Replies

Two questions...

1.Was Scumer actually saying /advocating the position that "stare decisis" should trump the Constitution? IOW, that an unconstitutional law, long on the books, ( i.e. Roe) should be left alone?

2. Can anyone explain what is the impact/meaning of "findings"..I'm not a lawyer..never heard the term before..yet it was used a lot yesterday by Alito, saying that Congress should include "findings" with the laws it passed..Are those Cliff's Notes, or work papers...Does it mean thatCongress is supposed to explain the laws it passes?

BTW CM..g'mornin' back at ya..

I'm no lawyer either. I understand that 'stare decisis' means is the doctrine under which the court adheres to past precedents. Is that right? If so, it certainly should not trump the Constitution itself, and Schumer (even though he hasn't practiced law a day in his life)should know that.

BTW I know he WENT to law school, but did he graduate? Or if he did, did he take and/or pass the bar exam?

Was Scumer actually saying /advocating the position that "stare decisis" should trump the Constitution? IOW, that an unconstitutional law, long on the books, ( i.e. Roe) should be left alone?

Yes. And Alito's answer might be misconstrued as "in agreement" depending on how you interpret it. Discussed at http://www.confirmthem.com/?p=2071. Has no impact on confirmation, but may give traditionalists some (temporary, IMO) heartburn.

Can anyone explain what is the impact/meaning of "findings" ...

Congressional findings that justify their creation of law. The Federal Government can only make law that is within the powers granted to it under Article I, Section 8 of the Constitution. Congress has to justify that its laws comport with the grant of power in the Constitution.

Sessions picked up on this very well - most of the discussion was related to Rybar, the machine gun case. Sessions suggested that the law should be amended to address this infirmity, and all would go on hunky dory. Sessions used example of stolen car laws, and how federal law can get involved in that.

Can anyone explain what is the impact/meaning of "findings"..

Findings of FACT. Legislative findings of the facts on which Congress based the passage of a law. Such as " machine guns are not arms covered by the 2nd Amendment because they were not the type of weapon commonly used in by the troops in warfare when the Constitution was enacted." (I just made that up, of course.)

When judges decide cases as opposed to juries, judges make their own "findings of facts" so that an appeals court can review their actions.

Here's 2 more answers to your questions to be added.

#1- Yeah, he was trying to set a precedent. Who died and
made him a lawyer anyway?
#2- I'm not a lawyer, and I don't care what the lawyers say,
but, "findings" as Alito was talking about them are just
the things that have happened since a decision was made.
He was just saying that you can't look through a tiny
peephole if you want to find the real answer.

Ken5050, I'm far from being a lawyer too, or even knowledgeable about law, and your question stirred my interest. I found these definitions that might be of interest to you, although they don't go into detail, regarding your question:

http://legal-dictionary.thefreedictionary.com/finding

finding n. the determination of a factual question vital (contributing) to a decision in a case by the trier of fact (jury or judge sitting without a jury) after a trial of a lawsuit, often referred to as findings of fact. A finding of fact is distinguished from a conclusion of law which is determined by the judge as the sole legal expert. Findings of fact and conclusions of law need not be made if waived or not requested by the trial attorneys, leaving just the bare judgment in the case.

conclusion of law n. a judge's final decision on a question of law which has been raised in a trial or a court hearing, particularly those issues which are vital to reaching a judgment. These may be presented orally by the judge in open court, but are often contained in a written judgment in support of his/her judgment such as an award of damages or denial of a petition. In most cases either party is entitled to written conclusions of law if requested.

judgment n. the final decision by a court in a lawsuit, criminal prosecution, or appeal from a lower court's judgment, except for an "interlocutory judgment" which is tentative until a final judgment is made. The word "decree" is sometimes used as synonymous with judgment.

decree n. in general, synonymous with judgment. However, in some areas of the law, the term decree is either more common or preferred as in probates of estates, domestic relations (divorce), admiralty law, and in equity (court rulings ordering or prohibiting certain acts). Thus, there may be references to a final or interlocutory decree of divorce, final decree of distribution of a dead person's estate, etc.

Can anyone explain what is the impact/meaning of "findings"..I'm not a lawyer..never heard the term before..yet it was used a lot yesterday by Alito, saying that Congress should include "findings" with the laws it passed..Are those Cliff's Notes, or work papers...Does it mean that Congress is supposed to explain the laws it passes?

Alito was referring to the findings that Congress makes when passing a law. Congressional authority to pass a law must be found in the Constitution. The Commerce Clause is a major one.

Since U.S. v. Lopez, the SC has brought the Commerce Clause back down to earth to where it has some meaning. Congress must demonstrate that a law passed on this basis is actually related to interstate commerce as it has been interpreted by the court. I.E., the govt. must demonstrate that it has the authority to do what it is doing. In my view this is the essence of a limited federal govt.

The level of deference granted to such findings is up to each justice. Some, like Scalia, almost completely ignore the findings. Others just accept the findings when it suits the result they want.