A Weblog of Centrist Voices in American Politics
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A Weblog of Centrist Voices in American Politics | |
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October 31, 2005Comments
Tully, You beat me to it by a hair. Good judge, good man, incredibly well qualified, long and very conservative record... The right wanted a judge in his mold, and that is what they got. We are in for a barn burner. Nuclear option anyone? Posted by: Mathew at October 31, 2005 08:22 AMSenator Graham, one of the Gang of 14, has stated that this nomination isn't one that can be filibustered under the agreement. The list of Democrats that voted for Alito's last appointment: Christopher Dodd It is going to be hard to beat someone with Alito's legal background. Posted by: Mathew at October 31, 2005 08:36 AMThis is truly marvellous news, on two levels. Firstly, Judge Alito is a truly outstanding pick, an extremely distinguished jurist with a lengthy paper trail and a clear view on the law and the role of courts and judges. Secondly, I don't think he is someone guaranteed to detonate the Senate; if Bush had picked Brown or Luttig, I think the South Wing would have gone nuclear, no question. With Alito, there's at least a semi-reasonable chance that the Dems will do the honorable thing. Posted by: Simon at October 31, 2005 08:37 AMMark from Red State asks: Could the abortive Harriet nomination have energized the base for Judge Alito? It's done that for me. Hmmm... Was Jeremy right? Was this intended all along? Y'all will know, I'm a moron. I mean the north wing. Posted by: Simon at October 31, 2005 09:01 AMthere's at least a semi-reasonable chance that the Dems will do the honorable thing. I hope all 100 senators do the honorable thing and support or oppose Alito based upon however they construe their role of advising and consenting. While previous confirmation votes are relevant, we all know that being a supreme court justice is a different role than that of other judgements. This means that there is not necessarily any inconsistency in approving a person for one judgeship and then later thinking them poorly suited to another one. But I expect this small, clear, and very obvious point to be routinely ignored by those of Alito's supporters who will be throwing the kitchen sink at the opposition. Let this be known as crappy pro-Alito argument #1. I also expect we're going to be treated to many democrats making the argument that this choice is wrong because it will change the make-up of the court, and that it would "unbalance" the court to replace O'Connor will Alito. I find this to be a singularly foolish argument, since it presupposes that the current balance is somehow both intentional and an obvious good. Let this be known as crappy anti-Alito argument #1. I am not convinced that a fillibuster is necessarily beyond the bounds of the senatorial role of advising and consenting. But it is an action that suggests that the actor is taking an extreme stance due to singular circumstances, and should one occur, it is incumbent upon the actor or actors to make clear what those extreme and singular circumstances are, and in terms well beyond that of apocalyptic but vague rhetoric. The bottom line question in relation to every fillibuster is this: "what really gives a single senator or some small group of senators the right to deny the full body from making a decision via a full senate vote." The answer of course is currently "the absence of any rule explicitly stating that such gamesmanship is precluded from senatorial conduct." A substantial subset of the GOP majority now stands ready to remedy this supposed flaw, while a smaller group is worried that what now looks like a bug could begin to look like a feature within several years. If the fillibuster is curtailed, this chicken WILL come home to roost, make no error. It would be a question of when, not if. I expect the Alito hearings to be a real showdown, and all sorts of things to be out on the table. I have no opinion on the guy right now, and I won't have one until I've found out more. Posted by: bk at October 31, 2005 09:17 AMI'd like to see the WH explain why Miers was ahead of Alito on W's short list. Yes, we all know why, but it would be fun to see the WH's official reasons, just for laughs. Posted by: Blue Jean at October 31, 2005 09:31 AMThe Anti-Mier pick. A very good choice. It is as good as Mier was bad. Will be interesting how things go with the confirmation. However, I see no reason as to why he will not eventually be confirmed. Posted by: Jim M at October 31, 2005 09:39 AMAs a first reaction, he seems like a heavyweight. Also, I consider this endorsement a good sign.
Posted by: Todd Pearson at October 31, 2005 09:45 AM "...he's fair and he's balanced." Why do I think that quote might work against him? Makes him sound like Fox News! Posted by: Tully at October 31, 2005 09:53 AMI predicted Bush would move right on the pick because he can't afford to alienate the right anymore, since that's all he has (except businees, I guess). Listening to his press conference, I couldn't help thinking that if Alito is so great, why didn't they nominate him in the first place? This is going to be a showdown because everyone knows that this isn't about judicial qualifications or temperament. It's about abortion and there's no point being naive about it. The Dems are going to fight this because the base will insist on it; Alito may be (I emphasize MAY) the vote that tips the balance against Roe v. Wade. Let's not pretend that this is about statesmen conducting a dispassionate inquiry in Alito's qualifications. This is about the right wanting to get rid of abortion and the left wanting to preserve it. Anything else is just window dressing. And expecting Democrats to behave "honorably" as someone suggested--well, honor is in the eye of the beholder; if you believe that the repeal of Roe v. Wade signals doom for women's rights (as many liberals do), you don't give a damn about some abstract notion of honor. And the same for those that oppose abortion. Bush gave the right what they wanted; it's going to be a hell of a fight. I hope he doesn't make it frankly because I think we don't need a right wing court, and, while I'm not crazy about Roe v. Wade as a decision, I'm not ready to jettison it given that there is strong support for at least a basic, albeit, more limited right of abortion. If that makes me a partisan, then so be it. This guy scares me--I don't care how smart or able he is. While I respect Simon's views on this, I frankly don't want an "originalist" Supreme Court. Having said that, I expect him to eventually be confirmed and the Democrats to come out of this looking bad regardless of how it goes. Filibusters make the filibustering party look bad; in this case, it will probably trigger the nuclear option. And given that, from what I hear on NPR, Alito is Scalia without the abrasive personality, I suspect that it will be difficult to really muster up much enthusiasm for defeating him. Posted by: Marc at October 31, 2005 10:16 AMwhen was his last nomination? Posted by: Daniel at October 31, 2005 10:33 AMBush gave the right what they wanted; it's going to be a hell of a fight. Based on a quick read, I think he did a pretty good job of giving the moderately conservative what they wanted: A judge more respectful of legislatures and the precedents set by higher courts. I am unconvinced that the socially conservative right truly wants this kind of judge. He might occasionally make them happier than say a Souter, but he might occasionally vex them, too... Ironically, a quick move by the left to oversell Alito as likely to overturn Roe may help shore up support for Alito among pro-lifers. The left seems poised to attack Alito with like a misleading description of his opinion in Casey. His opinion is apparently going to be sold by the left as proof that he is ready and eager to limit abortion. His actual opinion seems to be that a Pennslyvania state law requiring spousal notification was not an undue burden accoriding the test of undue burden described by Justice O'Connor in the SCOTUS precedent which was most relevant at the time of his decision. I found an explanation of this to be clear, sound, and reasonable (always a good sign, IMO). I've still read little, but so far I like what i see. Seems there's some chance he'll provide some protection from the creeping erosion of civil liberties, which is something that deeply concerns me. Posted by: bk at October 31, 2005 10:48 AMMark this day on your calendars - I pretty much agree with Brian's post above! I agree that the Supreme Court is different, and I think a lot of Republicans have kind of closed the door on using Brian's crappy pro-Alito argument #1, insofar as a lot of folks who opposed Miers said "if Miers is so good, put her on a court of appeals, and see how she does." I didn't entirely agree with that - there is clearly an important distinction between the court of appeals and the Supreme Court, insofar as there is no easy way to fix the Supreme Court's mistakes, while the court of appeals can be corrected by the Supreme Court. In practise, though, the Supreme Court reviews less cases per year than most appeals courts decide every couple of months (this statement isn't just declamatory; in the seventh circuit, where I reside, 47 cases were decided in October, see http://www.ca7.uscourts.gov/fdocs/docs.fwx); the Supreme Court decides certiorari in about 80-90 cases each year, see http://www.supremecourtus.gov/opinions/04slipopinion.html). I also agree that the "balance" idea is extremely silly. Not only is the current "balance" is not at all desirable in terms of bringing stability to the law -- insofar as O'Connor's aversion to actually deciding points of law was magnified by her (usually) deciding vote between the Rehnquist/Scalia/Thomas bloc and the Stevens/Souter/Ginsburg/Breyer bloc -- but also, the liberals are not in the slightest bit interested in "balance" on the Court, they're interested in having a liberal majority. There's nothing wrong with that, per se, but I think it's pretty silly to hide behind nonsensical rhetoric that no-one actually believes anyway (that having been said, I don't know - a lot of conservatives believe their own propaganda, so maybe some liberals believe their own propaganda). I do diverge slightly from Brian on the nuclear option; Brian is "not convinced that a filibuster is necessarily beyond the bounds of the senatorial role of advising and consenting." I disagree only in certitude. In my view, the filibuster is permitted by the rules of the Senate, the Constitution explicitly disclaims prescription of Congressional rules as a general matter, and thus the nuclear option is itself unconstitutional. I wrote about this at the time, and I have not changed my view since that time. Posted by: Simon at October 31, 2005 10:56 AMBy "Brian's post above", I meant the one at October 31, 2005 09:17 AM. Posted by: Simon at October 31, 2005 11:02 AMThe sad part is, Marc is right: this will be about abortion. Or, _much_ more accurately, about Roe v. Wade. But as those of us who were awake at the time will recall, when Roe came down abortion was in the process, the slow democratic process, of being legalized across the country. If Roe is overturned, abortion does not suddenly become illegal across the country - in places where it was then legal already I believe it would remain legal. I don't have the legal background to say how a specific jurisdiction will stand at that moment. Suppose a place forbid abortion prior to Roe, and then passed an abortion restrict which implicitly accepted abortion. Would it then be legal there even if Roe is reversed? Or does it revert to it's pre-Roe status? What fun for the lawyers! If the left was smart, politically smart, they would complain loudly and publicly about someone who would overturn Roe, while praying privately that it would happen soon -- so the anti-abortion fanatics would crawl back in their holes and leave the rest of politics, law, and society alone. They won't be that smart, of course. Possibly even to generating the nuclear option. Pity. Posted by: wj at October 31, 2005 12:09 PMBrian, RedState is already noting that in Planned Parenthood v. Casey, Judge Alito upheld as constitutional a law signed by Governor Bob Casey, at the time the Democratic governor of Pennsylvania. And his son, Bob Casey, is running against Rick Santorum for the Senate in that state. It will be hard logically (not that logic will have much to do with the impending fight) for the Senate Democrats to criticize Judge Alito for upholding a law signed and defended by a prominent Democratic governor (was the Pennsylvania legislature Democratic at the time, too?). Posted by: PatHMV at October 31, 2005 12:16 PMI can't criticize a nominee who was a United States Attorney. Well, I can, but not this one. Unless something I don't know now comes out before the end of the hearings. Of course, a few of us thought Harriet Miers was a good nominee based on her resume, until she started doing little things like, oh, not knowing the difference between Warren Burger and Earl Warren, not being able to fill out a Judiciary Committee survey, and waffling on Griswold depending on whether she was talking to a pro-choice or a pro-life Senator. So that "between now and the end of the hearings" caveat is fairly important. Posted by: The Jaded JD at October 31, 2005 12:23 PMThe claim that the President is owed some sort of "deference" in whom he picks has gone out the window in this case. This wasn't really even his pick. Charles Krauthammer, George Will and the National Review editorial board has had more to do with Alito's selection than Bush himself. Mr. Spousal Consent has the same "right to an up- or-down vote" as Judith Miers did. Senators who think the Supreme Court ought to be controlled by a solid conservative majority enthusiastically support this nomination, as they well should. Senators opposed to a Scalia/Scalito/Thomas/Roberts court, on the other hand, have a political and moral duty to filibuster. Time for Chaffee and DeWine (both up for reelection next year), Collins, Dukakis, and the other moderate Republicans to figure out which side they are on. I have no idea how this will turn out. I suppose in the end, Alito will end up with 51 or 52 votes. But if Democrats can use the process to reawaken some of the well-justified fear among pro-choice women that has been largely dormant since the Casey decision, it will be worth it. Posted by: markus at October 31, 2005 12:57 PMMarkus, the law was about spousal notification, not consent. There's a very substantial difference. Oh, and you know that the SCOTUS has 9 justices, not 4, right? :-) Posted by: bk at October 31, 2005 01:05 PMI agree in theory that abortion needs to be fought out in the democratic process. And I think Roe is a dubious opinion generally. But given that there doesn't seem to be a great outcry to make abortion illegal, except on the right, I would prefer that it not be overturned. Having another hot button cultural issue up for grabs is only going to make politics even more poisonous--it will become like communism in the fifties I admit that this is strictly a prudential, not a constitutional argument. Roe v. Wade may very well be, as I think, a poor opinion. But it's pretty clear that it has not prevented legislatures from placing some restrictions on abortion. Posted by: Marc at October 31, 2005 01:11 PMSenators opposed to a Scalia/Alito/Thomas/Roberts court, on the other hand, have a political and moral duty to filibuster.I think that's pretty silly. They have a duty, as a body (not, incidentally, as individuals) to advise and consent, but suggesting that someone opposed to Alito MOST filibuster is incredibly silly - should they filibuster every bill that they oppose too? If the filibuster is used routinely, in anything but genuinely extraordinary circumstances - rather than just because the minority doesn't like the candidate - then the majority will ultimately take it away. I think that will be to everyone's detriment, but the continued existence of counter-majoritarian tools is largely a function of whether the minority is able to restrain itself. In truth, I think there are people who would merit a filibuster; there are circumstances where I think it is valuable, and for that reason, I could be pursuaded that it is worth keeping. Furthermore, as I mentioned above, I don't support the nuclear option. I am not, however, entirely pursuaded that the rules shouldn't be changed in the proper manner if the filibuster continues to be used as a routine tool. Plus, I think your math is rather suspect. A "Scalia/Alito/Thomas/Roberts court"? It takes five votes to carry the day! There are four liberals on the court, and right now, there are two reliable conservatives. Some balance! Even if Alito is confirmed, the balance of the Court may not have appreciably shifted; Kennedy will remain a grandiloquent weathervane, blown by every breeze, and it is far, far too early to know how our new Fearless Leader will turn out. At best, if Alito is confirmed, we have three conservative members of the court, maybe four if one takes a deep breath and counts Roberts. Kennedy, I suspect, will be more than comfortable moving into Sandra Day O'Connor's swing seat, and I will predict will suffer more than ever from the Greenhouse effect. Only when Alito is confirmed and a conservative successor to Stevens or Ginsburg is confirmed will the court have a reliable conservative majority. Right now, that seems a long way off. Time for Chaffee and DeWine (both up for reelection next year), Collins, Dukakis, and the other moderate Republicans to figure out which side they are on.DeWine will pretty much have to vote yes on Alito, if he wants to keep his seat. His voting record isn't enough to attract democrats, but after his gang membership, he has to work to keep the party base. If he votes no on Alito, my guess that he's toast in 2006. Chafee has a different electoral calculus, a tough decision to make. I'm not aware that there is a moderate Republican called Dukakis. ;) Posted by: Simon at October 31, 2005 01:13 PM They have a duty, as a body (not, incidentally, as individuals) to advise and consent Simon, what's your basis for this contention? I hope it's based on somewhere where a document explicitly say it's one and not the other, as opposed to pointing to a place where it says one but fails to preclude the other. If it's the latter, you'd be claiming that the vague is clear. Posted by: bk at October 31, 2005 01:31 PMSimon -- oops, I meant Olympia Snowe, not the actress Olympia Dukakis. I'm not saying that anytime a Senator is opposed to a bill they should filibuster it. I'm saying that: 1) confirming any SCOTUS pick to a lifetime appointment is inherently an EXTRAORDINARY vote 2) the political circumstances of this pick, as I discern them, are particularly disgusting: a politically-weakened President cravenly shoring up his political base by giving leaders of that base veto power over his pick. 3) A supreme court that hangs in the balance. Yes, Scalia+Thomas+Roberts+Scalito only adds up to four, one short of a solid majority. But there certainly were quite a few 5-4 decisions in recent years, in which O'Conner cast the fifth vote in OPPOSITION to the Scalia/Thomas/Rehnqist. It IS safe to assume that Alito will tip the vote the other way in the future. By the way, for "centrists", the New Republic will likely be a very good place for intelligent articles on the Altio confirmation. The Plank's initial judgement seems right on to me, and actually gives me some pause, the same pause I get when some idiot comes up to me at a bar and challenges me to a fight that I didn't ask for: "With the Bush presidency collapsing, George W. needs a base of support that goes beyond Barney. And now he's delivered the right what it really wants--an end-of-days showdown with liberals, where both sides fall back onto first principles and then bludgeon one another mercilessly. The right's somewhat perverse logic holds that these debates actually represent an ideal occasion for propagandizing; that these fights expose conservative ideas to mainstream America and reveal conservatives to be thinking, feeling people, too." http://www.tnr.com/blog/theplank
"With the Bush presidency collapsing, George W. needs a base of support that goes beyond Barney. I don't buy this for a second. I don't think there's anything Bush can do to expand his base to those who have thus far opposed him. And the rest of the apocalyptic rhetoric is just embarassing. As a centrist, this plank is showing me that TNR is poised to be clearinghouse for dangerous nonsense. But there certainly were quite a few 5-4 decisions in recent years, in which O'Conner cast the fifth vote in OPPOSITION to the Scalia/Thomas/Rehnqist. It IS safe to assume that Alito will tip the vote the other way in the future. I'd like to see the WH explain why Miers was ahead of Alito on W's short list. Yes, we all know why, but it would be fun to see the WH's official reasons, just for laughs.Jean; Here's one guess. Wanted a woman, felt "comfortable" with Miers and as he's done before went with his "gut". He probably also felt her "conservative" personal life would meet the campaign promises he kept. Maybe we'll find out the real reasons in another 10-20 years, long after the uninformative autobiography comes out and soon after the well researched biography comes out.
By the way, for "centrists", the New Republic will likely be a very good place for intelligent articles on the Altio confirmation.Doubtful. And your first citation affirms that doubt. But then again maybe I'm not a "centrist" (as opposed to a centrist) Posted by: C3 at October 31, 2005 03:09 PM I don't buy this for a second. I don't think there's anything Bush can do to expand his base to those who have thus far opposed him. It should be clear that converting his opponents is not what's meant by expanding his base "beyond Barney." It means securing a base larger than his personality sycophants, ie. keeping the right-wing ideologues on board. And the rest of the apocalyptic rhetoric is just embarassing. As a centrist, this plank is showing me that TNR is poised to be clearinghouse for dangerous nonsense. Care to elaborate on that? TNR has been equally forceful in opposing the Moorons as it has the right, so they would be unlikely to promote far-left ideas. People should take the time to read some of Alito's work, and ask themselves... Something I can support. But it's worth bearing in mind what TNR legal editor wrote last November in reviewing "conservative activists" and "principled conservatives." Regarding Alito, he wrote: Samuel Alito Jr., 54. U.S. Court of Appeals for the Third Circuit. Known as "Scalito," or little Scalia, he is considered less blustering than the big guy, but liberals will undoubtedly balk at his abortion record. In 1991, he dissented from a decision to strike down Pennsylvania's spousal notification provision--a decision the Supreme Court later upheld in Planned Parenthood v. Casey, the decision that reaffirmed Roe v. Wade. What should be far more troubling to Senate Democrats, however, is Alito's 1996 dissent from a decision upholding the constitutionality of a federal law prohibiting the possession of machine guns. Applying the logic of the Constitution in Exile for all it's worth, Alito insisted that the private possession of machine guns was not an economic activity, and there was no empirical evidence that private gun possession increased violent crime in a way that substantially affected commerce--therefore, Congress has no right to regulate it. Alito's colleagues criticized him for requiring "Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute." His lack of deference to Congress is unsettling. Note: The article including that review grouped Roberts among the "principled conservatives." Posted by: Scott Smith at October 31, 2005 03:16 PMScott, primarily I was objecting to the characterization of the right as wanting an "end of days" moment. I've said in the past that that they wanted an FU moment, and I still think they do. But "end of days" is, IMO, certifiable. I was only talking about ego, the author of the other cite is talking about an apocalypse. I take that as a bad sign for objectivity. Without digging into it, I agree with the point that Alito's dissent from the gun law based on the commerce clause is troubling at least on the surface. I'd hope to hear more on that. But I'm open to the idea that if a judge is troubled by overexpansion of the commerce clause, he might use a situation where he knows he's going to be the lone dissenter to act in a role of advocacy as a matter of conscience. Seems like congress currently has taken far more power under the commerce clause than was ever intended. The people have largely accepted this so far, but it's based mainly on imagination, and seems to be growing into a rationale for evermore intrusion. So I'm at least sympathetic that at some point a closer look would be taken, and the people be given some opp to give a thumbs up or down to the sorts of powers that have been taken but not really granted. Posted by: bk at October 31, 2005 04:28 PMJean; Here's one guess. Wanted a woman, felt "comfortable" with Miers and as he's done before went with his "gut". He probably also felt her "conservative" personal life would meet the campaign promises he kept. Maybe we'll find out the real reasons in another 10-20 years, long after the uninformative autobiography comes out and soon after the well researched biography comes out. That's a good guess, Chris, but I'm afraid there will be many, many biographies to come out before we know the real reason, if ever. My own guess is that he was looking to kill two birds with one stone; reward one of his inner circle for her loyalty, and expand his base beyond the far right by, as you say, picking a woman with a short paper trail and Harry Reid's approval. When that blew up, he does what he usually does in a crisis; run back to the far right base, like he did after the debacle in New Hampshire. Mind you, I'm not saying that Alito is unqualified just because W picked him, nor am I saying that the Dems should jump out, guns blazing. But what I've read so far is troubling, to say the least. Posted by: Blue Jean at October 31, 2005 05:23 PMI stand corrected on my understanding of your previous comment. I would say though that you should have less expectation of objectivity, though not of getting the facts correct, from an opinion magazine, with a little more leeway for unedited spontaneity as you would find on a blog. Posted by: Scott Smith at October 31, 2005 05:26 PMyou should have less expectation of objectivity, though not of getting the facts correct, from an opinion magazine, Well my comments were a response to Markus's contention that TNR would be an especially good resource for centrists, which I felt was already belied by the chosen excerpt. As you know, the problem with an opinion magazine, or more narrowly an essay author's column, is that there's a relationship between facts and opinions. There's no hard and fast wall where all relevant facts are identified and explored, and only then is an opinion formed and crafted into a persuasive argument. Too often, the pre-formed opinion (or more charitably, the inclination formed via past experience and prior knowledge) is what drives the search for facts, and ones that support the pre-formed inclination are more easily found and more often highlighted. Countervailing facts are gotten to later on in such pieces and covered very quickly or even superficially. It's a problem on both the right and the left. I genuinely don't yet have much of an opinion of Alito, although I know his reputation and have found out a bit about his opinions. So far, I have noticed two things. One is that his opinions seem pretty reasonable, except for the one on guns, which I've not yet looked into further. The other is that the negative views of him that I have read have been prone to shading the truth and sometimes feel to me like outright mischaracterizations. I find it especially troubling that someone has already called him "mr. spousal consent" for example. Posted by: bk at November 1, 2005 09:30 AMMany people have a hard time distinguishing between a judge's application of the law and a judge's exercising his personal opinion. That phenomenon seems to be at work in the "Mr. Spousal Consent" characterization. Posted by: WHQ at November 1, 2005 10:56 AMMy problem with ""mr. spousal consent" is that it suggests that the casey ruling had to do with spousal consent, but it was not about consent, it was about notification. Currently, according to SCOTUS, a pregnant adult woman who wishes to have an abortion has no legal responsibility under any circumstances to even inform the would-be father, let alone allow him to have input into the decision of whether or not the couple should become parents. Posted by: bk at November 1, 2005 12:29 PMJean; reward one of his inner circle for her loyaltySome reward. Posted by: c3 at November 1, 2005 07:08 PM Brian, I have a problem with the misrepresentation of Alito's dissent in US v. Rybar. The Brady Bunch is distorting Alito's dissent, which was not "in favor of legal machine guns" (as the Brady Bunch claims) but was an application of a previous SCOTUS decision relating to the Commerce Clause. Alito explicitly supported the right of the states to regulate machine guns, but said the federal statute against intrastate possession lacked the necessary jurisdictional element to bring it under the Commerce Clause. Posted by: Tully at November 2, 2005 09:06 AMBrian, when you follow up on Tully's explanation of the machine gun case, do remember that you supported Thomas' dissent in the medical marijuana case, which would have limited the power of Congress to regulate intrastate possession and sale of marijuana through the Commerce Clause. (Boy, I love Google!) Posted by: PatHMV at November 2, 2005 10:04 AMTo clarify a bit farther, it looks like Alito hinted very broadly indeed that the statute's Consitutional flaw was one of construction, not intent, and that it could be "fixed" by Congress to make it applicable by adding the required jurisdictional justification element to the statute. Posted by: Tully at November 2, 2005 11:04 AMTwo points: if i failed to make it clear, my own understanding of Alito's gun ruling is rudimentary and 2nd-hand, which is why I'vwe tried to be clear that all I know is that it's bee suggested that it might be a problem. I'm hoping to look into the details a little bit more. Pat, I'm happy to find that I'm willing to stand by what I said then about the marijuana case. I think it's fair to say that the constitution implies that the founders thought that there were some or even many individual activities that were worth being classed as NOT "interstate commerce," even though they seem to have failed to give us much additional guidance on just what those activitied might be. And absolutely yes, subsequent scotus rulings seems to have led us to the point where current law as declared by a series of precedents and rulings based on those precedents now has left us in a state where we seem so far to have largely failed to discover what these activities are which are not sufficiently related to interstate commerce as to merit federal regulation. That's a problem. The more i think about it, the less I am convinced that this was an avoidable problem. Arguably, when you consider the way the world of 18-oh-something was different from 2005, it was as reasonable to think that the founders were right then as it is reasonable to think they are wrong now. If we leave aside the assigning of blame, how do we fix it? Do we really think the answer lies in the constituion, or that it ever really did? If we people scotus with 9 hardcore textualists and give them carte blanche to ignore stare decisis, do we think they can fix it, and even if we do think they can fix it to the extent that they make all rulings consistent with the consitution as wqritten, will we like what we get? Isn't all this really an indication that we need to get the people and the legislature involved to decide what interstate commerce is and isn't, not because the legal system and scotus have failed us, but rather because the intervening 200 years since the composition of a vague constitutional clause have left us wanting? I acknowledge the problem, I'm just not convinced that the problem was caused more by activist judging than by the initail vague clause and the machinations of a giant evolving system as a whole, over 200 years. Posted by: bk at November 2, 2005 12:32 PMThe thing is, Brian, textualist and originalist approaches are not irreconcilable with specific rulings changing over time. To use the commerce clause example for a moment, imagine that we could all agree that the Framers intended for Congress to regulate all activities which actually affect commerce among the states. I'm not saying that IS the rule, let's just accept it for argument's sake right now. Well, in 1789, traffic and commerce between the states was not nearly as common as it is today. Raising a couple of hogs on my isolated homestead and selling pork to my neighbors had substantially zero effect on the nation-wide market for pork products. Likewise, my crops went almost exclusively to feed others in my own state (and probably mostly my own town), not any other parts of the country. So my farming activity in 1789 would not "affect" any commerce among the states. Now it's 2005. The economies of all the states are vastly more entertwined than 216 years ago. Selling my pork to even the local grocer means that the local grocer won't be buying as much pork from other suppliers around the country. Buying and reselling food and all other products is so common, that once I've put my pork into the commerce stream at all, there's a real chance that it will wind up across state lines, whether I intended it to or not. If one of my pork had some porcine equivalent of Mad Cow disease, even if I never sold it, the resulting panic could destabilize the pork market across the country. We're so much more connected, everything I do with my hogs has a real, observable affect on commerce among the several states. So even though our hypothetical rule NEVER CHANGED, the application of that rule could change from then to now based on the changing circumstances. But the key is that neither the rule nor its interpretation changed. All that changed was the facts to which the rule was applied. This, by the way, is one of the reasons I was with Scalia, not Thomas, in the marijuana case. As for stare decisis, few advocate completely "ignoring" it. But it's got to work both ways. I don't hear many liberals excoriating Justice Kennedy for ignoring stare decisis in Roper, when he voted to overturn a decision on the "juvenile death penalty" that he himself had joined in a few year earlier. No liberals screamed out "stare decisis" when Lawrence overturned Bowers v. Hardwick on sodomy. Most of the decisions that the left wants to hold onto so hard (often because they know they are in the minority on the issue) were handed down within the past 30 or 40 years. And conservatives have been trying hard to change them for most of that time. And they were 5 to 4 decisions (like Roe) to begin with. So tossing out a few of those wrongly decided cases will not turn "stare decisis" on its head. Posted by: PatHMV at November 2, 2005 01:00 PMPat, once again I'm wondering how much we really disagree, because you're acknowledging that as time passed and markets grew evermore interconnected, it was ever more reasonable to contsrue more and more activities as federally governable activities of interstate commerce. And that's pretty much what has happened, right? That's really my point, that the federal government has expanded its activities under the commerce clause because of the growth of the interconnectedness of markets, not primarily because of an activist court. So what particular instances that scotus ruled federally governable as interstate commerce represented unwarranted expansion beyond what could be reasonably argued as related? And more importantly, faced as we are now with such expansions, what things do the people want to exclude, and how do we exclude them? Can we expect a textualist court to fix this problem? I think we can't, because the true problem was never really an activist court per se, not in this instance. And in the interim, doesn't the court sort of have to keep going as it has opn interstate commerce, unless and until the people and the federal legislature give it more guidance? Posted by: bk at November 2, 2005 01:19 PMBrian, I don't have a particular problem with the direction of the court on commerce clause grounds. In fact, I am leary of Janice Rogers Brown precisely because she seems to have a real fondness for the Lochner-era activist court. My problem, though, is that in Roe and many other areas of the law, an activist court (by which I mean a non-textualist, "living consitution" court) hasn't just applied the same RULES to new circumstances, they have made up NEW rules to cover old circumstances. Lawrence, Roper, and Roe being prime examples. And of course the fundamental disagreement you and I have is that you still seem to refuse to accept that the fundamental starting point of all constitutional interpretation MUST be the text itself. That's not to say that the text itself will always cover everything; it won't. That's why it must be interpreted. The Commerce Clause is a good example of that ambiguity. But where the text is clear, that's the end of it. And where the text is not all that clear, then the Court should butt out and let the political process handle the issue, stepping in only when the laws generated by the political process do step on the text. Posted by: PatHMV at November 2, 2005 02:05 PMAnd of course the fundamental disagreement you and I have is that you still seem to refuse to accept that the fundamental starting point of all constitutional interpretation MUST be the text itself. I don't even disagree with the spirit of that entirely. I only disagree with the "must" part as a 100% restriction. I can live with it as a very substantial but incomplete restraint. As we once discussed previously, my notion is that in historically rare instances, scotus justices may feel that its morally necessary to act creatively based on what they view as the true spirit of the constitution. Such actions are, as I think you would agree, nowhere described as appropriate. Since such actions are not completely incorrectable if they turn out to be at odds with the people's views, my view is that I'm willing to tolerate them so long as they are rare, and in fact do seem to match what I view as within the spirit of the constitution. I like what many would argue as an expansion of the establishment clause, and I even think you could make an argument about religion as composing a market that would mirror what we talked about in the historical evolution of commerce. i think that there are parallels to the growth of commerce argument that can be made in all the expansion areas, to varying degrees, And I like that the court ruled that separate was inherently unequal, even though that's not strictly always true. My take is that this ruling was primarily an act of creative courage, where scotus saw that they had the power to act to fix a wrong, and by god they were going to do it. And I do like the idea of a right to privacy, irrespective of whether it necessarily applies to abortion. I like it so much in fact, that should Roe get overturned, I think we'd be well served to open discussion about what the right to privacy SHOULD mean, and add it back in through the front door, covering whatever things we can agree upon. And I DON'T like that eminent domain has been expanded beyond the bounds within which I believe it was rightfully intended, and am shocked and even dismayed that scotus got it so wrong. Though I'm encouraged that various movements at various levels seems already to be moving to restore the sort of functionality that was intended. Posted by: bk at November 2, 2005 03:35 PMWhen you butt into the "MUST" of the clear text, there's the process of amendment. Posted by: Tully at November 2, 2005 04:41 PMWhat Tully said. Because, Brian, your view of what is "within the spirit of the constitution" may not match my view. And I'm sure my view differs from Carla's and Marcus'. When the court issues one of your "courageous" decisions that is not founded in the text of the Constitution, then Carla and Marcus and I don't have a chance to squabble and ultimately come to a compromise with each other. That's what politics is all about, messy as it is. Posted by: PatHMV at November 2, 2005 05:07 PMWhen the court issues one of your "courageous" decisions that is not founded in the text of the Constitution, then Carla and Marcus and I don't have a chance to squabble and ultimately come to a compromise with each other. That's what politics is all about, messy as it is. I don't grant that such decisions are NOT "founded" in the text, because some phrases are much vaguer than others. And I re-iterate my earlier point that in some circumstances where existing law provides incomplete guidance, it falls to the court as the default decision-maker to initiate. Like I've said before so many times, I can live with it so long as it's historically rare and ultimately still correctable. I've never said it's perfect. That's why I always get a kick when the people who whine about judicial activism talk about "trampling" on the constitution. Trampling implies repeated and intentional disregard. I just don't see it. IMO, we have gotten a system of humans, and not automatons, which doesn't alarm or surprise me very much. I long ago gave up hope that our government, be it the executive, legislative, or judicial branch, would be run with crisp efficiency of, say, a post by Simon, or a parade at Disneyland. The existence of people bitching about our continued failure to do so probably helps us get a hair closer to this ideal though. Posted by: bk at November 3, 2005 09:50 AM |
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