Bush Picks Miers for Supreme Court Slot

[Baptist in Richmond]

Originally posted by Chick Daniels:
BiR...again, you miss the whole point of the terminology "legislating from the bench." It is not that they go through the exact same processes as does the legislative branch and come out with a "law", rather, in case after case, they overstep their bounds, go way beyond the constitution and make decisions that SHOULD be made in the legislative branch, by the PEOPLES elected representatives. As such, they legislate from the bench, usurping the power that was reserved for the legislative branch.

You are mistaken. The Judicial branch simply interprets the law. They do not make it, despite the repeated claims to the contrary by just about every participant in what David Brock called the "Republican Noise Machine." It's not that I am missing the point, I simply reject the notion..............categorically. The Supreme Court DOES NOT legislate from the bench.

Go back and read the Federalist Papers and you will not find such power vested in the Judicial Branch.

No, but you will find this in Marbury v. Madison. The opinion was written by a fellow Richmonder by the name of John Marshall, who coincidentally was a Federalist.

Regards,
BiR

 

[Baptist in Richmond]

ScottJ:

My apologies as I have not been checking the board lately. I am SWAMPED at work, and have a ton of stuff to do before I leave for Newark next week.
To reply to your statements:

Originally posted by Scott J:
I think Limbaugh is opposed to this pick also... but he doesn't speak for all conservatives and more than Barbara Boxer speaks for all liberals.

Have you been listening to Limbaugh? I have, and I certainly haven't heard this.

Originally posted by Scott J:
</font><blockquote>quote:</font><hr />Originally posted by Baptist in Richmond:
Yes, I hear Sean Hannity saying this all the time. Rush Limbaugh does too. Could someone please show me any legislation that has actually been written by the courts?

That a woman has a "right" to an abortion. Whether you believe it should be legal or not, you cannot derive that right out of the Constitution without inserting your opinion between the lines of text.</font>[/QUOTE]Read the decision handed down in Roe v. Wade, ScottJ. There was no legislation written by the courts.

Most recently the SCOTUS ruled that gov't's have the right to take private property from one person and give it to another person if they believe it will be more beneficial to "the whole". This is a new right that directly contradicts the property rights established by the founders.

Again, there was no legislation written. Read that decision.

Originally posted by Scott J:
BTW, BiR/Daisy, Are you denying that the predominant view of the Constitution amongst liberals is that it is a "living document" that can be molded as the judiciary sees fit?

The Constitution IS a "living document." But it can only be interpreted by the judiciary. Again, please show us any legislation that has been written by the judiciary. I have asked this prior, and have yet to see anyone do this.

Regards to you, ScottJ,

BiR

 

[fromtheright]

BiR,

Read the decision handed down in Roe v. Wade, ScottJ. There was no legislation written by the courts.

I disagree. I don't believe the trimester formula, which certainly seems legislative to me, can be gleaned anywhere from the Constitution, even from a privacy standpoint. Such a formulaic approach smacks of legislation to me. And as to precedent during the time of the 14th Amendment, Rehnquist pointed out that at the time of its adoption 36 states had laws limiting abortion.

In part IX of the decision, they made what certainly sounds like another legislative decision:

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.

They said that they need not resolve that question while implicitly doing that very thing. Their ducking of that question has the same effect as deciding that it is not worth protecting (or, more accurately, not worth allowing Texas to make that decision).

Rehnquist observed in his dissent that the Court didn't follow its own precedent even in the method by which they legalized abortion. He noted that

Even if one were to agree that the case that the Court decides were here, and that the enunciation of the substantive constitutional law in the Court's opinion were proper, the actual disposition of the case by the Court is still difficult to justify. The Texas statute is struck down in toto, even though the Court apparently concedes that at later periods of pregnancy Texas might impose these selfsame statutory limitations on abortion. My understanding of past practice is that a statute found [410 U.S. 113, 178] to be invalid as applied to a particular plaintiff, but not unconstitutional as a whole, is not simply "struck down" but is, instead, declared unconstitutional as applied to the fact situation before the Court.

Again, there was no legislation written. Read that decision. (Kelo)

IMO, the problem that decision demonstrates is the hazards of being blinded by precedent to the Constitution itself.

The Constitution IS a "living document." But it can only be interpreted by the judiciary.

I'm sure you can guess my response to this: was it a living Constitution that led to Plessy v. Ferguson? Did they find "separate but equal" in the Constitution or was that legislating from the [high] bench?

I do agree with the doctrine of judicial review, that the Supreme Court is in the position to render a final binding interpretation of the Constitution (though there is an excellent historical/legal study by Robert Lowry Clinton concluding otherwise (Marbury v. Madison and Judicial Review)). To me, however, that is even more argument against the doctrine of a living Constitution. Judges who are bound to render an authoritative interpretation of the Constitution should not be free to import legal or other philosophical currents ("At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life." Planned Parenthood v. Casey) into their opinions. Another problem created by the living Constitution approach is that it tends to focus, to the extent that it focuses at all, on stare decisis and not the Constitution. Now, I certainly understand the value of stability; in fact, that is one of the hallmarks of the rule of law. But what "precedent" tends to concentrate on is recent precedents in Court decisions rather than the precedent of the Constitution itself and the history and tradition built into it.

I would add, BTW, that there is an easy defense to Chick's argument that judicial review is not found in the Constitution. It is most specifically found there, in Hamilton's Federalist 78. However, I would agree with him probably that Courts have taken it far further than intended by Hamilton.

BiR, I hope this finds you well and that all goes fine for you in Newark.

BTW, my apologies to KenH for going off the OP topic.

 

[Scott J]

Originally posted by Johnv:

So is it your assertion that slavery was not a right? I'm not arguing here, just clarifying.

Yes.

 

[Scott J]

Originally posted by Baptist in Richmond:
ScottJ:

My apologies as I have not been checking the board lately. I am SWAMPED at work, and have a ton of stuff to do before I leave for Newark next week.
To reply to your statements:

</font><blockquote>quote:</font><hr />Originally posted by Scott J:
I think Limbaugh is opposed to this pick also... but he doesn't speak for all conservatives and more than Barbara Boxer speaks for all liberals.

Have you been listening to Limbaugh? I have, and I certainly haven't heard this.</font>[/QUOTE] Nope. Read it on one of the conservative news blogs.

I seldom listen to Rush. I agree with him often but he is a blowhard who is no longer very entertaining.

</font><blockquote>quote:</font><hr />Originally posted by Scott J:
</font><blockquote>quote:</font><hr />Originally posted by Baptist in Richmond:
Yes, I hear Sean Hannity saying this all the time. Rush Limbaugh does too. Could someone please show me any legislation that has actually been written by the courts?

That a woman has a "right" to an abortion. Whether you believe it should be legal or not, you cannot derive that right out of the Constitution without inserting your opinion between the lines of text.</font>[/QUOTE]Read the decision handed down in Roe v. Wade, ScottJ. There was no legislation written by the courts.</font>[/QUOTE] Then please cite where the constitution guarantees the right to an abortion. It doesn't. As I said that was contrived by liberals by twisting Amendments that protect legitimate rights.

Applying the same logic used to allow abortion in Roe v Wade, states likewise have no authority to outlaw murder, rape, or any other crime.

</font><blockquote>quote:</font><hr />Most recently the SCOTUS ruled that gov't's have the right to take private property from one person and give it to another person if they believe it will be more beneficial to "the whole". This is a new right that directly contradicts the property rights established by the founders.

Again, there was no legislation written. Read that decision.</font>[/QUOTE] Give me a break. The "right" did not exist before that ruling. It did exist afterwards.

I understand. You are a liberal and you need this kind of thing to get your agenda through since it can't be done through the legislative process designed by the founders.

</font><blockquote>quote:</font><hr />Originally posted by Scott J:
BTW, BiR/Daisy, Are you denying that the predominant view of the Constitution amongst liberals is that it is a "living document" that can be molded as the judiciary sees fit?

The Constitution IS a "living document."</font>[/QUOTE] No. It isn't. It was written to enumerate and protect certain rights. Only the applications are subject to interpretation- not the letter of the law.

The founders were "strict constructionists". Realizing they couldn't account for everything they created a means to amend the Constitution.

Liberals, unable to meet constitutional muster with their ideas, created the idea of a "living Constitution" so they could effectively ignore the rule of law and establish the rule of men.

But it can only be interpreted by the judiciary.

The problem is that with rulings like Roe v Wade... they aren't interpretting. They are writing their opinions between the lines and thus circumventing the process prescribed by the founders for changing the Constitution.

I have asked this prior, and have yet to see anyone do this.

Actually we have, you just disagree. I respect your right to be wrong.

 

[Johnv]

Originally posted by Scott J:
</font><blockquote>quote:</font><hr />Originally posted by Johnv:

So is it your assertion that slavery was not a right? I'm not arguing here, just clarifying.

Yes. </font>[/QUOTE]On the issue of moral right, I couldn't agree with you more, Scott. It's actually refreshing to hear someone say that. There is no shortage of people on this bb who will say slavery is not wrong.

 

[Scott J]

Originally posted by Johnv:
</font><blockquote>quote:</font><hr />Originally posted by Scott J:
</font><blockquote>quote:</font><hr />Originally posted by Johnv:

So is it your assertion that slavery was not a right? I'm not arguing here, just clarifying.

Yes. </font>[/QUOTE]On the issue of moral right, I couldn't agree with you more, Scott. It's actually refreshing to hear someone say that. There is no shortage of people on this bb who will say slavery is not wrong. </font>[/QUOTE]I don't think that the founders drew the same distinction as you do between one's "moral" and legal rights. They were however tragically inconsistent when they wrote in an allowance for slavery.

History seems to suggest pragmatism as a cause for this. The Revolution itself had already been viciously divisive. Tories probably outnumbered patriots- especially in the south. In the south, most of the rich and aristocracy were tories... they had much to gain from the status quo and much to fear from change. The war easily could have broken out anew had slaves been freed.

Back to the topic. The founders held as I have cited that rights are not the inventions of men. They cannot be created. They can only be recognized and protected or denied and confiscated.

In the case of Roe v Wade, the rights of one individual were dispensed with in favor of extending a legal privilege to another.... similar to the property rights ruling.

 

[Johnv]

It's well known that Jefferson would have been more than happy to write into the Constitution the abolition of slavery. However, knowing that this was an incredibly devisive topic of the day, he and the other framers chose their battles carefully. Jefferson noted that slavery was unfortunately a necessary evil that future generations would have to resolve. And as it was, that resolution came at a very high price. There are likewise those who see the issue of abortion as a current necessary evil, that future generations will someday have to resolve. I tend to concur with that view.

I like the word you used: pragmatism. It was a valid and wise move on the part of the framers.

 

[Scott J]

Just when I thought we were going to agree on some of these finer points...

I disagree that the framer's pragmatism was either wise or valid. I don't believe that it is ever good or right to do something wrong to get a chance to do something right.

As you yourself allude to, it took a blood bath and 100 years of antagonism and racism to "resolve" the abomination of the denial of God-given rights to blacks. Granted hindsight is 20-20 but I don't think that it could have been any worse and would have likely been much better if the founders had handled the issue themselves.

OTOH, the solution might have been something on the order of Liberia. That certainly hasn't become a shining success story.

Jefferson was certainly an interesting contradiction.

 

[Johnv]

Okay, we're going to have to find some other point to agree on. Like the ffact that Jefferson was indeed an interesting contradiction.

 

[Matt Black]

Re the OP, my first question to her would be, "As a non legislating strict constructionist believer in states' rights, how would you have voted in Bush v. Gore (2000)?"

 

[carpro]

To which she should promptly and properly respond that her voting record is private and has no bearing on any matter likely to come before the court.

 

[Daisy]

I think Matt's question has to do with how she would have voted as a Supreme Court Justice deciding this particular case, not who she voted for in an election.

 

[Johnv]

Originally posted by carpro:
To which she should promptly and properly respond that her voting record is private and has no bearing on any matter likely to come before the court.

I think her voting records IS private. Mine certainly is, and that's not going to change if I decide to run for local office in the future.

 

[carpro]

Originally posted by Daisy:
I think Matt's question has to do with how she would have voted as a Supreme Court Justice deciding this particular case, not who she voted for in an election.

Yes. Maybe I misunderstood the question, but the answer would remain relatively the same. That's playing hypothetical games with an issue that may come before the court again. The precedent that has been set is to not answer the question.

 

[Scott J]

Originally posted by Matt Black:
Re the OP, my first question to her would be, "As a non legislating strict constructionist believer in states' rights, how would you have voted in Bush v. Gore (2000)?"

Not really as hard a question as you imagine. The fact that the decision ended up in the Supreme Court is due to the Constitutional progression of appeal therefore it was not inconsistent with state's rights to have ruled on the case.

Gore's position was that he should be able to selectively recount favorable counties where no extraordinary problems were presented until he found enough votes to win.

If his position had been that all counties needed to be recounted due to common errors in equipment then his case would have had more merit. Further, if he had sued to have a re-vote due to machine error, he might have been favored. The fact that he only wanted certain counties recounted is a clear indication that he was trying to accomplish an outcome, not justice.

Of course many of the problems he decried could be resolved if liberals would accept laws forcing ID for voters and strict poll control... but then they couldn't be the beneficiary of things like Philadelphia communities that have greater than 100% turnout or the votes of 4000+ dead Atlantans.

 

[Johnv]

I agree with Scott, here. I see no problem with the appeals process or outcome of the Bush v Gore case.

 

[StraightAndNarrow]

I thought a candidate had the right to demand a recount in counties where there was apparent fraud in the count. That's what Gore did. Unfortunately, that cost him the election.

 

[Johnv]

That wasn't at issue in 2000. SCOTUS ruled that the differing standards for conducting the recount in different counties constituted an equal protection violation. Had the recount been conducted consistently in all areas, the recount would likely have been allowed to continue.

Following the election, recounts conducted by various U.S. news media organizations indicated that Bush would have won the recount if the method favored by Gore at the time of the Supreme Court decision had continued. Those same media orgainzations said that Bush would have won using most of the common recount methods available at the time. That pretty much laid to rest the woes of all but the most ardent conspiracy theorists.

 

[Baptist in Richmond]

Originally posted by fromtheright:
I disagree. I don't believe the trimester formula, which certainly seems legislative to me, can be gleaned anywhere from the Constitution, even from a privacy standpoint. Such a formulaic approach smacks of legislation to me. And as to precedent during the time of the 14th Amendment, Rehnquist pointed out that at the time of its adoption 36 states had laws limiting abortion.

I disagree: no legislation was created, and the basis for the decision was the interpretation of the Constitution.

In part IX of the decision, they made what certainly sounds like another legislative decision:

</font><blockquote>quote:</font><hr />
We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.

They said that they need not resolve that question while implicitly doing that very thing. Their ducking of that question has the same effect as deciding that it is not worth protecting (or, more accurately, not worth allowing Texas to make that decision).</font>[/QUOTE]I see that as "resolution," not "legislation."

Rehnquist observed in his dissent that the Court didn't follow its own precedent even in the method by which they legalized abortion. He noted that

</font><blockquote>quote:</font><hr />
Even if one were to agree that the case that the Court decides were here, and that the enunciation of the substantive constitutional law in the Court's opinion were proper, the actual disposition of the case by the Court is still difficult to justify. The Texas statute is struck down in toto, even though the Court apparently concedes that at later periods of pregnancy Texas might impose these selfsame statutory limitations on abortion. My understanding of past practice is that a statute found [410 U.S. 113, 178] to be invalid as applied to a particular plaintiff, but not unconstitutional as a whole, is not simply "struck down" but is, instead, declared unconstitutional as applied to the fact situation before the Court.

I do not see any legislation here either.

IMO, the problem that decision demonstrates is the hazards of being blinded by precedent to the Constitution itself.

As always, I respect your opinion, whether or not I agree with it.

The Constitution IS a "living document." But it can only be interpreted by the judiciary.

I'm sure you can guess my response to this: was it a living Constitution that led to Plessy v. Ferguson? Did they find "separate but equal" in the Constitution or was that legislating from the [high] bench?

Again, there was no legislation written here either. I disagree with this decision STRONGLY, but it was not legislation.

I do agree with the doctrine of judicial review, that the Supreme Court is in the position to render a final binding interpretation of the Constitution (though there is an excellent historical/legal study by Robert Lowry Clinton concluding otherwise (Marbury v. Madison and Judicial Review)). To me, however, that is even more argument against the doctrine of a living Constitution. Judges who are bound to render an authoritative interpretation of the Constitution should not be free to import legal or other philosophical currents ("At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life." Planned Parenthood v. Casey) into their opinions. Another problem created by the living Constitution approach is that it tends to focus, to the extent that it focuses at all, on stare decisis and not the Constitution. Now, I certainly understand the value of stability; in fact, that is one of the hallmarks of the rule of law. But what "precedent" tends to concentrate on is recent precedents in Court decisions rather than the precedent of the Constitution itself and the history and tradition built into it. </font>[/QUOTE]Again, I respect your opinion whether or not I agree with it.

I would add, BTW, that there is an easy defense to Chick's argument that judicial review is not found in the Constitution. It is most specifically found there, in Hamilton's Federalist 78. However, I would agree with him probably that Courts have taken it far further than intended by Hamilton.

That decision was written by John Marshall, who, like Hamilton, was a Federalist. Chick, although highly brilliant, could not hold a candle to John Marshall.

BiR, I hope this finds you well and that all goes fine for you in Newark.

Thanks for that. So far so good, at least as far as the "getting ready" is going.

God's Blessings to you and yours,

BiR