Skip to main content

The Constitution does grant us the right to throw out our entire government if they're abusing power!

Could there possibly be a way to remove a sitting Justice in the same fashion?

Of course, the Bush Administration will be ready to pounce on that... we'd have to prove Alito undermines democracy and the Constitution, Congress' power, etc. and they'll be ready to destroy any "proof"...

A little brainstorming, folks. Just to see what we may be able to come up with.

Originally posted to MonteLukast on Thu Jan 12, 2006 at 11:48 AM PST.

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  Yes. (4.00)
    Impeachment.
  •  thought you meant that judge in (none)
    Vermont, Cashman, who gave 60 days for child rape.  oops!

    'All great change in America begins at the dinner table.' Reagan

    by PhillyGal on Thu Jan 12, 2006 at 11:50:54 AM PST

    •  That case is widely misunderstood (4.00)
      The man was ordered to mandatory treatment, because he was clearly very very sick, and is believed to pose a very low threat of reoffense (unusual for sexual offenders).  I'm not sure what the treatment is, but it can be really severe stuff (like mandatory drugs) in some places.  If he fails to comply with the treatment orders or any other conditions of release, he's back in prison for life.
  •  death? (none)

    Do you respect life? Do you eat meat? Respecting only human life is like respecting only white people.

    by leftout on Thu Jan 12, 2006 at 11:51:05 AM PST

  •  Impeachment (none)
    Could there possibly be a way to remove a sitting Justice in the same fashion?

    Yeah. Impeachment applies to every elected official, including judges. Good luck getting that through Congress, though.

  •  But it would be awfully hard to prove (4.00)
    an impeachable offense based on the Justice's judicial opinions.  We'd be better off shutting down the government, sending in a comely judical intern with some pizza, and letting nature take its course....

    Sometimes you cover your ass with the lame excuses you have, instead of the lame excuses you wish you had. (-3.00, -5.49)

    by litigatormom on Thu Jan 12, 2006 at 11:51:42 AM PST

    •  Bush v. Gore (none)
      Bush v. Gore is potentially an impeachable offense, given the fact the in retrospect the evidence shows that Gore won.

      Especially with Democratic majorities in the House and Senate, whenever that occurs.  Sigh.

      •  Ahh (none)
        No.  The retrospective evidence doesn't matter, actually.

        They weren't deciding who won the election by counting votes, they were hearing legal arguments on the merits of the equal protection and how it applies to vote counting.

        That decision is technically seperate from any issues surrounding it.

        Also, do you really want to further politicize the court?

        •  asdf (none)
          They weren't deciding who won the election by counting votes, they were hearing legal arguments on the merits of the equal protection and how it applies to vote counting.

          And in so doing, the right wingers in the court pissed all over that little "states rights" thing that conservatives like to pull out of a drawer when they don't want to rule against discrimination or other such things.

          And as far as "politicization of the court" goes, there was nothing more political than the Bush v. Gore decision.

          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 Thu Jan 12, 2006 at 12:11:01 PM PST

          [ Parent ]

          •  notes (none)
            And as far as "politicization of the court" goes, there was nothing more political than the Bush v. Gore decision.
            I agree.  However, if you go ahead and empty the court the first time Democrats get a majority then you might as well shut down the judicial branch.  It'll never just be a one time shot; it'll be standard procedure.  That's why it doesn't make sense to ratchet it up to the next level.

            Being inconsistent is not an impeachable offense.  Being a hypocritical bastard (Scalia) isn't a hyopocritical bastard.

            thing that conservatives like to pull out of a drawer when they don't want to rule against discrimination or other such things.
            One small comment on this.  Most discrimination is legal, which is why you don't see lots of good rulings from SCOTUS against it.

        •  Still impeachable (none)
          Because
          (1) the "equal protection demands that we not count votes" argument is bogus on its face
          (2) the argument alleges irreperable harm -- to BUSH, without considering Gore or the American People -- therefore presuming that Bush won the election at the beginning of the decision!
          (3) the argument is so weak that the authors of it claimed that it shouldn't be used as precedent.  Judges can't actually do that, and certainly shouldn't.
          (4) the decision violated many, many precedents without even commenting that it was doing so, which is a big no-no too
          (5) Scalia and Thomas violated the canons of judicial ethics by not recusing themselves from the case despite very evident conflicts of interest

          There is no "further politicization".  Scalia and Thomas are crooked hacks who should never have been made judges.

          •  Oh, and for some retrospective evidence: (none)
            The "irreperable harm" alleged to be caused by the recount was that there would be a cloud over the legitimacy of the Bush Presidency.

            In actual fact, stopping the recount is what created the cloud.  A remedy which actually causes the harm which it is supposed to stop is a legally ludicrous concept, so grossly incompetent that it deserves impeachment.

          •  wrong (none)
            1.  It's not "bogus on its face".  It's an argument.  Counting standards need to be uniform across all ballots cast in a state.  That's an argument, I think (and you do to) that it's wrong, but it's still a legal argument.

            2.  The harm is that after the certification of votes Bush would have lost that certification, which is clearly the legal definiton of harm.

            3.  Judges can and do decide that decision are "precedential".  It first happened on the SCOTUS in 1801.   Appeals courts do it all the time when their is significant case law they are testing.

            4.  I agree.  It was a total rush job.

            5.  I agree.  

            There is no "further politicization".
            There is where you are wrong.  YOu think next time the GOP rigs themself up a majority they won't empty the courts of liberals on trumped up charges and cite this as precedent?
            •  That would be relevant in the old regime. (none)
              1.  That wasn't the argument.  It was well known that the counting standards weren't uniform, and after stopping the recount, the counting standards still weren't uniform

              2. The certification has no legal standing.

              3. Yes, but you can't decide that a decision is not precedential -- even if you do, it can and will be used as precedent anyway.

              Finally -- the GOP is already claiming that they remove judges for the flimsiest of reasons.  Giving them something which they can lie and call a "precedent" will not change whether they do it, and it will not change how popular it is if they do do it.  So it really doesn't matter.  This is one of those "preserve the rules so the other side doesn't break them" arguments, which are normally good, but are meaningless when the other side has already decided to break every rule it can get away with (and lie about precedents).

              The Republican Party is run by Dominionists.  Dominionists do not believe that our democratic, rule-of-law government has any legitimacy; they believe that the only legitimate government is a theocratic dictatorship.  Accordingly, they will break whatever rules they need to to get it.

              We should follow rules which we believe in, obviously, but we should not follow rules because we want the other side to -- because the other side won't, whatever we do.

              In the interests of preserving the principle that judges should only be impeached for violations of the canon of ethics -- not for simply issuing biased, illegal, and completely absurd rulings having no basis in law, fact, or logic - I actually think only Scalia and Thomas should be impeached.

              •  breach (none)
                3.  Yes, but you can't decide that a decision is not precedential -- even if you do, it can and will be used as precedent anyway.
                Yes, you can.  It's done all the time, and it's been done by the SCOTUS before.

                Finally -- the GOP is already claiming that they remove judges for the flimsiest of reasons
                But they haven't.  It's a scare tactic.

                The Republican Party is run by Dominionists.  Dominionists do not believe that our democratic, rule-of-law government has any legitimacy; they believe that the only legitimate government is a theocratic dictatorship.
                Lies and fabrications.  It's simply untrue.  There are surely fundamentalists in the GOP structure, but not one that wants to install theocratic dictatorship.

                In the interests of preserving the principle that judges should only be impeached for violations of the canon of ethics -- not for simply issuing biased, illegal, and completely absurd rulings having no basis in law, fact, or logic - I actually think only Scalia and Thomas should be impeached.
                The point is here that both Scalia and Thomas violated the "appearance of improriety".  They didn't actually commit an ethical breach - like say, accepting cash for a ruling, or allowing someone else to write their opinion.  

        •  Politicizing the court (none)
          As long as the current Republican appointed justices (minus Souter) sit on the court, it will be politicized.  Impeaching and removing the politicized justices and actually appointing even-handed judges again would help de-politicize the court.
          •  Right (none)
            But then the first time a liberal judge makes a ruling against a converative judge that judge will be removed by the Republicans.  In the name of "even handedness".

            The great fact is that even "the Republican judges" are not all that ideological; the lines are not just clearly drawn by who appointed them to the court.  It's a mixed bag.  You see Scalia and Stevens concurring, you see Souter and Thomas, Ginsburg and Requinhist, etc.  And you see a lot of lopsided cases as well, 7-2, 6-3, etc.

            So, basically, the fact is that you can claim it's a highly wrong court, but that's a matter of opionion, and I'd wager that you can't make a legal case that conclusively proves that Scalia, Thomas, et all are "bad judges".  

            Removing them will mean the end of the court because it will never be finished.  It'll always be revenge time.

      •  Jurisdiction (none)
        And there's the question of jurisdiction.

        The Contstitution grants Congress sole authority over presidential elections. Sole. In one book I read (I don't have the ref handy, but it was a book of essays on the decision by several legal scholars, edited by Bruce Ackerman), one opinion repeated by more than one essayist was that the SC overstepped its authority in even hearing the case.

        Deciding a case on which it had no jurisdiction, especially one that forced a particular result in an election to the nation's highest office doesn't seem to be especially good behavior.

    •  The Wingnuts made a lot of noise about this (none)
      During on of the previous "just-US " Sunday thingies.  The were siezing on the "good behavior" provison Article III

      The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

      The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour

      They were trying to make the Arguement that they could define "Good behavior" as, essentially, "agreeing with them" (couched in the language of being 'strict constructionist' as opposed to activist,  of course)

      But note that nowhere is Lifetime tenure for judges constituionally specified, nor is the number of justices on the supreme court fixed.  So in theory a subsequent congress could enlarge the court or fix the term of its members.

      However, tradition is a mighty thing, and even arguably the most powerful president we've ever had, FDR, wasn't able to pull this off at the very height of his powers.

      Realistically impeachment is the only other option, and only one Justice has ever been impeached (unsucessfully) and that was during the Jefferson adminstration.

      Knowledge is power Power Corrupts Study Hard Be Evil

      by Magorn on Thu Jan 12, 2006 at 12:04:59 PM PST

      [ Parent ]

    •  wrong, do it again (none)
      technically, you don't have to prove anything criminal to impeach and remove a federal official

      the Clinton impeachment proved that all you need to impeach a federal official is 218 votes in the House of Representatives

      there is no definition of "High Crimes and Misdemeanors" included in the Constitution, so anything goes

      all that is needed is an issue that can gain 218 votes in the House and 67 votes in the Senate

      if you don't eat your meat, you can't have any pudding. How can you have any pudding if you don't eat your meat ???

      •  How about ... (none)
        Lying to Congress.  4 days and counting...

        "Out here in the middle, where the center's on the right, and the ghost of William Jennings Bryan preaches every night..."

        by Nineteen Kilo on Thu Jan 12, 2006 at 02:07:59 PM PST

        [ Parent ]

      •  agreed.... constitutional politics (none)
        Agreed with you there...  In its absolute essence, the burden for impeachment and conviction as well is ultimately political. "High Crimes and Misdemeanors" are defined by the Congressmen and Senators involved, and as example, no matter how aggregious You and I may feel about an abuse of power, it takes the elected representatives to agree that it is an abuse of power to count as an impeachable act. Hence, truth shading (yes lying) under oath to a Court that you didnt engage in sexual acts with a legal person of majority age was deemed at least a misdemanor worth of Impeachment, but all this other bad action in the past 5 years will never be until political temperatures rise. (You could have asked Richard Nixon how that works).

        To me, Bush v. Gore bounces at the edge--and I think beyond--of misconduct insofar as there was an arguable, but in my opinion damned clear ethical failure in not recusing, and although I think the Jurisdictional issues of the Court are significant (Cert should not have been granted, IMHO) there was significant political cover for that one, regardless of how historians look at it.

        Also, ask Rep. Ayee Hastings (D-FL) about Impeachment and also irregularities in the Impeachment process that affected him as a District Court Judge.

  •  You don't consider abusing power... (none)
    ...to be a high crime or misdemeanor?  The Constitution is the law. Flaunting it, disregarding it, violating some of its key provisions -- would be breaking the law.

    "...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 Thu Jan 12, 2006 at 11:56:52 AM PST

  •  Be careful. . . (none)
    . . .what you ask for.  If you find some way to short circuit the process and remove a sitting Justice, Bush will use it immediately to remove all but his own appointees.

    It is no accident that Liberty and Liberal are the same word.

    by Sorceress Sarah on Thu Jan 12, 2006 at 12:01:44 PM PST

  •  I've Always Maintained Scalia Should Be Removed... (none)
    for that execrable crap published at First Things:

    "...The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible..."

    In my country, I've been taught that the government derives it's authority from the people.

    Scalia is a menace to our republic.
  •  Other ways (none)
    1. Change the size of the Court. That happened several times in the 19th century. (FDR was roundly criticized for his attempt to dramatically expand the number of Justices, so the idea has been tainted since then -- but it can be done by law, not amendment.)

    2. Convince a Justice to resign in order to take another post. LBJ convinced Arthur Goldberg to step down and become UN ambassador, allowing Johnson to appoint Abe Fortas as his successor.

    3. Appoint a Justice as Chief and have him get tarnished in the confirmation hearings, leading to resignation. Okay, this isn't a deliberate strategy. Johnson did that with Fortas, too.

    4. Convince a Justice to retire because of health and age, perhaps with whispers of a successor they will approve of. Ford did that with William O. Douglas (the whispers are my speculation).
  •  Where in the constitution (none)
    does it say we can overthrow the government if they're abusing power?

    Now, in the declaration of independence it says that, but i dont think it does in the constitution...

  •  No there in no realistically viable way... (none)
    and thank God for that.  This is an incredibly short sighted view.  Yes, we may have to put up with the effects of a right wing court for quite a while, and that is truly a tragedy, but the minute we start throwing out judiciary members based on political leanings is the day the rule of law truly falls apart in this country.  Can you not see that if there were a way to do this, the GOP could use this against us jsut as easily as we could use it against them?

    This sounds like some half baked, dumb as hell, "Constitutional" argument that Pat Robertson would come up with, and I refuse to lower myself to that standard.

    The proper way to keep control of the courts would be to block Alito.  If we can't do that, we have to wait for the next opening.  The rule of law is simply too important to screw around with in this manner.

    Matt

    Political Compass: Economic Left Right: -3.13; Social Libertarian/Authoritarian: -6.56

    by Cixelsyd on Thu Jan 12, 2006 at 12:46:16 PM PST

    •  Not short sighted at all. (none)
      A 30-year tenure by a right-wing activist court could permanently damage our republic.  Scalito has all but declared Bush king already.  A king can suspend elections, the Constitution, the legislature, even the court that crowns him.

      I doubt the Military would back such action, but why go down that road to find out if you can make a slight correction upfront.

      Besides, Scalito would not get impeached for being a right-wing hack.  He would get impeached for lying to Congress, which he has done for 4 days now.

      "Out here in the middle, where the center's on the right, and the ghost of William Jennings Bryan preaches every night..."

      by Nineteen Kilo on Thu Jan 12, 2006 at 02:06:50 PM PST

      [ Parent ]

      •  Overblown... (none)
        I'm sorry to say this, but it seems to me that you have been drinking from the same kool aid trough we like to accuse the right wing of drinking from so often.

        Take a step back and ask yourself if you beleive your rhetoric.  Do you really think Bush could ever suspend the Constitution?  Bush is no king.  not by  along shot, no matter what we say in our comment to diaries.

        Let's tone down the crap and stop BS'ing each other.

        We need a realistic plan to stop Alito, not one that tears down our foundations of government as collateral damage.  You can count me out in any action like that.

        Matt

        Political Compass: Economic Left Right: -3.13; Social Libertarian/Authoritarian: -6.56

        by Cixelsyd on Thu Jan 12, 2006 at 05:53:20 PM PST

        [ Parent ]

  •  One last way to boot a justice.. (none)
    A unanimous vote of the justices, the ones not getting yanked, is the only other way I think.
  •  impeach, split jurisdiction, admend (none)
    I diaried about this here in reference to Roberts. If it's OK to self-link?? Supreme Injustice: 3 Ways to Fight

    I came up with impeachment, jurisdiction, spliting and constiutional admendments. But after reading all your comments, I am going to reseach this more.

    Some great ideas here!

    First they ignore you, then they laugh at you, then they fight you, then you win. ~~ Mohandas Gandhi

    by TimeTogether on Thu Jan 12, 2006 at 02:08:58 PM PST

Click here for the mobile view of the site