Or “Scalito,” “Scalia’s Mini-Me,” or even “Strip Search Sammy” as I’ve seen some lefty, pro-choice, and feminist bloggers describe Bush’s latest SCOTUS nominee. Needless to say, it didn’t take long for groups such as NARAL Pro-Choice America and Planned Parenthood to hit my inbox with snippets from Alito’s judicial record.
Via NARAL Pro-Choice America….
Alito took pains to distant himself from the longstanding constitutional requirement that abortion restrictions must have exceptions when a woman’s health is in jeopardy. He did so when ruling on a law that effectively banned abortion as early as the 12th week of pregnancy and lacked an exception to protect women’s health. The health exception is a fundamental tenet of Roe v. Wade, and the Supreme Court is scheduled to hear arguments about the need for the health exception this fall.[…]
Alito has argued that significant restrictions on a woman’s right to choose are constitutional. In Planned Parenthood of Southeastern Pennsylvania v. Casey, Alito argued that all of the proposed law’s restrictions on a woman’s right to choose ““ including a spousal notification provision struck down by the Third Circuit and, later, the Supreme Court ““ were constitutional. Alito dissented in part because he would have gone even further than the rest of the court.
Alito would uphold state laws that place significant roadblocks in the way of women seeking abortion care. Alito concurred with the majority’s opinion in Casey that concluded that “time delay, higher cost, reduced availability, and forcing the woman to receive information she has not sought,” although admittedly “potential burdens,” could not “be characterized as an undue burden.” This opinion practically ensures that he would never find any burden to be undue.
From Planned Parenthood….
[…]In Planned Parenthood of Central New Jersey v. Farmer, the Third Circuit was asked to rule on an abortion regulation that did not contain a valid health exception for the life of the woman. Alito grudgingly applied the Supreme Court precedents in both Roe v. Wade and Stenberg v. Carhart to overturn the statute while refusing to endorse the reasoning of the Supreme Court in either case.[…]
The Supreme Court’s decision to hear Ayotte v. Planned Parenthood at the end of November spotlights the urgency of the threat to reproductive freedom. In this high-stakes case, the justices are expected to rule on whether a woman’s health will remain the paramount concern in laws that restrict abortion access. The ruling may have an immediate impact on women’s health across the nation and will determine whether a fundamental principle established in Roe v. Wade will remain the law of the land.
And SaveTheCourt.Org has a collection of reactions from some of the far-Rightwing leaders such as Dobson and Pat Robertson. Also Feministe has a few good posts on “Scalito,“ and so do Pandagon’s bloggers. Ugh…it didn’t take long for Dubya to whip this guy out on us, did it? Like my weekend and Monday morning weren’t depressing enough.
Ugh… Give me a break. This is a “conservative” president. He’s going to nominate conservatives. Do you expect him to nominate Kathy Ireland? Give me a break.
Another Sandra Day O’Connor, clearly a conservative, just not a wingnut, would have been nice.
President lied to us about war, allowed his staff to out a WMD undercover CIA expert, has done exactly nothing useful about domestic security, has not delivered on public health/infectious diseases/ bioterror/ pandemic preparations, and fucked up emergency response in Katrina et al., all the while racking up a deficit that leaves real conservatives (not the anti-sex loons) shaking their heads in disbelief.
He doesn’t deserve consideration of any choice he makes.
The poor spacer-creature is afraid to come out from the crack between posts! Just one eye showing…eek…scarier than a slasher movie.
Hey, Aaron. Do you expect P-A, who is progressive, to be particularly thrilled at pro-strip-search, pro-dominion-over-wives justice to be nominated?
Give me a break.
And do you expect anyone with half a brain or more to be thrilled about the fact that Bush nominated a foaming-at-the-mouth ideologue to the bench? Please.
I expect him to nominate people who are qualified, who will answer the questions posed to them, and who won’t legislate from the bench–something I’ve yet to see.
These folks can decide on law that affects our lives. Maybe you don’t care, but I do and countless others do. You agree with his choice, fine. But don’t get all pissy because others don’t.
As I recall, one of the conservative Justices made a comment back when the Court was ruling on those two Ten Commandments at county courthouses cases, along the lines of “I hope the defenders of the 10 C’s come up with a good enough reason for me to declare it constitutional.”
That’s the kind of judge that should be nominated. Not a “I want/supprt this, therefore I’ll reinterpret the Constitution to make it constitutional” type loony.
Ungh . . . must not panic . . . must not buy new luggage for impending move to Canada . . .
This is what comes of depending on the Supreme Court to legislate. What the Supreme Court can do on it’s own, it can undo on it’s own. If the judiciary is to become a super-legislature, then expect the party that wins a majority in both sections of the actual Legislative branch and the head of the Executive branch to nominate and confirm someone that will act accordingly.
I don’t expect those who favor Roe and other such decisions to approve of this nomination, and I expect a lot of them to attempt to demonize Alito. So be it. My prediction is that Alito will be confirmed, and that the new SCOTUS linup will start to undo some of the decisions we’ve seen from their predecessors by not finding things in the law that the legislature didn’t put there.
The Judiciary Committee hearings will be bruising, but will ultimately confirm Alito on a party-line vote because there’s nothing besides his judicial views and actions to vote against him on.
The confirmation process could change the Senate. I don’t know if it’ll change the members; I don’t think that Supreme Court nominee confirmation votes have much impact at election time with the general public. But I do think that it could change it’s operations. The Senate vote may be filibustered, but the Republicans will insist on a real filibuster; nothing else will get done while it’s going on, and the Democrats will have to hold the floor with speeches. Eventually they’ll tire. Eventually a cloture vote will succeed. Eventually the vote to confirm will be held. And it will again succeed, on a party-line vote (or close thereto).
The only way this scenario will fail is if the opponents of the nomination successfully convince the public, not just partisans, that Alito is a “foaming-at-the-mouth ideologue”. Good luck on that. I doubt it’ll happen.
I checked out the strip search thing. It refers to a decision that you can find here. Some police officers, with a search warrant, went to search the home of a meth distributor. The warrant had an affidavit attached. Said distributor was not home, but a woman and a 10-year old girl were. The officers interpreted the warrant as meaning that they could search the persons of the people in the home, based on the contents of the attached affidavit. The complainants said that the warrant itself didn’t support the search of the occupants, only the distributor himself, and thus was unconstitutional.
Obviously, there’s more detail to it than that. But if you read the opinion, it’s seems clear that there’s at least reasonable positions on both sides, even if you ultimately decide that one is wrong. It doesn’t make Alito a nut.
… the new SCOTUS linup will start to undo some of the decisions we’ve seen from their predecessors by not finding things in the law that the legislature didn’t put there.
This doesn’t make any sense to me. SCOTUS looks at laws in light of the constitution, not in light of laws that the legislature created. Can you explain what you mean more clearly?
Thanks
> This is what comes of depending on the Supreme Court to legislate.
Do you mean this post to come across as contemptuous? Because it felt, on reading it, that it bristled with contempt.
It honestly isn’t for lack of gumption, effort, and positive attitude that women and minorities have historically been unable to secure a full suite of basic human rights through the legislature. Further, everyone in the United States has the right to expect these things enforced by all three branches of government, and a failure in the legislature or executive is not adequate reason to mock an adequate performance by the judiciary.
Perhaps there are some who relaxed unwarrantedly in their legislative efforts in the wake of Roe v. Wade. I find myself wondering in what fashion your record with regards to seeking and affirming human rights is more exemplary than theirs.
Rebecca
I’m ashamed that the opposition has to throw accusations around that are really quite unsubstantiated. And if they are, prove it. RonF makes some very educated points.
I’m no Bushie. I didn’t vote for him. But comments like these:
He doesn’t deserve consideration of any choice he makes.
and
And do you expect anyone with half a brain or more to be thrilled about the fact that Bush nominated a foaming-at-the-mouth ideologue to the bench?
illustrate that the best that the opposition can do is use inflammatory language. Yes, a SDO-like judge would be fine. But so is this one.
And since the major topics of this blog revolve around abortion, let me just say that anyone who has any foresight at all would know that if Roe is ever overturned, the result of the case would be overturned. The result was not the legalization of abortion. It was the usurping of the rights of the States to decide on the issue. In other words, the choice would return to the States for decision and I’d be willing to put a next year of paychecks on most States retaining the right to abortion. What overturning RoeKelo vs. New London getting overturned.
That’s why I want a conservative on the bench. That’s why I want a strict-constructionist. The Constitution does not give the Court the power to create law at its will. It gives the States the right to do that.
my last sentence in the second to last paragraph ran together, oddly.
I was saying I’m more interested in is Kelo vs. New London getting overturned.
> illustrate that the best that the opposition can do is
> use inflammatory language.
Enh.
I mean, seriously, if you’re going to get all logical and analytical, it doesn’t demonstrate anything of the kind. ^_^
Rebecca
Rebecca– I think it’s important to be logical and analytical in politics. It keeps people from making rash judgements and helps (theoretically) both sides find common ground – something that is very important, don’t you think? Or would you just prefer to hate the opposition?
Aaron, if you’re going to implore others to be logical and analytical, then you should be logical and analytical yourself.
It seems to me Rebecca is correct: Logically speaking, that some members of the opposition use inflammatory language, in no way establishes that inflammatory language is the best the opposition can do.
Rather than responding to Rebecca’s rebuttal of your argument in a logical, analytical fashion, you appear to be trying to change the subject. (Although I suspect you’re not doing it on purpose, and you’ve just misunderstood her point.)
Are you going to defend your claim, or do you concede Rebecca’s point?
A-
I have no reason not to defend my claims. I haven’t been proven wrong. The best arguments in this entry so far from the left are from NancyP, and Kyra — neither of which do anything to convince me of anything.
Convince me – a right-leaning moderate – a fiscal conservative, social moderate – that Alito is not a well-qualified judge fit to serve in the SCOTUS.
The President, no matter who he (or she) might be, has the Constitutional right (no, mandate), given to him by the fact he was elected President, to nominate a Supreme Court Justice. How can we get quotes from your readers like “He doesn’t deserve consideration of any choice he makes” and expect me to take them seriously.
What do I have to defend?
I had a nice long post on this subject, but my computer decided to eat it.
While I agree with RonF that the stirp search case is not so one sided that Alito’s dissent shows him to be of unsound mind, it does show him to have a profound lack of respect for even those rights which are clearly enumerated in the constitution. That doesn’t leave me with much hope that he has much respect for the unenumerated ones. The warrant did not permit searches of all occupants, even though the police had explicitly requested that in the affidavit. I haven’t read Alito’s dissent yet, only the majority, so I don’t yet know his reasoning, but I see very little room for a position that would leave me not fearing that his view of police powers and his respect for personal liberty is not consonant with a country I want to live in. I believe that my Senators have a duty to protect me from the appointment of justices who will drive the law of the land in a direction that will make me want to leave it.
Aaron, do you want a supreme court justice who has that little respect for personal liberty?
The President obviously has the duty to nominate justices. However, the Senate has the duty to advise and consent (and to withhold consent) in the appointment of the justices. If the president refuses to nominate candidates that are acceptible to the Senate, then the president’s nominees will languish. Clinton nominated many judges who were not acceptible to the Senate (and who were not acceptible under the baroque procedures of the Senate, not who were not acceptible in a simple up-down vote, something which is not required), and so those seats languished empty for years. The supreme court is perfectly capable of operating with eight justices (and SDO has agreed to remain on the bench until her replacement is appointed, so we don’t even face that circumstance), so there would be no fundamental crisis if the Democratic minority rejected each and every justice that the Presidnet sent forward. It is clear that they don’t intend to do so (since the just confirmed Roberts), but if they decide to reject Alito and whatever extreme conservative judges are nominated after him, in the hope that Bush will eventually accept their constitutionally mandated advice and nominate a moderate conservative (like SDO), then they will be well within their constitutionally mandated role.
The idea that the Senate should judge purely on a vague set of basic competency requirements is not well established and would gut the fundamental power of the legislature. This country is not an electoral dictatorship, and merely gaining the presidnecy is in no way adequate to ensure the freedom to appoint judges as one pleases.
On a side note, I am puzzled that you believe that the SC should have decided in favor of Kelo. To do so, it would have had to replace the judgement of a locally elected government (and of the elected state government) as to what constituted “public use” with its own, an action that would have clearly been legislating from the bench. If you do not believe that private development projects constitute public use, then the appropriate remedy is found by campaigning against anyone who does, ensuring that they don’t hold elected office, or electing those who agree with you and having them legislate from the state legislature to clarify the meaning of public use to exclude private development projects. Why you think that this is a matter for the SC to butt its head into is puzzling.
Aaron,
One other thing about Kelo.
O’Connor and Rehnquist dissented on Kelo. Replacing both of them with activist judges who will legislate from the bench in ways you like still won’t change that decision. The only decisions that will change are the small minority where O’Connor was not as far to the right as Rehnquist and Alito and Roberts both are. Roe/Casey is the obvious one. I know there is an already compiled list of what cases O’Connor and Rehnquist disagreed on, but I can’t seem to find it in a cursory google search. Look at that list to see what confrming Alito will actually do, not what you’d like to see a more right wing court achieve.
Aaron, you haven’t actually posted an opinion other than we shouldn’t be pissy because of course a conservative President would nominate a conservative. Your post dripped with contempt for P-A and anyone else who doesn’t like Alito.
You don’t like my tone? Tough. Check your own tone out before you wag your finger in anyone’s face, kiddo.
Someone who thinks they have the right to legislate relationships by requiring a grown woman to discuss having an abortion with her husband is hardly a moderate. Her husband isn’t the one who has to deal with the physical effects, risks, and complications of pregnancy–she is. Mighty partisan of me, I know.
You can’t legislate ideal behavior or relationships–and that’s exactly what he would have done from the bench, had he his way. Not exactly someone who would limit government’s power. It’s a myth that the man would strictly interpret the constitution and not legislate from the bench; Sam Alito is a judicial activist.
Alito has also tried to impose new demands on Congress in his decision regarding US vs. Rybar.
In an article about Alito, the American Progress Action Fund cites this case (and several others):
(I’ve tried to post the link, but this site isn’t reading it for whatever reason.)
My opinion that he’s a foaming-at-the-mouth ideologue stands.
This doesn’t make any sense to me. SCOTUS looks at laws in light of the constitution, not in light of laws that the legislature created. Can you explain what you mean more clearly?
Setting aside those cases where the Supreme Court has original juristiction, the Supreme Court looks at decisions of lower courts if at least 4 of their members think that the lower court may have decided wrongly. It’s entirely possible that the court may have a case before it that has no particular Constitutional issue, but is simply a possible error in interpretation of Federal law. One major example is if similar cases are brought into two different juristictions and the Federal Circuit Courts of Appeal in those two cases decide differently. At that point, certorari is almost automatic, so that the Supremes can resolve the different interpretations.
There’s no requirement for a court case to revolve around an interpretation of a portion of the Constitution for it to end up before the Supreme Court. It can be solely concerned with interpretations of legislative acts.
Charles said:
That doesn’t leave me with much hope that he has much respect for the unenumerated ones.
How is it to be determined that anything not enumerated in the Constitution is a right under it? Consider the 10th amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
The Constitution enumerates specific powers and rights to the Federal government and the people of the United States. If a power or right is not so enumerated, is it then under the purview of the Federal government, or is it under the purview of the several States and the people therein?
It’s quite clear to me that the Federal Government is the final guarantor of those rights specifically granted in the Constitution. But it seems to me that the intent of this amendment is that any right or power not specifically granted in the Constitution, any thing not enumerated there, is not something that the Federal government may control and not something that the Supreme Court has a right to review.
It was the intent of the framers of the Constitution to keep as much power as possible in the State governments and to limit the Federal government’s power to specific abilities. The last thing they wanted was to give the Federal government the ability to arrogate to itself additional power. The only power it was to have was that power that the Constitution specifically granted to it. When the Constitution was being voted on, many people across the nascent nation opposed the Constitution because they were afraid that it gave the Federal government too much power. The Federalist Papers were written explicitly to argue against this view and to explain the Federal government’s powers and the limitations on them. The first 10 Amendments were written as another response to that opposition, to specify particular rights that individuals and the States had and that the Federal government was forbidden to interefere with. This last amendment was put in to ensure that the Federal government didn’t have any authority over unenumerated rights, including creating them.
Do you mean this post to come across as contemptuous? Because it felt, on reading it, that it bristled with contempt.
I regret that this appeared to you as such; it was not my intent. I don’t mean to imply that people do not enjoy the ability to exercise rights they deserve because of a lack of effort, etc., on their part.
What I mean is that in our method of governance, it’s three branches exist in a state of tension, with each branch having certain duties to perform, and a certain relationship with the other two branches. The Legislature makes laws, the Executive enforces them, and the Judiciary interprets them as to how they apply in specific cases. Experience has shown that when one governmental body exercises more than one of these functions, you risk moving from the rule of law to the rule of man.
In my lifetime, it seems to me and to many other people that some courts, and especially the Supreme Court, have taken it upon themselves to not only interpret the law, but to make new law, to force the law to mean things that either the legislature was silent on or that they explicitly opposed. When this happens, it makes the courts a target for people who want to make sure that the courts do this in ways that they favor rather than ways they oppose.
This may produce actions that some people will view beneficial in the short run, but that other people view as damaging. That in turn invites damaging long-run actions; in this case, politicizing the courts to such an extent that new justices will be expected to legislate, and to do so in such a fashion as the electorate or their elected representative favor. And that’s what we’re seeing now.
It honestly isn’t for lack of gumption, effort, and positive attitude that women and minorities have historically been unable to secure a full suite of basic human rights through the legislature. Further, everyone in the United States has the right to expect these things enforced by all three branches of government, and a failure in the legislature or executive is not adequate reason to mock an adequate performance by the judiciary.
That’s fine if you have an agreement on what constitutes a full suite of basic human rights. The Constitution us a guarantor of a suite of particular rights that have gained public support as basic human rights via the legislative process. Everyone in the country has every right to expect that all 3 branches of the government will recognize and enforce those rights throughout the United States, and to be able to successfully appeal to the Supreme Court if the other two branches fail of their duties.
However, no one has a right to expect that a behavior or activity that is not enumerated in the Constitution will be recognized as a basic human right and will not be able to be forbidden or regulated by a governmental body. What makes something reservable as a right in this country is the law, not the courts, and not the opinion of a minority that such a thing should be a right.
The legislative process not only places such things into law, but it also helps fuel and support the public debate that causes the public to judge whether or not something should be considered a basic human right. If this process is short-circuited, as it is when the Supreme Court strikes down a law restricting a behavior or activity in the absence of any higher law that permits it, then there is no consensus on the question of whether such is a basic human right. The Supreme Court is then acting as a “super-legislature”.
That’s when the opponents will then start to figure, “we better do something about the Supreme Court”. And you get the present situation, where political pressures similar to those in the legislative and executive processes are being applied in the judicial process.
It seems to me the thinking for those who support such judicial acts may be that “X should be a basic right. Since we haven’t been able to get the legislature to act, and since this is so unjust (justice delayed is justice denied), we should get this right via judicial action.” They may be right, and the majority may well be wrong. That’s not my point. My point is that by taking this action, you open up the Supreme Court to be subject to politicization. If a given Supreme Court lineup is producing results that one group desires because of their political philosophies and not because of strict interpretation of the law, then whatever group is in power when vacancies exist are going to seek to change that lineup to confom to their political philosophies. Saying, “Well, any new Supreme Court nominees should be chosen as to keep it’s political balance as it is now” ignores the consequences of encouraging the Supreme Court to act legislatively (and thus politically).
I don’t favor leaving legislative action to the legislature because that’s the best way for the process to work. I favor it because in the long term, that’s the only way it will work.
“Someone who thinks they have the right to legislate relationships by requiring a grown woman to discuss having an abortion with her husband is hardly a moderate. Her husband isn’t the one who has to deal with the physical effects, risks, and complications of pregnancy”“she is. Mighty partisan of me, I know. ”
You obviously haven’t read the opinion or the dissent. You also obviously aren’t aware of the numerous laws on the books that are not disputed constitutionally that have a spousal notification and even sometimes consent provision. You are trying to isolate abortion as some kind of super right which it is not (even the Roe majority recognized this.)
The reality is that the government has a legitimate interest and even an obligation to ensure that all parties to an activity regulated by the government have their individual rights protected. It is patently false that the husband has no rights when it comes to reproductive decisions. It is also absurd to contend that he is in no way affected by those decisions. It was recognized in the MAJORITY opinion in Casey that the state had a legitimate interest in those rights. Their conclusion was that those rights, although legitimate, did not meet the threshhold necessary to overcome the undue burden that exercising them would impose on the wife.
The husband is not the one who bears the health risks and physical burden of pregnancy. No, he has abseloutely NO right to force his wife to bear a child and expose herself to those risks if she does not want to.
It is a medical procedure.
No one is saying he has a right to force the wife to carry the child. The PA law certainly didn’t say that nor did Judge Alito. He does have the right to be informed about a decision that impacts him and together they need to make the right choice for them as a married couple.
True. This is why there is a vote.
LOL… I bet you would like that, wouldn’t you? And if a Republican won in 2008, stall awhile longer until you can get a Democrat in there and approve his nominees. Nothing like hijacking Senate responsibilities.
Fact is that the American people are sadly out of touch with what SCOTUS, and indeed the entire judiciary, is about. Somehow the majority of people believe that the Judges need to represent them, the American people, and therefore need to be diverse with many varying opinions, religions, races, etc. My question is, since when? Congress represents the people. The Courts are there to apply the Constitution to the cases, not represent the people.
I want a judge who will look at his job as a SCJ through those lenses and see his responsiblities through the perspective of what is in the Constitution and not what they want to be in the Constitution. Stuff like “penumbra” decisions are my litmus test. Not whether the judge is a woman, or favors gay marriage.
ACtually, I’d prefer that the president nominate SCJs who are in-line with the preferences of the people, as represented by their Senators. If he is unwilling to do that, then I hope that the Senators will reject those nominees. This is how the system properly works.
Interpreting the Constitution requires making decisions on what is undue, on what is unreasonable. Those sorts of decisions are not culture free. Justice Thomas, as a black man, has a better understanding of whether a reasonable black person would interpret a cross being burned in their neighborhood as a direct threat, or simply as a political expression of a dislike for black people, than a white Justice does. Likewise, Judge Alito takes a very narrow view of what constitutes an undue burden in making abortion decisions, one on which a female justice might be less likely to agree. You would be comfortable with a SC composed entirely of white men. Would you also be comfortable with a SC composed entirely of conservative Shia religious scholars? I think that you might find that their definitons of reasonable, undue, and cruel and unusual might not match with your own.
Again, with reference to Kelo, what in the Constitution explicitly allows the SC to, as you desire, overturn the decision of a local government as to what constitutes “public use.” The constitution explicitly requires that property only be seized through due process, and that it be paid for if seized for public use. It does not say that it can only be seized for public use. Perhaps you find that somewhere in the penumbra, but you do not find it in the text.
> I regret that this appeared to you as such; it was not my intent.
Okay. I will attempt to interpret accordingly. ^_^
> In my lifetime, it seems to me and to many other people that some
> courts, and especially the Supreme Court, have taken it
> upon themselves to not only interpret the law, but to make new law,
> to force the law to mean things that either the legislature was
> silent on or that they explicitly opposed.
Can we agree that this is inherently a continuum, and accordingly the question is not so much procedural as a matter of degree and, more importantly, perception?
> That in turn invites damaging long-run actions; in this case,
> politicizing the courts to such an extent that new justices
> will be expected to legislate, and to do so in such a fashion as the
> electorate or their elected representative favor.
Granted. In fact, I’ll go further than ‘damaging’; I consider the elevation of ideology over judgment as a qualification for the higher courts an abomination against humanity, reason, and the law. So to this extent we have a point of agreement.
> However, no one has a right to expect that a behavior or activity
> that is not enumerated in the Constitution will be recognized
> as a basic human right and will not be able to be forbidden or
> regulated by a governmental body. What makes something
> reservable as a right in this country is the law, not the courts, and
> not the opinion of a minority that such a thing should be a right.
Let me observe here that I consider this essentially meaningless as a point of argument, although it’s useful in understanding where you’re coming from. If this is intended to convince rather than to illustrate, please let me know so I can explain why I feel this way. If you’re just explaining, then ignore this bit. ^_^
> It seems to me the thinking for those who support such judicial
> acts may be that “X should be a basic right. Since we
> haven’t been able to get the legislature to act, and since this is
> so unjust (justice delayed is justice denied), we should get this
> right via judicial action.”
I can’t really speak for others.
In terms of my opinions—there are some subtle issues of agency here, in that I think more in terms of “judicial action sometimes leads to the affirmation of rights” than “we should affirm rights through judicial action.”
That is, I don’t currently advocate proactively seeking rights through the courts, but I do recognize that judicial action can change the legal and social landscape, and laud this, and I also recognize that this leads to the exact problem you note above and below. It’s a subtle point of intentionality that I’m mentioning mostly for clarity.
> They may be right, and the majority may well be wrong. That’s not
> my point. My point is that by taking this action, you open up the
> Supreme Court to be subject to politicization.
Yes.
And no.
The problem is twofold.
First, even apolitical judgment is still inherently a political statement. You can’t avoid that because the judge has no power to prevent people from recognizing, rejoining in, or suffering the political consequences of their rulings.
In this respect, I believe that, all other qualifications being equal, a conservative will always recognize as “greater in judgment” a conservative and a liberal will always recognize as “greater in judgment” a liberal. The only question is how *much* honor we as a society are willing to allow those who disagree with us. In this regard the politicization of judges is not a single event but a constant, ongoing process in which the positive qualities of those judges opposite us in the political spectrum are devalued. In this respect we cannot consider the administration innocent, for there is little indication that they have done due diligence in this regard, that they have sought to scour the scales from their eyes and choose those whom, for all their disagreements, they must nevertheless respect as giants. This politicization is also a characteristic of the left in this situation—I am certainly personally less inclined to imagine Mr. Alito as an intellectual giant, given what I know of the political implications of his rulings and dissents. But even in the context of this polarization we must recognize that the context and agenda for this discussion is set by the administration and that for this reason in a very real sense it is fair on its face to tell them, “You should probably be the ones to take the first step in taking ideology off the table.” (Nor do I begrudge this argument to conservatives in a liberal administration.)
The second problem is simpler. If the minority in your example is in the right, then we cannot neglect to ask: “What of the legislature and the executive?”
Because it is tempting to cast this in the light of a desperate minority who, like a mistreated wolf, savages anything in its path on the route to freedom; but it is more valid, I think, to look at your example as a case of people under a potentially unconscionable burden realistically evaluating their potential hopes; and even more valid to imagine a case where the judiciary is in fact simply recognizing truths that the legislature and executive insist upon denying—that is, where the judiciary is not making law but recognizing and resolving a fundamental contradiction in the existing laws and practices. It is the function of the judiciary, when the law says that wives may not be beaten, to observe, “in this regard, the edifices of society and history that encourage such things are no longer acceptable.” In like fashion, it is the precise function of the judiciary, when confronted with a structure of law inconsistent in itself—such as the great body of law that insists upon equality for all American citizens and the great body of law that nevertheless insists upon codifying as inherent inequalities that are not—to resolve it, in a fashion that will inevitably and without obvious recourse appear as political, creative, and denouncable as activist.
Here I will list as an example the case I am most personally uncomfortable with that I think may have been correctly decided, which is the recent dismissal of a lawsuit offered by a woman who found that the police would not enforce the restraining order against her abuser. This is insanely political. It is destructive rather than creative, which is arguably a weakness in my example. It is certainly activist in effect. Yet it is also nothing more than a recognition of existing practices in law: the court had only to observe that restraining orders are just pieces of paper and that the law as yet equivocates over whether to assert a victim’s right to avoid harm for which they have forewarning. I am not sure whether I agree with the ruling, because I am not a lawyer, but it is one that I can imagine as properly motivated in the due course of a judge’s duty.
In like fashion, when I consider the civil rights advances made by judges, I can only imagine that, driven by the increasing awareness of the American population, they are able to recognize where the legislature and executive may not that some of the practices in law are hypocritical and contradictory in themselves, and that unless we are willing as a nation to write law that says, “Minority X is not people.” one cannot expect the judiciary in principle to uphold laws that on the one hand deny this and on the other assume it.
In summary, I have two points.
First, the more hypocritical the law, the more activist the judiciary.
Second, I think that you’re projecting the weight and burden of the controversy entirely to the other side.
I’m going to explain that by example, because every time I try to explain it from first principles it winds up really long. It might wind up objectionable, in which case, please recognize that I’m summarizing and emoting:
The sense of “look how feminist progress has made the right view judges politically!” feels to me like “look how you made that man hit you!”
Rebecca
Charles:
With reference to Kelo, it seems to me the appropriate part of the Constitution is:
nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
You are quite right in that the text here does not explictly forbid the taking of private property by the government for private use. In my view, however, that’s most likely because such an idea was too far-fetched for the framers of the Constitution to consider that they had to spell it out.
One of the major purposes of the Constitution is to sharply limit the power of the Federal government, and by later extension to all governmental bodies. If the Constitution does not specifically state “the government can do X”, then the presumption is that the government CANNOT do X. On that basis, since nothing in the Constitution says that the government can take private property for private use, they can’t do it.
The Supreme Court recognized this. This is why what the Supreme Court did not justify Kelo by saying that the government had a simple right to convey private property from one owner to another; they did not rule that the government has a right to take private property for private use. They instead justified Kelo by saying that since the governmental body had a specific development plan that was well thought out and was applied equally to all within it’s juristiction, and that the end result was believed by that body as benefiting the public as a whole through increasing tax revenue and creating jobs, the taking qualified as “public use”. That’s what everyone I’ve talked to found repugnant. That’s the kind of thing that the founders of this country took up arms against.
The Supreme Court ruled that the ends justified the means.
Fair enough, we both believe that there is an unenumerated penumbra of rights surrounding the constitution. Perhaps we differ in that you think that the only rights we should have are those that a group of great and glorious wise men thought we should have 200+ years ago (not just the ones they wrote down, but also the implied penumbra), where I think the penumbra changes over time. Do we have different concepts of public use now than the framers did? Sure. Do we have different concepts of cruel and unusual than the framers did? Sure. Should we be bound by the beliefs of the framers on these subjects? No. If they had wanted their specific senses bound into law, they would have done so. Instead, they used expansive and open language, capable of changing in its interpretation. Even if they did this by accident (which I don’t particularly believe they did), it is this flexibility that makes the constitution function. To continue to serve the needs of a rapidly changing society for 200+ years, the central institutions need to be able to adjust. Our constitution is extremely hard to modify (a bad choice on the framers part), so most of the flexibility has to come from the broad quality of most of the constitutional language.
Again, finding the other way in Kelo requires an activist court, willing to substitute its own judgement of public use for the judgement of both the local legislature and the local executive.
What you would like is a court that would have legislated a bright line standard on the nature of public use (as the dissent suggested) that would forbid economic development as a public use goal. Instead, we have a slim majority that chose to defer legislation to the legislatures, and restrict itself only to the most egregious of violations.
In response to Kelo, multiple legislatures have passed clarifications that Kelo type takings are unacceptible in their domain. Surely this is exactly what you desire when the subject is not the expansion of property rights. Why is it that you want an activist court to legislate from the bench on the expansion of property rights?
This is already a court that is very active in overturning legislation and setting new bright lines (legislation), so it is not a question of the court becoming less invasive. The court hasn’t done significant legislation from the bench in a progressive direction (Miranda, Roe, etc) in a very long time, but it has been overturning progressive legislation (VAWA components, ADA components, etc) for about a decade. What we are about to see, and what you are clearly hoping for is that we will start getting right wing legislation from the bench shortly. Right wing goals like abolishing SSI will never be achieved through an elected legislature (as SSI is extremely popular, anyone who voted to abolish it would be out on their ear in the next election), but an activist right wing court could easily do so.
Fortunately, even with Alito, the court is only as right wing as Kennedy (which is far to the right of me, but not into nation destroying territory). As well as doing as much as we can to block the confirmation of Alito, we must hope that the other justices can survive for another 3 years.
“Can we agree that this is inherently a continuum, and accordingly the question is not so much procedural as a matter of degree and, more importantly, perception?”
It is at least a perception. It might be more than that, it might be reality, but at minimum the perception is sparking a particular reaction.
Granted. In fact, I’ll go further than ‘damaging’; I consider the elevation of ideology over judgment as a qualification for the higher courts an abomination against humanity, reason, and the law. So to this extent we have a point of agreement.
“If this is intended to convince rather than to illustrate, please let me know so I can explain why I feel this way. If you’re just explaining, then ignore this bit. ^_^”
I confess I’m not sure where you’re coming from, so let me rephrase a bit. The Constitution lists certain things as rights that the Federal government is bound to protect against encroachment. If something is not listed as such in the Constitution, then it’s in play as to whether or not that something is a right reserved either to the States to regulate, or whether it’s reserved to individual citizens to exercise without regulation at all.
“In terms of my opinions…there are some subtle issues of agency here, in that I think more in terms of ‘judicial action sometimes leads to the affirmation of rights’ than ‘we should affirm rights through judicial action.'”
“That is, I don’t currently advocate proactively seeking rights through the courts, but I do recognize that judicial action can change the legal and social landscape, and laud this, and I also recognize that this leads to the exact problem you note above and below. It’s a subtle point of intentionality that I’m mentioning mostly for clarity.”
I grant the distinction and appreciate the clarification.
“First, even apolitical judgment is still inherently a political statement. You can’t avoid that because the judge has no power to prevent people from recognizing, rejoining in, or suffering the political consequences of their rulings.”
Lack of action can be seen as action favoring the side whose agenda is furthered by said lack. But the justices have no choice; they either have to act, or not act. But the difference is, if the justices act according to their own political/social feelings, then the electorate has little recourse other than to try to get the legislature to impeach the justices. Whereas is the justices act according to a reasonably narrow viewpoint of the law alone, the electorate can pressure their legislature to change the law with a reasonable expectation that the law will hold up when the courts interpret them.
It is tempting these days to say that we are polarized, and are failing to accord much honor to our opposition. Examination of the political record of the Civil War and the McCarthy era, or even before, will refute this. But it is much easier to rally the troops through the Internet, etc., than it used to be. As far as one administration or another saying, “Enough, it’s time to end this”, part of the problem is that the present Administration explicitly ran on a platform plank of nominating “originalists” to the Supreme Court; justices who will construe the Constitution’s language as close to the writers’ intent as possible. Let the legislature do any expansion they may, not the justices. The other part is that while the left tends to say of the present court “It’s centrist”, whereas the right says, “It’s leftist”; the right thinks putting Alito in will bring it to the center, where the left thinks putting him in will bring it to the right. Or, at least, that’s their public positions.
The second problem is simpler. If the minority in your example is in the right, then we cannot neglect to ask: “What of the legislature and the executive?”
“… it is more valid, I think, to look at your example as a case of people under a potentially unconscionable burden realistically evaluating their potential hopes; and even more valid to imagine a case where the judiciary is in fact simply recognizing truths that the legislature and executive insist upon denying…that is, where the judiciary is not making law but recognizing and resolving a fundamental contradiction in the existing laws and practices.”
True. A lot of that depends on what’s in the law that may or may not be contradictory. For example, when laws that are racially discriminatory are struck down, the people who made the laws or favor them may cry “judicial activism”, but no one respects that because there are clear provisions in the Constitution that forbid this. But when the Supreme Court takes the right to regulate abortions away from the States, we have lasting controversy because there is nothing in the Constitution that clearly forbids this, and it appears that the Court’s decision was political rather than legal; that they fit their legal arguments to the desired end instead of vice versa.
Here I will list as an example the case I am most personally uncomfortable with that I think may have been correctly decided, which is the recent dismissal of a lawsuit offered by a woman who found that the police would not enforce the restraining order against her abuser.
I am not familiar with this case. Can you expand?
In like fashion, when I consider the civil rights advances made by judges, I can only imagine that, driven by the increasing awareness of the American population, they are able to recognize where the legislature and executive may not that some of the practices in law are hypocritical and contradictory in themselves, and that unless we are willing as a nation to write law that says, “Minority X is not people.” one cannot expect the judiciary in principle to uphold laws that on the one hand deny this and on the other assume it.
Again, though, in considering the progress of civil rights laws in the U.S., the 13th and 15th Amendments gave the Supreme Court justification in helping this advance, and then there was the action of the legislature in the Civil Rights Act of 1965. Racial equality isn’t something that the Supreme Court would be perceived of making up out of whole cloth.
“In summary, I have two points.”
“First, the more hypocritical the law, the more activist the judiciary.”
Granted – but then you get into judging whether or not a particular body of law is hypocritical.
“Second, I think that you’re projecting the weight and burden of the controversy entirely to the other side.”
“I’m going to explain that by example, …”
“The sense of ‘look how feminist progress has made the right view judges politically!’ feels to me like ‘look how you made that man hit you!'”
Yeah. Overall I’ll grant you that. Now consider what’s “progress”. Equal pay for equal work? Definitely! There’s a clear national consensus there. Equal pay for equivalent work? Hm. Now someone has to judge whether one particular job is as worthwhile as another. Some cases are clear, some not so. Abortion on demand? Many view that as regression, not progress, and an enormous controversy ensues, and you end up with our present situation.
“Fair enough, we both believe that there is an unenumerated penumbra of rights surrounding the constitution.”
I’ve wondered about the use of penumbra. Is there a legal definition of that word, outside of it’s Roe vs. Wade context? I’m a bit of an amateur astronomer. A penumbra is the partial shadow cast onto one celestial body (e.g., the Earth) when another celestial body (e.g., the Moon) partically but not completely occludes light from a source (e.g., the Sun). The part of the shadow that’s completely dark is the umbra. Throwing it around in a decision like Roe vs. Wade seems pretty imprecise and questionable to me; but then, if there is a specific legal usage for it, I’d like to be informed.
“Perhaps we differ in that you think that the only rights we should have are those that a group of great and glorious wise men thought we should have 200+ years ago (not just the ones they wrote down, but also the implied penumbra), where I think the penumbra changes over time.”
Well, I don’t think that there’s such a thing as an implied penumbra, although again I’m willing to be educated on the use of that term.
No, we don’t differ in thinking that the only rights we should have are those written up by the framers of the Constitution. Where we may differ is in how any additional rights (or expansions of existing ones) should be accomplished. To my view, if something is a logical extension of an existing right (say, the right to blog, where the Constitution mentions only speech and the press), there should be a simple and logical means to get from point A to point B. No “penumbras” allowed. If it is not a simple logical extension of an existing right, then we should use the legal mechanism set up by the framers to change the law; either by Federal or State law or by amending the Constitution. The judiciary should have no role in creating new law.
“Instead, they used expansive and open language, capable of changing in its interpretation.”
That you would get a lot of argument about. This is part of the heart of the matter. Some want the courts to be blatantly conservative, but many want the courts to be “originalist” and narrow and throw controversy to the elected officials instead of appointed ones.
“Our constitution is extremely hard to modify (a bad choice on the framers part), so most of the flexibility has to come from the broad quality of most of the constitutional language.”
No, I think it’s a good choice. If it was easy to modify, it would be easy to take away unpopular rights (like the right to burn an American flag in protest, or practice the Islamic religion). New rights can be recognized by the legislature with little fear of contradiction from the Court. To say that the Courts have to do that because the legislature won’t is to set the judgement of 9 unelected and difficult to remove officials above the judgement of 535 elected and much more easily removed officials. The former may get you what you want, but beware when the tide turns, as it appears it’s about to.
“Again, finding the other way in Kelo requires an activist court, willing to substitute its own judgement of public use for the judgement of both the local legislature and the local executive.”
Actually, from my viewpoint, making the judgement that the objective of taking property from the private use of one owner and conveying it for the private use of another owner does not constitute public use is not judicial activism but a clear reading of the Constitution.
“What you would like is a court that would have legislated a bright line standard on the nature of public use (as the dissent suggested) that would forbid economic development as a public use goal. Instead, we have a slim majority that chose to defer legislation to the legislatures, and restrict itself only to the most egregious of violations.”
Well, they certainly did openly invite the legislatures to restrict such activity. But this is the first time that I’m aware that the Supreme Court defined “public use” as anything that the public in fact did not use. In Kelo, none of the property that was taken ended up owned by the public. None of it was used by the public, unless there’s a public park in there I’m not aware of and any public roads. That’s what got everyone up in arms. Absent the exceptions above, every bit of the property that was taken ended up owned by a private owner. The fact that this increased economic activity in the area is hopefully true but is not guaranteed – businesses do fail, after all, or leave when their tax incentives are used up. But since when is economic activity “public use”?
“In response to Kelo, multiple legislatures have passed clarifications that Kelo type takings are unacceptible in their domain. Surely this is exactly what you desire when the subject is not the expansion of property rights. Why is it that you want an activist court to legislate from the bench on the expansion of property rights?”
Because I’m not asking for the expansion of property rights. I’m asking for their maintenance as intended by the Constitution. Obviously, 5 justices disagreed with me. But I think they confused a public policy goal (increase economic activity) with a property right (private property ownership). The concept that the goal of the prospect of increased economic activity constitutes “public use” and overrides defined private property ownership is anathema to me, and to me is actually “judicial activism”.
“This is already a court that is very active in overturning legislation and setting new bright lines (legislation), so it is not a question of the court becoming less invasive.”
Ah, but I think Kelo was highly invasive; it gave the government a way to interfere with my property rights that very few people imagined that it had before.
“The court hasn’t done significant legislation from the bench in a progressive direction (Miranda, Roe, etc) in a very long time”
Ah, so you define Roe as progress? I beg to differ.
“but it has been overturning progressive legislation (VAWA components, ADA components, etc) for about a decade.”
I confess I don’t even know what VAWA is. Is that the “Violence Against Women Act”? What was done there?
“What we are about to see, and what you are clearly hoping for is that we will start getting right wing legislation from the bench shortly.”
No, I don’t want any legislation from the bench. Unless a particular case involves a violation of the clear language of the Constitution, I want the Court to say, “When the law was enacted, ‘x’ was intended; if you want a change, go to the legislature”
“Right wing goals like abolishing SSI will never be achieved through an elected legislature (as SSI is extremely popular, anyone who voted to abolish it would be out on their ear in the next election), but an activist right wing court could easily do so.”
Then I would not favor the Court (nor, in my case, the legislature) abolishing SSI.
“Fortunately, even with Alito, the court is only as right wing as Kennedy (which is far to the right of me, but not into nation destroying territory). As well as doing as much as we can to block the confirmation of Alito, we must hope that the other justices can survive for another 3 years.”
I think Alito will be confirmed, although Sen. Spector is going to put it off until the new year. We’ll see about the other justices.
Gengwell, you are living in a dreamworld if you think that “notification” doesn’t equal permission. As has already been pointed out, the situations that Alito thought didn’t constitute an undue burden to the woman would preclue she and her husband making a decision “together.”
> However, no one has a right to expect that a behavior or activity
> that is not enumerated in the Constitution will be recognized
> as a basic human right and will not be able to be forbidden or
> regulated by a governmental body. What makes something
> reservable as a right in this country is the law, not the courts, and
> not the opinion of a minority that such a thing should be a right.
I have decided I should probably clarify my response to this. ^_^
There is a hole in the law.
Our basic ideas in how to understand and approach the law—how to think about the law, how to think about the Constitution, what it means to have a Constitution—aren’t spelled out in the edifice of law.
They can’t be.
So in the end no matter how you detail the *rules* of law, there’s going to be the hole. In the end, you have to rely on people to generate real-world actions from those rules. In the end you have to rely on how people think about the Constitution, the law, and how it all works.
That understanding isn’t simple.
So the way I think about that hole is that behind the ungainly words and statements of the law, there is a fabric—
Like the fabric of space/time in physics, or the genre of a novel.
Individual laws and documents such as the Constitution exist in the context of the greater fabric of law.
You’ve explained how Constitutional law works as a series of rules. But the thing is, those rules are meaningless if we don’t have the same understanding of the fabric of law behind them. Here’s what I mean. If I think of something as consonant with the law and you don’t, and a judge agrees with me, then you’d call that an action of the courts. I’d call it an action of law. Very little has been resolved!
So that’s why I described what you wrote here as essentially meaningless, except as an explanation of how you think. It’s full of ideas that only make sense once pinned to the fabric of law and the similar fabric of ethics—and as a whole it only *really* works if they’re pinned to fabrics that work very much like you think they must.
It should be pretty obvious that “precedent and the customs for using it” are part of that fabric, for example, as is the legacy of common law.
When I talk about rights that are not explicitly enumerated, it’s important to understand that I don’t mean somehow adding invisible amendments to the Constitution or invisible riders on laws or secret rules to hang on the wall of a judge’s club. I’m not talking on the same level as the documents of law at all. I’m talking about how I think the fabric of law needs to work to hold together and to accomplish the purposes of law.
I’m pretty sure that there are multiple valid ideas regarding what the fundamental purpose for law *is*, and also multiple valid ideas regarding what that purpose *should* be. But I’m not aware of any good studies for the first, and there’s no real authority for the second.
[there are display oddities in the preview of this post, but I think they are merely artifacts. If the second paragraph makes no sense, and jumps from “I happened to run across” to a link to Midkiff, then I was overly optimistic.
RonF,
I’m going out of town for the weekend, so I won’t be responding to anythign else until Tuesday.
I happened to run across this post about Kelo that I thought you might find interesting.
This is Sasha Volokh, who was involved in an early phase of arguing Kelo (long before it got to the SC).
The key part from my point of view is this:
So here is one of the people who argued the case saying that having the courts set a bright-line on what is public use would be changing the law. Deciding that the legislature and local executives have huge flexibility to define public use is not changing the law. Deciding that indirect public benefit can legitimately fall within that definition, if the local legislature or executive say it does, is not changing the law. Saying that federal courts have the power to set a bright line definition of public use, and that that definition does not include indirect public use is changing the law (and if it included a bright line, then it would be legislating from the bench).
Also interesting is this comment in the update:
So Sasha agrees that what he favors is judicial activism. I agree.
Oh, also, I realized the position I was mockingly arguing from was textualist (“where does it say the government can’t take for private gain, so long as due process is followed?”). However, there doesn’t seem to be a clear or meaningful distinction between the two. There is a Volokh post about Kelo that asks the exact same question I asked.
Also: fine, you don’t define Roe as progress, but you can’t help but define it as liberal, left-wing, or progressive. And anyway, that is a total side-steping of my obvious point. What was the last court action that you consider to be activist and liberal rather than activist and conservative? If you don’t count Roe, since it apparently isn’t progressive in your view, what does that leave?
And finally, Kelo wasn’t particularly precident setting. It basically reiterated Midkiff, a unanimous decision from 1984 favoring takings for public benefit (and written, and setting forth the position that public use is whatever the legislature says it is. From the above link:
It is also not far off from Berman, from 1954, which allowed the seizure of “blighted areas” with no requirement that the land be publically owned or accessible afterwards. This was the basis for the wave of “redevelopment” in the 50’s through the 70’s.
Now, just to be clear, I think that New London should probably not have been allowed to seize the land, I think Midkiff was rightly decided, and I think that much of the redevlopment seizures of the 50-70’s were highly problematic because (as Thomas points out after a somewhat tortured originalist argument on the late 18th c meaning of public use) they disproportionatly were used against pooor and nonwhite people, and were frequently used to destroy entire nonwhite neighborhoods.
However, I just don’t see how any of those decisions were wrong from an originalist or a minimalist view point. The originalist arguement in this case seems weak (and I am no fan of originalist arguments in any case, as I simply don’t accept that we should be strictly guided by the preferences of late 18th c slave owners in how we structure our society or our government), and defering to the legislature is decidedly minimalist and certainly not activist.
That Aaron would prefer a court that returned to a pro-rich people, late 19th c interpretation of the pre-eminence of property rights, and that you’d like a court that didn’t recognize the rights of women or gays (or however you’d prefer to describe your political preferences, I realize that that is an unfair short-hand) I understand and accept. But that you pretend that you merely want an apolitical court that enforces the true meaning of the Constitution (which happens to correspond 90%+ of the time with your politics) is unconvincing and silly.
> Granted – but then you get into judging whether or not a
> particular body of law is hypocritical.
I am specifically thinking of a body of law that produces contradictions when you try to use it—so that judges really have no choice but to note hypocrisy.
I’ll respond to this and the rest of your post in more depth later. ^_^
Rebecca
Rebecca,
You and I have been having pretty much entirely seperate conversations with RonF (yours being the more interesting discussion, since mine is largely snarky argument, although mine has improved recently), so we haven’t really interacted, but I just wanted to mention that I love your most recent post.
Also, would the hole in the law count as a wogly? ;)
Oops! By most recent, I meant post 36.
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HELL NO TO ALITO!!!
I’m OK with Sammy A.
Hm. Two people responded to a post of mine, and I managed to lose track of the whole thing. Lengthy posts, too, which I confess I have little time to respond to. I’ll try to be brief and yet responsive.
As far as Kelo goes, I understand that there are precedents closer to this decision that have passed muster. All I can say is that I don’t agree with those, either.
Rebecca, the core of your post seems to me to be:
So in the end no matter how you detail the *rules* of law, there’s going to be the hole. In the end, you have to rely on people to generate real-world actions from those rules. In the end you have to rely on how people think about the Constitution, the law, and how it all works.
That understanding isn’t simple.
So the way I think about that hole is that behind the ungainly words and statements of the law, there is a fabric…
Like the fabric of space/time in physics, or the genre of a novel.
Individual laws and documents such as the Constitution exist in the context of the greater fabric of law.
I have to say that this seems a bit metaphysical to me. I can’t quite get my fingers around it. I think that the authors of the Constitution had very specific ideas about what they meant when they wrote it. The best guide to that is the Federalist Papers, a series of some 80+ essays written about the Constitution written by 3 of it’s authors in New York papers in an effort to convince the voters of that state to adopt it.
Imagine a world where enough voters would read 80+ essays on a matter before the electorate to make it worthwhile for a paper to print them. How much have we really progressed?
In any case, it seems to me that any legislative body has some very specific intents when they write and pass laws, and those intents are spelled out in the laws themselves and in the legislative debates and hearings about them. To say that there’s a fabric to the law in which they are set and by which they must be interpreted seems to take away from the legislature’s intent. It seems like an appeal to a higher law, which the likes of Pat Robertson would love.
In any case, I think that such a thing puts too much power in the hands of the judiciary. Hell, I think that’s what happened with Kelo and the precedents that led up to it. Now, with a conservative majority that might work out in my favor in some cases. But I’ll concede away that advantage if it means that it doesn’t work to my detriment when a liberal court is seated. I’d rather take my chances with the legislature.
My political preferences; I think that the recognition of the rights of women is one of the things that will keep the U.S. pre-eminent in the world over countries that have the happy accident of sitting on top of resources we’ll pay well to use. Human capital always prevails over monetary capital; in the long run, the former generates the latter, but not vice versa. As long as countries push down the status of their women, they will never be able to join the modern world. As far as the rights of homosexuals go, I’m in favor of making sure the government has no right to discriminate against them, especially in such areas as housing, employment, etc. But you and I may differ on what other things constitute discrimination, or what rights the government has to discriminate against people and organizations who discriminate against homosexuals.
(and I am no fan of originalist arguments in any case, as I simply don’t accept that we should be strictly guided by the preferences of late 18th c slave owners in how we structure our society or our government),
A neatly dismissive phrase for a group of men who managed against all odds to set up a form of government that helped a group of 13 colonies become a great nation. I actually favor the preferences of the 18th century non-slave owners, who according to the references I’ve been able to find formed a majority at the Constitutional convention. There were some deep flaws in their work, the chief one (permitting slavery) for which this country paid with hundreds of thousands dead, millions wounded or displaced, lost human resources and spirit, and a division that lasted for generations. But flawed as it was, none the less it was a great accomplishment that has led to a nation that overall has led the fight for freedom and liberty in the world.
Surely I’ll now be pummeled with a list of all the U.S.’s missteps; the tyrranical regimes we’ve supported (another deep flaw, I’ll readily concede). You’re all right. But you know what? We’ve also spent huge amounts of money, time and lives to fight tyranny as well; first for our own benefit, and then all over the world.
It’s right to point out the mistakes that the U. S. has made. I’m no fan of upholding a tyrannical regime because it seems to be to our advantage. We should maintain our principles. But it’s important to remember that they are our principles, and that unlike most countries we actually expect to live up to them.
This will make some of you think of “my country, right or wrong”. But that’s a bit of a misquote. What the man said was, “Our country right or wrong. When right, to be kept right; when wrong, to be put right.” There is no question in my mind that there are many things to be put right in the U.S.; I suppose that you and I might disagree on what those things are. But at least we all get to argue that point; that’s something that the majority of people in the world either can’t do at all, or have great restrictions put on them.
Those 18th century men had the unique if imperfectly expressed idea that governments are only legitimate if they have the consent of the governed, and that said consent should not be restricted to a small nobility or aristocracy. Through trial and error, war and peace, this idea has expanded first in our own country and now across the world. This truly radical idea is so pervasive that even the worst despots pay lip service to it; and it’s modern genesis is here. I think there is much to be proud of in the work they did, and the progress that has come of it.
You know, I would never be accused of being in any sense liberal. It is far more likely that I would be placed deep in the middle of the “vast right wing conspiracy”. Moreover, when it comes to some of the Democrats on the Judiciary Committee, I find myself so diametrically opposed to their ideologies that it is only by the wondrous tenant of free speech in this country that we could abide to live here together. And amongst that smaller group of which I find myself almost universally opposed to, no one is higher on the list than Sen. Dianne Feinstein.
But, I also believe in the principle of giving props when they are due. So, it is with utter dismay that I declare that she receives my vote for the most honest, fair, and productive questioner in Judge Alito’s confirmation hearing.
As a matter of fact, I concur with the Alito Hearing Verbosity Index published over at Nihilist In Golf Pants which has all Democrats in the top 5 (it should be no surprise who they are and it should be no surprise that Kennedy and Biden are not amongst them). Indeed, I wish that all I had to do was listen to these five through the hearings. (Actually I read the transcripts and I stopped looking at everybody but Feinstein, Durbin, Feingold, and Kohl by day 3).
Let it also be know that the Republican Senators, love them as I do, could have just as well stayed home (with the possible exception of the chairman). I stopped reading their questioning after Day 2. What a waste. I have better things to go cross-eyed over than shameless cheerleading which, if things pan out as expected, was totally unnecessary to begin with.
Now, those of you here at Alas may disagree. You may have found the questioning of Sen. Kennedy more to your liking or the questioning of Sen. Schumer more incisive and damaging to the nominee. So be it. But as of now, I have a much greater appreciation for the Senator from California and may find occasion in the future to listen more closely to what she has to say.
I was reading Scalia’s dissent in Gonzales v. Oregon yesterday. It was typical Scalia (IMO) – sarcastic and disdainful of both his fellow justices and the court he sits on.
As I read through it an interesting thought crossed my mind. Just for fun, let’s say Alito was replacing Scalia instead of O’Connor.
I wonder if opposition to him from Democrats would be as large. My guess is no. My guess is that the vote for him would come out at least as lopsided as the Roberts vote if not more so. My guess is that Democrats would be thrilled to get anyone less “Scalia” than Scalia and would thank their lucky stars that they got Alito. I think this because that was their stance with Roberts. “At least he is replacing Renquist so it’s a ‘push’ as far as ‘balance of the court’ goes.”
Presuming that’s true, what does that really mean Democrats stand for in this context. Do they really have such little regard for a nominee’s actual qualifications to be on the court? Is it really all about moving the court in one direction or another?
Based on their questioning of Judge Alito it would seem so, and I think it’s shameful. Of course, maybe that is why the Democrats have been so miserable at getting traction against these last two nominee’s. Maybe that is why the public in general could care less about these hearings. I’m happy to say the Democrats could really learn something from their Republican peers here: approve qualified candidates regardless of the direction they are likely to move the court (can you say Ginsberg and Breyer?)
A prediction – the Republicans will not stay in the Whitehouse forever (that’s not the prediction). The next time a Democrat president nominates a qualified “liberal” judge to replace a “conservative” judge the Repulicans will engage that nominee in a lively debate about the constitution and the courts and then overwhelmingly confirm them regardless of the direction they will move the court. That’s because, in this situation, the Republicans know how to do the right thing.