Rehnquist died

[esskreemr]

Originally Posted by Have At You

Not by any count or recount that I've heard of.

http://www.fec.gov/pubrec/2000presgeresults.htm

2000 OFFICIAL PRESIDENTIAL GENERAL ELECTION RESULTS
General Election Date: 11/7/00
Updated: December 2001
Source: State Elections Offices

Bush: 50,456,002 47.87%
Gore: 50,999,897 48.38%

A win's a win. That's how it works. Would you deny Clinton's legitimacy though he failed to get a majority the first time?

Different form of 'majority'. Clinton won by a plurality. He didn't lose the popular vote.

"presided over" does not mean "caused." I'd say he's presided over a failure to properly fix the failures created by the Clinton administration.

I'd say you've been smoking crack for the majority of your life. It's been 5 years. That poor, tired excuse gets old, real fast.

* Did Clinton demote FEMA from a cabinet-level position and place it under the USDHS where its funds were used elsewhere? No Bush did.
* Did Clinton appoint 2 consecutive FEMA directors with no natural disaster experience? No, Bush did.
* Did Clinton reduce funding to the levee system by as much 80% since 2003? No, Bush did.
* Did Clinton actively ignore a report that predicted, in 2001, that a breech in the levies of Louisiana would be one of the Nation's worst tragedies. This report was published before 9/11 and listed: 1) A terrorist strike in New York, 2) A hurricane in Louisiana, 3) Earthquake in California. No, Bush did, twice actually.

Not sure the vast majority of Afghanis and Iraqis would agree with you there.

Ok. Why don't we poll them?

I seem to have missed that.

You seem to have missed quite a bit...

Anyway, 2 justices in 2 terms isn't such a big deal.

?!?!?!?!?!?!?!?!?!?!?!

You're right. It's not such a big deal. It's a huge deal. It has the potential to completely reshape the Supreme Court. It's happened once in our history.

Even if he were inclined to nominate unqualified people, which I doubt, morons and incompetents are unlikely to be nominated, and less likely to be okayed by the Senate, so what's your beef?

[Have At You]

Originally Posted by Philistine

Not that it really matters--but according to the FEC--the popular vote was 50,999,897 for Gore, and 50,456,002 for Bush.

Ah. I was thinking of the Florida counts.


Anyway, back to the Court, what's the worst case scenario for a Supreme Court nominee?

I get the feeling that the Left's nightmare justice is one who will strictly apply the Constitution and Supreme Court precedent to decisions of what government action is or is not constitutional. Except in the area of abortion, where their nightmare is someone who will disregard precedent.

I get the feeling that the Right's nightmare justice is one who will apply his/her own sense of what "ought" to be, disregarding the actual Constitution and existing precedent. Their nightmare justice would also give the federal government priority over the state legislatures, would give Congress precedence over the Constitution, and would selectively support only those constitutional guarantees that comport with his/her personal politics.

Are either of these nightmares realistic? I doubt it. The Left's nightmare justice almost exists out there, with the exception of the abortion issue. Judicial conservatives may groan at the way Roe v. Wade was decided, but it is the law of the land, and it would take a judicial activist to overturn it. And judicial activists are almost never conservative. And the Right's nightmare justice isn't going to be nominated by this President.

So what's the problem?

[keith]

uhm the whole point of the supreme court is that it can ignore precedent.

... like the definition of 'activist' and the assumption that everyone outside the 'left' agrees on what the constitution actually means .

[Philistine]

Originally Posted by Have At You

{snip}I get the feeling that the Right's nightmare justice is one who will apply his/her own sense of what "ought" to be, disregarding the actual Constitution and existing precedent. Their nightmare justice would also give the federal government priority over the state legislatures, would give Congress precedence over the Constitution, and would selectively support only those constitutional guarantees that comport with his/her personal politics.

I think this is the right and left's nightmare. It's just that "disregarding the actual Constitution and existing precedent" means something different to the right and the left.

And judicial activists are almost never conservative.

And the Right's nightmare justice isn't going to be nominated by this President.

That's what Bush I (Souter), Ford (Stevens), Nixon (Blackmun) and Eisenhower (Warren and Brennan) all thought, too.....

--Philistine

[esskreemr]

Roberts has shown a deference for precedence. However, as a Supremie with the ability to set precedence, this could mean trouble. He has also shown a disregard for privacy and appears to not agree with the idea of a seperation of church and state.

[Have At You]

Originally Posted by keith

uhm the whole point of the supreme court is that it can ignore precedent.

Say what?

I thought the point of the Supreme Court was to be the court of final appeal in federal cases, and like any other appellate court to apply the law to the facts of a given case to determine the result -- be it the constitutionality of a statute, or the procedures followed during a litigation.

But not to make up the law. That's the legislature's role.


With respect to your other remark, a judicial activist is defined as one who creates new law from the bench. A judicial conservative is defined as one who leaves the creation of new law to the legislature. I don't think there is any difference among the Left and the Right as to these definitions.

[keith]

Originally Posted by Have At You

Say what?

I thought the point of the Supreme Court was to be the court of final appeal in federal cases, and like any other appellate court to apply the law to the facts of a given case to determine the result -- be it the constitutionality of a statute, or the procedures followed during a litigation.

But not to make up the law. That's the legislature's role.

No when you separate the judiciary and the legislature with a written constitution it is the legislature and judicary who co-operate to make constitutional laws. Otherwise why have a constitution?

Originally Posted by Have At You

With respect to your other remark, a judicial activist is defined as one who creates new law from the bench. A judicial conservative is defined as one who leaves the creation of new law to the legislature. I don't think there is any difference among the Left and the Right as to these definitions.

so a judicial conservitive would never overturn a law passed by a legislature? You have a very strange idea as to how the law develops.

You seem to wish to argue that any judicial decision that strikes down a piece of law passed by a legislature is an act of judicial activism - .

As to precedent, no the supreme court rarely says it got it wrong 50 years ago, but the justices generally find a way to shift the debate so allowing the precedent to change.

[Have At You]

Originally Posted by keith

so a judicial conservitive would never overturn a law passed by a legislature? You have a very strange idea as to how the law develops.

You seem to wish to argue that any judicial decision that strikes down a piece of law passed by a legislature is an act of judicial activism - .

You misunderstand.

If Congress passes a law that violates the Constitution as written (and as previously interpreted by precedent), then a judicial conservative will strike that law as unconstitutional.

[Have At You]

To clarify:

Judicial activist -- uses court decisions to create new law

Judicial conservative -- uses court decisions to apply existing law, leaving the creation of law to the legislature


There is a subdivision of judicial conservatives called "strict constructionists" who believe that the law should be applied according to the precise intent of its original framers. They hold that, if the meaning of the law is to change over time, then the language of the law must change.

[keith]

Originally Posted by Have At You

You misunderstand.

If Congress passes a law that violates the Constitution as written (and as previously interpreted by precedent), then a judicial conservative will strike that law as unconstitutional.

Yes but that does rather assume the issue that there is an agreed upon reading of the constitution doesn't it? I do really think you should do some reading on the supreme court and precedent - it is not like lower appeals courts where justices are bound by precedent. Actually see Rehnquist himself as a justice who attempted to shift precedent in their prefered direction.

After all the court is always being presented with examples of laws that have no, or little, precedent; equal protection/rights for various groups that the writers of the constition would never have imagined rights for (even abortion falls into this category, segregation to). Does our judicial conservative on the supreme court simply throw up their hands and defer to the legislature since the constitution nor precedent speaks to the matter at hand?

[keith]

Originally Posted by Have At You

To clarify:

Judicial activist -- uses court decisions to create new law

Judicial conservative -- uses court decisions to apply existing law, leaving the creation of law to the legislature

You may need to clarify again since the judicial conservative seems to no longer have any care for what is written in the constituion.

As an example;
Would you say that the Miranda decision (and the protection of suspects constitutional rights) was an act of judicial conservatism? You seem to be arguing so.

Any and all supreme court decisions have repercussions on the legislature - it is almost a statement of fact that all supreme court decisions create new law. To say such and such is activist or conservative is meaningless (well it's rhetorical, which amounts to much the same thing).

Originally Posted by Have At You

There is a subdivision of judicial conservatives called "strict constructionists" who believe that the law should be applied according to the precise intent of its original framers.

Cool. White misogynistic slave owners still have a place in modern america.

Originally Posted by Have At You

They hold that, if the meaning of the law is to change over time, then the language of the law must change.

Which means that only if the constitution is changed can the law change - which is a very strange thing to say.

[Have At You]

Originally Posted by keith

Yes but that does rather assume the issue that there is an agreed upon reading of the constitution doesn't it? I do really think you should do some reading on the supreme court and precedent - it is not like lower appeals courts where justices are bound by precedent. Actually see Rehnquist himself as a justice who attempted to shift precedent in their prefered direction.

After all the court is always being presented with examples of laws that have no, or little, precedent; equal protection/rights for various groups that the writers of the constition would never have imagined rights for (even abortion falls into this category, segregation to). Does our judicial conservative on the supreme court simply throw up their hands and defer to the legislature since the constitution nor precedent speaks to the matter at hand?

Rehnquist tried to "shift precedent" as you say, by trying to rein in the activist trend led by Warren (and by Brennan during the Burger years). Not by creating new rights where none had existed, not by making the Constitution mean whatever suited him at the moment, but by applying the law as it existed.

If neither the Constitution nor precedent speaks to the matter at hand (which happens how often? extremely rarely.) then the judicial conservative's challenge is to identify the underlying principles of the Constitution as written, apply those principles to the facts, and derive a ruling that comports with existing law.

[Have At You]

Originally Posted by keith

You may need to clarify again since the judicial conservative seems to no longer have any care for what is written in the constituion.

What huh? The Constitution is part of existing law. Which is what a judicial conservative bases his/her decisions on.

Originally Posted by keith

Any and all supreme court decisions have repercussions on the legislature - it is almost a statement of fact that all supreme court decisions create new law. To say such and such is activist or conservative is meaningless (well it's rhetorical, which amounts to much the same thing).

A judicial conservative would say that Supreme Court decisions are supposed to clarify the law, not create new law. Not to circumvent the role of the elected legislature to pass new laws and amend the Constitution.

Originally Posted by keith

Cool. White misogynistic slave owners still have a place in modern america.

Would you seriously argue that our nation's framework set forth by the founders has no place in the modern world?

Originally Posted by keith

Which means that only if the constitution is changed can the law change - which is a very strange thing to say.

The strict constructionist view, to which you are responding, is that for the meaning of the Constitution to change, the Constitution must change. Its words should not be change their meaning to suit changing social fashions. It is too important to let that happen, but instead any change in its meaning must go through the democratic process prescribed for amendment, rather than leaving it up to nine old farts in silly robes.

[keith]

Originally Posted by Have At You

Rehnquist tried to "shift precedent" as you say, by trying to rein in the activist trend led by Warren (and by Brennan during the Burger years). Not by creating new rights where none had existed, not by making the Constitution mean whatever suited him at the moment, but by applying the law as it existed.

Indeed he was an activist judge who attempted to change precedent and make 'new' law. Whether he did it for good or ill, if you or I agree or disagree with his motives or aims is neither here nor there - he tried to make new precedent and new law, he was an activist judge by your very definition.

Originally Posted by Have At You

If neither the Constitution nor precedent speaks to the matter at hand (which happens how often? extremely rarely.)

yes but when it happens its the big ones isn't it? Segregation, abortion, homosexual marriage/rights.

Originally Posted by Have At You

then the judicial conservative's challenge is to identify the underlying principles of the Constitution as written, apply those principles to the facts, and derive a ruling that comports with existing law.

The underlying principle of the consitution was to prevent civil war and the fragmentation of a nascent country.

The constitution makes no mention of which groups should or should not and in what varying degrees get the full or partial benefits of its protections - it is supreme court justices who get to draw those lines not the constitution itself.

[Have At You]

Originally Posted by keith

yes but when it happens its the big ones isn't it? Segregation, abortion, homosexual marriage/rights.



The underlying principle of the consitution was to prevent civil war and the fragmentation of a nascent country.

The constitution makes no mention of which groups should or should not and in what varying degrees get the full or partial benefits of its protections - it is supreme court justices who get to draw those lines not the constitution itself.

Re abortion & marriage, ever heard of the 10th Amendment? I think it deals handily with it. Segregation, I believe, is covered by a couple Amendments. No need to create new law from the bench.

The underlying principle of the Constitution was to create a form of government that would last, taking into account the foibles of human nature rather than aspiring to what humans ought to be.

[keith]

Originally Posted by Have At You

What huh? The Constitution is part of existing law. Which is what a judicial conservative bases his/her decisions on.

indeed, being sarcastic, sorry.

Originally Posted by Have At You

A judicial conservative would say that Supreme Court decisions are supposed to clarify the law, not create new law. Not to circumvent the role of the elected legislature to pass new laws and amend the Constitution.

You keep ignoring the point that any supreme court decision is new law - it either forces changes in previous legislation or directs future legislation. Two sides of the same coin.

Originally Posted by Have At You

Would you seriously argue that our nation's framework set forth by the founders has no place in the modern world?

would you like to live under the same laws as the founding fathers? (your answer will predict your gender and skin colour).

Originally Posted by Have At You

The strict constructionist view, to which you are responding, is that for the meaning of the Constitution to change, the Constitution must change. Its words should not be change their meaning to suit changing social fashions.

so you would argue that when the founding fathers talked of equality they meant 'equal assuming they are white and male'? This is actually a serious point since the political beliefs of the founding fathers were not uniform. Some clearly meant equal as in everyone being equal, others just as clearly did not. Which founding fathers should the supreme court justices channel when they attempt to discern the 'meaning' of the document?

Originally Posted by Have At You

It is too important to let that happen, but instead any change in its meaning must go through the democratic process prescribed for amendment, rather than leaving it up to nine old farts in silly robes.

Really? Have a brief moments reflection on some of the rights you enjoy because of those nine old farts. Doubt many of them would have made it through the amendment process.

Anyways, bottom line is that the supreme court if stacked politically can do whatever it pleases - your worst nightmares (left or right) can be made to come true. Maybe voting aint such a bad idea?

[keith]

Originally Posted by Have At You

Re abortion & marriage, ever heard of the 10th Amendment? I think it deals handily with it. Segregation, I believe, is covered by a couple Amendments. No need to create new law from the bench.

Really. You think no new law was required to deal with segregation? Everything was just going along swimmingly until activist judges stuck their oar in.....

As to the tenth amendment - exactly which rights are those again? I keep hearing different lists. Anyway there is the small problem of where you slice, which groups do or do not get protections, see a prior post.

Anyhow I have no problem with states rights - I reckon it would be quite interesting to see just what did get through some legislatures. Fortunately I no longer live that far south.

Originally Posted by Have At You

The underlying principle of the Constitution was to create a form of government that would last, taking into account the foibles of human nature rather than aspiring to what humans ought to be.

fine but besides the point as to how one actually does the practicalities.