Redstate

that it's true.

I know my source.  I'm not taking that bet.

or that he will retire on Monday?  Everybody knows that he will retire "soon," but what does soon mean?

but I don't know gambling laws online and don't want this find 527 getting in trouble, so I withdraw any actually monetary betting.  However, I'm on the record as predicting a Mon announcement.

he isn't thinking of issuing a terrible decision in Kelo v. New London and then hiding from my wrath.

Don't get me wrong. Rehnquist has been a great justice, but it's time for some new blood on the court. I hope Stevens and O'Conner step down too. And for Pete's sake, no Souters.

Powder Blue Report

as predicting sometime next month, or the following month.  If I'm wrong, you get mucho bragging rights.

I won't bet against Doverspa, cause I'd be betting against my source, who I take to be credible.

If GWB gets two or more vacancies during his term and somehow fails to nominate Kozinski, there is no justice.  [No Justice Kozinski, at least.]  

Of course, AK-47 can always take solace in being named the Number #1 Male Superhottie of the Federal Judiciary (http://underneaththeirrobes.blogs.com/main/2004/07/big_swinging_ga.html).  As one correspondent put it:

Look, on the men's side, there's no contest here. After all, the contest is for the 'hottest' judge, right? Alex Kozinski (aka AK-47, AK, Hotpants, the Romanian Love Machine) wins hottest, hands-down. You can keep your clean-cut Jeff Suttons [Sixth Circuit]. He might be the kind of judge you want to bring home to mom, but 'hot' he ain't.

Let's have that seat!

Incidentally, I'm just now reading "The Rehnquist Choice," by John Dean. It's the story behind the selection of Rehnquist by Nixon in 1971. Turns out Rehnquist was like Nixon's 7,694th choice. I say, perhaps for the first time in my life, thank you Richard Nixon.

Anyone else read this? Fascinating stuff. You almost get the sense that Dean wrote it as an apology....

And Gonzales will replace her.

Warning: THIS IS SPECULATION. Obviously, I think it's somewhat well-informed speculation, or else I wouldn't be writing this. But it is speculation.

(1) There will be a Supreme Court resignation within the next week. But it will be Justice O'Connor, not Chief Justice Rehnquist. There are several tea-leaf-like suggestions that O'Connor may be stepping down, including the fact that she has apparently arranged to spend much more time in Arizona beginning this fall. There are also recent intimations that Chief Justice Rehnquist may not resign. This would be consistent with Justice O'Connor having confided her plan to step down to the chief a while ago. Rehnquist probably believes that it wouldn't be good for the Court to have two resignations at once, so he would presumably stay on for as long as his health permits, and/or until after Justice O'Connor's replacement is confirmed.

(2) President Bush will appoint Attorney General Alberto Gonzales to replace O'Connor. Bush certainly wants to put Gonzales on the Supreme Court. Presidents usually find a way to do what they want to do.

Kristol could be right about O'Connor, but I still think Rehnquist is leaving.

There was some speculation that Rehnquist and O'Connor wanted to step down before (under a Republican) but that doing it during the 1st term would be awkward due to Bush v. Gore, 2000 (the case, not the race).  This is the first chance since his re-election to resign, which are usually done at the end of a court session.

We could see two vacancies with a conservative or constructionist replacing Rehnquist and a squishy Gonzalez replacing a squisy O'Connor.  It's definitely possible.

honestly I would rather Bush find some fine strict constructionists, and back them 100% than try to find some stealth candidate in the hopes they turn out to be what they want.

Make the dems have to argue the extremism of the judge, my fear is the white house won't fight for a strong judge-so far they haven't seemed to back their nominees, when the Dem attack machine starts up.

be going, but Renquist won't be far behind, I just don't see how his health would permit him to stay on another term, and at least if he retires now, we can hope somebody comes in to replace him befoer the next term begins.

I really, really do not want a Gonzales appointment though-I am fine with him as AG, and I think he would get reamed at the hearings.

Gonzales is named as a replacement to O'Conner, gets hammered in the hearings and withdraws himself or is defeated, then President Bush names a strict constructionist....?

To me, it does not justify putting a squish on the Court that "he's only replacing another squish." We didn't work so hard in 2000 and 2004 to make the Court not-worse-than-it-is-now for the next 20 years. Many of us worked in order to make the Court BETTER.

What part of "Gonzales is not acceptable" don't these people understand? Do they think we're kidding?

status quo, I want more judges in the mold of Thomas and Scalia, I want to see the make up of the court shift.

Can you give me one reason why he isn't acceptable?

We don't know his views on a lot of things.  He is obviously conservative enough to piss off every lefty in town and he has the President's trust.  We don't know how he'd vote on a review of Roe.  We don't know enough to call him unacceptable.

He's not ideal.  But he is who the President seems to want to appoint.  And that's his job.

Which ones haven't they backed? Estrada? Brown? Cohen? Bolton?  They don't always win, but they usually fight.

I also think they didn't do much to back Pickering.

More than anything they just don't seem to put a face of support on them.  Although it may be lack of media coverage as well.  But sometimes it seems they hand over the name, and then just sit back and wait for the senate to either tear them apart and fillibuster or tear them apart and eventually vote.

Although recently the WH seems a bit more vocal in their support-but it just doesn't always seem to be upfront and public.

that worries me.

We didn't know enough on Souter and look at what we got.  Also, I have seen enough commentary on him, to make me suspect he would end up being total squish on Roe, maybe not worse than O'Conner, but more than likely not better (better from the pro life prospective).  

I would rather have somebody we do know pretty well and fight for them, than try to play the Souter game and get burned again.

Here's some info about Gonzales that --- if true --- definitely explains why he is not acceptable.

http://www.confirmthem.com/?p=733

The Dems will filibuster that to the death.  

If Bush nominates someone like Janice Brown it will be a very very ugly battle and the fallout from that battle could be pretty severe for both sides.  I don't see the Bush Administration being willing to allow this nomination to eat a year plus of his term.

If they filibuster, then Senators Graham and DeWine call foul, and the rules change to disallow judicial filibusters.

Dewine and Graham better get their resumes up to date.  

This is a Supreme Court n

That should read.

This is a Supreme Court nomination.  Not the same thing as a appellate court nomination.  A lot more exposure.  

An overtly Pro-Choice will be a big battle and blue state Republicans are going to wince at having to vote for one.  They would much rather hide behind a Democratic filibuster.

We have 49 confirmed votes for the Nuke/Const. Option if DeWine and Graham think Dems are being unreasonable (and being pro-life is not an "extraordinary circumstance").  Either Specter or Warner make 50.

By the by everyone... this is why even a +1 or +2 Senate pickup in 2006 is important.  Best part is, it doesn't matter if Chafee wins or loses on this one.  We need a +1 or +2 pickup overall in the other 32 races to make it 100% clear that you can't filibuster someone just because you don't like their view.

Rehnquist probably believes that it wouldn't be good for the Court to have two resignations at once, so he would presumably stay on for as long as his health permits, and/or until after Justice O'Connor's replacement is confirmed.

That doesn't sound right because of the political calendar. My feel is it would be better to have 2 resignations at once this year than to have one next year during the congressional elections. There will be more senators ready to grandstand next this than this.

So if Democrats are obstructionists, then Republicans have an opportunity to push it.

If certain Red State senators break their promise not to filibuster reasonable nominees, Republicans have an opportunity to paint them as liars.

Republicans can't be afraid to fight for what's right, though, or Democrats have already won.

I think if Rehnquist goes, bush's best option would be to put Scalia as Chief justice.  Its unlikely the Dems will filibuster that choice, as it's roughly similar to having Rehnquist there already.  I think there would be more of a stink over making Thomas chief justice.

Once the Chief justice is appointed from within the existing court, then I could see bush nominating someone pretty right-wing but not over-the-top right-wing, perhaps Gonzales, or someone roughly equivalent.  I doubt Gonzales would be filibustered, although he would certainly be grilled for a while.

that you can't filibuster someone because of their views but you can APPOINT someone because of their views?

To be clear I am pretty ambivalent about Roe V Wade.  I think it was a bad ruling forced by difficult times.  I also don't know what would ultimately happen if it were overturned.  

But I think that if Bush were to appoint a openly politically biased justice it could lead to VERY dangerous consequences.  I firmly believe that the Republicans escaped disaster by avoiding the nuclear option.  Using it on a Supreme nomination would be very dicey.

Terms like obstructionist will be meaningless.

The battle lines will be drawn.  One side or the other will experience a major blowback.  Given that the GOP has a lot more to lose right now the risk doesn't seem to be worth it.

for nearly two years before Estrada himself quit.

Blue state Republicans will balk at supporting an "overtly pro-choice" nominee?

that Brown was one of the nominees explicitly covered in the "gang of fourteen" deal a few weeks ago.

Here's my take.  Just like you, I am eternally indebted to Nixon for getting Rehnquist through a Senate that was almost as hostile as the current one.  (And Democrats controlled the Senate by a wide margin back then.  They could've blocked every conservative that Nixon nominated but those were less partisan times.)

After reading hundreds of supreme court decisions in the last three years while working on my J.D., I've decided that I like Clarence Thomas the best.  Scalia is my second favorite.  These two respect the Constitution and are reluctant to add their own amendments to it.  Or, for that matter, to recognize past judicial decisions which have the effect of a judicial amendment to the Constitution.

I hope that Bush nominates someone like Michael McConnell to the Court.  I think there's a short-lister named Eugene Alioto that is supposed to be very conservative.  Just like you and many other conservatives, I sank money and hundreds of hours into the last two presidential elections.  Heck, I even sent money to Thune's campaign because I wanted Bush to have some help in the Senate.  I will not accept a nominee that looks at the Constitution like O'Conner and Kennedy.  They come up with weird justifications for doing whatever they darn well please.

Their "constitution" is completely made up.  It's inside their heads.  They, and the four liberals, tend to create precedent-changing edicts, as if they were appointed to some kind of governmental College of the Cardinals where their word must be accepted as the law of the land.

I'm sick of it.  Let elected legislators legislate.  Judges must not create new rights and entitlements that don't exist in law.  Nor should they accept judicially-crafted rights and entitlements.

Meant Pro-Life.

Does that 49 include McCain?

No, filibustering judges because of their views is not reasonable.  Such filibusters prevent the Senate from having an opportunity to fulfill its Constitutional role of giving or withholding Consent for the President's judicial nominees.

Voting against them is fine, of course, because that's what votes are for.  But the Judges need to get an up-or-down vote if our Constitutional processes are to be respected.

Kristol and Red State's source are both right.  Rehnquist and O'Connor both step down.  Bush appoints Luttig and Gonzalez to their respective seats.  Yes, there will be one less woman on the Court.  But that will be negated by the first Latino Justice.

There are 48 "non-Deal" Republicans including Specter.  With DeWine and Graham that makes 50.  But since no one knows how Specter would vote, it takes one more "yea" to seal the deal.  That would be either Warner or Specter (or a newly elected R in 2006).

wager on that one.

We will get a nominee who shares Rehnquist's view that abortion is a matter that is best left to the states to decide. (Wasn't that Kerry's position on gay marriage?)

I hope the dems filibuster Rehnquist's replacement.  I want everyone to see that they're not interested in maintaining the status quo.  They want to get liberals onto the court even though they lost the opportunity to get that result when the American people spoke last year.

You can also vote no because of someone's views although that is recent strategy.  But filibusters (if they are to continue on judicial nominees) should be reserved for atrocious situations.  They should appear once a decade at most.  Otherwise, the judicial gridlock will only get worse.

Let's go abstract.  One party has the President and 55 Senators.  If they can't approve their nominees then anytime the Presidential party has 50 to 55 friendly votes in the Senate, it can't approve of its choices.  How often are we in a situation where a party has the Presidency and more than 55 Senators of the same party?  Not very.  Get the 6 moderates to vote no if a person is out of the mainstream... if 51 Senators vote yea then the nominee is by definition in the mainstream.

that the Democrats realize that they will not be able to get a "Liberal" on the bench.

the Dem Senators from ND, FL, NE, and WV who are up for re-election in 2006... oh and if things don't change tell the 2 from AR, the other WV, the other ND, and the ones from SD, NV, and IN.

Increasing partisanship will lead to a 60 R Senate as the 30-31 "red states" elect more Rs.

... and add this to the pile as well.

http://www.townhall.com/columnists/robertnovak/rn20030123.shtml

Bottom line, I don't trust him, and a lot of people in position to know don't trust him either. To me, he's not acceptable because frankly, we shouldn't HAVE to accept him. There are enough qualified and principled and reliable and genuine conservatives out there- we all know the names- that grassroots conservatives simply shouldn't be in the position of having to hold their breath and hope that Gonzales works out. There's just no good reason why we should be asked to accept an unknown commodity. None.  

I understand that politics is about compromise, and I understand why the President has, by necessity, been less than 100% faithful to conservative principles. Fine. But on this issue, there simply is no excuse. Qualified conservative prospects abound. The President should keep his campaign promises by nominating one.

No guessing, and no excuses. Just deliver. Please. Just deliver on this one thing and then a lot of us crazy social conservatives will go back to our caves .... that is, of course, until we're called upon to help win the next election.

I don't think that's too much to ask.

So I'll help you out a little.  Blue state Republicans like Chafee, Spectre, Santorum, Snowe, Collins, and Coleman were not elected by liberal dems.  They were elected by conservative republicans with some help from independent voters.

If they balk at putting a conservative on the court they are gone.  Just like Bob Smith.  Spectre would never be nominated again if he balked.  He is already on notice.

Moderates did not constitute a majority of the people who voted for these guys and gals.  They got way more votes from conservatives.

Bush, Jr does not want to make the same mistake his dad made.  He will not nominate a pro-choice candidate.  Remember, his dad nominated Souter when dems controlled the Senate.  Dems have less power in the Senate today than they've had since 1930.  You're telling me that we have to bend over backwards to accomodate the party that America rejected last year?

Don't think so.

First, I would bet the new appointee will go straight to CJ to have him there for 20+ years although I could be wrong.

Second, I like how Gonzalez is "pretty right-wing."  Most people presume he is pro-Roe.  If you really think a Rehnquist replacement will be pro-Roe, you're crazy.  He may replace O'Connor or Stevens, but not Rehnquist.

that the Democrats need to satisfy their base as well and if they simply allowed an up or down vote to come for a clear pro-lifer they would risk serious backlash.  

Whether it came about by rule change, or by the pressure of public opinion, I don't think there's any way the Democrats could sustain a filibuster against a (qualified) Supreme Court nominee. It's just too high-profile. They'd never get away with it.

that abortion is a one sided debate in this country.

But I do believe that a majority in each of those states believes that reasonable restrictions should be allowed.  And they believe that states should be able to make compromise on the issue instead of having an unelected court force an extreme pro-abortion position on them.

And I can only think of a few Rs in a similar situation:

ME (2), RI, PA (2)

And since 4 of them vote with you on a regular basis (including on the Cons./Nuke Option), there is only one real possible pickup on home turf for Ds.

Rs still have 10 seats that are on friendly ground to pickup.

. . a President to have a Senate with  55 or more members of his Party.  The rule for the twentieth century seems to be that the President and a majority of the Senators are from the same party (about 70 percent of the time by my calculations) and I count about 30 Congressional Sessions (60 years) where the majority party had 55 or more Senators.  There probably isn't a perfect overlap between the two but it may not be as uncommon as we think.

for hitting the nail on the head so that I didn't have to.

They just don't get it.  They think that this is a nation where most voters want pro-choice leaders.

They don't.

Last year there were about 12 Senate races that were closely watched.  Most of these races featured a pro-choice democrat running against a pro-life republican in a swingy state.  In all but two of these races, voters chose the pro-life republican.  In the 8 open seats (5 dem, 3 GOP) the GOP won 6.  The only incumbent to lose was Daschle-a democrat in a red state.  There are about 13 democrats sitting in red states today. (Conrad, Dorgan, Johnson, Baucus, Byrd, Rockefeller, the Nelsons, Salazar, the AR dems, Reid, and Landrieu).  Unless the dems can get rid of the label of being pro-abortion and pro-gay rights, it will be hard for them to hold onto those seats as these aging dems retire.

Their party will be in crisis mode once the party at-large figures out what many of its insiders already know--the math just doesn't look good for them.

When Rehnquist retires, Thomas should be elevated to CJ, he is relatively young (20+ years left at least). And it was his minority vote on the medical marijuana vs. Scalia's vote in the majority that pushed him over the top for me. (being that I favored the 2 for CJ, but couldn't decide between them until now)

If Roe is overturned, perhaps the dems will make huge gains running on the legislation of pro-choice provisions rather than retaining the judiciary. Abortion rights would be unchanged in most states and regulated in a few. I doubt it would be outlawed in more than 2 or 3 states if given the choice.

It would also split the republicans further along the moral/philosophical lines - i.e. legal outcomes sought vs. legal philosophy of limited review.

The one out of CT. I think it has to do with how far local governments can stretch the meaning of "public use"

Roe falling hurts Republicans mightily.  But politics is a means to an end.  Many Rs want the end of having a say over abortion policy instead of having an unelected elite dictating it to them.  If Roe falls, I would be able to consider D Presidents again.

Let's not go telling the democrats how democracy works. It only upsets them.

I could care less what a justice thinks of social issues* so long as he or she is a federalist and supports the separation of powers between the federal and State governments by upholding the Enumerated Powers Doctrine.

Thomas' principled support of a constructionist view of the interstate commerce clause cinched it for me as well.  He's the best choice of the remaining eight IMO.

* Some - albeit a minority - on our side may have lost sight of that and are happy with a court system that operates as a mini-legislature so long as it goes the "right" way.  

I remember getting a Federalist Society email about this case.  A little old lady gets kicked out of her home because the city of New London thinks that a parking garage for a private hotel has an important "public use."  

This case will go 5-4 along predictable lines.  I remember reading Rehnquist's questions to the attorneys when the case was heard.  I'm not worried about Rehnquist going squishy on private owners' property rights.  I'm not even worried about O'Connor to tell you the truth.  This case is different from the Tahoe case where she favored the government's right to take away property rights without compensation.  In this case, they're taking away the poor lady's home.  She has a heart for sympathetic plaintiff (sometimes she has too much heart).

I'm a little more interested in the Van Orden/McCreary County cases (10 Commandments monuments on public property).  That's an area where she gets real creative on her interpretation of the 1st amendment.

Of course, this all depends on how you define "liberal."  To me, O'Connor, and Kennedy are "liberals" because they believe that judges have the power to amend the Constitution without going through the constitutionally prescribed process of getting approval from 2/3 of both houses and then ratification by 3/4's of the state legislatures.  

Many people think of O'Connor and Kennedy as being "moderate."  I even remember hearing a guy from the ACLU saying that Ginsburg, Breyer, and Stevens were "moderates."  All just labels, I suppose.

But I think that Bush should have the same power to appoint replacements to the Court that all prior presidents have had.  (Sure Bork got blocked, but he wasn't filibustered.)

And that applies for Rehnquist's replacement, O'Connor's replacement, and Stevens' replacement.  If you libs don't like it, you can riot, or have a sit-down strike.  Or whatever else it is that you do.

strict constructionist that I am after.

I want more justices like Thomas and Scalia, I don't care about whether they are pro life or not (although generally a strict constructionist doesn't think too highly of Roe-since it isn't very strict constructionist).

you can pretty much do what you want as long as it's just a small side bet and you're not starting up some kind of online casino that's going to pull money away from the sharks in Vegas.

But bet wisely.  I'd lay odds of a Monday retirement at only 50-50.  So don't re-mortgage the house.

Of O'Connor being Liberal in a ruling?

it is about getting strict constructionists on the court, I have had my fill of the "living breathing ever changing the way I want it to change" judges.

And God forbid we get anymore Ginsbergs who thinks international law is suitable for interpreting US law (although as long as Bush avoid the stealth candidate like Souter I don't think we should have to worry much about).

that used International standards?

And he was actually well within his bounds since the 8th is one of the more ambiguous parts of the Constitution.  

he seems like a squish on states' rights to regulate abortion and on individuals' rights to be free from the racial discrimination that is so pervasive in university admissions and government hiring/contracting.

That should be enough to raise everyone's concern.  A Latino supporting racial discrimination?

I'd much rather have Michael McConnell, or Priscilla Owen, or Janice Rogers Brown, or Eugene Alioto, or Miguel Estrada.  I don't know a lot about this John Roberts but I hope he believes in states rights, religious freedom, and that people have the right to be free from government-sponsored racial discrimination.

character flaws, not because you are ideologically opposed to their positions.

The president was elected, and it is his decision as to what types of judges he wants to nominate to the court.  The senates job is to vote yes/no on them, not to decide based on ideological grounds that they shouldn't get that vote.

moderates in order to please the base.

Plus I am just not into fillibusters for ideological opposition with judges.  Honestly I think if a judge is qualified, and has no ethical (real not the political hack job kind) flaws, then they should be confirmed.

While I think Ginsberg is a pretty cruddy justice, I think the GOP was right to overwelmingly vote in favor of her-one of the perks of having the WH is you get to choose justices.  The Dems seem to have forgotten this.

end if Roe was overturned.

As a matter of fact, I am willing to bet the majority of states wouldn't outlaw abortion, although I am certain they would put some pretty strict limitations on it.  

But does anyone really think California, Connecticut, New York or others would make abortion illegal?

don't have a problem with the Dems filibuster of John Bolton then.

I think what the dems are after are squishy appointees like O'Conner or Kennedy-so they will use the fillibuster to do this, and I hope Bush thumbs his nose right back and sends them only strict constructionists.

although I think Bush will go for Scalia-I think that while the Dems don't love him, he doesn't come with the baggage that Thomas does.

But I would love to see Thomas in the position, his opinion is the one I am almost alays nodding my head in agreement with.

Glad that you asked.  My most recent example would be Lawrence v. Texas.  She stated that the Constitution protects individuals' right to engage in sodomy.  In essence, she and 5 other justices amended the Constitution without asking for Congressional approval or for ratification from the states.

Then you have Grutter v. Bollinger (123 S. Ct. 2325 (2003)).  In that case, Justice O'Connor ruled that the University of Michigan may allow racial discrimination to occur as long as it occurs at the same time as legal forms of discrimination (on factors such as grades, test scores, foreign language skills, etc.).  

Also, in the Lake Tahoe case she ruled that the Tahoe Regional Association may take away homeowners' property rights without compensating them for it.  Then you have her views on free speech which essentially states, "You may call child pornography protected speech but not prayer."  She believes that the judicially-crafted right to be free from hearing other people pray is more important than the Constitutional right to free speech.

That's why I call her a liberal.

although, if you are referring to the execution of juveniles one, I think they were using treaties, not actually law from other countries (I may be wrong, and if I remember right one of the treaties they used the US wasn't a party to), but Ginsberg has given speeches where she advocates using international law and other laws to interpret US laws/constitution.  I dont think Kennedy has made such arguments in speeches.

house... that's a good one... maybe in 10 years.

My reasoning on Gonzales is that bush tends to reward loyalty more than any other specific issue.  I'm not aware of any potential justice which has displayed more loyalty than Gonzales.

But I agree he's probably viewed as pro-choice based upon prior court decisions.

I should say serious character flaws-things like real ethics issues-bribes, influence peddling stuff like that-things that might indicate that a judge would be open to influence-things that make you think a judge would be unable to determine the law in an ethical manner.  Not "he has a temper and I don't like him" kind of crap.

Also, Bolton would not be a lifetime appointment, where a judge would be.

But when I mean character flaws, I don't mean personality types or leadership styles, but things that would lead a senator to question whether or not a judge could ethically fulfill their duties as a judge.

when discussing the court.

For instance look at the Medical marijuana case-some people would view the dissent as the "liberal" view, but in reality it is the strict constructionist view, verses the living breathing document view (granted Scalia is not a living breathing document guy, but he kind of sorta tried to make the case from a strict constructionist POV in his seperate opinion, but he didn't quite make the case).

O'conner isn't a true strict constructionist, she seems to put the suit on when it suits her, but for the most part O'conner goes looking for reasons to support her opinion, while a true strict constructionist (think Thomas here) lets the law lead him to the opinion.

For lack of a better term-for the most part the strict constructionists (conservatives) let the constitution and law lead them to the decision, while the living breathing document folks (liberals) go looking for the law to support the decision they want to make.

Kennedy and O'Conner seem to be so squishy, because in reality they aren't true strict constructionists, they are only strict constructionists, when the decision they want fits that opinion.

So please explain how Texas v Lawrence was an example of the court amending the Constitution.

The majority ruling stated that the Texas law violated the Due Process clause of the 14th Amendment.  O'Connor concurred but said that the law violated the equal protection clause of the 14th Amendment.

How is that Amending the Constitution?  Since the law singled out same sex couples it clearly violates the 14th.

Please explain.

for the Strict Constructionist crowd.

Do you feel that precedent is irrelevant?  IOW, do you feel that a justice should discard case law and render a verdict solely on a strict interpretation of the Constitution itself?

I don't think Supreme Court Justices should feel overly bound by precedent in important matters.    Lower courts should, but the Supreme Court is the lone place within the Judiciary branch that injustice can be reversed.

Stability in the law is important, but upholding the Constitution is what they are sworn to do.

I don't think there's a whole lot of disagreement on this point.  The disagreement only comes is which precdents are important to overturn.

in an interview today.  See http://www.confirmthem.com/?p=73

http://www.confirmthem.com/?p=735 is what I meant.

And the ditching of prior caselaw is not unheard of.

I think prior case law should be overturned carefully, but I don't think any court is forever obligated to follow every prior decision.

Shoot the court all but overturned itself when it made the recent decision to prohibit executions of juveniles (granted their reasoning was the changing standards, but that basically allowed them to overturn prior law), and it wasn't strict constructionists who did that one.

His argument was spot on from a strict constructionist POV.

Well as long as you agree that prior case law should be used, if not all the time, some of the cases then I'm not sure how Thomas was correct in dissenting about the medical marijuana case.

Prior case law had already established that the Federal government has jurisdiction in these cases because of the commerce clause.  In order to say no you must overturn decades worth of rulings on what the commerce clause actually means.  

This is why I find strict constructionism to be so tricky.  A lot of people seem to think that strict constructionists should rule on what they(usually Conservatives) feel was the intent of the original framers.  The problem is that we have a couple hundred years of rulings that have already spent a great deal of time determining what the framers intended.  

Just because you or I feel that the framers meant the Welfare clause meant one thing(ie solely infrastructure support) DOESN'T mean we are any more right than any other interpretation.  Since we have had 70 years of rulings that have interpreted that to mean something ELSE, there is little legal reason why it should be changed.  

As a matter of fact a justice who suggested that the current definition of the Welfare clause is wrong and should be overturned(Janice Brown) is being an activist because there is no reason to accept her opinion over the opinions of the entire  court for the past 70 years.

within hours of attending service and DC DAY at Washington National Cathedral someone will officially "leak" the annoucement.

the majority of really horrid case law (by a strict constructionists standards) is relatively recent caselaw, most of it from the 1930's on.  That is when we get most of the "living breathing" document crap.

I think Thomas' dissent for the medical marijuana issue was spot on.

I generally think almost everything he writes is spot on.

His dissent is pretty simple.  He doesn't recognize a Right to Privacy.  This is a pretty contentious issue.   There is certainly plenty of case law that support the right to privacy.  Thomas ignores it.

This is where I have a real problem with the strict constructionists.  If you say that we don't have a Constitutional right to privacy then you are ignoring the 9th Amendment and the implicit rights granted in severeal of the Bill of Rights.  

A strict constructionist SHOULD readily agree that the federal government doesn't have a right to impede on our privacy since it is not an enumerated power.  State government becomes a bit murkier but given various Federal laws that have been put in place it seems very difficult for me to accept that any state law that runs in contrast to Federal privacy laws would run afoul of the 14th.

Only prizes for games of skill :)

There isn't a specific constitutional right to privacy, you support the caselaw that says there is, because you like Roe v Wade and Griswold-sort of funny how we didn't know we had that right until the 1950's.

Thomas, and most strict constructionists, don't swallow that pill, so your real beef is that you don't like how they view the constitution as it applies to the cases you like.

In reality I would say Roe was one of those cases where the justices knew the decision they wanted, and went looking for a way to get there.

when you say, "the 8th."

And I agree that it is somewhat ambiguous.  (Although I don't know how anyone can say whether than Amendment is any more ambiguous than, say, the 1st, 2nd, 4th, 5th, 9th, 10th, 11th, or 14th.)

And that has more to do with the limitations of language than it has to do with deliberate ambiguity.

However, using international law as a means of determining what is the original intent of the laws is not "within bounds." Much less "well within bounds."  

The two most important clues as to how the Constitution should be interpreted are: (1) the text itself, and (2) the intention of its original creators as revealed through documentary evidence.  I just hope that democratic politicians become more open about the fact that they think that international law should be used in interpreting the United States Constitution.  That would make it easier for voters to decide whom to vote for.

 has the Supreme Court overturned?

is not just an "ink blot" on the Constitution and it must be given some meaning and some application. Moreover in Lawrence O'Connor actually decided the case on Equal Protection grounds which was a more solid (and more limited) basis for the decision than the majority's reasoning. Remember, the Texas law did not apply equally to all citizens: the very same act committed by a man would not have been illegal if committed by a woman. If this case had dealt with anything other than a sex act (with, say, shoplifting for example) pretty much everyone here would agree that a law which criminalizes behavior based on gender alone would not pass constitutional muster.

Re: There isn't a specific constitutional right to privacy, you support the caselaw that says there is, because you like Roe v Wade and Griswold-sort of funny how we didn't know we had that right until the 1950's.

Um, we also didn't know that racial segregation was unconstitutional until the 1950s, and miscengenation laws were OK until 1969. Is the fact that previous generations have allowed an unbconstitutional injustice an argument that the future must be bound to do so as well?

To discover that the Ninth Amendment included a right to privacy, let alone a right to sodomy.

Some of the more ideologically intense folks here need to understand that the Constitution is not itself an idelogical document and that a truly good SCOTUS judge who goes by the Constitution will occasionally sign onto liberal decisions where the Constitution requires them. And certainly a judge who adheres to the Constitution will not be a rubber stamp for everything that the Administration may desire, nor that James Dobson demands. One reason I prefer Thomas to Scalia is that Thomas is more willing to go by the Constitution whereas Scalia wilfully departs from it when his own ideological filters determine that he should (as in the recent medical marijuana decison). Hence I would happy to see Thomas elevated to Chief Justice and would hope that Bush appoints someone with Rehnquist's devotion to federalism (but without a lot of ideological baggage) to the empty seat.

Is the fact that previous generations have allowed an unbconstitutional injustice an argument that the future must be bound to do so as well?

I think the argument is that such things are better changed through the acts of elected representatives than by unelected potentates discovering emanations and penumbras where there hadn't been any before.

Look up "Scalia" and "confrontation clause," before announcing that the fellow always follows his ideological preferences over his honest reading of the law.

the modern world would surprise the Founders. So what? Are we bound to live in the 18th century forever? But I do not think they would be in the least shocked at the notion of a "right to privacy". We know they believed in limited government and the in the primacy of the citizen over the state (You know, the business about "inaleinable rights"). But if you think that something as basic and simpel as a right to be left alone by the goverbnment is not implied in the Bill of Rights then exactly what does the 9th amendment mean? Or are you one of those who thinks the Founders had had a bit too much after dinner sherry when they drafted that one and we really needn't consider it at all?

And incidentally many of the Founders considered morals legislation an obsolete and medieval relic in the law, and they strove to get rid of such things at the state level wherever they could. Several new states, like Ohio, which had the luxury of starting their law codes from nothing did in fact get rid of sodomy laws and the like. It was the later Victorians which decided to bring back morals legsilations.

judicial review is as a check on the elected branches. The Founders were not fans of unchecked majoritarianism (AKA "Mob rule" in their parlance) and they put a number of such stoppers in the system they designed. Nor are judges unchecked themselves: they can be overriden by constitutional amendment after all.

in the womb a misscarriage of constitutional justice.

As a matter of fact I find this right to murder your child in the womb pretty tantamount to the Dredd Scott decision.

Maybe one of these days we will realize that there is a real human in there that has some right to live (granted this is a major hijack here, and probably deserves to be discussed elsewhere than this thread).

was in a limited "FEDERAL" government.

They believed the state had the right to determine things like sodomy laws or abortion for that matter.

to go by whatever the ACLU demands than Dobson.  I think the current make-up of the court is far more happy to head down the uber left wing, than the uber right wing.

And frankly I don't think you will ever see Thomas kowtow to the demands of any adminstration, he is going to let the constitution lead him to the decision.  Give more more Thomas' any day over the Ginsbergs (who I think is probably one of the worst justices on the court).

I believe that Griswold and most of its children are correct decisions. They place a firm check on the unbridled power of the state and as such a barrier against tyranny. For those who believe in limited government retain a certain suspicion of populist politics they reduce what the state can get away with. The right to privacy is not (at least ought not) be absolute. However for the state to trespass on rights there must be compelling cause-- very compelling cause, not just popular fear and prejudice. Roe vs Wade (which I am on record here as decrying before) is a bad decision because it ignores the existence of a very compelling cause: the life of the fetus. This is comparable to the error in Dred Scott. Yes, there is a right to property ownership too (although that is not explicit in the Constitution either), but teh application of that in Scott ignored the slave's righst entrirely as the fetus' rights were ignored in Roe.

I believe in both a right to life and a right to privacy (and in our other rights as well). There is nothing illogical or antithetical about such a stance.

has been quite middle of the road, and overall I am happy with it, though not all its decisions (e..g, the medical marijuana case, or the kowtowing to Roe). I would like to see its baby steps in the direction of federalism extended, but do not want to see it haring off in any dircetion, rightwards or leftwards. I want it to remain always a barrier to excess.

and I haven't seen much in a majority decision for a while that makes me feel all that giddy.  Just the fact that we have justices on the court who think it is acceptable to use foriegn law to interpret the constitution makes me cringe.

Maybe some of the decisions still to come this year will make me change my mind, but I won't hold my breath.

of what the Founders were about. They were first and foremost pragmatists. In creating the federal government they were very careful to create a structure that the states would accept and ratify. Hence the emphasis on federalism. However there is no trace whatsoever that they believed (as an abstract idea) that the states had any more business tyrannizing the citizens than the federal government did: hence their insistence that the states must have a "republican" form of government so that no state could set up a monarchy or aristocracy (then seen as the principle threats to the citizens' liberties). The rights they wrote into the Constitution were certainly not just seen as rights vis-à-vis the federal government even if that's how they had to play it in order to get the Constitution ratified. We know rather that the Founders believed in inalienable rights that were an inherent property of human beings, and those rights most certainly limited (in principle if not yet de jure) the power of the states as well as the powers of the federal government although the Constitution in 1789 (but no longer, after 1867) only enforced them on the federal government. Hence the argument over slavery, the Civil War and the Reconstruction amendments. And it is noteworthy that the Founders also worked at the state level to create state Bills of Rights and to get rid of established state churches and the like.

to tyranize their citizens, but do we really believe they thought sodomy laws were tyranny?

Do we really believe the founders believed that there should be a right to murder your child in the womb in the name of privacy?

Does every bad law actually have to involve a constitional violation-aren't some laws just bad laws?

Do we really believe the founders believed in the tyranny of the Federal courts?  Which is basically what I feel like I am living in now.

I feel strongly that states should be able to set the standards under which they want to live, and evey in your comments-the founders worked with the state in crafting their bill of rights, but at no point did any of them argue that the STates they had State relgions should have been prevented from doing so by the Supremem Court.

It's probably worse here... but that's one reason I'm leaving... that and the school I'm going to is not here.

Partial birth abortion ban.  Third trimester ban.  No one has even tried limiting to just rape, incest and life of the mother because they know it will get overturned.  In other words, the vast middle ground where most Americans are is off limits due to Roe: legal in cases of rape, incest, and life of the mother; illegal in cases of convenience.

At least not in regards to Lawrence.  

The reason that the Supremes struck down the Texas sodomy law is because it violated equal protection.

Had the law said that any sexual act consistent with homosexual behavior, be it by man and man or man and woman, was illegal then the court would not have been able to overturn, at least not with the very rational argument they made in this case.

Thomas' dissent about right to privacy was a red herring because the majority's opinion wasn't based on a right to privacy but on 14th Amendment grounds.

Just like Plessy, when fundamentally incorrect interpretations of the Constitution are substituted for the actual Constitution, they should be overturned.  

I would like to say that I appreciate your comments.    You seem to be a lot of thought into what you say and not simply accept ideology as being gospel.

Having said that I don't agree with you regarding Thomas.  Every time that I have read a Thomas dissent it is almost INVARIABLY in support of basic Conservative ideology.  He seems to scoff at the 14th in many cases, which apparently doesn't qualify in his view of strict constructionism.

I don't believe that our justices should be automatons who look at the original text and only pass judgement in situations where the Constitution is clearly defined.

kowtowing to the liberal political agenda-and looking for law to support the decision they want to make, but we have more of those than we do Thomas.  

Honestly do you think Ginsberg is right, and that we should use international law to interpret the US constition?  Is that the direction you want the court to take?

Just the fact that we have justices on the court who think it is acceptable to use foriegn law to interpret the constitution makes me cringe.

Why exactly is this so bad?  Our system of government was based on several "international" standards of law.  The framers certainly treated International standards as a relevant consideration.

I would also like to know what you are talking about specifically.  If you are talking about the juvenille death penalty ruling then I think it is misleading to say that Kennedy was using foreign law to interpret the Constitution.  He was pretty clear that he took into CONSIDERATION international STANDARDS.  He took into consideration that the only other nations in the world with juvenille death penalties were nation's that we generally find to be atrocious nations from a civil rights perspective(Saudi Arabia, Syria, China)

because I don't know the context.

In the context of the 8th Amendment it is reasonable because the 8th Amendment is both vague and fluid.   The standards for cruel and unusual are most certainly different today than they were 200 years ago.

Since case law isn't really helpful in this specific matter the Supremes need to use OTHER sources of authority to come up with a interpretation.  

And I completely agree.  Bad case law is bad case law.

However the waters get muddied when discussing definitions.  What the Welfare clause means or what the Commerce clause means is pretty subjective.  In that case you need to rely on past case law to build a defensible interpretation of these clauses.  

You can disagree with with teh 1937 rulings which are the foundation for the current definition of the welfare clause.  However your disagreement is based on personal preference and not on sound judicial review because no one can really say what the framers meant with the welfare clause.

Because the US constitution, founders intentions and US law should be what interprets whether new law is constitutional or not, not what the Brits, France or some other country believes.  

Ginsberg is on record as saying she thinks we should use international law and perspectives, when making a judicial decision (sorry but I don't want a judicial decision made because the population of France thinks something is great).  Also, once we head down this road, where does it end?  And who exactly gets to pick which international laws/opinions get to apply?  Take issues regarding homosexuals-do we only consider Eurpean law and opinion, or should we say, see what Saudi Arabia says about it?  I think this is a can or worms that shouldn't be opened, and dumped into the US legal review proccess.

If we want to consider what France is doing, then we should be debating and considering at the legislative level, not at the Supreme Court level.

Here are some links on Ginsberg's statements (I just went down the list with google, there are more pages):

http://talkleft.com/new_archives/003338.html (there is a link to the article the quotes came from, but I can't get it to load)

http://www.albertmohler.com/blog_print.php?id=29

http://www.affbrainwash.com/archives/007871.php

http://www.danegerus.com/weblog/Comments.asp?svComment=9708

Ginsberg isn't the only one on the Supreme Court with this opinion, although she is the most outspoken, and probably the most radical on it.

About the only case where I can see using international law is when using a treaty that the US is actually a party to, and the treaty is germaine to the case.

But those links are less than impressive.  Very agenda driven pieces.  

In one link(dangerus) the deceptively use a Hamilton quote about general foreign influence as an argument against using international law as a reference.

In another they(aff) imply that the Lawrence decision was based on foreign law which it clearly is not.  

We have 10 years of Ginsburg rulings to work off on. Can't you provide any examples of this in a majority or dissenting opinion?  Why bring up a speech she gave to the American Society of International Law?  Does it really shock ANYONE that she would speak positively about International Law with this gang?

Your fears of foreign law dictating US law are extremely overblown.  They are not, have not, and will not.  Foreign law is not controlling, beyond the limited exceptions through treaty obligations.  Foreign law is "persuasive," in the legal sense, in the same fashion that Indiana law is "persuasive" regarding a parallel situation in Kentucky law.  The meaning of persuasive here does not mean it actually persuades, or is even persuasive in the normal sense, merely that it can be used to persuade but not compel.

Is that those persuasive bits become binding indirectly. Thus, in a case reviewing, oh, I dunno, the death penalty as applied to say, rape cases, the Supreme Court takes as persuasive (and for clarity, Gengis is right, not binding, just advisory) legal decisions by European countries and, for a soupcon of fun, one Latin American Country.

In a completely surprising turn of events, the laws they've cherry-picked accord with their ideological instincts nicely.

So these justices (Scalia, J., and Thomas, J., dissenting) decide that yes, the Europeans (and the one Latin American state) are right, it is indeed cruel and unusual to apply the death penalty to rape cases. They hold, as a matter of law, etc.

The effect is that the European view of the universe, on this aspect of law, is now the American law on the topic.

But more importantly, in making that holding, the Court makes binding precedent of foreign law that can be and invariably will be cited in other, only slightly related cases. As a result, the law is now bound in the warp and woof of a whole host of American laws by accretion.

That's the danger. It's not that the EU Human Rights Commission is going to set up shop in Austin (though I concede that would dovetail with a lot of my plans quite well). It's that law never desired, and expressly rejected, by Americans, becomes the law by accumulation.

That moves us back into the cratered and trenched realm of how judges ascertain the meaning of law, which we have covered numerous times.  Does the term cruel and unusual link exclusively to what would have been cruel and unusual back in 1789, or does what we find cruel and unusual now suffice?  Yeah, we disagree on that, and it's an honorable disagreement.  But that really doesn't change whether or not foreign law can be used to assist a judge with understanding a legal concept - in the case of new inventions (internet, i.e) or drastic changes of circumstance not envisioned in 1789 (aircraft, i.e.) even Justice Thomas might find it useful to examine how France does things, if only to support arguments to do it a different way.

First, I don't think cruel and unusual is "what was cruel and unusual in 1789." I think it's "what the words cruel and unusual meant in 1789." There's a difference of some import there.

Second, were we dealing with brand new things, I'd give all sorts of slack to judges grappling with foreign jurisdictions to determine the appropriate response. But we're not. We're dealing with old problems, and the solutions to those problems should come first and foremost from Americans.

Take the death penalty. It has broad support in this country. But those Belgians and their assorted hangers on have decided -- despite the wishes of their populations -- that it is simply beyond the pale. Yet another challenge goes up to the Supreme Court asserting that the death penalty violates Number Eight. The correct response, if cert must be granted, is to determine whether Americans view it as cruel and unusual. The danger is that the Court looks to what a bunch of other unelected (and in fairness, elected) yutzes who've never had to respond to an American voter have to think, and voila! no death penalty.

So: New and novel, I'm better with it. Old and American: No way.

Third, as lawyers, it is our job to analogize. While I'm not precisely impressed with the current makeup of the Court, they're capable of analogizing between what existed at a certain time and what exists now. I'm not persuaded of the need to look at foreign precedent.

As a final note, I like that "cratered and trenched" thing.

But is it the role of SCOTUS to determine the will of the people on a particular matter?

Seems to me that is the role of our Legislature and if the will of the people is that strong they have an avenue to address the problem, the Amendment process.

FTR, I'm not advocating that the SCOTUS should abolish the death penatlry.  I'm merely saying that their decision shouldn't take the will of the people into account necessarily.

Perhaps I'm misreading your legal school of thought, but the Court should determine what cruel and unusual means by what modern Americans think it means?  Or did you mean something else?

What they should do is take the term of art "cruel and unusual" as it was understood at the time of drafting, and apply it to any punishment before them.

Honestly, this isn't my area of expertise. I simply know that what they're doing now ain't what they're supposed to -- "evolving standards of decency" is merely a way of saying "what lawyers, judges, and law professors like."

What is cruel and unusual in the United States is almost invariably the result of the democratic decisions of the people of the United States.

But you're conflating -- in the larger scale -- the "will of the people" with "American law." There are gaps.

But the will of the people is not always the proper course.  The most obvious example, of course, is Brown V Board of Ed but other examples exist as well.  

Shouldn't the court be the last defense against the tyranny of the majority?  If not them then who?  

Certainly American law is not a direct reflection of the will of the people but it is a pretty close approximation.

(1) Sure. And Roe is an example of what happens when the Court veers off on its own and ignores popular opinion. Thirty years later, abortion is the root of half of our politics, at least. Great work there, guys.

(2) If they do their job -- which, given today's takings decision, they seem incapable of doing -- then the rest will fall into place.

(2a) I'd say "The Senate" and "The President," but the freaking Progressives neutered their ability to do their jobs right.

(3) Judicial law is at best a highly imperfect reflection of popular will.

look to Belgium for answers on the death penalty, what is to stop us from looking to Egypt or Pakistan, or China?  If what others abroad should matter, then a justice can easily cherry pick the international opinion that best suits their needs, and discard the rest.  

am no fan of Roe.  Not good law at all.

Could you expand on why you think the Progressives have neutered the Senate and President?

What they should do is take the term of art "cruel and unusual" as it was understood at the time of drafting, and apply it to any punishment before them.

The court should determine the answer in this way.

That doesn't mean standards can't evolve, but they should evolve through the legislature.  If the citizens of a State decide that capital punishment is wrong, then they vote on representatives, who in turn vote to abolish that punishment.  But because those citizens decided the case that way, that doesn't mean that the Supreme Court should then decide that it is now unconstitutional.  If people in other states agree with the move in the first state, then they do the same thing and advocate change through the legislature, not through the courts.

Indirect representation has all sorts of faults, but slavish obedience to the Will of the People is not among them.

Re: I would agree that they didn't want the States to tyranize their citizens, but do we really believe they thought sodomy laws were tyranny?

The Founders were not gods, and we ought not be limited by their non-constititional opinions and prejudices. What they thought about sodomy is completely irrelevant. They may have held a horror of it. So what? Many (all?) of them also believed that Blacks were inferior to whites, that women ought have no role in the public square, that Catholicism was a dangerous cult and so forth.  To the extent that they wrote something explicitly in the Constitution (as they wrote slavery into it, to our nation's eventual shame and sorrow) we are indeed bound to their opinions unless we overturn them de jure with a constitutional amendment. But when it comes to say, sodomy, or race relations or the Roman Catholic religion we are most certainly not bound to follow their opinions or to interpret the Constitution in such a light.

 But yet, it's their fault your elected officials don't have the will to write the legislation.

 Nope, not convincing.

If Dred Scott had been decided differently by a hypothetical abolitonist majority insisting that Blacks are human and have inalienable rights too, and if in deciding thus, that Court had cited the British aboliton of slavery in 1837, and appealed to laws in France, Russia even Ottoman Turkey, would your reaction be so aghast over importing foreign laws into the US?

Or perhaps this: if Roe vs Wade is overturned with a citation of the personhood of the fetus, and the decision were to referrence, say, the works of Thomas Aquinas or even modern day pronouncements from the Vatican and perhaps the laws of the Republic of Germany, how then would you feel about "foreign" citations?

Re: Does the term cruel and unusual link exclusively to what would have been cruel and unusual back in 1789, or does what we find cruel and unusual now suffice?

And if it does apply only to what was "cruel and unusual" in 1789, then how can we answer an argument that the 2nd amendment applies only to those "arms" in existence in that year, and the 1st amendment only to those forms of the press then existent (not to TV, blogs etc.) and maybe only to those churches that had been founded by that time?

The President was still selected by the Electoral College and there has been no change in that mechanism since the early 1800s (when it was amended slightly to prevent a repeat of the disputed election of 1800). See the election of 2000 and rest assured that the Founders' system of presidential selection is still intact.

intent of the founders that the state legislature was also supposed to choose the electors?

Although, how electors get elected has always been up to each state to determine, and wasn't set by the constitution.

It is telling that there is a large movement of people (mostly from liberals, but that may be as much a reflection of close losses as politics) to eliminate the electoral college and have a direct popular vote to elect the president.

I would rather leave international law out of it.

I do not think it is a good idea to use international law to determine decisions regarding US law, even if that leads to a bad decision.

Granted those are two hypotheticals, and the courts did not appeal to international law, so it is fairly moot.

State legislatures still pick electors? This is assuredly news to me.

Would I giggle with glee if Roe were reversed because the personhood of the fetus was suddenly obvious to the nine unelected lawyers? You betcha. I'm honest enough to admit that. Would I be disturbed that foreign sources of law and philosophical or theological musings were the basis? Again, you betcha. The right result can be achieved through the wrong means; the Court has simply decided to start being wrong in means and end.

Truthfully, if instead of making up substantive due process, the Dred Scott court had played cute with foreign law, I and every other reactionary would have the same response we have to substantive due process: Disgust and contempt, but certainty that we're stuck with it.

requires that state legislatures pick electors. The states were left entirely free to determine how to perform this task, with the legislature being the ultimate authority as to how it should be done*. An indeed, quite early on, long before the progressive era, indeed, long before the Civil War, electors were allotted by public vote, and this was largely with the blessing of the founders who lived long enough to witness it.

* For which reason I wish SCOTUS had declined to hear Bush vs Gore and left Florida and its legislature to resolve the matter instead. The result would have been the same but we would not now have a dangerous precedent for judicial meddling in federal elections where the Founders plainly intended the authority to lie with the states.

I understand now. Remember that it's bad enough to be wrong.  It's worse to be incomprehensible.

I did say that the offices were made direct election. And that this is a bad thing.

And I believe some of the legislatures still picked electors in the late 19th Century.

Remember how the Constitution sets out a fairly high hurdle for amending it?

Well, the Supreme Court in the 1930's found a way around that by just creating constitutional amendments by judicial fiat.

Like the "freedom of contract" amendment.

The constitution doesn't give Americans an unqualified freedom of contract that makes minimum wage laws unconstitutional.  But the Supreme Court created that amendment.  (And later adjusted their amendment several times to the point where it is now something of a historical footnote.)

Then we have the "substantive due process" amendment that says that the states can't keep married people from using birth control.  Later amended by the Supreme Court to give everyone the right to birth control.  Then amended in Roe to give all women an unqualified right to an abortion during the first trimester.  And a qualified right during the second trimester.

Roe is one of the worst exercises of judicial activism since the 1930's.  If Blackmun and Brennan and Douglas and the others didn't like the way democracy works, they should say so in dicta.  They had no right to create a new law from the bench and then require states to obey their dictates.

Then you have last year's amendment to the Constitution guaranteeing a right to sodomy for all Americans.

The Supreme Court needs to start reading the Constitution and stop re-writing it.

I know that this is the way that the media has been phrasing it ever since the Supreme Court's decision on the matter.  But rest assured: no juvenile has been executed in the history of the United States.

What the Supreme Court banned was the execution of adults who committed murder before their 18th birthday.  In many of the big cities today, teenage gangbangers are killing people regularly.

Many of the these gangbangers have already been arrested and book before they commit murder.  Life is becoming increasingly disposable.  It has more to do with the way that juvenile offenders are treated by the justice system than it has to do with abortion policy or any of the other bogeymen.

When it comes to misdemeanors like petty theft and vandalism, I think that the goal should still be rehabilitation of juveniles.

But when a juvenile shoots and kills someone, that juvenile has crossed the line.  The kid in Florida that killed that little girl and got 2 measly years in prison is an example of what's wrong with the system.  He just got locked up for robbery.

He didn't deserve the death penalty (he was 12 when he killed the girl).  But they should've locked him up for at least 15-20 years.

The little girl is still cold in her grave and he's running around committing more crimes.

My point: the Supreme Court did not ban the "execution of juveniles" it banned the "execution of adults who were under 18 when they committed murder."

Texas' law.  It said that none of the 50 states may have an anti-sodomy law.  Even if that anti-sodomy law doesn't single out same-sex sodomy.

You show me where in the Constitution that the right to practice sodomy is a fundamental right.

Freedom of speech? Hmmm, that's too much of a reach.

The right to keep and bear arms?  I'm not even going to touch that one.

Free exercise of religion?  That's a mighty interesting religion.  The Church of Sodomy?  (If this actually exists, please don't tell me about it.)

but small on content.

I asked you already how O'Connor's ruling was amending the Constitution.  You didn't answer.  I'll ask again.  How does the equal protection clause NOT cover the Texas sodomy law?  Please explain.

And your comments on Lochner are all well and good but Lochner has been dismissed as bad law for decades.  

I'm surprised you oppose Lochner.

I'm opposed to the federal government pushing a minimum wage onto every American business, but if it happens, the Court must respect that and back off.

Now I'm going to give you the equal protection clause of the Fourteenth Amendment, and you can show me where it says that everyone has a right to practice sodomy:

"nor [shall any State] deny to any person within its jurisidiction the equal protection of the laws"

If everyone in the state is barred from practicing sodomy, how are they being denied the equal protection of the laws?

This is not merely rhetoric.  This is sound constitutional reasoning.  If you can make a coherent argument for a fundamental right to sodomy, then go for it.  Remember, the Supreme Court did not just invalidate Texas' law.  It prohibited any state from banning any and all types of sodomy.  The equal protection clause does not prohibit a ban on sodomy.

Touche.

It applied only to man and man sexual relations.   If a man and woman were to perform the EXACT SAME ACT it would be considered legal.  Here is what O'Connor said....

The statute at issue here makes sodomy a crime only if a person "engages in deviate sexual intercourse with another individual of the same sex." Tex. Penal Code Ann. §21.06(a) (2003). Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by §21.06.

The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct--and only that conduct--subject to criminal sanction. It appears that prosecutions under Texas's penal code are rare.

O'Connor clearly states that had the law applied to ALL people it would have been but since it applied only to a specific group of people it was Unconstitutional.

majority in banning all anti-sodomy laws nationwide.  

Surely the intent of the law should be taken into consideration.  Was the intent of the Fourteenth Amendment to create a fundamental right to sodomy?  Or did it have something to do with assuring voting and property rights for African Americans?

You pick.  And if you want to try to argue that the intent of the law doesn't matter, remember that's going to come back to bite you when we move on to the 2nd Amendment, which, by its plain text guarantees that the people have the absolute right to keep and bear whatever weapons they choose.

Just give up.  You're not going to make a convincing case for O'Connor being a conservative.  Conservatives don't rely on phantom clauses for their decisions.  (Or, rather, they haven't since the '30's.)

So since you want to strip the 14th Amendment of virtually ALL of it's meaning that means that anyone who disagrees must accept the 2nd Amendment to be defined in the broadest way possible.  

O'Connor didn't outlaw sodomy laws.  She concurred on a ruling that outlawed sodomy laws SPECIFICALLY directed at homosexuals.  Had the law been directed at all people then her argument would have been moot.

Stick to rhetoric because you arguments are pretty weak.

and it's the state legislatures who are in effect amending the Constitution by granting themselves the power to abridge the liberties "retained by the people"?

My own bias is quite simple here: the liberty of the people is primary, and absent compelling cause or explicit permit in the Constitution itself the state (whether the federal government, a state government or any local government) may not trespass on that.

I realize that the notion of limited government is fast becoming as quaint and old-fashioned as knee stockings and powdered wigs, but anyone else here maybe want to look at liberty in that light instead of following the Big Brother meme of "You only have rights the government grants you"?

did not say that there is a right to sodomy. It said that the state has no right to ban it-- a small difference in words, but a very, very big difference in governing philosophy.

popular voting for the presidential elector slate (which is technically what we do) began very early in the 19th century (in Vermont from its statehood on). To be sure, the electorate was much more restricted than it is now: only white males and in most states until the 1830s, only property owners. Some states may have lagged behind in this, but certainly by the mid 19th century they were all doing it that way. This was a Jefferson-Jacksonian era reform not a Progressive era change.

But I'll have to research it to be sure.

Which doesn't surprise me.

If Justice O'Connor was trying to say that only Texas' laws violated the 14th amendment, then she would not have concurred in a ruling which took away the right of all 50 states to have any type of anti-sodomy laws.  A ruling that required the majority to rely on international law as no right to sodomy could be found in the U.S. Constitution.

If you're going to continue this ridiculous line of argument, you must first show me where in the majority's ruling it says that only Texas' anti-sodomy law was unconstitutional.  If not, you can either quit wasting my time or find yourself in troll-hell for being nothing more than a nuisance.

Look, I'm sure you'll find support for your views on dKos.  Don't expect people here to accept your liberal interpretation of the 14th Amendment.  You're not making any headway with me or anyone else who posts here.

Also, you conveniently forgot to address how O'Connor's rulings favoring governmental racial discrimination (in Grutter), and governmental seizure of private property rights without compensation (in the Lake Tahoe case) justify your perception of her as a non-liberal.

I'm sure you were thinking that your best hope of making O'Conner look sensible was her concurring opinion in Lawrence v. Texas, but since you seem to be running around in circles there, maybe you should try building a case for her on some of her other controversial rulings where she enabled the liberal bloc of the court to allow racial discrimination and violation of property owners' rights.

Why is referencing International Law so heinous?

~Dani

(just stirring)

There is a method specified by the Founders for incorporating foreign governments' opinions on matters of law into US law.

It is not by allowing the Supreme Court to read International Law journals.  If a justice wishes to reference the opinion of an foreign government he should refer to the specific treaty, approved by the Senate, which incorporates it into US law.

RI did away with property qualifications for voting just ahead of FDR's coming after the state legislature with a big sack of acronyms.

...if something is "unusual" without looking around

to see what is usual?  The text is plain that anything both cruel and unusual is prohibited.  And "unusual" is both an evolving standard and

a relative  one that requires loooking at what others are doing. Surely the framers understood that? How do you propose that the Supreme Court judge what is an unusual punishment and what is not without looking around at the rest of world to see what is usual?

However, using international law as a means of determining what is the original intent of the laws is not "within bounds." Much less "well within bounds."  

So what did they mean by "unusual"?

"If Justice O'Connor was trying to say that only Texas' laws violated the 14th amendment, then she would not have concurred in a ruling which took away the right of all 50 states to have any type of anti-sodomy laws."

I just read the entire opinion and I couldn't find that in it. Care to help me out?  

And Justice O'Connor wasn't just trying to say that - she did say it. Quite explicitly. Quoting from her concurrence:

 The statute at issue here makes sodomy a crime only if a person "engages in deviate sexual intercourse with another individual of the same sex." Tex. Penal Code Ann. §21.06(a) (2003). Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by §21.06.

     The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct--and only that conduct--subject to criminal sanction

Actually what the founder fathers believed

was in a limited "FEDERAL" government.

They believed the state had the right to determine things like sodomy laws or abortion for that matter.

..on that particular point the framers' intent is irrelevant. It's trumped by the (duly passed) Fourteenth Amendment - which explicitly subjected state governments to the same limits the founders intended only for the federal.

Do you believe that original intent should even trump a duly-passed amendment?

Rhode Island was the last state in the North to eliminate property qualifications for voting; it wasn't until 1928 that the threshold of owning at least $134 of taxable property was abolished as a requirement for voting in city elections.

http://www.projo.com/news/content/projo_20040329_women29.a2812.html