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Before voting on Roberts, insist on second nominee
Houston Chronicle ^ | September 8, 2005 | JAMES E. COLEMAN JR. and ERWIN CHEMERINSKY

Posted on 09/08/2005 1:52:07 AM PDT by Cincinatus' Wife

Democrats must insist that the Senate not vote on John Roberts' confirmation to be chief justice until after Sandra Day O'Connor's successor is also named. The Senate needs to evaluate both picks together in assessing their impact on the Supreme Court, now and for years to come.

Also, Democrats need to make clear that since President Bush has already picked a conservative in Roberts for one vacancy, the other selection needs to be a more moderate Republican in the mold of O'Connor. Otherwise, a court that currently reflects a moderate mainstream view could become one that would be significantly further to the right and hostile to basic civil rights and civil liberties.

Since the last appointment to the Supreme Court 11 years ago, the justices have decided a number of important cases involving the proper role of government in our personal lives, the responsibility of government for protecting the general welfare and our continued commitment to the values underlying the rule of law. During that period, the court's majority, often by 5-4 votes, has resisted the assault (once led by Roberts) on a woman's fundamental reproductive rights; recognized the importance of affirmative action to the democratic purpose of public education; excluded government from the bedrooms of consenting adults; knocked down repeated efforts of some to inject religion into the activities of government; ended our internationally embarrassing execution of mentally retarded and juvenile offenders; and reaffirmed that not even the president is above the law.

Beyond the issue of whether these moderate decisions will be overruled, there also are important national issues that likely will come before the court in the next few years. For example, some conservative scholars have argued for the court to significantly limit the scope of Congress' spending power, claiming that federal aid for disaster relief is unconstitutional. The new justices also will have pivotal roles in deciding key questions concerning the scope of the president's powers as part of the war on terrorism.

The key question is whether the president will attempt to replace the moderate mainstream represented by Justice O'Connor with a right-wing nominee such as Justice Antonin Scalia or Clarence Thomas, who interpret the Constitution in a way that will produce decisions that are fundamentally inconsistent with how the public views the role of its government, both in our private lives and as trustee of our general welfare and national values.

Just as it would have been unthinkable for the Senate, after the decision in Brown v. Board of Education, to confirm a Supreme Court nominee whom it knew or suspected would have cast the deciding vote to overturn Brown, it should be equally unthinkable for the Senate now to vote to confirm a nominee who is unwilling to state unequivocally that he or she accepts as established that Roe v. Wade protects a woman's fundamental right of choice or that Grutter v. Bollinger correctly upheld the constitutionality of affirmative action in public education. For a Democrat to do so should be a career-ending vote.

The crucial question for the Senate must be whether the two picks for the Supreme Court together make it more likely that these and other key precedents concerning civil rights and civil liberties will be overruled.

John Roberts is unquestionably more conservative than Sandra Day O'Connor. With one conservative nominated, the Democrats must do all that they can to insist that the remaining nominee be more moderate.

The importance of what is at stake cannot be overstated. Roberts is 50 years old. Assuming that the second nominee is around the same age and that these justices remain until they are 85, like John Paul Stevens, they will be on the court until the year 2040.

The Senate must know who these two justices will be before proceeding further with either of them and must ensure that together they will not endanger our basic freedoms for decades to come.

Coleman and Chemerinsky are professors of law at Duke University School of Law in Durham, N.C.


TOPICS: Constitution/Conservatism; Editorial; Government; News/Current Events; Politics/Elections; US: District of Columbia
KEYWORDS: 109th; conservatism; johnroberts; judicialnominees; nominees; roberts; scotus; supremecourt
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To: Cincinatus' Wife

They get sillier every day.


41 posted on 09/08/2005 3:55:02 AM PDT by airborne
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To: Armigerous

But look what happened when they blocked conservative news - Internet, talk radio and cable!!! The Left bloodied themselves by denying us our voice.


42 posted on 09/08/2005 3:55:31 AM PDT by Cincinatus' Wife
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To: Hardastarboard

The Left dreams up laws where there aren't any.


43 posted on 09/08/2005 3:56:14 AM PDT by Cincinatus' Wife
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To: Jim Noble

You are so right on... Janice Rogers Brown, a woman, a black and a moderate :)

Wouldn't the commies on the left just soil their depends if GWB does nominate her.


44 posted on 09/08/2005 3:57:49 AM PDT by USS Alaska (Nuke the terrorist savages - In Honor of Standing Wolf)
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To: nickcarraway

All seven Justices who voted for the Dred Scott decision were Democrats; the two dissenters were Republicans.


45 posted on 09/08/2005 3:58:53 AM PDT by Grand Old Partisan
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To: Cincinatus' Wife

You know...warning: this is a fantasy post I suppose: I wish President Bush would just close the book on the way the Supreme Court has been appointed in the past. I'd like him to appoint someone as Justice that would just drive everyone on the left nuts and all the beaurocrats insane. So -- with disbelief suspended for a moment -- I'd like him to appoint Bishop T.D. Jakes (of the Potter's House in Dallas) to the Supreme Court, and then to announce his intention to appoint ordinary Americans who have done extraordinary things for the nation and who have a clear understanding of the original intent of the Constitution -- which is not a living document. (And just to be preachy, I'd like him to add there is only one living word and that's Jesus. But I know that will only happen in my increasingly evangelistic and strident Catholic dreams.)


46 posted on 09/08/2005 4:04:23 AM PDT by Maeve (Father Son and Holy Ghost/They caught the last train for the coast...)
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To: alessandrofiaschi

No, the right question is simply that on my tagline. Even if Republican Senators will easily vote for him, I hope he will get a clear line of action in Court. But I'm afraid of the "precedents" (Kenney and Souter).

Interesting. I actually think he will be a decent justice. But there seemed to be one conservative group opposing him because of the work he did on a gay-rights case. BTW--it that your real name or from somewhere else? It's got a 'ring' to it.


47 posted on 09/08/2005 4:06:24 AM PDT by moog
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To: Cincinatus' Wife

I suppose you could call what they wrote, thinking.


48 posted on 09/08/2005 4:07:09 AM PDT by wita (truthspeaks@freerepublic.com)
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To: Cincinatus' Wife; Congressman Billybob; floriduh voter; MHGinTN

The law and the Constitution be damned.

Here, Houston's liberal editorial writers very blatantly admit that their (liberal) judicial picks WILL ALWAYS vote their liberal ideas and international socialist agenda, NOT the actual law or the facts of each case.


49 posted on 09/08/2005 4:09:08 AM PDT by Robert A Cook PE (-I contribute to FR monthly, but ABBCNNBCBS supports Hillary's Secular Sexual Socialism every day.)
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To: Cincinatus' Wife
Before voting on Roberts, insist on second nominee

This isn't horse trading!

I wonder if these dudes would be insisting on this if clintbilly was in charge.

50 posted on 09/08/2005 4:11:30 AM PDT by mombonn (¡Viva Bush/Cheney!)
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To: wita

Perhaps planning is a better word.


51 posted on 09/08/2005 4:12:00 AM PDT by Cincinatus' Wife
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To: Cincinatus' Wife
Hard to believe this guy is a professor. There is no reasoning to support his premise. His argument is basically, "I don't like conservatives, the American people shouldn't like conservatives, my head will explode if another conservative is appointed, so don't do it."

Please give this guy remedial reasoning or fire his sorry ass and revoke his tenure
52 posted on 09/08/2005 4:14:41 AM PDT by playball0
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To: RWR8189
The miraculous wisdom of the Founding Father's is proved again!
53 posted on 09/08/2005 4:15:21 AM PDT by Robert A Cook PE (-I contribute to FR monthly, but ABBCNNBCBS supports Hillary's Secular Sexual Socialism every day.)
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To: mombonn
If clintbilly had been in charge... well, they wouldn't have any doubt!
54 posted on 09/08/2005 4:32:23 AM PDT by alessandrofiaschi (Is Roberts really a conservative?)
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To: Cincinatus' Wife

Conservatives should vote against Roberts as CJ. Passing over two known conservatives to name a stealth as CJ is infuriatingly arrogant.


55 posted on 09/08/2005 4:47:52 AM PDT by Nephi (Globalism is incompatible with Originalism.)
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To: Nephi

President Bush should clear his nominees with you, so as not to be "infuriatingly arrogant".

Yes, I am being sarcastic.


56 posted on 09/08/2005 4:51:01 AM PDT by Grand Old Partisan
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To: Cincinatus' Wife

which part of "if you win the election, you get to appoint judges" don't these people understand?


57 posted on 09/08/2005 4:54:00 AM PDT by joe fonebone (Terrorists are murderers.........Feed them pork and kill them!)
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To: Cincinatus' Wife
Some of us labor under the delusion that lawyers are bound by the truth and want to follow the law.

Lawyers primarily exist to manipulate the law so juries find guilty people not quilty.

Their primary job function is to so manipulate the truth that you will believe the lies and reject the truth. Expecting a lawyer's opinion piece to be grounded in truth depends on the lawyer rejecting years of study and training.

If all lawyers did was express the truth they could learn to do that in a week. It takes well over half a decade to become a skilled lawyer.


58 posted on 09/08/2005 5:06:56 AM PDT by Common Tator
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To: Cincinatus' Wife
Replacing Byron White, one of the only two justices to dissent on Roe v Wade, with ultraliberal Ruth Bader Ginsburg was no problem. Replacing moderate O'Connor with someone even slightly conservative is a huge problem. The ratchet of liberalism must work in only one direction.
59 posted on 09/08/2005 5:15:53 AM PDT by KarlInOhio (We need a strict constructionist - not someone who plays shadow puppet theatre with the Constitution)
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To: Grand Old Partisan
Perhaps your senility kept you out of the loop recently, but conservatives expressed serious doubt about Roberts' conservatism when he was nominated as an associate justice. Now, Bush has passed over Scalia to name Roberts as SJ? (This is after Bush threw the "new tone" aside to slap down conservatives who had been warning Bush against naming Al "La Raza" Gonzales to the court.)

This isn't about Bush's right to name "his" justice. This isn't about my right to participate in a formerly conservative forum for discussion. This is about the future of the court and the future of the country.

Sorry to wake you.

60 posted on 09/08/2005 5:17:24 AM PDT by Nephi (Globalism is incompatible with Originalism.)
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