That stung. ;)
Posted on 08/12/2005 5:24:37 AM PDT by DoraC
Blindly battling over Roberts I'M HAVING a hard time figuring out who's less rational: the liberal activists campaigning to defeat John Roberts' Supreme Court nomination, or the conservative activists campaigning to support it. Roberts, of course, is President Bush's widely hailed surprise pick to replace retiring Justice Sandra Day O'Connor. Roberts has won praise from moderate liberal legal analysts such as Cass Sunstein of the University of Chicago and my New Republic colleague Jeffrey Rosen. Roberts is widely regarded as extremely intelligent. Unlike conservative ideologues such as Antonin Scalia or Clarence Thomas, he prefers not to rewrite legal doctrine with sweeping new decisions. He is not the sort of nominee who you'd think should start a culture war. Unfortunately, somebody forgot to tell that to NARAL Pro-Choice America, which has launched a new television ad assailing Roberts. The ad itself is highly misleading.
(Excerpt) Read more at latimes.com ...
That stung. ;)
Or maybe we just don't like elistist a-holes like this writer.
That is not the point. In fact, I am not sure that you're right on that, either. However, the point I tried to make is, the "hundreds of years of judicial wisdom" you refer to, have given us such idiocy as the Dred Scott decision, Roe v Wade, and the unbelievable "emanations and penumbras" argument. Just because some Supreme Court Justice from 1850 wrote a decision that, in effect, re-wrote the Constitution, doesn't make it right.
For example, if somehow, in 2001, 3 of the 7-2 majority in Bush v Gore had incredibly decided they were wrong and it should be overturned, we would have heard not one Liberal defending the principle of Stare Decisis.
But as soon as there is a majority to overturn Roe v Wade, we better get ready for the howling and gnashing of teeth from the Liberals, screaming how Stare Decisis is being violated.
Dred Scott held that:
1. Congress had no authority to regulate slavery in the territories and thus could not grant the territorial legislatures the authority to do that.
2. Blacks are not citizens of the United States and therefore have no standing to sue in federal courts.
Both holdings were overturned by the specified amendments.
You say some precedents are wrong and should be overturned. I agree. Some decisions, like Dred Scott, Plessy, Lochner and Bowers were wrong and have been rightfully overruled. But that's different from saying that every precedent you believe is wrong should be overruled. And that's were conservative activism comes kicking in, I don't think someone like Roberts would do that. He is more likely to limit the scope of decisions he disagrees with. Compare that to Thomas: Scalia says that he homas does not believe in stare decisis, something that is essential to stability in the legal system.
You give a poor example, but you're right. Liberals only defend the precedents they like. However, considering all precedents, liberal and conservative, should be important for a conservative judge. The fact that liberals don't do that is no reason at all to do the same.
We continue to agree. See my reply to DoraC on #29. Stare Decisis is a horrible concept when it comes to judicial judgement. It's the equivalent of saying "why, that's the way we always do it around here."
Finally someone points this out. Roberts was the head of the appellate practice for a major, white-shoe Washington D.C. law firm - that incidentally has a well-known pro-bono practice. If his colleagues came to him and asked him to moot a case - which is apparently what he did in the Romer case - it's a no brainer. Basic professionalism for lawyers. These attacks on Roberts for being a professional who contributed to his law firm's pro bono practice make me sick.
The translation of this article is essentially this:
"Because NARAL is acting so incredibly stupid we have to make some noises about condemning their ad -- but LOOK! CHRISTIANS! AREN'T THEY DUMB?"
So what do you suggest? That the Supreme Court reconsiders every damn case, even though they dismissed a similar case a week ago (hypothetical). You do know that we need many more justices and an circuit court system to handle that load, don't you? And how would lower courts handle cases, if the Supreme Court treats its own precedents like toilet paper? I don't think that it would be workable.
And precedents don't just get followed for the sake of following precedent. That's why Plessy eventually got overturned by the activist Warren-court.
I don't believe in a living constitution, but I do know that the founders intended the constitution to last for centuries. So I am not so big a fan of Scalia's originalism, aside from the fact that it threatens the stability of our system. (I hope I don't sound like a flaming liberal.)
You're in effect saying that conservatives are obligated to protect liberal precedents, otherwise we're just as bad as they are. I don't understand that logic.
We know that liberals have no problem with overturning precedents they don't like. We also know they don't give a damn about the Constitution. All that motivates them is their ideology.
So, following your advice, a pack of liberal judges could mow down dozens of precedents with no constitutional justification. Then, after years of work to get strict constructionists appointed, we'd be told that to overturn all those unconstitutional liberal rulings would be an attack on precedent that would be just as ugly as the one the liberal activists engaged in. So the new supposedly conservative majority on the court would uphold all those dozens of rulings based on stare decisis.
Of course, years later when the liberals regain control, they'd go right back to freely overturning all the precedents that they don't like.
Where's the logic in that?
Actually, the only judicial 'wisdom' Scalia and Thomas would overturn is the product of about the last 50 years, maybe a little longer if you include some of the more radical decisions of the New Deal years (eg the New Deal gutting of the Commerce Clause as a restraint on Federal power). During that 50 some-odd years, a succession of left-wing courts completely overturned the previous 150 years of previous American judicial wisdom, as you call it.
There is virtually no case to be made that this overthrow of American judicial wisdom had its roots in the Constitution or law--it was pure and unfettered judicial reworking of America to better fit an elitist, liberal view of the world.
Scalia and Thomas would simply return to actual interpretation of the Constitution and laws as written. This seems radical for those of us who grew up post-Warren Court. In reality, it is a return to the wisdom of the founding fathers and the 150 years of judicial wisdom that followed and that, with some exceptions, adhered to the Constitution as written.
But the reality is, the current court is deeply radical when in refuses to overturn clearly a-constitutional decisions imposed on us by the radicals of the past 50 years. It is even more radical when it continues to create new constitutional rights that have no basis in the constitution (eg the right of sodomy).
It used to be possible to search for already posted articles by using the author name (as an alternative to a keyword in the title) as search term. It seemed to me that it was much easier to be sure of not posting redundantly that way than it is currently, especially with syndicated columnists where the article title can change from paper to paper. Is it too complicated to reinstitute that alternate method of searching?
I really don't think there's a middle ground here. Either you believe the constitution is living or you are an originalist.
I am not suggesting the Court reconsider every case. I am not even suggesting they reconsider any one case. However, if the Court gets a case in its docket, rather than simply looking for old cases, and seeing how other Courts ruled, why not (warning: Revolutionary Idea) examine that case on its own Constitutional merit, and rule accordingly? Following precedent is ok, if the precedent is sound to begin with. Otherwise, it simply compounds prior errors.
The Framers, our Founding Fathers, meant the Constitution to stand the test of time, or as you say so well, last for centuries. However, when it gets constantly re-written, based on the agenda of nine un-elected people, who have lifetime appointments, and who consider themselves the Last Word, then our Constitution starts to lose that ability to outlive each and every one of us. I would rather have Justices who read the Constitution looking for the Founding Fathers' original intent, instead of the modern meaning.
That stettles it. If the NYT is for him, I am agin him. Calls & letters going out today to Lott & Cochran.
Durn'it! NYT was supposed to be LAT.
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