Courting Supreme Beings
Posted October 4th, 2007 by Da King
The next president may get to nominate several candidates for the Supreme Court. Here are the ages of some of our current Justices:
John Paul Stevens is 87. Ruth Bader Ginsburg is 74. Anthony Kennedy is 71. Antonin Scalia is 71. Stephen Breyer is 69. David Souter is 68.
Supreme Court appointments are not supposed to be partisan affairs. I know that sounds pretty naive given the combative nature of the Court nominations these days, but they really aren't. We aren't supposed to be looking for judges who are liberals or conservatives. We are supposed to be looking for judges who will apply the law as written. In fact, if we get Supreme Court justices who do anything other than that, who put their own ideology into their rulings, we have big problems, because that subverts our democratic process. It subverts the will of the people, the Congress, and the president. It nullifies the separation of powers, because the Supremes are not answerable to the people. We can't vote them out of power. They are appointed for life. They are the final word, short of amending the Constitution. To paraphrase Nancy Pelosi, 'when the Supreme Court says it, it's pretty much like God said it'. For once I agree with Nancy.
And we should be pretty careful about the Gods we pick.
There have been nominees who were rightly rejected because they were not good picks, like Harriet Miers (why Miers, when Brownie was available ?!?!), and others who were rejected because they didn't fit the correct partisan profile, like Robert Bork. The former is good. The latter is bad. Excessive politicization is harmful here.
When you hear politicians advocating for judges who are strict contstructionists (like Romney does), you have politicians who are on the right track, because those judges will uphold the constitution as written. When you hear politicians advocating for judges who hold specific positions on specific issues (like Hillary does), you have politicians who are definitely on the wrong track, because we don't want judicial partisans or activists. That is not the role of the Supreme Court. That should be left to the other branches of government. There's a good reason justice is supposed to be blind.
As an example, look at the poster boy for all judicial activist decisions, Roe v Wade. Regardless of one's views on abortion, due to the original judicial activism displayed by the Supreme Court in that case, where the constitutional right to abortion was magically and incorrectly created out of thin air, the issue of abortion has become a litmus test for all future Supreme Court judges. It has led to a politicization of the Court where there should be none. What the Roe v Wade decision did was overrule all state law regarding abortion. In effect, Roe legalized abortion through the back door, by making anti-abortion laws unconstitutional. It trumped the will of the people. That ain't supposed to be how it works.
In summary, we want Supreme Court judges who will outlaw moveon.org and mandate a balanced budget………………..Gotcha ! Just wanted to see if you were paying attention.
October 5th, 2007 at 1:05 am
Great job of pointing out the problem with the Supreme Court. Right now we do have a bunch of them that may have to be replaced soon and it is a shame that they will be replaced either for being liberal or conservative depending on who wins the next election. It makes me want to cry when I see people talking about how important the one swing voter on the Court may be the next year.
Why in hell can't people let the judges make their decisions without being afraid that they may not get home the day they make the wrong decision. It is so sad that what the founders wanted to happen has been shoved aside and politicians have moved in and done what they have done. It is so sad that Roe v. Wade is the measuring stick for anything to do with the rest of the laws of the US but it has become just that.
October 5th, 2007 at 7:09 am
Imagine Hillary being the president and nominating 3 or 4 Supreme Court judges…………
Uh, excuse me for a minute. I think I'm going to be sick.
Okay, I'm back. On a scale of 1 to 10, how political do you think those nominations would be ? Did you say 11 ? Yeah, I think so too. We have to do everything possible to defeat Hillary. I'm not too thrilled with anybody on the Republican side either, but I am very afraid of the damage that woman would do to our country. I'm all for a woman president, just not her.
October 5th, 2007 at 10:36 am
The two Bush Junior appointees, Roberts and Alito, are not strict constructionists, whatever that label means to wingnuts. They are simply perjurers. Both lied through their teeth, while under oath, about their allegiance to precedence. Just as Clarence Thomas had done years before.
In their first year of sitting on the bench, both Roberts and Alito, along with perennial precedence rejectors, Thomas and Scalia, quickly moved to strike down precedence on many cases.
That earns them their more apt titles… "Strict Deconstructionists".
The political court horse left the barn a long time ago. That's the reason another GOP president is completley out of the question.
2/3rds of America reject the intolerant, racist, corporate friendly concepts the 4 horsemen of the Supreme Court Apocalypse were appointed to defend.
Hillary will, at the very least, not allow the Court to fall any further into the dark depths of anti-Constitutional jurisprudence.
October 5th, 2007 at 12:21 pm
Da King says:
"We aren't supposed to be looking for judges who are liberals or conservatives. We are supposed to be looking for judges who will apply the law as written. In fact, if we get Supreme Court justices who do anything other than that, who put their own ideology into their rulings, we have big problems, because that subverts our democratic process."
So who is subverting the democratic process the most? Let's look:
Writing in the New York Times in an Op-Ed, Paul Gewirtz a professor at Yale Law School and Chad Golder, who graduated from Yale Law School, said:
"Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act "of great delicacy, and only to be performed where the repugnancy is clear." Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred.
Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like one reasonable definition of judicial activism.
Since the Supreme Court assumed its current composition in 1994, by our count it has upheld or struck down 64 Congressional provisions. That legislation has concerned Social Security, church and state, and campaign finance, among many other issues. We examined the court's decisions in these cases and looked at how each justice voted, regardless of whether he or she concurred with the majority or dissented.
We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.
Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %
One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist."
http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html?_r=1&incamp=article_popular&oref=slogin
October 5th, 2007 at 8:37 pm
I hear if Fred Thompson wins he wants to nominate Sam Waterston and Diane Wiest.
October 5th, 2007 at 11:50 pm
Hey Lou, didn't I hear somewhere that it is Stevens the Democrats are depending on to vote with their 4 against the conservative 4? Yep, it seems to me that I did. Hmmmmm.
We do need to stop appointing according to how the individual has tended to vote on cases before getting the appointment but who gives in first, consevatives or liberals.
I hear a funny from Bill O'Reilly today when he said someone was as left leaning as Ruth Bader Ginsberg. LOL
October 6th, 2007 at 8:12 am
Reverend: I guess I'm supposed to take everything you said about Roberts and Alito on your word alone, since you didn't offer even one example to backup your contentions. Sorry, that just doesn't do it for me.
October 6th, 2007 at 8:28 am
Lou Grant: (Nice screen name).
I reject Gerwitz' premise. Gerwitz attempts to redefine 'judicial activism' to suit his purposes. It is not judicial activism for a Supreme Court justice to overturn Congress if Congress passes an unconstitutional law. THAT IS THE ESSENCE OF THE SUPREME COURT'S JOB, to apply the Constitution. Judicial activism occurs in precisely the opposite case, where a Supreme Court justice manufactures non-existent 'rights', as I mentioned with Roe, or where the meaning of the Constitution is changed, such as in Kelo v New London, where the definition of eminent domain was literally altered.
October 6th, 2007 at 8:31 am
Larry: I think Fred Thompson will get tired of campaigning in a few weeks and go back home, but Diane Wiest might be able to impersonate a Supreme Court judge almost as well as Harriet Miers could have. She's a pretty good actress.