Justice Sandra Day O'Connor to retire

[SobaAddict70]

WASHINGTON, July 1 -Justice Sandra Day O'Connor, the first woman to serve on the United States Supreme Court, announced today that she is resigning, setting off what is expected to be a tumultuous fight over confirming her successor.

Justice O'Connor, 75, is widely viewed as the critical swing vote on abortion, affirmative action and other hot-button issues that have divided the court, and her departure is sure to ignite a passionate ideological battle throughout the summer.

Her departure, which had been the subject of rumors for weeks but was still a surprise, will give President Bush his first opportunity to name a justice to the Supreme Court.

It is still not clear whether Chief Justice William H. Rehnquist, who is battling thyroid cancer and had been widely expected to resign, will step down this summer, giving Mr. Bush another seat to fill.

Mr. Bush scheduled a statement for later this morning in the White House Rose Garden.

In a letter sent this morning to the White House, Justice O'Connor said she would step down as soon as her successor was named.

"It has been a great privilege, indeed, to have served as a member of the court for 24 terms. I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure," she said in the three-sentence letter.

Her decision even took allies of the White House by surprise.

"An O'Connor resignation was not one we took seriously," said C. Boyden Gray, a former White House counsel who founded the Committee for Justice, one of the key advocacy groups set to back whoever the president nominates.

Mr. Gray received a text message during an interview with The New York Times at his Georgetown home shortly after 9:30 this morning informing him of Justice O'Connor's resignation.

"It makes me nervous," he said. "I'm not sure we are as prepared for an O'Connor vacancy."

Will Rehnquist be next?

Let the games begin. :windup:

Stash

[Unholy]

We are ****ed

[SobaAddict70]

Just an observation -- the ideological balance has changed slightly.

Justices who tend to vote liberally -- Stevens, Ginsburg, Souter, Breyer

Justices who tend to vote conservatively -- Rehnquist, Scalia, Thomas

O'Connor tended to vote centrist, as does Kennedy. If Bush nominates a more conservative nominee, nothing has changed essentially.

Also, history has shown that "conservative" nominees tend to mellow their views over time. (e.g., Kennedy)

There will be a passionate battle, to be sure, but I think people are missing the forest for the trees.

[SW]

Expected for retirement soon: Chief Justice William Rhenquist. I wonder how long the Democrats will keep whoever Bush nominates from being confirmed.

[SobaAddict70]

That depends entirely on Bush and his choice of nominee.

Though, as I've said earlier, the institution is such that most worst nightmares tend to not come true.

I predict that for all the sound and fury of the oncoming fight, that the end result will be just another overreaction by both sides.

That doesn't mean that the fight won't be entertaining. :lurk:

Oh, and not just Rehnquist but also Stevens. Stevens is the oldest member of the Court, at 85.

[SW]

Forgot about Stevens. Just watch (my prediction) ANYONE who gets nominated will all of the sudden become a weed smoking environmentalist destroyer. I hope not though.

[SobaAddict70]

No Nick, it's "weed smoking hippie flinging nekkid streaking disgrace-to-the-community-not-hip-enough-and-listens-to-Garth-Brooks (ewwww) slayer of groundhogs and furry cute things red meat burger eaters environmentalist killer of trees Dark Side adept One-Ring-to-rule-them-One-Ring-to-find-them-One-Ring-to-bring-them-all-and-in-the-darkness-bind-them Force destroyer"

Get it right. ;)

[SW]

Oh yeah, how could I have forgotten THAT Stash lol.

[Tryska]

well i was really hoping to not have my summer ruined by the drama of picking a supreme, but no such luck.

on the one hand - it's trading one conservative for another - unfortunately Justice o'Connor is a somewhat sensible conservative judge - not an idealogue.


actually i'd totally prefer that all judges not be aligned with any particular party - because Justice is supposed to be blind and all that.


either way - i'm really hoping for a normal, non-partisan, non-judicial activist judge - however - dubya has a knack for bringing the suckiest possible candidate ever for whatever appointment he needs. his appointments aren't made on what America needs - it's made on who of his posse needs a better job or soemthing.

who knows what will happen this time around.

[Tryska]

what do you mean soba? (missing the forest for the trees, i mean)

[Canadian Crippler]

well i was really hoping to not have my summer ruined by the drama of picking a supreme, but no such luck.This ruins your summer?

[Unholy]

You have no idea how much we are all effected by these choices, you should be very happy you are in canada right now ;)

[Tryska]

This ruins your summer?

yeah - because it takes the partisan hatefest that is US politics these days up a notch.

I was hoping for peace and quiet so we could attend to some other pressing matters before the fall, but it's going to blaring talking heads blaming each other for this that and the other until someone's confirmed.


Unless of course dubya doesn't nominate some nutjob. then maybe it won't be so bad.

[SW]

I'm guessing "nutjob" refers to any conservative. i predict a long, drawn out battle. The same thing happens these days when Demcrats don't win or are at a disadvantage. With Bolton, 2000 election, etc. Another huge political battle as Tina said is brewing.

[BG5150]

John Roberts is my man for the job....

[Garrix]

its a sad day when ideology is the arbiter of who gets most important judicial position in the nation, the founders didnt want that, as the judicial branch is supposed to be independent of politics.

In Denmark the judicial branch is completely separate, meaning those appointed as judges are decided on by judges and not by politicians. what a crazy concept, eh?

[Unholy]

lucky :D

[Tryska]

I'm guessing "nutjob" refers to any conservative. i predict a long, drawn out battle. The same thing happens these days when Demcrats don't win or are at a disadvantage. With Bolton, 2000 election, etc. Another huge political battle as Tina said is brewing.


No - i'm already presuming the nominee will be a conservative. nutjob refers to underqualified judicial activist.

[Unholy]

lol, I hate our judicial system.

[SobaAddict70]

what do you mean soba? (missing the forest for the trees, i mean)

I mean that the institution is a fiercely independent institution, with its own set of precedents and traditions. A freshman justice might exhibit loyalty to a president but the longer a justice serves, the more likely it is that a justice will mellow or change over time.

Talk of "legacy" or "Chicken Little" is quite shortsighted and tends to miss the forest for the trees. The possibility of keynote cases such as Roe v. Wade (right to abortion) or Lawrence v. Texas (legalization of sodomy, overturning of the 1986 case Bowers v. Hardwick) being overturned soon is somewhat unlikely. People are forgetting that there are eight other judges to contend with. Re Lawrence v. Texas, I might remind some of our more politically inclined members :p :windup: :rolleyes: that it was Justice Kennedy, a moderate conservative who wrote the opinion for the 6-3 majority case.

Also, not all conservatives are created equal, although other people may have less charitable opinions regarding this view. As pointed out elsewhere (http://www.nytimes.com/2005/07/03/weekinreview/03rosen.html), no less than five different types of conservatives sit on the current Court.

"Crotch" (my nickname for Bush) is many things, but one thing he is not is stupid even though a few people, yours truly included, like to think of him as such from time to time. :angel:

Stash

[Tryska]

interesting article. and i dig what youa re syaing Soba - it's kinda why i';m dreading the battle more than the pick at this point.


and i can't believe i'm gonna say this, but Gonzales might be the most palatable choice at this point - altho I really don't dig his counsel on Gitmo…that's got me feeling ambivalent.

[SobaAddict70]

See, that's what I'm saying.

It's one thing to have an established paper trail that people can point to and say, "look, here's what this guy thinks about issue _________". though, that begs the question, is it really what candidate X thinks about issue ___________? Alberto Gonzales is the U.S. attorney general. He's supposed to uphold the law and the administration's policies. Can't bite the hand that feeds you, and such and such.

Now, if Alberto becomes a justice, that's a completely different ball game. Paper trails and such become a bit meaningless when you're part of an institution that makes such an indelible stamp on American culture. Look at Anthony Kennedy (Bush Sr.), David Souter (Bush Sr.), Sandra Day O'Connor (Reagan) and John Paul Stevens (Ford).

It's not so simple now, is it?

If only people would just take a chill pill or something. Someone should write a screenplay. We could call it "Star Wars". :angel:

Stash

[Tryska]

the thing that has me feeling ambivalent about Gonzales tho - isn't the memo itself - so much as his willingness to right the memo - toadying isn't a good quality in a Supreme. and it's a character flaw - it's within the man himself.


What do you know about Luttig? I ddin't know much about him, but from what i'm reading he seems a little more my speed. Like soemone who could relish that independence of thought being a Supreme brings.

[SobaAddict70]

What was Gonzales supposed to do re the memo? Seriously. The charge of toadying is irrelevant, in my opinion. He's the U.S. attorney general, not a private citizen. He might have disagreed with things privately, but that's not what he's being paid to do.

Luttig is interesting, but perhaps not as radical as someone like Janice Brown. You (and other libertarians on this board) would do well to become familiar with the phrase "Constitution In Exile", which describes a movement by certain conservatives to advocate for a return to constitutional principles by the judiciary prior to the 1930s. No doubt Bush is familiar with this particularly obscure movement -- obscure in the sense that it's unknown to the general public, but not to individuals who've been keeping abreast of developments in this particular area of interest. Click here (http://72.14.207.104/search?q=cache:1NmwVY7LuYUJ:www.americanprogress.org/atf/cf/%257BE9245FE4-9A2B-43C7-A521-5D6FF2E06E03%257D/constitution_in_exile.pdf+constitution+exile+luttig&hl=en), here (http://spaghetti.nujus.net/dsus/archives/000496.html) and here (http://prawfsblawg.blogs.com/prawfsblawg/2005/04/note_still_in_d.html). The second link leads to the text of an article written by Jeffrey Rosen that appeared in the New York Times Sunday magazine earlier this year. I have the issue sitting on my desk actually. Ignore the hysterical theatrics that appears atop the article. It's a well-written piece albeit slightly biased towards a certain point of view. ;) (I'm being understated here. Some of you may have less charitable views.) Based on paper trail alone, I would oppose Brown more than Luttig, as Brown tends to be less moderate than Luttig in her beliefs. (If Brown is nominated, the Democrats will be hard pressed to reject the notion of a female African-American candidate without making an incredibly good case as to why.)

For an overview of cases in which Luttig has presided, click here (http://www.dkosopedia.com/index.php/Michael_Luttig). For Brown, click here (http://www.pbs.org/now/politics/brown.html). (Sorry, I could not find any mention in dkosopedia about Judge Brown.)

Stash

[Gyno Rhino]

This ruins my summer, too...

Now I have to moderate all of the discussions on the topic. :(

[Tryska]

you know for all of Thomas's talk - and for the most part his actions have proven his decisions - i'm still throughly confused as to why he voted the way he did in Bush V Gore. (if he is a staunch State's rights, guy, as he states)


in any case - Brown is a definite nogo imo - she qualifies as a nutcase. i'm favoring Luttig at this point.


as for your initial comments on Gonzales - i guess it depends on what you believe the AGs role is - is the AG supposed to be the Administration's "Consigliere" - or the guy that upholds the Nation's laws?

[ElPietro]

It is clear to me that Vin Diesel should be elected as the next Chief Justice.

[SobaAddict70]

He was asked to perform a function, and did. What part of that was unclear?

Can you permit yourself to drop the anti-Bush sentiment for once, and have a reasonable discussion? Phrases such as "the Administration's consigliere" are unhelpful and contribute little, if anything.

Stash

[Gyno Rhino]

Agree with Soba.

Painting everything with the "Evil-Bush" brush is really, really old.

[Tryska]

He was asked to perform a function, and did. What part of that was unclear?

Can you permit yourself to drop the anti-Bush sentiment for once, and have a reasonable discussion? Phrases such as "the Administration's consigliere" are unhelpful and contribute little, if anything.

Stash

this is far from simple anti-bush sentiment.



the function he was asked to perform was to figure out a way to make torture of prisoners acceptable and reconcile it with the constitution and geneva conventions.

And he performed that duty without a qualm, at the request of an American administration.

this really doesn't trouble you in the least?


incidentally - i think consigliere is the perfect term from Gonzales role in the Administration. altho it works for Rove too.

[SobaAddict70]

No, it doesn't.

I'm not a fan of Bush myself but I think I can disengage from my dislike of him and his colleagues and participate in a calm, rational discussion of American politics.

As for:


the function he was asked to perform was to figure out a way to make torture of prisoners acceptable and reconcile it with the constitution and geneva conventions.

This statement is specious, and unless you can point to a credible source, I cannot accept it on face value.

Congress passed a resolution in September 2001 that states:


The president is authorized to use all necessary and appropriate force against persons he determines planned, authorized, committed or aided the terrorist attacks.

That supersedes the memos written by Gonzales et al.

In addition, Gonzales in his capacity as White House counsel wrote a memo which advised Bush on the consequences of certain courses of action. (I correct my earlier statements saying that he authored the memoranda as U.S. attorney general.)

The question you should be asking is if Gonzales did anything illegal that would prevent him from being a Supreme Court justice. What is legal and what is right are not always the same thing.

Given that the nominee is going to be a conservative, you have to hold your nose and pick the lesser of the many evils.

Stash

[Tryska]

i'll direct you back to dkosopedia for what you are asking:

http://www.dkosopedia.com/index.php/Alberto_Gonzales

in any case - i definitely agree that one has to hold their nose and pick - and i stand by my decision to favor Luttig - particularly his stance on Hamdi V Rumsfeld - which is what has put me firmly in his column in comparison to Gonzales.

[Gyno Rhino]

which is what has put me firmly in his column in comparison to Gonzales.

I'm sure Congress will keep your preference in mind.

Have you written your gov folks yet to tell them your opinion? If you don't, it's not really going to matter what you think on it.

[Tryska]

as a matter of fact, me and a few people i know are preparing letters, but we're waiting to see who exactly winds up getting nominated before speaking with our congresspeople.

if luttig doesn't make it to nomination stage, and gonzales does - i'd be okay with gonzales - but he is definitely not my favorite of the bunch. second favorite maybe.

[Mission]

I lost all faith in the SCOTUS when they declared an end to the recount of uncounted Florida ballots.

[SobaAddict70]

i'll direct you back to dkosopedia for what you are asking:

http://www.dkosopedia.com/index.php/Alberto_Gonzales

but none of those actions were illegal.

unconscionable, yes, and unconstitutional in the end...but perfectly legal (or was at the time of drafting.)

it's quite a leap of logic, even for you, to say that Gonzales broke the law on these instances. as for his Enron connection, he is probably required by law to recuse himself from the investigation.

Stash

[Tryska]

but none of those actions were illegal.

unconscionable, yes, and unconstitutional in the end...but perfectly legal (or was at the time of drafting.)

it's quite a leap of logic, even for you, to say that Gonzales broke the law on these instances. as for his Enron connection, he is probably required by law to recuse himself from the investigation.

Stash


i'm not questioning legality - never did.

i'm questioning conscience and constitutionality.

and if the Constitution is our law - and the Supremes are in charge of interpreting the constitution, how can one support, without reservation, someone who's crafted legislation that is truely unconstitutional at worst, and morally hazy at best?

[Jorge Sanchez]

Ummmm...... unconstitutional = illegal as the constitution is the highest law.

[Tryska]

*lol*


good point.

i guess i did accuse him of illegality.

[Tryska]

altho i think illegality is like sin.

there are mortal and venial varieties.

at least in practice.

[SobaAddict70]

Ummmm...... unconstitutional = illegal as the constitution is the highest law.

I said, "unconstitutional in the end, but perfectly legal (or was at the time of drafting)"

Read it again if I was unclear.

[Jorge Sanchez]

Ok, I get it now. Somewhat manipulatively worded though, especially since you said in an earlier post that he did nothing illegal.

[Jorge Sanchez]

Nevermind. Brain fart.

[SobaAddict70]

i'm not questioning legality - never did.

i'm questioning conscience and constitutionality.

and if the Constitution is our law - and the Supremes are in charge of interpreting the constitution, how can one support, without reservation, someone who's crafted legislation that is truely unconstitutional at worst, and morally hazy at best?

Except that the constitutionality of the rulings regarding the Gitmo detainment procedure were in dispute until the Supreme Court made their decision last summer.

"Morally hazy" is irrelevant. Conflict is morally hazy but a necessary fact of life.

You would be correct if in fact he wrote those memos as attorney general and not as White House counsel. The fact that you don't like Gonzales for what you consider to be reprehensible behavior (and by the way, I agree wholeheartedly) is not a good excuse as far as his suitability to be a Supreme Court justice is concerned.

[SobaAddict70]

Ok, I get it now. Somewhat manipulatively worded though, especially since you said in an earlier post that he did nothing illegal.

I'm a paralegal. It's part of my job to play footloose with words.

He did nothing illegal. He didn't break the law. He drafted something that was later ruled to be unconstitutional. Unconstitutionality is not the same thing as illegal.

Laws are created all the time that are later struck down by courts. Were those laws illegal?

[Jorge Sanchez]

That's why I said:
Nevermind. Brain fart.

[Tryska]

You would be correct if in fact he wrote those memos as attorney general and not as White House counsel. The fact that you don't like Gonzales for what you consider to be reprehensible behavior (and by the way, I agree wholeheartedly) is not a good excuse as far as his suitability to be a Supreme Court justice is concerned.

to you, or to those that evenutally decide whether he gets to be a Supreme or not.


to me, his reprehensible behavior is precisely why i feel ambivalent about supporting him. There are other aspects of his record that balance that ambivalence, but i still can't with a whole heart say i can accept this guy.


I can say that with Luttig. I may disagree with some of his views - but i feel no ambivalence, if he were to be nominated.

[SobaAddict70]

to you, or to those that evenutally decide whether he gets to be a Supreme or not.


to me, his reprehensible behavior is precisely why i feel ambivalent about supporting him. There are other aspects of his record that balance that ambivalence, but i still can't with a whole heart say i can accept this guy.


I can say that with Luttig. I may disagree with some of his views - but i feel no ambivalence, if he were to be nominated.

Fair enough. Though I still think you're letting your dislike of Bush cloud your dialogue.

However, personal dislike for what you consider to be troubling aspects of behavior are not qualitative or substantive reasons to disqualify a nominee for government office. The bar of reasonable doubt is much higher than that, and the same goes for senators who sit on the Judiciary Committee.

[Tryska]

Fair enough. Though I still think you're letting your dislike of Bush cloud your dialogue.

my dislike for bush clouds the dialogue in that i find it highly bloody unlikely that he will nominate anyone reasonable who's last name isn't Gonzales, but that's about it.

but my ambivalence on Gonzales himself, is based purely on Gonzales and Gitmo.


However, personal dislike for what you consider to be troubling aspects of behavior are not qualitative or substantive reasons to disqualify a nominee for government office. The bar of reasonable doubt is much higher than that, and the same goes for senators who sit on the Judiciary Committee.

yes.

[SobaAddict70]

my dislike for bush clouds the dialogue in that i find it highly bloody unlikely that he will nominate anyone reasonable who's last name isn't Gonzales, but that's about it.

There are other factors at work here besides the nomination of Gonzales.

With Sandra Day gone, there remains only one female justice on the Court. Therefore, Bush will feel intense pressure to name a female nominee or barring that, someone who is at least more moderate than either Luttig or Gonzales.

There are several other names on the short list, namely Edith Brown Clement, Edith H. Jones, William Pryor, J. Harvie Wilkinson, III, Michael W. McConnell and John G. Roberts, Jr.

[Tryska]

i dunno- from what i've read - luttig and gonzales seem to be the most moderate of the lot.


i do understand the pressure to nominate another female tho.

[SobaAddict70]

The price of getting what you want is getting what you once wanted.

Something to keep in mind, especially for Bush. ;)

[Tryska]

The price of getting what you want is getting what you once wanted.

Something to keep in mind, especially for Bush. ;)


yeah, you ain't lying...

[Mission]

Bill Clinton for SCOTUS!

[Gyno Rhino]

I would have voted for John Kerry if I'd have known how much whining you all do.

Geez.

[Paul Stagg]

I'm trying to figure out what being 'moderate' has to do with being a supreme court judge. Further, I have no idea what race or gender has to do with it.

I think understanding and applying the Constitution and rule of law would be much more important.

Of course, when you look at the current court, the one judge who best fits that is the evil incarnate Justice Thomas.

[Mission]

I would have voted for John Kerry if I'd have known how much whining you all do.

Geez.

I'm actually a libertarian who supports dems only because libertarians currently have no chance of winning presidential elections or senate races. The only democrat I truly like is Al Gore.

[SobaAddict70]

I'm trying to figure out what being 'moderate' has to do with being a supreme court judge. Further, I have no idea what race or gender has to do with it.

I think understanding and applying the Constitution and rule of law would be much more important.

Of course, when you look at the current court, the one judge who best fits that is the evil incarnate Justice Thomas.

Gee, Paul.

I wonder what being moderate has to do with being a legislator or a President. After all, understanding and applying the Constitution in relation to the desires of the populace and rule of law would be much more important.

Of course, when you look at the current Congress (or even the past ten Presidents), no one best fits that outlook. ;)

[ElPietro]

I'm actually a libertarian who supports dems only because libertarians currently have no chance of winning presidential elections or senate races. The only democrat I truly like is Al Gore.

Ah, my biggest political pet peeve reloaded. You are NOT a libertarian. You are exactly why your party will NEVER have a chance. You do not vote based on who you think will win, you vote on what you believe in.

If you think you simply go from fringe party to miraculous winner of a presidential election overnight, then that is just ignorant. Perhaps if enough Libertarians stopped pussying out and voting for who they think will win, the party would get more notice. If they get more votes, they will be taken seriously, more people will read their material, more people will contribute to the campaigns, and over the course of several elections, YES people will actually start to believe there is a chance to win an election.

Unfortunately, with the above attitude, there will never be anything other than a two party system in the United States. So there is only one person to blame when you are bitching on election day that there are no viable candidates.

[Tryska]

Of course, when you look at the current court, the one judge who best fits that is the evil incarnate Justice Thomas.

i would agree with you, except in the case of Bush v Gore.


that case should have been scuttled back to the State court where it belonged.

[SobaAddict70]

The funny thing with "activist judges" is that the phrase best fits both typical liberal targets like Souter and Stevens and conservative targets like Rehnquist and Scalia.


WHEN Democrats or Republicans seek to criticize judges or judicial nominees, they often resort to the same language. They say that the judge is "activist." But the word "activist" is rarely defined. Often it simply means that the judge makes decisions with which the critic disagrees.

In order to move beyond this labeling game, we've identified one reasonably objective and quantifiable measure of a judge's activism, and we've used it to assess the records of the justices on the current Supreme Court.

Here is the question we asked: How often has each justice voted to strike down a law passed by Congress?

Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act "of great delicacy, and only to be performed where the repugnancy is clear." Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred.

Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like one reasonable definition of judicial activism.

Since the Supreme Court assumed its current composition in 1994, by our count it has upheld or struck down 64 Congressional provisions. That legislation has concerned Social Security, church and state, and campaign finance, among many other issues. We examined the court's decisions in these cases and looked at how each justice voted, regardless of whether he or she concurred with the majority or dissented.

We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

To say that a justice is activist under this definition is not itself negative. Because striking down Congressional legislation is sometimes justified, some activism is necessary and proper. We can decide whether a particular degree of activism is appropriate only by assessing the merits of a judge's particular decisions and the judge's underlying constitutional views, which may inspire more or fewer invalidations.

Our data no doubt reflects such differences among the justices' constitutional views. But it even more clearly illustrates the varying degrees to which justices would actually intervene in the democratic work of Congress. And in so doing, the data probably demonstrates differences in temperament regarding intervention or restraint.

These differences in the degree of intervention and in temperament tell us far more about "judicial activism" than we commonly understand from the term's use as a mere epithet. As the discussion of Justice Sandra Day O'Connor's replacement begins, we hope that debates about "activist judges" will include indicators like these.

Correction

Because of an editing error, this article misstated the date the court started. Its first official business began in 1790, not 1791.

Link (http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html) to the article. The article was jointly written by a professor and a recent graduate of Yale Law School.

I'd never have thought Justice Thomas aka "The Prince of Darkness" ;) would be an activist judge. How ironic.

[Paul Stagg]

Does that article get into the constitutionality of the laws that were struck down? Judicial activism is commonly defined as either legislating from the bench, or allowing unconsititutional laws to stand (ie the ruling on sobriety checkpoints).

Just so we are all talking about the same thing - given the abuse of the Constitution by the Congress, I'd certainly be more inclined to want an 'activist' using the definition in the report.

[SobaAddict70]

That's the entire article, so I guess the answer would be "no".

They acknowledge that other measures are possible to determine the meaning of "activist judges". Make of it what you will.

[Paul Stagg]

Oh, I'm fine with that - I'm not someone throwing around the 'activist' label. I'm concerned only with how they interpret the constitution and case law.

Recently, for example, the SCOTUS ruled that it is unconstitutional to apply the death penalty to someone under 18.

I happen to agree with that ruling (because I think the death penalty is unconstitutional), however, part of the basis for the ruling was international opinion. They (kennedy, if I recall correctly) actually included in the ruling that because other countries think it's wrong, we should think it's wrong, too. That's not a judge I want on the court.

[Paul Stagg]

Ah, my biggest political pet peeve reloaded. You are NOT a libertarian. You are exactly why your party will NEVER have a chance. You do not vote based on who you think will win, you vote on what you believe in.

If you think you simply go from fringe party to miraculous winner of a presidential election overnight, then that is just ignorant. Perhaps if enough Libertarians stopped pussying out and voting for who they think will win, the party would get more notice. If they get more votes, they will be taken seriously, more people will read their material, more people will contribute to the campaigns, and over the course of several elections, YES people will actually start to believe there is a chance to win an election.

Unfortunately, with the above attitude, there will never be anything other than a two party system in the United States. So there is only one person to blame when you are bitching on election day that there are no viable candidates.

You be teh correct.

[Mission]

Ah, my biggest political pet peeve reloaded. You are NOT a libertarian. You are exactly why your party will NEVER have a chance. You do not vote based on who you think will win, you vote on what you believe in.

If you think you simply go from fringe party to miraculous winner of a presidential election overnight, then that is just ignorant. Perhaps if enough Libertarians stopped pussying out and voting for who they think will win, the party would get more notice. If they get more votes, they will be taken seriously, more people will read their material, more people will contribute to the campaigns, and over the course of several elections, YES people will actually start to believe there is a chance to win an election.

Unfortunately, with the above attitude, there will never be anything other than a two party system in the United States. So there is only one person to blame when you are bitching on election day that there are no viable candidates.

There is no chance of a libertarian winning a presidential election with our RWSM (right wing spin media). 3rd party candidates are not even aloud in the presidential debates (since Perot way back when). There isn't enough money for a libertarian to win.

[SobaAddict70]

There is no chance of a libertarian winning a presidential election with our RWSM (right wing spin media). 3rd party candidates are not even aloud in the presidential debates (since Perot way back when). There isn't enough money for a libertarian to win.

Too much of a simplification.

History has shown that third parties who manage to enter into mainstream politics get subsumed or incorporated into the either of the two main political parties.

Much of the two party sickness in America has to do with how the voting public thinks. It's a lot more complex than simply throwing money to a cause or candidate that you believe in. You have to change the way people think while making sure that your message isn't being co-opted by the establishment.

Of course, you also have to pray that your candidate doesn't shoot himself in the foot or self-destructs some other way. Perot actually won 8% of the vote in the 1992 presidential election. Not bad for a first time showing. However, by the time of the 1996 presidential election he was little more than a memory, due in part to some of his misstatements and gaffes.

[SobaAddict70]

I happen to agree with that ruling (because I think the death penalty is unconstitutional), however, part of the basis for the ruling was international opinion. They (kennedy, if I recall correctly) actually included in the ruling that because other countries think it's wrong, we should think it's wrong, too. That's not a judge I want on the court.

Part of the basis of the Constitution are philosophical concepts articulated by English thinkers of the seventeenth century. I suppose you'd want to rewrite the Constitution too?

[Paul Stagg]

What does that have to do with what I posted?

The Constitution is what it is. What the French think of it now doesn't matter, and has nothing to do with how the court should rule.

And yes, I would rewrite some of the Constitution.

[SobaAddict70]

What does that have to do with what I posted?

The Constitution is what it is. What the French think of it now doesn't matter, and has nothing to do with how the court should rule.

And yes, I would rewrite some of the Constitution.

It has to do with the fact that Kennedy's opinion is based in part on international opinion.

The Constitution is a legal document based in part on philosophical thought by foreign thinkers. I suppose Locke is irrelevant, never mind that his precepts form much of our constitutional framework. Mmmm, I guess Montesquieu should be discounted. He's French, wasn't he? ...never mind the fact that the Declaration of Independence was partially derived from his writings.

And as you said, it is what it is.

[Paul Stagg]

That's not what I'm saying, and I think you know it.

The source of the Constitution isn't relevant to this discussion. What's relevant is that is the document the court is to use as the basis for it's rulings, not what the current international political climate is.

If people in France think Americans shoudln't be allowed to engage in political speech, the court should not then decide that a law passed by congress that limits political speech should be allowed.

[SobaAddict70]

In case you've missed the point I'm trying to make, here it is again:

Many things are derived from other things, whether they be court opinions or historical legal documents proclaiming the justification for the birth of a nation. *Especially* as regards court opinions. A precedent in one jurisdiction can be and is usually applied in another. International precedents rarely if ever are applicable in American jurisprudence; this is more common outside of the U.S.

Our basic constitutional structure is derived in part from the writings of individuals of international origin. It is incredibly arrogant to think that just because we happen to be the sole remaining superpower, that we are our island and the rest of the world doesn't exist. You might not have said that per se, but that's what it translates to.

If the opinions of foreign nationals don't much matter, then why in blazes do we bother having something called foreign policy? Why bother having a Secretary of State? :scratch:

[SobaAddict70]

You introduced the topic of extraneous source material that the Court uses in its rulings into this discussion, did you not? So I feel justified and compelled in pointing out parallels between your tangent and mine.

The Constitution remains the primary basis by which SCOTUS makes its rulings. Of secondary importance are precedents drawn from the body of American jurisprudence. Of tertiary and possibly trivial importance is the fact that some justices are wont to draw from other, non-American sources. Methinks you're making a mountain of a molehill.

And no, I don't think it's irrelevant at all, but we'll just have to agree to disagree.

[Gyno Rhino]

I'm actually a libertarian who supports dems only because libertarians currently have no chance of winning presidential elections or senate races.

You're not a libertarian - you're a man with no principles.

[Paul Stagg]

So if another country thinks that we should keep women wrapped in burkas, the SCOTUS should consider that, too?

The role of the supreme court is clear. Considering the opinion of the international community while making a ruling is not anywhere near that scope.

[Gyno Rhino]

Ah, my biggest political pet peeve reloaded. You are NOT a libertarian. You are exactly why your party will NEVER have a chance. You do not vote based on who you think will win, you vote on what you believe in.

If you think you simply go from fringe party to miraculous winner of a presidential election overnight, then that is just ignorant. Perhaps if enough Libertarians stopped pussying out and voting for who they think will win, the party would get more notice. If they get more votes, they will be taken seriously, more people will read their material, more people will contribute to the campaigns, and over the course of several elections, YES people will actually start to believe there is a chance to win an election.

Unfortunately, with the above attitude, there will never be anything other than a two party system in the United States. So there is only one person to blame when you are bitching on election day that there are no viable candidates.

I wonder if this rant ever does ANY good? I sure hope so, cause if not, I've wasted about 1000 monologues over the course of my lifetime.

Cowards, that's what it boils down to.

[Gyno Rhino]

There is no chance of a libertarian winning a presidential election with our RWSM (right wing spin media). 3rd party candidates are not even aloud in the presidential debates (since Perot way back when). There isn't enough money for a libertarian to win.


And you understand things will stay that way as long as you don't vote for them?

God forbid you put your money where your mouth is and try to make a difference.

[SobaAddict70]

So if another country thinks that we should keep women wrapped in burkas, the SCOTUS should consider that, too?

This statement is specious, and you know it. But since you asked, the answer is probably going to be "no".

I took a look at the opinion which you can read by clicking here (http://straylight.law.cornell.edu/supct/html/03-633.ZS.html).

Here is a short paragraph that is appended to the end of the opinion:


c) The overwhelming weight of international opinion against the juvenile death penalty is not controlling here, but provides respected and significant confirmation for the Court’s determination that the penalty is disproportionate punishment for offenders under 18. See, e.g., Thompson, supra, at 830—831, and n. 31. The United States is the only country in the world that continues to give official sanction to the juvenile penalty. It does not lessen fidelity to the Constitution or pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples underscores the centrality of those same rights within our own heritage of freedom. Pp. 21—25.

(emphasis mine)

In fact, it is the only place where "international opinion" makes its appearance in the entire opinion. Still seems like a molehill to me.

[Paul Stagg]

So the SCOTUS should only consider 'some' international opinion? Which opinion? Who decides? It has NO place in the ruling.

This stuff always starts as a molehill.

[SobaAddict70]

So the SCOTUS should only consider 'some' international opinion? Which opinion? Who decides? It has NO place in the ruling.

This stuff always starts as a molehill.

*shrug*

Write a letter to your representative or something if you feel that strongly about it.

Though in your defense, Scalia said more or less the same thing in his dissent. :windup:

[Paul Stagg]

Scalia isn't high on my list of favorite people.

Thing is, there is a place for considering international law and international opinion. it could be the French do some things well, and that the US could apply that to law. But that is the role of the legislative branch, not the judicial.

I'm perfectly fine with the legislature thinking a law based on something that is common in other countries (ie, a law outlawing execution of people under 18). But the role of the court is very specific - to look at the new law and decide if it matches up with the Constitution.

A law prohibiting the execution of people under 18 might be appropriate. It is not, however, an appropriate ruling of the court, as the Constitution doesn't say there is an age limitation on cruel and unusual punishment. How is executing a 17 year old cruel and unusual, but executing a 18 year old not? It either is, or it isn't.

But that's a discussion for another day.

[Mission]

And you understand things will stay that way as long as you don't vote for them?

God forbid you put your money where your mouth is and try to make a difference.

After Nader literally handed the 2000 election to Bush (well, Katherine Harris too), I decided that until a 3rd Party Candidate is airing commercials, is aloud in the debates, and has a decent percent in polls, he or she useless.

[Songsangnim]

After Nader literally handed the 2000 election to Bush (well, Katherine Harris too), I decided that until a 3rd Party Candidate is airing commercials, is aloud in the debates, and has a decent percent in polls, he or she useless.



And if enough people think that way, this will ensure that 3rd party candidates will never get air time, allowed in the debates or have a decent percentage in the polls.

It may as you say be useless, but at least you are using your vote to make a statement (even if it winds up being a statement of protest). If as you feel your vote doesn't count for anything, then you could use it as a expression of your beliefs and principles. At least that way it counts for something, even if you are the only one who knows about it.



(I could write more, but I've got a flight to catch)

[SobaAddict70]

After Nader literally handed the 2000 election to Bush (well, Katherine Harris too), I decided that until a 3rd Party Candidate is airing commercials, is aloud in the debates, and has a decent percent in polls, he or she useless.

In other words....never?

[Gyno Rhino]

After Nader literally handed the 2000 election to Bush (well, Katherine Harris too), I decided that until a 3rd Party Candidate is airing commercials, is aloud in the debates, and has a decent percent in polls, he or she useless.


So you feel that a third party decided the 2000 election...

Yet you feel they're useless?

I'd say they played a pretty important part.