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Scalito clocks in some pretty anemic numbers.

Almost equal thirds of all adults believe that Judge Alito should be confirmed (34%), should not be confirmed (31%) or say they aren't sure (34%), according to the poll. A majority of Republicans (65% vs. 9%) favor his confirmation, the polls shows, while a plurality of Democrats (48% vs. 14%) oppose it, and Independents are split (34% for confirmation; 38% against).

Not good considering that the battle hasn't been engaged yet. And most of those who have made up their mind -- Republicans -- already support him. As Democrats turn against Scalito (and they will as his record is revealed), his overall numbers will plummet. Same for independents.

But the news for Alito in this poll is even worse:

However, nearly 70% of those surveyed in the online poll of 1,961 adults would oppose Judge Alito's confirmation if they thought he would vote to make abortion illegal. That percentage rises among Democrats (86%) and Independents (74%), compared with 22% of Republicans.

And by the way, remember how Bush said he doesn't care what McCain says, or what the anti-torture language of the recent defense bill says? That he'll interpret the law differently? That's a Scalito innovation. Will Republicans in the Senate go along with a judge who seeks to undermine the legislative branch, and hence their own power?

Originally posted to Daily Kos on Wed Jan 04, 2006 at 12:20 PM PST.

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Comment Preferences

  •  Alito actually suggested (4.00)
    that to the extent the President's view was different from that of Congress as to the proper interpretation of a law, the law might be void.  Seriously radical stuff.  Link and more info here.
    •  He suggested no such thing n/t (none)
      •  um. (none)
        are you a republican? I was looking at your comments and they look republicanesq.

        Not that there is anything wrong with that!

        Just. Um.

        [runs away]

      •  Yes he did (4.00)
        Read his memo.  One of the "theoretical problems" with presidential signing statements that Alito flagged was what would occur in the event that the presidential and congressional interpretations of a law conflicted.  One possibility Alito highlighted was that the law would be totally void; another was that the law would be void to the extent of the disagreement.

        The power of accurate observation is commonly called cynicism by those who have not got it. --George Bernard Shaw

        by Categorically Imperative on Wed Jan 04, 2006 at 12:36:04 PM PST

        [ Parent ]

        •  If you had ever written a legal memo (2.50)
          you would know that it is almost mandatory to pose questions that the analysis following the questions answers eitehrin teh negative or affirmative.
          •  eitehrin teh negative! nt (none)
          •  And if you had ever written one (4.00)
            You would realize that the questions you pose are ones you feel are legitimate, not questions to which the answer is so obvious that they are largely rhetorical.  The original post stated that Alito thought a President/Congress disagreement "might" render a law void.  By even posing the questions he did, Alito indicated his opinion that the question of voidability was legitimate; in other words, Alito thought such a disagreement might void the law.  I don't see what you don't understand about this.

            P.S. I've written dozens, if not hundreds, of legal memos, so think twice before you condscend again.

            The power of accurate observation is commonly called cynicism by those who have not got it. --George Bernard Shaw

            by Categorically Imperative on Wed Jan 04, 2006 at 12:44:16 PM PST

            [ Parent ]

            •  Nonsense (none)
              Posing a question does not mean you endorse the view.

              It is a legitimate philosophical question to ask, what happens if the law is ambiguous and teh branches disagree as to its meaning?  Then analysis follows.

              •  Hmmm... (4.00)
                You're starting to sound like a graduate of one of those republican "obstinance" only education programs.

                My sketch blog - where I'm learning to draw.

                by Matt Jordan on Wed Jan 04, 2006 at 12:56:47 PM PST

                [ Parent ]

              •  Let's take it point by point (none)
                Original claim

                Alito actually suggested that to the extent the President's view was different from that of Congress as to the proper interpretation of a law, the law might be void.

                Alito's memo

                What happens when there is a clear conflict between the congressional and presidential understanding?  Whose intent controls?  Is the law totally void?  Is it inoperative only to the extent there is a disagreement?

                OK.  

                1.We're debating here whether Alito suggested that the disagreement might void the law.  

                2. By posing the questions he did, Alito "suggested" (because the questions are concededly legitimate) that conflicting interpretations could perhaps void the law.

                Hmmm...that was easy.  Only 2 points to cover.  Which I guess highlights my bafflement that you still can't grasp this simple issue.  Or maybe you're just trolling this time.  Frankly, I no longer care.

                The power of accurate observation is commonly called cynicism by those who have not got it. --George Bernard Shaw

                by Categorically Imperative on Wed Jan 04, 2006 at 12:58:53 PM PST

                [ Parent ]

              •  Bullshit (none)
                You can't have it both ways.  Alito posed the question because he thought it was a legitimate problem.  What if the President disagrees with parts of the law he has signed?  All jurisprudence in our history to this date says that this question is irrelevant and non-sensical.  But not for Alito.  To him it is a legitimate question which means that he thinks the premise of the question is legitimate.  That the President disagreeing or having qualms with parts of a law should call into question the validity of that law.  How he resolves it is immaterial.  The fact is that this question is absurd ON ITS FACE.  Alito looks all the more absurd for giving voice to it.

                "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                by manyoso on Wed Jan 04, 2006 at 01:01:27 PM PST

                [ Parent ]

              •  You missed his point (none)
                No one should even need to write a memo asking or answering the question "what if the president and congress disagree as to the meaning of a law?" - it's blatantly obvious congress' interpretation of what THEY wrote should win.

                So by even asking the question, Alito is adding legitimacy to the very idea.  Just like the very fact that many people are debating whether Bush should be impeached shows that the idea is not ridiculous.

                I am against the teaching of evolution in schools. I am also against widespread literacy and the refrigeration of food.

                by Scientician on Wed Jan 04, 2006 at 01:02:02 PM PST

                [ Parent ]

                •  Silly me (none)
                  And I thought that asking questions even ridiculous ones is the vbery nature of teh legal profession.

                  I seem to recall that prior to 1972 the question of whether abortion is a constitutional right was considered silly in the extreme.  Yet people kept asking if for nothing else then the have a good mental exercise.

                  •  and the people who asked (none)
                    if abortion was a constitutional right despite the fact that they were thought to be "silly in the extreme" did so because they wanted that right recognized.  they wanted the law changed.  and they were persistent in their inquiries until they changed that law.

                    so their questions weren't harmless little, rhetorical mishaps. they were calculated with an intent to change the current interpretation.

                    which is exactly what alito was doing.

                    your point is bullshit.

                    and you don't need a law degree to see that.

                  •  You're a lawyer... (none)
                    ...and you claim to have more experience than I with legal memos, so riddle me this.  Would you ever write a memo to your boss(es) that included a series of patently absurd questions that you felt had no basis for being asked?  

                    Let's suppose Alito wrote: "what if there's a disagreement?  Should the President issue letters of marque and reprisal?  Will the states then be allowed to coin money?  Is the Bill of Attainder Clause thereby effectively amended?"

                    Would that make any sense at all?  Would anyone ever do something like that?  If your answer is no, then explain to me how the questions one highlights at the end of a legal memo are nothing more than fun exercises in intellectual trivia.

                    The power of accurate observation is commonly called cynicism by those who have not got it. --George Bernard Shaw

                    by Categorically Imperative on Wed Jan 04, 2006 at 01:17:52 PM PST

                    [ Parent ]

                    •  It could if followed by (none)
                      "Clearly the constitution forbids letters of marque, so that can't be it"
                      •  Good luck (none)
                        Try that out the first time you write a memo for your Nixon-era judge.  Inform him about totally irrelevant side points and trivialities that you can then respond to, in your mind justifying the fact that you raised the issue in the first place.  I'm sure your recommendation letter from the judge will be glowing.

                        The power of accurate observation is commonly called cynicism by those who have not got it. --George Bernard Shaw

                        by Categorically Imperative on Wed Jan 04, 2006 at 01:41:33 PM PST

                        [ Parent ]

                  •  further questions about your legal career (none)
                    I question your constant reference to yourself as an attorney.  You just wrote that "asking rediculous questions was the very nature of the legal profession".  You sound exactly like those "health care is skyrocketing because of frivolous lawsuits" people, you know, the amalgam of the uninformed and the intentionally misinforming.

                    Your posts have gotten extremely boring and redundant.  You are anti-choice and believe that abortion should be illegal.  You are entitled to your own opinion.  Many of us disagree with your opinion.  However, if you want to be taken seriously in this Scalito discussion, you should perhaps read some law, specifically, Scalito's interpretations of said law.

                    •  if you read my posts (none)
                      you would know that I favor legalized abortion.  i just fail to see the constitutional requirement for this policy.  A difference that I fear you don't comprehend.
                      •  Oh really? (none)
                        So the 10th is toliet paper?

                        cheers,

                        Mitch Gore

                        A casual stroll through the lunatic asylum shows that faith does not prove anything.

                        by Lestatdelc on Wed Jan 04, 2006 at 01:32:32 PM PST

                        [ Parent ]

                        •  The 10th (and I am tired of repeating this) (none)
                          is not a secret repository of right that keeps forever expanding whenever 5 balck robed men (or women) fancy that it is a good idea to create new rights.
                          •  Well, the 10th (none)
                            Is a disclaimer designed to placate those who feared that the creation of a bill of rights would ultimately expand the reach of the Federal government.  

                            The more interesting question would be how you think the 9th Amendment should be interpreted.  But I'm going to go out on a limb and guess you don't have a substantive answer to that, just the slightly paraphrased line from Scalia's A Matter of Interpretation you pulled out above.  

                            BTW, you should be careful with how liberally you quote from that book without crediting Nino; though it was compiled from a series of lectures at Princeton, the book is copyrighted.

                            The power of accurate observation is commonly called cynicism by those who have not got it. --George Bernard Shaw

                            by Categorically Imperative on Wed Jan 04, 2006 at 01:44:38 PM PST

                            [ Parent ]

                          •  I agree (4.00)
                            Tell that to Scalia as he keeps putting States rights in those words in all number of ways that are complete bullshit.

                            The SCOTUS is extraordinary.

                            by Armando on Wed Jan 04, 2006 at 01:55:19 PM PST

                            [ Parent ]

                          •  he doesnt base it on the 10th, (none)
                            but on the enumerated powers of the Federal government.  Those powers are not unlimited you know.
                          •  Except the powers of the President... (none)
                            ...in war time, right?  Those are unlimited.  At least when a Republican is in office.  Right?

                            "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                            by manyoso on Wed Jan 04, 2006 at 03:52:09 PM PST

                            [ Parent ]

                          •  No, not right (none)
                            But if my memory serves me right, it was Truman (D) and FDR (D) who claimed unlimited power to seize property and intern minorities during wartime respectively.
                          •  And Truman was shot down (none)
                            ... and thank god he was. By an unanimous court that said he had to follow the law.  BTW, many (R)'s were rightly opposed to Truman's power grab.  But, then, he was not a (R).  No doubt the hypocritical bastards would be doing the same if it were Hillary in office right now.

                            "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                            by manyoso on Wed Jan 04, 2006 at 05:05:06 PM PST

                            [ Parent ]

                          •  Indeed (none)
                            Let's wait and see until some of Bush's grabs are challenged in courts.  Hopefully he will be similarly shut down where he overreached.

                            As a side note, the Court wasnt unanimous.  It was 6-3.

                          •  Brilliant (none)
                            You're in the legal profession and you make this statement:

                            Let's wait and see until some of Bush's grabs are challenged in courts.  Hopefully he will be similarly shut down where he overreached.

                            Are you fucking kidding me?   Let's wait and see until some of Bush's grabs are challenged in courts?

                            Uhhh have you been living under a rock for the last few years?   Bush's power grabs have been challenged in courts more times than I can count and it has achieved virtually nothing....legally OR politically.  

                            George W. Bush, Resign NOW.

                            by tlh lib on Wed Jan 04, 2006 at 09:58:59 PM PST

                            [ Parent ]

                          •  Wrong again (none)
                            FDR acted pursuant to Congressional act.

                            The SCOTUS is extraordinary.

                            by Armando on Wed Jan 04, 2006 at 07:30:14 PM PST

                            [ Parent ]

                          •  Congress authorized internment? (none)
                            I don;t recall that.  I may be wrong, and will freely admit that if you cite the Act, but I don;t recall there being congressional authorization for internment.
                          •  Armando didn't say that (none)
                            He said that FDR acted pursuant to Congressional Act.

                            He is correct that FDR used that rationale for his act (albeit eerily reminiscent of another president's rationale for illegally spying on U.S. citizens).

                            EXECUTIVE ORDER 9066

                            February 19, 1942  

                            Whereas, the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises and national defense utilities as defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220. and the Act of August 21, 1941, 55 Stat. 655 (U.S.C.01 Title 50, Sec. 104):

                            link

                            George W. Bush, Resign NOW.

                            by tlh lib on Wed Jan 04, 2006 at 10:08:44 PM PST

                            [ Parent ]

                          •  Read Korematsu (none)
                            You might learn something.

                            The SCOTUS is extraordinary.

                            by Armando on Thu Jan 05, 2006 at 05:28:50 PM PST

                            [ Parent ]

                          •  He doesn't? (none)
                            You are an idiot for saying that.

                            You simply do not know what you are talking about.

                            What a revealing statement from you. You simply are ignorant in the area of federalism jurisprudence.

                            The SCOTUS is extraordinary.

                            by Armando on Wed Jan 04, 2006 at 07:15:00 PM PST

                            [ Parent ]

                          •  Have you ever read Printz? (none)

                            The SCOTUS is extraordinary.

                            by Armando on Wed Jan 04, 2006 at 07:27:50 PM PST

                            [ Parent ]

                      •  Gotcha (none)
                        you are for reproductive rights if your rich enough, old enough, and/or live in the right portions of the country.

                        Happy New Year, Impeach Bush

                        by coigue on Wed Jan 04, 2006 at 01:38:09 PM PST

                        [ Parent ]

                        •  Nope (none)
                          I am for reproductive rights for everyone.  Just not arrogant enough to believe that because I believe it, the Constitution says it.
                          •  Clearly you are (2.50)
                            arrogant enough to take a headline about a SCOTUS case out of some legal textbook and use it to make a conclusion (supporting your argument) that there is a sweeping SCOTUS decision denying the rights of individuals to be protected, when if you actually read the opinions they would show a decision VERY narrowly defined.

                            You are also arrogant enough to come here and act as if you are the only one who has ever read the constitution.

                            Finally (and this is the gravest and most common error among pro-choice Republicans) you are arrogant enough to think that abortion is safe, and will remain legal no matter who is in office, or who are the Justices.

                            Happy New Year, Impeach Bush

                            by coigue on Wed Jan 04, 2006 at 01:51:54 PM PST

                            [ Parent ]

                          •  That's nonsense (none)
                            You argued that the government has a constitutional obligation to protect you.  I cited a case to you where the court held that it didn't.  Which is more than I can say for you.  You cited nothing to me in support of your proposition that the the government is constitutionally obligated to protect people.  That you can distinguish the case I cited is not a big shock.  But at least it is analogous.  What do you have supporting your views?
                          •  So you say. (none)
                            But the case you cited was narrowly defined, and, to my eye did not definitively decide anything.

                            Happy New Year, Impeach Bush

                            by coigue on Wed Jan 04, 2006 at 05:55:39 PM PST

                            [ Parent ]

                          •  Well where is your contrary cite? n/t (none)
                          •  What were we arguing again? (none)
                            Oh yeah...my thinking was along the lines of affirmative action. That there is some govt. responsibility because of decades of neglect of attention given to clear threats to a group of people (abortion providers, in this case). This leads to a paucity of providers such that women and girls in poor, rural, or conservative areas do not have the same access. (This was a comment by the majority in Roe-the inequality of access across states)

                            My argument is that there should be some financial incentives (scholarships, etc.) to fill the need. Also, they should be protected, and threats should be taken seriously.

                            But that could be remedied legislatively. As to refering you to a case....well, I am working from a 12 year-old Con Law text, so I am a bit handicapped.

                             

                            Happy New Year, Impeach Bush

                            by coigue on Wed Jan 04, 2006 at 08:33:10 PM PST

                            [ Parent ]

                          •  Well, that's different from (none)
                            what you said before.  It's one thing to propose policies to expand abortion access, it's quite another to say that the government is constitutionally obligated to help and protect women seeking abortion services.
                          •  Well... (none)
                            I did not make myself clear.
                            It happens occasionally. ;)

                            Happy New Year, Impeach Bush

                            by coigue on Wed Jan 04, 2006 at 09:35:42 PM PST

                            [ Parent ]

                          •  And as to abortion (none)
                            The whole point is that the abortion issue should not depend on the justices.  The other office holders we can argue about, but the justices are not there to protect "safety of abortions."

                            (And funny how you can say that this is the "gravest."  I didn;t know that abortion was the end all and be all of constitutional law and societal well-being).

                          •  The gravest (none)
                             of the three.

                            Happy New Year, Impeach Bush

                            by coigue on Wed Jan 04, 2006 at 05:48:32 PM PST

                            [ Parent ]

                          •  You make only one error (none)
                            in an otherwise excellent comment.

                            I doubt "drgrishka" is pro-choice.  He is a right-wing Rethug troll in every way, and is simply trying to cover his radical extreme views with such a statement.  

                            This guy is troll, and please help troll rate him off this site.

                          •  Are you sure? (none)
                            I am not. I do know many (R)s who are pro-choice. He said in another part of diary that he would vote for a ERA to the Constitution. He makes some very valid points, once you get past the general annoying/agitating  way he has of expressing himself.

                            I was getting somewhere with him, so please don't troll rate his comments unless they are trollish. It isn't fair to me if he can't read my replies to him because someone else comes in late in the conversation and decides to end it.

                            Happy New Year, Impeach Bush

                            by coigue on Thu Jan 05, 2006 at 11:31:05 AM PST

                            [ Parent ]

                          •  I've really had it with him (none)
                            not only is he a right-wing wacko, but he comes and pisses on this blog by attacking and insulting people who hold the majority position of those in this blog.  This guy is also dishonest, I kept asking him whether he voted for W or not, and he kept trying to evade the question.

                            His points are invalid and trollish, they waste the energy of many of those in this blog who could be fighting Thomalito rather than responding to his bullshit, I really wish someone could ban him, as it really is a drag to deal with this kind of garbage for the most of us.

                            However in respect to your wishes, I won't troll rate any more of his posts that you respond to.

                          •  I understand. (none)
                            And I thank you.

                            He is very provocative. And perhaps he is dishonest...perhaps about more than his views on abortion....but maybe not.

                            Happy New Year, Impeach Bush

                            by coigue on Thu Jan 05, 2006 at 05:59:53 PM PST

                            [ Parent ]

                  •  He ANSWERED (none)
                    a question in wildly wrong fashion.

                    and the question is one NOT EVEN YOU would think to ask.

                    It is unbelievable that he wrote what he wrote.

                    The SCOTUS is extraordinary.

                    by Armando on Wed Jan 04, 2006 at 01:54:07 PM PST

                    [ Parent ]

            •  hmmm (none)
              "By even posing the questions he did, Alito indicated his opinion that the question of voidability was legitimate;"

              You are correct when dealing with legal memos written for a private law firm; nobody want to pay for time spent researching 'obvious' questions or wild goose chases.  

              But in the public sector (or academic), legal memos are supposed to be overly thorough, and the economic concerns limiting memo length are relatively non-existent.  Addressing an "obviously crazy" theory does not mean that the author finds the theory legitimate or even plausible, but rather simply that (1) the theory is intellectually interesting; (2) the theory was raised previously by some person involved; (3) the author's boss has some particular interest in such line of thinking; or (4) the author is bored and wants to pad the length of the memo.

              Alito's thinking on the legitimacy of the "voidability" argument - as you put it - is in the outcome of the memo, not the mere existence of it.

          •  you are the 1st lawyer ever to post on this site (none)
            Not really.  However, as one of the thousands of lawyers who read and post here, it is clear that your reading of Scalito's memo shows either (i) you didnt make it all the way through law school, or (ii) you intentionally misunderstood his intent of his memo.

            Yes, a legal memo should address both the strengths and weaknesses of the argument, but the intention ("conclusion") of the memo should be (and in Scalito's case was), clear as to the side being advocated.

        •  That wasn't covered in the talking points.. (none)
          <snark>

          despot : 1. A master; an absolute or irresponsible ruler or sovereign. 2. One who rules regardless of a constitution or laws; a tyrant.

          by wrights on Wed Jan 04, 2006 at 12:45:27 PM PST

          [ Parent ]

      •  You are entitled (none)
        to your own opinion, but not to your own facts. Did you follow the link?????
    •  Amazing how finding out (none)
      your president is a power-mad loon with only a passing familiarity with the requirements of the bill of Rights makes people look a lot more skeptically at his judicial nominees eh?

      Altio probably would have been a shoe-in three months ago, right now he's nothing more than a sacrificial lamb that The Senate  will slaughter to show their extreme displeasure at the WH's continung assertion that they can ignore whatever laws they see fit.

      The neo-cons claiming Sandra Day's seat would have been a diaster of epic proportions from which the country might not have ever recovered.  

      The fact that Bush is likely to be rebuffed again, and probably unable to get anyone in before the mid-term elections, I see as evidence of a Divine Providence working hard for our side.

      Knowledge is power Power Corrupts Study Hard Be Evil

      by Magorn on Wed Jan 04, 2006 at 12:34:32 PM PST

      [ Parent ]

      •  Bet dollars to donuts that in less than 1 month (none)
        it will be Justice Alito.
        •  Time is Alitos enemy. (none)
          If confirmation is delayed at all, more damaging things will come out.

          despot : 1. A master; an absolute or irresponsible ruler or sovereign. 2. One who rules regardless of a constitution or laws; a tyrant.

          by wrights on Wed Jan 04, 2006 at 12:48:00 PM PST

          [ Parent ]

          •  Dont hold your breath (none)
            n/t
            •  Know it all (none)
              law student.

              Charming.

              Merry Christmas, Impeach Bush

              by coigue on Wed Jan 04, 2006 at 12:58:20 PM PST

              [ Parent ]

              •  Actually a full blown lawyer (none)
                not a law student.  But hey, w/e
                •  Why do you come here? (none)
                  You haven't been troll rated out of existence yet, despite the fact that you're a Republican coming to a Democratic site and posting pithy one line comments void of any value.  It isn't like you are really trying to debate or get across a point.  If you want to come here and engage with Democrats then why don't you put in a little effort?  Given your spelling mistakes, is it just because you have problems typing?

                  "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                  by manyoso on Wed Jan 04, 2006 at 01:06:46 PM PST

                  [ Parent ]

                  •  Actually I am (none)
                    trying to debate the proper meaning of teh constitution.  It is people like you who post pith one like comments to the effect that "you are an idiot."
                    •  OK , so where in the constitution (none)
                      does it say that the president can interpret the law however he wants, ignore the ones he doesn't like, and wriggle out from under the ones he breaks.

                      Talk about judicial activism!

                    •  Well you are not doing a good job of it. (none)
                      What do you expect people to reply to you pithy one line comments accusing a detailed and well thought out critique of 'not understanding polemics'

                      If you want to debate the proper meaning of the constitution, please point out any strict constructionist rationale (I assume you'd have sympathy for this) not adhering to Article I, Section 1. of the constitution.  If you are not familiar with it, why don't you scroll down, have a look, and then try using your brain to come up with something other than a knee jerk one line pithy response?  Mmm'K?

                      "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                      by manyoso on Wed Jan 04, 2006 at 01:30:03 PM PST

                      [ Parent ]

                      •  The Executive does get to interpret (none)
                        the laws.  See my post below.

                        I do not approve of teh Executive ignoring lawas or not following them.  the Executive is just as bound as everyone else, whether he likes it or not.  Although I must point out that there were  instances where the Executive did refuse to follow a duly enacted statute.  For insatnce teh War Powers Act has been ignored on many occasions.  Also, the Executive ignored the law taht sought to abrogate Miranda, and refused to defend it.  (See Dickerson v. US).

                        •  Interpreting laws (none)
                          I agree that the executive interprets laws as a matter of routine day to day business.  So what?  They do this in order to comply with the law.  When the executives interpretation is called into question the judiciary settles the matter by adjusting the executives interpretation to fit the legislatures understanding of the law.

                          There is no special constitutional power vested in the executive requiring it to interpret the laws.  Individual members of congress and individual members of the judiciary and, yes, ordinary American citizens interpret the law every live long day.  So what?  We do this in order to comply with the law to the best of our senses.  The constitution does not afford our interpretations any more deference than the executives or vice versa.

                          It is the legislature's sole perogative, vested by the constitution, to create law.  Period.  What the President thinks about the law he is signing as he puts pen to paper is immaterial.

                          "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                          by manyoso on Wed Jan 04, 2006 at 01:55:10 PM PST

                          [ Parent ]

                          •  I agree (none)
                            that what the President thinks is immaterial.  But by the same token, what some committee chairman thinks when he votes for the law is also immaterial.  What matters is what the law actually says.  I said it elsewhere that Presidential signing statements are bunk, but no more or no less so than "legislative history" in the form of committee reports or floor statements.
                          •  Where the language is not specific... (none)
                            Hundreds of years of jurisprudence says that the court's should look to the intent of the people that drafted the legislation.  Are you seriously arguing otherwise?

                            "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                            by manyoso on Wed Jan 04, 2006 at 03:54:24 PM PST

                            [ Parent ]

                          •  I doubt that intent is best expressed (none)
                            by floor statements or even committee reports that are not voted on and probably not even read and are drafted by the staff.
                          •  Doesn't matter whether you doubt... (none)
                            If the language is debatable then they will use contemporaneous statements to divine the intent of the legislators.

                            "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                            by manyoso on Wed Jan 04, 2006 at 05:06:52 PM PST

                            [ Parent ]

                          •  Contamporaneous staff statements? (none)
                            Because that's what committee reports are.

                            And by the way, why doesn't the same logic apply to the Constitutional interpretation?

                    •  Can W pick and choose which laws to uphold? (none)
                      Regarding Presidential duties and powers, Article II, Section 3, says "he shall take Care that the Laws be faithfully executed". To my citizen's mind it says "the Laws", which means not "some Laws" or "those laws which he likes". To me it means the President has a constitutional obligation to obey, enforce, and follow all the laws passed by Congress, even those with which he disagrees. If Congress decides at some point that the President has violated his constitutional oath by not faithfully adhering to this constitutional requirement, could that not be included in a possible article of impeachment.  Or does ignoring his obligation to follow those parts of the Constitution that he does not like or that limit his power not constitute "other high Crimes and Misdemeanors". Also at what point can "faithfully executed" morph into "faithlessly executed", and "Care" become "No Care".  No one is above the law, including and especially the President of the United States.  As has been said before, he is President, not King.

                      Science is the belief in the ignorance of experts. - Richard Feynman

                      by dewtx on Wed Jan 04, 2006 at 02:36:51 PM PST

                      [ Parent ]

                  •  Just this side of troll (TM) (none)

                    despot : 1. A master; an absolute or irresponsible ruler or sovereign. 2. One who rules regardless of a constitution or laws; a tyrant.

                    by wrights on Wed Jan 04, 2006 at 01:11:33 PM PST

                    [ Parent ]

                •  Full-blown ego is more like it. (4.00)

                  At least, you're a fledgeling, by the way you are acting.

                  Also, you are about to enter a clerkship, and seem to lack the experience to have any humility. The way you used the case you cited to me the other day suggests a summary reading and lack of understanding of what the justices actually ruled upon.

                  Now you are taking a common talking point and pretending that you have vast legal experience to tell that he was just having a philisophical discussion for shits and giggles, when the fact is that this is but one piece of evidence (among many) that Alito favors a view consistent with an executive branch concentration of power.

                  Happy New Year, Impeach Bush

                  by coigue on Wed Jan 04, 2006 at 01:12:01 PM PST

                  [ Parent ]

                  •  That may be (none)
                    true as a general matter, but that "evidence" is silly.
                    •  Yet another... (none)
                      ...one line comment devoid of any value.  If you think the 'evidence' is silly, then ENGAGE!  Try arguing WHY it is silly.  Give us a detailed and thorough look at what makes you believe this.  Where are you coming from?  What makes you tick?  Why is it silly to look at this memo and take it at face value?

                      It is obvious that you don't much like everyone reading this memo and then criticizing Alito.  Are you friends with him?  Do you have sympathy for his positions?  Are you hoping he'll overturn Roe and don't want to see anything that makes that less likely?

                      Please, if you are a Republican and wish to come here and talk with Democrats: GIVE US SOMETHING!  Give us a piece of your mind.  A snapshot into what you really think and WHY you think it.

                      If you can't take the time and effort to compose yourself and your thoughts... then again, why are you coming here?  Just answer that one.

                      "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                      by manyoso on Wed Jan 04, 2006 at 01:35:23 PM PST

                      [ Parent ]

        •  It's an up-hill battle (none)
          since we have a congress full of yes-men Republicans.

          No doubt about it.

          Happy New Year, Impeach Bush

          by coigue on Wed Jan 04, 2006 at 01:02:07 PM PST

          [ Parent ]

    •  From the memo: (none)
      "Since the President's approval is just as important as that of the House or Senate, it seems to follow that the President's understanding of the bill should be just as important as that of Congress."

      That's what you get when you elect a President that isn't capable of understanding a bill

      Merry Christmas, Impeach Bush

      by coigue on Wed Jan 04, 2006 at 12:55:17 PM PST

      [ Parent ]

    •  What a hilarious comment thread (none)
      Who is this DrGrishka fellow anyway?  Whoever he is, his silly view that Alito never even suggested that a law might be void to the extent of disagreement between the President and Congress has been thoroughly debunked by other commenters, so I won't repeat their analysis.  But his view that a legal memo is supposed to raise all theoretical possibilities, however facially outlandish they may be, is ridiculous.  Like other commenters, I've written a lot more legal memos than this guy has, and I can tell you that that doesn't fly in either the private or the public sector.
  •  asdf (none)
    Will Republicans in the Senate go along with a judge who seeks to undermine the legislative branch, and hence their own power?

    In a word, yes...since it is Dear Leader making the appointment.  Congressional Republicans have had no problem with Bush doing exactly as he pleases regardless of how it tramples on their authority.

    I would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it. -- Thomas Jefferson [-4.25, -5.33]

    by GTPinNJ on Wed Jan 04, 2006 at 12:18:34 PM PST

    •  Democracy is hard (none)
      Dictatorship is easy.  The legislators will have a reasonable income and nothing to do.  All decisions come from one 2.0 mind.  That's scary.

      American Engineer :== loser!

      by jnmorgan on Wed Jan 04, 2006 at 12:32:04 PM PST

      [ Parent ]

    •  I agree (none)
      I don't know how much these polls really matter in the long run, because these people aren't going to be voting to confirm, it's going to be Congressional Republicans who will confirm Alito because King George tells them too.

      "He's not a leader, he's a Texas Leaguer" - Eddie Vedder

      by griswald11 on Wed Jan 04, 2006 at 12:37:42 PM PST

      [ Parent ]

      •  Why the pessimism? (none)
        It's possible Alito will be confirmed, but let's not act like it's a fait accompli.  The democrats can still filibuster this guy, and with Dean himself calling for it, it's a good chance they will.

        Not only that, but the president being discovered breaking federal law, and arguing he has every constitutional right to, should easily constitute the "extradinary circumstances" the gang of 14 agreed would be required to filibuster.  To wit:  Alito would vote to sanction the president breaking duly passed laws whenever he waves the Commander in Chief wand.

        That's extrordinary.

        As for the nuclear option - with both presidential and congressional approval already below 50%, let's see what the people think about ramming through a nominee of questionable constitutional beliefs.

        Alito can be brought down.  We already have a perfect storm brewing.

        I am against the teaching of evolution in schools. I am also against widespread literacy and the refrigeration of food.

        by Scientician on Wed Jan 04, 2006 at 01:58:06 PM PST

        [ Parent ]

    •  Make them choose... (none)
      between political loyalty to Bush, and their political hide.  

      The Democrats should interrogate the hell out of Alito in thier hearings, make him explain every fucked up thing he ever wrote, then filibuster the hell out of him.  In short, Bork the fuck out of him.  Then filibuster him, and DARE Frist to go nuclear.  

      By dragging it into the spotlight, and exposing his radical views to the nation, Alito's polling will plummet further.  And the American public will be alerted to the dictatorial bill of goods that Bushco is trying to push through here.

      The Repugs can support Bush if they like, and push Alito into the Court.  But I'll bet they don't if they see both Alito's and Bush's poll numbers heading south.  And if they're stupid enough to do it, we'll make 'em pay come November.

      This game is now highly winnable for the Democrats.  My bet is that Harry Reid is licking his lips as we speak.

  •  There's Another Group Worth Polling (4.00)
    The good news is that there's only 100 respondents.  The bad news is that 55 of them are in the same group for which 65% vs. 9% favor his confirmation.

    It's up to Senate Judiciary Democrats to turn the tide here.

    •  McCain and his supporters should (none)
      join them.

      The Bush Torture Statement is pressing the one button that can be expected to activate even a totally Koolaid-intoxicated Senator - their prerogative to control  who gets on the SCOTUS. Bush has done an unimaginably stupid thing in snapping his fingers under their noses here.

      Remember that the Senate passed the anti torture amendment 96 to 2 (or something like that). Bush then went and negotiated in bad faith with them, and eventually lost. It was a HUGE struggle.

      Think of how much of a worm a GOP Senator has to be who votes to confirm this guy now.

      This REALLY hurts Alito's chance of being confirmed, IMHO.

      The Perfect is the Enemy of the Better

      by dabize on Wed Jan 04, 2006 at 12:36:19 PM PST

      [ Parent ]

      •  Ain't gonna happen (none)
        Sen. McCain is a devoted conservative.  He voted for Robert Bork, Clarence Thomas -- you name the controversial Republican nominee, and Sen. McCain voted for it.  Sen. McCain voted against Ted Kennedy's civil rights bill in 1990.  Sen. McCain was one of 25 Senators who voted against tabling Jesse Helms's amendment "to grant an extension of patent to the United Daughters of the Confederacy" in 1993.  Then-Rep. John McCain even voted against establishing federal holiday for Dr. Martin Luther King, Jr. in 1983 -- his first year in Congress.  (Bob Dole managed the floor in the Senate for that bill, and I believe, although I could be wrong, even Newt Gingrich voted for that bill.)

        The quest for freedom, dignity, and the rights of man will never end. - Justice Brennan

        by jim bow on Wed Jan 04, 2006 at 12:54:56 PM PST

        [ Parent ]

    •  Turning the tide means... (none)
      ... publicly making the case that Alito can't be confirmed, and building that case convincingly so that a sufficient number of senators will line up behind blocking confirmation.

      Just saying "I don't want Roe to be overturned" and voting "no" isn't enough to get it done.

      Yes, Senator Feinstein, I'm talking to you.

      ModestNeeds.org Response For Hurricane Evacuees

      by socal on Wed Jan 04, 2006 at 12:37:57 PM PST

      [ Parent ]

      •  correct (4.00)
        Just voting 'no' isn't enough unless there's a majority (or a sustainable filibuster that won't get nuked.)

        It's funny -- had Republicans played fair with the judiciary from 1995-2000 with Clinton's nominees, I might not have a huge problem with Alito.  He's clearly qualified, and is not a frothing ideologue like Brown or Pryor.

        But they put ideological tests on the table, and it's time for us to enforce them.

        •  Exactly which SCOTUS nominees (none)
          did Republicans block?
          •  None. (none)
            So?  I'm talking about the balance of the federal judiciary.
            •  Given the fact that over the last (none)
              40 years (from 1968 to 2008) Democrats have occupied the White House for only 12 years it would seem logical that the federal judiciary should be roughly 2.5:1 conservative.
              •  Look. (none)
                When I go over to RedState.org, I try to engage in factual clarifications, but not head-on arguments.  I know that I'm just a visitor there.  You might want to consider the same.

                Also, your endpoints are screwed up there -- very few Nixon/Ford appointees remain in the federal judiciary 30+ years later.

                •  The judge I will be clerking for next year (none)
                  is a Nixon appointee.  And he has not taken senior status yet. ;)
                  •  Ahh, the personal anecdote. (none)
                    You are a 'full blown lawyer', no?  Then surely you are aware that your singular anecdote in no way refutes that your end points are wrong?  What law school did you go to?

                    "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                    by manyoso on Wed Jan 04, 2006 at 01:10:39 PM PST

                    [ Parent ]

                    •  What other endpoints would you like (none)
                      Lets take 1980-2006 (since few carter people are on the bench too).  That gives us 18 GOP years and 8 Dem years.  Same ~2.5:1 ratio.
                      •  1. (none)
                        1.  What are the figures for Carter's appointees?

                        2.  Where are you getting the figures?  Link please.

                        3.  Don't spend too much time, since it is irrelevant to the question at hand.

                        The point was that Republicans did not give Clinton the same consideration they are now asking of the Democrats with respect to non-SC appointments, thus your stats have little to nothing to say about this.  I'd also remind you that I didn't make this point.

                        "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                        by manyoso on Wed Jan 04, 2006 at 01:22:46 PM PST

                        [ Parent ]

                •  And I never hid my (none)
                  preference for conservative judges.  Policy matters are a different story.  But constitutional interpretation is not a political thing.  (Or at least shouldnt be).
                  •  Constitutional interpretation (none)
                    Are you a strict constructionist?

                    Could you please point out the strict language in the Constitution which gives the President the ability to break the law?

                    Also, could you please point out the strict language that negates Article I, Section 1 of our Constitution:

                    Article I
                    Section 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

                    Point out the language that says any legislative powers are vested in the Presidency in contradiction to Article I, Section 1.

                    "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                    by manyoso on Wed Jan 04, 2006 at 01:18:54 PM PST

                    [ Parent ]

                    •  Did I ever espouse that view? (none)
                      Congratulations on defeating another dangeorus strawman.

                      If you want to talk about interpretation, let's.  Executive branch interprets laws all the time.  That's what agencies are for.  They promulgate rules and interpret laws.  Their interpretation can be challeneged in court, but are generally given great deference.  So, yes the executive does often have a say in what the laws mean in practice.

                      •  I asked a question. (none)
                        If it seems I'm arguing against things you haven't said, it is mostly because you've said very little about what you actually think.  So, I'm left to guess.  But, I did ASK.

                        So, then you and I agree that the legislature is the sole branch vested by the constitution in CREATING the law.  That's a start.

                        You are right that the executive branch interprets laws all the time.  We also agree on this.  However, this is not a function of them exercising any sort of constitutional power.  It is just the resultant consequence of the fact that the executive branch is required to follow the law.  They interpret it to the best of their ability in order to follow it.  And when their interpretation is found lacking they are required to follow the interpretation the courts have ruled the legislature intended.

                        Alito is arguing with questions that presume the opposite.  It is his contention that the executive is vested with some legislative role and therefore the courts should consider the executive's interpretation of how the statutes were to be understood when the executive signed the bill.  There is NOTHING in our constitution which supports this reading.  NOTHING.

                        Something you might not have thought about... another group that regularly interprets the law?  American citizens.  We do it all the time.  And just like you said, our interpretations can be challenged in court, and just like the executive, when our interpretations are found inadequate we are required to adjust them to the legislatures understanding as interpreted by the courts.

                        "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                        by manyoso on Wed Jan 04, 2006 at 01:45:16 PM PST

                        [ Parent ]

                        •  But sometimes the Executive (none)
                          interpretes the law to be unconstitutional and refuses to enforce it at all.  See history of Dickerson v. US.  So that too happens.  It is all part of the dance and balance of powers.

                          And in some respects the Executive does create some laws (or technically rules that have force of law).  E.g., affirmative action was created via executive order.

                          What happens if Executive and Legislature disagree with the meaning of already enacted statute.  For instance if the executive believes that the statute doesn't really add (but merely restates) the existing body of law and the legislature believes otherwise?  Or vice versa, if the Executive believes that the law is much broader than the legislature believes.  (We are not talking about statutes that are crisp and clear, but those where there are ambiguities).  How are those disagreements resolved?  And that is an interesting constitutional question, don't you think?  

                          •  Prosecutorial discretion (none)
                            Yes, the parts of the executive that make up the criminal justice system have the power of prosecutorial discretion.  In effect, by exercising this power they can grant an unofficial pardon to those who commit crimes and thereby skirt the law by simply refusing to exercise the law.

                            However, this is a far cry from the ability to interpret law and it is also the height of abuse and injustice were the executive branch to use this power of prosecutorial discretion to skirt the law.  This practice, used in an illegitimate way, would fundamentally collapse the rule of law in our society.

                            Is that what you are advocating?  That the executive should feel free to break the law knowing that the attorney general, the President's former counsel, is willing to grant unofficial clemency to the President?

                            "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                            by manyoso on Wed Jan 04, 2006 at 02:11:20 PM PST

                            [ Parent ]

                      •  O shit (none)
                        That's what agencies are for? ONLY because Congress said so. Tomorrow Congress says they aren;t and then what?

                        More bullshit from you.

                        The SCOTUS is extraordinary.

                        by Armando on Wed Jan 04, 2006 at 01:49:43 PM PST

                        [ Parent ]

                        •  Agencies are just an example (none)
                          Executive will always need to interpret laws, for example to decide if your actions constitute criminal activity under a given statute so that you can be charged.
                          •  No (none)
                            The Judiciary and a jury of my peers will decide that thank you.

                            Sheesh, you are off your game today.

                            The SCOTUS is extraordinary.

                            by Armando on Wed Jan 04, 2006 at 01:59:54 PM PST

                            [ Parent ]

                          •  Before you get to that (none)
                            the executive needs to interpret the law to decide whether to charge you.  Then the judiciary gets involved.  Or it doesn't because you may just cut a deal.  I didn't say that the Executive is a last word, but there is always room for them to interpret laws.
                          •  Only if they do so in good faith... (none)
                            And notice that 'interpret' does not mean 'ignore'

                            "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                            by manyoso on Wed Jan 04, 2006 at 03:55:47 PM PST

                            [ Parent ]

                          •  Sheesh (none)
                            for the 50th time, I do not support the Executive ignoring laws.  Is that clear enough?!
                          •  So you condemn the NSA spying? (none)
                            Do you think it is an impeachable offense?

                            "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                            by manyoso on Wed Jan 04, 2006 at 05:07:53 PM PST

                            [ Parent ]

                          •  I do condemn NSA spying (none)
                            So far I have not heard any convincing argument as to why or how the President gets to single-handedly order warrantless searches.  If there is an argument I am open to hearing it, and reserve the right to change my opinion, but I doubt that such an argument exists.

                            I do not think that it is an impeachable offense.  Just because the President is acting potentially unconstitutionally (something that I believe is occuring, but has yet to be adjudicated) does not make the offense impeachable so long as he has good faith belief that his actions are indeed legal.  It seems that the Administration has that belief and in good faith.  That having been said, I think the program ought to stop.

                          •  Then interpetation (none)
                            of the EXECUTIVE variety - to wit, in the exercise of the EXECUTIVE power is what you mean.

                            A lot different than what Administrative LAw Judges do.

                            Do you understand what you are talking about?

                            I get the feeling you do not.

                            The SCOTUS is extraordinary.

                            by Armando on Wed Jan 04, 2006 at 07:11:50 PM PST

                            [ Parent ]

          •  What difference does it make? (none)
            We are talking about the merits of THIS nominee.

            Or do you think it should be a tit-for-tat game?

            Happy New Year, Impeach Bush

            by coigue on Wed Jan 04, 2006 at 01:54:03 PM PST

            [ Parent ]

        •  Here's the problem... (none)
          they DID have a Senate majority at the time they were enforcing those loathsome "tests" and ticks, and (I suspect) had the nominees gone through the process, many (though not all) of the nominees would have been voted down by the Republican Senate (wrongly, in my view).  We have neither a majority of the Senate, nor, even concievably, barring substantial movement, 51 no votes, which makes it a little more difficult of a sell.
      •  Nor does ... (none)
        ... "I disagree with the nominee's jurisprudence on issues A, B, C, D, ..., the nominee won't provide information, documents, etc. on issues X, Y, Z, ..., and I'm voting 'no' for those reasons" suffice.  There has to be an overarching reason to vote against the nominee.

        Going back to Adam B's quote a while ago -- if you want to kill a snake, you don't poke it in 20 different places.  You chop off its head.

        The quest for freedom, dignity, and the rights of man will never end. - Justice Brennan

        by jim bow on Wed Jan 04, 2006 at 01:03:33 PM PST

        [ Parent ]

    •  91% of 55 equals 50.5 (none)
      so if 9% of Republicans don't vote for Alito, then Cheney gets to cast the confirming vote (this, of course, assumes that Lieberman doesn't cross the fence).  If two more republicans could vote against him, then he'd fail to be confirmed, and a filibuster would be unnecessary...bush would have to go to his next "first choice"...Alberto "nipple clamps are okay" Gonzales.

      Hey, remember Harriet Meyers?  We need to keep asking about her, too...she's the nomination that never happened, according to the whitehouse.

      Once in a while you get shown the light in the strangest of places if you look at it right

      by darthstar on Wed Jan 04, 2006 at 12:39:08 PM PST

      [ Parent ]

    •  yet! (none)
      yet 9 % of 55 would be a little over 5, thereby givign us a win on the alito confirmation
  •  New Anti-Alito Petitions: (4.00)
    Two new anti-Alito petitions:
    Democratic Party's Reject Alito Petition

    Stop the NRA's has their own petition:

    Stop the NRA's Oppose Alito Petiton

    And if you haven't already, please be sure to Tell your Senators, no to Alito:

    Save the Court Petition

    And while you're at it: sign Planned Parenthood's anti-Alito petition, too:
    Planned Parenthood Petition

    NARAL is shooting for 500,000 signatures, please add yours:

    Naral Anti-Alito Petition

    Campus Progress' "Stop Alito's America" Campaign

    Stop Alito's America Petition

    And don't forget: urge Congress to support Plan B:

    Plan B Petition

  •  The juxtaposition of Bush's (4.00)
    "signing statement" about his willingness to torture by fiat with Scalito's weakness for a Presidential Imperium is BY FAR the most important political issue of the day.

    Yes, even more important than Abramoff (well, a little).

    The Bush Torture Statement is getting play at Huffpo and Political Wire (I haven't looked around much more) and I'll bet KO picks it up tonight too.

    You'd think that the Senators will KILL Alito because of this if for no other reason to show Bushie boy that he ISN'T an Emperor. Add to that the fact that Alito SUPPORTS this kind of shit, and you have a BOMB.

    The Perfect is the Enemy of the Better

    by dabize on Wed Jan 04, 2006 at 12:23:14 PM PST

    •  I sure hope so.. (none)
      I'm tired of King George's shit, and all of his supporters too!

      despot : 1. A master; an absolute or irresponsible ruler or sovereign. 2. One who rules regardless of a constitution or laws; a tyrant.

      by wrights on Wed Jan 04, 2006 at 12:51:03 PM PST

      [ Parent ]

  •  When will these dumb ass repubs (none)
    in Congress wake up? Why aren't they jealous of their own authority? Are they so beholden to these right-wing fundies that they will give up their own constitutional autonomy? What will it take for them to put country over party?

    They must be drinking something stronger than kool-aid!

    Too often we enjoy the comfort of opinion without the discomfort of thought- John F. Kennedy

    by vcmvo2 on Wed Jan 04, 2006 at 12:23:20 PM PST

    •  Ummm (none)
      maybe because they care about their own authority they don't want justices who will divine new rights out of think air thus circumscribing congressional authority?!
      •  They don't seem to mind their president doing it. (none)
      •  You're right (none)
        Congress needs to keep its eye out for those who would plainly misinterpret the 11th Amendment for ideological ends or restrict the reach of constitutional provisions contrary to the Framers' understanding, undoing decades of precedent in the process.

        Of course, Congress might also take a particularly close look at a nominee (like Alito) who apparently thinks Article I is largely precatory.

        The power of accurate observation is commonly called cynicism by those who have not got it. --George Bernard Shaw

        by Categorically Imperative on Wed Jan 04, 2006 at 12:40:51 PM PST

        [ Parent ]

      •  you mean like, say (none)
        deciding that a non-binding congressional resolution implicitly contained authority to override 100 years of Supreme Court Jurisprudence and Codified federal laws on wiretap procedures?  

        You mean whacky judicial activism like that?

        or you mean some wild and crazy "judicial activist" deciding, contrary to the plain language of the constitution that an American citizen Arrested on American Soil could be held by military forces indefinitely without charges, arraignment, trial, the ability to speak with a lawyer Or anyone else?

        Is that the kind of judge you fear?  One who could ignore the plain text of the Bill of rights (to say nothing of the Posse Comitatus Act), and the venerable judicial tradition of habeas corpus, and grant the president unreviewable executive powers like indefinite detention?

        Yeah, boy howdy, Glad we haven't confirmed any those unreliable activist types.....

        Knowledge is power Power Corrupts Study Hard Be Evil

        by Magorn on Wed Jan 04, 2006 at 12:45:47 PM PST

        [ Parent ]

        •  Why do you hate GOP judge clerking trolls? (none)
          Do you enjoy seeing smoke pour out of their ears like Norman?

          cheers,

          Mitch Gore

          A casual stroll through the lunatic asylum shows that faith does not prove anything.

          by Lestatdelc on Wed Jan 04, 2006 at 01:27:45 PM PST

          [ Parent ]

        •  Well technically the resolution was binding (none)
          But I already expressed my disapproval of warrantless wiretaps elsewhere.
          •  Are you really a judicial Clerk to be? (none)
            If so, I have a question and some advice for you.

            First the question.  If you are indeed clerking then you have had at least some legal education.  So how can you possibly still believe the "Judges creating rights out of thin Air" line?  It is nothing more than a talking point for demagogues to confuse the layman.  But you should know better.  

            Have you studied Bentham and Austin?  Does the name H.L.A. Hart ring a bell?  Have you read Lon Fuller's famous article on the   Core and the Penumbra?  IF you have then you should know that judicial interpretation is an essential part of creating law, not an evil to be avoided.

            Legislatures are made up, by and large, of non-lawyers who often draft and pass laws in a hasty and deliberately vague fashion.  Key provisions of the law are often left undefined so as to insure majority support and passage (each legislator can thus believe the law means what they want it to).  

            Therefore it is physically impossible to interpret a law to conform to the "intent of the legislature".  Indeed the notion that the "Legislature" as a body even had a unified single intent is pure legal fiction. Thus it is left to the judicial branch to interpret the law in such a way as to a) harmonize it with the existing body of law, thus creating a logical and predictable whole and b)Giving it the effect that the most natural reading of its words will allow.

            For example, the US Congress passed a criminal law in the early 1900's forbidding transportation of stolen motor vehicles across state lines.  At the time, they clearly intended to apply it to cars as they were the only Motorized vehicle then in existence.  However, their meta-intent in passing the law was to provide a federal solution to a crime that states couldn't properly handle as vehicles were highly transportable and could easily be moved across state lines, frustrating the efforts of local jurisdictions to bring the thieves to justice.

            Now in the early 1920's a man steals an airplane, and is charged under this law.   He challenges his conviction on the grounds that since an Airplane wasn't invented at the time the law was passed, the law cannot possibly be interpreted to criminalize his conduct.  What result?

            On the one hand he is absolutely correct.  Congress could NOT have intended to criminalize the theft or airplanes as they didn't exist yet.  On the other hand it IS a "motor Vehicle" as defined by Webster's and  theft of airplanes  creates the same problem in spades (easy transportability over state lines)that Congress was "intending" to deal with when it passed the law.

            So how do you "interpret" the law?  Are you a "judicial activist" unless you set the Airplane thief free?

            This brings me to my one word of advice;  from a former doctrinaire Libertarian Conservative to a budding one.

            Remember while you clerk, that you are not dealing with abstract philosophies and judicial theories but real cases that affect real lives, often in incredibly important ways.  Remember how in math they used to teach you to "check your work" to make sure the numbers you derived made sense in the context of the original problem?  I'd urge you to do the same.  Once you've derived what you believe to be the correct conclusions based on the relevant law, go back and apply it to the facts of the case at hand.   If the result smells bad, and seems unjust, then it probably is, and you need to look harder at the law for a better answer.

            Knowledge is power Power Corrupts Study Hard Be Evil

            by Magorn on Thu Jan 05, 2006 at 07:43:16 AM PST

            [ Parent ]

      •  What does Scalia have to do with this conversation (none)
        From your comments it is clear that you differ from most on this site (i.e., you have little regard for facts and truth and all other related pesky annoyances), however, you seem to be able to read, so why not do a quick tag search and see who the "real" activist judges on SCOTUS are, i.e., which judges vote AGAINST legislation proposed by our congress.  Let me give you a hint my friend, the right-wing judges on SCOTUS (thomas/scalia/rehnquist) block law at a clip of nearly 4 to 1 over the practical wing (ginsberg/stevens/breyer).

        So take your "activist judges" spin-line and bring it back to the freepers, it doesnt play so good over here.

        Thanks for your time, it's been...special.

        •  It's not whether they strike or uphold legislation (none)
          but where they get their authority from.  If it is the ephemeral rights to privacy taht occurs in unseen penumbras that's one thing.  If it's an application of original intent thats another.  We can fight over the question of what framers really meant.  But that is different from saying that the Constitution really has no meaning aside from that which 5 old people fancy at any given moment.
          •  Where do they get their authority? (none)
            Jesus Christ, George Bush, or the Constitution?

            Happy New Year, Impeach Bush

            by coigue on Wed Jan 04, 2006 at 01:25:43 PM PST

            [ Parent ]

          •  ephemeral rights and unseen penumbra (none)
            As much as I appreciate your intelligent design approach to constitutional law (much more interesting than the previous "creationist" incarnation), this whole "original intent" fiction has about as much foundation in law as trickle down has in economic circles (and is about as deceptive as "death tax" and "pro life").

            Your language isnt even nuanced enough to make the basic Scalia argument that there is no right to privacy in our constitution, you cut and paste a few words from findlaw and think you have an opinion.

            Just say you are anti-choice, believe that there is no constitutional right to an abortion, Roe was decided incorrectly, and move along, because the rest of your words does your side no favors.

            •  here I said it (none)
              I believe Roe was decided incorrectly and there is no constitutional right to abortion.  i do believe in legalized abortion though.
              •  Nice! (none)
                Now if only Scalito is as honest as you, we can move onto our next SCOTUS nominee.

                My only fear is that Scalito will not be as honest as you, will feel uncomfortable telling America his true thoughts about Roe and constitutionally protected abortion, will hide like a turtle in a shell (much to the chagrin of the Coulters and Dobsons and others of their ilk who thought that they were allowed to come out from under their rocks and stop hiding), and America will be stuck with another Scalia neanderthal (with the accompanying backsteps in women's rights, minority's rights, civil rights, worker's rights, etc. etc.)

                But drgrishka1, with your ability to shine the light of truth on your opinions, perhaps there is hope that Scalito will do the same.  Hope is a powerful thing...

              •  Looking at the (none)
                entirety of your comments, it appears you would  support a version of the ERA (Equal Rights Amendment) that included a right to choose, since your argument against abortion as a constitutional right is based on the fact that there isn't a specific amendment (like the 19th, for example).

                Correct?

                Happy New Year, Impeach Bush

                by coigue on Wed Jan 04, 2006 at 07:05:15 PM PST

                [ Parent ]

      •  Hmmm (none)
        Divining new rights out of thin air? Get serious, judges are supposed to interpret documents including legislation and the Constitution. It's not magic and it follows rather stringent principles of Stare Decisis (that which has gone before). The rethug meme of activist judges doesn't fly on dkos. Check the water you're drinking I suspect kool-aid contamination.

        Too often we enjoy the comfort of opinion without the discomfort of thought- John F. Kennedy

        by vcmvo2 on Wed Jan 04, 2006 at 01:22:34 PM PST

        [ Parent ]

        •  Except when it doesn't suit them (none)
          Lawrence not only did not follow stare decisis, it overruled it.  Roe has no support in any previous court rulings, citing to Griswold notwithstanding.
          •  Bullshit (none)
            Complete and utter.

            The result in Roe is the ONLY logical one UNLESS you believe that a fetus is deserving of a compelling state interest which overrides the fundamental right to privacy.

            There is NO WAY to distinguish Griswold from Roe otherwise. This is sheer nonsense.

            Your arguments on Roe have always been incredibly weak and you always avoid saying what you must - if Roe goes, so must Griswold.

            Bowers v Hardwick was COMPLETELY unsupported in law and precedent and made no sense whatsoever.

            It stood apart from the clear logic of the privacy jurisprudence.

            There's your problem - you don't like the constitutional right to privacy. Admit it.

            ScAlito should too.  

            The SCOTUS is extraordinary.

            by Armando on Wed Jan 04, 2006 at 01:47:53 PM PST

            [ Parent ]

            •  I dont like constitutional right to privacy (none)
              But unlike Griswold that involves consenting adults Roe involves a fetus.  And there is no basis in constitution to determine that fetus does or does not possess own rights.  Of and then of course there is regulation of medical practice that states always did.
              •  If there is no basis (none)
                for that determination from whence springs the State's compelling interest to overcome the fundamental right to privacy? Without that how can you distinguish Griswold from Roe? Indeed, under your construct Roe is wrongly decided because it admits the State's interest post-viability.

                The right should be completely unfettered.

                You defeated your own argument. Congratulations.

                The SCOTUS is extraordinary.

                by Armando on Wed Jan 04, 2006 at 02:02:38 PM PST

                [ Parent ]

                •  For starters (none)
                  there is no fundamental right to privacy.  That's a fanciful invention.

                  Second, it is just as legitimate to dtermine that life begins at viability as it is to dtermine that it begins at conception.

                  Third, Doe is pretty clear that the state cannot even meaningfully regulate post-viability abortion because health includes everything including "mental anguish."

                  So on those three grounds, Roe is different from Griswold

                  •  Oh, so you disagree with Justice John Roberts? (none)
                    Who specifically acknowledged a right of privacy?

                    "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                    by manyoso on Wed Jan 04, 2006 at 03:56:48 PM PST

                    [ Parent ]

                    •  Meaning of words (none)
                      I think what I and Justice Roberts mean by privacy and what you mean by privacy are very different things.  

                      There is right to privacy insofar as it concerns right to not be searched or seized without warrant, right to privately think or write what you please, etc.  But the thing is that "right to privacy" is simply a short-hand for enumerated rights.  There is no right to general privacy, and I dont think Roberts stated otherwise.  

                      •  Then he is a liar. (none)
                        It was the very first question asked of John Roberts by Arlen Specter.  He asked him if he believed in the right to privacy as set forth in Roe.  John Robert's said: 'I do.'

                        Of course, it is entirely possible that he was lying.  But, there was no question that he understood that Specter was asking him and he answered in the affirmative.  He believes in the right to privacy as set forth in Roe if you are to take him at his word.

                        "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                        by manyoso on Wed Jan 04, 2006 at 05:01:33 PM PST

                        [ Parent ]

                        •  Umm no (none)
                          He didn't say he believed in a "generalized right to privacy"  He was very clear about that.  Go back and watch the tapes. And he certainly didn;t endorse Roe (though he did endorse Griswold).
                          •  He did say he believed in a right to privacy. (none)
                            He said so again and again.  He said this right was to be found in many different places in the consititution including the liberty clause of the 14th amendment.  The very same right to privacy that was used to uphold Roe.

                            BIDEN: I thank you very much.

                            Now, you have already said to the chairman that you agree that there's a right to privacy. And you said the Supreme Court found such a right in part in the Fourteenth amendment. My question is: Do you agree that -- not what said law is -- what do you think?

                            Do you agree that there is a right of privacy to be found in the liberty clause of the Fourteenth Amendment?

                            ROBERTS: I do, Senator. I think that the court's expressions, and I think if my reading of the precedent is correct, I think every justice on the court believes that, to some extent or another.

                            Liberty is not limited to freedom from physical restraint. It does cover areas, as you said, such as privacy. And it's not protected only in procedural terms but it is protected substantively as well. Again, I think every member of the court subscribes to that proposition.

                            If they agree with Bowling against Sharpe, as I'm sure all of them do, they are subscribing to that proposition to some extent or another.

                            BIDEN: Do you think there's a liberty right of privacy that extends to women in the Constitution?

                            ROBERTS: Certainly.

                            BIDEN: In the Fourteenth amendment?

                            ROBERTS: Certainly.

                            "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                            by manyoso on Wed Jan 04, 2006 at 08:37:08 PM PST

                            [ Parent ]

                      •  Sorry (none)
                        Your disagreement is with Roberts words - he expresly endorsed Griswold and Eisenstadt.

                        You are really a clown tonight.

                        The SCOTUS is extraordinary.

                        by Armando on Wed Jan 04, 2006 at 07:08:41 PM PST

                        [ Parent ]

                        •  Like I said before (none)
                          Although I believe Griswold was wrongly decided, there is highly unlikely to be a case where it could be overruled.  So we may as well let it lie.
                          •  See above. (none)
                            Justice Roberts specifically held that a right to privacy can be found in the liberty clause of the 14th amendment to the constitution.  Here is that liberty clause:

                            Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

                            That is the very same clause that was cited in the original decision in Roe V. Wade.  Justice John Roberts said under oath that a privacy right can be found in that text.  So much for the strict constructionists.

                            So, he was either lying, or you don't know what Justice Roberts really believes.

                            Oh, and BTW, Specter has reported that Alito answered the same way when presented with this question.  He found a right to privacy in the liberty clause too.

                            Sucks to be you.

                            "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                            by manyoso on Wed Jan 04, 2006 at 08:42:28 PM PST

                            [ Parent ]

                          •  I think you import too much (none)
                            into Roberts' statements.
                          •  In other words, you think he was lying too (none)
                            hehe, you don't like that he said a right to privacy can be found in the liberty clause of the 14th amendment.  Well, suck it.  He said it.

                            So, if he was lying, he was lying under oath.  I thought you guys were all about taking words at face value.  Well, Roberts explicitly said that the liberty clause provides a substantive right to privacy.  You went from denying that he ever said it... then when it was pointed out his exact words, all you can do is retreat to that I shouldn't take him at his word.  Sad and pathetic.

                            "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                            by manyoso on Wed Jan 04, 2006 at 09:57:02 PM PST

                            [ Parent ]

                          •  He may have said it (none)
                            But I believe taht his understanding of that right is limited to what the first 10 Amendments cover.  The so-called incorporation doctrine.  He explictly rejected a "general" right to privacy in his prior writings.
                          •  And he explicitly... (none)
                            rejected his own prior writings during the confirmation as his paraphrasing of another's viewpoint, not his own.

                            I get it.  You don't like it that Robert's has said this, but you can't get around it.  And please provide a cite for this contention that the privacy right as found in the liberty clause of the 14th amendment is the same one that can be found in the first ten amendments.  I don't see that anywhere.  In fact, he went beyond that in the hearings.  You want me to continue or are you too depressed?

                            "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                            by manyoso on Thu Jan 05, 2006 at 05:01:34 AM PST

                            [ Parent ]

                          •  Not on that point n/t (none)
                          •  Cat got your tounge? (none)
                            You must be really depressed...  which past writing of Robert's are you referring to?  The one where he made the slip about a "so-called right to privacy" ? because he disowned that comment.  Explicitly.  Do you know this?  If not, I'd be happy to post the transcript.

                            Now, I've asked you provide a link for your belief that Roberts has a view of the right to privacy that is more limited than the one he gave in his confirmation.  What do you have besides this one line quip?  I can see why you'd be resorting back to that.  You got nothing.

                            Seriously.  Robert's, if you are to take him at his word, has disowned your viewpoint.  You'll have to get over it.  That, or you'll have to accept that he lied under oath.

                            "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                            by manyoso on Thu Jan 05, 2006 at 06:17:18 AM PST

                            [ Parent ]

                          •  For teh love of pete (none)
                            He had a half-an-hour discussion with Schumer where they discussed "general" right to privacy.  Roberts specifically refused to endorse the idea of a "general right" to privacy.  

                            SCHUMER: Would you say there's a general right to privacy?

                            ROBERTS: I don't know what general means.

                            SCHUMER: Substantive right to privacy.

                            ROBERTS: Well, substantive, yes. I have said that, that the protection extends to substantive protection. But when you say general, I don't know what that means. I don't know if that means...

                            SCHUMER: Excuse me. Didn't Justice Thomas disagree with the substantive right to privacy in Lawrence?

                            ROBERTS: His conclusion was that the liberty protected by the due process clause did not extend to that right, yes.

                            SCHUMER: Thank you. So, it would seem to me you disagree with him. I think you said it without saying it.

                            ROBERTS: No, Senator, you're asking me whether the right to privacy protected under the liberty clause extends to a particular right, the right at issue in Lawrence.

                            SCHUMER: I think what I'm asking you: Is there a substantive right to privacy? I don't apply it to a particular case.

                            ROBERTS: I have said there is a substantive right to privacy.

                            SCHUMER: And in Lawrence, Justice Thomas seemed to say there is no substantive right to privacy.

                            ROBERTS: No, as I understand it -- again, his testimony as a nominee was that there was. What he said was -- the quote you read in Lawrence --said there's no general right to privacy. Now, I don't know...

                            SCHUMER: His holding was that there was no substantive right to privacy under the liberty clause. Wasn't it? Wasn't that the whole thrust of his argument?

                            ROBERTS: No, I think, Senator, that his conclusion in Lawrence was that whatever right there was, it did not extend to the activity that was at issue in Lawrence.

                            SCHUMER: Bottom line is: You're unwilling to differentiate yourself from Justice Thomas's view on Lawrence.

                            ROBERTS: Well, it's consistent with the approach I've taken that I don't think it's appropriate to protect -- necessary to protect the independence and integrity of the court, to comment on whether that decision was correctly decided or not. And that is consistent with the approach that every member of the court...

                            It seems to me that all Roberts is willing to endorse is Meyers, Pierce, and Griswold.  He is not willing to say that there is a right to privacy that extends to generally being left alone so long as your activities are not harming anyone else.

                          •  No where is 'general' right to privacy defined. (none)
                            So, for Thomas and Roberts to draw a line between some 'general' right to privacy and the right to privacy found in the liberty clause of the fourteenth amendment.  And Roberts readily admits that such a distinction is meaningless, because no one has defined a 'general' right.

                            However, both Thomas and Roberts have said that a 'right to privacy' can be found in the liberty clause.  That clause, as you well know, makes no mention of the word 'privacy'.  Therefore, Roberts and Thomas are either lying OR they don't believe like you do... they aren't strict constructionists.  Read the clause.  Where do you see the word 'privacy'?  No, Roberts and Thomas are either liars OR they believe that rights can be found in the constitution that are not literally spelt out in full.

                            Again, sucks to be you.

                            "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                            by manyoso on Thu Jan 05, 2006 at 01:36:42 PM PST

                            [ Parent ]

                  •  Fanciful invention? (none)
                    How can you be so cavalier about an entire school of legal thought just because you happen to disagree with it?

                    Happy New Year, Impeach Bush

                    by coigue on Wed Jan 04, 2006 at 09:10:04 PM PST

                    [ Parent ]

              •  So you are of the (none)
                "Constitution as a dead document" philosophy, since there was no way to see a fetus and determine when life began, nor any safe abortion methods when the constitution was enacted, I guess it shouldn't be used as an argument for rights....even though there is that great disclaimer in the Bill of Rights saying (in effect) that: if a right is not explicitly listed here, it does not imply that the right doesn't exist.

                I happen to think of the Constitution as a living breathing document. Afterall, if it wasn't, only property owners would be allowed to vote.

                Happy New Year, Impeach Bush

                by coigue on Wed Jan 04, 2006 at 02:10:54 PM PST

                [ Parent ]

                •  Good point (none)
                  But I fear its falling on deaf ears.  He's a troll. And ,of course, he's a lawyer!!! Imagine that on dkos- a lawyer! But I let Armando answer him since he does it so well! lol

                  Too often we enjoy the comfort of opinion without the discomfort of thought- John F. Kennedy

                  by vcmvo2 on Wed Jan 04, 2006 at 03:04:35 PM PST

                  [ Parent ]

                •  Yes (none)
                  Constitution is a dead document.  Just like any other legal document.  It can only be updated via amendment process not by 5-4 court majorities.
                  •  Many fine leagl minds (none)
                    disagree with you, thankfully.

                    Happy New Year, Impeach Bush

                    by coigue on Wed Jan 04, 2006 at 05:46:03 PM PST

                    [ Parent ]

                    •  I know, but many agree with me (none)
                      and luckily for me SCOTUS is trending my way.

                      But here's a question for a "living constitutionalist."  If the Constitution changes meaning with the times, isn't it reasonable to assume that in the war time the Constitution may have a different and more narrow meaning than otherwise?  After all, the living Constitution theory espouses the notion that the COnstitution has no fixed meaning and that it meaning must correspond to the times.  (I disagree with that proposition, but you apparently do not).

                      And if you disagree that the Constitution may shrink during war time, then what exactly does "living breathing document" mean?  Or is it just a cover for the theory of "I get to enact through the courts that which I could not win in the legislature?"

                      •  Living, breathing (none)
                        means that it takes into account the fact that issues that may not be valid (or even conceived of) when the Constitution was drafted can be discussed in the context of the document that was written in a intentionally minimalist but flexible way. Some things will not be (should not be) affected by it, true.

                        But frankly I think that examples abound of both conservative and liberal justices using 'judicial activism' when they  champion their ideological and moral issues under the cloak of constitutionalism.

                        Happy New Year, Impeach Bush

                        by coigue on Wed Jan 04, 2006 at 08:09:22 PM PST

                        [ Parent ]

                        •  Well I am sure that (none)
                          phones and phone taps and terrorists flying planes into buildings wasn't conceived of in the late 1700s.  How does that inform your interpretation of the constitution?
                          •  Ok (none)
                            Wiretapping=unreasonable search

                            I say NOT flexible

                            terrorists + planes....just another attack at war...how it is done doesn't really matter

                            Happy New Year, Impeach Bush

                            by coigue on Wed Jan 04, 2006 at 08:46:23 PM PST

                            [ Parent ]

                          •  Why? (none)
                            Doesn't definition of "reasonable" change with times?  After all, the constitution doesn't prohibit "warrantless searches" only "unreasonable searches."  Now, because I believe in constitutional statism, I believe that the ratifiers meant unreasonable to mean warrantless in all except truly emergent circumstances.  But if you buy "living constitution" then "unreasonable" can change meaning, can't it?
                          •  I see your point. (none)
                            ...and I won't fall into the trap of thinking that no liberal judge with a liberal President in wartime would not make that leap. It's always a danger.

                            In fact...emergent can also change meaning.

                            But in reality, that's not what we mean by calling the constitution a living document. It's about the SCOTUS being part of the process. Precedent, Stare decisis, building a case slowly and conservatively. Scotus does that and needs to do that. But I emphasise slowly, with precedent.

                            Scalia wants time to stop, for us to remain culturally as we were when the constitution was ratified ...and some have argued that original intent is more manipulatable than the Constitution as written.

                            Happy New Year, Impeach Bush

                            by coigue on Wed Jan 04, 2006 at 09:54:16 PM PST

                            [ Parent ]

                          •  What I fail to understand is (none)
                            why someone such as yourself refuses to see that Conservative judges can be very activist when their pet issues are at stake.

                            Good strong constitutional arguments are just that...they don't have ideology. Scalia and Alioto are very ideological. Scalia can even be dogmatic at times. That is not a good basis for law. Now I will give you Roe...it was activist, and the result has been a mess. Good law  is like good science, it has to be built slowly, brick by brick, with patience.  Roe skipped a few bricks. It is still right and moral, but disfunctional....and that is unfortunate, even tragic, for many women.

                            Happy New Year, Impeach Bush

                            by coigue on Wed Jan 04, 2006 at 08:55:40 PM PST

                            [ Parent ]

                          •  Oh of course (none)
                            conservative judges can be activist as much as liberals can be.  Conservatives don't have a corner on being straight laced.  

                            That's why I don't defend conservative outcomes just conservative ideology (i.e., that the Constitution is static and must be interpreted as ratifiers intended).

                             

                          •  I don't think the conservative ideology is as (none)
                            strict as you think it is. In fact, I doubt it exists more for conservative judges than for liberal ones.

                            Only, conservative politicians use it as a political football (like the (R)s calling those judges that sided with Michael Sciavo activists, when clearly they were upholding Florida law).

                            All I am saying is....just because it's a conservative judge, don't assume they will be strict constructionists....I don't think Alito will be, based on his history.

                            Happy New Year, Impeach Bush

                            by coigue on Wed Jan 04, 2006 at 09:33:38 PM PST

                            [ Parent ]

                          •  I think he will be better than SOC (none)
                            who was a disaster of a justice.  She ahs no guiding philosophy of anything except what she feels is "fair"
                          •  Alito (none)
                            Has also said he believes the liberty clause of the 14th amendment provides a right to privacy.  At least if you believe Specter.  Of course, he'll be asked this in his confirmation just like Roberts, so we'll get to here in his own words.

                            But, regardless, you can continue either admit that Roberts, unlike you, believes in a right to privacy as afforded by the liberty clause of the 14th amendment or you can call him a liar.  Under oath.  Those are your choices and I suspect you'll be presented with the same choice for Alito.  Not a happy place for a strict constructionist such as yourself, but them's the breaks.

                            "... the Republicans have fucked reality so hard they need a physics professor to straighten them out." -- hamletta

                            by manyoso on Wed Jan 04, 2006 at 10:06:01 PM PST

                            [ Parent ]

                          •  SOC is a conservative (none)

                            Happy New Year, Impeach Bush

                            by coigue on Wed Jan 04, 2006 at 10:12:59 PM PST

                            [ Parent ]

              •  Just because YOU don't like it (none)
                doesn't mean there isn't one.

                There is plenty of precedent upholding this right.

                Happy New Year, Impeach Bush

                by coigue on Wed Jan 04, 2006 at 02:17:16 PM PST

                [ Parent ]

          •  Lawrence (none)
            does follow stare decisis....it was Hardwick that did not...a mere step backwards in a trend toward privacy rights.

            Happy New Year, Impeach Bush

            by coigue on Wed Jan 04, 2006 at 09:11:41 PM PST

            [ Parent ]

  •  It's all up to our Senators...... (none)
    And I gotta say that I ain't holdin' my breath.  If the past is prologue to the future (who said that?) then we will more than likely be treated to a few days of anemic butt-kissing and then they'll all vote for him.  Maybe it's all the Freud and Schopenhauer that I've been reading lately but I don't see anything standing in this guy's way.
  •  scalito (none)
    the rating the aba gave this turd is in the news this morning along with newt gingrich ( didn't he go away in shame long ago? why has the msm brought this asshole back as some sort of elder statesman or such??) anyhow back to scalito...it seems we are gonna have trouble getting our democratic senators to swim against the tide of mindless bullshit and filibuster this guy. i can hear their knees wobbling and their comity and other bullshit concerns starting to make them hope than can slide the only honest eye talian in joisey into office without being bashed by the left....we need to haunt them like freddy kruger in their fucking dreams till we get our filibuster...
    •  Newt? Shame? (none)
      C'mon, Newt's a Rethug! They have no shame. Not only that, he's talking about running for president in 2008. The complete, unmitigated arrogance and hubris of Rethugs never ceases to amaze me. Newt is just one more of them, but nothing beats DeLay, Rumsfeld, Cheney and the Shrub for the title.

      "It's the Supreme Court, Stupid!"

      by Kestrel on Wed Jan 04, 2006 at 12:55:34 PM PST

      [ Parent ]

  •  Except for one thing (none)
    overruling Roe wouldn't make abortion illegal.  A simple point that all the pollsters seem to miss.

    Alito will be confirmed.  Narrowly, but he will be.

    •  This is crap (none)
      It will make it illegal, probably for a majority of American women. While it's not a direct effect, it's going to happen very quickly afterward. Shortly after that various sex acts between consenting adults will become illegal in a number of states. The intrusion of states into our personal lives will begin wholesale.

      But I fear, you are right, he will indeed be confirmed.

    •  It will be illegal, just as it was before (none)
      Divide and conquer.  By sending the authority back to the states the right wing religious fanatics can concentrate national attention on each state one by one.  Then, like no-fault insurance and limitations on pain-and-suffering awards they will have their way.

      A Christian-Taliban USA.

      American Engineer :== loser!

      by jnmorgan on Wed Jan 04, 2006 at 12:44:32 PM PST

      [ Parent ]

      •  Read some history (none)
        Before Roe majority of states were moving towards liberalizing or completely legalizing abortion.  

        many states have explicit privacy clauses in the Constitution (eg Florida).  let it be decided state by state.

        •  "let it be decided state by state"...? (none)
          Ok, you are a fucking cretin.

          cheers,

          Mitch Gore

          A casual stroll through the lunatic asylum shows that faith does not prove anything.

          by Lestatdelc on Wed Jan 04, 2006 at 01:00:50 PM PST

          [ Parent ]

          •  Why? because I think issues like (none)
            abortion should be decided state by state as they have been for roughly 200 yeras prior to Roe?
            •  Yep (none)
              We should let slavery be decided state by state it has a long venerable traditon as well, let women's suffrage be state by state, Jim Crow laws, state by state.

              We are talking basic fucking rights (medical privacy and autonomy of self) which you are perfectly willing to let be legislated state by state.

              Fucking pathetic.

              cheers,

              Mitch Gore

              A casual stroll through the lunatic asylum shows that faith does not prove anything.

              by Lestatdelc on Wed Jan 04, 2006 at 01:09:20 PM PST

              [ Parent ]

              •  fucking pathetic? (none)
                Slavery was decided on the federal level through the 13th Amendment.  Women's suffrage was decided on the federal level by the 19th amendment.  Jim Crow laws by the 14th and 15th. Abortion is a federal right how?

                There are other posters here capable of rebutting drgrshk... you are not one of them.

                •  Hmmm (none)
                  Well Mitch could have expressed it better no doubt but are you saying that if there is not an expressly stated constitutional amendment, the Constitution don't cover it?

                  Is that REALLY your position? Let's see if you understand what that would mean.  

                  The SCOTUS is extraordinary.

                  by Armando on Wed Jan 04, 2006 at 01:32:12 PM PST

                  [ Parent ]

                  •  Of course not (none)
                    But, the 10th (along with 9th) protect the states' level of sovereignty.  It took the 13th to override state authority on slavery.

                    I wasn't addressing the "implied rights" issue at all (which is where others can rebut drgrishka), but rather that Mitch rattled of a list of issues to support his view that abortion should be kept away from the states. Yet every issue he cited was taken away from the states by amendment, not case law (like abortion)! Drgrishka argues (i assume) that abortion should only be taken away from the states by a similar amendment process. So mitch missed the mark completely.

                    •  Well lets not forget history (none)
                      That those amendments came about because we had to fight a civil war because jackoffs like the PIQ proceeded from the flawed thinking that the state could deny basic rights to people through legal/metal gymnastics and the "state rights" argument which prevented for almost a century for even approaching full implementation of the 14th which didn't occur in whole parts of our country until the Brown ruling and passage of the civil rights acts.

                      My mistake was leaping ahead to the larger principle which fall out form the jackass and fatally flawed "thinking" that his arguing that state by state legislation of basic rights is a legitimate and sacrosanct truism.

                      The federal is a check on state transgression of rights, enumerated and unremunerated (as stated in the 10th) and which are at the very core of the spirit and intent of our entire Constitutional structure and social contract.

                      cheers,

                      Mitch Gore

                      A casual stroll through the lunatic asylum shows that faith does not prove anything.

                      by Lestatdelc on Wed Jan 04, 2006 at 02:00:05 PM PST

                      [ Parent ]

                      •  you mean the 9th (none)
                        the 10th is a grant of power to the states:
                        "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
                        That says the states can do whatever the hell they want so long as it isn't proscribed by the Constitution (there's then a whole debate about the interaction of the 9th and 10th)

                        But your  central point: "those amendments came about because we had to fight a civil war because jackoffs like the PIQ proceeded from the flawed thinking" is not entirely correct.  The thinking wasn't "flawed" at all.  It was quite legally correct, but the progress of society meant that it (namely slavery) became morally incorrect.  Thus amendments were needed to bring the Constitution up to speed with morality.

                        •  You are correct in that I was speaking mainly (none)
                          about the interaction between the 9th and 10th, with the 10th clearly stating that all unenumerated rights (i.e. everything under the sun) are retained by the people. The Federal protects the people from the state by being able to supersede the states in order to secure their rights. This is why we have a Federal judiciary, etc. which can override states and thereby act as a counterbalance to them.

                          It isn't an either or but a both and with each providing a check on the other in order to (in theory) secure as much and as many civil liberties are possible for the people.

                          THis goes to and springs from the very core principles of our social contract and national founding.

                          That of course being precisely what the PIQ utterly fails to grasp that the inherent right is to the people and we the people only cede those rights in portions to the state in order to secure those other larger body of rights and liberties (i.e. ordering society through rule of law to prevent anarchy which absolute autonomy in every case to each and every individual at all times, from subverting an consuming all rights and liberties)

                          It is precisely those tensions intentionally crafted which were deemed ( and I post rightly so) as the only workable model in which to secure individual (and thereby collective) liberties and freedoms.

                          While the 13th, 14th were enumerated and spelled out was because (for various reasons) people where being denied their full sovereignty of self by being called less than fully people. It was however, even after ratification of the 13th and 14th, nearly a hundred years and only through action of the Federal courts and legislative bodies holding back the fucked up and flawed thinking of the states (specifically those in the south) from fully implementing the now enumerated rights. The stalling and push-back was through the specific "States rights" argument that the PIQ was using in the Griswold and Roe cases which is not in any real way different form the "foot-dragging" that occurred which prevented full exercise of basic rights which were always there, but needed the 13th and 14th to extend to everyone (in theory) since the very citizenship and person-hood of people (base don skin color) was being denied.

                          This is the example of the Federal securing inalienable rights which have always been there, but now needing enumeration in order to secure those rights to the people which the states had wrongly denied a portion of the people.

                          cheers,

                          Mitch Gore

                          A casual stroll through the lunatic asylum shows that faith does not prove anything.

                          by Lestatdelc on Wed Jan 04, 2006 at 02:35:07 PM PST

                          [ Parent ]

                          •  wrong on social contract (none)
                            The bill of rights was a set of limits on the federal government. It was not set out to limit the power of the states, except where necessary to carve out some power from the states to grant the feds.  Thus, the First Amendment did not prohibit individual states from having their own official "state church". It only applied to Congress.  It wasn't until well after the 14th amendment that any of the bill of rights was held to restrict the powers of the states.

                            Your notion that the 13th amendment (or 19th) was enacted simply to "spell out" the inherent rights contained in the 9th and 10th is historically inaccurate.

                            It's one thing to argue for a living constitution which evolves to keep up with society.  That's the heart of the progressive movement.  But it's just plain ridiculous (no, it's fucking retarded) to try and argue (like you have) that the founders intended for the federal government to be able to prohibit states from enacting anti-sodomy laws.

                          •  let me explain my distinction (none)
                            The broad reading of the 9th (as granting rights) works as against the federal government.  It does not work to limits the authority of state governments.
                          •  What bullshit (none)
                            The Ninth Amendment to the Constitution does not specifically identify any individual rights like the eight amendments that precede it, rather the Ninth Amendment sets forth a rule of construction that is to guide one when interpreting the Constitution. It makes the drafter's intent clear that the enumeration of certain rights in the body of the Constitution or in the Amendments shall not be considered to be exhaustive or all inclusive, but rather illustrative. Moreover, when read in conjunction with the Tenth Amendment the principal of individual sovereignty and a limited government of delegated powers is firmly established. Therefore the Ninth Amendment, when interpreted in accordance with the Tenth Amendment, should be read as establishing a rule of construction that demonstrates that the Constitution, as a whole, should be construed to mean that the people retain all powers (i.e. right or authority) not delegated to the United States by the Constitution nor delegated to their respective State governments by the several State Constitutions.

                            The Constitution and Bill of Rights represent a more thorough, but (according to the Ninth Amendment) not an exhaustive exploration of the unalienable rights that belong to all people. Other rights that have been recognized include, the right to privacy, the right to travel, the right of self-defense, the right to pursue one's occupation of choice, the right to marry, and the right to bear children. Surely many other rights exist as well, but most of our rights exist not in the form of positive declarations of such rights, but rather as implied rights and/or powers that are retained by people when not delegated. This concept, as well, derives from the Declaration of Independence where our forefathers made it clear that government derives all of its just authority from the consent (i.e. the act of granting one's permission or approval to another by the exercise of one's free will) of the people.

                            For example, the Constitution does not enumerate the right to eat one's food, but the Constitution does not grant to the government the power to deny people that right. The Ninth Amendment recognizes that such natural rights are retained by the people and cannot be abridged by the government.

                            cheers,

                            Mitch Gore

                            A casual stroll through the lunatic asylum shows that faith does not prove anything.

                            by Lestatdelc on Wed Jan 04, 2006 at 04:58:28 PM PST

                            [ Parent ]

                          •  You can cut and paste! (none)
                            Your post ripped off from Steven Atherton

                            Except you changed "unalienable rights given to Man by the Creator" given to "unalienable rights that belong to all people".  I guess that offended your sensibilities too much to plagiarize.

                            If you are too stupid to even try and argue a point yourself, why try and "pretend"? You've simply revealed your inability to actually engage or rebut any of my points.

                          •  Try again (none)
                            I was quoting from the dKospedia.

                            cheers,

                            Mitch Gore

                            A casual stroll through the lunatic asylum shows that faith does not prove anything.

                            by Lestatdelc on Fri Jan 06, 2006 at 03:17:56 PM PST

                            [ Parent ]

                          •  bwahahaha (none)
                            You wrote that dkospedia entry!!!
                            Atherton's article was posted in 2003.  You plagiarized it on March 28, 2005.

                            Keep on digging that hole buddy!

                          •  Which was culled form wikipedia (none)

                            cheers,

                            Mitch Gore

                            A casual stroll through the lunatic asylum shows that faith does not prove anything.

                            by Lestatdelc on Tue Jan 24, 2006 at 01:34:15 PM PST

                            [ Parent ]

                          •  dates? (none)
                            How can Atherton have culled his 2003 article from your 2005 wikipedia post?  I already posted the link to the wikipedia page history, proving you wrote that entry, and proving you did so in 2005 - two years after Atherton.  Why do you persist in embarassing yourself?
                          •  Huh? (none)
                            I never said Atherton culled it... I said I culled it from dkospedia which in turn I culled from the wikipedia article. I went back to the dkospedia article when I posted here that is what I cited.

                            I wasn't plagiarizing Atherton, I was culling from the dkospedia, which was in turn pulled from wikipedia article which is where I ran across the content in the first place, which is where I posted the dkospedia article from. I found the content on wikipedia and posted it on the dkospedia page.

                            I never once claimed I wrote the article or content.

                            There is nothing nefarious or fraudulent at what I did.

                            I never once claimed authorship of it.

                            cheers,

                            Mitch Gore

                            A casual stroll through the lunatic asylum shows that faith does not prove anything.

                            by Lestatdelc on Tue Jan 24, 2006 at 04:35:41 PM PST

                            [ Parent ]

                          •  what wikipedia article? (none)
                            Funny, I just googled the phrase "The Ninth Amendment to the Constitution does not specifically identify any individual rights" and only the Atherton article (with attributed quotes) and your dkospedia entry showed up.

                            In fact, wikipedia has never contained that quote. However, Atherton's article is the first external link of wikipedia, added 11/16/3.  You may have found Atherton's article by following the wikipedia link, but you still created the dkospedia entry by cutting and pasting Atherton's language, without attributing it, and editing out the "Creator" reference.  You are listed as the author of both the dkospedia article and your post above.

                            As the source language was never in the public domain, Atherton's page has a copyright notice, you failed to include "quotes", and you failed to attribute the language, you plagiarized it.

                            Plus, I find it highly amusing that you claimed to merely be culling the dkospedia, without disclosing that you were the 'author' of that dkospedia entry.

                          •  Wahtever (none)
                            I never claimed to be passing off Athertons' article as my own work. I was culling portions from the dKospedia article which I had gotten from wikipedia (may have been an external link I don't recall the exact specifics as I was culling many portions of wikipedia content and linked content to the various bill of rights dkospedia articles).

                            You are correct on the point I should have referenced the writing I was using as the basis for the argument.

                            But as I never claimed it as my own work (i.e. article). Again, there was nothing nefarious about it though you do make a point that I should have been and will be more clear going forward.

                            cheers,

                            Mitch Gore

                            A casual stroll through the lunatic asylum shows that faith does not prove anything.

                            by Lestatdelc on Tue Jan 24, 2006 at 05:57:37 PM PST

                            [ Parent ]

                          •  Oh bullshit (none)
                            Thus, the First Amendment did not prohibit individual states from having their own official "state church". It only applied to Congress.

                            Bullshit.

                            cheers,

                            Mitch Gore

                            A casual stroll through the lunatic asylum shows that faith does not prove anything.

                            by Lestatdelc on Wed Jan 04, 2006 at 04:55:19 PM PST

                            [ Parent ]

                          •  Okay Corky... (none)
                            Massachusettes had an official state religion until 1833, dumbass. Try googling some and you'll find the rest.

                            Besides, can you even read?
                            "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". See that word, 'Congress' - do you know what that word means? here's a hint, it's part of the FEDERAL government.

                            When you were busy plagiarizing Atherton, you should have read his post on the 1st: "Without a doubt, the First Amendment was a triumph for the recognition of individual rights, but it only protects the individual from the power of the Congress of the United States."

                            The Constitution was around long before 1947, and even before the 14th Amendment!  For example, Delaware required elected officials to swear: "I, A B. do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration."  I could go on with these cites all night, but I have better things to do than teach Constitutional Law to the mentally handicapped.

                          •  Incorporation Clause (none)
                            of the 14th Amendment, enacted in 1866.

                            You are correct sir.

                            The SCOTUS is extraordinary.

                            by Armando on Wed Jan 04, 2006 at 07:03:00 PM PST

                            [ Parent ]

                •  Exactly my point (none)
                  We had to have amendments to protect those rights because jack-offs like the PIQ (and you perhaps?) seem tot think the state has the right to abridge basic rights by thinking the state, not the people retain all unenumerated rights and those which fall within and under the penumbra of enumerated ones. Privacy being the one in question at the moment.

                  Step back from the minutia and look at the larger concepts and principles being discussed which the specifics of Roe (as well as Casey, Griswold etc.) and privacy rights (ini general) are examples of.

                  cheers,

                  Mitch Gore

                  A casual stroll through the lunatic asylum shows that faith does not prove anything.

                  by Lestatdelc on Wed Jan 04, 2006 at 01:41:16 PM PST

                  [ Parent ]

                  •  And abortion is a "basic right" (none)
                    because you say so?  Wow, I didn't know that the Constitution had a "Mitch Gore supplement"
                    •  Not because I say so (none)
                      But because the very core of our social contract is freedom and liberty of self, of which medical autonomy could not be more fundamental.

                      You ignorantly fail to grasp even the most basic concept behind our constitution and the principles behind it. That all rights are retained by the people. This includes wether and how I fuck my spouse, and what medical decisions I chose to make about my health and physiology.

                      We cede back to the state only those rights we explicitly enumerate to the state in order to secure all those unenumerated rights.

                      That you can't grasp that basic concept, is where you go catastrophically awry.

                      And to think you are clerking for a judge?

                      Amazing.

                      Must be a member of the Federalist Society.

                      cheers,

                      Mitch Gore

                      A casual stroll through the lunatic asylum shows that faith does not prove anything.

                      by Lestatdelc on Wed Jan 04, 2006 at 02:06:23 PM PST

                      [ Parent ]

                      •  OR the STATES (none)
                        The rights are retained by the people OR the STATES.  I.e., states as political entities retain rights to legislate in areas where the feds don't.

                        The Constitution did not enact libertarianism as a governing philosophy of the country.  And even if the rights are retained by the people, they are reatined by the people as a whole, not individual persons. So, if people as a whole wish to surrender those rights they can.

                        •  yeah well people on a whole don't (none)
                          want to surrender their rights.  not in the case of abortion.  the whole (or majority) of wingnut assholes maybe, but not the whole of society.
                        •  Text of the 9th amendment (none)
                          "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

                          The 10th goes on to state that "The powers not delegated to the United States (i.e the Feds) by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

                          The Ninth Amendment, particularly when taken in conjunction with The Tenth Amendment, emphasizes that the Bill of Rights is not a grant of rights from the government to the people, but a reminder that it merely enumerates some of the most important powers not granted to the government.

                          If you don't get that, you don't get anything in the Constitution or Bill of Rights thereof.

                          cheers,

                          Mitch Gore

                          A casual stroll through the lunatic asylum shows that faith does not prove anything.

                          by Lestatdelc on Wed Jan 04, 2006 at 05:05:37 PM PST

                          [ Parent ]

                  •  that's a debate on the 9th (none)
                    I view the 9th as an express limit on the powers of the federal government.  The prevailing Kos view is that it is a grant of rights to the people. The distinction comes into play when evaluating whether the federal judiciary has the power to invalidate state laws.  Under my view, the federal courts (as part of te federal gov't) are limited. Under the latter view, the federal courts are empowered to enforce implied rights.  Whichever way you go on the 9th controls how you view Roe.
        •  I like your rationalizing (none)
          And I know that as before:
          some states will make it illegal  to cross state lines to have an abortion.
          Illegal to inform a woman of the availability of abortion services in another state.

          The women that can afford the trip to visit their aunt in Amsterdam will still not have unwanted children.

          And the most amazing thing is ... why the fuck do I care?  I'm a WASP MALE.

          American Engineer :== loser!

          by jnmorgan on Wed Jan 04, 2006 at 01:04:03 PM PST

          [ Parent ]

          •  Hahaha! (none)
            I am a wasp?!  hahaha!

            neither of your propositions would be upheld.

            1. You can't tell doctors what to say or not to say.  First Amendment and all.  Only when money is involved can there be gag rules.

            2. Can't prevent people (adults) from crossing state lines to obtain abortion, much like you cant prevent them from crossing state lines to buy lottery tickets.  Freedom of travel.

            But hahaha, nonetheless.
            •  Oh reeeaaaallyyy (none)
              Then why are doctors obligated to report various confessions and conditions?

              American Engineer :== loser!

              by jnmorgan on Wed Jan 04, 2006 at 01:13:54 PM PST

              [ Parent ]

              •  Ummm... Public Health?! (none)
                n/t
                •  So I ask again (none)
                  How was Griswold wrongly decided (which you claim) when it was forbidding doctors from providing contraception or providing information about contraception?

                  Please explain to us exactly what service of public health was being served by forbidding doctors to dispense contraception?

                  cheers,

                  Mitch Gore

                  A casual stroll through the lunatic asylum shows that faith does not prove anything.

                  by Lestatdelc on Wed Jan 04, 2006 at 02:18:16 PM PST

                  [ Parent ]

                  •  Constitution does not require (none)
                    smart government.  It doesn't require that governmental policies be congruent with the demands of public health.  
                    •  That is no answer at all (none)
                      You are not answering why Griswolsd was wrongly decided plus you just contradicted your position on why the government can/should force doctors to reveal confessional material or report diseases, etc.

                      Glad to see you destroy another of your own jackass arguments with contradictory malarky.

                      cheers,

                      Mitch Gore

                      A casual stroll through the lunatic asylum shows that faith does not prove anything.

                      by Lestatdelc on Wed Jan 04, 2006 at 04:53:29 PM PST

                      [ Parent ]

            •  Oh? (none)
              The Child Interstate Abortion Notification makes it illegal to transport a minor across state lines for an abortion if not a family member. If a minor does cross state lines for an abortion, this bill also requires that physicians practicing in states without parental involvement laws notify a parent or guardian 24 hours before the abortion is performed. Violating either provision would be a federal crime subject to a $100,000 fine, one year in jail, or both.

              The House has passed three similar bills since 1998 but so far they died in the Senate.

              Don't hold your breath.

              cheers,

              Mitch Gore

              A casual stroll through the lunatic asylum shows that faith does not prove anything.

              by Lestatdelc on Wed Jan 04, 2006 at 01:15:03 PM PST

              [ Parent ]

              •  Key word being CHILD (none)
                n/t
                •  Right. (none)
                  Children NEVER have need of abortions.

                  Riiiiiight.

                  Let's force children to become parents.

                  Happy New Year, Impeach Bush

                  by coigue on Wed Jan 04, 2006 at 01:36:27 PM PST

                  [ Parent ]

                  •  See, when some people hear "child" (none)
                    they think, "property of the parent, possessing no rights as a person."

                    Others think, "human being owed an even higher level of protection from the state than an adult, including protection from potentially abusive parents."

                    It's interesting, however, that the groups who hold these two incompatible positions swap at the moment of birth.

                    Folly is fractal: the closer you look at it, the more of it there is. - TNH

                    by Canadian Reader on Wed Jan 04, 2006 at 02:53:10 PM PST

                    [ Parent ]

                •  Perfect (none)
                  You swallow Luntz crafted "Clean Skies" style labels as if that were the actual function of the law or purpose thereof.

                  Amazing.

                  Do you also think that the CheeriosTM really are "More Flavourful" because the starburst on the box says so?

                  cheers,

                  Mitch Gore

                  A casual stroll through the lunatic asylum shows that faith does not prove anything.

                  by Lestatdelc on Wed Jan 04, 2006 at 02:13:44 PM PST

                  [ Parent ]

                •  You're too young to know this yet (none)
                  but a pregnant sixteen year old, along with the kid who got her pregnant, are no one's definition of "children."  Minors in the custody of parents, yes, but not children.  And this is the issue that IMO is probably at the heart of the whole controversy over abortion and not at all peripheral.  
            •  Can't tell doctors what to say (none)
              Sheeesh dude.

              Do you know ScAlito thinks that is perfectly constitutional?

              Keep digging.

              The SCOTUS is extraordinary.

              by Armando on Wed Jan 04, 2006 at 01:35:59 PM PST

              [ Parent ]

            •  Correct me if I'm wrong (none)
              but I believe some state law does regulate physician speech as it relates to patient decision making and behavior.  For example, some states have required that patients seeking abortion be counselled that abortion has been found to increase a woman's risk for breast cancer (not true, but, whatever).

              Whether this misinformation is, in fact, supplied by a nurse  or other agent of the physician is irrelevant.  The procedure is done by the physician.   So (mis)informing the patient regarding risks of the procedure is the responsibility of the physician.

              You could also say that HIPAA guidelines regulate physician speech.

              •  Fair enough (none)
                But none of these guidelines prohibit speech.  HIPAA does not really prohibit speech, it prohibits you from revealing information that was entrusted to you because of your position.  (As lawyers cant speak about client's business).  

                To the extent that you suggest that states may prohibit all MDs from advising about availability of abortion across state lines, I believe such a prohibition would be blatantly unconstitutional (if no governemnt money was involved).

                •  you didn't address my point: (none)
                  Physicians in some states have been required to inform women seeking abortions that they might suffer adverse consequences--not scientifically substantiated, but convincing nonetheless to the state legislature.

                  How is this not "prohibiting speech"?  To be perfectly literal (since evidently that is required with you), is not the physician from saying, "This so-called connection between abortion and breast cancer is a load of crap?"

                  By the way, what is the distinction between speech and "sharing information"?

    •  true (none)
      the exact question was:

      "If you thought that Judge Alito, if confirmed, would vote to make abortions illegal, would you favor or oppose his confirmation?"

      Harris Interactive, Dec. 8-14, 2005:

      Favor (Net) - 31%
      Oppose (Net) - 69%

      That's an inaccurately phrased question and would seem to explain the 70%.

      However, an NBC/WSJ poll question from the same time period last month got a similar response, and it was phrased correctly:

      "The Supreme Court's 1973 Roe versus Wade decision established a woman's constitutional right to an abortion, at least in the first three months of pregnancy. Would you like to see the Supreme Court completely overturn its Roe versus Wade decision, or not?"

      NBC/WSJ, 12/9-12/05:

      Overturn - 30%
      Not Overturn - 66%
      Unsure - 4%

      So, the way the question is phrased doesn't seem to make a difference. Americans are pro-choice and support Roe v. Wade by a 2-1 margin.

      •  Two separate questions... (none)
        1.  "Do you agree with Roe v. Wade?"
        2.  "Do you believe Samuel Alito should be confirmed if he would vote to overrule Roe v. Wade?"

        It's certainly possible to answer "yes" to both questions.
        •  it is possible (none)
          But that must be a very small subset of responders.

          Accurate questions would help, but it seems clear that a large majority of Americans both (a) do not want Roe overturned, and (b) do not want Alito confirmed if he would vote to overturn Roe.

          •  FWIW... (none)
            I am a "yes/not sure."  There's also the big contingency in the question--"if he would vote to overrule Roe."  Alito and those preparing him are smart enough that he's going to skillfully dodge any question on "should Roe be overruled?"  Basing your case on a contingency is never a good idea.
            •  agreed (none)
              obviously the problem is that the vote on Alito comes first, and knowing Alito's position on upholding Roe comes second (if at all).

              The hearings should focus on the limits of executive authority IMO. We already can be pretty sure we won't get anything out of quesitoning him on Roe.

              But, it's useful to remember and know that if Alito were to say or have written something that would lead the American public to believe he would overturn Roe, we have 2/3 of the public on our side.

      •  its a better question (none)
        in that it doesn't have the obviously false 'ilegal' phrasing, but without articulating the impact of 'completely overturn' (ie, states would regulate abortions as they saw fit) you've probably still got a fair amount of not-sure-what-it-entails/leave it alone.

        I'd be curious as to what the polling would have been vis-a-vis emancipation circa 1860.

    •  The polls don't point that out... (none)
      because it isn't true. From here:
      16 states still have pre-1973 anti-abortion laws on the books even though they are clearly unconstitutional and nullified under Roe v. Wade. However some of them would be immediately enforceable if the U.S. Supreme Court overturned Roe v. Wade in the future. Others would remain unenforceable until judicial injunctions were lifted.
    •  you know, you might be right about Roe. (none)
      I wonder how much access there is now compared to pre-Roe. So mant states have restricted access so much that Roe is not really having any substantive effect on women's lives.

      Those in poor conservative states still have no access, whereas those in liberal states have access...just like before Roe.

      On a Frontline documentary one abortion provider of an unnamed southern red state said she secretly wished that Roe would be overturned - because most people (in liberal areas of the country) think that if Roe exists it follows that  women and girls have access to abortions. Of course that isn't true at all, it isn't even true about access to contraception.

      Happy New Year, Impeach Bush

      by coigue on Wed Jan 04, 2006 at 07:12:00 PM PST

      [ Parent ]

  •  This (none)
    guy needs to be filibustered 'till pigs fly. Make it understood to the chimpiest sect that they will get nothing done while this guys name is on the table.

    it tastes like burning...

    by eastvan on Wed Jan 04, 2006 at 12:25:03 PM PST

  •  he's a radical (none)

    If the dems don't do everything they can to stop this clown, they don't deserve to win any seats in the Fall.

    Make a stand you spineless pussies.

  •  Big deal (none)
    He won't be confirmed by popular vote, he'll be confirmed by the Republican-controlled Senate.
    •  Most likely (none)
      I think he'll be filibustered, but he'll still be confirmed when Frist gets the votes to go nuclear.
      •  No way Frist nukes (none)
        They couldn't do it at the beginning of 2005, at the height of their powers, they sure as hell can't do it now.
        •  There won't be a filibuster (none)
          the Gang holds.  But if there is a filibuster, then there are 50 votes for going nuclear.  Remember, DeWine and Graham said they would vote for the nuclear option.  (In the meantime Alito could probably be installed via a recess appointment).
          •  Nope (none)
            Can't install SCOTUS members by recess appointment.

            cheers,

            Mitch Gore

            A casual stroll through the lunatic asylum shows that faith does not prove anything.

            by Lestatdelc on Wed Jan 04, 2006 at 12:57:11 PM PST

            [ Parent ]

            •  Yes... (none)
              you can.  I can name two (John Rutledge and William Brennan) off the top of my head.  What prevents a recess appointment here is that O'Connor's resignation letter is expressly contingent on the confirmation of her successor.  Hence, there's no vacancy to fill until and unless a successor is confirmed.  (O'Connor is free to modify that contingency at any time and walk away, though.)
          •  highly doubtful, imo (none)
            It'll be easy to pick off Republican votes that don't want to be seen aligned too closely with First (corruption) or Bush (corruption, lying, unconstitutional activities, etc) in mid-2006.
        •  I think... (none)
          he's in an even stronger position, votes-wise, to do so now.  There will be 45 "aye" votes and 45 "nay" votes no matter what.  I think there are a number of folks (Lindsey Graham leading the way) who might have voted "no" on the option six months ago had it come to that point, but who would vote "yea" now after the agreement.  It's an easy, easy, spin for them of "they said they'd play ball by certain rules, and now they don't want to."
        •  I don't think it matters much... (none)
          They still have 55 votes in the Senate. Of course, 7 Republicans were part of the deal to prevent this from happening. It's pretty safe to say they'll hold the other 48 votes. Considering the VP's the tie-breaker, they'd simply have to peel back 2 votes. I didn't really want to debate this now, but I just feel that the nuclear option will in fact be triggered over this.
  •  Alito (none)
    I read somewhere that Reps were doing the Lower the Expectations game with him in terms of his self presentation. If they're worried - good. In terms of style, if not substance, Roberts is a hard act to follow. I'm hoping for rivulets of AFS (Alito Flop Sweat) Nixon Redux.
    •  Exactly... (none)
      That's the big issue he has.  Roberts was pretty much flawless in his hearings, and avoided saying anything particular designed to set off alarm bells.  If Alito slips at the hearings, that's where the trouble lies.  If he doesn't, he's confirmed with at least 54 votes.  (I can see a Chafee, Collins, or Snowe peeling off if he trips up a little, but even if all three are written off, that's still 52.)
      •  By "slip"... (none)
        I mean say something along the lines of:

        "The right to privacy is bullshit and Griswold should be overruled."

        "Abortion should be illegal everywhere.  Roe should be overruled and the fetus given constitutional rights under the 14th amendment."

        I firmly believe Alito and the people preparing him are both smart enough and not arrogant enough to avoid saying something so utterly stupid and inflammatory.

    •  Good point (none)
      Maybe Meiers was an attempt to lower the bar after Roberts.

      Remeber what you see here today because the media will lie about it. -anonyomous

      by Young and on the air on Wed Jan 04, 2006 at 12:37:23 PM PST

      [ Parent ]

      •  No (none)
        Although the net effect of Miers was an appearance of lowering the bar, the fact of her nomination was sheer Bush stupidity and hubris, followed by his usual petulant-child act.

        Alito is going to be confirmed, there's just no way around it. That said, one trifling observation: I don't like the way the guy looks. I suspect I'm not alone, though it's meaningless to his confirmation.

        Roberts was right out of central casting. Alito looks like the Pillsbury Dough Boy in a suit. Bad hair. Pasty looking. There's something about his appearance that's a little creepy. Just sayin'.

        "It's the Supreme Court, Stupid!"

        by Kestrel on Wed Jan 04, 2006 at 01:12:53 PM PST

        [ Parent ]

  •  70% (none)
    nearly 70%... would oppose Judge Alito's confirmation if they thought he would vote to make abortion illegal.

    Whaaaat???? Don't those 70% realize that they are out of the mainstream????

    "...the big trouble with dumb bastards is that they are too dumb to believe there is such a thing as being smart." -- Kurt Vonnegut, Jr.

    by Roddy McCorley on Wed Jan 04, 2006 at 12:28:50 PM PST

  •  Why ,Yes Sir Re Bob (none)
    In answer to the question "Will Republicans in the Senate go along with a judge who seeks to undermine the legislative branch, and hence their own power?" to hear Senator McConnell speak the answer is something like "If the President Really Really wants us to bend over, I am sure damn near every Republican Senator will do what we are told."
  •  Calling All Lawyers! (none)
    People for the American Way (PFAW) just released a report on Alito - read on...

    PFAW's Opposition to Alito's Nomination

    On January 9th, hearings for Supreme Court nominee Samuel A. Alito, Jr. are scheduled to begin.  Alito is to replace Justice Sandra Day O'Connor, who has been the swing vote on a closely divided Court in cases involving civil rights, reproductive freedom, environmental protections, and other constitutional liberties and issues.  Alito's confirmation, however, threatens to swing the Court decisively to the right, jeopardizing the rights of Americans for generations to come.  After an extensive review of Alito's legal and judicial record, People For the American Way has released a comprehensive pre-hearing report highlighting the risks posed by his nomination.

    http://www.SaveTheCourt.org/...

    Our report documents that Alito has been the most frequent dissenter among all of the Third Circuit Court of Appeals judges since his appointment, with more than 90% of his dissents taking positions more conservative than those of his colleagues.  He has sought to limit congressional authority to enact legislation protecting the health, safety, and welfare of Americans, in the name of "constitutional federalism."  He has also described himself as an advocate of the "unitary executive" theory, which the current Administration has tried to use to justify its unilateral assertions of broad power.

    Recently, many Americans were stunned to learn that President Bush had illegally approved the wiretapping of hundreds to thousands of Americans without any judicial authorization.  At a time when the Administration has clearly abused its power, it is even more crucial that the Court serve as an independent check on the executive branch.  Yet Alito has argued -- while in the Solicitor General's Office -- that Cabinet officials who authorize illegal wiretaps of Americans in this country to gather intelligence about possible terrorist activities are entitled to absolute immunity from any legal liability.

    PFAWF's Response to National Security Agency's Illegal Surveillance

    On December 29, 2005, PFAWF filed a request under the Freedom of Information Act seeking information on the NSA's illegal wiretaps on Americans, including the number of people wiretapped by the NSA.  To see a copy of the letter and related materials, visit http://media.pfaw.org/...

    PFAW's Lawyers' Network: Actions You Can Take

    As a member of the legal community, you understand what is at stake during this important moment in American history.  Please click here to urge your Senators to oppose the confirmation of Samuel Alito to the U.S. Supreme Court.

    http://Petition.SaveTheCourt.org

    Please consider forwarding this email to interested colleagues, and invite them to review our pre-hearing report on Alito's record.  Please also let them know that joining the PFAW Lawyers' Network is easy: just visit http://www.pfaw.kintera.org/... to sign up for special lawyers' alerts and other targeted mailings.

    Many thanks to those of you who helped us review Samuel Alito's numerous appellate opinions and other documents associated with his legal and judicial record.  We could not have put this together without you!  If you have not previously expressed interest in volunteering and would like to be part of our volunteer legal team, please contact us at dwillis@pfaw.org.  As always, we are grateful for your dedication in these efforts to strengthen civil liberties and defend the Court.

    Thank you for your membership in the Lawyers' Network of People For the American Way!  Happy New Year!

    www.savedarfur.org www.afterdowningstreet.com

    by Alegre on Wed Jan 04, 2006 at 12:31:35 PM PST

  •  I disagree in part (none)
    "Not good considering that the battle hasn't been engaged yet. And most of those who have made up their mind -- Republicans -- already support him. As Democrats turn against Scalito (and they will as his record is revealed), his overall numbers will plummet. Same for independents."

    This is if the PR campaign is picked up by the MSM. There is no way to know how much coverage this will get. We'll see if there is any coverage that isn't ruined by a guise of being "balanced"

    Matt

    p.s. how do you get the fancy grey boxes around quotations? Sorry, I'm new

    Remeber what you see here today because the media will lie about it. -anonyomous

    by Young and on the air on Wed Jan 04, 2006 at 12:32:47 PM PST

  •  Sandra Day O'Connor must be so proud (none)
    Sandra Day O'Connor must be feeling very proud that, through a petty act of personal desire in 2000, she has so dramatically undermined the constitutional court she has served on for almost 25 years. By deciding she wanted to retire under a GOP president and helping to install Bush she has set into motion a series of events that has lead to a crisis where the very separation of powers in our government is under threat. And now she's set to be replaced by one of the very king makers who are undermining our Constitution.

    Thanks for nothing, Sandra Day O'Connor. What a horrible mark on the history of this nation for you to leave.

    •  She knows the timing's not ideal... (none)
      But that's not being fair to her.  She specifically mentioned in her letter that she would "retire from my position as an associate justice of the Supreme Court of the United States, effective upon the nomination and confirmation of my successor."

      In other words, there's no way Bush could appoint a replacement justice while Congress is in recess.  He has to have Congressional approval for the successor, in order for her to retire.

      (IIRC, her husband has health issues that are possibly prompting her decision.)

      •  I'm referring to 2000 Bush v. Gore (none)
        I'm referring to her role in the 2000 Bush v. Gore decision, along with the gossip that around that time her husband allegedly was heard at a DC cocktail party claiming she didn't want to retire under a Democratic president:

        And according to the Wall Street Journal, O'Connor's husband said at an election-night party that his wife, a 70-year-old breast-cancer survivor, would like to retire but that she would be reluctant to leave if a Democrat won the presidency and got to select her successor. Hers was a key swing vote that ensured a Republican victory.

        So yes, if the gossip is true she damaged this country for personal, petty reasons. And I don't think there's anyone who can honestly defend the ridiculous "one-time-only" ruling that was supposedly for the good of this nation.

        GOP: Party before Country
        Puppethead

        by puppethead on Wed Jan 04, 2006 at 01:33:23 PM PST

        [ Parent ]

  •  So now we know why (none)
    the Rethugs are so concerned about "activist judges making law from the bench."
    They're worried it might conflict with their activist emperor President making law from the oval office.

    I see you when you're sleeping. I know when you're awake. I know if you've been bad or good. But criminy, even I go through FISA!-S. Claus

    by jazzmaniac on Wed Jan 04, 2006 at 12:37:55 PM PST

    •  I'm reading a book about Truman's steel (none)
      seizure right now, Alan F. Westin's The Anatomy of a Constitutional Law Case.  Seems Truman's highhandedness aroused a lot of opposition from the Taft wing of the Republican Party.  There were even calls for impeaching Truman.

      I bet there are some interesting quotes out there, if somebody could find them.

  •  Alito in Casey (none)
    I diaried on SmokeyMonkey.org this morning with my analysis of Alito's dissent in Casey v Planned Parenthood.  I would appreciate any comments over there, and please take the poll, it is a new site that needs some help.

    Thanks!

    Keep your constitution close my friends, and read it daily.

    by smokeymonkey on Wed Jan 04, 2006 at 12:39:57 PM PST

    •  Spousal notification (none)

      In your argument, you apparently missed that the law allowed a woman to state that she feared her husband, and thus waive notification.  This required no burden of evidence, and explains that particular aspect of the decision.

  •  I think Executive Power... (none)
    ... is an issue that will allow Senators who would not or could not oppose Alito purely on abortion to do so. I don't know whether that will move enough votes to make blocking him viable, but I think the road will be bumpier than it looked when he was nominated.
  •  I bet Biden will still support him (none)
    •  No he won't (none)
      You obviously have not read his past statements in past Supreme Court confirmation hearings, nor looked at his voting record on Supreme Court nominations.

      These types of comments are ignorant, and undermine the integrity of this blog.  Please don't take this personally because there are many Kossacks who make the ignorant comments that you just made.  This is a comment to all Kossacks.

      The quest for freedom, dignity, and the rights of man will never end. - Justice Brennan

      by jim bow on Wed Jan 04, 2006 at 01:08:41 PM PST

      [ Parent ]

  •  Alito doesn't need support...just 51 votes (none)
    Just say "No-Lito"

    Once in a while you get shown the light in the strangest of places if you look at it right

    by darthstar on Wed Jan 04, 2006 at 12:47:19 PM PST

    •  He needs 60 (none)
      Assuming there is a filibuster. Then the rules of the Senate need 51 to block the Nuclear Option.
      •  If there's an up or down vote, then 51 (none)
        is enough, right?  I don't have faith in the democrats to actually prevent a vote on Alito...though I would have a lot more respect for them if they did manage an extended filibuster that forced bush to pick someone else...again.

        Once in a while you get shown the light in the strangest of places if you look at it right

        by darthstar on Wed Jan 04, 2006 at 12:57:40 PM PST

        [ Parent ]

  •  Evidence: the pro-choice platform is a winner. (none)
    It's a winner and a keeper. Let any debate on the matter end now.

    Merry Christmas, Impeach Bush

    by coigue on Wed Jan 04, 2006 at 12:48:49 PM PST

  •  Is this a serious question? (none)
    Will Republicans in the Senate go along with a judge who seeks to undermine the legislative branch, and hence their own power?

    Kos, you can't be serious there are you?

    Of course they will. The corruption that is the Republican't Party has fully demonstrated, repeatedly that it puts the elephant above everything, including the stars and strips and the corpses and the twisted bodies of our troops. You think they give a flying fuck about the separation of, and balance of powers?

    Let me know if you think they will put principle and serivce to country and the COnstitution above their parties power grab, because if so, I have a great deal on a bridge for ya, or if you prefer some Floridian land that would be ideal since you expressed an interest in finding a new local to live.

    cheers,

    Mitch Gore

    A casual stroll through the lunatic asylum shows that faith does not prove anything.

    by Lestatdelc on Wed Jan 04, 2006 at 12:52:06 PM PST

  •  ABA: "Well Qualified" (none)
    http://www.cnn.com/...

    But what does that mean anyway? It's no good to be perfectly able to go through all the motions if he does all the wrong motions. An able body still has to choose between playing soccer and kicking kittens.

  •  Any Democrat who Votes for Scalito (none)
    should be targeted for political assasination.

    No quarter. No excuses. No mercy.

    If you betray the American people after these kinds of stats, you WILL be gone.

    Period.

    Scalito will betray America on abortion, on worker's rights...

    and most importantly... on prosecuting Bush for his crimes.

    Harry Reid should make that very clear in the coming weeks as all of Scalito's bullshit is discussed.

    U.S. blue collar vs. CEO income in 1992 was 1:80; in 1999 it was 1:475.

    by Lode Runner on Wed Jan 04, 2006 at 01:23:55 PM PST

    •  Wouldn't that be something??? (none)
      Imagine!
      •  If Reid told em to toe the line? (none)
        He's done it before...

        I think he can if he really makes it the priority.

        And I think he should...

        U.S. blue collar vs. CEO income in 1992 was 1:80; in 1999 it was 1:475.

        by Lode Runner on Wed Jan 04, 2006 at 02:13:25 PM PST

        [ Parent ]

        •  He's one tough cookie (none)
          A politically mixed bag, and I disagree with his abortion views, but he's got some steel in his spine (perhaps he can model proper behavior for some of our more wayward Senators). I hate to say it, but while I'm sorry Daschle lost his seat, I'm glad Reid is Minority Leader right now; I'd hate to think where we'd be if TD was still in that position.
          •  yes. (none)
            i personally disagree with much of what reid stands for and is. i personally don't like him on the issues often... abortion... didn't he vote for the bankruptcy bill?

            i don't like his macho, kick-ass, cowboy, bootstraps, mindset. i think such people aren't socratic enough...

            but that's the kind of thing the dems need right now. i think you need a hitler to defeat a hitler...

            we need unity in order to take on the conservatives... we need to goosestep at times.

            and scalito is one of those times. because it really will lock in a corporatocracy in america for 50 years... and prosecuting bush/cheney for their war crimes would probably be impossible... and that just can't happen. we can't let that happen this time. this isn't iran/contra. this is bigger than watergate and iran/contra put together... what bush/cheney have done.

            i think reid will vote no on scalito... i just hope he puts the thumbscrews on everyone else this time, cause this is do or die... and i think it should tell us liberals what the democrats' role is in maintining the status quo. how far will the mainstream of the democratic party go to protect the corporate status quo... and bush?

            they haven't used their fillibuster yet... and meiers was a gimmee... the conservatives knocked her out.

            the strategy needs to be to keep o'conner in as long as possible... cause bush is just going to put up psycho canidates... as i suspect he'll need them to save his ass in his own criminal trial.

            if we are in fact going to find out how guilty bush is and what should be done about it... o'conner needs to remain where she is.

            bush will not appoint anyone he can't puppet via scalia and roberts, anything less would be his own suicide.

            U.S. blue collar vs. CEO income in 1992 was 1:80; in 1999 it was 1:475.

            by Lode Runner on Wed Jan 04, 2006 at 03:01:16 PM PST

            [ Parent ]

            •  If we lose (none)
              my fantasies are that Dems will be in power when the opportunity comes to appoint 2-3 justices; and that the relatively young Roberts (he's just reaching the age where men become human </menopausal snark>) will moderate his views somewhat in the next 10-15 years.
  •  Drgrishka1 (none)
    For Supreme Court Justice!
  •  Scalito? (none)
    ...seems to me the nickname does a disservice to Scalia.

    as many justified grounds as we have for kicking Scalia around, at least he has shown some willingness (e.g. his opinion with Stevens in Hamdi) to maintain the proper balance between the branches.

    from what we've seen of Alito, he is more like Thomas: a servile bootlicker for the executive branch.

    that's a bad thing anytime. with shrub in office, it could lead to the imposition of dictatorship... quickly.

  •  Alito (4.00)
    I confess to being a lawyer--

    Look at the totality of Alito's legal record.

    His decision regarding spousal notification on abortion.  

    His wiretap defenses during the Reagan years.

    His conflict of interest issue with vanguard

    Make up your own mind and if you oppose him get off this board and lobby your senators, etc.

    It is pretty clear what his views are.  It is VERY lame for him to run away from them.  If Bush has this mandate to govern with his type of judge then why not have Alito explain his views unfettered.  Do you think that Thurgood Marshall had the option of hiding his past?

    It is funny that Bush says that he wants a Justice in the line of Scalia/Thomas yet when he nominates someone just like them people say he is not so radical.

  •  Interesting theory (none)
    You propose that Scalito would be honest with the American people if the fillibuster was taken off the table.

    I counter-propose that Scalito be honest with the American people period.  No caveats, no positioning, just be honest.

    It saddens me that the current administration has taken such steps as to make truth and honesty available only as negotiation tactics.

  •  Still uncertain... (none)
    I know I got yelled at quite a bit for opposing the anti-Roberts strategy, and I'm aware the stakes are "higher" here since this nominee actually WILL shift the court to the right... but I still think a pattern of voting against well-qualified candidates will hurt us in the end.  

    We have to face facts here -- the chances of recapturing the Senate anytime soon are very low, and will be for quite some time: there are simply more red states than blue states, and even if we're fruitful and multiply in New York and California, each state only gets two senators regardless of size or population.  We may likely recapture the Presidency and House in 2008, but not the Senate, which means we will have to work with a Republican-led Senate to get our nominees in when time comes.  

    So far, the Republicans have a far better record of approving "our guys" than we do of "their guys" (Stevens 98-0, Ginsburg 97-3, Breyer 87-9.)  Right-wing commenters and blogs went apoplectic that Roberts was "only" confirmed 78-22, after all.  But frankly, they were right -- we didn't have a good-faith basis to oppose Roberts other than ideology, which previously both sides agreed wasn't fair game.  The opposition to Alito is almost exclusively ideological as well -- and that's changing the playing field (and we know it.)  

    As I've said before, the only genuine card we could have played to stop Alito in good faith was if the ABA only came back with "qualified", like Thomas, or "qualified/not-qualified" like Bork.  Instead they came back -- unanimously -- as "well-qualified".  

    So unless we want to pretty much guarantee that after winning the presidency in 2008 we'll never ever get to nominate a liberal (or even moderately-liberal) justice ever, we have to really rethink our strategy here.  Otherwise when Stevens and Ginsburg retire/die on OUR watch, we'll at best only get moderates in as well -- so even OUR winning the Presidency will move the court to the right.

  •  my answer to your question (none)

    you ask-

    Will Republicans in the Senate go along with a judge who seeks to undermine the legislative branch, and hence their own power?

    Thus far I have witnessed no evidence that this congress has any interest in doing their job.  They are constantly deferring their power to the President and the Supreme Court.  Therefore, I see no reason why they will discontinue display of "do nothingness".  And that goes for Lieberman too.  And so the affirmative action for rich, white, religious males set forth by the Republicans will continue

    Don't push me 'cause I'm close to the edge

    by Cat4everrr on Wed Jan 04, 2006 at 02:26:37 PM PST

  •  5-4 instead of 6-3 (none)
    He'll shift the court right, but the focus now turns to solely to Kennedy as a swing vote, instead of Kennedy-O'Connor.  Kennedy is much more predictable than O'Connor (with her wacky balancing tests on everything). But Kennedy swings both ways - just not in the Souter meaning of that phrase ;)
    •  How do you get 5-4 instead of 6-3? (none)
      Rehnquest is and soon O'Connor will be gone.

      One of us is using GOP Social Security or Budget math here.

      cheers,

      Mitch Gore

      A casual stroll through the lunatic asylum shows that faith does not prove anything.

      by Lestatdelc on Wed Jan 04, 2006 at 05:40:23 PM PST

      [ Parent ]

      •  wow... just wow... (none)
        If you had read any of the recent SCOTUS opinions, you would see a frequent split:

        6: Ginsburg, Stevens, Breyer, Souter, Kennedy, and O'Connor
        versus
        3: Rehnquist, Scalia, Thomas.

        O'Connor and Kennedy often switched sides, so controversial opinions would be 6v3 'liberal wins' or 5v4 liberal wins or 5v4 conservative wins.

        Roberts replacing Rehnquist keeps the 6 v 3 'liberal wins' Roe vote intact.  Move O'Connor's vote into the conservative minority once she is replaced by Alito.  Then you have a 5 to 4 vote, liberals still win on Roe.

        Kennedy will be the only one who would conceivably act as a switch hitter on abortion. 5-4.  And given the ambiguity of O'Connor's "balancing tests" on abortion, we're sure to see a lot more abortion cases make their way to SCOTUS.

        •  Ahhhh (none)
          In almost every important ruling on abortion in the past decade or so, the vote has been 5-4 with O'Connor being the swing vote.

          The Supreme Court, in Planned Parenthood v. Casey, 505 U.S. 833 (1992), reexamined Roe and explicitly upheld its validity by a 5-4 vote. A plurality of Reagan-Bush appointees, O'Connor, Kennedy, and David H. Souter, reaffirmed that the Constitution protects a right of abortion. Rehnquist and Scalia filed biting dissenting opinions. During the 1990s, attempts were made at the state level to ban partial-birth abortions, which were struck down, again by a 5-4 vote, in Stenberg v. Carhart, 530 U.S. 914 (2000), with Justice Kennedy, co-author of the Casey decision, among the dissenters. Subsequently, Congress passed a law banning partial-birth abortions, which is currently in litigation.

          Not sure what rulings you arrive at your (to my eyes) erroneous conclusions about the 6-3 split only shifting to 5-4.

          cheers,

          Mitch Gore

          A casual stroll through the lunatic asylum shows that faith does not prove anything.

          by Lestatdelc on Thu Jan 05, 2006 at 05:52:32 PM PST

          [ Parent ]

          •  Still a dumbass (none)
            I would think after I caught you plagiarizing, and after you were humiliated on the establishment clause, you would crawl away in shame.  But no, you come back and this time plagiarize Wikipedia on Roe.  You really could put a little bit more effort into it when you play dress up lawyer...

            Once again, you mental handicap is showing.  Casey is one of the messiest decisions, with pluralities all over the place on different points. The Wikipedia Roe entry (which you passed off as your own) does not even get into the technicalities of Casey. Although the express upholding of Roe was 5-4, the court subsequently swung to the left.  Right wing White was replaced by Ginsburg!  If Casey had come down in 1994, it would have reaffirmed Roe 6-3.  That's where I get the numbers from dumbass.  Good lord you're ignorant of even recent history!

            You then jump to the partial birth question, which is an entirely different legal issue.  Note that I sad the liberal Roe majority would remain intact.  Roe v. Wade will still not be overturned merely because Alito replaces O'Connor.  It will take one more switch, as Kennedy believes in Roe. So in 2005, Roe had a 6-3 uphold vote, in 2006 it will have a 5-4 uphold vote.

            If you think I'm wrong, please try counting the 2006 justices who will overturn Roe to reach your supposed 5: Scalia, Thomas, Roberts, Alito..., anyone?... Bueller?

            Note also that I repeatedly reference Kennedy's "switch hitting."  That's because he will allow some restrictions (Stenberg) on abortion (as expressly allowed for in Roe, mind you). But to a simpleton as yourself, Roe v Wade stands for "abortion on demand for all nine months".  

            My dog has a quicker grasp of the law.

            •  WTF are you abbling about (none)
              I would think after I caught you plagiarizing, and after you were humiliated on the establishment clause, you would crawl away in shame.

              WTF drugs are you on?

              But no, you come back and this time plagiarize Wikipedia on Roe.

              How is posting relevant culled snippets from Wikipedia I was basing my understanding on "plagiarizing" exactly?

              And I never once claimed to be a lawyer so not sure WTF that is about. Somehow you think that only lawyers are qualified to talk about legal cases in the SCOTUS and the make-up of the court?

              Talk about delusions of grandeur on your part. But please call people dumbass because it makes you sound so much more intelligent and lucid. You might try not behaving like a jackoff and people might be more inclined to say hey, you make a good point instead of suggesting hat you fuck yourself gently with a chain-saw... just a thought.

              cheers,

              Mitch Gore

              A casual stroll through the lunatic asylum shows that faith does not prove anything.

              by Lestatdelc on Fri Jan 06, 2006 at 03:12:33 PM PST

              [ Parent ]

              •  here's what I'm talking about (none)
                When you wholesale copy someone elses writing, and then pass it off as your own, it's called plagiarism. It doesn't matter if you agree with what you are plagiarizing.  Why did you cut and paste and deliberately avoid quotes? Because you were in over your head, but you still want to play dress up lawyer.

                Now I don't think people have to be lawyers to engage in legal debate.  But you have repeatedly demonstrated your ignorance of the issue, backed up by rudeness and arrogance.  I, on the other hand, couple my arrogance with knowledge.

                Regarding the establishment clause, look upthread to where I said "Thus, the First Amendment did not prohibit individual states from having their own official 'state church.' It only applied to Congress." To which you so wisely responded, "Bullshit."

                My statement was 100% correct. You demonstrated a profound ignorance of the Constitution.  But always seeking to top yourself, you challenged my "Roe support going from 6-3 to 5-4" statement, by citing the 5-4 Casey decision, even though it involved a different set of justices.  That demonstrated your ignorance of even recent constitutional law.

                If all you can do is cut and paste, why bother?

  •  Well... (none)
    ...when you tell the President that he can basically break the law at will, expect some fallout...

    JP
    http://jurassicpork.blogspot.com

    Defending bad taste and liberalism since 2005.

    by jurassicpork on Wed Jan 04, 2006 at 02:29:22 PM PST

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