With Harriet Miers gone, Samuel Alito, Jr, takes the spotlight. Is he the next Supreme Court Justice? Should he be?
From: Phillip Winn @ Center-Right To: Eric Berlin @ Center-Left Subject: Supreme Court Nominee Samuel Alito, JrWhile it is still unclear how Harriet Miers would have turned out as a Supreme Court Justice, her withdrawal last week gave President Bush an opportunity to nominate someone new. Surprising some, Bush nominated a man for the role: Samuel Alito, Jr.…
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26 - Phillip Winn
So, based on what I said in #21, I've got a bit of a problem with saying I'd reject someone on ideological grounds alone. I would be tempted to say that someone who didn't respected "settled law" is right out, and that would still leave abortion on the table, as many issues related to abortion are far from settled law.
But the judges who acted to end injustice to women and racial minorities in this were overturning settled law, and that was a good thing. So even the question of settled law isn't enough.
I can't say that the basis should be that a nominee reflects the views of the American people, either. As tempting as that would be, the majority of Americans can be wrong, too, and surely a majority of Americans weren't happy with the end of segregation.
I would say that a judicial nominee who is clearly bent on overturning settled law, that it is a driving force for them, is worthy of extra scrutiny, but that clearly isn't the case with Alito. It might or might not have been with Miers; we'll never know.
27 - Phillip Winn
The point is, I think, that examining a nominee on individual issues is invidious. The question is whether or not they respect the law and the Constitution. If they do, then we should be able to trust that their decisions will be consonant with that.
Democrats and Republicans alike seem to agree Alito is such a person.
28 - Eric Berlin
So it sounds like you would consider rejecting a candidate if, after that "extra scrutiny" you talked about, it was determined that the judge would act in a way, let us say, contrary to the best interests of the American people... however you would define it.
Thus, it sounds like you're in the same camp as DJR.
29 - Phillip Winn
Al, the problem is that it is not always easy to determine what is best for this nation, as much as we each like to think we have a perfect grasp on it. Many people were opposed to desegregation for what they considered to be valid, non-racist reasons. Time gives us a better perspective to make such judgments, but even then it isn't perfect.
I don't think that a person free from ideological bias truly exists, or if he or she does, then he or she is useless as a Supreme Court Justice.
Either religious fanatacism, or fanatical devotion to irreligious belief, is a danger if left unchecked. The Court is part of the check on the other branches of government, and there are nine justices to check each other.
30 - Matthew T. Sussman
Eric, every time you hear "strictly interpret," it's not "from the bench" to a conservative view, because the strictness implies "if it ain't in the Constitution, it ain't gonna happen in the United States of Am-rrrca!"
Simply put, I can see how activism is tossed around as a negative word when it's just a precedent killer. And it's necessary -- seditious libel comes to mind.
31 - Matthew T. Sussman
>> This is endemic of partisan politics. The Founders worried about it and before they could go to their graves it had already taken firm hold of this country.
There's a reason the Framers said nothing about parties in the Constitution.
32 - Phillip Winn
EB, I think that, generally speaking, I would set a very high bar for a yes-vote with regard to experience, intelligence, and reason. But I would set a high bar for a no-vote with regard to specific ideological views. A capable and consistent candidate with whom I disagreed on issues like abortion or racial quotas or whatever, but who nevertheless applied a consistent and erasonable rationale in forming his or her views, would get my vote.
33 - Eric Berlin
Phillip, I disagree in part. I think individual issues that are critical to constitutional law must be looked at in terms of a judges philosophy, past decisions, and statements. Then they must all be looked as a whole and matched with the issue of competence, etc.
34 - DJRadiohead
In and of itself, activism is value-neutral
Maybe not. The very act of legislating from the bench, regardless of intent or result, runs counter to the concept of "strict construction." Even if the result of judicial activism is appealing to conservatives I would submit it is an act of liberalism.
Does that mean there is no place for judicial activism? Not entirely. I think there are times for exceptions to the rule (especially if one considers ending Jim Crow activism; I am not sure I would consider it such). I think where we get into trouble is when the judicial branch consistently sees fit to write and re-write laws from the bench rather than setting the parameters for legislatures and executives to operate.
Ending Jim Crow laws to me was not really judicial activism but rather reading the 14th and 15th Amendments to the Constitution.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
35 - Phillip Winn
DJ (#34), when people use the term activism, they usually mean the overturning of law. The laws themselves, of course, can be flat-out wrong, as Jim Crow laws were, as anti-miscegenation laws were, and so on. And yet it is still considered activism.
I agree that all decisions should be guided by the U.S. Constitution, and such decisions that are considered activist that do that are value-positive. Such decisisons that don't do that and are considered activist are value-negative. That's my point.
36 - Phillip Winn
EB (#33), I hear what you're saying, but it sounds an awful lot like, "If you're not going to support unlimited access to abortion, I'm against you."
You've mentioned the anti-individual thing a couple of times, by the way, and I've provided evidence to the contrary. So that one probably ought to be re-examined.
37 - Eric Berlin
Yeah, it's subjective, isn't it!
38 - Eric Berlin
On my last few examples, I've made sure to say "let's say it's determined if..." so I'm perfectly willing to hang back and see what the real deal is with Alito in terms of any number of issues.
On abortion, I'm very strongly pro-choice. I also have the advantage of not being a Senator, so I can like and not like who I want in terms of judges!
That said, I can see letting through a judge who holds their personal beliefs while respecting established law, as John Roberts has professed to do. A judge that states clearly that Roe should be overturned? Yeah, I'd have a big problem with that.
39 - Phillip Winn
That's funny, EB, because from a strictly legal perspective, many legal scholars agree that Roe is questionable law, even if they support the outcome.
But it's nice to know that you're honest about your bias!
I've mentioned before that I think that the overturning of Roe wouldn't end abortion in the vast majority of states, so I'm semi-ambivalent on that particular law.
In any case, Alito has ruled many times with respect to abortion, and it seems clear to me that nobody should count on him (or fear him) overturning Roe. The confirmation hearings may provide more details, but I'm betting you'll come around to my side on that issue by the time they're over. :-)
40 - DJRadiohead
Striking down a law is not inherently activist. If a law violates a strict reading of the Constitution, it is not legislating from the bench to strike it down.
Activism, or legislating from the bench, is when someone starts reading things into The Constitution that are not there. 'Separation of Church and State.' I am not arguing whether or not such a separation is a good idea but it is not in The Constitution. If 'Separation of Church and State' is something we should have, that should have been legislatively decided or Constitutionally amended (in my view). Same for 'the right to privacy.' Privacy is not guaranteed in The Constitution the way the Constitution is written. Someone interpreted that it should be there and decided to pretend it was there even though it's not. I am not anti-privacy here. I am just saying that the actual, written, agreed upon Constitution does not grant a right to privacy. If our nation, or states, think we should have that right there are ways to have agreed upon it. A judge took that decision out of our hands. I disagree with that philosophy (even though I don't always disagree with the results).
Looking at Jim Crow, I think it is incomprehensible that discriminating against African-Americans could have been viewed as legal when one actually reads the words of the 14th and 15th Amendments. Striking down segregation was not activism in my view but rather a correct reading of our own Constitution.
41 - Mark Saleski
separation of church and state isn't in the constitution? so you're saying that the establishment clause is just being interpreted as such?
42 - DJRadiohead
Heheheh... I figured I would get myself in some trouble here.
I do think the doctrine of Separation of Church and State is the result of tampering with The Establishment Clause. I think Separation of Church and State has evolved over time in a series of decisions that has redefined the intent of The Establishment Clause rather than looking at exactly what is in The Constitution.
Before we go too far off the tracks... I am not advocating anything as pertains to the role of relgion in society. I do think 'Separation of Church and State' is just one example of legislating from the bench regardless of one's religious sensibilities.
43 - DJRadiohead
Allow me to extend the previous remarks to say this: that's the type of thing we should be asking our Senators to review in a nominee's background. The ability to follow the law in the face of their own preferences. Can a judge preside over controversial issues using the law as a guide rather than personal political preferences?
44 - Eric Berlin
I was actually impressed with the way Roberts handled those sorts of questions, DJR.
As a center-left guy, however, talk of "original intent" kind of scares me, and makes me think about how when the Constitution was drawn, it was a revolutionary document blah blah blah, but still: the framers had slaves, only land owners could vote, women and slaves weren't deemed much higher than oxen on the equality scale, etc.
45 - DJRadiohead
I understand where you are coming from, EB and I share some of the same thoughts and concerns.
So how do I resolve them? First, even though I myself used the word intent I say, "Fuck intent." I don't care what the Framers could or could not imagine. I care about the words on the paper we all recognize as the law of the land. Just because the Constitution doesn't guarantee a right of privacy (in my view) doesn't mean we can't pass legislation that allows for citizens to enjoy privacy. We can and should. The fact the Constitution doesn't spell out those privacy rights means we can change them on our own over time to reflect changes we can't envision or imagine.
We can also amend the Constitution if we come to an agreement upon something we don't want easily changed or altered. Our nation [finally] decided slavery was not something to be taken lightly and we put a Constitutional prohibition on the practice, just as one example.
46 - Eric Olsen
excellent again! thanks guys - how much is abortion at the center of the confirmation?
47 - DJRadiohead
I think abortion is the show on all confirmations for the near future. Abortion is either the most or second most divisive issue in our country today. At least, that's my read on it.
48 - Dave Nalle
As a rule, the Constitution works best when any decision based on it errs on the side of more individual liberty rather than less. At it's heart that's what the intent of the framers was.
Dave
49 - Phillip Winn
It's all about abortion as far as I can see. The talk about a right to privacy (on which I disagree with DJ, since I think it is implicitly in the Constitution, as does Alito) is important because the right to privacy is considered foundational to Roe. The concern about individual rights in general is important because of Roe. That's why, no matter how many cases I could list in which Alito sided with individuals, anything less than perfect support for unrestricted access to abortion will be viewed as denial of individual rights.
They'll talk about a number of other things during the hearing, but the subtext is all about abortion.
That's how I see it, anyway.
50 - T A Dodger
and found that she had a different opinion when it came to wives notifying husbands than she did about teenage girls notifying parents.
Shouldn't it have been glaringly obvious that the spousal relationship isn't the same as a parent child relationship???
51 - Phillip Winn
That's a pretty radical oversimplification of the situation, T. In fact, Alito never suggested that the two types of relationship were equivalent. The question was whether notification created an "undue burden," which had been defined by Justice O'Connor as an "absolute obstacle or a severe limitation."
The law in question allowed for exception in cases of rape, or when a woman said the spouse was not the father of the child, or when the location of the spouse was unknown, or when a woman said that telling her spouse was "likely to result in the infliction of bodily injury."
So given all of those conditions, is notification still and "undue burden?" Justice O'Connor had ruled that it wasn't an undue burden in the case of a teenage woman, leaving it an open question whether simple notification (not permission, note) was an "undue burden" for an adult woman.
Many reasonable people could go either way on that issue, and Alito made it clear at the time that he was trying to be consistent with O'Connor's rulings specifically.
It's "undue burden," and it's a legal standard, not just an opinion about relationships.
52 - Temple Stark
>>DJ (#34), when people use the term activism, they usually mean the overturning of law.
Thre was no law overturned in the Massachusett's marrige ruling, or many of these laws along the way. What the courts seem to be saying is "gay marriage"is not explicitly addressed in the old aws, and therefore, to put it as simply as I can, more law is needed.
Also, I don't see why we hold Senate confirmation hearings anymore. People say ideology shouldn't be discussed, but then many judges clearly hold ideological opinions and put their money where there mouth is. So they have become ideological and clearly many of their decisions are based on ideology not law. (Priscilla Owen flashes to mind)
I don't see how anyone can say they learned anything fronm the Roberts hearings. He said nothing that wasn't already part of the record. From the point of view of whether they were polished answers or not. Yes they were. So what?
53 - DJRadiohead
Temple, if more law is needed than the legislature should be the ones making it or the Constitution(s) should be amended. It's not supposed to be the judge's role to decide that more laws are needed and then to go forth and make that law. In my view.
54 - Phillip Winn
Temple, courts cannot make law. So if the law now states that two people of the same gender can get a marriage license in Massachussetts, that's a change in law. If the law used to say that two people of the same gender couldn't get a marriage license, but no longer does, that's a change in law. In fact, for the case to be brought to the court to begin with, there had to be a law involved, the application or meaning of which was challenged.
I don't think we can really say that U.S. courts have not been activist on occasion: the question seems to be about the merit of such activism. Generally speaking, I would say that activism from the court tends to point to either bad judging, or bad legislating.
Jim Crow laws, for example, were bad legislation, and deserved to be overturned. Other laws, maybe not so much.
I'm certainly not inclined to make a blanket statement against either legislatures or courts, though.
55 - Temple Stark
Does "change" mean "overturned"?"
The theory about judges is grand. The reality - every day - is less so. Look at the problem with elected judges in the DeLay money laundering cluster.
A "guilty" plea would end that, of course, but . ...
56 - Temple Stark
Does "change" mean "overturned"?"
57 - Phillip Winn
Yes, Temple. When court cases are referred to the Supreme Court, it is because a plaintiff is challenging a law, and wants that law to be overturned. Any change in how the law has been applied in the past is an invalidation of how the law has been applied in the past, which means that the law has been overturned.
58 - Temple Stark
Phillip you accidentally changed the argument to refer to only Supreme Court cases. In general the Supreme Court was the subject of the original piece, but it had evolved beyond that by the time I got here to read.
At the Supreme Court level justices can accept a prior change of law by refusing to hear a case - and do so often. They can also take a case to affirm or clarify an existing law. Neither overturns the law. To me, overturn means "invalidates" or takes off the books.
I'd say in the majority of cases, changing the interpretation of a law does not overturn a law.
59 - Mat Brewster
Nazis! Pinkio-Commies! Sorry it's just too civil around here.
Great job again guys!