Redstate

This is so short-sighted. They are trying to change Constitutional law just to alter the present-day balance of ONE Supreme Court? I'm pretty moderate but my jaw still just dropped.

... move the government during the next Congressional recess --- and not tell the Congress where we went.

The insanity seems to just get worse and worse as the days progress. Sometimes it's hard to believe that the Constitution actually requires someone to be an adult to be in Congress, you'd never know it from these clowns.

John
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Why would God invent something like whiskey? To keep the Irish from ruling the world of course

I was just about to write this one up. I got a little suspicious of Chuckie's claims about Alito and "stare decisis," so I found some quotes from the confirmation hearings. The Weekly Standard documents the questioning from Arlen and Alito's responses:

SPECTER: In Casey, the joint opinion said, quote, "People have ordered their thinking and lives around Roe. To eliminate the issue of reliance would be detrimental."

Now, that states, in specific terms, the principle of reliance, which is one of the mainstays, if not the mainstay, of stare decisis precedent to follow tradition.

How would you weigh that consideration on the woman's right to choose?

ALITO: Well, I think the doctrine of stare decisis is a very important doctrine. It's a fundamental part of our legal system.

And it's the principle that courts in general should follow their past precedents. And it's important for a variety of reasons. It's important because it limits the power of the judiciary. It's important because it protects reliance interests. And it's important because it reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions.

It's not an [in]exorable command, but it is a general presumption that courts are going to follow prior precedents.

Note Alito's last comment: it is a general presumption. That certainly doesn't sound like a commitment from Alito that he would blindly follow stare decisis. Too bad, Chuckster - he got you.

Oh, and then there's Roberts. Again, Chuckie has no leg to stand on. From the NYT's transcript of Roberts' testimony:

SPECTER: I'm not going to ask you whether you're going to vote to overrule Roe or sustain it. But we're talking here about the jurisprudence of the court and their reasoning. Let me come to another key phase of Casey, where the joint opinion says a, quote, Terrible price would be paid for overruling Roe. It would seriously weaken the court's capacity to exercise the judicial power and to function as the Supreme Court of a nation dedicated to the rule of law. Now, this moves away from the specific holding and goes to a much broader jurisprudential point, really raising the issue of whether there would be a recognition of the court's authority.

And in a similar line, the court said this, that to overrule Roe would be, quote, a surrender to political pressure. And added, quote, to overrule under fire would subvert the court's legitimacy, close quote.

So in these statements on Casey, you're really going beyond the holding; you're going to the legitimacy and authority of the court.

Do you agree with that?

ROBERTS: Well, I do think the considerations about the court's legitimacy are critically important. In other cases, my thinking of Payne v. Tennessee, for example, the court has focused on extensive disagreement as a grounds in favor of reconsideration. In Casey, the court looked at the disagreement as a factor in favor of reaffirming the decision. So it's a factor that is played different ways in different precedents of the court. I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough -- and the court has emphasized this on several occasions -- it is not enough that you may think the prior decision was wrongly decided. That really doesn't answer the question, it just poses the question. And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis.

Game, set, match. Sorry Chuck, but these guys are doing exactly what they said they would do. The fact that you and your cronies weren't able to stop their confirmation is just your bad luck. Too bad, Chuck. It's over. Oh, and if you want to block all of Bush's nominees when a lib leaves the bench - go ahead. That just gives the conservative block a 5-3 advantage instead of 5-4. Go ahead - make their day.

We need to launch investigations of all the senators who have lied on the campaign trial. Leahy, schumer, clinton, specter, and all the rest of the no good SOBs. Let this be a wake up call to conservatives to treat the dems the way they treat conservatives. Play by their rules, no supreme court justices with ties to the ACLU(Ginsberg). We all know who has been leaking to the press; Leaky Leigh. The justice department should launch an investigation into which senators have been leaking information to the press and they are all demotraitors.

at its worst. But Bush or any other Republican president better not have a litmus test, paaa-leeze.

Senator Specter has clarified the remarks that Mark Kilmer quoted in the post: "I went the extra mile to get Roberts and Alito confirmed, and I stand by that....I did not mean to imply that either Roberts or Alito were disingenuous when they appeared before the committee....the real criticism was Breyer’s, not mine.”

They have the volatile combination of stupidity and arrogance. However, do not think for one moment that this type of attitude is not just another step down the path to the first American Dictatorship.

Envisioning when all that is Left is the Right.

That by obstructing everything in the last Congress so they could win, the donks would then be able to call in their media buds and yell obstruction when the Republicans returned the favor. The only problem, the half dead donk's media parrot can't do it anymore.

What's the odds, Bush finishes his term or the MSM doesn't?

Amazing how these Democrats are always so quick to claim that they are suckers taken in by wily Righties.

"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill

Let's say that a vacancy does open up in the next 18 months or so. Does Schumer really want to hand the Republicans the golden gift of obstruction ad infinitum?

I don't know if it'll happen or not. I seriously doubt there are anymore voluntary retirements on the horizon. But assuming one does and Schumer, true to his word, works to block Bush from getting another nominee and awaits the election and the next inauguration.

Does he think that voters would take kindly to that? It would be the most precious gift the Republican Party could get -- and they may well need a gift to compete in the upcoming election.

The entire election will be about filling a Supreme Court seat. And that fight wouldn't be going to the Democrats in the swing states.

Chuck -- be careful what you wish for.

Let's never ever forget that this scoundrel Specter voted against Judge Robert Bork and we got Kennedy. Every effort must be made to make a strong primary challenge to this pariah. Justice White's nomination took no more than one half-hour for confirmation. But since Roe and the ascent of stark judicial activism the Dkats have used the SC has their appendage when these lose elections. Speaking of precedent, its interesting how precedent was tossed into the trash can in a short time period to create a right of adult homosexual sodomy. Where was Schumer and Specter?

This was mentioned in a couple of blogs a couple of days ago. I had mentioned Sandra Day O'Connor giving her canned speech on judicial independence. Referring to failed ballot intitiatives dealing with state courts and a couple of Congressmen wanting to keep them from using international law or hearing certain types of cases, she said, "Such attacks _ even if unsuccessful _ can erode judges' confidence in their ability to decide cases without fear of political retribution."

It sounds like she needs to give Sen. Specter a little lecture. Judicial independence works both ways, after all. Certainly Specter's plan can "erode judges' confidence in their ability to decide cases without fear of political retribution."

I don't think Roberts and Alito went far enough to reverse precedent. I actually opposed Roberts' confirmation merely from the claim that it was not enough to disagree with a prior decision (assuming he meant Constitutionally). I think stare decisis is inherently unconstitutional, and I think the Supreme Court should declare it so. Precedents should never be set in the first place and need never be followed. It's for judges who are either too stupid to understand the constitution and the law or judges who wish to impose their own policies on society.

As for Arlen Specter, there ought to be no room in the Republican party for him. If he is the best Pennsylvania can do, they should put in a Democrat. Pennsylvania's other Senator, who is a Democrat, would make a better Republican. I'd vote for Casey over Specter any day.

The confirmation hearings wouldn't mean much even if the two had explicitly promised to uphold Casey. In their view, they did so last term. (And if they are adequate justices, they will both grant cert and overrule Casey if an appropriate case arises and another vote may be there.)

Anyway, I don't think most people are paying attention to the courts, except those of us involved in politics or in law. I don't think this is going to help or hurt them in any elections. Democrats already investigate every Bush appointee they can. Between Alberto Gonzales, Harriet Miers, and Karl Rove, and others, I don't know if they will have time to squeeze in Roberts and Alito.

in that it's not clear who really has the whip hand when the Constitution gives the advise and consent power to the Congress.

This sort of thing tends to evolve as tradition slowly changes, unless someone does something dramatic. And the slow change in tradition has been to give Congress more say in nominees of every kind. (Ginsbetg vs. Bolton, for example.)

Bush is not one to kick Congress in the tail over this, more's the pity. Let's hope his Republican successor is more gutsy.

Has it occurred to anyone else that Casey was plurality opinion and therefore does not have any force as a precedent for stare decisis purposes?

From the perspective of legal scholarship, hardly anyone seems to care any more that it is the "holding" of a case -- not its language -- that is entitled to respect as precedent.

The holding of Roe was that the particular Texas statute under review violated the due process clause. Blackmun's "trimester" fantasy was not the holding of the case and therefore is owed no deference in later cases before SCOTUS.

From C.J. Roberts' confirmation hearings I think it's quite clear that he understands all of this much better than his pathetic inquisitors did.

BRASSBAND77

or tiny Davey Souter. After all,principles are principles and one should attempt consistency, especially if you fault inconsistency in others.

They love the Constitution so much they would reverse it. But if you love something you love it for what it is, not alter it.

But then this is a Congress that wants the role of Commander in Chief in wartime so although lacking any moral foundation you can't say they lack ambition.

They are unhindered by any internal constraints that would give pause to most humans, unchecked by any civilized inhibitions, force, dominance, and control are the only goals in their blighted lives.

"a man's admiration for absolute government is proportinate to the contempt he feels for those around him". Tocqueville

well OK, political, principle- three strikes and you're out.

It's called when the umpire (the Republican electorate) can't see what a damn bit of difference it makes to have him representing us on Judiciary.

Most decisions are 5-4. It's mathematically impossible to get any MORE balanced than that.
The only ones out of balance are Schumer and his band of lefty idiots.

It wasn't supposed to be, but it is. The completely renegade decisions of the High Imperial Court over the last 50+ years is all the proof one needs to see the truth, and it is one reason why the President, the Congress, and the states should refuse to comply with its particularly bad decisions. Otherwise, the Left has about a 90% chance of winning the Culture War permanently.

Is it me, or is there not an aggressive, articulate champion for originalist/restrained jurisprudence to counter the ridiculous things that Schumer says about the courts?

There is no doubt in my mind that if the public were honestly informed about the judicial philosophies of our preferred judges (Scalia and Thomas) versus that of the Left (Ginsburg, Stevens, Souter, Breyer), the public would overwhelmingly choose ours. If they really knew that boogeymen like Scalia and Thomas actually hand down outcome-neutral decisions in most of the contentious social issues, while the Ginsburgs unconstitutional decisions are those that seek to impose on everyone one solution, and are thus the main cause for the national Culture War.

I wish everyone could see some of those debates Scalia has had with Breyer and ACLU types on C-SPAN.