Dissecting The Strib
(Hat-Tip: Captain’s Quarters)
The Minneapolis Star-Tribune published an editorial today talking about the judiciary, and the vacancy left by Associate Justice O’Connor. The problem is that the editors at the Strib obviously missed their high school government class. I would not beging to wonder why they missed it, or how they were hired on as editors when they clearly have no clue as to what they are talking about.
How America has changed since Sandra Day O'Connor was named to the U.S. Supreme Court.
The high court's first female appointee, O'Connor encountered few raised eyebrows when she showed up for her Senate confirmation hearing in 1981. No senator asked whether the Reagan nominee was a "strict constructionist" or a "judicial activist." No one tried to pin her down on how she'd vote on particular cases. Convinced of her competency, the Senate approved her appointment swiftly and unanimously.
Obviously the Senate dropped the ball. Her role in Arizona politics and as a member of the state supreme court were firmly within the record. That record, as I have investigated, shows that she was firmly on the side of activism, rather than interpreting the law.
O'Connor's successor won't face such an easy ride. In the 24 years since a senator asked nominee O'Connor what she'd like inscribed on her tombstone (Her answer: "Here lies a good judge"), Americans have come to see how profoundly a single justice can influence the court and the country.
Influence it, yes, but it was done in the wrong fashion. Need I remind people of her most famous transgression in jurisprudence in Casey? And how about her ideas regarding the use of foreign law in Supreme Court decisions, and further, into the court system, as a whole? This justice, though I give her respect for her duty to the nation, was anything but a trail-blazer to the people of America who believe in the rule of law, and detest justices that create law.
No one has seized upon that lesson with more fervor than America's religious right-wingers, who consider O'Connor's retirement during a Republican administration a chance to redirect the court. They won't readily say it, but they're eager to see another ideological bedfellow on the bench -- a predictable thinker whose views on abortion rights, gay marriage, police power and strong governmental authority reflect their own.
We are not looking for an "ideological bedfellow." We are looking for a justice that sits on the bench, looks at the Constitution, and decides based on what it says and what it means, not based on what they think it says and means. I notice that the Strib editors threw in the very first talking point that the Democrats latched onto upon her retirement. That being the misinterpreted decision in Roe. Gay marriage is an issue that is exploding across this nation because the voters have stated their beliefs and their opinions, and courts are overturning their Constitutional rights to decide issues for themselves. The redirection of the court that we seek is in putting it back on its proper tracks; that being that judges interpret the law.
But ideological predictability, whether on the right or left -- as opposed to predictably thoughtful, well-reasoned legal thinking -- should not be the primary goal in choosing a justice.
This past weekend, Thomas posted up our short list of possible appointees. We did not post up those names based on any sort of ideological bias. We based our list—our decisions—on careful research of the jurists and their decisions. We stand on the side of judges that will read the law, and understand it. We do not want jurists on the bench that would interpret the Fourth Amendment, which deals with the people’s protections against illegal search and seizure, as giving the people a wider right, that being a "right to privacy." (Griswold v. Connecticut)
Though President Bush is now doing and saying just the right things to reassure wary Americans, there's every reason to fear that he'll grant the right wing its high-court wishes. Indeed, the president often promised to do precisely that during his presidential campaigns, conveying fond admiration for the Supreme Court's most extremist justices even as he lamented the inclination of many "liberal" jurists to "legislate from the bench."
The president promised to nominate judges that would interpret the law. Judges do not have the power to create laws. That is in the purview of the legislative branch, which works with the Executive branch, in that regard. And as for his fond admiration for certain activist jurists (O’Connor being one of them), it is the president’s job to speak fondly of those from the past. It has always been accepted that the president not criticize those who came before him, regardless of their branch affiliation (Legislative, Executive, or Judicial).
A similar event unfolded shortly after the Bay of Pigs invasion where Pres. Kennedy, and former Pres. Eisenhower walked through the White House’s Rose Garden. During the walk, Eisenhower privately chastised the new president for his failed move, but when the two were back in front of the cameras and the media, Eisenhower reinforced his support for Kennedy. Presidents, current or past, do not speak ill of those that are in power now, or of those that served before them.
I am positive that Pres. Bush, in private, dislikes the activist holdings that Justices Ginsburg, Souter, Stevens, Breyer, and Kennedy possess. But he is not going to openly criticize these people. That falls to our feet, as the people have the right to redress grievances to the government. This is how we do it. We opine about it, and we criticize their decisions.
Whomever Bush names to replace O'Connor, the ensuing confirmation hearings are almost sure to resonate with these tired tropes of jurisprudence.
The ensuing hearings are going to be nasty. The Democrats are sure to drag out their ideologically-driven, tired, old playbook. I can guarantee that foolish deal struck by the Gang of Fourteen is going to go right out the window. Reid is not going to abide by the deal, and McCain and his cronies are going to hold their line; like a bunch of spoiled brats told "no" for the umpteenth time.
It has become almost an article of faith among Republicans that "conservative" judges deserve praise for interpreting the Constitution narrowly -- a move they somehow imagine is freedom's surest guarantee. They save their calumny for "judicial activists," who they believe treat the Constitution as a handy starting place for slaphappy extrapolation that -- if left unchecked -- would affirm mayhem and debauchery as essentials of American life.
Here is a memo to the Strib: The idea that we have a "living, breathing" document is precisely why we are in the position we are in right now. Did the Strib miss Kelo? The Supreme Court completely ignored the Takings Clause. Did the Strib miss Roe? Where does it say that abortion is the government sweeping in to seize a child from a mother’s womb? The last time I checked, Roe ensured that the mother would have the right to kill their unborn child, not the government. How many ACLU anti-religion cases has the Strib missed? The last time I checked "separation of church and state" was nowhere within the confines of the Constitution.
All this language -- all these assumptions -- pay short shrift to the complexity of U.S. jurisprudence. They also make light of the challenge the nation's top judges invariably face: As the words of even the high court's proclaimed conservatives show, interpreting the Constitution demands an inventive mind -- one that can translate centuries-old philosophy into modern policy. The best judges, it turns out, are often the least predictable.
I have nothing but respect for the law, and the jurists that have taken the job to interpret it. I may not be a lawyer, yet, but I am well on my way. There is no "inventive" mind needed for interpreting the Constitution. Fact: Justice Scalia does more research in what the Constitution says, and it’s very definitions—from the time of it’s inception—to properly interpret what it says. Justice Thomas does use similar methods. One need not have an inventive mind to interpret the Constitution. One only need to be able to read and understand what it says. And as for the best judge being the least predictable, ask those that voted for Souter based on his statements and his decisions whether they think he is the best judge on the court. I would wager that the answer is "no."
In truth, most of the talk about the need for a judicial nominee who will "honor the Constitution" reflects hankering for the right sort of political ideologue. But politics, whatever its stripe, is one thing the nation's highest court must not mess with. The president and Senate must see that it doesn't.
No, the court should not be messing with the law. That is the job of the legislative branch. It is the "proper and peculiar province of the courts" to interpret the law. The Constitution, according to the Framers, is "fundamental law." It is set in stone until the Congress decides to change it. It is not up to the courts to do this. There is a process which must be gone through to change the Constitution. That process is enumerated in the Constitution. That would be under Article V.
"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
That is how the Constitution is amended. It is not through the act of judicial fiat, which is what many n the country have accepted as the role of the judiciary. Namely, the Democrats. They have stacked the federal bench with judicial activists. They are looking at the loss of their power on the judiciary. An originalist replacing O’Connor will not swing the court in the opposite direction. It would simply reinforce the judicial ideology of the conservatives sitting on the court right now; that being that their job is to interpret the law, not create it out of whole cloth with a wave of their pens.
The Bunny ;)
(Hat-Tip: Captain’s Quarters)
The Minneapolis Star-Tribune published an editorial today talking about the judiciary, and the vacancy left by Associate Justice O’Connor. The problem is that the editors at the Strib obviously missed their high school government class. I would not beging to wonder why they missed it, or how they were hired on as editors when they clearly have no clue as to what they are talking about.
How America has changed since Sandra Day O'Connor was named to the U.S. Supreme Court.
The high court's first female appointee, O'Connor encountered few raised eyebrows when she showed up for her Senate confirmation hearing in 1981. No senator asked whether the Reagan nominee was a "strict constructionist" or a "judicial activist." No one tried to pin her down on how she'd vote on particular cases. Convinced of her competency, the Senate approved her appointment swiftly and unanimously.
Obviously the Senate dropped the ball. Her role in Arizona politics and as a member of the state supreme court were firmly within the record. That record, as I have investigated, shows that she was firmly on the side of activism, rather than interpreting the law.
O'Connor's successor won't face such an easy ride. In the 24 years since a senator asked nominee O'Connor what she'd like inscribed on her tombstone (Her answer: "Here lies a good judge"), Americans have come to see how profoundly a single justice can influence the court and the country.
Influence it, yes, but it was done in the wrong fashion. Need I remind people of her most famous transgression in jurisprudence in Casey? And how about her ideas regarding the use of foreign law in Supreme Court decisions, and further, into the court system, as a whole? This justice, though I give her respect for her duty to the nation, was anything but a trail-blazer to the people of America who believe in the rule of law, and detest justices that create law.
No one has seized upon that lesson with more fervor than America's religious right-wingers, who consider O'Connor's retirement during a Republican administration a chance to redirect the court. They won't readily say it, but they're eager to see another ideological bedfellow on the bench -- a predictable thinker whose views on abortion rights, gay marriage, police power and strong governmental authority reflect their own.
We are not looking for an "ideological bedfellow." We are looking for a justice that sits on the bench, looks at the Constitution, and decides based on what it says and what it means, not based on what they think it says and means. I notice that the Strib editors threw in the very first talking point that the Democrats latched onto upon her retirement. That being the misinterpreted decision in Roe. Gay marriage is an issue that is exploding across this nation because the voters have stated their beliefs and their opinions, and courts are overturning their Constitutional rights to decide issues for themselves. The redirection of the court that we seek is in putting it back on its proper tracks; that being that judges interpret the law.
But ideological predictability, whether on the right or left -- as opposed to predictably thoughtful, well-reasoned legal thinking -- should not be the primary goal in choosing a justice.
This past weekend, Thomas posted up our short list of possible appointees. We did not post up those names based on any sort of ideological bias. We based our list—our decisions—on careful research of the jurists and their decisions. We stand on the side of judges that will read the law, and understand it. We do not want jurists on the bench that would interpret the Fourth Amendment, which deals with the people’s protections against illegal search and seizure, as giving the people a wider right, that being a "right to privacy." (Griswold v. Connecticut)
Though President Bush is now doing and saying just the right things to reassure wary Americans, there's every reason to fear that he'll grant the right wing its high-court wishes. Indeed, the president often promised to do precisely that during his presidential campaigns, conveying fond admiration for the Supreme Court's most extremist justices even as he lamented the inclination of many "liberal" jurists to "legislate from the bench."
The president promised to nominate judges that would interpret the law. Judges do not have the power to create laws. That is in the purview of the legislative branch, which works with the Executive branch, in that regard. And as for his fond admiration for certain activist jurists (O’Connor being one of them), it is the president’s job to speak fondly of those from the past. It has always been accepted that the president not criticize those who came before him, regardless of their branch affiliation (Legislative, Executive, or Judicial).
A similar event unfolded shortly after the Bay of Pigs invasion where Pres. Kennedy, and former Pres. Eisenhower walked through the White House’s Rose Garden. During the walk, Eisenhower privately chastised the new president for his failed move, but when the two were back in front of the cameras and the media, Eisenhower reinforced his support for Kennedy. Presidents, current or past, do not speak ill of those that are in power now, or of those that served before them.
I am positive that Pres. Bush, in private, dislikes the activist holdings that Justices Ginsburg, Souter, Stevens, Breyer, and Kennedy possess. But he is not going to openly criticize these people. That falls to our feet, as the people have the right to redress grievances to the government. This is how we do it. We opine about it, and we criticize their decisions.
Whomever Bush names to replace O'Connor, the ensuing confirmation hearings are almost sure to resonate with these tired tropes of jurisprudence.
The ensuing hearings are going to be nasty. The Democrats are sure to drag out their ideologically-driven, tired, old playbook. I can guarantee that foolish deal struck by the Gang of Fourteen is going to go right out the window. Reid is not going to abide by the deal, and McCain and his cronies are going to hold their line; like a bunch of spoiled brats told "no" for the umpteenth time.
It has become almost an article of faith among Republicans that "conservative" judges deserve praise for interpreting the Constitution narrowly -- a move they somehow imagine is freedom's surest guarantee. They save their calumny for "judicial activists," who they believe treat the Constitution as a handy starting place for slaphappy extrapolation that -- if left unchecked -- would affirm mayhem and debauchery as essentials of American life.
Here is a memo to the Strib: The idea that we have a "living, breathing" document is precisely why we are in the position we are in right now. Did the Strib miss Kelo? The Supreme Court completely ignored the Takings Clause. Did the Strib miss Roe? Where does it say that abortion is the government sweeping in to seize a child from a mother’s womb? The last time I checked, Roe ensured that the mother would have the right to kill their unborn child, not the government. How many ACLU anti-religion cases has the Strib missed? The last time I checked "separation of church and state" was nowhere within the confines of the Constitution.
All this language -- all these assumptions -- pay short shrift to the complexity of U.S. jurisprudence. They also make light of the challenge the nation's top judges invariably face: As the words of even the high court's proclaimed conservatives show, interpreting the Constitution demands an inventive mind -- one that can translate centuries-old philosophy into modern policy. The best judges, it turns out, are often the least predictable.
I have nothing but respect for the law, and the jurists that have taken the job to interpret it. I may not be a lawyer, yet, but I am well on my way. There is no "inventive" mind needed for interpreting the Constitution. Fact: Justice Scalia does more research in what the Constitution says, and it’s very definitions—from the time of it’s inception—to properly interpret what it says. Justice Thomas does use similar methods. One need not have an inventive mind to interpret the Constitution. One only need to be able to read and understand what it says. And as for the best judge being the least predictable, ask those that voted for Souter based on his statements and his decisions whether they think he is the best judge on the court. I would wager that the answer is "no."
In truth, most of the talk about the need for a judicial nominee who will "honor the Constitution" reflects hankering for the right sort of political ideologue. But politics, whatever its stripe, is one thing the nation's highest court must not mess with. The president and Senate must see that it doesn't.
No, the court should not be messing with the law. That is the job of the legislative branch. It is the "proper and peculiar province of the courts" to interpret the law. The Constitution, according to the Framers, is "fundamental law." It is set in stone until the Congress decides to change it. It is not up to the courts to do this. There is a process which must be gone through to change the Constitution. That process is enumerated in the Constitution. That would be under Article V.
"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
That is how the Constitution is amended. It is not through the act of judicial fiat, which is what many n the country have accepted as the role of the judiciary. Namely, the Democrats. They have stacked the federal bench with judicial activists. They are looking at the loss of their power on the judiciary. An originalist replacing O’Connor will not swing the court in the opposite direction. It would simply reinforce the judicial ideology of the conservatives sitting on the court right now; that being that their job is to interpret the law, not create it out of whole cloth with a wave of their pens.
The Bunny ;)
posted by Syd And Vaughn | 2:13 PM
0 Comments:
Post a Comment
<< Home