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View Diary: Agencies "Ruling" Out Tort Lawsuits - The Preemption Doctrine Explained (54 comments)

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  •  I agree with your analysis (3+ / 0-)
    Recommended by:
    smintheus, shirah, Larsstephens

    the language behind preemption has always been Congressional intent, not an agency interpreting congressional intent or supplying its own intent.  Without the basis for finding preemption in the language of the statute itself no court should find that federal law preempts state law.  Those horrible right wing strict constructionist judges, construe as the political master tells you to, not the constitution or the law.  Give me an activist any day, they at least read and understand the law.

    •  Oh they read and understand it, all right (6+ / 0-)

      They're just dishonest in how they portray it.

      Judges like Scalia are quite skilled at distorting Congressional or Founder's intent, bit by bit in a long line of cases.

      You can't reason someone out of something they weren't reasoned into. - Jonathan Swift

      by A Mad Mad World on Sun May 18, 2008 at 10:03:51 AM PDT

      [ Parent ]

      •  yes (3+ / 0-)

        the republicans pet judges aren't illiterate, they can read and comprehend what they read.  But they don't understand the law, they think the law is something much less than it is, something they can manipulate and misconstrue with impunity.  

        Its analogous to not understanding the nature of the planet, they think you can manipulate it with impunity.

        The law if it were merely words on paper could be manipulated with impunity.  Unfortunately, the law embodies ideas, it is more than the sum total of the words in case books and statutes.  When you violate the spirit of the law sufficiently, order, society itself starts to unravel.  They do not understand the law.

        •  I think they just make politics (3+ / 0-)
          Recommended by:
          burrow owl, shirah, Larsstephens

          Top level judges are some of the most intelligent people you can ever meet.

          I think they just make transparently poltical rulings.

          However, at the top level, judges are always going to have to rule according to policy as much as anything else.

          I'm not even sure it's a constructivist/activist distinction... a constructivist judge could make liberal decisions and vice versa.

          •  In the past I would have agreed with you (8+ / 0-)

            about top level judges being some of the most intelligent.  Conservative or liberal, republican or democratic, judicial nominations to the SCOTUS and even the federal bench in general, while political, also acknowledged the grave value and importance of intelligent, thoughtful and wise people to sit on the bench.  

            That has not been the case in recent years, political loyalty trumps everything.  The judges may not be unintelligent, but they have none of the character traits of the past that bolster intelligence so that it is more than cunning and connivance.

            The courts have never ruled in a vacuum, if the system were strictly bond by precedent, we would still be finding and applying law almost as handed down by the House of Lords when the common law was adopted.

            I used the constructionist/activist language only because it is the false framing of the neocons.  Because they only call their pet judges strict constructionists.  They no more expect them to be strict constructionists of laws or the constitution when it disfavors policy than they really believe the earth has existed for 6000 years when they politic to the evangelicals. I was attempting to mock it and the people who think it has some relevance to legal decision making in reality, I failed to be mocking enough apparently because many seem to think I believe it.

            Intelligence to me means more than IQ points, judicial qualifications mean more than political loyalty.  They swear their oaths to the constitution not to people or a party.  They do not understand what it means to be a nation of laws or they would not be such willing puppets of the neocons.

        •  Not a conservative v. liberal issue (3+ / 0-)
          Recommended by:
          burrow owl, mataliandy, Larsstephens

          It is an issue of respect for the rule of law. I have known politically conservative judge who respect the law and, as an aspect of their political views, uphold the law.

          This crowd is a different brand of conservative.

          •  I really wasn't attempting (4+ / 0-)
            Recommended by:
            mataliandy, shirah, maxzj05, Larsstephens

            to frame it as a mere conservative/liberal issue.  But I definitely agree the current crop are a breed apart.  An affront and indignity among the many foisted upon us or sold to us with lies by appealing to fear and prejudice.

          •  "This crowd" is not conservative (3+ / 0-)
            Recommended by:
            shirah, alizard, tobendaro

            Bush, much of the power structure in the Republican Party, and the Republican appointed Supreme Court are not Conservative they are Radical.

            Which is why I left the Republican Party for Barack Obama and the Democrats.

            And if the Democratic Party hasnt learned from Bush that there are real dangers in letting "the ends justify the means" in centralizing power in Federal hands, then what then........?

            Excellent Diary!

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