Third Party & Independents Archives

A Great Opportunity

In nominating Harriet Miers for the Supreme Court, George W. Bush made one of the biggest mistakes of his presidency. Having suffered the humiliation of having the intellectual wing of his own supporters shoot down his nominee, Bush has a golden opportunity to restore excellent and demonstrated ability, rather than stealth, as the most important qualification for a Supreme Court nominee. Bush must not miss this opportunity.

The Miers nomination was, as Robert Bork put it, “a disaster on every level.” Rather than putting forward someone with impeccable qualifications and a demonstrated ability to lead the nation’s highest court, Bush chose a supposedly “safe” pick- safe both because he knew how she would vote and because she had never publicly expressed any contraversial views. The broad response against this nominee was heartening and inspiring for those of us who are increasingly cynical about politics. As David Frum of National Review said upon Miers’ withdrawal- “[t]he system worked.”

In order to make up for the Miers mistake and set an important precedent for future nominees, President Bush should now appoint the anti-Miers. That is, he should appoint someone with (1) the longest paper trail of excellent scholarship he can find; and (2) someone respected by both the let and the right as being of the highest intellect. There are several excellent choice who would fill these qualifications, but I think probably the best selection would be 10th Circuit Judge Michael McConnell.

McConnell has several important factors working in his favor (for a similar defense of picking McConnell- see this post):

1. He is respected as having an incredible intellect by both the left and the right. It is uncontroversial to say that he is one of the most brilliant conservative academics of his generation.

2. He would have support from many of the intellectual on the left, many of whom signed this letter in support of his confirmation to the Circuit Court. Signatures of this letter include Cass Sunstien- currently the leading liberal academic in the country by many measures.

3. He holds many conservative viewpoints that should please those who voted for Bush- including unequivocal opposition to Roe v. Wade.

4. He was recently confirmed to the Circuit Court, without any threat of filibuster, so his nomination may not trigger a fight over the nuclear option.

5. He has a very long paper trail- meaning that he has defended his views in public and has had to put his thoughts to the test.

I believe the Robert Bork precedent has been overemphasized to the point where many wrongly believe that no one with a public record on important constitutional issues can make it to the Supreme Court. By nominating McConnell, George W. Bush can obliterate the Bork precedent. The juxtaposition between an embarrassed Harriet Miers- the ultimate stealth candidate- having to withdraw, with Michael McConnell overwhelming passing through the Senate, would be a powerful precedent for future nominations. It would once again establish excellence, and not stealth, as the primary qualifications for a Supreme Court nominee. By making this move, George W. Bush can turn one of his administration’s biggest mistakes into one of its most important achievements.

Posted by Misha Tseytlin at October 29, 2005 10:14 AM
Comments
Comment #88726

“In nominating Harriet Miers for the Supreme Court, George W. Bush made one of the biggest mistakes of his presidency.”

Are you sure it was a mistake? Maybe this was the ‘plan’. She let him throw her to the wolves knowing she would be attacked.
This way they saw EXACTLY what people are saying and how they would react.
This way we saw the hypocrisy that runs deep on both the ‘far sides’.
This way the American people saw what Bush is really up against every time he tries to do anything.

Why bother asking ANY questions of a nominee, when ABORTION is the ONLY thing that matters?

Posted by: bugcrazy at October 29, 2005 12:18 PM
Comment #88743

On the lighter side of all this;

http://thismodernworld.com/2443

Posted by: Rocky at October 29, 2005 1:25 PM
Comment #88752

I agree with you on what Bush should do now. But will he do it?
I personally believe that Meirs was a shill. She was nominated knowing that both sides would object to her. Specially if with a little prodding (the anouncement that she’s Evangelical Christian). Now Bush is free to nominate the person that he REALLY wants. And both sides are now forced to confirm his nomination. With 1/3 of the Senate up for reelection they’re not going to want to look like a bunch of idioits.

Posted by: Ron Brown at October 29, 2005 2:17 PM
Comment #88755

Ron:

Too bad, really, they already do. ALL of them.

Posted by: womanmarine at October 29, 2005 2:31 PM
Comment #88757

womanmarine
Aint that the truth.

Thankyou for your service to our country.

Posted by: Ron Brown at October 29, 2005 2:37 PM
Comment #88771

Hi Ron:

Thanks! Best years of my life! I AM a patriot.

I watch C-span pretty regularly and find I get more disgusted every day.

I hope Bush comes to his senses and nominates someone relatively acceptable to BOTH sides. I really believe thats what the majority of the population wants.

I could be wrong, but maybe not.

Posted by: womanmarine at October 29, 2005 3:26 PM
Comment #88819

womanmarine
I hope he does too, however I’m not counting on it.
I cann’t get cable out here in the boonies and I cann’t get the satellite company to hook me up. So I don’t get C-Span. But I’ve caught it at my sisters place. Your right, sometimes its enough to make you loose your dinner.

Posted by: Ron Brown at October 29, 2005 7:22 PM
Comment #88823

Ron:

I have satellite. I’m in the boonies too, no cable here either.

Posted by: womanmarine at October 29, 2005 7:46 PM
Comment #88832

Misha

Good post. I would just like brillance. Let the battle begin.

Posted by: Jack at October 29, 2005 8:24 PM
Comment #88835

Misha, great article and assessment. However, you raise one very controversial issue. If McConnell is anti-RvWade, would he allow his own personal preferences to override precedent on the court? A dilemma for conservatives and liberals alike if he is nominated. Conservatives oppose activism. If McConnell is willing to allow his personal preferences to supercede precedence, he is an activist. For liberals, they will have to establish in McConnel’s record his absolute adherence to precedence in order to justify voting for him.

Sounds to me like the perfect candidate for bringing the “nuclear option” to the table.

Posted by: David R. Remer at October 29, 2005 8:31 PM
Comment #88845

As you know, David- precedent can be overturned if it is wrong (see Brown overturning Plessy). McConnell has developed impressive intellectual arguments as to why Roe should be overturned- i see no reason for that to make him unqualified to be on the supreme court. no more reason than someone who wants to overturn any important but contraversial precedent (for example Quirin- which was the WWII case that upheld the use of military tribunals, which I think should be overturned). McConnell may indeed trigger the nuclear option, but given the broad support he will get from both the left and right in the legal community, this step would make the Democrats look very bad, and squander the very likely prospect that they will make major gains in the 2006 elections.

Posted by: Misha Tseytlin at October 29, 2005 9:05 PM
Comment #88848

It is about time to fight the battle over what both sides have been lying about for a generation.

Both left and right have a litmus test on abortion. The loony left thinks there should be no restrictions, or even a discussion of restrictions. The nutty right wants it completely illegal. They both have very good researchers who usually succeed in finding out out exactly where any candidate stands on the issue. There is no middle ground for these guys. Practical politicians pander to their respective extremists.

Maybe the emperor has no clothes? Most Americans are reasonable on this issue. They think abortion is bad, but should be a woman’s choice with some restrictions. What if we actually call the abortion bluff? Will the Dems really vote against anyone only because of his views on abortion? Is it the only issue that matters?

The truth is that most conservatives would prefer that decision like Roe be made in the political process. It correlates with being conservative. It goes with the fact that conservatives are generally fonder of the tenth amendment than liberals are. No consensus is possible if we grant the premise that this is an unacceptable stance.

What this means is that the most brilliant conservatives are disqualified as far as most liberals are concerned. We cannot tolerate that. We cannot let the other side decide for us which of us if court worthy. So let’s just go with the most qualified person we can find and let come what may. Welcome back to the fight. This time I am sure our side will win.

Posted by: Jack at October 29, 2005 9:16 PM
Comment #88858

Here is what some may consider a completely ignorant question.

Doesn’t a case have to come before the court, that they decide to hear, that would call into question the R v. W decision?
I mean, the court can not just decide one day to overturn a ruling just because they feel like it, correct?
The lawyers in the case would have to come up with a convincing argument as to why it should be overturned and convince the majority, right?
Just what ARE the odds of all of that happening?

Posted by: notscotussavvy at October 29, 2005 9:51 PM
Comment #88897

Misha,

As someone not very familiar with judges unless they are brought to my attention (hopefully by someone better educated on the matter than myself) I want to thank you for your post. You’ve made a very compelling argument in favor of Judge Michael McConnell. He sounds like a good set. Hopefully Bush knows that and will act on that.

Posted by: Stephanie at October 30, 2005 3:18 AM
Comment #88898

Rocky,

If it’s any consolation, He wasn’t much accepted in His day either.

Posted by: Stephanie at October 30, 2005 3:19 AM
Comment #88901

Ron & womanmarine,

“With 1/3 of the Senate up for reelection they’re not going to want to look like a bunch of idioits.”
“Too bad, really, they already do. ALL of them.”

Too true, too true. Hopefully they can all take this chance to redeam themselves, at least a little, for the sake of this country.

Posted by: Stephanie at October 30, 2005 3:22 AM
Comment #88931

notscotussavvy- the bottom line is that if the Court wants to overturn any precedent, it has the leeway to do it. Basicaly- the mechanics work like this. There are thousands (ten of thousands) of cases every year that are decided upon by state supreme courts and federal appelate courts, and the supreme court grants review of whichever ones it wants. So it could easily find some vehicle to grant review in an abotion case. IN fact, the supreme court is currently hearing a couple of abortion cases this term.

As for lawyer’s having to make arguments. Roe v. Wade is a very easy decision to attack, and any smart second year law student could provide good reasons to overturn it off of the top of their head- imagine what an advocate of John Roberts’ caliber could do.

Posted by: Misha Tseytlin at October 30, 2005 10:59 AM
Comment #88943

The Miers nomination has humilated the Bush administration. Bush is in danger of losing the support of his more conservative. I thnik he may use his nexct nomination as a way to rally the troops so to speak. He could do this by nominating someone, possibly McConnell, that will cause a democratic fillabuster.

Posted by: Peter at October 30, 2005 12:23 PM
Comment #88950

Misha,
Looks like it will be Luttig or Alioto.

Will the Decocrats filibuster? Will the Republicans counter with the nuclear option? Will the moderate Senators, the ‘Gang of 14,’ turn their backs on Bush and sink the Republican right?

At this point, I’m sure a lot of politicians are doing their political calculus. Personally, I wouldn’t be surpised if the Democrats filibuster someone like Luttig, despite his judicial qualifications.


Why approve another Scalia? The chickens are coming home to roost for the Bush administration (and someone joked the chickens have avian flu!). Bush has attempted to govern from the far right. However, any president in their second term will be a lame duck, and therefore needs to depend upon good relationships with Congress in order to get anything done.

Clinton ‘triangulated.’ He cooperated with Republicans to get through welfare reform & NAFTA. Say what you will about the resulting policies, it was a brilliant piece of political skill.

Bush is incapable of such leadership, incapable of reaching out and coordinating. Conservatives such as David Brooks argue that this is the time to start over, begin anew.

But that’s not the way of the Bush administration. They’ve waged war on anyone outside their limited piece of the political spectrum. It’s a 24/7 political campaign, and opponents are to be smeared, not invited into a political pythagorem theorem.

So there’s a good chance the Democrats will filibuster a conservative nominee. They will only go this route if they’ve already made the calculation that the nuclear option will fail, and that a filibuster will result in a complete an ignominious defeat for the right wingers.

Lacking effective leadership, in utter disarray, the right wingers are more than capable of miscalculating the effect of yet another confrontational approach to a nomination.

So we’ll watch the fur fly. However, if a conservative nominee flies through the approval process, it’s a good sign that leadership is still functioning somewhere among the right, and that some kind of political cooperation is still occurring. It the nomination goes smoothly, it’s a good sign that planning ahead, advice, and consent are happening.

But it has proved difficult to underestimate the incompetence and hubris of the far right. We’ll see.

Posted by: phx8 at October 30, 2005 12:45 PM
Comment #88955

The one and only comment that Kerry made during the debates that made sense to me, was when he was asked about SCOTUS nominations.

I can only paraphrase,

“I would be very happy to read a decision handed down and be unable to tell if it was written by a Liberal or a Conservative judge.”

I am not talking about a moderate. I think that politically, it shouldn’t matter what the nominee belives, his/her job is to translate the Constitution to the country’s benefit. Not to the benefit of any political party.

Activist has come to mean anything that we disagree with, be it from the right or left.

The Framers came from an agrarian society, not a technological one.
I have heard those on the right bitch that the ecologists would like us to turn back the clock, and have us turn in our conveniences.

I challenge anyone to tell me the difference.

We don’t live in the 16th century anymore. I am not asking that the Constitution be updated, I would just ask that we realize where we are in time and space, and act accordingly.

Posted by: Rocky at October 30, 2005 1:14 PM
Comment #88994

Stephanie
Too true, too true. Hopefully they can all take this chance to redeam themselves, at least a little, for the sake of this country.

Hopefully, But I have this sinking feeling they won’t.

Posted by: Ron Brown at October 30, 2005 5:06 PM
Comment #88997

Misha, “wrong” according to whom? The Justice? That’s activism. The majority of Americans support privacy issues, especially when laws infringing upon them will inevitably result in those with means to have the privacy and those without, not having it. Equal protection of rights under the law is the maxim. Overturn RvW, and those with means can have their choice, and those without, can’t. That will be the net effect. I just can’t see Congress passing a law which would criminalize travelling to Canada for an abortion. Hence, the effect would be unequal application of the law based on means.

Posted by: David R. Remer at October 30, 2005 5:35 PM
Comment #89009

David

Let the people of the states decide through their elected officials or referendum. That what happens if the court weakens Roe.

It is unlikely restrictions would be the same in each state. You could say that was unfair, but that is the whole nature of our system. In most states, you can’t gamble. You can in Nevada. Murder someone in Wisconsin and you could spend the rest of your natural life in prison. Wait until you visit Texas and you could spend a much shorter time in prison until your execution. Should we force all the other states to allow gambling, force Wisconsin to treat murderers the same as they do in Texas?

This is the kind of thing that should be decided democratically. There are different reasonable points of view.

Posted by: Jack at October 30, 2005 7:59 PM
Comment #89025

Wait, David, are you saying federalism is unconstitutional? So, for example, if California wants to allow medical pot, but Texas wants to ban it- then that is unconstitutional because it is unequal? Because people could go across to California to get medical pot? So rich people could afford to travel to California, but poor people couldnt? Sorry, your attempt to make federalism unconstitutional doesnt pass even a quick glance at the actual Constitution.

As for “wrong” according to whom? According to the constitutional theory that the justice thinks the constitution requires. For example, McConnell is an originalist (there are many kinds of originalist, he is from one variant). He believes that the Constitution requires the overturning of Roe v. Wade. By the way, even many pro-choice constitutional law people hold this position. So it is your view that it is “activist” to have a theory of Constitutional interpritation and then follow it as a judge?

So what exactly isnt “activist”. I would guess the answer is to uphold the precedents the left likes, and strike down the ones it doesnt like :).

Posted by: Misha Tseytlin at October 30, 2005 9:09 PM
Comment #89046

Misha,

Federalism protects rights granted to all citizens by the Constitution regardless of what state they reside in, Misha, as you well know. The right to live free without undue intereference from government is one of the guiding principles in the Constitution and enumerated in the Bill of Rights. The right to choose whether or not to be a mother should be as basic a right as choosing one’s career, don’t you think? The Constitution governs persons present tense. It does not govern the dead, or the unborn.

I defy you to point to anything in the Constitution which addresses the rights of the deceased or unborn. It governs persons within the jurisdiction of the U.S. And it does not address all those persons as equal. Whites were not equal with blacks, women not equal with men, and children less equal than any of the above as regarded property rights which were the foundation for voting rights. Since the Constitution, our government has seen fit to extend the initial rights to white men, equally to women and Blacks and other races, present tense. But nowhere does the Constitution protect the unborn from deficits and debt which the unborn will have to suffer in taxes after they are born and enter the work force.

Nor does our Constitution guarantee that rights a liberties granted today will be safeguarded for the unborn who will be citizens in the future if born. Nowhere in the Constitution are any rights, liberties, or entitlements bestowed up or reserved for the unborn. The unborn are none of the Government’s business, anymore than than whether a couple decides to have no children or 7 is the business of their neighbor, their municipality, their state government, or the federal governments.

Yet you, Misha profer a Justice who you claim would likely overturn R.v.Wade, without a single passage in the Constitution justifying such abridgement of citizen’s rights to choose parenthood or not, and without a single passage in the Constitution extending any rights whatsoever to the unborn, and who would overturn precedence despite numerous previous challenges and upholdings of R.v.Wade. If that is not advocating judicial activism, I think the term is utterly meaningless. Just admit it, Misha, you advocate judicial activism when it suits your belief system or preferences. And denounce it when favors your moral or philosophical nemises. I view that position as sophistry, pure and simple.

Posted by: David R. Remer at October 30, 2005 11:41 PM
Comment #89047

Jack, again, letting the states decide reserves the right of abortion for those who either live in those states allowing it, or who can afford to leave their state for a few days to obtain one, while denying the right to those who can’t or don’t.

In addition, the right to choose to become a parent is one of those liberties a majority of Americans cherish. Would Americans want the government to limit choice of parents to 2 children per lifetime? Of course not. Would Americans want their government to mandate that everyone must at least replicate themselves in progeny by the age of 55? Of coarse not.

So, how can you advocate that state governments should dictate who must become a parent without the freedom to choose? I’ll tell you how you can advocate such a thing. The same way a dictator or Feudal King dictates what their subjects must or must not do.

If you held the Constitution in regard, you would not seek to abridge its limitations upon government from infringing upon basic human rights. And there is no more basic human right that to decide for oneself if one wishes to parent a child or not.

Posted by: David R. Remer at October 30, 2005 11:48 PM
Comment #89055

David, as usual, you (I can only assume by now, purposefully) confuse the issue in overturning Roe v. Wade. Lets try to parse out your statements to see that you are actually making no point of constitutional importance.

“The right to live free without undue intereference from government is one of the guiding principles in the Constitution and enumerated in the Bill of Rights.”

-this is true, so the next question is what is the JUSTIFICATION for taking away your liberty. For example, I believe you support the Endanger Species Act- yet that deprives individuals of their liberty to kill spotted owls. Don’t you think it is at least a very plausible argument that protecting unborn “beings” (its so silly to strain this way, but I will for your benefit) of OUR species should be a sufficient basis for limiting the liberty of people. After all, you are all for limiting the liberty of people to protect being not even in our own species, if they are “endangered”. I think unborn children are far more worthy of protection than spotted owls- I think they are human beings. But you do not have to go that far- all you have to do is acknowledge that a democratic majority can consider them worthy of protection, and its basically game over for your argument.

“I defy you to point to anything in the Constitution which addresses the rights of the deceased or unborn.”

I defy you to find anything in the Constitution that addresses many of the GOALS of legislation limiting people’s freedom. You will not find it there- because that is not what the Constitution is intended to do. Even more importantly, while our federal government is one of enumerated powers, the states do NOT get their mandate of power from the federal constitution. So if a state bans abortion, and you ask “where in the federal constitution do you get the power to do that” you are simply showing you have no idea what the federal constitution is (that is, it is a grant of power to the federal government). This is a very fundamental point you miss.

” Nowhere in the Constitution are any rights, liberties, or entitlements bestowed up or reserved for the unborn.”

This argument, again, shows you have no idea what is at issue in overturning Roe v. Wade. If the court found that unborn children were human beings, than it would have to require abortion be banned. If it simply overturns Roe, it does not have to say that unborn children have any necessary protections under the constitution. It can say that it is up to each state whether it protects them. Again, to go to creatures you are actually willing to protect- endangered species have no constitutional protections- but they have statutory protections. Laws that ban abortion are statutory protections of unborn children.

“Yet you, Misha profer a Justice who you claim would likely overturn R.v.Wade, without a single passage in the Constitution justifying such abridgement of citizen’s rights to choose parenthood or not”

Sadly, this shows you do not understand the Constitution, plain and simple. A State does not need to show you any passage from the Federal Constitution to justify its actions. The Supreme Court must show it a passage to explain why you are striking down its law. Your spurious and easily refuted attempt to use the equal protection clause to outlaw federalism shows how difficult it really is to try to show why a state cant give statutory protections to unborn children.

David, you are really too smart to be making arguments like this. Even the defenders of Roe have now turned to protecting it as Stare Decisis (see Planned Parenthood v. Casey), realizing that the original opinion is completely indefensible from an actual reading of the Constitution.

The argument is really very simple- even though preventing abortion is an infringement of liberty, the government has a legitimate goal in protecting the lives of unborn children. For whatever you reason, you think it is not legitimate for the government to take away liberty to protect unborn children, but you think it is ok for the government to take away liberty to protect spotted owls and bald eagles. This position is completely undefensible.

Posted by: Misha Tseytlin at October 31, 2005 12:42 AM
Comment #89057

As for judicial activism- i think the best definition is the willingness to strike down laws made by majorities. Sometimes judicial activism is a good thing (when it is required by the Constitution), sometime it is a bad thing (when judges invent rights nowhere in the Constitution). Judicial activism is just descriptive and normative.

In my view, one measure of whether a judge is judicialy active or not is how willing he is to strike down laws made by majorities in close cases. Again, I am not saying its whether its a good thing or a bad thing.

Posted by: Misha Tseytlin at October 31, 2005 12:50 AM
Comment #89058

I mean- Judicial activism is just descriptive and NOT normative.

Posted by: Misha Tseytlin at October 31, 2005 12:52 AM
Comment #89069

David,

“Overturn RvW, and those with means can have their choice, and those without, can’t. That will be the net effect.”

While there are various arguments for why RvW should and should not be overturned “those who can will just go to Canada” is not a very good one. People go to both Canada and Mexico to use narcotics that are illegal here, does that mean we should make those substances legal here so those who can’t make the trip to Canada or Mexico can use them? IMO, no, it doesn’t. The US should NOT determine it’s laws based on the laws of its neighbors. We have our own laws for a reason. If abortion were illegal here, and people chose to go to Canada to get around that law that is something we should deal with on an separate basis then whether or not we make abortion illegal.

Congress has been working on “unequal application” laws for a while now. Affirmative action and “hate crime” laws come to mind.

People, remember that even if RvW is over-turned, that doesn’t mean abortion HAS to be illegal. That just means it would be up to our legislature to act (as it should have been in the first place) and possibly the legislatures of the various states.

Posted by: Stephanie at October 31, 2005 2:25 AM
Comment #89070

David,

“In addition, the right to choose to become a parent is one of those liberties a majority of Americans cherish.”

First, the right to abort is not the equivalent of the right to choose to become a parent. Nobody is taking away their right to put their child up for adoption, nor is anyone suggesting that they MUST raise the child they carry.

You’ve said yourself that the rights granted by the Constitution have been extended to include those people they were not originally granted to. Thus, those rights could also be extended to the unborn child. Such as “life, liberty and the pursuit of happiness” which is from another cherished government document. Or, we could just use “…and secure the Blessings of Liberty to ourselves and our Posterity…” with the unborn child being part of our Posterity.

Secondly, the Baathists “cherished” their government-given right to torture and murder their fellow Iraqi citizens, however that does NOT make it RIGHT!

Posted by: Stephanie at October 31, 2005 2:49 AM
Comment #89088

When every child is adopted and no children live in poverty and without insurance, then I will believe that RvW should be overturned.

Posted by: womanmarine at October 31, 2005 8:12 AM
Comment #89091

Womanmarine

Your results based idea begs the question, however, of if some people should be allowed to have kids. The unadopted children, living in poverty and without insurance that we have now were born into the Roe world. If your goal is to prevent these things through abortion (which is what you clearly imply), you need to pick up the other end of your logical stick.

Posted by: Jack at October 31, 2005 8:17 AM
Comment #89124

Hi Jack:

There was absolutely no implication to prevent those things through abortion.

I think that until our society finds a way for “even the least of these” to be taken care of, that this religious argument (and for most anti folks I believe it is) is hypocracy. That’s my only implication.

I perhaps could have expressed myself better.

If abortion is to be lessened, it will be through support, education, caring for our fellow man, not through law.

Posted by: womanmarine at October 31, 2005 11:16 AM
Comment #89150

Alito? Wow.

The real surprise is not the nominee, but the timing. Normally an administration will milk the process for political gain, for soothing lists of also-rans, and smoothing the way for the nominee. It should be observed this process takes place even when a nominee has been determined months in advance.

No such process this time. The Bush administration is in a near full-blown panic. None of the benefits available from the build-up to the announcement have been utilized. The unseemly haste with which this nomination occurred tells us something very unsettling.

These guys are running scared. They are panicking.

In their panic, they’ve made no attempt whatever to seek the advice and consent of the Senate. Instead, the Bush administration have thrown red meat to the far right. Once again, the Bush administration is attempting to govern as a lame duck from that far right. It’s a horribly ineffective strategy.

Now let’s see if the Democrats and ‘Gang of 14’ filibuster. You can bet they smell blood in the water. The Senate has been ignored with the announcement of this nominee. Time for the Senate to take charge.

Posted by: phx8 at October 31, 2005 1:29 PM
Comment #89154

I find this opinion a little worrying:

“I don’t think there can be any question that Alito’s ideology is a conservative one. While I don’t think he’s the kind of guy, because of his respect for the institution of the judiciary, who would seek to overturn precedent in a radical sort of way, I think he has the creativity and indeed the intelligence that chip away at existing precedents in a way I think some of us will regret over the years.

— Lawrence Lustberg, criminal defense attorney and friend of Alito


Posted by: womanmarine at October 31, 2005 1:33 PM
Comment #89180

It is completely ridiculous to think that a judge as qualified as Alito is “extraordinary circumstances.” I would say is about the conservative equal to Ginsburg (has a record, but is very qualified). If the Democrats actually try to use a filibuster on this excellent choice, they will be sounding the death knell of that devise. I think they will make a lot of noise but in the end hold off, while Alito gets over 60 votes. There was not litmus test when Ginsburg got appointed, why should there be one for Alito?

Posted by: Misha Tseytlin at October 31, 2005 3:38 PM
Comment #89181

Misha —

Your retort to David illustrates its own lack of understanding of constituional principles. The right of a pereson to determine whether or not to procreate is a substantive due process right that the SC has ruled is guaranteed under the constitution; the right to kill spotted owls is not. Therefore, the Constitution protects one and not the other. They’re really not the same.

The real decision in Roe came down to a balancing of a state’s interest in protecting the lives of the unborn versus a person’s substantive due process/privacy right in determining whether or not to procreate. The Court decided that that balance was in the woman’s favor prior to viability (which the court deemed to be pre-3rd trimester), but in the state’s favor post-viability.

Casey reaffirmed that principle. It was also notable in that it set out the elements of stare decisis. The reason Roe apologists refer to Casey now is that it enunciated the idea that Roe should be pretty much set in stone unless it violates an element of stare decisis. That’s all. They don’t use Roe anymore because Roe SHOULD be untouchable.

Continue.

Posted by: ken at October 31, 2005 3:41 PM
Comment #89182

Misha:

Both sides have a litmus test. There is really no pretense about it.

Posted by: womanmarine at October 31, 2005 3:41 PM
Comment #89184

Ken- you just made the actual argument from Roe/Casey, david did not. If you read his argument carefully, you will see that he is saying that because there is no constitutional protections for unborn children states cannot, as a matter of principle, protect unborn children. That is the argument I was responding to.

Consersely, you have actually stated the rigth principle that underlies Roe. What is completely unexplained in any of thsoe decisions is why, exactly, unborn life is worth so little in the Court’s eyes. That is, what grounds is there for the court to override the majority’s determination that protecting unborn life is important. All you get is a series of historical citations by Blackmun, which have basically been made laughable by scholarship afterwords.

So lets compare Roe to another substantive due process case- Lawrence. In Lawrence, the Court explained that the state could not come up with any raeson other than disliking homosexuals to have the law. That, as teh Court explained, was not sufficient justification to take away liberty. In Roe, on the other hand, there is much more than just disliking abortion. There is actual harm to a living being from our very own species than the government is trying to protect (Even if you dont think the unborn is fully human). The Court simply ignored this central point. The majority of justices on the Court understand that this is the reason that Roe is completely undefensible on its own account, which is why they must only uphold it by appael to stare decisis.

womanmarine- If that is true, why did Ginsburg get the vote of almost every single Republican, even though she was obviously pro-Roe? The answer is simple- the Republican did NOT have a litmus test in terms of the advise and consent power. Only the Democrats claim that entitlement.

Posted by: Misha Tseytlin at October 31, 2005 3:52 PM
Comment #89186

More specifically, the Court never explained why the state has more or less interest in the life of the unborn based on stage of development. It merely asserted this as a conclusion, without any attempt to justify why its reasons were better. When a Court acts without giving reasons, it is exercizing pure power- and no longer serving in the judicial roll.

Posted by: Misha Tseytlin at October 31, 2005 3:54 PM
Comment #89190

Just saw Mike Dewine on tv (one of gang of 14)- he said that Alito is not close to extraordinary circumstances. The Dems, if they are going to try this, are going back on the deal and will trigger the nuclear option.

Posted by: Misha Tseytlin at October 31, 2005 4:04 PM
Comment #89196

Misha,
That’s interesting about DeWine. The Democrats will make a lot of noise, that’s guaranteed; that’s part of representing a constituency. Unlike Miers, right now there appears to be no doubt about Alito’s qualifications. The real uproar is about the fundamental balance of the court between conservative and liberal interpretations, and of course RvW.

I doubt the Democrats will filibuster if they can’t bring along the moderate Republicans with them. Instead, they’ll make it close, score points with their constituencies, and most importantly of all…

Pin the reversal of RvW on the Republicans. When it comes to Democrats winning elections, that reversal will almost single-handedly assure it.

Posted by: phx8 at October 31, 2005 4:37 PM
Comment #89198

Misha:

womanmarine- If that is true, why did Ginsburg get the vote of almost every single Republican, even though she was obviously pro-Roe?

That was then, this is now.

Posted by: womanmarine at October 31, 2005 4:42 PM
Comment #89200

By that you mean that “then” was a Democrat president, where as “now” there is a Republican president.

Posted by: Misha Tseytlin at October 31, 2005 4:59 PM
Comment #89202

Misha,

I’m probably stating something you already know and maybe you don’t regard this as a viable line of demarcation, but the Roe court, as I recall, was saying that the Constitution protects the rights of persons, and that a fetus does not constitute a person until it is viable (i.e. capable of living on its own) outside the womb. At that point, as a person, the state’s right in protecting the lives of persons outweighs a woman’s right to choose. It’s been a long time since I read the decision, but that reasoning seems OK with me.

Necessarily, I would posit, any such line-drawing is going to be arbitrary. But I don’t think that alone is reason for overturning the decision.

Posted by: ken at October 31, 2005 5:01 PM
Comment #89204

“At that point, as a person, the state’s right in protecting the lives of persons outweighs a woman’s right to choose.”

Wait, that phrasing wasn’t terribly clear. Let me try again.

At that point, when the fetus is a person, the state’s interest in protecting the lives of persons outweighs a woman’s right to choose whether or not to procreate.

Better.

Posted by: ken at October 31, 2005 5:04 PM
Comment #89206

Ken, I dont think you are correct as a doctrinal matter- I think the current categories are this:

(1) before vialiability- cannot undualy burden a mother’s right to have abortion. basically abortion on demand, with some minor limitations. At this point the unborn child is not considered a person, but is considered worthy of limited protections (very limited).

(2) after viability- the unborn child is still not a person, but now is close enough to birth where the state has a strong interest in protecting the unborn. In theory, this is all well and good, but there must always be a health exception, which includes mental health- so as long as the mother can say she is going to be upset by having to not have an abortion, no one can pratically stop her.

(3) after birth, the child is finally a person and MUST be protected by law under the equal protection clause, regardless of whether a state wants to protect the child or not.


There are several problems with this- not the least of which is that the Supreme Court is basically occupying the field. notice that before birth, there is almost no bans on abortion allowed at any point. After birth, all children must recieve equal protection. Why cant a state decide that unborn life is so important that it should be protected before birth? The Supreme Court can and does give absolutely not answer.

Posted by: Misha Tseytlin at October 31, 2005 5:11 PM
Comment #89208

Misha:

No, that’s not what I mean. The whole political landscape was different.

Posted by: womanmarine at October 31, 2005 5:27 PM
Comment #89211

Misha said: “But you do not have to go that far- all you have to do is acknowledge that a democratic majority can consider them worthy of protection, and its basically game over for your argument.”

BINGO! Give that man a cigar. If folks want to remove the choice from other citizens as to whether or not they should become a parent, a Constitutional Amendment is called for. I am all for it for that effort as Constitutional and legitimate based on the constitution and the concept of majority rule.

I defy you to find anything in the Constitution that addresses many of the GOALS of legislation limiting people’s freedom. You will not find it there- because that is not what the Constitution is intended to do.

And what your comment above utterly fails to recognize is that the Constitution is there to restrict the powers of government over the people and protect basic rights of the people from government intrusion. Your comment on this matter lacks any recognition of this fact, Misha.

The power of the individual to choose to be a parent, a decision so personal and intertwined with huge consequences for both parent and potential child, falls under the rights to pursue life, liberty and happiness as one chooses. The unborn is not yet a person, nor a citizen, and hence is not addressed by the Constitution. But a person’s right to choose to become a parent is addressed indirectly as one of those personal choices which government has no place treading. Furthermore, one would have to demonstrate that aborting a fetus legally under R.v.Wade will have a detrimental impact on society as a whole to justify the Constitutional taking of that personal choice from individuals. Since overpopulation is a real threat to society, and even the world that supports us all, that would be a damned difficult argument to make and stick.

The only real argument for overturning R.v.W. that is credible, is that some with a moral indignation over the practice, presume to assert their moral values as superior to those who don’t find the practice immoral. Legislating morality has failed at every turn in our history, as it should. For nothing holds the potential for tearing down democracy in this land as great as an indignant moral minority who would translate their morality into laws to be lorded over the majority. That is the stuff revolutions are made of, and civil wars.

If the court found that unborn children were human beings, than it would have to require abortion be banned. If it simply overturns Roe, it does not have to say that unborn children have any necessary protections under the constitution. It can say that it is up to each state whether it protects them.

But, here again, you totally ignore such a ruling’s effect on the abrogation of an adult’s right to choose whether to become a parent or not. That right is already protected. You would rescind that right to citizens of this country, in favor of allowing lesser government’s the right to abrogate that liberty. The Constitution protects that right of choice to be or not to be a parent, and it is a right no citizen of America would want taken from them, even the anti-abortionists would rail over having their right to choose to be a parent or not removed from them by the government.

And that, my friend Misha, is the heart of the Constitutionality and democracy of the issue of whether or not to overturn R.v.W. There was a time in my own lifetime, when the states did have the right to abrogate that freedom, and it was a time replete with horror stories for both mother and fetus, husands of convicted wives, and children of imprisoned mothers. Conservativism should not mean returning to periods and values which created such abhorrence as to cause the people and the courts to end them. Racial discrimination, women’s non-suffrage are two examples. Neither should conservatives, in my opinion, seek to overturn RvW because a moral minority demands it. Overturning RvW usurps the freedom of the individual citizen by a minority of citizens on moral grounds only. But, as we all know, morality differs. I teach my child not to lie, but, lying and deception are commonplace in our government and politics. Whose morality should prevail?

If there is a majority of Americans who demand R.v.W be undone, then let them assert their majority in a Constitutional Amendment. But, let not a minority seek to deprive all citizens of a right of choice over parenthood, simply because thay lack majority status to do so through amendment.

Posted by: David R. Remer at October 31, 2005 5:42 PM
Comment #89235

Well Bush nominated the person he really wants on the court. Now it’s going to get interesting. The Republicans seem to be happy with Alito. And the Democratc seem to think that Bush should have nominated some one who will march in lockstep with them.
Just because someone is against abortion doesn’t mean that they’re not qualified to sit on the Supreme Court anymore than someone that is pro-abortion is automaticlly the best person to sit on it.
The main issue here is will Alito judge each case before the court according to it’s merits and according to the Constitutiion or is he going to do like most of the rest of the justices and make up law according to his feelings that day.
Thae fact that there is giong to be a fight is a given.
I’m going to sit back and watch the fireworks.

Posted by: Ron Brown at October 31, 2005 7:22 PM
Comment #89240

David,

As history has shown us is that in the US none of the rights enumerated are unfettered, for good or bad.

Free speech has limits placed on it. The right to bear arms has limits placed on it.

As for legislating against abortion, if what you say is correct, there is no need for RVW. But we know that there is because it is, without that ruling, a state issue.

Posted by: Rhinehold at October 31, 2005 7:38 PM
Comment #89246

Misha,
I told you that Ms. Miers would be used by the Republicans so that they could get a strong conservative in place. It is to bad that this administration is so ploitically bound that they turn a blind eye to what is right for all Americans.

As far as abortion goes, I wonder what the right would do if the left moved in the States to make the Laws of Life and Death match or whatever that legal term is?

Posted by: Henry Schlatman at October 31, 2005 8:05 PM
Comment #89250

Rhinehold said: “As history has shown us is that in the US none of the rights enumerated are unfettered, for good or bad.

Free speech has limits placed on it. The right to bear arms has limits placed on it. “

But the limits placed were accepted in deference to the greater good of society as a whole. There is no clear and convincing argument that the nation’s people will be better off if RvW is overturned. The benefits of overturning it our outweighed by the negative consequences of overturning it, specifically undermining individual rights in deference to a minority population’s moral sense of superiority.

Posted by: David R. Remer at October 31, 2005 8:23 PM
Comment #89251

Ron, I am not sure there is going to be that big a fight. I am getting the sense that some of the Dem’s like the Nebraska Senator, will give him a pass ultimately on professional credentials and fidelity to the law.

What no Congress can prevent, is a justice who actively seeks wording in precedence or founding documents that supports their particular view. And let’s face it, what Justice would not be prone to such interpretation and decision making? Kind of makes the whole activism charge meaningless, and all justices activist upon being seated for their first case under review.

Posted by: David R. Remer at October 31, 2005 8:31 PM
Comment #89255

Misha asked: “Why cant a state decide that unborn life is so important that it should be protected before birth?”

Precisely because it usurps an adult’s right to decide if they wish to be a parent or not. When governments like China dictate who can and can’t have a child, Americans scream epithets at that communist regime. Yet, many anti-abortionists would emulate such state power over individuals here in the US by overturning R.v.Wade and letting the law by government dictate who must become a parent against their will or be thrown in jail.

Posted by: David R. Remer at October 31, 2005 8:38 PM
Comment #89261
unborn children are far more worthy of protection than spotted owls

Personally, I’ll take the owls. At least they can’t grow up into Republicans. =)

Posted by: Taylor at October 31, 2005 9:18 PM
Comment #89290

David:

If there is a majority of Americans who demand R.v.W be undone, then let them assert their majority in a Constitutional Amendment. But, let not a minority seek to deprive all citizens of a right of choice over parenthood, simply because thay lack majority status to do so through amendment.

We don’t want the right to do what the left did. If the left would have gotten a constitutional amendment to state the abortion was a right, we wouldn’t be here. Instead they implanted it in the constitution. Unelected Judges decided that they knew more than the voters and passed Roe v Wade. That is exactly why we have the controversy to this day.

I personally don’t have a problem with overturning Roe v Wade as I don’t see abortion as a constitional right. I think the state legislatures should handle it. If the pro abortion side had the votes to get an amendment through, the left wouldn’t be exercized about the issue. It is because you don’t have the votes, that this issue is so heated. You don’t have the votes, so you have to rely on unelected judges. In a democracy, to not trust votes of the people shows the weakness of the arguement.

I am prolife. But if the people decide I can live with the outcome. If elected officials decide I can live with the outcome. In my state (Washington), our legislature would adopt pro abortion legislation in a heartbeat. That is ok. At least the people through their legislators had a voice.

Craig

Craig

Posted by: Craig Holmes at October 31, 2005 11:33 PM
Comment #89301

David, great reply to Misha.
You wrote:
“If folks want to remove the choice from other citizens as to whether or not they should become a parent, a Constitutional Amendment is called for.”

You’re absolutely right, IMO. RvW will no doubt be overturned, therefore it is now time for America to vote on a constitutional amendment that will protect a womans autonomy over her reproductive organs, and total privacy between her and her doctor(s).

And in the meantime, as phx8 said, let’s:
“Pin the reversal of RvW on the Republicans.”
Then we’ll see how much the majority of American’s likes religion-based meddling in that which is is none of their damn business.

Posted by: Adrienne at November 1, 2005 12:25 AM
Comment #89305

It is completely unsurprizing that the arguments on this thread (other than maybe Ken) are nothing like the actual argument the Court making in Casey/Roe. It is because the rationale in those cases is so empty as to be almost frivolous, so those who want to defend the outcome in Casey/Roe must come up with something else. We have some other threads of possible arguments here (right to become a parent or not; a strange variant of equal protection never adopted by the Court)- but none that are actually any sort of defense for the undefensible holding of Roe. Since legions of liberal academics cant come up with a good way to defend Roe, its not fair for lay people on a political web-blog to be able to pick them up from their failure.

Posted by: Misha Tseytlin at November 1, 2005 12:52 AM
Comment #89310

David,

It was moral superiority that ended slavery. It was moral superiority that gave blacks the right to vote. It was moral superiority that gave women the right to vote. And yes, you are absolutely correct, that it should be a Constitutional Amendment that gives babies the right to life.

Posted by: Stephanie at November 1, 2005 1:43 AM
Comment #89351

Misha,
You said that “Since legions of liberal academics cant come up with a good way to defend Roe, its not fair for lay people on a political web-blog to be able to pick them up from their failure.” As a Layman, I ask if you are old enough to remember what and how Society was feeling during the time when Roe vs. Wade was settled by the setting Supreme Court?

According to Scalia that he “interprets the Constitution according to the “common sense” meaning and definition of the document’s words at the time they were written.” Given what was happening in our society at the time and the very real Civil Unrest by the Youth of our Nation, Common Sense said that we as a Nation need to move abortion from the back rooms of alleys to a clean medical facility. As far as where the line is between Life/Death and Non Existence, I do believe that even this Supreme Court does not relish settling that issue.

Therefore, it makes “Common Sense” to request our States to rule on Matching Life Laws with those of Death. Therefore, what is found to be Non Existence can be regulated. By this approach, the last cell of a Human Body after death can not be cloned.

Posted by: Henry Schlatman at November 1, 2005 8:59 AM
Comment #89385

Misha,
The pompousness and pretentiousness of your last reply was simply stunning. It must be painful indeed to have to crane ones lawyerly neck from ones high horse toward all of us lay-liberal peasants.

Posted by: Adrienne at November 1, 2005 10:50 AM
Comment #89389

Stephanie:
“It was moral superiority that ended slavery. It was moral superiority that gave blacks the right to vote. It was moral superiority that gave women the right to vote. And yes, you are absolutely correct, that it should be a Constitutional Amendment that gives babies the right to life.”

IMO, it’ll be women and girls bleeding to death, or dying of bacterial infections, or becoming permanently sterile from the return of back-alley abortions that’ll give females a permanent right to privacy and medically safe abortions with a Constitutional Amendment.

Posted by: Adrienne at November 1, 2005 10:57 AM
Comment #89629

Craig said: “I personally don’t have a problem with overturning Roe v Wade as I don’t see abortion as a constitional right.”

This is good. Because the Constitution does not address abortion, at all, period. Abortion is not a constitutional right or wrong. Abortion is a religiously based moral issue. What the Constitution does protect as a right is every citizen’s right to life, liberty, and the pursuit of happiness without undo intrusion by the government. A fetus is not a citizen, but every adult born in this country or naturalized is a citizen.

Hence, the Constitution defends every citizen’s right to choose whether or not to be a parent as part of their right to life, liberty, and the pursuit of happiness. It does not defend the right of a fetus to dictate to its mother host to be born. That is absurd. Nor does the Constituition establish any rights to any fetus other than the natural right of a woman to decide what is best for her, her family and her fetus.

Posted by: David R. Remer at November 2, 2005 1:47 AM
Comment #89661

David,
Would you support a law that brings the legal terms of Life & Death into the same realm of thought by medical terms? While IMO that would protect the unborn child somewhere around the 5th month, the mother’s rights could be protected with a clause that allowed a woman to state her justification for terminating the pregnecy. A moment of reflection if you like; however, it would show that the action was not done out of the heet of passion, but compasion for all that could be wrong.

Posted by: Henry Schlatman at November 2, 2005 6:56 AM
Comment #89730

Henry,

Why should motive be a legal foundation for a personal and private decision? Why is it any of your business? Or my business? Or the gov’ts business?

Posted by: Dave at November 2, 2005 11:45 AM
Comment #89741

Dave,
Motive is a judgment call of a person and should be noted for the record in order to ensure that the woman is not being manipulated by others or being misdirected by the lack of good advice or bad information. Would not that work to only strengthen the woman’s right and insure that her actions where fair and just?

Posted by: Henry Schlatman at November 2, 2005 12:10 PM
Comment #89987

Adrienne,

“IMO, it’ll be women and girls bleeding to death, or dying of bacterial infections, or becoming permanently sterile from the return of back-alley abortions that’ll give females a permanent right to privacy and medically safe abortions with a Constitutional Amendment.”

So, do you also advocate that illegal drugs become legal to stop the risk of secondary infections from shared needles and the deaths via over-dose? If it was all regulated and sterile, drug use should be just fine, right? So, if a guy decides he wants to murder his cheating wife, it’s alright as long as it’s done in a sterile environment, so he doesn’t risk damaging himself? Does that make sense to you?

Oh wait, you don’t care about the babies. You just want to ensure that women can sleep around as much as they want without having to take responsibility for their actions, despite the fact that they have to kill a child to ensure they can carry on with their care-free life-style. Peachy!

Posted by: Stephanie at November 3, 2005 1:31 AM
Comment #89991

David,

“What the Constitution does protect as a right is every citizen’s right to life, liberty, and the pursuit of happiness without undo intrusion by the government.”

Hate to burst your bubble, but “life, liberty and the pursuit of happiness” is NOT Constitutional. It’s from the Declaration of Independence.

The Constitution states:

“WE THE PEOPLE of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the United States of America.”

Unborn children ARE part of our Posterity. And thus, should be provided for under common defense (current spelling), promoted for with regards to their general welfare, and secured with the blessings of liberty.

“Nor does the Constituition establish any rights to any fetus other than the natural right of a woman to decide what is best for her, her family and her fetus.”

And where, pray tell, does the Constitution establish that? The Constitution didn’t even grant women the right to vote, let alone the right to make familial decisions. In the Amendment that gave women the right to vote, did it also grant them to be the sole source of child-rearing decision making? ‘Cause, if it did, you know, I can hold that over my husband when the boys are wrestling too much for my tastes.

Posted by: Stephanie at November 3, 2005 1:47 AM
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