Posted on 03/26/2005 11:56:14 AM PST by UnbelievingScumOnTheOtherSide
One more reason in a long history that judicial appointments will not solve the problem of leftist judges and judicial tyranny was seen on Mar. 23, 2005, in the request for emergency rehearing of the 11th Circuit en banc of the case of Schiavo v. Schiavo when George W. Bush recess appointment William H. Pryor, Jr., voted AGAINST rehearing. Rather than joining in the cogent and spirited dissent of Judge Tjoflat or associating himself with the dissent of Judge Wilson (a Clinton appointee) in the original three-judge panel, he voted with the majority in the 10-2 denial of rehearing. Judge Pryor did so without any comment to give any insight into his reasoning for doing so. But it is sure to win a brownie point or two from some Democrats who had blocked his regular appointment to the court with a threatened fillibuster - not. It is interesting to note that although the denial of rehearing was 10-2, Republican appointees actually hold a 7-5 majority on the 11th Circuit. But six Republicans voted with four Democrats to starve an innocent woman to death on the say-so of her estranged husband rather than finding one of several legal avenues placed in evidence and the law to reach a more humane and just result.
The history of Republican appointees to the Supreme Court (SCOTUS) is likewise checkered. While Nixon appointee William Rehnquist has been a stalwart conservative for 33 years, another Nixon appointee, Harry Blackmun wrote the infamous Roe v. Wade abortion opinion for the majority. And Blackmun, along with fellow Nixon and Ford appointees Louis Powell and John Paul Stevens cemented an activist leftist court through the 1970s and 1980s. Appointees by Republicans, thought conservative, as often as not become part of the activist-leftist problem upon receiving their lifetime appointments.
While Nixon and Ford had to contend with a strongly Democrat Senate to get their appointments confirmed, Reagan enjoyed for a time a Republican Senate. Although Reagan was both a social and fiscal (in theory) conservative, his appointments to SCOTUS were one conservative, Scalia, and two increasingly liberal swing votes, O'Connor and Kennedy. George H.W. Bush achieved a similar split with conservative Thomas, who squeaked in by a narrow confirmation margin in the days before filibustering of appellate judges, and liberal David Souter. It is interesting to note that the last Democrat "mistake" to SCOTUS was the Kennedy appointment of conservative Byron White in 1962.
It is hardly going to make a positive difference in the courts for conservatives when leftist presidents and Democrat Senators apply a nearly foolproof litmus test while Republican presidents tend to appoint "qualified" judges, half from each side. The math over the last 28 years of four Republican presidential terms and three Democrat, with a nearly even divide in the Senate over that time, is for 70% leftist appointees. At that rate, if there were nothing but Republican presidents for the next 40 years, the courts would be no better than evenly divided.
The solution to the problem of runaway activist leftist courts is for Republican executives to assert their independence from judicial fiat. (You could argue that Democrat presidents could do the same, except they don't need to. - They already have the courts for the forseeable future.) Federalist #78 explains that judges are "dependent" on executives to carry out their decisions. In 1832 in the case of Worcester v. Georgia recognizing the independence of the Cherokee Nation from the laws of Georgia, Andrew Jackson disregarded the Supreme Court with the famous remark "Marshall has made his decision. Now let him enforce it." leading a few year later to the removal of the Cherokee altogether. Even in the case of Marbury v. Madison, Chief Justice Marshall explicitly recognized that he could not order President Jefferson to deliver certain commissions without being ignored due to separation of powers and thus invalidated the law requiring the delivery of those commissions instead.
What happened since those early days to separation of powers? We became accustomed to the routine condition that the executive should normally support the judiciary. Even when activist judges handed down abominable decisions such as Dred Scot in 1857, which forced slavery on the whole country, the executives after the the passing of the Founding Fathers enforced them. Of course, the President at the time of Dred Scot was a pro-slavery northern Democrat, James Buchanan, who was not going to nullify Dred Scot anyway.
The only serious way to turn back judicial activism is through the executive nullification of the most odious of judicial rulings, such as starving an innocent woman to death on dubious evidence and calling it a Constitutional Right. Judge Pryor, when he comes up for confirmation to a permanent post on the court, needs to do some serious dancing around the issue of why he did not at least make a public showing to help the dying Terri Schiavo and should quite probably be denied the support of conservatives previously so eager to see him confirmed. And conservatives need to consider ways besides judicial appointments, or the forlorn hope for impeachments in a Congress too narrowly divided and partisan to sustain them, to reign in the tyranny of our current Judicial Oligopoly.
What an insane statment. Both are term limited. Your agenda is really anti-Bush, not pro-Terri.
It is so great to have people on here that practice in the Federal Court system to set the facts straight. That's what I think this site should be about -- facts!
Would believe your sources versus some people who seem to be disruptors looking to make Bush look bad.
I will email my democrat congressman Mike Michaud and thank him for voting for Terri's life. I will also email Senator Snowe and Collins and tell them how unhappy I was they voted against life.
I still believe judges are the problem as they have made the decisions on Terri.
President Bush and Jeb Bush suffer in a drop in the polls NOT because of what they did or did not do. These poll results are due to the recent split within the GOP. Damned if you did, damned if you didn't. I do agree that the media has tilted these poll results to make it look like the drop is only because of what President Bush did.
Before the Schiavo Case came to the front burner the major issue was this nation's problem with activist liberal judges. Am I the only one to see that the Schiavo Case is nothing but an extension of the problem we have with liberal activist judges?
Both President Bush and Governor Bush have been critised by both liberals and conservatives for the actions they have already taken (though I think they did right) and then you have the rest of the conservatives critising them for actions they have not taken. The possibility of having enough votes for the 'constitutional option' (nuclear option) is what suffers.
Conservatives eating their own rather than inform the American People of the problem this nation has with activist liberal judges.
And I thought it would be illegal immigration that would split the GOP.
Can anybody say PRESIDENT HILLARY?
http://jednet207.tripod.com/PoliticalLinks.html
PYROR is a coward. When it comes to killing 3000 babies everyday, he will say the same stinking worthless words ( "Support for the Ten Commandments does not give you the right to flout the rule of law.) about it not being illegal. If he wouldn't risk anything for the 10 commandments, he won't risk anything for Life.
This guy wouldn't run out in the street to save an old lady cause he might be found guilty of jaywalking.
You can talk about jurisprudence all you want but that doesn't change what common law is. It is law which has no statutory basis. That is the only definition of the term. It's based on community standards and precedent, nothing else. There is no "amalgamation" include statutes. By its very defintion, when a statute is binding on a case then that is no longer common law. That's statutory law. Common law is distinct and has nothing to do with anything legislative.
As an aside I will give you one more argument. The U.S. Constitution forbids ex post facto (after the fact) laws. But every judgement comes after the facts being judged. So if a judgement were law, then every judgement is unconstitutionally ex post facto. But there is nothing in the Constitution about courts making law at all.
Well, that's a nice try at spin but it has nothing do with what an ex post facto law really is nor what a court judgment really is. The Constitutional prohibition against ex post facto laws found in Article 1, Section 9 is a limitation on the power of Congress only.
Clearly, he takes his oath of office seriously. If you would renounce the oath you swore then that's your business. In upholding the duties he swore in that oath, Pryor was being a man of his word.
Courts don't make the common law. The people do. And when the people do, they are acting as a legislature. Courts administer the already pre-existing common law creating precedents. Precedents makes jurisprudence (from both common and statute law.)
Thanks for the link PKM!
It's Schindler v Schiavo. He's not suing himself.
Yea it is, but "she" is suing herself, believe it or not.
It is somewhat understandable. Congress intended that the federal court retry the case on the merits. But alas the substantive federal law as to the merits is not in the Schindler's favor, and the case will be rendered moot on procedural grounds. The layman on an emotional issue such as this does not have much patience with that. What I do have a problem with are those advocating that the executive branch take the law into its own hands, or folks on the street do. That is simply an outrageous position to advocate. What needs to be advocated is a new federal law that creates a much more difficult standard to kill by dehydration in my view.
Oh yes, thank you and you're welcome. I do my best, and try to do it objectively, and separate my personal views into a clear category of its own, from other commentary.
I agree with that statement 100% and we should be fighting to make it become law. That would be a positive step forward IMHO!
Let's also not forget that Pryor was the one who as, I believe, attorney general of Alabama, the one that fired Judge Roy Moore.
Let's also not forget that Pryor was the one who as, I believe, attorney general of Alabama, the one that fired Judge Roy Moore.
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