The Filibuster: All That's Left for the Dems

[Mr. P]

Mr.P needs to take some basic law courses..."Rulings" from Supreme Courts become what is know as "Case Law",therfore his ranting to cite me laws vs rulings becomes a mute point!

LOL..Right...educate me, please.."Case law" is much different that legislated law..Case law is only used in courts..Give us a break O wise one....And that would be "moot" not "mute".

 

[rtwngAvngr]

LOL..Right...educate me, please.."Case law" is much different that legislated law..Case law is only used in courts..Give us a break O wise one....And that would be "moot" not "mute".

He's right p. Judges don't actually make new laws, but their bogus rulings set new precedents which later judges cite.

Only used in courts? That's where it matters, assjacker.

 

[Adam's Apple]

I have a better Idea...you cite these laws created by the Judges. You guys claim they make law...show me please.

Well, I knew you couldn't cite "chapter and verse" from the Constitution.
If judges' rulings don't become law, explain to me how abortion and segregation became the law of the land. Those are "biggies" that changed American society significantly. This is a prime example of judges legislating from the bench without going through any legislative body. You know it, and I know it.

 

[archangel]

LOL..Right...educate me, please.."Case law" is much different that legislated law..Case law is only used in courts..Give us a break O wise one....And that would be "moot" not "mute".

I meant mute as in deaf...as in your case...also "Case law is the law of the land in all courts of law...this is what we were discussing...no!

 

[Mr. P]

Surely you'll admit that its practical effect was to make abortion on demand the law of the land.

Abortion on demand is NOT the Law of the land. This is another twist that's untrue and is totally misleading...No one MUST perform and abortion by LAW..

 

[Mr. P]

also "Case law is the law of the land in all courts of law...this is what we were discussing...no!

No not really..

 

[rtwngAvngr]

Abortion on demand is NOT the Law of the land. This is another twist that's untrue and is totally misleading...No one MUST perform and abortion by LAW..

BUT if a state brought murder charges against an abortion, the RULING from roe v wade would be cited to dismiss the case. Surely your not really this stupid.

 

[musicman]

Abortion on demand is NOT the Law of the land. This is another twist that's untrue and is totally misleading...No one MUST perform and abortion by LAW..

You're quibbling over definition. And, I'm not twisting anything. 40 million corpses speak for themselves.

 

[Adam's Apple]

Abortion on demand is NOT the Law of the land.

It is case law. If that is not the law of the land, why not?

 

[Annie]

Mr. P, we usually agree on most of these issues, but in this case I must disagree. The judiciary HAS been legislating from the bench for quite a long time. (Dred Scott comes to mind). It all depends on which judiciary and whether or not you agree with their political framework to decide if they are 'interpreting' or 'legislating.'

I've posted this link before, but think it is interesting enough to give it another go:

http://judiciary.senate.gov/oldsite/te090401so-kmiec.htm

Testimony of Douglas W. Kmiec, Dean & St. Thomas More Professor of Law,
The Catholic University of America, Washington D. C.
Subcommittee on the Courts, United States Senate Committee on the Judiciary

September 4, 2001


Mr. Chairman, thank you for inviting me here to testify on the appropriate inquiries for the Senate in considering judicial nominees.

My proposition is simple: the proper Senate inquiry of a judicial candidate is demeanor, integrity, legal competence and fidelity to the rule of law. It is not partisanship or policy agreement. While textually the Senate is free to inquire and to reject a nominee on any ground – even a highly political, constitutionally problematic one like the nominee's views on outcomes in specific cases – it should not do so. Undertaking to make nominees carry a type of political burden of proof will over time merely invite a subservience of mind and personality that is contrary to an independent judiciary.

The significance of an independent judiciary is well-known to every school child. The point was made plain in the bill of indictment included against the English King in our Declaration of Independence. "He has made Judges dependent upon his Will alone, for the tenure of their offices," our founders complained. Any attempt to transform the Senate's advice and consent role into a similar partisan inquiry would cut deeply against our history and unnecessarily invite making federal judges dependent upon constitutionally inappropriate considerations. In the constitutional convention of 1787, great concern was expressed against having judicial appointments influenced by the Legislature out of "cabal, from personal regard, or some other consideration than a title derived from the proper qualifications." Indeed, in this past century, there has been only one other such blatant effort to subvert the independence of the federal judiciary: FDR's court-packing plan.

The court-packing plan, in essence, proposed that when a federal judge who had served at least ten years waited more than six months after his seventieth birthday to retire or resign, the President would add a new judge to the bench, with up to six additional slated for the Supreme Court. FDR talked about the need for "new blood" and so forth, but everyone knew that the President wanted to change the jurisprudential direction of the Court – to bend it to his will. FDR, himself, gave up the pretense soon enough. As one scholar noted, "the President virtually abandoned this line of argument and came out with his main reason: that the Court was dominated by a set of conservative justices who were making it impossible for liberal government to function." Sound familiar? These were times of great economic distress. Millions were out of work and the Court was showing little deference for FDR's regulatory initiatives to address the problem. Yet, even under these dire circumstances – which are hardly equivalent to the relative prosperity of today – "it quickly became apparent that opponents of the plan enjoyed widespread support."

Like President Roosevelt, some in the Senate today may believe the Rehnquist Court, and even the lower federal courts (even though they have recently been augmented with 377 new judges sharing the judicial philosophy of former President Clinton) to be ideologically contrary to desired policy. Like FDR, these members of the Senate ask for a judicial population that will not weigh case or controversy by adherence to precedent or textual or structural interpretation, but by the desirability of particular outcome. This course is ill-advised and should not be pursued. The short-term political gratification of defeating one or a handful of judicial nominees on partisan or ideological grounds will harm the federal judiciary and bring dishonor to this deliberative body.

Why dishonor? Consider the words of the Senate Judiciary Committee in turning away FDR's attempt to inject partisanship into the composition of the courts. The plan was denounced for applying "force to the judiciary. It is an attempt to impose upon the courts a course of action, a line of decision which, without that force, without that imposition, the judiciary might not adopt." This assault upon judicial independence came with the following warning which unfortunately seems equally apt to the arguments being presently made to force judicial nominees to prove their ideological bona fides:

"Let us, for the purpose of the argument, grant that the Court has been wrong, wrong not only in that it has rendered mistaken opinions but wrong in the far more serious sense that it has substituted its will for the Congressional will in the matter of legislation. May we nevertheless safely punish the Court? . . . . If we yield to temptation now to lay the lash upon the Court, we are only teaching others how to apply it to ourselves and to the people when the occasion seems to warrant. Manifestly, if we may force the hand of the Court to secure our interpretation of the Constitution, then some succeeding Congress may repeat the process to secure another and a different interpretation and one which may not sound so pleasant in our ears as that for which we now contend."

In the end, the Senate Judiciary Committee in the 1930s strongly denounced the court-packing exercise as having the "initial and ultimate effect [of undermining] the independence of the courts," and [violating] "all precedents in the history of our Government and would in itself be a dangerous precedent for the future."

The future is apparently now, and sixty-four years later packing the courts on the basis of desired outcomes looks no better and is no more consistent with the spirit of the Constitution and its guarantee of judicial independence.

But more than judicial independence is at stake, because an attempt to exclude men and women of excellent credential and judgment because they don't happen to subscribe to your particular conception of federalism, or because they do not possess the right disposition toward this or that doctrinal formulation of due process, or affirmative action, or any other topical subject is a use of the vital Senatorial role of advice and consent that is either wholly random since it seeks to predict the unpredictable or deeply anti-democratic as it seeks to undo a national election and the contemplated sovereignty of the people in the selection of judges through the election of a new executive.

Nominee selection – as a matter of fact – is seldom sufficient to predict accurately the philosophical direction of a particular judicial candidate, once appointed to a lifetime job with no salary diminution. Eisenhower had his Earl Warren; Nixon had his Blackmun; Bush had his Souter. In each case, it is either popularly speculated or actually articulated that the nominee's service was at some considerable variance to the philosophy of the nominating president. A recent study for the LBJ Journal of Public Affairs estimates that one Justice in four disappointed his appointing president.

Whether or not presidents have been dismayed by their nominees at times, judicial behavior is certainly a hazard to predict. "Chief Justice Earl Warren, prior to his appointment, supported President Roosevelt's decision to intern United States citizens of Japanese ancestry during World War II. . . . But as Chief Justice, Warren became an icon of civil liberties organizations . . . ." Consider also just the past term of the high court. So-called conservative Justices Scalia and Thomas insisted that law enforcement observe the privacy of a home from the intrusion of a rare thermal imaging device, while claimed liberal Justice Stevens dissented. Meanwhile, Justice Breyer assumed by the President who nominated him, the media, and this body to have a progressive or liberal ideology at the time of his confirmation, has joined results permitting a student Bible club to use a public school classroom in the after school hours, and earlier, that would more easily exclude adult cable programming. As Professor Richard Garnett has observed: "[the] justices are neither easy to pigeonhole nor easy to predict. Their dispositions are not merely ‘restrained' or ‘activist.' Their decisions aren't predetermined by the ideological labels slapped on by partisan animators."

But even if there was a greater level of predictability, what possibly authorizes the Senate to substitute its judgment for that of the electorate under the disguise of inquiring into judicial fitness? Despite the disagreements that you or I may have with individual decisions of the present Supreme Court or the lower federal courts, there is little to suggest that, in the aggregate, these institutions are composed of individuals unrepresentative of the people. Quite the contrary. Five presidents have contributed to the make-up of the present Court and Presidents Reagan and Clinton had the opportunity to appoint virtually identical numbers of lower federal court judges over their respective terms [377 for Clinton and 382 for Reagan]. And despite the fact that the last national election may have hung by a chad, or that some academics would have preferred greater reliance upon political (rather than adjudicative) means of resolving the electoral disputes that emerged, the outcome – supported at its most basic level by seven justices (labeled conservative and liberal alike) – has vested the power to nominate judicial officers in President Bush by a majority of electoral vote. And that vote has meaning for executive and judicial appointment that ought not be undone covertly by this body.

Here it is good to recur to first principle. As the very able Northwestern legal historian Professor Stephen Presser pointed out before this body earlier this year, the critics of the Constitution were particularly worried about any policy making tendencies of federal judges, especially as it might displace state authority. Hamilton responded to this criticism by emphasizing that it was not the job of judges to make law, that their role under the Constitution was simply to enforce the Constitution and laws as they were written, according to their original understanding. By doing so, Hamilton explained, federal judges would be acting as agents of the sovereign people themselves, and would do their part in implementing the rule of law. It was true that judges might sometimes be called upon to declare statutes invalid because of the dictates of the Constitution, but this was the role envisioned in those specific, and one might hope, rare cases. The Constitution itself sets limits on what Congress may do, Hamilton explained, and when the legislature exceeds those limits it ceases to act pursuant to the will of the people. It is then the job of the people's other agents, the Courts, to reign in the legislatures. All this is a long way of saying, as Hamilton did succinctly, that in properly deciding matters of unconstitutionality, the courts are not implementing their own preferences, but that of the people.

Professor Presser further bolstered this historical reference by mention of the separation of powers. It was well understood to our framers, pursuant to the theories of Montesquieu, that liberty could not be preserved unless judges were barred from legislating. Lawmaking was left to the legislature and the people themselves. As Hamilton wrote in Federalist 78, quoting Montesquieu's Spirit of Laws directly, "there is no liberty if the power of judging be not separated from the legislative and executive powers." And that is not just an admonition to judges to observe the boundaries of their intended role. Liberty can also be lost if judging is given over to the executive or legislative branches as well, or if prospective judges are invited to be lawmakers by the pressures of politicized confirmation.

Sadly, this is forgotten far too often today. Courts are casually discussed as merely alternative policymakers. Mr. Joseph Califano Jr. in an essay just last week, for example, accused and the Congress as a whole of "political pandering," "gridlock," and "failure," and as a result argued that federal courts must become (and have become) "powerful architects of public policy." I doubt very much whether the Senate wants to indulge Mr. Califano's harsh premise of the failure of Congress. Perhaps, as a policy matter, many would support a more aggressive regulatory, perhaps even prohibitory, policy toward tobacco or hand-guns, and reading him, I suspect so would Mr. Califano. But the Congress has chosen a different path – to regulate tobacco advertising and to pursue background checks for certain weapon purchases. These are policy choices. Congress has made them. When the Supreme Court was asked to do more than Congress was willing to do – to authorize explicitly the FDA to regulate tobacco products – it declined. If Congress is truly displeased with that judicial outcome, it has a far more direct and appropriate constitutional means than to smuggle a highly partisan, policy litmus-test into the judicial confirmation inquiry.

The President has the power of choice in his nomination. Textually, the Senate has unfettered power to deny that choice. But text is necessarily bounded by its historical context. History reveals that the Senate up until the 1980s largely confined its inquiries to integrity, demeanor, competence and subscription to the rule of law. "There will, of course, be no exercise of choice on the part of the Senate," wrote Hamilton in Federalist 66. In observing this precept over time, the Senate was observing the designed independence of the judiciary, respecting the democratic will of the people, and abiding by the separation of powers. It certainly was not attempting to escape any allegation of its own policy forfeiture, and to seek to do indirectly that which it has lacked the political courage to do directly.

If the Senate is truly interested in improving the federal judiciary, I respectfully suggest that these hearings would be better devoted to examining judicial method and fidelity to text and legislative purpose, rather than partisanship; in other words, to inquire whether nominees coming before you are willing to abide by the text of the statutory law as you have authored it. Legitimate questions can be asked whether there is a difference between statutory and constitutional interpretation, and how a prospective nominee would address that difference. The Constitution is to "endure for the ages," after all, and statutes often are intended to have a shorter life or a narrower object. But that said, what this body needs to know – especially from lower court nominees – is whether the judicial nominee proposes to observe the intended scope of statutory text given to it by the Congress, or one of his or her own making.

In brief, personal integrity, judicial temperament or demeanor, and learning in the law or competence are the primary indicia for eligibility of judicial service, and underlying them all, must be a sincere commitment to abide by the rule of law. Judicial independence from mean-spirited or shallow political posturing or inquiry is merited because in this country, citizens are still entitled to believe that lawyers called to the bench – and those receiving the confirmation of the Senate – will allow the prospective application of previously and regularly enacted rules to prevail over arbitrary power, even when they may dislike the rule at issue. Nominees should face no obstruction or delay or improper placements of political burdens so long as they believe that all people, rich and poor alike and of whatever race, are to be equally subject to generally applicable law administered by ordinary, regular courts. Yes, the Senate has a duty to inquire whether a nominee subscribes to these age-old precepts of the rule of law, well-summarized to our founders by Blackstone, and traceable to the earliest manifestations of the common law. But this inquiry bears no resemblance to the bumper-sticker like characterizations of whether one nominee or another is conservative or liberal.

If this is so well-settled, why are we invited to reconsider it now? There is little by way of a coherent response that the proponents of a heightened nominee burden of proof give. Some proponents of a reconfigured Senate role, like my friend and constitutional law colleague Laurence Tribe, propose that the ultimate purpose of the questioning is to have a balanced court. With all due respect to Professor Tribe's erudition in matters of constitutional study, a 5-4 court on the most delicate issues of the day is a fairly solid indicator of balance. Perhaps the balance "tilts" slightly to the center-right, rather than the center-left, but there is no real measure of this from term to term. So too, it is recently popular to claim that there aren't enough varieties of experience on the bench – too many former judges, as it were. This characterization, however, slights the lifetime of achievement of the present Court. Ruth Bader Ginsburg had prior appellate judicial experience, but also, led a litigation arm of a very active national organization on gender issues. Several of the justices had executive or administrative experience (Rehnquist, Scalia and Thomas); others were teachers (Breyer and Kennedy) and still others distinguished practitioners (Stevens).

However, even if balance could be defined, another witness before you today, the distinguished Professor Sanford Levinson, says balance is the entirely wrong inquiry. Professor Levinson urges you to substantively object to the Court's Fourteenth Amendment, Commerce Clause and Eleventh Amendment jurisprudence....

 

[rtwngAvngr]

So like a lib, quibbling over minutia in a sad attempt to hide the 800 lb gorilla in the room.

 

[Mr. P]

BUT if a state brought murder charges against an abortion, the RULING from roe v wade would be cited to dismiss the case. Surely your not really this stupid.

Nope, I'm not stupid at all..I do have a much better understanding of law and process than most on this board do though..You know that state law dictates when abortion can and can't be performed..pretty standard across the country.

 

[musicman]

Nope, I'm not stupid at all..I do have a much better understanding of law and process than most on this board do though..You know that state law dictates when abortion can and can't be performed..pretty standard across the country.

Can a state outlaw abortion?

 

[rtwngAvngr]

Nope, I'm not stupid at all..I do have a much better understanding of law and process than most on this board do though..You know that state law dictates when abortion can and can't be performed..pretty standard across the country.

You seem to be, arguing such stupidity, refusing to acknowledge that bogus rulings have the same effect as new law. Though, yes, you're right in your nitpicky, irrelevant way, it's not a law, but has the same effect.

 

[Mr. P]

Can a state outlaw abortion?

You guys need to do some Constitution and legal study.
The answer is no, but they can restrict it..

 

[rtwngAvngr]

You guys need to do some Constitution and legal study.
The answer is no, but they can restrict it..

And you need to study basic intellectual honesty. Rulings become defacto law. You know it. Quit spinning.

 

[musicman]

You guys need to do some Constitution and legal study.
The answer is no, but they can restrict it..

So, because of a demented judicial interpretation of the constitutional right of privacy, the will of the people can go screw itself. Forgive my lack of education, but isn't this the kind of imperious tyranny that inspired the Constitution in the first place?

 

[SmarterThanYou]

Yeah. An assinine interpretation. Should a mother be able to kill her toddlers if it's done in private?

thats a ludicrous and asinine assumption of the 'case law'. You're alot smarter than that, but I know you intended this to be only adversarial and try to put me on the defensive.

 

[SmarterThanYou]

You're quibbling over definition. And, I'm not twisting anything. 40 million corpses speak for themselves.

MM, everyone is quibbling over the definition at this time period and you know that definition it is that they are 'quibbling' about.

 

[rtwngAvngr]

Seriously p, your head is so far up it that your thoughts smell.