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Thursday, July 07, 2005

Considering the Supreme Court

Expat Teacher posted an interesting comment yesterday that I want to address as a post. His full comment can be found here. I want to discuss a couple of his points.
"Judges are given a life-long powerful position. They are the closest we have to a king." - Expact Teacher

This is patently false. Supreme Court justices are NOT like kings. Unfortunately they have become something like this because our legislative and executive branches have allowed them to. I go nuts when I hear people talk about "checks and balances" as if this has something to do with our two-party system and the minority party acting as a balance to the majority party. "Checks and balances" is the system in which no branch of government can dominate over the others. In this way, judges are not at all like kings; they can be impeached. And their rulings can be overcome by Constitutional amendments.

"Ideology should be important. The Democrats have been slammed for not having any "values" and no one knows what they stand for. Why can't they use this appointment (assuming it is someone the Religious Right is happy with) to stand up and say this appointee's ideology is bad for America? If they truly believe that the appointee is bad for America, why can't they deny a vote?" - Expat Teacher

I actually have no problem with voting on ideology, so long as those doing the voting are open and honest about what they are really voting for. This idea of denying a vote is so cowardly. If Bush puts forth a nominee that Democrats don't like, why are they afraid to go on the record publically as opposing said nominee?

"the President was elected with a very small majority and he certainly didn't run on specific Supreme Court nominees so that people could evaluate them. He was purposefully vague." - Expat Teacher
The margin of victory by Bush has absolutely zero bearing on the issue. He is the President, not half-president. As such, this is his decision, in the same way that Clinton had the same prerogative. While Bush did not mention any particular individuals that he might nominate, he was not at all vague about the type of jurist he would nominate. He was quite clear during the second debate with Kerry when asked about this:
I would pick somebody who would not allow their personal opinion to get in the way of the law. I would pick somebody who would strictly interpret the Constitution of the United States.

Let me give you a couple of examples, I guess, of the kind of person I wouldn't pick.

I wouldn't pick a judge who said that the Pledge of Allegiance couldn't be said in a school because it had the words "under God" in it. I think that's an example of a judge allowing personal opinion to enter into the decision-making process as opposed to a strict interpretation of the Constitution.

Another example would be the Dred Scott case, which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights.

That's a personal opinion. That's not what the Constitution says. The Constitution of the United States says we're all -- you know, it doesn't say that. It doesn't speak to the equality of America.

And so, I would pick people that would be strict constructionists. We've got plenty of lawmakers in Washington, D.C. Legislators make law; judges interpret the Constitution.

And I suspect one of us will have a pick at the end of next year -- the next four years. And that's the kind of judge I'm going to put on there. No litmus test except for how they interpret the Constitution.
Finally, one more point from Expat:
"Also, while the Republicans do hold a numerical advantage in the Senate, the 44 Democrats represent a greater number of Americans than the 55 Republicans. Considering that, for the Democrats to use a filibuster and/or other manuevers to ensure the vacancy is filled with someone reasonable - a Reagan conservative, I believe is the accepted terminology- isn't an abuse of power." - Expat Teacher
This idea that the 44 Democrats in the Senate represent more population than the Republicans is irrelevant to the discussion. The structure of the Senate is not intended to proportionally represent the population of the United States; it is intended to protect the minority interests of those states with a lesser population to ensure that the country isn't dominated by the large states such as New York and California. And if proportional representation is what you are looking for, well, you have the House, don't you. Of course, that isn't very convenient as the Republicans hold a majority there as well.

Your last comment about Democrats being willing to accept a "Reagan conservative" is beyond laughable. Surely you jest, my friend. ("Don't call me Shirley!"). No, the only nominee acceptable to the Left is a Leftist one who will of course be positioned as a centrist. And don't even start with the ol' "O'Connor was a Reagan conservative". Even my Marxist attorney friend says:
"hallelujah. the most incoherent justice ever to sit on the bench is finally off."

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