Thursday, June 09, 2005

Scalia legislates from the bench

Scalia was never a constitutionalist. He always favored legislating from the bench. The only difference between Scalia and the liberal judges is his political orientation. Their judicial philosophy is the same.

And how about that Thomas. No longer can he be called Scalia's water boy. Scalia may have 20 IQ points on him. Scalia may be the nicer person. Scalia may be better in front of a crowd. But boy can that Thomas write clear and effective opinions:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.
How could Scalia join the "legislate from the bench" majority with such a clear effective statement of what was at stake?

You can read Thomas' opinion in html here. It is good.

32 comments:

Koz said...

I just read Scalia's opinion, have you? I personally don't agree with parts of it, but I don't think it can be dismissed as ridiculous. I think the main culprit is the Wickard (ie, wheat) case. I think it's possible to go the other way on this case without overturning Wickard, but it's more complicated than you suppose. As it happened, Scalia didn't.

I think you have a better gripe against Justice Kennedy, who seems to have joined the majority mostly because of his animus against drugs. You should recall that Kennedy is only on the Court because Bork failed to win confirmation, something you approve of if I recall correctly.

Things like the drug war exist in a much broader context than decisions such as this. And if you can't think or act on the bigger context, you should expect to end up on the wrong end of events like this one.

d.K. said...

I don't agree with Thomas in 99% of his opinions that I'm aware of. But he seems true to his convictions, so I genuinely admire that about him.

But they are all political, all nine of them.

M. Simon said...

koz,

It is obvious Wickard was wrongly decided. If Thomas had his way it would be whittled until gone.

Wickard is not supported by original constitutional law. The departure began in the 1870s under the progressive movement.

The Constitution as currently interperted under Wickard supports most of the Socialist programs by the Feds. Which is why the liberal majority had to support Wickard.

In fact many of the "progressive" blogs support the decision for exactly that reason.

And you think that position has merit?

The Republican Party sure has come a long way. Well I guess we are all socialists now, eh?

BTW my guess is that Bork would have sided with Scalia because of his hatred of drugs. In this case I do not think Bork would have voted different than Scalia.

You see why Republicans can't get my unequivocal support? Let alone their judge nominations.

Where are the Constitutionalists in the Party. Well all I can say is yea for Janice Brown, Yea for Thomas. Black libertarians. Whooda thunk?

So any way, if the Rs put up Constitutionalist they get my support. More Borks (Scalia)? I say Bork 'em.

BTW I've looked at Bill Pryor. He seems like an honest judge. We'll see how he rules when he has a case that punches his hot button issues. I think he handled the Judge Moore case very well. So I have a bit of respect for his judicial impartiality and his willingness to follow the law.

M. Simon said...

d.k.

Nice to see you. Enjoyed posting over at your place.

And yes you are correct. The justices are 100% political.

M. Simon said...

koz,

I have read more about the "compromise" on judges and I'm satisfied that we are not going to get any "legislate from the bench" theocons.

Two or three of the "renegade" R Senators said that if the Dems filibustered any but hard core theocons they would vote with the Rs for the "nuclear" option.

Sounds pretty good to me. I do want to see a move to the right on the bench. Four more Thomases on the Supreme Court and the New Deal is over. What I do not want to see is any more Scalias. His inability to see a way to whittle Wickard (he would have to change his judicial philosophy of sticking with bad settled law) leads me to believe that he is not fully on board with the Republican program.

I like Thomas's attitude. If a case was wrongly decided it ought to be reversed as soon as the understanding is there.

Thus as long as the "renegades" support a nomination I will too.

You see with a little effort we can all work together to move things in our prefered direction. It also confirms Republican principles: no legislating from the bench. Period.

I may have to revise my opinion of Frist. Maybe if you knock him in the head hard enough he wakes up to the reality of coalition politics.

As I stated many times: in a coalition the weakest members dominate.

In this case I must say that some modereation has greatly improved Republican chances in the next election. As long as they keep the Keyes types locked in a closet.

The middle is mostly soft libertarian. Med pot is good. Recreational pot bad. Addicts need rehab. Which is not a bad place to start. It would take us a step towards my thesis that all chronic use (of all drugs) is medical use. With the coming of a test for PTSD in a couple of years it would be a foundation for changing the whole drug war dynamic.

M. Simon said...

Koz,

If the Rs want to attract more of the Zell Miller Dems a move towards libertarianism would not be a bad thing.

i.e. much more respect for civil rights. Socialism is out. Winning the war is in. Everything else is optional (to be negotiated).

If we could get a more right oriented ACLU that would be good. Some Republican feminists organizations would be a good move. There are probably some. They don't get much poblicity. Let me know what you know. Maybe we could help fix the publicity thing.

To expand the coalition (which I would like to see) it is going to have to give some ground on the left. This is a good thing. It moderates the party.

The corrective from your point of view ought to be: educate the public better and move the center rightward. That will slow things down. It will also make the gains more solid. Think of it as a thousand year project. Steady slow unrelenting pressure. Flowing water against rock. The yielding prevails.

Koz said...

"It is obvious Wickard was wrongly decided."

Obvious, obvious to whom? It's obvious to nine tenths or so of the legal establishment that Wickard is settled law. That doesn't mean it can't be overturned, but you shouldn't be surprised that Scalia gives it more respect than you do.

What is really obvious is that you are overvaluing the worth of your own support, by orders of magnitude even. More on this later.

Koz said...

Ok, Simon and a buddy see each other at a Mercedes dealership. Simon has $100 to spend and the buddy has $49900, and a new Benz costs $50K

A salesman chats up Simon and asks him how much he's looking to spend. Simon says, "$100"

"Well," says the sales guy, "a Mercedes keychain is $100 and a baseball hat is $50 but we like to build brand loyalty here at Mercedes, so if you want I'll let you have both for $100."

As Simon thinks for a bit, the salesman chats up the buddy, "Hey buddy, what are you looking for?"

The buddy says, "I'm looking at a new Benz, but I'm $100 short. Will you take that?"

The salesman says, "I dunno, let me run this past my sales manager."

Now Simon and his buddy talk to each other. Simon says, "Hey, between us we can buy the car."

"Ok, what would you want for your car? I'll give you the keychain if you want it. That costs $100 anyway."

"Well, since a coalition is ruled by the weakest member, I say we share the use of the car equally."

The buddy gives Simon a funny look. He might see if his credit card will advance him $100, me might see if he can borrow it from his brother in law. More importantly, he might figure he can use continue to drive his old Chrysler for another year or two and split the money between the stock market and his daughter's college fund. But there is no way in hell that Mr. Buddy is going to spend all the money for a car and get half a car in return.

Now, as an alternate history, let's suppose Simon says instead, "Forget it, keep your keychain, take the $100 as a present."

Now the next week or next month or so, Simon is going to his 10th high school reunion and wants to look cool. He thinks to himself, "Hey, I bet my buddy will let me borrow his Benz." So he asks and his buddy thinks to himself, "Why not? He helped me out when I was in a tough spot." and says yes. So Simon gets to go to his 10th reunion in cool wheels that he wouldn't get to use otherwise.

Or as another alternate history, Simon says, "Forget it, I'm just looking to see what they have for sale here. I'll come back to buy when I have more money."

There's a lot of interesting points or scenarios here, but the most important one is also the most obvious: you can't buy a new Benz for $100."

Koz said...

Now, you can think whatever you'd like about Wickard, and nobody's going to care. But, if you are going grant or withhold your support for a judge based on whether or not they are willing to overturn Wickard on your behalf, that's like trying to buy a Mercedes with $100.

You also complain that Bork would have voted the same way as Scalia. That's plausible, but still just a guess. On the other hand, we know exactly what Kennedy and Souter did, and those are exactly the sort of nominees we're going to get if we lack the political muscle to get guys like Bork through.

One more thing about Bork (and nominees in general for that matter). Robert Bork was the cream of the American legal profession when he was nominated. He was the leading originalist Constitutional scholar at the time, frankly the leading Constitutional scholar of any stripe. If he's not good enough for you, there's no point in even being in the game.

He and other nominees have had distinguished careers in private practice, as law professors or judges, and some of them have have a substantial publication record as well. They are not some political functionary who can be ordered around like Tom DeLay's chief of staff.

And if they are confirmed at the federal level, they hold their spot on the bench for life, or until they want to give it up. The "controversial" cases might enter into their docket years later. This particular case came before the SCOTUS a dozen years after Thomas was confirmed, and almost 20 for Scalia. If you expect your support will swing the issue then, thats like trying to buy the Mercedes _dealership_ for $100.

M. Simon said...

Koz,

Settled law is not the same as correctly decided.

Had Wickard come up in 1870 no way the decision would have been the same as in 1942.

That is legislating from the bench.

Settled law was changed to accomodate FDR.

I think Thomas pointed out that the original drug laws were tax laws because it was thought Congress didn't have unlimited power over interstate commerce.

When the Supreme Court struck down those "tax" laws Congress passed the CSA under the guise of regulating interstate commerce.

But you know I'm with you. Once stuff has been legislated from the bench we have to stick with it no matter what.

The Constitution means whatever we need it to mean.

So I'm all for legislating from the bench. If you say its a good thing who am I to argue?

================

And how about campaign finance law? First they gut the First Amdmt. Then they come after bloggers.

Makes sense.

Politicians get too many complaints any way. Can't have that can we?

Well it is settled law. So I guess we must shut up and not complain, eh?

=================

So just exactly what kind of Republicanism should I follow? The limited government model or the unlimited government model you are comfortable with?

I guess we are all Europeans now.

I feel so much better.

M. Simon said...

OK so Wickard is not going to be overturned.

That puts the Federal Government in charge of all commercial activities in America. Not the intent of the framers? Who cares? It is settled law. Who needs to listen to the ideas of men long dead?

In keeping with that idea suppose we just abolish states all together? Why keep 51 legislatures in business when one can handle the job?

States can just be administrative districts as originally envisioned by the founders.

In fact things could be simplified further in the name of efficiency. The President just tells us what to do and we follow orders. Why waste all that money on Congress when the country would be much more efficiently run by one office instead of 535?

Liberty is a good idea in very limited doses. The President could tell us how much we need. Who the judges are to be (no more damn fillibusters or obstruction by Congress). We can all just follow orders.

Much simpler.

========================

The Republic is gone. Long live the empire. The wise emperor (or is it Big Brother) will look after our every want and desire. Yipeeee.

M. Simon said...

Bork, the leading Constitutional scholar and originalist called Amdmt IX "an ink blot".

Yeah. That's the ticket.

The Founders made a mistake including that Amdmt. in the document. Bork would have fixed that. Giving us a much better document. For sure.

Real Constitutionalist throw out what ever part of the document they don't like. Which is of course not legislating from the bench. Its just fixing what is wrong.

Can't have too many fixes now can we?

"The Constitution means what it says. Except the parts I don't like." I don't know what is originalist about that position but I'm sure you will explain it to me.

Like how we can't stick with the original meaning because I would be getting something for nothing. That is the most cogent argument on the subject I've ever heard.

No need for first principles or understanding the meaning of words. We all speak Newspeak now. Big Brother is my shepherd, I shall not want.

==================

But I think I'm getting a handle on your position. Legislating from the bench is wrong. Except when Republicans do it. Or when Democrats did it so long ago that it would be too hard to change.

Well that is a position.

It is why I'm not going to support Republican Judges with a blanket endorsement. I don't agree with that position.

I will judge every man on his merits not by his party affiliation.

If that makes it harder for the Rs. so be it. Politics ain't bean bag.

M. Simon said...

A proper skewering of Bork happens here. It is worse than I thought. Not just one ink blot. Scads of them.

I had a few things to say about this here. I take on Bork's theory of unenforceable rights.

Bork may be a great Constitutional scholar, however it seems he lacks one important qualifacation to be a judge. He can't read.

M. Simon said...

Surprisgly enough Radly Balko has found another Constitutional scholar who can't read. It must be an epidemic.

Koz said...

I'm no fan of the Wickard case, but it is on the books, and it is the expectation of the entire legal community that it is controlling in many important circumstances. And the expectation that it will or ought to be overturned on your say-so, or the combined political muscle of the libertarian community is trying to buy a Benz with $100. Are we clear so far?

Because I suspect we aren't. You want Wickard to be overturned, but you also want to remain blissfully Alfed-E-Newman ignorant of the political, legal, and cultural developments that have to occur to make this happen.

There are people now in the vineyard working to make this happen. Somehow you feel license to criticize the GOP judicial nominees on really spurious grounds.

Now this is entirely your prerogative. But the point is, this has very important consequences nonetheless. It is the difference between between people who are playing to win, and those who are playing to nurse a grievance after losing.

In the final analysis, if you're playing to nurse a grievance, you deserve to lose. Part of the reason we have a drug war is because libertarian types are too dense to help end it.

God can't anybody here play this game?

M. Simon said...

I can play Koz.

I can also read.

No matter how settled, Koz, it was settled wrongly. Even you agree to that (or at least hint that you might agree)

In fact the libertarians have done quite a bit more for legalization (by bringing this case forward for instance) than any Republicans I can think of.

I know how the game is played. When the judges want to rule in a way that has never been done before they invent a new "theory" of how a case should be decided.

The theory of the "conservatives" is that you can't fix what is broken because it was broken long ago.

You will note that a number of conservative States filed briefs supporting Raich against the government position. So tell me who are the true conservatives?

In Montana a med pot referendum (supported by Soros) got more votes than Bush.

If I want any help ending prohibition I'm going to the libertarian think tanks like Cato and lefties like Soros. I'm going with libertarian economists like Milton Friedman who, like me, is a nominal Republican. Not only that, Friedman's main objection is not economic, it is moral. Likewise.

So let me go back over my position.

1. I don't believe in legislating from the bench no matter when it was done.

2. I believe the words in the Constitution mean what they say.

3. I believe ours is a Federal system with limited Federal power.

4. I'm against creating black markets.

So based on the fact that the Republicans are stuck in the Billy Sunday mode, why should I support any Judge they put up? Because one of them might be a libertarian? I have to support the whole lot because they slipped Janice Brown in? Not my way.

Because, some day the Republicans might wake up and decide we need to live under the laws of the land as written? And when would that be?

My opposition gets my position known. I get a chance to chage a few minds. I get to say out loud that Republicans are not serious when they say they don't like legislating from the bench.

The truth is Republicans are fine with legislating from the bench as long as the decisions go their way.

And your position is that I should support the Republicans because they will occasionally throw me a bone?

George Soros will occasionally throw me a bone too. So perhaps I should give him my unequivocal support based on your theory.

Here is my theory. I will support those who advance my position whatever party they come from.

You see I oppose Republican Socialism just as much as I oppose the Democrat kind.

Now I'm not inflexible. I know it is going to take time to change people's thinking. I know from time to time I will have to support politicians who give me more of what I want. I have to choose movement in my prefered direction and can't expect jumps.

However, the only way I can increase that movement is to oppose bad policies and bad judges even from a party that I am most agreement with.

Only by being in the opposition from time to time will my voice be heard.

Take one of my favorites the Income Tax Amdmt. Did you know that the first decision to come out of this Amdmt. said that the income tax Amdmt. didn't change the Constitutional rules of Federal taxation? It was only a stipulation that an income tax was legal where the Federal Government had jurisdiction. And where would that be? Foreign trade. Foreign Nationals living in the States. Federal possesions. Federal territory. etc.

So why aren't the Repubs out front in championing settled law?

It would reduce the power of the Federal Government.

And that is exactly my problem with the Republicans. It is never about tthe rule of law. It is about power.

So I will continue to fulminate and educate. Because I do understand the changes required to get my position to prevail. Minds must change. To get that change I must oppose that which I oppose and support that which I support.

It is because I want change that going along to get along is not an option for me.

M. Simon said...

BTW Koz,

Where were your vaunted Conservatives when it came to the regulation of political speech?

I'm talking about Federal Election Rules.

Passed by a Republican Congress, signed by a Republican President, approved by a Republican Supreme court.

So tell me why I should support unequivocally Republicans when I can't even count on them to uphold free speech?

What is it about "No law" that these folks who have taken an oath to support and defend the Constitution don't understand?

I will make my point again.

Republicans can't read.

M. Simon said...

Koz said in another thread:

Now here is the important part. If you don't like the fact that you don't always agree with conservatives of various stripes and don't want to have to be coopted into them, then you have serious work to do. The Federalist Society and the Family Research Council have already put in decades of work in the vineyard that the libertarians and the decriminalizers haven't.

Cato has been working the issue hard. They are considered at least nominally supportive of Republican principles although they may object to individual cases. Even the Libs have done well. A significant part of the country has heard of them. Of those almost all know their position on drugs. I was Libertarian for 16 years. The party doesn't seem to grow, what they do is to move a lot of people through the party. Ultimately strengthening the libertarian wings of the Republican and Democrat Parties.They get a lot of publicity for their ideas.

Now these folks are mostly athiests and secularists. But they are getting heard. And the numbers for legalization inch up every year. It will be a cold day in hell when cultural conservatives figure out they are both legally and morally on the wrong side of this issue. I have heard hell freezes over once in a lifetime so I still have some hope. How much hope is that? Not much. The Rs are caught up in one of the frequent Billy Sunday periods that happen cyclicly in this country.

Where do I expect support? From the Communist left: Soros. He knows that the corruption and cruelty engendered by prohibition is a dagger at the heart of the system just as racism was in an earlier era.

What brings down a system is not lies. What brings it down is when the truth is no longer ignored or whispered. That day is coming for prohibition.

In terms of the war against islamic fascism it would be better if conservatives took the lead on this issue as they have re: the war. And it has got to be the same people.

Here is how they could finesse it

1. Drug use is morally wrong
2. But just as alcohol prohibition didn't solve alcohol addiction and brought us a criminal subculture so has drug prohibition
3. People with drug problems have a medical problem. The answer to those problems is rehabilitation not incarceration
4. Just as we did with alcolol we are going to set up regulations and a distribution system to keep drugs out of the hands of kids and criminals. With pot easier to get than beer it is obvious where we have to go with this.

===========================

Are you familiar with Raich's politics? She is a California Communist.

Why aren't the cultural conservatives who in another erea were so concerned about the relief of suffering out front on this?

They will be punished for abandoning their roots. You can see it coming. Think Jesus and the adultress. There are things like alcohol and other drugs that are none of the governments business.

The Republicans lost dominance in 1932 in part because of their stance on prohibition. I'd hate to see something like that happen in the middle of a war.

Which is why I'd very much like to see cultural conservatives take the lead before they get rolled.

There is a Compassionate use bill coming to the floor today. What do you want to bet that Republicans are way over represented on the no side? This when med pot pouplarity is in the 55-65% range.

The boomers are getting older and their bones are starting to creak. Pot is reported to work better than viagra. How can you resist a tide that in 10 years will have incredible force.

It is time to stop resisting the tide and instead surfing the wave.

We are doing mean things to people who deserve our compassion. It has got to stop. If I have to ally with communists to get the job done - so be it. This time I have a better understanding of Stalin so at least for me such an alliance is not a serious moral hazard because I am immune to the rest of ttheir program. Others may not be so fortunate.

Koz said...

First, a couple of points about Wickard: yes, Wickard is a different case in 1942 than it would have been if it had occurred 100 years earlier. It is also must be viewed differently now than it that it has been on the books for sixty years it would be before the ink on it was dry.

The Depression (and the Civil War) changed things. Americans tolerate (and expect) different things from the Federal Gov't than they would before the Civil War. Now you might say this shouldn't make a difference because the text of the Constitution is still the same.

But politically it makes a huge difference, and if you can't see or appreciate this you are in the wrong game. This doesn't mean you have to approve of how the Wickard or Raich cases were handled, but you should be more circumspect when you are supposing who is to blame and why.

Koz said...

On another note, you should be more careful talking about "theocons" and "Billy Sunday". I get that you are using both terms as insults, but that's not necessarily the problem.

The real problem is that you are confusing yourself about the nature of other people's intentions and motivations. The thing to know about "theocons" is that they are _not_ religious leaders, but secular ones, leveraging our secular institutions in perfectly legitimate ways to advocate for the common good.

The same with Billy Sunday. Millions of evangelicals did not go the polls to reelect W because they wanted to endorse the drug war. Most of them probably support drug law enforcement to some extent, but they would also probably be willing to end or modify it in certain circumstances as well. The point being, is that they will have concerns on the matter, and those concerns must be heard.

Koz said...

Libertarians have a number of interesting ideas and some of them poll well. But politically speaking, they can't do sh*te without being grafted into the larger right-wing of the US.

In terms of our car deal example from before, that means you have to make a deal based on the money you have now, or you have come back later with more money.

Koz said...

About the McCain-Feingold law, most conservatives opposed it, many very strongly. But conservatives didn't mobilize against it to the extent they did in favor of the judges. By comparison they didn't care about it as much, so they prioritzed accordingly.

This is one thing I'm trying to get across as far as the drug war is concerned. There's not that many people beating the drum for the drug war, certainly not the socons. It's just that people have other fish to fry before getting rid of it.

Koz said...

One more point I think you might be overlooking. Politics is at least as much as organization as it is about persuasion.

Within reason, it doesn't make much difference how popular your ideas are if you don't have the organization to force the body politic to get off the fence one way or another.

There are any number of popular ideas that remain in limbo forever because the powers that be (and the world in general for that matter) can just as easily ignore them.

M. Simon said...

Koz,

So you are one of those living Constitution guys? And a Republican to boot?

Your only objection then to legislating from the bench would be who does it and/or how long ago it was done.

In other words it is no longer about following the law. It is pure power politics.

Which in my opinion makes the Republican criminals no better than the Democrat ones.

Fine. You will then be silent I hope when a more "liberal" court makes decisions that do not follow the Constitution.

If that is the case then Republican judges or Democrat. Makes no difference.

What you propose is the end of the rule of law. Well it was nice while it lasted. A hundred years run is pretty good for any form of government.

What you do by that is make the judiciary more and more political so that the fight over judges gets more vitriolic over time.

Fortunately it saves all the trouble and expense of ammending the Constitution. The judges will do it for us as they percieve the need. I was under the impression that the Republican position was that Congress makes the laws, judges must then follow the laws in cases where the government has jurisdiction. And it can only throw out laws that do not conform to the Constitution as written or where the government in question does not have jurisdiction.

So we no longer have the rule of law. We have the rule of judges.

Explain again why I should support the Republican Judge nominations without reservation.

My position is no legislating from the bench. Left or right. Wrong is wrong and right is right. Follow the law as written. No matter that a wrong turn was taken at some point in the past. Why compound the error?

So when you go to church do you tell God that "I sinned in the past, and having established precident I intend to continue sinning to which I'm sure no penalty will accrue since the sinning started 40 years ago.". The longer the sin continues the firmer ground you are on. Stare decisis indeed. I hope your God is listening.

Under your system we no longer have a fixed Constitution. Just a bunch of optional suggestions. Have you told the Europeans? I'm sure they could use the help.

M. Simon said...

The "living constitution" movement is a socialist project through and through.

It is a project to subvert our rights and liberties.

And yet Koz, a Republican, supports such a project. He wants me to back any judge the Republicans put up, even if they are supporters of the socialist project.

Koz, please explain to me just exactly what kind of Republicanism supports socialism?

I'm mindful that rolling back socialism in one fell swoop is probably a bad idea. People depending on the various programs will be hurt.

I would be satisfied if judges rolled it back a piece at a time. Shave a little here, snip a little there. The only way to do that is to support the original meaning of the Constitutiion.

It needs to be done legislatively as well as judicially. I like Bush's Social Security privatization for instance.

So that is where I am coming from. I want the socialist judicial precidents reversed because they were wrongly decided. Koz wants to keep them because they have already been decided and we are stuck with them.

And in exchage for judges who will uphold socialism I am supposed to provide blanket support Republican judicial nominees.

Nope. Not going to do it. Socialism destroys countries and piles the bodies high. I'm not going down that road. I want the direction reversed well before we come to the edge of that cliff.

More Janice Browns - fewer Scalias.

Koz said...

"Which in my opinion makes the Republican criminals no better than the Democrat ones."

You should really be more careful about writing things like this, or else people are going to think you are Howard Dean. And that's a bad thing.

Koz said...

"What you propose is the end of the rule of law. Well it was nice while it lasted. A hundred years run is pretty good for any form of government."

First of all, I don't think you have a very good handle on what I "propose", but I'll get to that later.

For now, I'll just mention that the use of precedent is an important constituent of the rule of law. In fact that's why it's relied on so heavily.

The point being, that for the people or private insitutions to exercise their freedoms in society, the actions of the gov't, including their enforcement by the judicial branch, must have some measure of predictability.

If a case comes before a judge and he freely ignores the similar cases that have been decided before his, the rule of law is hurt.

Koz said...

"So you are one of those living Constitution guys? And a Republican to boot?"

No, the "living Consitution" types say that we can ignore the text of the Constitution, the intent of the Framers, and the precedents of its use in favor some another interpretation which is more compatible with our contemporary culture.

Koz said...

"I want the direction reversed well before we come to the edge of that cliff."

Obviously, what you want doesn't matter very much now, does it?

"My position is no legislating from the bench. Left or right."

And the same goes for your position too.

I don't think you're appreciating the difference between what you think ought to happen in an ideal situation and what you're in a position to do something about.

Koz said...

"Explain again why I should support the Republican Judge nominations without reservation."

Because for anyone who supports the concept of limited gov't and enumerated powers, they are the only game in town.

M. Simon said...

OK Koz, I'm with you.

I will support any Republican Judges nominated who actually believe in limited government.

Of course I will be against those who support the move to socialism.

I don't see why it is so important to you that I avoid choice and judgement.

Suppose for the sake of argument the Republicans put up Al Sharpton. Do I have to support him? Why?

Koz said...

"Suppose for the sake of argument the Republicans put up Al Sharpton."

Of course not. The GOP would not nominate Al Sharpton. To suppose that the GOP judicial nominees are similar somehow to Al Sharpton, that's just ridiculous, even applied to Souter or Kennedy.

Btw, the idea that there's a difference between what should ideally happen and what you're in a position to do something about applies to W and the GOP too. In fact that may be its most important application.

We don't know how Pryor, Brown, or Griffith will rule on the federal bench. We hope that they will rule out of duty instead of preference. That's just a given.

But we do have some political control over the nomination and confirmation process. And from our perspective, that reduces to whether or not we support W's nominees. There really isn't any opportunity to try to cut it any finer than that.