Posted on 10/18/2005 8:57:36 AM PDT by rwfromkansas
Sniff, sniff..... < /elitism >
That's a good example of how overruling precedent works.
Same issue in two cases - the legality of statutes criminalizing sodomy. Two different holdings. That's overruling precedent.
Chipping away at the legal reasoning which supports the holdings is not overruling precedent.
Well, your example is good but too vague for me to see potential in it. And anyway, do you think perhaps you are seeing what you want to see and not necessarily what she is actually saying. My doubt exists because her explanation could fit everyone's hopes. That's the problem with it. It tells us nothing. She uses our terms, but then she defines them in a weird way. It's just too reminiscent of how liberals toy with terms and their longstanding definitions to reshape a debate without ever making a legitimate point. That is a most dangerous talent in a judge.
Yes, because life tenure for judges comes straight out of Article III, Section 1 of the Constitution!!! If you want a strict constructionist, then they doggone well better hold firm, too firm, absolutely firm to the Constitution!!!
hmmm...you make an interesting point in post 40.
You have to consider that she is answering a questionaire put forth by the Senate Judiciary Committee.
What did you expect her to say?
"Yes, I would overturn Roe v Wade"?
Guaranteed to get her rejected.
And not just by Democrats either.
Remember the 'Gang of 14'?
Without those 7 votes, there will be no ending a fillibuster and the 'nuclear' option would be off the table.
The Constitution has various parts, all of which are designed to work to gether. It describes a system of government with four branches. "Four!" you say? Yes, four. You see, "we the people" are part of the balance of powers.
The Constitution in fact does provide for impeachment of judges. Not all Federal judges in fact serve for life. The fact that our leaders have permitted a Constitutional facility to atrophy does not mean the facility is gone. It is weak, but it is always there.
At some point, if the Courts become too assertive of power, the legislature has the power to reel them in via impeachment.
The political dynamic is thatthe legislators prefer to NOT be accountable, and they like it when the Courts make social policy. There is a pact there, "You take the heat, and we'll levae you alone."
Again, at some point, the people may rebel at this, and throw the bums out. I'm not saying we're there, but I am pointing out that the Constitution has those tools. You would be well served to understand the tools, because "we the people" also have a role in this adventure of self-government.
Unless, of course, you prefer to be ruled by others who will do (some of) your thinking for you.
Surely you are familiar with Madison's oft-quoted reliance upon the courts to protect against the tyranny of the majority? Yes, we the people are certainly an essential part of the balance of power, but in our republic, we have wisely and humbly chosen to submit even ourselves to the "check and balance" of the courts.
I didn't say the courts could only do wrong. Of course they are a tool for good. That is beyond argument. The discussion was what to do when the courts arrogate power to themselves that -PROPERLY- belongs in the hands of the people. ANd I know that word, "properly," represents a complex set of issues that is at the core of differnce of opinion on the role of the courts, vs. the role of the legislature vs. the role of the people.
... but in our republic, we have wisely and humbly chosen to submit even ourselves to the "check and balance" of the courts.
It is not absolute submission. It it was, Roe would be settled, as O'Connoor said it was when she composed Planned Parenthood.
"Which is why this whole exercise is meaningless."
I think you have hit the nail on the head.
I doubt anyone is going to be swayed by this nor do I expect significant numbers will be swayed by her hearings...at least not swayed in her favor...a poor performance could turn people against however.
Miers is in a bit of a damned if she does damned if she doesnt senario..but then thats the game. The biggest opposition she faces right now is from the conservatives not the democrats. The white House has no doubt alreayd made this detemrination which is why they arent trying to hide her opposition to Roe V Wade. Anything she puts out now is going to be oriented around her trying appease conservatives and get them to go along with the nomination.
As you said this is precisely why this whole process is now a meaningless exercise. What she says at this moment in time is worthless. It's what she may or may not have said over the course of her career that gives people a reasonable sense of how they might act on the court.
She can tell me she is apposed to judicial activism all she wants..all it tells me is that she knows she has to convince conservatives she is an originalist to get on the court. Once there what she said in the hearings is irrelevant. It is nothing more than a political exercise at this point. I have no reason to expect it to be anything else. This woman will probably be confirmed. Worhtless statements like this will provide the senate republicans enough cover to vote for her.
We wont ever know anything about this woman until she hands down her decisions...from what I have read about her..thats just the way she likes it. Reason enough for me to be nervous..and apposed to her.
One thing I did note is the nice caveat in her statement
"While legitimate criticism of judicial activism is healthy, even essential, we must be wary of unduly criticizing judges merely because we disagree with the result in a particular case.."
Ah I see...judicial activism might not be judicial activism..you might only THINK its judicial activism...excellent..when do they vote on her? Lets get this show on the road!!
Frum or perhaps another person said Miers wrote liberal memos to Bush regarding the war on terror etc.
But, he could not provide evidence to back it up. This should not settle things, but it does give me more comfort.
"this" meaning her views here on the role of the courts
The WH has increasingly been trying to highlight her qualifications, no doubt to try to appease those who have that as their primary objection on both sides.
Okay, but I seriously doubt Miers sees it that way. The Bush WH supported the Lawrence decision. I think Bush looks for a pro-Lawrence, squishy-Roe justice who can talk the conservative talk.
The most liberal members could assent to this?
Now that is just silly....
yes
Love your post #50. Well said.
I always preferred take-home tests...
I totally disagree.
Look at how Specter tried to twist her agreement with the holding in Griswold into thinking she's all for penumbras and emanations.
And Miers has specifically stated in the past that she agreed with laws criminalizing sodomy, so she's definitely anti-Lawrence.
I'll grant you that she may turn out to keep Lawrence on the books, however, now that's it's been decided in favor of decriminalizing sodomy. I don't think it's that big of a deal if she does. I wouldn't have gotten tossed into jail before Lawrence anyway.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.