Of Nominees And Numbskulls: Passing Thoughts...
Welcome to July’s collaborative. Do not worry, we have not forgotten our regular readers. The regular collaborative might appear here in the next day or so, but this is a special one. Not only are we commenting on the current landscape of the judiciary, but we are also paying a special commemoration to departing associate justice Sandra Day O’Connor (good riddance). This was a woman who did, indeed, inspire a generation of women to succeed in whatever endeavors they embarked upon. Her accomplishments are ones of note, and we both give her respect for them.
However, we also recognize that, all in all, this woman wasn't a good addition to the Supreme Court; this was especially so in her later years on the high court. Her concurring decision in the Michigan Law School case only emboldened affirmative action. She sided with the government is striking down a Texas state law in Lawrence v. Texas. She ruled in favor of allowing detainees legal rights enjoyed—supposedly—by US citizens alone, in Rasul v. Bush. And in Roper v. Simmons she decided that a minor couldn't be put to death. In 1989, the majority decision supported the execution of minors that commit capital offenses, then she reversed herself in 2002. In a number of decisions—too numerous to cite here specifically—Justice O’Connor continued to strip away the rights of the States and/or the people, or add rights not enumerated to the government.
In short, the woman may have had monumental success prior to joining the Supreme Court, but her "moderation" tended to join the liberal, activist side of the Court more than not. And that is why it is important when it comes to the next step for the president when it comes to nominating a replacement for her. As we all know, the Framers intended that the jurists on the bench. interpret the law. As Alexander Hamilton noted in Federalist #78, interpretation of the law was the "proper and peculiar province of the courts." It was not to legislate from the bench, or to interject their "living Constitution" ideas into our lives. It was to interpret the laws on the books—including the "fundamental law" of the Constitution—that were passed either through the voters, or the appropriate legislature, ending at the Constitution as a last resort. (Not a true "last resort", however if it is not grounded in law or precedent, nor in the Constitution, then it goes back to where it came from. Period.)
But they don’t look at the law like that anymore. They prefer to pick and choose what suits their needs—even foreign law, if need be—to render a decision. Often times, as we have seen recently, it severely curtails our rights, or those of the state. I can go into the number of landmark cases that the USSC has rendered that has done exactly that. But I’d rather focus on the future of the Court. As many of our readers know, my knowledge of the Court is wide and varied, and so are the cases. But the point is not the past. It is the present and the future. Especially the future. As any good lawyer knows, a court decision results in a "precedent" set that all courts should look to when it comes to rendering decisions. Those precedents set—like Rasul v. Bush and Hamdi v. Rumsfeld—set precedents that directly affect the war we are fighting, right now, when it comes to detainees and illegal combatants.
And that is precisely what the people at Guantanamo Bay, Cuba, are. They are terrorists; illegal combatants on the battlefield. They bear no insignia to a nation they represent. They are not led by a commander on the battlefield. And no one in the recognized government acknowledges that these people fight for them. There are no grounds under the Geneva Convention where these people have protections, let alone rights. They will be held until this war is over, just like we did to POWs in World War II. And we should remember that despite the administration’s recognition of their status, these people are being treated than they were on the battlefield. They have three meals a day—two of which meet their "cultural" specifications. They are given their holy text, and told when the time of day is to pray. EVERY precaution has been taken to prevent any sort of serious allegation of torture or mistreatment. And yet, the Supreme Court is willing to extend us further by allowing them access to our legal system, rather than a military tribunal, which should await them at the end of this conflict.
Much of the talk today has focused around the impact O’Connor had on the abortion issue. Anyone who has read enough that I have written knows that I could probably get Roe overturned in a heartbeat if I had a set of originalist jurists sitting on the Supreme Court. And, yes, she contributed to Roe all right, but in the wrong way. In the case of Planned Parenthood v. Casey she co-authored the opinion of the Court which upheld Roe, and struck down a Pennsylvania law requiring women to notify their husbands prior to an abortion. To that I say this. The co-authors of the opinion don’t squarely contend that Roe v. Wade was a correct application of any sort of "reasoned judgment" (their words), but merely that it must be followed, all due to stare decisis; the precedent of the Court. The vacancy of "reasoned judgment" that gave us Roe is displayed in plain view for all to see in Casey. After nineteen years of effort by some of the best and the brightest legal minds, and more than ten cases (up to that point) that upheld abortion rights, and after dozens, upon, dozens, upon dozens of amicus briefs submitted, the best the Court can muster is to explain how "liberty" must be thought to include the destruction of human life; to cover such obfuscation, the Court merely adds a list of adjectives to decorate a judgment and conceal a political choice.
Point being, as I calm him down, is that the Court is in need of serious originalists. To save this nation from itself, to save the courts, as a whole, we need originalists on the bench. Thomas and I have been compiling a list of candidates. Much of it revolves around the names being bandied about by the talking heads on the radio and TV, and many of them are very good. However, many that are being presented are moderates. Like Gonzales. Like McConnell. A lot of talk is being made of replacing a female with a female, or some other sort of minority. This is, of course, a serious mistake. The president should not pander to such ideas, or ideologies. He should nominate the best qualified jurists to sit on the high court, or the best qualified lawyer. Regardless of the job, someone well versed in Constitutional Law, we would prefer. ( I nominate my other half. ;) )
And were she president, I’m sure she’d mean that, but as she is not the president, and I’m not a lawyer, I can’t serve. Thanks nonetheless for the vote of confidence. I’m sure you, like myself, sit within the minority on that move, sweets. But she is right. We need originalists on the Court. "Give me eight more Scalias," should be our battle cry for this war. And guranteed, a war this will be. Already coming from the Hill is that Frist handed a list of three names to Reid, and Reid said no to each one. I know the list had Emilio Garza and John Roberts on it. Both are originalists, and conservative to the core. That should tell you what we expect over the summer from the Senate, in specifically from the Judiciary Committee. It does take some time to nominate and confirm Supreme Court justices; on average a month or two. But this shaping up to be a dog-fight, already.
And did we expect less? Of course not. We knew that this was coming. We even warned people it was coming down the pike. The Democrats are going to dig in for Round Two on this subject, and they are not planning on giving an inch. So, what does the GOP do? Well, I would suggest they locate their balls. The president will expect them to to stand up for his nominees, and moreso than what they did prior to that ill-fated deal cut by the Gang of Fourteen. What will be interesting to see in this ensuing debacle is how the GOP reacts. Both of us hope the Republicans will do the president proud. However neither of us are holding our breath. That is why we—both of us—are encouraging people to contact their representatives and tell them to support the nominees, no matter who they are, or their ideology (unless, of course it is of the "activist" crowd or jurists.) But we need to send a message to our representatives that the best qualified people need to be supported. O’Connor is not the last Supreme Court justice that could step down. Rehnquist is sure to follow soon, and Kennedy and Ginsburg are still on the watch list. A possibility of three to four justices could be nominated by President Bush, and it is necessary that we get the best minds on the high court that we can.
Publius II & The Bunny ;)
Welcome to July’s collaborative. Do not worry, we have not forgotten our regular readers. The regular collaborative might appear here in the next day or so, but this is a special one. Not only are we commenting on the current landscape of the judiciary, but we are also paying a special commemoration to departing associate justice Sandra Day O’Connor (good riddance). This was a woman who did, indeed, inspire a generation of women to succeed in whatever endeavors they embarked upon. Her accomplishments are ones of note, and we both give her respect for them.
However, we also recognize that, all in all, this woman wasn't a good addition to the Supreme Court; this was especially so in her later years on the high court. Her concurring decision in the Michigan Law School case only emboldened affirmative action. She sided with the government is striking down a Texas state law in Lawrence v. Texas. She ruled in favor of allowing detainees legal rights enjoyed—supposedly—by US citizens alone, in Rasul v. Bush. And in Roper v. Simmons she decided that a minor couldn't be put to death. In 1989, the majority decision supported the execution of minors that commit capital offenses, then she reversed herself in 2002. In a number of decisions—too numerous to cite here specifically—Justice O’Connor continued to strip away the rights of the States and/or the people, or add rights not enumerated to the government.
In short, the woman may have had monumental success prior to joining the Supreme Court, but her "moderation" tended to join the liberal, activist side of the Court more than not. And that is why it is important when it comes to the next step for the president when it comes to nominating a replacement for her. As we all know, the Framers intended that the jurists on the bench. interpret the law. As Alexander Hamilton noted in Federalist #78, interpretation of the law was the "proper and peculiar province of the courts." It was not to legislate from the bench, or to interject their "living Constitution" ideas into our lives. It was to interpret the laws on the books—including the "fundamental law" of the Constitution—that were passed either through the voters, or the appropriate legislature, ending at the Constitution as a last resort. (Not a true "last resort", however if it is not grounded in law or precedent, nor in the Constitution, then it goes back to where it came from. Period.)
But they don’t look at the law like that anymore. They prefer to pick and choose what suits their needs—even foreign law, if need be—to render a decision. Often times, as we have seen recently, it severely curtails our rights, or those of the state. I can go into the number of landmark cases that the USSC has rendered that has done exactly that. But I’d rather focus on the future of the Court. As many of our readers know, my knowledge of the Court is wide and varied, and so are the cases. But the point is not the past. It is the present and the future. Especially the future. As any good lawyer knows, a court decision results in a "precedent" set that all courts should look to when it comes to rendering decisions. Those precedents set—like Rasul v. Bush and Hamdi v. Rumsfeld—set precedents that directly affect the war we are fighting, right now, when it comes to detainees and illegal combatants.
And that is precisely what the people at Guantanamo Bay, Cuba, are. They are terrorists; illegal combatants on the battlefield. They bear no insignia to a nation they represent. They are not led by a commander on the battlefield. And no one in the recognized government acknowledges that these people fight for them. There are no grounds under the Geneva Convention where these people have protections, let alone rights. They will be held until this war is over, just like we did to POWs in World War II. And we should remember that despite the administration’s recognition of their status, these people are being treated than they were on the battlefield. They have three meals a day—two of which meet their "cultural" specifications. They are given their holy text, and told when the time of day is to pray. EVERY precaution has been taken to prevent any sort of serious allegation of torture or mistreatment. And yet, the Supreme Court is willing to extend us further by allowing them access to our legal system, rather than a military tribunal, which should await them at the end of this conflict.
Much of the talk today has focused around the impact O’Connor had on the abortion issue. Anyone who has read enough that I have written knows that I could probably get Roe overturned in a heartbeat if I had a set of originalist jurists sitting on the Supreme Court. And, yes, she contributed to Roe all right, but in the wrong way. In the case of Planned Parenthood v. Casey she co-authored the opinion of the Court which upheld Roe, and struck down a Pennsylvania law requiring women to notify their husbands prior to an abortion. To that I say this. The co-authors of the opinion don’t squarely contend that Roe v. Wade was a correct application of any sort of "reasoned judgment" (their words), but merely that it must be followed, all due to stare decisis; the precedent of the Court. The vacancy of "reasoned judgment" that gave us Roe is displayed in plain view for all to see in Casey. After nineteen years of effort by some of the best and the brightest legal minds, and more than ten cases (up to that point) that upheld abortion rights, and after dozens, upon, dozens, upon dozens of amicus briefs submitted, the best the Court can muster is to explain how "liberty" must be thought to include the destruction of human life; to cover such obfuscation, the Court merely adds a list of adjectives to decorate a judgment and conceal a political choice.
Point being, as I calm him down, is that the Court is in need of serious originalists. To save this nation from itself, to save the courts, as a whole, we need originalists on the bench. Thomas and I have been compiling a list of candidates. Much of it revolves around the names being bandied about by the talking heads on the radio and TV, and many of them are very good. However, many that are being presented are moderates. Like Gonzales. Like McConnell. A lot of talk is being made of replacing a female with a female, or some other sort of minority. This is, of course, a serious mistake. The president should not pander to such ideas, or ideologies. He should nominate the best qualified jurists to sit on the high court, or the best qualified lawyer. Regardless of the job, someone well versed in Constitutional Law, we would prefer. ( I nominate my other half. ;) )
And were she president, I’m sure she’d mean that, but as she is not the president, and I’m not a lawyer, I can’t serve. Thanks nonetheless for the vote of confidence. I’m sure you, like myself, sit within the minority on that move, sweets. But she is right. We need originalists on the Court. "Give me eight more Scalias," should be our battle cry for this war. And guranteed, a war this will be. Already coming from the Hill is that Frist handed a list of three names to Reid, and Reid said no to each one. I know the list had Emilio Garza and John Roberts on it. Both are originalists, and conservative to the core. That should tell you what we expect over the summer from the Senate, in specifically from the Judiciary Committee. It does take some time to nominate and confirm Supreme Court justices; on average a month or two. But this shaping up to be a dog-fight, already.
And did we expect less? Of course not. We knew that this was coming. We even warned people it was coming down the pike. The Democrats are going to dig in for Round Two on this subject, and they are not planning on giving an inch. So, what does the GOP do? Well, I would suggest they locate their balls. The president will expect them to to stand up for his nominees, and moreso than what they did prior to that ill-fated deal cut by the Gang of Fourteen. What will be interesting to see in this ensuing debacle is how the GOP reacts. Both of us hope the Republicans will do the president proud. However neither of us are holding our breath. That is why we—both of us—are encouraging people to contact their representatives and tell them to support the nominees, no matter who they are, or their ideology (unless, of course it is of the "activist" crowd or jurists.) But we need to send a message to our representatives that the best qualified people need to be supported. O’Connor is not the last Supreme Court justice that could step down. Rehnquist is sure to follow soon, and Kennedy and Ginsburg are still on the watch list. A possibility of three to four justices could be nominated by President Bush, and it is necessary that we get the best minds on the high court that we can.
Publius II & The Bunny ;)
posted by Syd And Vaughn | 6:49 PM
2 Comments:
Interesting post. It is rare that I see two solid, like minds commenting at the same time. Bravo. Excellent post.
I can trust by the opening that the two of you do this often. I am still making my way through your archives. I opt out of commenting on anything "old" as I am sure that few read the older posts.
But yes, both of you have hit on the primary points of the post.
First, O'Connor wasn't a good choice for the Supreme Court, and many of her decisions showed it.
Second, that the president needs to appoint the able people to handle such a responsibility on the Court.
Congrats to you both; you have conveyed that thought well, and it bears my thoughts, as well, on the current Court; what must be done to save it from further eroding our rights and those of the States.
Mistress Pundit
Good blog. Make no bones about it, judicial appointments are political whether it be local, state or federal. We seldom hear about federal district court appointments and a little more about the federal circuits but the Supreme Court is unique because of the limited number of judges--err justices. As I recall, the last time they were defied was the school integration cases and the President called out the troops. More of their decisions should be defied such as losing the cornerstone of all our freedoms-property rights. For what it's worth, it won't matter who Bush nominates, the democrats will object. How dare he nominate someone without their consent! I see a real battle in the judiciary. I see DeWine and Graham for the republicans with the rino, Specter chairing whispering to leaky Leahy. And the democrats have Durbin-All American. dah. It will be interesting. It will be bloody. And there will be two or more to go. Rawriter
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