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The Fry Cook Rule for the Supreme Court
Special to FreeRepublic ^ | 22 July 2005 | John Armor (Congressman Billybob)

Posted on 07/14/2005 1:19:22 PM PDT by Congressman Billybob

Two of my ministers have regularly conducted “mini-sermons” for the children in the church. When they do that, they demonstrate a universal truth. No one really understands a subject until he can explain it in plain English to a ten year old. I think the question of appointing new Justices to the Supreme Court cries out for that treatment. The Fry Cook Rule may provide the answer.

One member of the Supreme Court has already resigned, Justice O’Connor. Three others may not be long behind her, Chief Justice Rehnquist, and Justices Ginsburg and Stevens. I won’t repeat what I’ve said before about the age and infirmities of various Justices. Suffice to say, for that hypothetical ten year old, when a President appoints four new Justices to a Court that only has nine members, the effects are profound. And the effects will last a long time, since Justices are appointed for life.

So, it matters a whole bunch if President Bush has a philosophy about what Justices ought to do on the bench, and if he demonstrates that thinking through his appointees to go on that Court.

A brief digression’s in order about the praise being heaped on Justice O’Connor these days by everyone who can walk and chew gum, regardless of their politics. Two weeks ago I covered the difference between the original O’Connor and the current-day O’Connor. The fact that everyone is now praising her has nothing to do with the two different O’Connors, but instead follows the Julius Caesar Rule.

As Shakespeare pointed out by the magnificent speech he wrote for Mark Anthony at Julius Caesar’s funeral, it is always safe to praise dead politicians. No matter how badly you misquote them or abuse their memories, you can be certain they will not rise up and contradict you. Yes, I know Justice O’Connor is not physically deceased. But politically she is “an ex-parrot; she has joined the choir invisible.” (From a career standpoint, of course, quoting Monty Python.)

Many forests have given their lives, and enough electrons died to light up Lithuania, to publish or broadcast mindless blather about the appointment of new Justices. Most of the authors of this twaddle are dumb as a hoe handle about what it means to have a written Constitution, and therefore what it means to serve as a federal judge under that document. A few do know those subjects, but are lying about them for political purposes. Here is the straight skinny.

The Fry Cook Rule

You are Manager of a McDonalds, hiring a new fry cook. You need answers to two questions: Do you understand the job? Are you willing to do the job?

For a Supreme Court appointment, the two questions are: Do you understand the Constitution? Will you enforce the Constitution?

Now that we’ve clarified the Rule for appointment, we should explain why it’s important. As most of you know, on 23 June the Court decided the Kelo case, concerning eminent domain against private homes in New London, Connecticut. To make a long story very short, five Justices ruled that when the Constitution says your home can be taken only for “public use,” it really meant the government can take your house and turn it over to some other private owner who will build a bigger building and pay higher taxes.

Four Justices, a minority who can only complain, protested vigorously that the Court was savaging the Constitution and throwing out one of the key protections of the Bill of Rights.

Now, it isn’t proper to ask a prospective new Justice a bald-faced question, “Do you think the Kelo decision was bad, and should be reversed?” Any nominee who answered that question would have to disqualify himself/herself when a new case on that issue found its way into the Court. On the other hand, a Senator smart enough to ask the right questions (yes, Virginia, there are a few smart and honest Senators), could inquire whether the nominee agrees with Madison, Hamilton and Jay in the Federalist. He might even ask the nominee to explain what Thomas Jefferson meant when he referred to the federal judiciary as “the most dangerous branch.”

In short, it shouldn’t be too difficult to apply the Fry Cook Rule to any nominee for the Court. A few well-crafted questions will ferret out whether he/she understands the job and is willing to do it. Whether he/she understands the Constitution and will enforce it.

There, was that so difficult?

About the Author: John Armor is a First Amendment attorney and author who lives in the Blue Ridge Mountains of North Carolina. John_Armor@aya.yale.edu


TOPICS: Your Opinion/Questions
KEYWORDS: chiefjustice; exparrot; frycookrule; juliuscaesar; justiceginsburg; justiceoconnor; justicestevens; kelo; markanthony; minisermons; montypython; shakespeare; supremecourt
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Wrote this way early. Saw the reports of Rehnquist going into the hospital yesterday and out today. Figured I should publish this now, to stay ahead of the curve. LOL.

Enjoy.

John / Billybob

1 posted on 07/14/2005 1:19:23 PM PDT by Congressman Billybob
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To: Congressman Billybob

If original intent was limited government, how can we believe Bush will put in an original intent judge.

Bush has grown the government in size and spending virtually unknown in history.

Would he appoint a judge that would rule all his programs are unconstitutional?


2 posted on 07/14/2005 1:31:37 PM PDT by edcoil (Reality doesn't say much - doesn't need too)
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To: edcoil
You miss my point. Even if Bush nominated another Judge bork, only 30 years younger, and did that three times in a row, the resulting Court would not find all the bad decisions of the Court in the last 50 years, unconstitutional on the spot.

When you read the Chief Justice's decisions on "liberal" issues based on stare decisis, you will understand that the Court moves slowly, not wham-bam, thank-you, ma'am.

Get the right jurisprudence on the Court, and in time the Court will straighten itself out. Focus on nominees who will say in advance they will reverse a given Court decision, and you are on a fool's errand. Even if such Justices were confirmed, they would be disqualified from sitting in the very cases you are most concerned about.

Sometimes at the pool table you have to use a two- or three-rail shot. Same applies to Supreme Court jurisprudence.

John / Billybob

3 posted on 07/14/2005 1:41:00 PM PDT by Congressman Billybob (Will President Bush appoint a Justice who obeys the Constitution? I give 65-35 odds on yes.)
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To: RhoTheta

Excellent.


4 posted on 07/14/2005 1:44:23 PM PDT by Egon (By the way, I took the liberty of fertilizing your caviar.)
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To: Congressman Billybob

You miss my point. Even if Bush nominated another Judge bork, only 30 years younger, and did that three times in a row, the resulting Court would not find all the bad decisions of the Court in the last 50 years, unconstitutional on the spot.

True, in fact I made that point lask week. Any new court could only rule on cases wroking through the system to its level and a new law suit would have to be started to change anything.


5 posted on 07/14/2005 1:44:53 PM PDT by edcoil (Reality doesn't say much - doesn't need too)
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To: Congressman Billybob

Thanks, John. Good post.


6 posted on 07/14/2005 2:37:46 PM PDT by Still Thinking (Disregard the law of unintended consequences at your own risk.)
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To: Congressman Billybob

Another important thing the judges do which has as much impact as the rulings they make, and perhaps is effected more directly by their attitudes toward the constitution, is the decison whether or not to hear a case.


7 posted on 07/14/2005 2:50:53 PM PDT by Mind-numbed Robot (Not all that needs to be done needs to be done by the government.)
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To: Congressman Billybob

Great article.


8 posted on 07/14/2005 5:13:03 PM PDT by patton ("Fool," said my Muse to me, "look in thy heart, and write.")
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To: Congressman Billybob

There is no real reason to ask a nominee ANY questions. That is a Rat tactic and valueless if you expect an appointee to rule on questions of law and not have to recuse himself (as you mention). These nominations should be about the record of judicial rulings. If we appoint a judge whose promise is to be conservative but whose record is unclear, we are wasting an appointment. The appointee must be a proven conservative jurist or a verifiable Constitutionalist.

There must be no more Souters.


9 posted on 07/14/2005 5:18:54 PM PDT by LibertarianInExile ("Property must be secured or liberty cannot exist." -- John Adams. "F that." -- SCOTUS, in Kelo.)
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To: Congressman Billybob
Congressman Billybob said: Now, it isn’t proper to ask a prospective new Justice a bald-faced question, “Do you think the Kelo decision was bad, and should be reversed?” Any nominee who answered that question would have to disqualify himself/herself when a new case on that issue found its way into the Court."

I don't understand this.

Every member of the Court which decided Kelo is in the same position. They reviewed the facts, heard the arguments, and came to a decision. How is the fact that a nominee does the same thing when questioned by the Senate act as a disqualifier when having actually ruled in the original case, whether concurring or dissenting, does not?

10 posted on 07/15/2005 12:03:31 AM PDT by William Tell
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To: Congressman Billybob
You are Manager of a McDonalds, hiring a new fry cook. You need answers to two questions: Do you understand the job? Are you willing to do the job?

Potential Third Question: "... and you feel your previous work experience as an Air America talk show host qualifies you for this far more intellectually demanding position how, precisely...?" :)

11 posted on 07/15/2005 1:47:49 AM PDT by KentTrappedInLiberalSeattle ("As a conservative site, Free Republic is pro-G-d, PRO-LIFE..." -- FR founder Jim Robinson)
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To: Congressman Billybob


The Fry Cook Rule

You are Manager of a McDonalds, hiring a new fry cook. You need answers to two questions: Do you understand the job? Are you willing to do the job?

For a Supreme Court appointment, the two questions are: Do you understand the Constitution? Will you enforce the Constitution?

...a Senator smart enough to ask the right questions (yes, Virginia, there are a few smart and honest Senators), could inquire whether the nominee agrees with Madison, Hamilton and Jay in the Federalist. He might even ask the nominee to explain what Thomas Jefferson meant when he referred to the federal judiciary as “the most dangerous branch.”

BRAVO!

AUTHOR

...for SCOTUS! ;)

12 posted on 07/15/2005 7:53:39 AM PDT by The Spirit Of Allegiance (SAVE THE BRAINFOREST! Boycott the RED Dead Tree Media & NUKE the DNC Class Action Temper Tantrum!)
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To: Blurblogger
Thang Q veddy much.

But I's too old, n too cantancerous, ta be a Supreme.

John / Billybob
13 posted on 07/15/2005 8:18:45 AM PDT by Congressman Billybob (Will President Bush appoint a Justice who obeys the Constitution? I give 65-35 odds on yes.)
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To: Congressman Billybob

"I's too old, n too cantancerous, ta be a Supreme."


BALONEY! You've passed MY litmus test. Now go get your robe on. Take the seat of the bitter old hag there, Ruth such-and-such, never mind how she might fuss or throw a shoe at you....LOL


14 posted on 07/15/2005 8:23:02 AM PDT by The Spirit Of Allegiance (SAVE THE BRAINFOREST! Boycott the RED Dead Tree Media & NUKE the DNC Class Action Temper Tantrum!)
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To: Congressman Billybob

nice article, John. I agree that the qualifications are simple. THe only other one I can think of is How long are you going to be around wanting to do this job? We need youngish conservative people.


15 posted on 07/15/2005 12:32:43 PM PDT by RobFromGa (Send Bolton to the UN!)
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To: Congressman Billybob
One member of the Supreme Court has already resigned, Justice O’Connor.

Sadly, O'Connor has not resigned. If she had resigned there would be a vacancy. As it is there is no vacancy.

She has handed in a resignation that she says is effective on the confirmation of her replacement by the Senate.

Effectively, she has thumbed her nose (again) at the Constitution which gives the president recess appointment power to deal with any Senate's inability to effect a timely consent to a nominee. With her non-resignation and non-vacancy, she has very "cutely" taken that option away from the president.

Perhaps the president would never have used it, but her disdain for the constitution includes making herself bigger than it's provisions and intent.

Were I president Bush, I wouldn't have accepted her letter of non-resignation.

16 posted on 07/15/2005 3:07:56 PM PDT by xzins (Retired Army Chaplain and Proud of It!)
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To: Congressman Billybob
Biilybob wrote:

For a Supreme Court appointment, the two questions are: Do you understand the Constitution? Will you enforce the Constitution?
...a Senator smart enough to ask the right questions (yes, Virginia, there are a few smart and honest Senators), could inquire whether the nominee agrees with Madison, Hamilton and Jay in the Federalist.

The definitive question, imo..

Do you agree that the 2nd Amendment is a Law of the Land, - and therefore must be supported, as written, by all judges & officials, -- notwithstanding any State laws to the contrary?

How would you answer, Billybob?

17 posted on 07/15/2005 3:40:08 PM PDT by musanon
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To: Congressman Billybob

Excellent points, neat presentation. The "old and cantacerous" leads me to the following: As much as I admire him, Scalia is not a great choice as Rehnquist's replacement. Chief Justice must moderate between the Associates, referee as it were, and Scalia is more valuable as a free agent. I think when that opens up, put forth Thomas. Let the Dems take heat for denying the first black Chief in history, while trying to make the case that a man who sailed through his initial confirmation hearings is suddenly too radical.

Yes, I know we are now considering O'Conner's replacement, but if we do not gear up for Rehnquist, we will be playing catch-up. To follow your pool analogy, if you ain't thinking three shots ahead, the other man is about to take yo' money.

Aside to William Tell, questions on specific cases and issues are inappropriate. Imagine, if you will, you are charged with, say, DWI. Your hearing judge is also head of the local MADD chapter, lost a relative in to an accident involving a really drunk driver, and is outspoken on maxing out penalties for DWI convictions. If you are charged after two glasses of wine and you have the sense God gave a doorknob, you are going to request recusal, or failing that, change of venue. Same principle.

Interestingly, New Republic editorially supported Kelo v New London and chastised Thomas and conservatives in general, in that we were being inconsistent in opposing "activist" judges, since the dissent would have reversed 50 years of rulings expanding the definition of "public use". By that standard, they would have opposed a reversal of Dred Scott.

I know we are now discussing O'Conner's replacement. To follow your pool analogy, if you ain't thinking three shots ahead, I'm going to take yo' money.


18 posted on 07/15/2005 3:48:45 PM PDT by barkeep
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To: Congressman Billybob
John: Thanks for providing the only truly important set of qualifications for a Supreme Court Justice at this critical juncture in our national history.

By the way, re Kelo: will it be used now as a precedent, and is it likely that the Court might rule differently on a similar future case?

Please comment, if you will, on this quotation from Lincoln's First Inaugural:

"I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

"Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes." - Abraham Lincoln

(Underlining added for emphasis)

19 posted on 07/15/2005 7:07:40 PM PDT by loveliberty2
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To: loveliberty2
Lincoln's comment from his inaugural is in line with Jefferson's warning that the federal judiciary is "the most dangerous branch." Jefferson wrote on that at length, and I published a column of Jefferson's quotes about six months ago.

Suffice to say, I agree.

Congressman Billybob

Latest column: "The Fry Cook Rule for the Supreme Court"

20 posted on 07/15/2005 8:20:32 PM PDT by Congressman Billybob (Will President Bush appoint a Justice who obeys the Constitution? I give 85-15 odds on yes.)
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To: musanon
I think the entire Constitution is the "supreme Law" as it says, and all of it should be equally obeyed. Even the orphans of the document like the 2nd Amendment.

John / Billybob
21 posted on 07/15/2005 8:22:51 PM PDT by Congressman Billybob (Will President Bush appoint a Justice who obeys the Constitution? I give 85-15 odds on yes.)
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To: musanon
The definitive question, imo..

Do you agree that the 2nd Amendment is a Law of the Land, - and therefore must be supported, as written, by all judges & officials, -- notwithstanding any State laws to the contrary?

Another way of putting it:

"Mr. Protojustice, do you know the difference between a dependent clause and the subject of a sentence?"

"Of course, Senator."

"Then, would you please diagram the following and explain its meaning: 'A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.' ?"

22 posted on 07/15/2005 8:33:20 PM PDT by LexBaird (tyrannosaurus Lex, unapologetic carnivore)
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To: LexBaird
The definitive question, imo..
Do you agree that the 2nd Amendment is a Law of the Land, - and therefore must be supported, as written, by all judges & officials, -- notwithstanding any State laws to the contrary?

Another way of putting it:
"Mr. Protojustice, do you know the difference between a dependent clause and the subject of a sentence?"

"Of course, Senator."

"Then, would you please diagram the following and explain its meaning: 'A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.' ?"

"Certainly Senator. It means that the individual right can be severely regulated, & certain types of arms prohibited.
-- I cite as proof the recent Justice Dept report prepared by the current administration."

23 posted on 07/15/2005 9:10:56 PM PDT by musanon
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To: Congressman Billybob
I just found this. Where was my ping? Very nice.
24 posted on 07/16/2005 2:19:06 PM PDT by Pukin Dog (Sans Reproache)
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To: Congressman Billybob
This well qualified lady can answer those questions very clearly.
and she is a lawyer, but you all knew that. ;^)

Ann Coulter for SCOTUS!


25 posted on 07/16/2005 2:22:38 PM PDT by bill1952 ("All that we do is done with an eye towards something else.")
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To: William Tell

It's called (hyphen inserted for emphasis) pre-judice (prejudging the outcome of a specific case). When a decision has been made during the course of a previous case ("in the line of duty", as it were), the principle doesn't apply.


26 posted on 07/16/2005 2:24:10 PM PDT by MortMan (Mostly Harmless)
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To: Pukin Dog
Sad to say, I am a quasi-technophobe. I've never learned how to create a functional ping list. So, as a substitute, I put my latest column link in my signature, wherever I go on FR. That's been functional for a year now.

John / Billybob
27 posted on 07/16/2005 2:27:05 PM PDT by Congressman Billybob (Will President Bush appoint a Justice who obeys the Constitution? I give 85-15 odds on yes.)
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To: Congressman Billybob
Okay, I went through this last week. I created my first ping list in Word, and just paste it when I post. I still forget sometimes, though.
28 posted on 07/16/2005 2:28:31 PM PDT by Pukin Dog (Sans Reproache)
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To: Congressman Billybob
You make up a list of freeper names separated by semicolons, no spaces, stick it in a word or text file, and save it to file on your desktop.

Write your post, open your file, Select all, then copy and paste into the "To" field.

Bingo, instant ping list.
29 posted on 07/16/2005 2:34:19 PM PDT by bill1952 ("All that we do is done with an eye towards something else.")
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To: MortMan; barkeep
MortMan said: When a decision has been made during the course of a previous case ("in the line of duty", as it were), the principle doesn't apply.

That is why I don't think that commenting on Kelo would represent "prejudice". The case has been decided. There is no more information available for consideration nor is there any information hidden. A nominee's decision on such a case is no more an impediment to future fairness than the decisions reached by those on the court.

30 posted on 07/16/2005 3:02:46 PM PDT by William Tell
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To: William Tell; barkeep

But the commenter did not evaluate all of the evidence. When a justice looks at a case, they see the whole of the submitted evidence. Someone on the outside doesn't see near as much.

JMHO - I'm an engineer, not a lawyer.

Thanks for a reasoned response, BTW.


31 posted on 07/16/2005 3:09:30 PM PDT by MortMan (Mostly Harmless)
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To: Congressman Billybob

For life? Is a justice brain dead? No, only half dead. Can keep his (her) job. Pilots of jet airplanes get retested frequently. Reconfirm justices every decade or so. More frequently after 75.


32 posted on 07/16/2005 9:51:11 PM PDT by dr huer
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To: Congressman Billybob
>> throwing out one of the key protections of the Bill of Rights.

Favorite liberal sport, throwing out pieces of the Bill of Rights. Ranks behind throwing out God, but ahead of throwing out the Ten Commandments and about even with throwing out the Magna Carta.

33 posted on 07/17/2005 6:52:05 AM PDT by T'wit (If any liberals get to Heaven, they'll lecture God on what's wrong with it and reform it all to Hell)
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To: William Tell
From reading the Kelo decision, I can guar-on-d*mn-tee that clever lawyers for urban and rural areas will come up with new cases to push the envelope on what constitutes "public use" under the new permissions from the Court. You've heard the saying, "Nothing can be made foolproof, because fools are so ingenious." Well, the same applies to lawyers.

Besides, on a case that sharply and closely divided, there's always the chance that the Court will overrule the Kelo case. In either event, a potential Justice who expressed the opinion that he/she would uphold/reverse Kelo, would disqualify that Justice from serving on that future case.

Trust me, it's a huge no-no.

John / Billybob

34 posted on 07/17/2005 7:12:18 AM PDT by Congressman Billybob (Will President Bush appoint a Justice who obeys the Constitution? I give 85-15 odds on yes.)
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To: Congressman Billybob
Congressman Billybob said: "...a potential Justice who expressed the opinion that he/she would uphold/reverse Kelo, would disqualify that Justice from serving on that future case.
Trust me, it's a huge no-no.

My point is that there is a difference between answering a question regarding a hypothetical case (or a real one) which might reach the court in the future versus expressing an opinion in agreement with the dissent in a case already decided. We have over two hundred years of precedent by prior Supreme Court decisions. Is it the case that no opinion can be stated regarding the correctness of any such decisions without being bound to recuse oneself in a similar case?

The Dred Scott decision was a federal affirmation of the power to return a slave to his owner in a slave state. Is that decison out-of-bounds for comment? The issue of ownership of "property" having crossed state lines is still liable to come up.

From a practical point-of-view I can see where an appointee might use the claim that he wishes to avoid a future obligation to recuse in refusing to answer a question. Isn't a Supreme Court Justice the final arbiter of when he must recuse, short of impeachment? Are there any examples of a Justice recusing on the basis of opinions stated during confirmation, apart from some actual conflict-of-interest or prior direct involvement in a case?

And finally, thanks for taking your time to respond. My future degree from UFR (the University of FreeRepublic) will be highly prized.

35 posted on 07/17/2005 10:44:58 AM PDT by William Tell
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To: William Tell
For the first century, no nominees for the Supreme Court ever testified before Congress. Instead, they were nominated, and their Senate supporters presented their background on the floor of the Senate. Some reading from their opinions and writings were in oder. But that was it.

There is, of course, a major difference between "How would you vote on [BLANK] case?" And, "What is the role of a judge in the American system of government? (Please refer to the Constitution and the Federalist in your answer?"

The first question is always out of order. The second question should be mandatory for all who seek to be judges of Justices today.

John / Billybob

36 posted on 07/17/2005 10:59:35 AM PDT by Congressman Billybob (Will President Bush appoint a Justice who obeys the Constitution? I give 85-15 odds on yes.)
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To: Congressman Billybob

dat's funny!

justice ginzburg wanted to eliminate mother's day and father's day, yet she was over whelmingly approved by both libs and pubbies.


37 posted on 07/17/2005 7:00:53 PM PDT by ken21 (it takes a village to brainwash your child + to steal your property! /s)
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To: Congressman Billybob

Excellent!


38 posted on 07/18/2005 6:31:49 AM PDT by buffyt (Web Sites Let People Take News Into Their Own Hands ~ Thank YOU Jim Robinson!)
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To: Congressman Billybob; TaxRelief; Alia; 100%FEDUP; 2ndMostConservativeBrdMember; ~Vor~; A2J; ...

NC *Ping*

Please FRmail Constitution Day, TaxRelief OR Alia if you want to be added to or removed from this North Carolina ping list.
39 posted on 07/18/2005 6:57:56 AM PDT by Constitution Day
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To: Congressman Billybob
To make a long story very short, five Justices ruled that when the Constitution says your home can be taken only for “public use,” it really meant the government can take your house and turn it over to some other private owner who will build a bigger building and pay higher taxes.

No, to make a short story even shorter, five Justices ruled that the town of Kelo had this right and four Justices ruled as if the 14th Amendment somehow applied to the 5th, which it didn't until 1897. In any case, all nine Justices ignored the Constitution and the original intent of the document. It was not meant to apply to the states. If any of the four Justices that voted against Kelo would have used federalism as an argument then I may have had some respect for their decision

40 posted on 07/18/2005 7:08:34 AM PDT by billbears (Deo Vindice)
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To: Congressman Billybob

Billy Bob, you are surely a reincarnation of Will Rogers, Mark Twain and Teddy Roosevelt, all rolled into one.

You make the difficult so easy to understand, that the ignorant.........the stupid even, are left with no excuse for failing to comprehend.


41 posted on 07/18/2005 7:16:33 AM PDT by F.J. Mitchell (Better a thousand Lawyers drive Fords, than one innocent person pay for their BMW .)
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To: F.J. Mitchell
Thank you. That's what I try to do, and it's nice to know that I succeed from time to time.

John / Billybob
42 posted on 07/18/2005 7:55:23 AM PDT by Congressman Billybob (Will President Bush appoint a Justice who obeys the Constitution? I give 85-15 odds on yes.)
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To: billbears
The Incorporation Doctrine, to which you object, has been settled law for seventy years, and any Justice who tried to decide the case on that basis would have been laughed out of Court. That leaves the plain language and intent of the Fifth Amendment's property rights to resist the land grab.

Asking for what is impossible is not a productive approach. Asking for what is possible, enforcing the Fifth Amendment, is the better approach. That is the way this case will be cut down in future cases. See the history of Plessy v. Ferguson as a template for change in the Supreme Court as better thinking appears among the Justices.

John / Billybob

43 posted on 07/18/2005 7:59:54 AM PDT by Congressman Billybob (Will President Bush appoint a Justice who obeys the Constitution? I give 85-15 odds on yes.)
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To: xzins; Congressman Billybob

Wonder if she could pull her letter back if she didn't approve of the nominee?


44 posted on 07/18/2005 8:11:23 AM PDT by Ernest_at_the_Beach (History is soon Forgotten,)
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To: Congressman Billybob
The Incorporation Doctrine, to which you object, has been settled law for seventy years, and any Justice who tried to decide the case on that basis would have been laughed out of Court. That leaves the plain language and intent of the Fifth Amendment's property rights to resist the land grab.

Ridiculous. First off, as it pertains to the Fifth Amendment, the incorporation doctrine was originally justified in 1897 by Blackmun I believe. Scalia also spoke out against that decision in one of his own just a few years ago.

But by your argument, any doctrine that has been 'settled', if for a specific time, should apparently be left alone. Does that mean Roe v Wade should never be overturned? Not going to get very far down the path to returning to a Constitutional government if we allow that.

Asking for what is impossible is not a productive approach. Asking for what is possible, enforcing the Fifth Amendment, is the better approach.

Okay. Let's play it your way then. More centralization of power than the Framers intended. Applying the Constitution to the separate and sovereign states, another travesty in the eyes of the Framers (see #45). Allowing federal courts to oversee and review state decisions. Again another no-no to the Framers (see #78 and #81).

I tell you what. Let's just throw out the Federalist papers and parts of the Constitution that fly in the face of what you call 'conservative' and continue our compromise down the road to hell shall we? After all, a Republican is picking the SCOTUS judge so that makes practically anyone he decides on as an acceptable 'conservative'. Nothing may be done immediately by asking for the impossible. Continuing down a partisan path that so many desire and refusing to educate the general public (which after reading your article may include you, sorry but I call it as I see it) on the intent and limitations of the Constitution, 'conservatives' will be no better than the liberals they despise.

Asking for what is impossible may not be a productive approach. But what has gotten us to this point is asking only for what is possible. And I wouldn't call that productive in the least

45 posted on 07/18/2005 8:30:35 AM PDT by billbears (Deo Vindice)
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To: Congressman Billybob

ping


46 posted on 07/18/2005 8:36:28 AM PDT by pointsal
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To: billbears
Give it a rest. In my 19 briefs in the Supreme Court so far, I have always advanced arguments that I thought had a chance to prevail. I have pushed the envelope on occasion.

In Bush v. Gore, I was the ONLY lawyer to urge the Court to "strike" the Florida decision, and "do nothing else." And that's what the Court did, unanimously, in Round I.

However, and this is a big however, I do have an instinct for what cannot possibly be accomplished at a given time in a given case. It undercuts all of one's arguments to make one clearly foolish argument. I do not think I will consult with you before filing my 20th brief in the Court. To charge in like a bull in a China shop is NOT a productive approach to any challenge in life.

John / Billybob

47 posted on 07/18/2005 9:10:26 AM PDT by Congressman Billybob (Will President Bush appoint a Justice who obeys the Constitution? I give 85-15 odds on yes.)
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To: mass55th

PING!


48 posted on 07/18/2005 9:21:31 AM PDT by buffyt (Web Sites Let People Take News Into Their Own Hands ~ Thank YOU Jim Robinson!)
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To: Ernest_at_the_Beach

I think she could the way it's worded. She could just say there's no hope that the nominee will be confirmed.


49 posted on 07/18/2005 9:23:24 AM PDT by xzins (Retired Army Chaplain and Proud of It!)
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To: Congressman Billybob
In my 19 briefs in the Supreme Court so far

Please provide links to these briefs, I would like to see what you argued on and just how far you pushed the envelope

In Bush v. Gore, I was the ONLY lawyer to urge the Court to "strike" the Florida decision, and "do nothing else." And that's what the Court did, unanimously, in Round I.

Again, not doubting you but I would like to read your argument on this case to see how you came to this conclusion. Bush v Gore was a special case as an election of a federal official was at stake. Therefore, the Supreme Court had every jurisdiction to review a state decision.

However, and this is a big however, I do have an instinct for what cannot possibly be accomplished at a given time in a given case.

Oh good, we'll just keep down the same path then shall we? Lord knows how well it's worked for the past 100 years. Why, we're rolling conservatism back decades, ooops I mean rolling back government waste, power, and expenditure back decades.

It undercuts all of one's arguments to make one clearly foolish argument.

Oh, so Hamilton and Madison were foolish while Blackmun, a truly activist judge was not. Glad we got that straightened out.

I do not think I will consult with you before filing my 20th brief in the Court.

Hey as I said, I would be interested to read the other 19 to see how and what you argue. Centralization of government power isn't that much of an argument for forwarding conservatism though.

To charge in like a bull in a China shop is NOT a productive approach to any challenge in life.

Well somebody needs to start charging something there. Because the pattering around of little Republican feet hasn't done much of squat in my view.

50 posted on 07/18/2005 10:33:27 AM PDT by billbears (Deo Vindice)
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