BUMP!!!
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Posted on 11/10/2004 1:55:23 AM PST by The Great Yazoo
The illness of Chief Justice William Rehnquist and the brazen announcement by Senator Arlen Specter of his own policy litmus test for judicial nominees raise very serious questions about which way this country will go at this crossroads in our legal history.
The South Dakota voters' defeat of Senator Tom Daschle, leader of the obstructionists who refused to let some of President Bush's judicial nominees come up for a vote in the Senate, seemed to offer some hope that such obstructionism might subside. But Senator Specter's words suggest that the mantle of obstructionism may simply have been passed on from Daschle to Specter.
If Senate Republicans follow seniority and make Senator Specter chairman of the Senate Judiciary, then we could be in for the dangerous business of litmus tests for judicial nominees and the trashing of nominees who believe in following the original intent of laws, rather than engaging in judicial activism.
First of all, what do such terms as "litmus test," "judicial activism" and "original intent" mean in plain English?
The Senate has the Constitutional duty to "advise and consent" on the President's choice of judicial nominees. For well over a century, that meant that Senators decided whether a particular nominee was qualified to be a federal judge or a Justice of the Supreme Court.
For a long time, Supreme Court nominees did not even appear in person to be questioned by Senators. Their record was public knowledge and they could be confirmed or not confirmed on that basis.
Under these conditions, the question of how they would vote on specific issues that might come before them did not arise. There could not be any litmus test based on whether they were for or against particular policies favored by particular Senators.
That has of course all changed in more recent times. Those who remember the circus atmosphere and smear campaigns during the nominations of Judge Robert Bork in 1987 and of Judge Clarence Thomas in 1991 will be painfully aware of how much things have changed.
Today, some Senators want to know how judicial nominees would vote on specific issues like abortion, racial quotas, or environmental regulations. Senators cannot admit that they want to preselect judges who will rule their way, since that would destroy the independence of the judiciary under the Constitutional separation of powers. But they ask questions that amount to the same thing.
President Bush has said repeatedly that he has no litmus test on any issue but that he wants judges who will apply the law instead of imposing their own policy preferences. But people like Senator Arlen Specter want judges who support particular policies.
That is what judicial activism means. The opposite judicial philosophy involves following what is called the "original intent" of the law.
Senator Specter and other liberals muddy the waters by claiming that nobody knows what the original intent was among those who wrote the Constitution or even later legislation. This is a completely phony issue and a red herring.
Leading legal scholars from William Blackstone in the 18th century to Oliver Wendell Holmes in the 19th century to Robert Bork in the 20th century have made it clear beyond any honest misunderstanding that they do not mean that those who interpret laws today should try to read the minds of those who wrote those laws.
Even if it were possible to know what was in the inner thoughts of people in the past, it would be completely irrelevant because nobody voted on what was inside their minds. They voted on what the words themselves meant at the time they were written.
Phrases like "due process" and "freedom of the press" had a long established meaning in British law even before they were put into the Constitution of the United States. If we want to change the Constitution, there is a process for amending it, without having unelected judges doing the amending for us.
Anyone who doesn't understand this should not be chairman of the Senate Judiciary Committee and a roadblock to restoring Constitutional law in America.
Leave it to Thomas Sowell to cut to the heart of any issue, even if he does begin sentences with prepositions.
Thomas Sowell is an unusually gifted man who is extremely wise. To sit at his knee and learn about any subject he cares to speak about is a great privilege.
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stellar!!!
Guys, I still think{?} Specter's comment on Judges not supporting abortion is a canard that he will use to cry fowl when those who love the U.S. of A. Constitution with it's attendant amendments try to keep his "Scottish Law" ass out of that seat. Specter is NOT a person who upholds the Constitution of the U.S. of A. Peace and love, George.
Really good article. Sowell just caused me to understand why the litmus/ smell tests for judges are so wrong. Essentially, litmus tests are a case of the legislative branch attaching strings to the judicial branch and that is a definite no-no. (w/ 'judicial activism' being a case of the judiciary usurping the business of the legislative branch.)
Gun Owners of America E-Mail Alert
8001 Forbes Place, Suite 102, Springfield, VA 22151
Phone: 703-321-8585 / FAX: 703-321-8408
http://www.gunowners.org
Tuesday, November 9, 2004
You would have thought John Kerry had won an astounding Electoral College victory, rather than George W. Bush.
But, within 24 hours after the presidential results were in, there was the Senate Judiciary Committee heir-apparent, Pennsylvania liberal Republican Arlen Specter, warning Bush not to make conservative nominations to the U.S. Supreme court.
The "code words" used by Specter centered around abortion, but the message was clear: "No pro-gun conservatives need apply."
Said Specter:
"That is my view, now, before, and always. ... The president is well aware of what happened, when a bunch of his [conservative, pro-gun] nominees were sent up, with the filibuster... I would expect the president to be mindful of the considerations which I am mentioning..."
Yes, this is the same Specter who GOA opposed in the Pennsylvania Senate primary earlier this year, when he was being challenged by an A-rated congressman, Pat Toomey. (GOA was the ONLY national gun lobby to support Toomey.)
This is the same Specter who has opposed your gun rights over the last several years. To be sure, this is the Specter who:
* Cosponsored legislation in 1991 to make it a FELONY to possess any magazine that holds more than 15 rounds (S. 635).This is also the same Specter who voted AGAINST arming the nation's pilots in September 2002. Amazingly, he was one of only SIX senators who voted against this bill. Even anti-gun Senators John Kerry and John Edwards voted right!* Voted FOR the crime bill (HR 3355) which contained the Clinton semi- auto ban in 1994.
* Voted FOR the Incumbent Protection Act in 2002 to prevent groups like the NRA and GOA from criticizing public officials in the electronic media up to 60 days before an election (HR 2356).
Specter has shown his true anti-gun colors over his career in the U.S. Senate, and now he is next in line to be the chairman of the all- powerful Judiciary Committee which controls judicial nominations -- not to mention gun control legislation.
The last thing we need is for pro-gun Supreme Court nominees to be blocked by a Republican Chairman.
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Guys, This is ANOTHER good reason to keep Arlen Specter's "Scottish Law" ass out of the Senate Judiciary Chairman seat. And, him too. Peace and love, George.
Amen, George :o)
I thought you weren't supposed to end a sentence with a preposition.
Even the Bible starts with one.
An anti-Specter (pro-conservative) contribution from Thomas Sowell.
Clear and to the point, as usual for Sowell.
The Bible wasn't written in English. The word "bereshit" (first in the book of Genesis) is a compound word (actually an anagram) meaning "In a beginning".
It is not considered proper to either begin or end sentences with prepositions. But that does not detract from the brilliant points Thomas Sowell is speaking of.
But then I made a mistake, using the word "anagram". "Acronym" was the word I was intending to speak of.
You also ended both of your posts with prepositions ;-)
So much for "for the record...".
There is nothing wrong with beginning a sentence with a preposition, infact some of the very best writers do it frequently; it's ending a sentence with a preposition that's bad writing!
.
YES, I KNOW!...THAT'S HUMOR, GUYS!
(I purposely formed both sentences with prepositions front and back to illustrate how clumsy they sound. GEEZ!... LIGHTEN UP A LITTLE!)
...I do realize we've all been through a traumatic few months, what with the Great Prevaricator pretending to the White House and all...I thought some comic relief was in order...which was all I meant with the original comment!
FOR the record, I greatly admire Thomas Sowell. He is insightful, brief and direct. AND he knows what he speaks OF.
(...i just spent too much time in english composition class under the tuteledge of dr. edwin cronin, phd...)
See post 19.
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