Redstate

and Chuckie is going to end up pouting in a corner while he casts his no vote.

Chuckie can obviously ask his questions, but Roberts is under no obligation to answer them, and I think Roberts will well understand this.

Whether he will answer the questions in a manner satisfactory to Chuck Schumer is another matter.  

Schumer's demands are not exactly scandalous.  And when Roberts dodges and weaves through the Roe minefield no one will be terribly surprised.

I see Roberts getting something like 80-90 votes although if the Democrats were smart they would unanimously vote yeah on his confirmation.   Roberts was one of the most palatable options they could hope for.  Instead of spending ANY political capital they should vote in favor of him and gain some politcal goodwill that could be used for the next potential nomination battle.

"I don't have to answer that question" an answer, then I'll agree that he DOES have to answer the questions.

Just you watch, flyerhawk. You've shown an amazing propensity for lasting at this site, when I orginally gave you about two days, which means that as much as I hate to admit it, you're smarter (or at least more clever) than most of your Kossack colleagues.

But I guarantee you that when the confirmation hearings go on TV, and every other answer Roberts gives is "No comment," we are gonna get positively deluded over here with snarky comments from your brethren demanding to know how we can defend a guy who won't answer simple questions.

I would make the exact same bet.

He is going to get villified for not answering the questions, when he really doesn't have to-at least not the way Chuckie wants him to.

I agree the expecting a nominee to speculate on how they'd judge in the future -- and feigning outrage when they refuse -- is ridiculous. Most decisions handed down by the Court deal not with broad political issues but narrowly defined interpretations of law. So, since the Court deals with issues case-by-case (duh) as defined by the case's exact details and merits, questions about hypothetical cases are too simplistic to deserve speculatory answers.

But what do you (or anyone) think about questions seeking to illuminate either the few judgements by Roberts while he's sat on the CC bench or what he thought of past decisions by the SCOTUS? Would you accept as valid one or both of those lines of questioning?

PS: I'm fully aware that the latter -- seeking an opinion on past SCOTUS judgements -- can quickly become tedious. That would be an annoyance for your side but I'm wondering if in principle you'd (or anyone here would) be ok with it.

The partisans will absolutely go crazy.  They will say things like "Chuck Schumer claims to be tough but he's a wimp.  How bout getting this guy stop lying about his positions and answer the questions".   I would be stunned if that didn't happen.  

But in the end the Democrats are going to nominate the guy.  They'll throw a little red meat to the pack.  Grill him about Roe a little.  He won't give anything CLOSE to a real answer.  They'll harass him about his position papers for the Bush I administation.  He'll say that he was just doing his job.  And in the end the Democrats will harumph and grumble and vote yeah because they know he is the best choice they could expect to get.

In truth I don't believe he should be required to give answers on his views on social issues UNLESS he wrote specific things about them.  This is why Janice Brown is unconfirmable.  Her writings about the 37 expansion of the Commerce Clause are so outrageous that the Democrats would crucify her.  They wouldn't even need to bring out the filibuster for her.

Asking about past SCOTUS decisions is not really appropriate because no opinion is immutable.  We're still talking about Roe over 30 years later.  Every time an abortion related case comes up there are hints of Roe and the idea is out there that Roe could go away.

Robert Jackson was nominated in 1941, when Plessy was still the law of the land (and over 40 years old).  Would it have been proper to ask him about it?  No.  Because the question of segregated accomodations could always arise again.  And because the Supreme Court is only as bound by its past decisions as it wants to be.

So unless we really believe that an issue is never going to come up again, we shouldn't be discussing specific cases and issues.  And if it's never going to arise again, what's the point of discussing it?

Asking him questions about his opinions is unlikely to do much.  He has written only 40 opinions or so.   More importantly he has written only 3 dissenting opinions, if I read correctly.  Unless he was on some seriously controversial cases it is unlikely that there is going to be much there for him.

Asking about past opinions won't yield much because he will generally defer to almost any case and say something like "I believe that the Court used sound judgement in that ruling"  Doesn't mean he wouldn't tear it down but any future challenges to existing precedent must be, by definition,  different in context than the previous case.

Even if he believed that Kelo was the wrong decision  he would never see a case with the same conditions as Kelo.   He may see something that is similar but it must be different enough that the appeals could make it through the appeals process.  Unless we are talking about State election laws in which case the Supreme Court can take the case whenever it wants.*

*- Rimshot for Martin Knight if he's reading this.  :)

Yes, you're right. Though I'm asking if his past decisions while on the CC bench -- small in number as they are -- are in principle admissible in questioning, not if they'd be particularly enlightening.

And yeah, asking him about past SCOTUS decisions is almost as useless as asking him about hypothetical ones. However I think it's fair to see where he'd come down on those since he presumably knows most of the facts and it'd be a fair indicator of his understanding of the law (though I recognize this really isn't in doubt) and his general judicial philosophy as based on reality and not hypothetical.

Basically people here no a lot more about Ginsberg's confirmation process than I. And so I want to see what sort of questions Republicans asked then and what sort of questions are preferable from Democrats now. Leon excluded the category of broad hypothetical speculation, and I wanted to see how he (and others) felt about two additional categories.

the Dems could ask is about a ruling I referenced a couple of posts ago in one of these threads.

It might not be a bad idea for the Democrats to ask Roberts about Bush v Gore.  It's not a case that is likely to be brought forth in front of the SCOTUS again.  It doesn't have much real heft to it.  But it does have the potential for quite a bit of zing value.

Because there is always the question of whether some of his recent opinions (and they are all recent) will actually come up before the court.

That said, I can see him answering at least a few questions about the notorious "french fry" case, however.

why SCOTUS nominees didn't even come before the committee to answer questions until 1955, and all such hearings since have been ridiculous sideshows, most notably the Bork confirmations.

Since the dems* knew Bork was a solid conservative, but couldn't force him to say it, they instead resulted to throwing personal garbage at him. It was all just an excuse to sabotage someone they ideologically hated, and that's all the confirmation hearings have been since.

*For the purposes of this and all other Leon H posts, Arlen Specter shall be considered a Democrat.

1.  Do you believe it is appropriate to consult international law in interpreting the Constitution?
   
2.  Do you believe that, as a Supreme Court justice, you are free to overturn any precedent you believe was wrongly decided?
   
3.  Do you believe that legislative history and debate is useful in statutory interpretation, or do you not believe in going beyond the plain text?

If the french fry case is the worst they have then they shouldn't even bother.  

BTW, did you see Moveon's opposition statement about  Roberts?  It is so pathetic it's amusing....

In nominating John Roberts, the president has chosen a right wing corporate lawyer and ideologue for the nation's highest court instead of a judge who would protect the rights of the American people. Working for mining companies, Roberts opposed clean air rules and worked to help coal companies strip-mine mountaintops. He worked with Ken Starr (yes, that Ken Starr), and tried to keep Congress from defending the Voting Rights Act. He wrote that Roe v. Wade should be "overruled," and as a lawyer argued (and won) the case that stopped some doctors from even discussing abortion. That's why we believe:

This is almost completely devoid of anything meaningful.  I'm not much of a fan of MoveOn but they usually have more meat than this.

Although I would rephrase the 2nd clause in question #3 to be an affirmative question.

But they look fine to me. However, if you will look back to the 2003 confirmation hearings that got Chuckie all lathered up, he was asking about specific cases (Miranda, Roe, etc.)

If the french fry case is the worst they have then they shouldn't even bother.

Whaddya wanna bet they do, anyway?

Unless a bunch of Republicans go crazy.  But he will be confirmed, one way or another.

The question at hand is how silly will the Democrats allow themselves to look while attempting to appear to be putting up a fight while recognizing they are essentially powerless.

........there's no reason they couldn't ask him about his own Corcuit opinions.  Any case on which he sat at the Circuit Court level that came up to SCOTUS would require him to recuse.  He cannot participate in a case where he was one of the judges at the Circuit level.  That would be more flagrant than Scalia's pledge case speech.

The biggest problem with politicians is that they lose control of themselves when the red light comes on and they start to get national exposure.  

They KNOW what the proper strategy is.  However that won't stop them from banging the shoe.  Politicians love to provide good theatre.

They'd be winning more elections! Ba-dum-dum! No, seriously folks . . .

That's exactly right. If they were smart, they would go on record with reservations and concerns and deep regret he isn't in the mold of Sandra Day but, honoring the traditions of this great institution, blah blah blah, we all vote "yes", because we are reaching out and crossing party lines. We're just good guys!

Then, one the next one, they could point to that while nuking the next nominee. But Schumer and others, and the special interests like NARAL and Alliance for Justice, have already started the attack. So, they're going to all start spending political capital right now.

mostly because they address judicial philosophy more than specific cases, and I think to some degree philosophy may be fair game.

But overall my feeling is that if a person is qualified, they shoul be confirmed.

would attack Gandhi.  Doesn't matter who Bush appoints the interest groups will attack the nominee.  That's their job.  So far the attacks have been pretty lackluster but we'll see what happens when the confirmation begins.

interest groups to go nutty -- that's always true on both sides of the moat.  I second flyerhawk, there will be some grilling, Schumer might end up looking a little nutty but by and large I expect a generally uneventful confirmation and 80+ votes in favor.

The caveat would be something questionable coming out on the personal side which seems unlikely.

Jeeze! I hate stuff like that. MoveOn is showing its roots.

It's also a sign of impatience to take action. They can't wait to develop a substantive objection, or a reasoned objection. So they shoot first, ask questions later.

forth the interest groups are going to turn them into Satan's long lost brother.

I do think that most reasonable people can seperate the interest groups from the politicians so if the politicians were actually to do the "He isn't what we hoped for but blah blah blah" thing they could go a lot further than letting Chuckie and Teddy pretend like he is not quite Satan's long lost brother, but maybe his cousin.

Yes, I suppose that's true. Would you feel safe with a right-wing zealot like Ghandi on the court? Send out this pre-formatted email that will be real effective right now!

I think there is some debate as to what good strategy is. Many on the left, and in the Democratic party, seem to think a more conciliatory, John McCain approach is best, while many, many others seem to think the Republicans have gotten all this electoral mileage out of Ken Starr and impeachment, so that's what they need to be doing, only more so!

Also, to be fair, Bork was Borked. A lot of the highly negative, highly partisan rhetoric accomplished the goals in the past. I just think circumstances have changed, and not all the strategies have. I'm not sure it's temptation for theater, but rather an unwillingness to accept, or at least agree, on the best political strategy.

That is the great open-ended question. I'd rephrase to make it more general - maybe - Could you discuss how you analyze precedent, particularly in a case where two precedents conflict and you must overturn one of them.

I think and hope we may be getting to an unstated set of universal questions (open-book exam) for any and all nominees. It would give us a compare and contrast which would be much more useful than watching a nominee maintain decorum in front of a (insert insults here) committee member

ended questions would hopefully reduce the grandstanding, which in reality is what these hearings tend to turn into.

A bunch of self centered senators beating up on one lone nominee.

Both parties do it, when it is somebody they don't like in the hot seat, and it just makes the whole thing look awful.

If I was a Senator, I would ask:

"What questions about your judicial philosophy and moral beliefs did President Bush ask you during your two personal meetings?  Did you answer those questions fully and without evasion?"

In deciding whether Judge Roberts is acceptable, the Senate and the American people should get the same amount of information that President Bush recieved when he made the same decision.

If not, why?  What is Judge Roberts hiding that he wanted to share with the President?

(them being the candidates he interviewed in consideration) about those issues-at least not specifically.  I should hope Bush asked a bit about judicial philosophy.

But the WH has stated Bush didn't discuss Roe or other specific cases or beliefs with Roberts-Bush said he didn't think it would be proper.

Now the big question is whether or not anyone believes it.

But he'll answer that the President is best suited to answer those questions and he cannot speak for the POTUS.

Maybe they'll ask if Karl (PBUH) Rove was involved too?

Maybe we should start a Rove question pool to see who first slips in a mention of his name under, I dunno, an executive privilege query.

Before they are even asked?

How about this one: We ask him to answer every question to the best of his ability.

What's so crazy about that?

This blog has lost my interest.

t.h.

Don't come back now, y'hear?

Roberts has been appointed by the President and if the Senate consents to the appointment, he will become an Associate Justice of the Supreme Court.  There isn't any Constitutional requirement that he answer any questions.  There isn't even any Constitutional requirement that he appear before the Senate.

My prediction is that he will answer those questions he feels he must answer to secure Senate approval.  What questions he will decide he must answer and how he decides he will answer the questions he does answer are matters that are in flux right now.

The Democrats do not have philosophies, they have constituencies.  

There has been an ongoing argument for seventy years concerning the rules we live by.  One argument is that the rules we live by are the laws that are the products of the state and national legislatures, as described in the Constitution.  If a particular view becomes sufficiently prevalent, it may be incorporated into the Constitution as an Amendment (Slavery Abolished, Women's Suffrage are examples).  

The other argument is that five Supremes can create rules.  Virtually all changes implemented by the Supremes (almost always by a 5-4 majority) are based on the Equal Protection clause of the Fourteenth Amendment.  The fifth paragraph of amendment XIV states that, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article", but in practice, the Supremes work overtime to impose new rules based on emanations, penumbras, foreign law, and miasmata.

Thirty years ago, this argument gained a focal point: the Wade versus Roe ruling on abortion.  But since this was an imposed ruling lacking national consensus, there has been constant conflict, including murder and bombings.  Abortion was available before Roe vs. Wade, more so in some states than in others, but the effect of the Supremes imposing Roe vs. Wade was to cast the conflict in concrete.  

How long has it been since there was a serious controversy over, say, Women's Suffrage?  Both the status of women and the status of blacks have improved steadily, if not perfectly, given the relevant Amendments to the Constitution and the development, over time, of iimplementing laws and regulations.

The conflict over Roe vs. Wade has just changed, but very few have noticed.  The Liberal Democratic position on abortion was a serious negative for the Democrats in 2004, and the Democratic Party has been backpedaling furiously, while trying not to make it too obvious.  Senator Clinton raised some comments when she suddenly rediscovered her concerns about abortion, and explicitly stated that zero abortions is the ideal.  That is a radical shift by Ms. Clinton, but, hey, a lady has to get elected, right?

The rest of the Democratic leadership reads the same polls that Hillary reads, but the constituencies don't read polls, secure in the absolute knowledge that they are right, even if they are left, and wrong.  The pro-abortion constituency contributes a lot of money and manpower to the Democratic Party, and you don't want to upset your supporters, now do you?

So, there will be much sound and fury over the nomination of Judge Roberts, but it will signify nothing, since the Democrats read the same polls Hillary reads.  For the Democrats, the trick will be to keep a lid on the constituencies, while abandoning Liberal positions and approving Judge Roberts.  

And the other constituencies?  Since the Republicans picked up votes among all ethnic groups in 2004, and the Labor movement appears to be fragmenting, this will be a neat trick if the Dems can pull it off.

5

I would add that the rule by judges foothold got is first breath in approving the new deal under the commerce clause, then in Hugo KKK Black's 1947 Everson opinion mis-appropriating Jefferson's wall of separation letter, and then got running with the school prayer case (Engle v Vitale) and the griswold contraception case in the 60's.

But Roe was the mother lode.

And the rest of your post on practicalities is grerat analysis.

How the Supreme Court created the law that established the National Labor Relations board.  

you stopped beating your wife.

Its been 8 years since I represented the Carmen's railroad union and I'm not sure how the NLRB law applies to any INTRA state comemrce, if any. But if it does, and if the sup ct upheld it, then that was improper under the commerce clause.

But possible quite practical.

Its also amazing how fast much needed and practical constitional amendments can be passed!

Not as fast as rulings by kings and 5 headed oligrachs, but the side effects of royal rule are so dibilitating!

The Posting Rules:

Any other person of basic good sense and goodwill, regardless of party, is welcome to participate and hopefully come around to the ideals of Republicanism.

LeonH:

Just you watch, flyerhawk. You've shown an amazing propensity for lasting at this site, when I orginally gave you about two days, which means that as much as I hate to admit it, you're smarter (or at least more clever) than most of your Kossack colleagues.

Welcome!

Neither Kings or Oligarchs passed created the NLRB, although both were involved in actually being created to some extent.

The Amendment process is a very important process but it should NOT be used whimsically.  There is time for incremental change via existing legislation.  And there is time for sweeping change via an Amendment.

I took that as a compliment.  

with you, young grasshopper. For the record, the other editors have expressed amazement that it has lasted so long. I reinstated your account in the hopes that you genuinely were interested in promoting the quality of debate on this site, but I see now that that plainly isn't so. You emerge from the ether, take some snarky potshots that walk right up to the line (but not over it) and then leave.

I see that you even managed to violate the "no profanity" rule since your reinstatement. How in the world did you miss that one?

In any event, your tenure here is officially over. I've concluded that it only existed so that you can crawl back to wherever you came from (dKos is always my first guess) and complain about how shamefully you were treated at RedState. Well, have fun with that. Just don't have any more fun here.

P.S. As you've already deduced, if you come back under a different user name we'll catch you, so don't bother trying that again, either.

should strike down unconstitutional was passed by congress.

court amend the constitution every time they invent rights not in the constitution, strike down constitutional laws, and fail to strike down unconstitutional ones.

And they do so whimsically wityh 5 votes.

You just refuse to respond directly to posts don't you? Jesse jackson has nothing on you with answering questions that aren't asked and with non sequiturs.

But we sometimes enjoty beating the head against the wall, so

Amending the constitution require 2/3 vote of congress and 3/4 of the states. Its hard to whimsically do that.

And if amending the commerce clause to make us competitive in the modern world is not a proper amendment, then I don't know what is. Plus, as you say, its "pragmatic."

"being honest" choice!

I couldn't believe Thomas didn't boot him out last night.  He gave me his reasons and I respect that, but I'm glad to see brooksfoe is a pain of the past.

Ghandi represents the radical insurgent wing of the Indian people, who oppose and resent their legitimate and quite reasonable British overlords; why does Ghandi hate the British Empire etc., etc.

Or, as I saw a comedian posit recently (and far more humorously), why is it that whenever anyone promotes a message of peace, love, and understanding, they get assassinated...

With the lack of documentation on Roberts' conservatism, I find it hard to believe that he wasn't grilled at some point with questions that would provide some assurance of his leanings on flashpoint issues.  This is especially true after the Social Conservatives vetoed Gonzales; why toss away Bush's personal choice if the next nominee might go Souter in the fall and alienate the base anyway.

Of course, this isn't the President's job.  They chatted about baseball, their children, and a need for honest "non-activist" judges.  Somebody else put the screws to him.

If they didn't, then they're probably not doing their jobs.

Were that I had studiously noted his account that I wanted him to have another chance on the basis of a lengthy email brooksfoe wrote to me promising that he understood the rules and the Republican Zone thing.

He frankly thought I was insane by about noon today. He was proven right with this last post.

It already did in the daily press briefing, in relation to speeding up the Roberts announcement.

Still, the press was rather tame with Scotty today, allowing him to stonewall once and then giving up.  I think they realize there isn't much to write about until Fitzgerald is done, and that old competitive spirit makes each reporter loath to waste their one question at bat on something that is guaranteed to not be answered.

As for a pool on Senators: Schumer, Day 2 of committee, while CNN is still playing some of it live.

anything?  Karl shook him down first and then let George have him. :>)

On whether Kennedy can find a way to mention "Halliburton" during these confirmation hearings, and on what day it will occur.

Which Republican senator will first use the words

"life"

"sanctity"

"preserve"

"culture"

and

"traditional"

all in the same prepared statement?  All of the words have to be used, with bonus points for proximity, such as:

"Our traditional culture recognized the need to preserve the sanctity of life until..."

Has anybody seen Amazon's Statistically Improbable Phrases (SIP) section on each book description page?  I would love to have that algorithm to run against the future transcripts, and pull out the most common improbable phrases from each side.  You could call it the "Talking Points Detector".

I am thinking a drinking game for the hearings.... I like it!

Pass the JD!

Only if they replay the hearings after 6pm.  I'm not sure I could handle the real-time feed...

8:13am EDT-

"Activist..."

  chug

"...Rove..."

  shot

"...defending the defenseless"

  gulp

"...12 year old girl in jail..."

  beer shotgun

8:19am EDT-

  collapse

"I picked a ** of a day to stop sniffing glue."

Wouldn't it be funny if Democrats use tougher tactics in Roberts' hearings than they want used at Guantanamo Bay?

...by simply stating that he was ruling according to his reading of the laws that governed the specific set of circumstances in the case.

There are only five cases in which he wrote a separate concurrence or dissent in his time on the DC Circuit.  He should be able to simply fall back on his statistics-40 opinions written for the majority, 38 unanimous consents, 2 dissents on technical grounds.  And if the Senate wants to spend hours discussing the regulatory basis for electrical rates (Entergy Services, Inc. v. F.E.R.C.) or union rules on lockboxes for Customs agents' firearms ( National Treasury Employees Union v. Federal Labor Relations Authority ), good.  People will tune out the hearings, and deny the Dems their face time.

I don't respond to posts?   You seem to confuse disagreement with not responding to a post.

As I said the Supreme Court didn't create those laws.  Perhaps they should have struck them down but that does NOT mean that they create law.  The Legislature still creates the laws.  I find it ironic that when the Legislature passes laws that "violate" the Constitituion no one seems to care but every gets up in arms when the Supreme Court doesn't rule the way they want them to.

Your other comments on other stories, and there doesn't seem to be much there. Maybe this blog would have had your interest had you actually made some sort of effort to participate.

Just a thought.

As an aside, people who announce before leaving that they are leaving because the given environment isn't up to their standards or can't keep their interest can't be taken seriously. Why make the comment? If the blog has really lost your interest, why are you even posting a reply?

I'm interested. But then, you can't reply. You're gone!

Actually, lots of people get upset when the legislature creates unconstitutional laws, then the president signs them, then the court doesn't overturn them (McCain-Fiengold is a recent example that comes to mind--a whole bunch of people were up in arms about that all the way through).

And I expect you understand is that people mean the Supreme Courts writes laws when it upholds unconsitutional laws or interprets existing laws in ways that go beyond what is constitutionally acceptable or, in effect, trumps existing law, or meddles in state issues (medical marijuana) by citing the Commerce clause.

The recent extension of eminent domain to the confiscation of private property for commercial use is an example of the court, in effect, writing law, as no reasonable interpretation, nor any sort of historical context, would lead anyone to conclude that the wholesale seizing of private property by fiat for the commercial benefit of well-connected private investors was in the constitution, or even in existing law.

"He was kept, sitting at table, for hours on end, with an incessant--indeed, endless--barrage of questions coming at him from all sides, ceaselessly, never stopping, never a break. Questioning everything about him, about his life, about his views on every issue. Bright lights burned down on him the entire time. If I didn't tell you that this happened in an American Senate committee, you would certainly think I was talking about the Soviet Gulag, the Nazi concentration camps, or Pol Pot, since I don't want to mention any contemporary despots like Hussein, Kim Jung Il, or Fidel Castro, since we like them. But no, I was talking about our behavior--on the floor of the U.S. Senate. Mr. President, it's time for us to get out of Iraq now, before the Senate Judiciary Committee loses all humanity! Thank you, and impeach Bush."

flyerhawk knows what you mean. Obtuseness is the only argumentation technique he knows and he exercises it relentlessly.

is the only technique you know.

Of COURSE I know what he means.  That isn't the point.  The point is that it is unappropriate to make the claim.  It is done in an attempt to portray the SCOTUS to be more insidious than it really is.

I can agree that the SCOTUS improperly rules on cases and that the EFFECT of those rulings is allow the Legislature, or sometimes the Executive, to create laws that they shouldn't.  

But that isn't the same as saying that the SCOTUS creates laws.  To me this is important because I think that comments like this put far too much burden on the SCOTUS and far too little on the Legislature.  

If we don't like the Kelo ruling we SHOULDN'T be wailing at the Supreme Court.  We should be telling our ELECTED officials to change the laws so that Kelo can't happen.  Don't like Raich?  Ok then tell our elected officials to change the laws.

IMO, people far too often hold on to hope that the Supreme Court is going to become the champion of the people and that simply isn't their job.

is that you are extraordinarily weak in knowledge of US history, law, and politics but you rigorously the subjects. And whenever you are caught out you fall back on deliberately failing to understand a question.

This whole exchange is a case in point.

You knew very well what was meant in the post. You didn't have an answer for it (in this case for the very good reason that there isn't one) and you fell back on obtusely insisting that judges don't write laws. And now you admit what we all knew all along which was that your response was a deliberate misreading of the post because you couldn't answer the point.

As Leon H. noted in his warning to trolls you have managed to fly beneath the banning radar because we all get some amusement from your otherwise content-free commentary and because you don't go out of your way to post talking points, etc. But you really should disabuse yourself of the idea that you provide a valuable service here.

They can't advise and consent without knowledge.  There is little known about this candidate from a judicial perspective.  The paper trail is weak.

Questions are appropriate and specifically questions on prior cases.  More now than in the past because of a radical push by some to remove judicial review.

For example, Marbury v Madison established the principal of judicial review.  Should this candidate opine that Marshall wrongly decided this case, it would create an extraordinary circumstance.  Some in the legislature have recently proposed legislation that forbids judicial review, so this is important.

Similarly, Helvering v Davis paved the way for the New Deal.  It is why there is a social security system and revives around the words "general welfare" found in the powers section in the preamble.  Should he opine that Cordozo decided this case incorrectly, that is an extraordinary circumstance.

Helvering settled a controversy that had been brewing since Washington's first term.  Specifically, what are the limitations of congress as defined in the constitution and are powers implied.  Washington (and congress) accepted Hamilton's view.  But there are some that say one must interpret the constitution as the orginal writers did and the constitution can't evolve.  But the writers themselves don't agree.  Even Jefferson went on to do the Louisiana purchase - where is that in the constitution?  I would ask him about these events and his theory of orginialist as propagated by Scalia.

And as a final point of illustration, I would want to delve into Ginsberg.  This case dealt with a state that had outlawed birth control - of any kind.  It is were the Supreme Court found the right to privacy - first by acknowledging specific example that the orginalist encountered and detail in the constitution (not having to quarter troops for example).  And then by applying the 9th amendment.  The 9th is perhaps the most important because it says that we have rights other than those specifically detailed.  I would want to know if he would aggressively interpret the 9th amendment and if Ginsberg was decided properly.

As a follow up to the Ginsberg discussion, I would ask if he believed we are a nation were rights are inherent (as apposed to government powers which are granted).  And does he believe such rights must be defended by the courts - even from a legislature pandering to a majority opinion.  Does he believe there must be a state interest before intrusion into our private lives?  If he is contrary to this basic structure of the American experiment, the nation needs to know.

These are but a few - a very few examples.  Roberts needs to be given a list of such questions and be forthright in his answers.  And all America should be watching.  Vigilance is the cost of freedom.

Stanford

our state legislatures to write a law restricting them from doing something the constitution already restricted them from doing?

That is the problem here.  The SCOTUS basically removed a solid right for the citizen and gave that right to the state, when it used to be the other way around.

Before the state had a pretty high standard to meet in order to take property, now it is a pretty low standard-shoot they no longer even have to make a case for blight, now they can just say "hey we have a plan, and if we take his house and give it to pfizer the tax base will go up and the whole town benefits" of course the guy who loses his house doesn't have his house anymore.

4 paragraphs to tell me how stupid and useless I am.  Thanks.

I just wish I could be as smart and knowledgeable as you.  You seem to provide so much in depth content that it is sometimes difficult to grasp.

I'll tell you what since I'm obviously not worth responding to how bout you simply stop responding to me?  I'm more than willing to reciprocate.  

it in less but four seemed right.

that the standard in Kelo is too broad.  But the majority opinion thought so too and intentionally left several questions unanswered to ENSURE that further cases would be heard and that a clearer bright line could be made.

FTR, in the Kelo case the property in question was NOT being given to Pfizer.  Pfizer already ownen the property for their office.  Kelo involved the surrounding properties.

I'll leave it at that because I don't want to stray too off topic.

breathing concept.

They may have left things open, but future courts may open them further.  That isn't reassuring.

I think "public use" has a pretty clear plain text meaning.  It isn't perfectly clear, but what they decided in Kelo makes it a whole lot more vague and open to interpretation than a plain reading would imply.

Granted Scalia went a different direction on Kelo, but then as I have said originalists don't always agree either (Thomas almost always has a concurring opinion, often because he gets there through a different door, even if he agrees with the other conservatives on the court), and if there was a court of 9 originalists, there would still be split and concurring opinions.

This post reminded me of this old Monty Python Skit:

Ximinez: Now, old woman -- you are accused of heresy on three counts -- heresy by thought, heresy by word, heresy by deed, and heresy by action -- four counts. Do you confess?

Wilde: I don't understand what I'm accused of.

Ximinez: Ha! Then we'll make you understand! Biggles! Fetch...THE CUSHIONS!

. . .

Ximinez: So you think you are strong because you can survive the soft cushions. Well, we shall see. Biggles! Put her in the Comfy Chair!

Ximinez: Now -- you will stay in the Comfy Chair until lunch time, with only a cup of coffee at eleven. [aside, to Biggles] Is that really all it is?

Biggles: Yes, lord.

Ximinez: I see. I suppose we make it worse by shouting a lot, do we? Confess, woman. Confess! Confess! Confess! Confess!

Kelo didn't make things more vague.  It simply didn't clarify things as much as we could hope.  There is a difference.  

Thomas in Kelo wanted to do away with 130 years of precedent.  To revert to a 18th century alleged definition would have meant that the taking of land for railroads was Unconstitutional.  You really think that is the path we should be going down?

Thomas specifically states that

"I would revisit our Public Use Clause cases and consider returning to the original meaning of the Public Use Clause: that the government may take property only if it actually uses or gives the public a legal right to use the property."

Since railways may be used by the public, that certainly would fall under his reading of Public Use.  See his cites of Strickley v. Highland Boy Gold Mining Co. and United States v. Gettysburg Electric R. Co..

Give the public a legal right to use the property?  For that matter if you are required to pay to use the property(ie personal transportation) how is that a public right to use the property?

Would a baseball stadium qualify under that definition of public use?

Ever pay a toll for driving on a public road?  That's a public use for which you are required to pay a fee.  Ditto park entry fees.

Right-of-ways for public utilites are another example.  You have to pay for the electricity, but any member of the public may use it.  This is the direct issue Thomas covered in his Strickley cite.

about the dems in congress and state legislatures that passed all those laws and would vote them out, except that they are mos tall dead now or voted out!!! we cared

now is our first time in over a decade to replace the 5 gods

shipping lines use, much like the government pays the states to maintain the roads?

Also, rail is more than Amtrak (which we subsidize) and freight, it also includes subways and commuter rail (which are encouraged for environmental and traffic congestion reasons).

Are all subways and commuter rails run entirely by private company's or do the cities run them or subsidizecontract with the company that runs them?

nail Jell-o to a wall? You're in for a fun afternoon.

I do take your point about "creation" of the laws and bush and the repubs that voted for mccain feingold deserve my derision

so there it is: MY DERISION

But no one is trying to make the sup ct seem "worse than it is"

It is favorite tactic of demons (see Screwtape and wormwood) to pit one bad thing against another.

Are you a demon or just a democrat?

so I want you to stay. You remind me of an ex-wife, except cheaper!

And I enjoy exposing the intell bancruptcy of the left.

But then as a neophyte to this blogging business I am not hip to the whole purpose of this site and the dangers of trolls

but I stand ready to be convinced that you should be burned at the stake (metaphir alert!) once your usefulness is depleted.

I would say that you occasionally help US refine our truthful arguments.

use, but I don't think they should be.

BUt at somepoint somebody got the court to agree with them on that one too.

About the only thing with a baseball stadium or other stadium is that often when games are not insession the City has use of the parking facilities (the public may still have to pay a fee, but the use of the facility is permitted).

But in general I think if somebody wants to build a stadium, they should have to purchase the land, and fund it through private institutions/businesses.

But those are examples of fees charged by the state.  

Rail fees are charged by private business.  

You don't feel there is a difference?

...if the government requires the road to be open to all, and regulates the operator.  Keep in mind that the first uses of eminent domain in the U.S. were for private entities that were required to serve all the public at set fees.  These included mills (see Thomas' reference to the Mill Acts) and roads.

Private toll roads have come full circle, as Colorado (Front Range Toll Road), Texas (Trans-Texas Corridor Project), Virginia (Capitol Beltway HOT lanes) and California all have private toll roads in various stages of planning or construction.

If the fees are set by a government entity, and the system is open to all, does it matter if the managing corporation in fully private, a quasi-public entity like Amtrak, or directly owned and administered by the government?

Virginia's Dulles  Greenway

But then are we not then saying public purpose and not simply public use?

for one thing-the company's in this case can't restrict who uses the property outside of the fee itself.

But with a taking permitted as in the Kelo case, the public may not even have access to what is built on the taken property-fee or no fee.

A rail is intended for the public to use, although such use does come with a fee, and the company that collects the fee may not prohibit anyone from the public from purchasing the ability to use it for its intended purpose.

So I still go with it being for public use, although there is certainly room for debate on that one.

are the best. Attention must be paid.

my favorite lib. you can make some good points.

that will only help us keep beating the crap out of the dems even more

thanks

really, you are showing that you can debate

must sarcastic a's )like I can be) also can, when forced to work, get it done

bottom line though

you libs have no comprehensive governing  policy and are only good as firemen alerting us to minor mistakes

thanks again