Let's talk about the arguments that will be made, court cases cited, the sound bites, and votes in Congress.

Let's talk about what's going to happen. Chief Justice Rehnquist isn't going to be around forever, and I'd bet a beer that this is his last court session. Then the president gets to nominate a replacement. That replacement is someone who votes just like Rehnquist did when it comes to religious freedom issues. The court remains much the same.

It's late in the president's second term when Sandra Day O'Connor and one other justice decide that they'd rather have their replacements named by the current president than by who knows who. Then the president gets to change how the court decides religious freedom issues.

Let's talk about what to do when the next Supreme Court nominations are made. Conservatives are going to be pressing familiar arguments and using terms like 'judicial activists,' 'legislating from the bench,' and 'run amok.'

What are the liberals going to do? Play Me Too, as in the run up to the war in Iraq? When the senate gets to talking about Rehnquist's replacement, is Hillary Clinton going to give a speech condeming the attempts to keep her God -- America's God -- out of the public square?

I say let's talk about the arguments we should present: effective arguments that can persuade the public that it might not be such a good thing if the court goes from being a reasonable place where a swing-voter like O'Connor can make all the difference to a place where thinking is dominated by the likes of Antonin Scalia and Clarence Thomas.

Question to Debate: what arguments can liberals advance to make sure Scalia and Thomas don't wind up being considered the court's moderates?

Question to Debate: what arguments can liberals advance to make sure Scalia and Thomas don't wind up being considered the court's moderates?

How does anyone prevent what public perception might be? I lived most of my life in the 20th century, only to think at times public “thinking,” if not Neanderthal, is at best 14th century.

Scalia and Thomas certainly aren’t moderates or centrists, but with the likes of Limbaugh, Hannity, O’Reilly, Scarborough and the Bush/Rove machine tooting their horns, how does anyone prevent them from becoming “moderates?”

I think it is very interesting to speculate on who will be nominated as chief justice when Rehnquist surely retires at the end of this term. Here are some of my thoughts.

As much as I would like to see him as chief justice--- it won't be Scalia. When all is said and done, he is in no way a consensus builder. He is quite outspoken (great piece about him in the recent issue of the New Yorker) and tends to offend people -- specially the other justices like O'Connor-- who are supposedly on his side.

Thomas is a real possibility. He is a conservative justice and would be the first african american chief justice. I think he stands a good chance of getting it.

There is always the possibility that Bush goes outside the current circle to pick the Chief. This could have HUGE ramifications. If he chose someone who is more of a politician and also conservative, many changes could occur in the next couple decades. Remember, the most active court was headed by a former governor of California-- Earl Warren. If that kind of personality were chosen-- but on the other side, I see it as a potential for great change.

Of course, Bush could take the "safe" route and choose Kennedy. But somehow I don't see this as a possibility given some of his recent decisions that run counter to conservative positions. Ex. the juvenile death penalty.

This was one of the issues on CNN‘s Capital Gang yesterday. The “gang” seemed to be divided--nothing unusual. Perhaps Bush will choose either Scalia or Thomas. He might, however, select a younger appellate judge who will impact the court for years to come.

Regardless of what direction Bush takes, I think--based on the past four years--it will be divisive. Despite a record of bipartisanship as Governor of Texas, dividing seems to be one of Bush's talents as president.



<snip>



<snip>



http://transcripts.cnn.com/TRANSCRIPTS/0503/26/cg.01.html

BTW: The New Yorker article was mentioned on Capitol Gang, but I forgot about it. Although we disagree completely on issues involving the court, I do, haylyeanne, appreciate your posting information on the article here. I read part of it at Borders, but they were closing early today so I knocked back my coffee and purchased the magazine. It gave me an excuse to spend money.

Bush is under no obligation to promote any of the associate justices to replace Rehnquist when he (finally) hangs it up.

Scalia is conservative enough and intelligent enough, but he is no consensus builder and a Chief Justice has to from time to time. Thomas is also conservative enough, but he's such a lightweight that it's hard for me to conceive he's going to be able to command the respect of the Brethren. He could get it if Bush decides he wants to appoint the first black Chief Justice. It won't buy him a lot of credit from the vast majority of black voters who don't hold Thomas in particularly high esteem.

O'Connor is getting a little long in the tooth and may not be that far from retiring herself. Kennedy still has an outside shot but he may have blown it with the vote ending executions for juveniles. Kennedy would be a good choice, but I don't think he gets it because he's ticked off the right-wingers.

That leads me to think that Bush may do what Dwight Eisenhower and Richard Nixon did and just appoint Rehnquist's replacement as Chief Justice.

Chief Justice Estrada, anyone?

Bof--

I am so glad you took the recommendation about the New Yorker. We may not agree on issues surrounding the Court-- but we are both interested in them! As a side note, you have now peaked my interest in Douglas. I don't know too much about him, but plan to educate myself.

My sister-in-law was in for a visit this weekend and she brought the New Yorker with her. I was really impressed with how in depth and fair the coverage was of Scalia.

One more thing I wanted to note in this thread. Originally I posted that Scalia would not be a good choice because he is not a good consensus builder. It will be very interesting to see if Bush pays attention to this "fact". Bush himself is not a very good consensus builder so I am not sure how much this will weigh in his decision. Although I suspect that people like Boyden Gray will have alot of say in it as he is the president's advisor on judicial nominations. Gray is a strong supporter of Thomas and I believe was the one to recommend him originally.

Some people think I am crazy for being so focused on Supreme Court stuff-- but I focus so strongly on it because the make up of the Court will affect the law and policy in our country for a very long time into the future.

The court can have a profound influence. If Scalia and Thomas are joined by their like-minded brethern, if they become the court's majority, then the Fourteenth Amendment loses its significance, and we, our rights.

Here's one reasonable take on what could happen:

http://www.misterthorne.org/ESSAYS/as_it_should_be.htm

Enjoy!

Thanks LR. I will look at it more carefully later. But I have to say, I just can't get excited about that 10 commandments case. It just strikes me as silly that people are offended by the display which has been in place on the capitol grounds since 1961 or so. And-- the display was actually distributed along with alot of others as a marketing ploy by Cecil B. DeMille way back when. Forcing the removal of that display seems like a waste of time. If people are overly sensitive about it, they need to get over it.

Of course, that doesn't mean that the Court is gonna agree with me.

Question to Debate: what arguments can liberals advance to make sure Scalia and Thomas don't wind up being considered the court's moderates?

Well, other members of the court sit so far to the left, that it is doubtful anyone will EVER consider those on the right to be "moderate". To this degree, I doubt that the liberals you mentioned, will have much to worry about.

They might have more trouble, though, in presenting the other justices as "moderate" or even "constitutional". In recent landmark decisions in which the liberal justices sided with the majority and the conservative ones with the minority in 5-4 split decisions, The Opinion of the Court was remarkable for its complete lack of reference to the Constitution or the authority it granted - or even prohibited - to the Federal government. Examples are the decisions in the Affirmative Action cases at the University of Michigan, which flatly violated the 14th amendment but were carried due to imaginary benefits of "diversity'; or the decision in the Campaign Finance Reform case which violated the 1st amendment but was carried due to just the possibility that political ads might offend someone. The imaginary "right to not be offended" was given as a reason why Federal restrictions on political speech could be allowed.

Such decisions are bizarre, going even beyond the normal borders between "modern liberal" and "conservative". But unfortunately, they are the logical extension of the liberal justices' tendency to twist the Constitution further and further to implement what those justices thought should be done, rather than what the Constitution intended to be done. As such twisting became more and more extreme, it was inevitable that such justices would wonder why they should bother consulting the Constitution at all, and its status as Supreme Law of the Land would be diminished and eventually disregarded.

For a long time when the country was first founded, the Constitution was usually carefully followed... especially its order that the Fed be given power only for certain functions explicitly named; while the States and lower governments had all other powers.

In 1817, COngress passed a bill appropriating Federal money for building roads and canals. The-President Madison vetoed it, pointing out that the Constitution gave the Fed no authority to do those things. The next President (Monroe) agreed, and vetoed more such resolutions. Even in modern times, the Interstate Highway system was approved only as a Defense measure, on grounds that such roads could provide logistic transport in time of war. The bill authorizing them even contained provisions that sections of the freeways had to be built straight and level to serve as emergency military airstrips when needed. Only with such provisions, did the Interstate Highways "sort of" pass muster.

In 1854, Congress passed a bill providing Federal land for the construction of mental hospitals for indigent mentally-impaired persons. Then-President Franklin Pierce vetoed it, and wrote a letter explaining why. He acknowledged that helping the poor and helpless, was a high and noble function; but that the Federal government was the wrong agency to do it since the Constitution provided it no such authority. He also pointed out that, were the Fed to get into the business of helping the indigent insane, it would have no reason to withhold help from poor people who were not insane; and then from people who were not quite so poor, and etc.

Pierce also pointed out that the so-called "Welfare clause" in the Constitution, was not a broad license to do anything that might "help people". Rather, it was part of a sentence saying, "Congress has the power to lay and collect taxes... to provide for the common defense and general welfare" and other such functions. "General welfare" meant that the Fed could spend money on things that could help ALL CITIZENS EQUALLY. It was, in fact, a restriction on spending money on just select groups. He pointed out that, if it were interpreted more broadly, it would effectively render much of the Constitution irrelevant; and therefore such an interpretation was obviously not the one intended by the people who wrote it.

The argument I make here, is not that such programs are not helpful. Obviously, many of them are. But should we short-circuit the careful division between Federal and lower governments, laid down by the Framers? I submit that in the long run we will do ourselves far more harm than good, by doing so. Putting justices on the Supreme Court who blithely waltz past such restrictions, moves us into very dangerous territory.

The liberals of those times, pushed for such expansion of Federal power on grounds that they would help people, and that the Constitution could be loosely interpreted to allow them. But as I have pointed out, such "loose interpretation" eventually leads to total disregard, as we are starting to see now.

There are still some tricks left, by which today's liberals can argue that "moderation" is needed on the Supreme Court and other Federal courts. But rather than trying to decide which tricks should be used and when, should we not be arguing whether the effort to continue warping and disregarding the Constitution, should continue at all?

From "The Imitation of England" which can be found at www.libertyhaven.com



The socialists recognized our constitution was a great barrier to their tyranical plans. So what has happened...socialists have destroyed the Constitution and now label those who wish to bring it back as conservatives or right-wingers.

"American ingenuity" consists of delegating nine old people in robes as an oligarchy who can supplement their views and wisdom for the legislative branches of state and federal governments and the authors of the Constitution.

People tend to ignore signatures. Let me quote Madison and Jefferson.

"I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents" James Madison

"Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction." - President Thomas Jefferson, 1803

The final paragraphs of Federalist Paper #41 authored by "The Father of the Constitution", James Madison. Italics and emboldened words are my doing.



If the general welfare clause was intended to be the expansionary tool for federal power that judges have been finding particularly in the last 75 years then certainly our Constitution was ratified under false pretenses.

Sadly, the anti-federalists turned out to be right. The general welfare clause has been used to destroy our Constitution and the rights of the people and states.

He may be a bit long in the tooth, but I would not mind seeing Judge Robert Bork nominated. That would send a message that needs to be sent.

Judges? Don't you mean Congress, the folks who routinely pass laws that exceed their authority?

Danged activist legislators . . . . Just look at 'em, trying to keep the poor woman alive. Is that what the Founders meant for them to do with their time?

I don't mean to take the thread off track- but it is worth noting that the Constitution does give congress explicit authority to prescribe the jurisdiction of the federal courts and that's what they did in the Schiavo case. Whether that was a wise move is a different issue. But it is not "activist" in the sense that they did not act in a way that was not explicitly authorized in the constitution.

Constructive Idea #1: how's about changing the talk from activist judges to activist legislators?

Consider the Terry Schiavo matter: a state's rights issue. But then activist, nationalist legislators do what they can to tell the courts what to do, in violation of state's rights. (And the liberal legislators go right along with it.)

Is this what the Founders intended: personalized legislation? Laws for individuals. Or did they tell Congress to promote the 'general welfare?'

What about shifting the argument from courts run amok to legislatures run amok; i.e., legislatures doing exactly what courts have already said they can't.

For all the talk about activist judges, how's about just as much about an activist national legislature that completely ignores the ninth and tenth amendments?

My emphasis added. Congress regulates federal court jurisdiction. Separation of powers. It's not exactly a state's rights issue.

If I may dialogue with you on this one LR to understand your goals.

Who is the target audience ("the public") you'd be trying to persuade? Republican senators and their constituents to switch sides on the issue?

Iis there another way to block approval of the Presidents nominees without having the needed votes of the public?

Thanks

Question to Debate: what arguments can liberals advance to make sure Scalia and Thomas don't wind up being considered the court's moderates?

Well, you could point out that S&T keep sticking to an outmoded, 200-year-old document that was written before Emancipation, automobiles, and class-action lawsuits were even invented; while other justices believe it better to ignore that document for some things and go with their hunches instead. But you'll find quite an argument on your hands.

The Supreme Court has had problems with justices having differing philosophies on the nature of government and the Constitution, for a very long time. But in the last dozen years or so, the divide between them has expanded beyond simple differences in opinion on what the Constitution means. As I have pointed out in an earlier thread, the Court has handed down several decisions recently, usually 5-4 splits, that clearly violate even the plainest language of the Constitution.

All nine justices took an oath when they were placed on the bench, to preserve, protect, and defend THE CONSTITUTION. Not to defend the President, or the Federal Code, or their hind ends, or the Democrat or Republican parties, or "the way it ought to be". And now at least five of them have flatly violated that oath.

If there is a way to violate the oath, more obvious and clear-cut, I'd like to know what it is.

So, in regard to the debate question, I'd say the question isn't between "moderate" and "extreme" any more. It has now degenerated to "law-abiding" vs. "lawbreaking".

A question more in tune with what's actually going on in the Supreme Court, might be:

What arguments can liberals advance to make sure Scalia and Thomas don't wind up being considered the defenders of the Constitution, while Souter, Ginsburg, et. al. don't wind up being considered rogue judges violating the law they had sworn to defend?

It's more in tune with reality, but unfortunately not any easier to answer. Almost like asking what arguments can be advanced to keep Crimson from being regarded as "red".

But, getting back to the original question: The justices' job is to protect the Constitution. Thomas and Scalia are NOT moderates in this regard. They are pretty dedicated men who don't see any advantage in compromise on this matter. If I were the liberals you mentioned, I'd try hard to make it seem as if they WERE moderate - that is, willing to compromise with the rest of the justices who want to violate the Constitution. You could not damn a man worse than that.

So if Congress doesn't like a state court ruling it can order a federal court to rehear the case?

I don't think so. Congress has power over federal courts, not state courts or matters that are the province of the states.

Much like giving a death-row inmate venue for a last-ditch appeal, the Congress certainly can deem that every patient on life-support deserves a federal appeal to their status. Ignoring this particular case, it's perfectly constitutional. Congress never told the state court what to do, it merely asked federal courts to hear this type of case de novo.

edited to add - as Barack Obama put it - "no harm in giving her a little more due process than she's due"

Wow...that statement alone is worth an entire new thread. I don't know what context Obama used it in... probably not the one I'm considering as I read it. Suffice to say that I see a GREAT deal of harm in "giving someone a little more due process than he's due", instead of giving him exactly the right amount and no more. It's another way of saying, govt should do only what it absolutely needs to, and no more.

But, back to the subject:

The subtitle to this thread was, "replacing a reasonable court". I take it that this meant the original poster considered today's Supreme Court to be a "reasonable" one, and was concerned that GWB's appointments might change this.

As you can see from my previous posts, this is quite a jarring description of what has been going on in this Court for the last several years. Someof the justices have been trying to confine their judgements to the bounds of the Constitution, while others have been making literally no effort at all to do that. The idea that a "compromise" between these two viewpoints could be called "reasonable", leaves me with my mouth hanging open.

Please forgive me if I give offense. Such is not my intention at all. But I feel I do need to call attention to what I regard as a fundamental misconception of the very purpose and nature of any court, especially the Supreme Court.

In any case brought before a court, the court's job is to find what the facts are and then decide how the law applies to them. In the Supreme Court's case, if the highest law in the land (the Constitution) has bearing on the case, then that's the law that must be followed above any other.

In the case that I cited earlier (racial discrimination in U of Michigan admissions), the Constitution is very clear: No racial discrimination shall be permitted. Period. Diversity does not exceed this command, since diversity is not mentioned in the Constitution. Need does not. "Righting of past wrongs", even if it could be done, does not supercede the COnstitution's clear command. The case could not be more open-and-shut.

And yet a MAJORITY of justices said that diversity, or righting-of-past-wrongs, DID supercede the Constitution's command - that they were more important than what the Constitution mandated. This was simply not so... and yet they, the highest court in the land, said it was.

The situation is similar to a bank guard seeing the approach of people who tell him they want to rob the bank. He looks at them, decides they are poor and hungry, or that their ancestors had at some time been unjustly foreclosed by the bank; and so he tells them to come right in and help themselves to the money.

Regular citizens hearing about this the next day, would be left staring open-mouthed at the guard, wondering how on earth he could have let the robbers do what they did. At the very least he didn't do his job. More correctly he is an accessory to felony theft. The law forbidding those people from taking the bank's money far superceded any need or past wrong the robbers might have been suffering from. And the guard was charged with enforcing that law... and he decided not to do it.

I see very strong parallels between this guard, and the court justices who decided that "diversity" and "righting past wrongs" were more important than the Constitution's clear command. At the very least, those justices are not doing their job. And a "compromise" between those justices and the others (in the minority) who ruled that Michigan should not exercise ANY discrimination at all, is cockeyed and completely absurd - similar to a compromise between the bank guards and the robbers, letting the crooks take part of the money and only sending some of them to jail while letting the rest walk free. Compromise in either situation, is absurd and ludicrous.

The Supreme Court we have today, is not at all a "reasonable court" that reaches compromises. Instead, it is one that sometimes arrives at a majority decision that is flatly against the law. Replacing the justices who vote that way, with justices who vote to conform to the Constitution's commands, should be the most important goal of everyone involved in the selection process - Senate, President, and voters. Sadly, some do not see it that way. Predictably, they are the ones with the most to lose if the Constitution is obeyed.

In many matters, compromise is good. But in the matter of obeying the law vs. arbitrarily breaking it and denying our citizens' basic rights, "compromise" is no compromise at all.

tribune link - not sure about registration
Apparently I paraphrased vs. quoting him. I trust you'll find the actual quote even more disturbing, but I happen to agree with him.

Good question. I guess I just got irked with the Democrats in Congress playing Me Too on the Schiavo matter, pandering to a mad-dog religious group rather than recognizing that this matter is not for Congress.

From what I heard, the polls said that the public didn't want Congress to get in on this. Rather than heed the public, beware the mad dog with the ferocious bark.

Just trying to open a discussion. It seems to me there are many good arguments that liberals can make to persuade THE PUBLIC that we shouldn't want people who think like Scalia and Thomas to dominate the Supreme Court.

There are very good arguments to be made, but they're not being made.

I take that back. John Danforth makes good sense in a recent (30 March) op-ed in the New York Times in which he says the Republican Party has become "the political extension of a religious movement."

Here's a link to the piece:

http://www.nytimes.com/2005/03/30/opinion/30danforth.html?

Enjoy!

Congress hears appeals?

No, Congress tells the federal courts how to operate. Always has, always will. Can't tell judges or juries what to decide, but can certainly establish and modify procedures. It's called lawmaking-- the exclusive domain of the legislative branch.

Congress can abolish or establish any federal court except the Supreme Court and can impeach any federal judge, even justices of the Supreme Court, at least according to the Constitution. Congress can also pass laws that provide an exception that legalizes someting retroactively so that the result of a court decision is effectively overturned, or close a loophole that allowed someone to get away with a crime on a technicality.

One reason Congress doesn't mess with the court system very often is that it's highly unpopular-- they know they'd be voted out if they were perceived to be tampering with the courts without good reason.

Thanks for that article LR.

I read it like Danforth saying he doesnt like a large posse of registered Republican voters who don't share his personal view on stem cell research and other life issues. These folks are saying "hey - these issues are what we want". But, he'd rather they be ignored it seems.

Politicos who dont respond to their biggest constituents speaking their piece are tossed out. If the majority of registered voters in one's party is sayin "we want you to defend embryonic life, vote against homosexual marriage, etc, then your political days are numbered if you dont act on it.

I asked you about target audience because they matter: if the PUBLIC, by 51 to 48% elected the guy most likely to appoint conservative judges, then they're the ones you'd have to convince since they hold the numbers in representation, and political power.

Every eligible voter had a chance to pick what type of judges they wanted in their candidate, and they went conservative. Ok - so what can Dem leaders say to them? I dont know. The time for their constiutents to speak up and advance arguments was at the last election.

You feel me on this or am I not making sense?

I didn't see Danforth saying that at all. I don't think the gist of his argument was about stem-cell research. To me, he was warning the party of the danger of becoming beholden to conservative Christians.

He wrote that the Republican Party had become "the political extension of a religious movement."

And I think that's precisely what he was getting at. A respected member of the Party issuing a warning, inspired, in part, by the plight of Terry Schiavo.

Let me see. Article III says "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

I don't read that as meaning Congress can order the Judicial Branch around. That Congress can create courts inferior to the Supreme Court is not to say that it can tell them what to do (i.e., what hours to keep or what cases to hear).

Bills of Attainder (as in the order for a new trial at the federal level in the case of Terry Schiavo) are specifically prohibited by the Constitution.

Congress has a pretty regular habit of ignoring the Constitution when it doesn't like it. Ditto for the President.

Danged activist legislators and executives . . . .

I bolded the relevant section of Article III for you if you go back and look.

Ordering a court to hear a case is not a Bill of Attainder, it is merely Congress determing what type of cases that the federal courts should hear. That's their job. They did not tell the court how to find. In retrospect, the court obviously did even think that the case merited their time, so how could this be a Bill of Attainder?

LR,

Thanks for the reply. If I may ask a follow up question on that.



Ok, got that. Whats more important to a Rep politico in office - representing the voters that elected him/her, or following a different agenda?

Mr. Danforth is advocating the Repub party adopting an emphasis counter to what the majority of Rep constituents have and are asking for. Wether its religiously motivated or not is irrelevant - its the sheer numbers of people asking a party to vote yea or nay on these issues that matter.

They'd be out of office if they werent being backed by their base populations on this with phone calls, visits, letters, and votes to take these stances on life issues, marriage, etc.

What do you think?

In your earlier comment, you said Congress tells the federal courts how to operate. Always has, always will.

Let me address that once again -- since you've brought it up, yet again -- and then let me tie this sidebar back into the original question: what to do to make sure that Congress doesn't do what it can: make the Supreme Court a place where Antonin Scalia and Clarence Thomas are considered moderates. That's the topic.

Congress passed a bill of attainder naming Terri Schiavo. It ordered the 11th Circuit Court of Appeals to reopen the case that ended (or should have ended) with a court order that all extraordinary efforts to keep her alive be ended.

It's obvious that the Congress does not tell the 11th Circuit Court of Appeals what to do. Not once, but twice, the court said it would not entertain the matter. Congress ordered and the Court twice refused.

On the second occasion, the court did what it does best: it reminded the President and the Congress that we have a Constitution: "the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers' blueprint for the governance of a free people — our Constitution."

This week's news makes it obvious. Congress does not tell the Court what to do.

And neither does the Court tell the Congress what to do, nor does the president tell either of them what to do. This is what we expect people with high school diplomas to understand.

And we expect them to know that the president gets to nominate (when the chance prevails) the justices of the federal courts (including the wayard 11th Circuit and the unrepentant and shameless 9th).

And those judges do become involved in all sorts of matters: whether feeding tubes are inserted or remmoved, whether birth-control pills or condoms are legal or illegal, whether or not South Carolina can declare its official religion is Southern Baptist, whether school kids can be required to swear an oath to the gods, whether Mormons can have two wives . . . there's not much end to human endeavor that these judges can't become involved in.

Look at it all and see this: it is the courts that thwart Congress from telling us that we can't lead our lives as we see fit. It's not the courts that are meddling in our lives . . . it's the Congress.

So there. There's a point that good people can make when it comes time for the next nominee to the Supreme Court to square off with Congress.

"Judge So-N-So, can you promise the American people that -- no matter what reasons the president or the legislature might have for ignoring the Constitution of the United States -- no matter what they might be, would you assure us that you will hold up your end, that even after you've been thrown out of your church, even after you've heard those endless, 2 AM phone calls threatening all sorts of harm to you and your family (courtesy of those Great Monogod-fearing Neanderthals that still roam amongst us), even after your daughter's seen someone talking about you on TV and calling you a word that she's not allowed to say (and, hopefully, won't understand before she's in college), you'll still do your honorable job in honorable fashion?"

That is what this topic is about.

The legislation specifically mentioned Terri Schiavo. Hence, a bill of attainder.

The Congress has no business telling the Judiciary what type of cases they may or may not hear. Anyone born, raised, and educated in the U.S. can assure you of that.

You might want to check your understanding of what constitutes a "Bill of Attainer". The legislation Congress passed in the Schiavo case does not qualify.

From here



From SELECTIVE SERVICE v. MINN. PUBLIC INT. RES. GP., 468 U.S. 841 (1984)



From UNITED STATES v. BROWN, 381 U.S. 437 (1965)



Nothing in the Schiavo bill constituted punishment to any party, nor did deny due process to any party. It merely gave Terri Schiavo's circumstance federal standing to enable the Federal court to undertake an independant federal review of the case.

This is not the place to discuss what is or is not a bill of attainder. But since you've brought it up, let me address it.

Today, Terri Schaivo's priest (and other, assorted paparazzi) said that she had gone on to eternity and that she was now at peace and relieved of all suffering.

Congress did what it could to prevent her from being at peace, to force her to persist in this life until . . . until what? Until they run out of newer, better, faster, more efficient machines to show that -- hey, she's still alive!

It passed legislation aimed directly at her, despite the Constitutional prohibition against such legislation. (Look, if you really want to pick at this bone, find another discussion.)

This is the place to discuss our seemingly wayward Congress that gets so wrapped up in the Pledge of Allegiance and the Plight of One Woman that it can't tend to what needs tending.

Supreme Court nominations are coming up. That's what this discussion is about.

The connection to the Schiavo case has to do with jurisdiction: is the Congress going to give us justices who believe in states' rights, or justices who believe in the rights of the people, or justices who believe that Congress rules the Court?

Or is President Bush going to give us that lasting legacy: newer, betterr, faster, and more efficient justices who understand that our rights come from the Great Monogod?

That's what this discussion is about.

Then don't throw terms around loosely-- Aquilla is correct, it is not a bill of attainer. And the legislation is not unconstitutional-- the dissent in the 11th circuit Schiavo decision makes a much stronger case than Birch.



I agree that Congress needs to exercise more responsibility and control over important issues these days. They have been willing participants in the judiciary's usurpation of power.



Maybe we should try and appoint judges who believe in the Constitution and understand that it sets forth an amendment process for granting brand new rights and prohibitions.




The problem is that too many democrats try to label judges who do not sign onto orthodox liberal beliefs as religious nuts. Now that is a problem.

I don't think anyone participating in this thread can say with a straight face that the judiciary has not become politicized. And that is the core problem. Judges are not legislators. But that is their new role and the constitution never anticipated that. So we are left to fight to the death these judicial nominees. And even when we think we got one that will "make" law that is consistent with our beliefs-- we still have no assurance, because they are life time appointments.

No. The real problem is the power of the judiciary. If we don't put a check on it, it can only get worse.

Can you say constitutional crisis?

Do you you imagine you're in the Bill of Attainder thread?

Why do you persist in discussing bills of attainder? The Congress passed one against Terri Schiavo. The court called it for what it was and said it was unconstitutional.

This discussion is not about bills of attainder. It's not for those advocates yelling, "yeah, I want the U.S. Congress to decide my fate."

This discussion is about something else.

Question to Debate: what arguments can liberals advance to make sure Scalia and Thomas don't wind up being considered the court's moderates?

Oh, this is easy.

Fundamentally, the strongest argument will likely have something to do with balancing the federal government. I'll predict the nomination of several questionable candidates, and a final landing with a moderate more concerned with fiscal issues than social. Just how this translates to constitutional stances, who knows? That would be a good candidate: a thinking person.

This is to say, not someone who makes snap decisions based on right-wing ideology. I don't think moderate Republicans want this country to go any farther along idealistic paths that have led to major headaches.

The 2006 elections are coming up soon. I'm pretty certain that the arguments of liberals will get the attention they deserve after the general public has witnessed the actions of a Congress and President interfering with a very small group of individuals. It doesn't matter if the action was legal or not -- something like 75% of the population saw it as wrong.

The SS proposal was DOA, and as this dead horse gets beaten in highly controlled taxpayer-funded dog and pony shows, the general perception is that the whole thing is a waste of time and resources.

Add to this the rallying of the truly liberal media, Air America Radio for example, and the conservatives are feeling the heat; the agenda on America is under attack.

Well yeah, under question anyway. One party having all the power just doesn't work. It looks to me that more people are feeling this, reflecting on how we got to where we are and not liking this direction. The solution?

Vote for balance. Write Congress for balance. The usual things, eh? Can't get the head of the beast in 2006, but can go for the arms and legs (House and Senate).

It's even conceivable that power swings far enough leftward that the SC goes slightly liberal, should nominations get delayed to the next administration.

I for one never vote for legislators, governors or presidents unless they are activists with clear agendas. Activism is supposed to happen there. That's where the Constitution mandates activism-- if Congress weren't supposed to actively make law, it wouldn't exist.

The reason we criticize the judiciary for being activist is that it is NOT supposed to be, and was never intended to be, actively involved in lawmaking-- only the application of law to specific cases-- determining who specifically has violated the laws made by the legislative branch, not actively dictating what the laws should be.

So, yeah, I think any non-activist in the legislative or executive branches should be booted out ASAP.



Hmmm... while that statement might be true, it is a reflection on the sorry state of the educational system in our country that is now primarily used as a way to brainwash young children in the lies of the intelligencia.

Who defines a federal court's jurisdiction if not Congress? Nobody. Because Congress actually DOES define every federal court's jurisdiction. Jurisdiction defines what type of cases that courts "may or may not hear." So, yes, Congress has ALWAYS defined what type of cases courts may or may not hear. ALWAYS.

If anyone born, raised or educated in the US doesn't know that, then they are living proof that the schoolchildren of America desperately need the school voucher system.

Dude, you brought it up. And you were wrong. Relax.

As for this:

I guess I would say "I hope so" since that's where our rights do come from. Every reference to Rights in the Declaration of Independence acknowledges the higher power that endows us with these Rights. What are you asking here? Are better, faster judges a bad thing or are you scared of our government's continued acknowledgement of a higher being?

Most important part of that passage, is the statement that government's purpose is to protect the fundamental rights. Not to provide retirement insurance or tell us how much water our toilets should use. And keep in mind, the Declaration of Independence is LAW.

Most important part of that passage, is the statement that government's purpose is to protect the fundamental rights. Not to provide retirement insurance or tell us how much water our toilets should use. And keep in mind, the Declaration of Independence is LAW.

So LA, conserving water isn't protecting the fundamental right of Life? How so? Are you suggesting that Life does not need water?

And retirement insurance isn't protecting the fundamental rights of Life, Liberty and the Pursuit of Happiness? How so? Are you suggesting that money isn't necessary for Life, Liberty and the Pursuit of Happiness?

Finally, since when does a declaration signed by a handfull of citizens before the drafting of the Constitution become law? The only lawful thing about it is that England took its troops and tried to blow the Declaration away forcefully. That was the current law of the time. The colonists broke it and defended the action forcefully. It's known as a revolution, and revolutions are not lawfull even today.

Anyway, we need SC justices who understand what Life, Liberty and the Pursuit of Happiness really mean, and what law really means. I think water and money have a lot to do with it all, among many other things.

I appreciate your thoughtful reply. Now, mine:

Two people can read the same exact words and come to completely different conclusions. This is fact. Just look at how often the Supreme Court decides a case on a 5 to 4 vote. These are some of the smartest, ablest people there are, and they can't agree on some simple words: what they mean and how they got there.

Now, I'm not saying that Congress can't create courts. And I'm not saying that Congress can't decide, say, to break up the Ninth Circuit. If it wants to, then clearly, it can. This is for sure.

It is also for sure that the Constitution says that the Supreme Court gets to hear and resolve ALL cases and controversies surrounding it. Congress can't change that. Congress could pass a law, and the president could sign it, and people in high places have already threatened this, but it could pass a law saying that no court can hear any challenge to the Pledge of Allegiance or the National Motto. And then the Supreme Court would have to say, "wait a minute. Congress can't say what sort of cases this court can or cannot hear. This court gets to hear ALL questions about what the Constitution does or does not say. Period."

When I talk of activist legislators and executives, I'm making fun of the term. Yes, there are judges out there who think they are some sort of god, that the law doesn't really apply to them. And they aren't all liberals. Half of them are very conservative.

What I want to see are the most reasonable people wearing black robes. I want to know that the judge is sober, that he's well educated, that he's compassionate and firm, thoughtful and considerate. I don't want to see someone like Antonin Scalia wearing a black robe. He might be smart as can be, but he lacks common sense, an essential characteristic for wearing black robes.

I want the debate in Congress, come the next nomination to the U.S. Supreme Court, to be very thoughtful and well mannered. And I want the best people there are to be on the president's top ten list of who should be nominated.

President Bush seems to have keen sense of future history in his second term. He could make a real mark on the court. I hope we never look back at it as a black mark.

Actually, the Declaration of Independance is NOT law. Tell me, this "law" was passed by what government, of what country? The DoI was the colonies giving Britain the finger, nothing else. It cannot be US law, because the US did not exist at the time it was passed. It is exactly what the name implies, the colonies declaring themselves independant from Britain.

Starting at the top: What basis is there for concluding that this is a "reasonable" court? Simply because you agree with more of their decisions than you disagree with? Seriously, how can you conclude that this lineup of justices is reasonable when just about everybody on this board considers McCain-Feingold to be a gross violation of the 1st Amendment, yet this court upheld it? Or you have the subject, with the juvenile death penalty simply being the latest example, of the justices who you consider to be most "reasonable" looking beyond our shores for guidance. Whether you agree or not with the ruling, the method used to arrive at it is unreasonable for someone sworn to uphold the laws of the United States, and the foundation of those laws is the declaration that our citizens are sovereign here, not the citizens of other nations.

Think about that. "Regardless of what direction", yet you lay the talent for division on Bush? Lawrence Auster did a piece on the behavior of most of the Left in the Schiavo case, and the upshot is this: their support of Michael Schiavo had nothing to do with the merits of the case, and everything to do with opposing the Christian conservatives. It sounds like you're saying the same thing: no matter what Bush does, he's wrong. And this thinking is supposed to lead us to "reasonable"?

Exceed their authority?

Congressional intervention into the matter was certainly unusual, but it does not exceed their authority. Nor did any of the Federal Courts so find, they simply accepted jurisdiction, said that "due process" had been satisfied, and kicked it back down.

Refer to the 14th Amendment again. You did seem concerned about it at the top of the thread...

Ahh, but the problem is, there appear to be a lot more arguments that can be made against people like Ginsburg, Souter and Breyer. More importantly, how can you make your arguments while staying within the framework of the Constitution? Conversely, if you have a problem with the idea of activist conservative judges, you're going to have a tough time making an argument that isn't just as valid against activist liberal judges, unless its the conservatism that you object to, rather than activism. When you go down that road, you become just another divisive partisan hack attempting a shell game. Don't think that'll work, but you can give it a try.

Actually LR, you brought it up, and have been proven to be wrong. You only look like a fool when you deny your error and attempt to duck the issue.

Funny, Congress seems to think otherwise. The DoI is part of the "Organic Law of the United States" as recorded in the United States Statutes at Large. It is the first document so identified, followed by the Articles of Confederation, then the Northwest Ordinance, and finally the Constitution itself.

The United States Statutes at Large is legal and permanent evidence of all the laws enacted during a session of Congress (1 U.S.C. 112).

Nonetheless, following your logic, what government, what country, passed the Constitution? It couldn't have been the "United States of America", because that government CAME INTO BEING with the Constitution. Oddly enough though, its the same people, which matters if you believe that the people are sovereign, not the government.

Bikerdad you completely took my coments outside the context of whether Bush chooses an appellate judge or elevates Scalia or Thomas. Short of nominating a moderate judge, his decision will create division.

In addition, you have introduced the Schiavo case in response to my words, which is equally out of context and further muddies the waters.

Nice try.

Then we are still colonies of Great Britain? Somebody better tell the British. And when/where can I vote against Charles' marriage to Camilla?


It did exist... having been brought into existence by that passage. If it were otherwise, then the Constitution would not be binding upon the President, Congress, etc., since those offices also did not exist when it was enacted.

Come on. Playing silly word games can sometimes be worthwhile, as entertainment. But only when they have a basis in truth. The ones you're trying to play here, do not.

The Declaration of Independence is the first law ever passed by the United States of America. It would have held supremacy even over the later Constitution, had not the Constitution contained the statement that it was the Supreme Law of the Land.

And the Declaration contains, among other things, a statement that governments are created for the purpose of protecting our basic rights. And another that says, if government becomes abusive of our rights, we have the option of altering or abolishing it.

All firm, bedrock laws, as valid today as they were in 1776... except where superseded by passages in the Constitution. And despite anything that disgruntled legal beagles might want to the contrary.