EVALUATING STRICT CONSTRUCTIONISTS. How to Judge

The New Republic ^ | November 22, 2004 | Jeffrey Rosen

[inquest]

I think it may not hurt for the Republican Senators to start exercising a few of their Senatorial powers as well...

[Onelifetogive]

The nation could not effectively function with a narrow reading.

i.e. The nation could not effectively function while abiding by the Constitution.

Why is there any need for a mechanism for amending the Constitution? There is no need to actually amend the Constitution if we can just change from one "expansive" reading of the text to a new and improved "expansive" reading of the text.

If we don't insist on a "narrow" reading, we may as well not have a Constitution. It has NO meaning.

[Haru Hara Haruko]

The nation did just fine with a "narrow reading" until the New Deal.

Do you know what they used to call people who insisted the "narrow reading" be maintained?

Republicans.

Torie, what do you call yourself?

[Huck]

Well, they should just change the rules, but they obviously don't want to. I think we're all being played, and GW is one of the one's playing us, but we'll see.

[Torie]

Well, the scope of the commerce clause is not cut into Constitutional stone, nor is the intent of the founders, as to what they envisioned, to the extent they envisoned, the national market economy. Reasonably minds can differ.

[Torie]

Oh, that one is easy. I'm a Neocon. I am a registered Republican. I rarely stray from the party line in my voting habits.

[Torie]

Overstated, but you are on the right path. Gonzales has the potential to be the most moderate of the pack, and thus the new found love for him.

[Cicero]

I think the abortionists seized on the "right to privacy" argument because most of us want the government to keep out of our private business and our homes. Privacy from government has a lot of appeal for almost anyone, especially conservatives.

But it's a big stretch to say that privacy includes the right to kill a baby or an inconvenient relative in a hospital, or that minor children have a right to abort a child privately without the knowledge of their parents.

Then you have all the talk about the right to perform any kind of sexual act in your own home--which many people might be willing to tolerate if it didn't also include the right to tell everyone about it and the right to impose it on everyone's children in school.

They certainly have taken privacy and run with it.

[Fury]

The Democrats will try to prevent the appointment of any of these people. Sometimes I think the Dems are trying to refine the practice of stalling confirmation, with the ultimate objective of preventing GWB from making ANY appointments to the Court. If they can run out the clock in 3 and a half years, that's what they'll do.

I don't believe this is how this will play out. I do not believe that the Senate, nor the public will allow this to occur - delaying filling a retirement on the USSC.

Why? In my opinion because of the eminent domain case. I'm not saying that abortion, etc are not valid issues. But the government taking private property and giving it to another person strikes a common nerve with many people - perhaps most people.

I do not believe the selection of federal judges should be politicized, BUT, Republicans can turn the Dems on their head. How? By maintaining that there needs to be strong conservative judges to protect the public from Democrats that support taking your private property and giving it to big business.

I honestly believe that Kelo v. New London has Dems scared. Really scared. Politicizing the court may indeed come back to bite them in the arse.

CWW and Congressman_billybob, I send this to you because I respect your comment in all things legal.

[Congressman Billybob]

I agree with both of your central points. First, the Kelo case has really angered Joe Six-Pack. There are many horrible decisions on the Constitution in recent years. But this one is, by far, the easiest to understand AND the one that potentially attacks the interests of everyone who owns a home or rents an apartment, or just hangs his/her hat in a double-wide.

I also agree with your point that the Democrats will be unable to delay the game until the clock runs out. Joe Six-Pack will also understand a deliberate delay in the filing of a Supreme Court vacancy.

Congressman Billybob

Latest column: "Franco is Still Dead, So Are the Democrats"

[Graymatter]

The public won't allow it, the people won't stand for it---I've heard this a lot. Wish I believed it. Besides, the Dems don't care what the people want. They hear what they want to hear, and for every one of us who phones or writes, there's a DUmmy phoning or writing the opposite.
And then there's the invertebrate Republicans in Congress...

[Reactionary]

"To apply that label to someone shoud require explaining, at some point or another, how she actually misrepresented the law."

"Activist" appears to mean anyone who doesn't find anything in the Constitution that mentions abortion, gay sex, affirmative action, or the welfare state.

I suppose it means someone who can read, rather than imagine what it is they would have liked to have read.

[LibertarianInExile]

"Too bad for Janice she's the wrong minority. Word is Jorge will be discriminating against non-Hispanics this time around."

This is certainly the rumor. It sure would be nice to know we were nominating folks on the basis of their accomplishments and their character instead of on the color of their skin or their sex or their national origin. How far we've come from 1965. /biting sarcasm

[Neanderthal]

"Right to Privacy. Haven't heard that in a while.

" Has anyone notified the IRS about the right to privacy found in the constitution?

[jwalsh07]

Emilio Garza, 57. U.S. Court of Appeals for the Fifth Circuit. Bush has made no secret of his desire to appoint the first Latino justice, but, last week, he nominated White House Counsel Alberto Gonzales as attorney general, a move some suggest is meant to shore up his credentials with social conservatives for a future Supreme Court nomination. Since Gonzales will help pick Rehnquist's replacement, he may prefer to keep the Latino seat open for himself. Garza has long been the conservative Latino justice-in-waiting on the appellate bench, but he, too, will run into trouble over Roe. In 1997, his court's majority struck down a Louisiana law that allowed judges to deny abortion to a minor (and to notify her parents), even if she was mature and the abortion was in her best interest.

Rosen is playing lawyerly word games here. The state defined minors, he changes it to "mature". The federales don't define minors or states of maturity in Louisiana. Garza follows precedent and votes to strike down the will of the legislature, sometning Rosen says "good" justices should do, defer to the will of the legislature. Any activism here? Nope, no activism here that I can see.

Garza concurred in the opinion, but he added an injudicious and unnecessary polemic criticizing the Supreme Court's entire privacy jurisprudence.

Injudicious and unnecessary? After 35 million or so abortions. Amusing. Garza's "polemic" castigating judicial activism becomes in Rosen's mind judicial activism. Right out of Orwell.

Garza doesn't have much of a paper trail in federalism cases and seems like less of an enthusiastic partisan of the Constitution in Exile than his colleague Jones or the Washington lawyer Miguel Estrada, both of whom are also potential Supreme Court candidates.

Mores the pity but I'm still waiting for the "activism" evidence.

But his lack of respect for settled Supreme Court precedents should set off alarm bells.

Somebody needs to tell Rosen that Roe is no more settled than Scott was or Kelo will be.

There's an activist afoot but it's not Garza, it's Jefferey Rosen.

Best wishes for a joyful and patriotic Independence Day. We're having great fun here in Ct. Got a houseful and then some. :-}

[Carry_Okie]

McConnell seems similarly concerned about judicial restraint: In a 1987 article titled "federalism: evaluating the founders design," he strongly criticized a leader of the Constitution in Exile movement, arguing that, whatever the initial intention of the interstate commerce clause, the dream of resurrecting long-forgotten limits on federal power is unrealistic: The "vision that the Supreme Court, having been informed of the founders' intentions now has in its power to restore the original constitutional scheme, is fanciful, and would not necessarily be desirable even if it were less so." For those who care about deference to Congress, McConnell's nomination would be especially welcome.

This just shows economic and political ignorance on McConnell's part and isn't conservatism at all (but then, you knew I would say that :-). The mere existence of regulatory police power too often precludes the operations of enterprises that can address intangible risks and benefits without regulatory government. Worse, handing out regulatory favors has turned into a huge morass of corruption.

How tragically backward. The courts can't see their own invisible hand.

[Huck]

The Bush bots will support GW no matter who he nominates, but I won't. Bush Bots remind me of the line from the song:

You've got a lot of nerve, to say you've got a helping hand to lend, you just want to be on the side that's winning.

[nowheretohide]

Please re-read this review now that Roberts been named. It appears Clement was consider to have more potential to be a conservative activist on the court than Roberts