Here comes the judicial activism juggernaut: O'Connor retires and Bush has the chance to replace the moderate with a radical judge who wants to bring back 18th century politics to the bench.
Let's hope Bush betrays his radical base and appoints a moderate. Someone who disagrees with the idea that the New Deal should be repealed -- by judges!
Because if he picks a radical, we're screwed.
12 comments:
In all my eloquence: oh, crap!
P.S. Congrats on your new post in SF!
What are the odds Bush picks a moderate?
Comfortably nestled betweem Messrs. Slim and None, I suspect.
As one of Bush's so-called "radical base," I sincerely hope he won't betray us. But more than that, I sincerely hope he will follow his conscience and do what he believes is right. Just because you don't agree with him doesn't make him a monster. For somebody who preaches tolerance, you sure do spend a lot of time being intolerant of everyone you don't agree with.
Hey Radical Base -- you don't have to be a monster to appoint radical judges who want to repeal the New Deal from the bench. That's judicial activism and that's what you guys are pushing to do.
Dan: I follow conservative politics fairly closely and I’ve never heard anyone discussing judicial appointments for the purpose of repealing Roosevelt’s “New Deal.” What I have heard is a desire to appoint judges who will strictly interpret the Constitution, not add to it, take away from it, or ignore it. We want judges who will honor the intent of our founders. Our founders were certainly not infallible, and times do change, but there are certain principles set forth in history that should not be altered.
I’m curious to know specifically why appointing judges who strictly interpret the Constitution will destroy the “New Deal.” Contrary to most liberal’s opinion, I (a right-wing conservative) am open minded and I’m willing to be wrong on this one….but you’ll have to convince me.
Hi Open-Minded Anon: Remember FDR's "a switch in time saved nine?" That's when one Supreme Court Justice finally flipped and voted in the mid-30's to uphold the power of Congress under the "necessary and proper" clause to implement most provisions of the New Deal, including a federal minimimum wage, a 40-hour work week, abolition of child labor and related measures. Most of those federal laws were originally struck down as unconstitutional. And it's probably fair to say that the political consensus in the late 18th century was closer to the pre-New Deal era than the modern era where the federal government wasn't originally thought to have the power to regulate wages and work hours. Today, there's a consensus that the feds do have that power, but the radical lawyers want the Supreme Court to start striking down congressional laws. That's the heart of the problem: how much judicial activism will a radical Supreme Court Justice exert by striking down laws passed by Congress in the name of honoring the political consensus of the late 18th century. What do you think?
I'm somewhat familiar with the history of the New Deal. I'm sure I'm going to take some heat for this, but I happen to think that aspects of the New Deal are unconstitutional. But I won't say anything more on that for now...I'm sure we wouldn't agree on that subject.
You keep saying that Bush-appointed judges would attempt to take us back to 18th century politics. Is that your greater concern? And if so, what aspects of 18th century politics are you speaking of?
Judges are exactly the right people to repeal the New Deal -- because it's unconstitutional. This is the sort of thing that we have federal judges for.
If you want to know the real intent of the founders read the Federalist Papers where Hamilton and Madison agree, the most important thing is that the court be filled with independent, non-political, moderate thinkers:
If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.
This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies,3 in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.
But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.
So then, The founder's real intent was primarily for judges to be life appointments so they could be independent and moderate and able to uphold the constitutional rights of minority interests in the face of legislative encraochments from the majority. Thus our anonymous member of Bush's "radical base" (called "reactionary" in educated circles) is off, way off, insofar as he cites the majority 62 million uneducated fearful hicks and their capitalist opressors who voted for Bush as justification for the propriety of a reactionary appointment. Nah ah. No founding father would approve of Scalia.
But that isn't even the point I want to make. Who fucking cares about founders intent. First, it is unclear, limited and insufficient to address the complexities of the legal issues with constitutional implications that have arisen in United States in the last 225 years. Judicial discretion will always be necessary, and just becasue some ignorant god fearing person doesn't like an interpretation of the constitution made by necessity by the governing body charged with excercising such discretion, it does not mean they are "legislatin'" from the bench in an unconstitution manner. Christ, did anybody actually read Marbury v. Madison in law school?
2. The founders intentions were often really really wrong. These people did not believe black people were equal citizens or that women had rights independent of their husbands. Humans as property was part of the founder's original intent, so I don't know how anyone who claims to be a christian could align themselves so blindly and unfalteringly to dated limited ideas. Sure it gave us a great foundation, but unless you keep building and organizing and going further and progressing, your structure falls apart under the weight of time.
We ar fucked if he appoints a zealot. Flilibuster, change of rules, then, of course, total meltdown. Even though the underlying policy is sound, Roe v Wade is an awful constitutional decision, I admit it, but far more important than original intent is res judicata , ESPECIALLY when it comes to fundament rights. The integrity of our legal system depends most on its consitency and gradual progress.
Lazerlou:
I find it really fascinating that I, an admitted conservative, can't state my opinion respectfully without being insulted on every front. I don't believe in name-calling - I don't find it necessary to stoop to personal attacks to get my point across. I discuss the issues, but I refuse to use degrading words to refer to those who disagree with me.
Additionally, I think you would be wise to not make assumptions as to my gender, religious beliefs, and intelligence. I most certainly am not a hick, nor am I uneducated. Just because I hold to the conservative viewpoint doesn't necessarilly mean I'm male or a Christian. I simply hold to a different belief than you do.
People in our country who tend to hold to the progressive (some call liberal) political viewpoint spend so much time telling everyone how we need to be tolerant of each other's beliefs. What I don't understand is how you can call your comments tolerant. They're rude, insulting, and they do nothing for your argument. Argue the issues, but if you insist on being so narrow-minded, then only an idiot would stoop so low as to respond. (Oh, did I just resort to name-calling? Oops.)
That's good stuf anon. You called yourself an idiot for responding. Funny stuff. You assume I was addressing yous specifically which shows narcissim. I don't care whether you are a christian or a male or even a hick. My guess you are all three, but I wasn't addressing you specifically. And where in the world would you ever get the idea that I preach tolerance. I preach tolerance of people and lifestyles - never ideals. Mine are right, and yes, yours are backward and ignorant. ANd if you'll notice, dipshit, my comments were 98% substantive, 2% calling republicans god fearing uneducated hicks or their capitalist opressors. Where is your substance? How about responding to my argument them oh high minded one? You can't. Original intent means no zealots on the court, it means moderates with minority interests in mind, not some asshole beholden to majority interests. Yes, I am not tolerent of idiots like you who are frightened of progress. So, go get bent whoever you are.
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