Posted on 07/03/2010 4:43:25 AM PDT by IbJensen
Democrats on the panel are impressed with the Supreme Court nominee's answers, but most Republicans are wary of her views.
"As a judge, you are on nobody's team. As a judge, you are an independent actor."
Elena Kagan
"You listen to her answers, you can see why Harvard picked her to be dean of the law school and you can see why she was picked to be the first woman as solicitor general. It was like being back and hearing some of the very best professors I had in law school listening to her answers. They were superb."
Sen. Patrick J. Leahy (D-Vt.)
"She has been, in my view, a witness who has manifested a deep knowledge of the law, and she's certainly very adept at describing what she thinks about the law. By the same token, I think she's been very adept at avoiding very specific questions that could result in criticism of her point of view."
Sen. Jon Kyl (R-Ariz.)
-snip-
"I think we've learned a couple of things.... No. 1 is precedent trumps original intent. That is very worrisome for a Supreme Court. What that says is you discount what is in the Constitution, and the learned men of today have more wisdom and more knowledge than what our founders did."
Sen. Tom Coburn (R-Okla.)
-snip-
-snip-
"I wish you well. You handled yourself well."
Sen. Lindsey Graham (R-S.C.)
(Excerpt) Read more at orlandosentinel.com ...
They never looked more disgusting than they have at this puff ball 'hearing.' Graham and Hatch didn't disappoint they, as usual, made us sick!
I agree 100% and they have been for quite some time. They should get one more chance come November, however I am afraid it will be Democrat Lite. . . . .
Unfortunately, I CAN believe every word of this. They don’t call the R’s the STUPID PARTY (as opposed to the EVIL PARTY) for nothing.
No vision.
No leadership.
No COMMON SENSE.
RINOs must go!
Kagan is a Maoist, and likely a lesbian as well.
She will consistently rule against Biblical values and in favor of big, tyrannical government.
In my opinioin, it was not a coincidence that the Nazi party in Germany was rife with homosexuals. I perceive that the desire to subject people to humiliation and bondage goes hand in hand with homosexuality.
Sen. Tom Coburn (R-Okla.)
He's just figuring this out now? Of course, there is an internal contradiction in his complaint. The Constitution created the SCOTUS. The "learned men of today" are empowered by Article 3. It's not as if this wasn't understood at the time of the ratification:
They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted. One adjudication will form a precedent to the next, and this to a following one.Brutus, March 1788
They [the courts] will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution that can correct their errors, or control their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they are authorised by the constitution to decide in the last resort. The legislature must be controlled by the constitution, and not the constitution by them. They have therefore no more right to set aside any judgment pronounced upon the construction of the constitution, than they have to take from the president, the chief command of the army and navy, and commit it to some other person. The reason is plain; the judicial and executive derive their authority from the same source, that the legislature do theirs; and therefore in all cases, where the constitution does not make the one responsible to, or controllable by the other, they are altogether independent of each other. The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution: I mean, an entire subversion of the legislative, executive and judicial powers of the individual states. Every adjudication of the supreme court, on any question that may arise upon the nature and extent of the general government, will affect the limits of the state jurisdiction. In proportion as the former enlarge the exercise of their powers, will that of the latter be restricted.
Brutus, Jan 1788
It is to be observed, that the supreme court has the power, in the last resort, to determine all questions that may arise in the course of legal discussion, on the meaning and construction of the constitution. This power they will hold under the constitution, and independent of the legislature. The latter can no more deprive the former of this right, than either of them, or both of them together, can take from the president, with the advice of the senate, the power of making treaties, or appointing ambassadors. In determining these questions, the court must and will assume certain principles, from which they will reason, in forming their decisions. These principles, whatever they may be, when they become fixed by a course of decisions, will be adopted by the legislature, and will be the rule by which they will explain their own powers.
Brutus, Feb 1788
Agreed-! ANY senator that votes to confirm this creature MUST be targeted for DEFEAT-! And make the KNOW THIS-!!!
We need grass roots action next week. The pictures of GOP Senators with their girlfriends and/or sex poodles will be published on the internet if they vote to confirm...
The only thing I could see that she was good at was avoiding giving real answers to most of the questions.
Sadly, I think she will be confirmed, and I don’t think there will be any electoral consequences for GOPers who support her. There never are.
So Huck, do you have an answer to the problem of “textual drift” (my term, just made up). Because it’s a serious problem for religions and Constitutions. The text says A but the practice becomes B with supporting authority outside the text gathering over time. I do not have a Constitutional solution . . . and suspect there is not one that is solid. My solution is a moral populace that interprets the rules.
Christ is the solution. Everything else is entrusted to man . . . and man is a sinner and ultimately misses the mark.
It's a good turn of phrase. I wish I could say I have a solution. I would say that the problem is twofold.
a. Implied powers--the Constitution provided for implied powers, whereas the old Articles had expressly delegated powers over. This was an intentional change, and a bad one. Because the question then arises, again and again, is this an implied power? It gets sent to the courts, where the rules of precedent provide the basis for the textual drift.
b. Article 3--there has to be some better way to establish a national judiciary. It is unaccountable. The judicial branch is the source of the drift, and it's a fatal design flaw. There is no appeal. They are co-equal to the other branches and hence untouchable. Precedents from past generations weigh on us and we can't do very much about it.
So, no, I don't have a solid answer except to say that I believe we should have a system of expressly delegated powers only, and a judicial department that is accountable.
My solution is a moral populace that interprets the rules.
My problem with this is that, to me, it's like saying we need foxes that don't eat chickens.
My problem with this is that, to me, it’s like saying we need foxes that don’t eat chickens.
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It is my FRiend and this is the nature of sin. We are all fallen and all fallible. We have all missed the mark. When you trust anyone other than God your trust is misplaced. Men will interpret any document written — and they can choose to ignore it. I like your idea of lack of implied powers by the way. Would need a mechanism for very fast modification though, when unforseen emergencies arise, and that very mechanism will make the entire document subject to rapid change limited only by the politics of the moment . . . which would then make the document meaningless and constantly changed. it would end up being one of those state constitutions with 2,400 amendments, each one a field open to the lawyers and judges to write law . . .
It does seem like we're chained to the ground, doesn't it?
And by the way, that’s why I am a wet blanket. Talk of revolution might make us feel better, but shouldn’t we be prudent and think things through a little bit? I’m not saying do nothing. I’m just saying, these problems run very, very deep, as you have expressed. Bloodshed, to me, should be taken very seriously. Without some sense that we can actually improve things, I don’t believe it’s justified. And I think that is one of the main points, if not the main point, expressed in the Declaration.
IMO our justice system is as fair as it can be especially when compared to other systems in the world. The ‘Achilles heel’ of our system is ‘precedent’. Precedent forces decisions that rely on prior decisions that usually have no real relationship with a current case. IMO judges should decide cases with only two points of reference; original intent as stated in the Constitution, and the facts regarding the current case. A decision in a similar but unrelated case from years ago is meaningless.
In Franklin’s speech on the other thread, Franklin points out that a moral group of “Governors” is a necessity for good government and that at some point, when the population has degenerated, despotism arises as a “necessity.” I hope we Americans truly are exceptional and can turn back from tyranny when we are on this brink . . . and I know of no historical example of this . . . so it will truly be exceptional. That is why I think the fighting spirit right now is more important than the Constitutional details of an imaginary document produced at an indefinite future time by unknown people.
I’m talking political revolution. I don’t even know how to concieve of a shooting one short of State secession . . . and we’ll all see that happening.
I've been reading a lot about Washington lately. Just finished an excellent biography "His Excellency". I'm now reading 1776 by David McCullough. Both books make the same point about Washington.
In effect, he already thought the people were corrupted to that point. His experiences during the war, with the troops, with the Congress, with the states, convinced him that you could not rely on the goodness of people or on public spirit. That is why he was such a proponent of a strong, central government.
I agree that a spirit of resistance is important and useful, even without a bigger gameplan. Just not revolution. By definition, revolution implies you have some clue what you want to institute once you topple the old way.
And I don’t want to discourage thinking about fundamental change to the Constitution. It has obviously failed to keep us safe in freedom, Obama and Kagan and Frank and Pelosi are all lessons in that, and examples of what a corrupted populace brings forth as leaders. I think the founders did the best they could but most seemed to understand that a moral populace was the guarantor of the freedom and liberty of the people and once that went despotism was likely to arise. I’ll check out McCullough’s 1776 from the library for sure . . . I did not know that Washington hoped that a strong central government would protect liberty against the people (but it makes sense). I hope someone can figure out or identify a Constitutional fix that will help extend that period of liberty longer before despotism arises, because I don’t think we’ve done much better than Republican Rome . . . about 200 years . . . which isn’t much improvement for 2,200 years of history or thereabouts. Maybe nothing really changes : )
Washington was uneducated compared to the other patriots andd founders. He didn't have the theoretical background they did. He was a military man with practical experience as his guide.
It makes sense that a man who was a supreme military commander, and a master of hundreds of slaves, would be more amenable to a strong central government. And for all I know he may have been right. Maybe we can do no better. I question the notion, and I point out the defects in our system, in the hope that some better system may one day be created, but I usually fall back on the notion that certain problems of humanity have no solution.
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