Tom DeLay...Shameless political opportunist

[ReillyT]

We also shouldn't forget that the federal "Terri's Law" is, in essence, a Bill of Attainder and pertaining to a single individual. It is, therefore, unconstitutional.

I didn't think that Congress should have gotten involved (whether they were legally allowed to or not). That said, I don't think it was unconstitutional (complicated issue, I am not sure) as a bill of attainder because it didn't take away anyone's rights. I think that is the usual requirement. It just expanded federal jurisdiction to hear a federal law claim. If it was unconstitutional, I don't think it is because it was a bill of attainder.

Just my opinion, this is complicated and I could be wrong.

 

[Merlin1047]

That said, I don't think it was unconstitutional (complicated issue, I am not sure) as a bill of attainder because it didn't take away anyone's rights. I think that is the usual requirement.

But they did compromise people's rights. The Congress compromised the rights of the people of the state of Florida to make their own laws. The Congress attempted to override Florida law through the use of cheap and underhanded trickery. I believe that is a serious issue which should not be taken lightly or overlooked during the next election.

 

[Bullypulpit]

<blockquote>I would have no problem whatever with an amendment to the Constitution which would require all federal judges up to and including the Supreme Court to be elected by the people. - Merlin1047</blockquote>

The Constitution provides for lifetime appointments of federal judges so that they may remain aloof from the considerations of politics...fundraising, election cycles, etc. By this means, they can avoid the conflicts of interest which arise all too often amongst our elected officials and their campaign contributors. This means they are also beholden to no one. But this process has become corrupted by an Administration and a Congress that are marching in ideological lock-step, and the Republic is under threat as a result.

A viable alternative to the current process though would be a blind selection process for federal judges based upon the record of their reversals, which is a strong indicator as to the quality of their legal decisions. Their names and party affiliations would not be known until they were confirmed to office. But that would require a Constitutional amendment, and no oresident or political party is willing to relinquish the ability to stack the courts.

But in the single party system we seem to be heading for, a strong and indpendent judiciary is the only means of protecting the rights you or I, or any other American hold so dear.

 

[no1tovote4]

But they did compromise people's rights. The Congress compromised the rights of the people of the state of Florida to make their own laws. The Congress attempted to override Florida law through the use of cheap and underhanded trickery. I believe that is a serious issue which should not be taken lightly or overlooked during the next election.

They didn't change any of that State's laws.

I would agree if they made a Federal law to overrule the FL State law, but they did not.

 

[Bullypulpit]

I didn't think that Congress should have gotten involved (whether they were legally allowed to or not). That said, I don't think it was unconstitutional (complicated issue, I am not sure) as a bill of attainder because it didn't take away anyone's rights. I think that is the usual requirement. It just expanded federal jurisdiction to hear a federal law claim. If it was unconstitutional, I don't think it is because it was a bill of attainder.

Just my opinion, this is complicated and I could be wrong.

My backround is in health care, not law, so you are likely correct.

 

[Merlin1047]

They didn't change any of that State's laws.

I would agree if they made a Federal law to overrule the FL State law, but they did not.

come on now - quit tap dancing around the issue.

They attempted to override the law and they had no right and no legitimate basis for doing so.

 

[OCA]

Exactly - not activist judges, judges acting acting in strict accordance with the law, as spelled out in *federal* law, which is based in the US constitution, and the laws made under it's power.

"Activist judges" is a clever marketing term like "tort reform" - an act of misdirection that politicians are using when judges strike down laws that are illegal under the constitution, which has supremacy.


A

Holy Christ! I knew you were a freakin California hippie!

 

[ReillyT]

I don't have much background with Bills of Attainder, but I found a website discussing whether Congressional action in this case qualifies as a Bill of Attainder. The website thinks it does. Looking at the same arguments, I doubt it does. However, it at least provides a good background on the important Supreme Court case law so that each of you can draw your own conclusions. I will post the excerpt and the link.

What is "Punishment" under Bill of Attainder Analysis


To invalidate legislation as a bill of attainder, the Bill of Attainder Clause "requires not merely 'singling out' but also punishment." Plaut, 514 U.S. at 239 n. 9, 115 S.Ct. 1447; accord Nixon, 433 U.S. at 471-72 & n. 33, 97 S.Ct. 2777 *350 (holding that "the Act's specificity--the fact that it refers to appellant by name--does not automatically offend the Bill of Attainder Clause"). A legislature may legitimately create a "class of one" for many purposes, see, e.g., Nixon, 433 U.S. at 472-73, 97 S.Ct. 2777, but not for punishment. . . . The Supreme Court articulated three factors to guide a court's determination of whether a statute directed at a named or readily identifiable party is punitive: "(1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, 'viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes'; and (3) whether the legislative record 'evinces a [legislative] intent to punish.' " Selective Serv. Sys., 468 U.S. at 852, 104 S.Ct. 3348 (quoting Nixon, 433 U.S. at 473, 475-76, 478, 97 S.Ct. 2777). Nixon makes it clear that a statute need not fit all three factors to be considered a bill of attainder; rather, those factors are the evidence that is weighed together in resolving a bill of attainder claim. Nixon, 433 U.S. at 473-78, 97 S.Ct. 2777. The party challenging the statute has the burden of "establish[ing] that the legislature's action constituted punishment and not merely the legitimate regulation of conduct." Id. at 476 n. 40, 97 S.Ct. 2777. Unfortunately, because the Supreme Court's bill of attainder jurisprudence is limited, it provides us with little guidance for determining whether a statute is impermissibly punitive.
. . . A statute need not fit within the historical category of punishment to be considered such. Such a rule would render the Clauses unable to respond to attempts by contemporary legislatures to punish individuals in new and heretofore unforeseen ways. See Nixon, 433 U.S. at 475, 97 S.Ct. 2777.

. . . The second component of the Supreme Court's test is "functional," looking to whether the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes.... Where such legitimate legislative purposes do not appear, it is reasonable to conclude that punishment of individuals disadvantaged by the enactment was the purpose of the decisionmakers. Id.; see also Flemming, 363 U.S. at 615, 80 S.Ct. 1367 (describing "inability to discern any alternative [nonpunitive] purpose which the statute could be thought to serve" as a basis for finding a statute to be punitive) (citing Trop v. Dulles, 356 U.S. 86, 97, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion)); Brown, 381 U.S. at 476, 85 S.Ct. 1707 (White, J., dissenting) ("The imposition of a particularly harsh deprivation without any discernible legitimate legislative purpose has ... been characterized as penal.").

. . . Finally, we look to see whether the legislative history evinces a legislative intent to punish. See Selective Serv. Sys., 468 U.S. at 852, 104 S.Ct. 3348 (citing Nixon, 433 U.S. at 478, 97 S.Ct. 2777); Brown, 381 U.S. at 476, 85 S.Ct. 1707 (White, J., dissenting).

Apply the test yourselves -

(1) Is this historical punishment? Not really. It is without precedent.

(2) Does it further non-punitive legislative goals? I think it is clear that it does not. The Congress' only intent is to deprive Michael Schiavo of his rights as Guardian Ad Litum and his right to assert certain dispositive defenses. Is keeping Terry Schiavo alive a legititimate legislative goal? No, it is not here given the findings of the State Court on Terri's wishes. Cruzan teaches us this. The ONLY thing this law does is take away rights from Michael Schiavo.

(3) Does the legislative history evince an intent to punish? Unmistakably it does. The only purpose of the law is to deprive Michael Schiavo of rights and bestow them on the Schindlers.

Remember, "A statute need not fit within the historical category of punishment to be considered such. Such a rule would render the Clauses unable to respond to attempts by contemporary legislatures to punish individuals in new and heretofore unforeseen ways. See Nixon, 433 U.S. at 475, 97 S.Ct. 2777."

My conclusion? The law is a Bill of Attainder.?

http://carnacki.dailykos.com/story/2005/3/21/204035/575

I can't vouch for the accuracy of this site, but because the poster chose to include case law cites, I am guessing it is accurate.

 

[no1tovote4]

come on now - quit tap dancing around the issue.

They attempted to override the law and they had no right and no legitimate basis for doing so.

No, they didn't. Had they wanted to override the law they would have. Instead they gave the Fed Judiciary a temporary ability to hear a case to insure it was not being handled incorrectly. Those courts promptly reviewed and responded.

 

[OCA]

The only reason Delay the whacko disgrace to our party wants these guys hung is because he lost. This is just a little over the top, don't ya think?

But hey welcome to the new Republican party.

 

[Merlin1047]

The Constitution provides for lifetime appointments of federal judges so that they may remain aloof from the considerations of politics...fundraising, election cycles, etc. By this means, they can avoid the conflicts of interest which arise all too often amongst our elected officials and their campaign contributors. This means they are also beholden to no one. But this process has become corrupted by an Administration and a Congress that are marching in ideological lock-step, and the Republic is under threat as a result.

Oh poop - quit with the Bush bashing already. You know damn well that this has been the practice of every administration for a very, very long time.

You claim that the Constitutional requirement to appoint judges allows them to "remain aloof from the considerations of politics". Okay, now tell me that you really believe that this is working out as intended. Your own statements indicate that you do not. Judges, especially Supreme Court judges, are selected based on their POLITICAL ideology and acceptability to the White House and/or the majority party. Do you REALLY believe this makes them "aloof" from political considerations?

Here's my suggestion which would address your concerns. Amend the constitution to require popular election of all federal judges. Divide the nation into nine judicial districts. The people in each district elect a single member of the SCOTUS and all federal judges within that district. Judges would be eligible to serve for only a single term of (insert your favorite number here) years. That way there would be no need to worry about re-elections and the potentially corrupting political process involved. This would also prevent a bunch of senile old bastards sitting on the highest court in the land until the day they die.

 

[SmarterThanYou]

They didn't change any of that State's laws.

I would agree if they made a Federal law to overrule the FL State law, but they did not.

this was their backdoor attempt to overrule the state law.

 

[Merlin1047]

No, they didn't. Had they wanted to override the law they would have. Instead they gave the Fed Judiciary a temporary ability to hear a case to insure it was not being handled incorrectly. Those courts promptly reviewed and responded.

Again you're pointing to the paint and ignoring the house. You know very well that the intent of their spurious activity was to impose the will of the Congress on the courts.

But it's obvious I'm not going to convice you and you're damn sure not going to convince me. So we might as well be happy with our respective viewpoints and save the keystrokes.

Happy Friday!

 

[SmarterThanYou]

No, they didn't. Had they wanted to override the law they would have. Instead they gave the Fed Judiciary a temporary ability to hear a case to insure it was not being handled incorrectly. Those courts promptly reviewed and responded.

no1, you know as well as I and everyone else here, had they written this new 'law' to override anything, it would have been ruled unconstitutional. This was a backdoor attempt.

 

[ReillyT]

no1, you know as well as I and everyone else here, had they written this new 'law' to override anything, it would have been ruled unconstitutional. This was a backdoor attempt.

I agree that they wanted to overrule the Florida Courts and that they knew that if they said so explicitly, the law would have been unconstitutional. So they tried in a backhand manner to suggest to the federal courts to issue a stay. However, the federal courts didn't bite. They interpreted the law in a manner that was likely to constitutional.

I agree that it was a back door attempt, but a permissible back door attempt. Whatever they intended or secretly hoped, they wrote the law in a Constitutional manner. I have no problems with that (legally, at least) and am actually glad that they cared enough about the Constitution not to try to do something clearly unconstitutional.

 

[OCA]

I agree that they wanted to overrule the Florida Courts and that they knew that if they said so explicitly, the law would have been unconstitutional. So they tried in a backhand manner to suggest to the federal courts to issue a stay. However, the federal courts didn't bite. They interpreted the law in a manner that was likely to constitutional.

I agree that it was a back door attempt, but a permissible back door attempt. Whatever they intended or secretly hoped, they wrote the law in a Constitutional manner. I have no problems with that (legally, at least) and am actually glad that they cared enough about the Constitution not to try to do something clearly unconstitutional.

Oh absolutely they were allowed under the law to do what they did....but was it prudent to sell your soul?

 

[Bullypulpit]

Oh poop - quit with the Bush bashing already. You know damn well that this has been the practice of every administration for a very, very long time.

You claim that the Constitutional requirement to appoint judges allows them to "remain aloof from the considerations of politics". Okay, now tell me that you really believe that this is working out as intended. Your own statements indicate that you do not. Judges, especially Supreme Court judges, are selected based on their POLITICAL ideology and acceptability to the White House and/or the majority party. Do you REALLY believe this makes them "aloof" from political considerations?

Here's my suggestion which would address your concerns. Amend the constitution to require popular election of all federal judges. Divide the nation into nine judicial districts. The people in each district elect a single member of the SCOTUS and all federal judges within that district. Judges would be eligible to serve for only a single term of (insert your favorite number here) years. That way there would be no need to worry about re-elections and the potentially corrupting political process involved. This would also prevent a bunch of senile old bastards sitting on the highest court in the land until the day they die.

It's...so...hard...not...to...bash...Bush...(said through gritted teeth, face contorted)

The process has been corrupted by the ideologues of both parties. As a result the judicial selection process has become corrupted by these rigid dogmatists.

As good as a one time election to a definite term sounds, it has about as much chance of being adopted as the blind selection process I mentioned, for the same reasons. The temptation to pack the courts over-rides good sense. The system will not change in the absence of outrage from a largely apathetic and ill-informed electorate.

 

[Bullypulpit]

...am actually glad that they cared enough about the Constitution not to try to do something clearly unconstitutional.

Give them time.

 

[Merlin1047]

As good as a one time election to a definite term sounds, it has about as much chance of being adopted as the blind selection process I mentioned, for the same reasons.

No argument there. Just dreaming out loud, I guess.

 

[ReillyT]

Oh absolutely they were allowed under the law to do what they did....but was it prudent to sell your soul?

No. I agree with you. Even if they were allowed to do it, I think it was motivated primarily (not every Congressman, but far too many) by sick opportunism, and I wish they had stayed the hell out.