glaring evidence of cynical manipulation and continue to take the CMs on faith, if you will, for just a little longer. History suggests this group has more than its share of gullibility, although that can perhaps to attributed to limited political choices. Recent actions re Miers, etc. may indicate a tipping point is nigh.
--How willing and able the CMs are to recognize a coming tipping point. The current powers that be have not demonstrated an ability to look six seconds down the road and adjust their political behavior accordingly.

Posted by: shortstop on January 10, 2006 at 1:42 PM | PERMALINK

Randi Rhodes put it best Roe V Wade will never be overturned it is too good of a wedge issue for the right

Oh, and too many Republicans have daughters who occasionally need abortions...

Posted by: Pale Rider on January 10, 2006 at 2:07 PM | PERMALINK
my assertion regarding poor citizens migrating to other states was not in response to what you stupidly mischaracterized as cmdicely's point about the power of various levels of government and freedom, but another point of his, which was that giving the citizen the opportunity to relocate to another state, to avoid his curent state's laws which restrict his freedom, is substantially similar to deprivation of the freedom altogether.

Wrong again, Will. Your Jan. 9, 3:50 pm post on this thread makes an incompetent liar out of you.

If you think I'm wrong, provide the quotes and the times to prove it.

Posted by: obscure on January 10, 2006 at 5:13 PM | PERMALINK

I messed the tags up above, so here's documentation of the remarkable raging incoherence of Will Allen:

cmdicely, if Roe is overturned, you'll be able to re-visit the proposition that it makes no difference, in terms of individual freedom, as to whether national government, as opposed to state government, has the power to regulate various activities. My view is that Congress has no constitutional authority to regulate abortion, but I suppose that is merely a laughable concern, in your words, in terms of human freedom. Of course, people who have voted with their feet, and there are millions of them, may beg to differ. Posted by: Will Allen on January 9, 2006 at 3:50 PM | PERMALINK

Why are you directing this at me? It seems tangentially, but only so, related to a comment I made on a previous thread. ... WTF are you talking about? Posted by: cmdicely on January 9, 2006 at 4:22 PM

Cmdicely, you recently [on a previous thread] asserted... Posted by: Will Allen on January 9, 2006 at 4:47 PM

And it was on this post, at 4:47 pm, that you re-introduced the subject of migration between states in response to what was said on a previous thread.

So when you conclude, as you did on this thread at 9:37 last night that:

my assertion regarding poor citizens migrating to other states was not in response to what you stupidly mischaracterized as cmdicely's point about the power of various levels of government and freedom, but another point of his, which was that giving the citizen the opportunity to relocate to another state, to avoid his curent state's laws which restrict his freedom, is substantially similar to deprivation of the freedom altogether.

You are altogether mistaken. Embarrassingly so.

Posted by: obscure on January 10, 2006 at 5:46 PM | PERMALINK

Pale Rider,

Randi is correct about Abortion being a good wedge isse for the GOP but doesn't understand the people who are against are not just advocating a political issue. They mean business. Eventually they will have a majority.

We know for a fact the secularists on the left have significantly lower birth rates and have since abortion. Republicans have abortions. But at nowhere near the same rates as Democrats. Further when it comes to liberals and conservatives the gap is even wider. Conservatives are more likely to get married and more likely to have more than two kids.

This can only mean one thing. Eventually abortion will be overturned.

Posted by: rdw on January 10, 2006 at 6:35 PM | PERMALINK

rdw:>"Eventually they will have a majority."

Secularists have lower birth rates, true.

Anti-abortion Xtian nuts breed like rabbits, also true.

But you forget that way more kids of Xtian nuts become secularists then secular kids turn Xtian nut.

It's not enough to breed, you have to brainwash thoroughly as well, and Xtian nuts fail to properly brainwash their kids over 50% of the time.

Posted by: Joey on January 10, 2006 at 7:04 PM | PERMALINK

joey,

no need for brainwashing. just provide a nuturing environment and teach them right from wrong. there is a reason why values kill liberals. in fact political identity is as strong as religious inentity and absolutely travels in families. liberals make the mistake of framing everything as of 1968. the last two generations spent their college years preparing for a careeer, not rebelling against daddy. now these kids get married and with two jobs and over $100k of income aren't even a little bit interested in funding another liberal welfare program.

they also have this odd notion if someone commits 3 felonies they should be in jail a very, very long time. they grew up with 5% unemployment, busing, affirmative action. welfare is only for those unable to work due to some impairment. having kids in not an impairment. that's why welfare reform was so effective.

The clearer model is Old Europe. The secular communities are literally breeding themselves out of existance.


Posted by: rdw on January 10, 2006 at 10:06 PM | PERMALINK

rdw:>"there is a reason why values kill liberals. "

Well, your values certainly do.

In fact, I bet that killing liberals is one of your values.

"liberals make the mistake of framing everything as of 1968.

Nonsense. Total and utter nonsense. It seems everything about America and American society you don't like is the fault of 'liberals,' or at least your comic book notion of liberalism.

" Old Europe. The secular communities are literally breeding themselves out of existance."

And you actually think European secularism is on the wane? Secularism is on the advance everywhere and has been for centuries.

Fundamentalist reactionaries may be loud and whiney, but they're losing the breeding war because their product is a shallow, Wal-Mart imitation of real spirituality.

Posted by: Joey. on January 11, 2006 at 9:12 AM | PERMALINK

各种情歌,不同歌星演唱

map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map
map

免费,歌曲,图片,资料,演唱会,qq号,视频

Posted by: song and music on January 11, 2006 at 1:57 PM | PERMALINK




 

 

Read Jonathan Rowe remembrance and articles
Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

Advertise in WM



buy from Amazon and
support the Monthly