United States Supreme Court Discussion Thread.

Discussion in 'Archive: The Senate Floor' started by Darth Mischievous, Nov 3, 2004.

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  1. Darth Mischievous Force Ghost

    Member Since:
    Oct 12, 1999
    star 6
    It is a likely probability that we're going to have 4 justices of the United States Supreme Court retiring here in the next 2 years.

    So, the discussion begins on what types of justices will be nominated and what impact they will have on the high court.


  2. Jabbadabbado Manager Emeritus

    Member Since:
    Mar 19, 1999
    star 7
    Bush basically said in the debates that he would strive to choose strict textualist judges as nominees for the SCOTUS. I don't believe that there is such a being as a strict textualist. Intentionally, or unintentionally, "strict textualism" is code for "conservative activism."

    So I take it to mean that George Bush will promote conservative activist judges who will strive mightily to roll back, restrict, and perhaps completely unravel Roe v. Wade. And this of course is one of the cherished dreams of the fundamentalist Christian right.
  3. KnightWriter Administrator Emeritus

    Member Since:
    Nov 6, 2001
    star 8
    Doing that could ignite some long-diminished fire in certain people and groups across the country.

    For every action, there's a reaction, and the conservative right isn't the only entity that can hit hard.
  4. ShaneP Ex-Mod Officio

    Member Since:
    Mar 26, 2001
    star 6
    If Rehnquist retires before O'Connor, Bush should make her Chief Justice.

    I like Scalia but he might not make the best Chief for this court.
  5. JediSmuggler Force Ghost

    Member Since:
    Jun 5, 1999
    star 5
    I think Clarence Thomas will be the next Chief Justice.

    He's smart, and he also is willing to make decisions when he feels the court has screwed up in the past (i.e. when the court has departed from strict constructionism and interpreting the law).

    I do not think filibusters will be viable now. After losing seats in two straight elections in which obstruction of the President judicial nominees was an issue, would the Dems want to continue that approach?

    Plus, which Senator wants to be the one to lead the opposition to confirming this country's first African-American Chief Justice?
  6. KnightWriter Administrator Emeritus

    Member Since:
    Nov 6, 2001
    star 8
    Or how about the first female chief justice?

    That would be interesting to oppose as well.
  7. ShaneP Ex-Mod Officio

    Member Since:
    Mar 26, 2001
    star 6
    Plus, which Senator wants to be the one to lead the opposition to confirming this country's first African-American Chief Justice?

    Uhhh....maybe the same ones who opposed his nomination in the first place, many of whom are still there.

    Make it Justice O'Connor. She straddles the fence and so would be an effective Chief Justice.
  8. KnightWriter Administrator Emeritus

    Member Since:
    Nov 6, 2001
    star 8
    Senator McCain could be something of a help for O'Connor, as I imagine he would support her as the fellow Arizonan she is.
  9. Jediflyer Force Ghost

    Member Since:
    Dec 5, 2001
    star 5
    Could I hope for some liberal judges that will overturn Roe v. Wade?




    I thought not. :(
  10. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    I actually think that Scalia would be the best choice for Chief Justice. If you look at how he has ruled, he has, almost without fail, followed a strict constructionist philosophy, but he has always been clear to protect rights contained in the Constitution, even when it has angered conservatives.

    He really is a good example for the sort of judges that Bush supports, and he would be a good choice to lead the Supreme Court.

    Kimball Kinnison
  11. J-Rod Force Ghost

    Member Since:
    Jul 28, 2004
    star 5
    Are there not equally qualified judges who don't believe in Reo v Wade? Why is it practicaly illegal to let them sit on the Supreme Court? Don't they have the right to be heard as they may very well be right?
  12. ShaneP Ex-Mod Officio

    Member Since:
    Mar 26, 2001
    star 6
    I actually hate Roe v Wade itself as it constitutes legislating from the bench. Abortion should be a state matter.

    I actually like the idea of someone who is less of an idealogue being Chief Justice. Besides, Scalia being Chief Justice might be very difficult to approve.
  13. Obi-Wan McCartney Force Ghost

    Member Since:
    Aug 17, 1999
    star 5
    Don't get too excited my conservative friends. The two most liberal members of the Supreme Court in the 20th Century, Justice Warran and Brennen, were nominated by the GOP. That goes for two of the most liberal members on the current court.

    We still got the Veto. I'll admit you are in better shape, but don't forget the name SOUTER.
  14. Darth_OlsenTwins Jedi Grand Master

    Member Since:
    May 18, 2002
    star 5
    I think that Scalia is a what I like in a Justice, being a very strict interpretor of the Constitution and probably the most intelligent man on the court. His opinions (except that of Bush vs Gore) are always exceedingly well written and I tend to agree with many of his views on a fundamental level.

    That being said, I don't think he should be Chief Justice of this nation given the divisions that have arisenover the last few years. Give it to O'Conner.
  15. TripleB Jedi Master

    Member Since:
    Oct 28, 2000
    star 4
    If left to me, the decision of Chief Justice should be left to the actual court members themselves.

    As far as whom to replace and when, I think Bush will wait and see whom want's to retire first, and probably will try to replace a person with an "Look Alike" of whomever retires.

    If one of the conservitives retire, he will try to get the like.

    if a moderate retires, he will go for a moderate (probably Alberto Gonzales).

    if a liberal retires......hehehe. Actually I think he will be fair.

    More so then a Democrat will. Remember that most of the liberals on the court were appointed by the GOP presidents.
  16. Darth_OlsenTwins Jedi Grand Master

    Member Since:
    May 18, 2002
    star 5
    I sincerely hope that Bush is fair in terms of matching appointments with retirees. The prospect of a wholesale reversal of Roe v Wade will spark an enormous backlash that will quickly end this social conservative revolution that may be occuring in this nation.

    However, given the fact that the evangelical right has essentially gift wrapped this election for Bush, he may have a hard time backing down from that type of pressure. And given Bush's tendencies as a governor, its certainly more than just a possibility.

    I always thought abortion should have been handled at the state level anyway.
  17. Branthoris Jedi Knight

    Member Since:
    Nov 12, 2002
    star 3
    It's testament to Bush's stupidity that he bangs on about Scalia and Thomas being "strict constructionists". Scalia has said that nobody should be a strict constructionist because it is an "absurd" position. They are actually originalists, which means following the original understanding of constitutional provisions, not strictly following their text.

    If Rehnquist goes in the near future, I think a Scalia nomination for Chief Justice is more likely than a Thomas one. Not only does Scalia have a higher profile as a result of his opinions, presence on the bench, and longer tenure on the court (besides Thomas's vow of silence in oral argument), but I think the Bush camp will realise that Scalia would be easier to confirm. There's a lot of dirty laundry from Thomas's confirmation last time round (e.g. the sexual harassment allegations, 'stealth nominee' claims, etc.) that could resurface if he were nominated. Plus, while the Democrats despise Scalia, Thomas would be even more divisive, since he has even less respect for precedent than Scalia and has, on occasion, reached results that would be seen as even more 'conservative' (e.g. affording the President unlimited power to detain US citizens in Hamdi v. Rumsfeld, starkly constrasting with Scalia's position that 'enemy combatants' can be detained only through normal criminal procedures or a suspension of habeas corpus).

    Of course, a Kennedy or O'Connor nomination is possible, but with Bush's clear electoral mandate, and the increased Republican control of the Senate, I do not think that he is likely to go for such a 'moderate' nominee. Kennedy and O'Connor both voted to reaffirm Roe v. Wade (among other things), and as a result, neither would satisfy the religious right. So I think Scalia will be Bush's most likely nominee, though he would still have a difficult confirmation fight (the Republicans still do not have enough votes in the Senate to break a filibuster).
  18. ShaneP Ex-Mod Officio

    Member Since:
    Mar 26, 2001
    star 6
    Bush stated this morning, and I agree, that he gained political capital to spend in his second term.

    IMHO, the biggest waste of that capital would be to take on Roe v Wade head on.

    Focus on universal issues like Social Security, Tax, and health care reforms.

    Being against partial-birth abortion is one thing, but against Roe v Wade is quite another.

  19. Jabbadabbado Manager Emeritus

    Member Since:
    Mar 19, 1999
    star 7
    The "originalist" position is potentially as absurd as the strict textualist position.

    If Bush is serious about uniting the country, he will be very careful about who he nominates. Trying to match the ideologies of nominees with those of the justices being replaced looks like a good idea on paper, but in practice would be all but impossible to implement.

    If we take the 2004 presidential elections as proof of the center-right nature of American politics and culture, then I think it would be fair for Bush to aim for a center-right Supreme Court - in other words one that is not much different that the one currently in place. However, the temptation, and the pressure, to move the court further to the right is going to be immense for the President. The extent to which Bush resists that pressure/temptation is going to determine his legacy as a "uniter" or a "divider."

    In any case, Rehnquist's replacement, if it happens, is a golden opportunity for the President to start reaching out to the vanquished 48% minority of Americans.
  20. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    The "originalist" position is potentially as absurd as the strict textualist position.

    How so? It is much like contract law, in that it bases the interpretation of the text on what it was understood to mean at the time it was written, rather than what it says now.

    Consider, as an example, the current case of SCO vs. IBM. SCO is claiming that IBM improperly contributed portions of UNIX to Linux. IBM denies this. To date, SCO has failed to point out a single line of code copied from System V UNIX into Linux.

    Instead, SCO is basing its position on the definition of "software product" and "derivative works" in the contract. According to multiple sources from both AT&T and IBM (the original signatories of the contract), those phrases only apply to the actual System V code. According to SCO's interpretation, any code that has ever been used alongside System V code is also covered by the contract.

    What SCO is doing is trying to reinterpret the contract to mean something different from what both parties intended it to mean. That sort of thing doesn't usually fly all that well with a judge.

    Originalism is the standard for contract law, and it is not considered absurd there. Why not for Constitutional law?

    Kimball Kinnison
  21. Jabbadabbado Manager Emeritus

    Member Since:
    Mar 19, 1999
    star 7
    Kimball, you perfectly illustrated my point with that interesting example.

    In contract law, the text of the contract is meant as prima facie evidence of the parties' intent. When the contract is in dispute, and the parties do not agree on what the intent of the contract was, then of course the text of the contract more or less disappears under all kinds of outside evidence that can come into the dispute to define terms and show what standard business practices are and to show why one term could not possibly mean what the other party says it means, etc.

    If we're going to compare the text of the constitution to a contract, there's an important initial flaw in the analogy, and that's the problem that all original parties to the contract are dead. For example, concerning "a well regulated militia being..., the right to bear arms shall not be infringed," we know that the original parties to the "contract" didn't contemplate anything other than muskets.

    But it would be absurd to argue that the Constitution in the 21st century is "meant" to permit the bearing of muskets. At that point, someone might argue that the framers "intended the constitution to remain relevant to current and future generations."

    How does a Supreme Court justice determine what's "relevant to current and future generations?" By listening to all kinds of evidence from two teams of lawyers, giving Justices cover for making whatever decision they feel is warranted for whatever reason.
  22. ShaneP Ex-Mod Officio

    Member Since:
    Mar 26, 2001
    star 6
    Jabba, an originalist interpretation is perfectly valid.

    If you want to update the Constitution to reflect contemporary thought, the framers put in a mechanism to do so:

    Amendment process.

    Problem is, loose constructionists have decided to see what is not there and legislate via judicial fiat what cannot be legislated.

    Roe v Wade is law......and it's bad law. Shouldn't even exist.
  23. Jabbadabbado Manager Emeritus

    Member Since:
    Mar 19, 1999
    star 7
    ShaneP, fine, then we need to wait for a constitutional amendment before allowing people to bear any arms other than muskets.

    No justice has ever written an opinion without stating his/her reason for believing the constitution was "intended" to be interpreted a given way.

    "originalist intent" is just another cover for the Justice's own belief structure.
  24. Darth Mischievous Force Ghost

    Member Since:
    Oct 12, 1999
    star 6
    I am of the opinion that Bill Frist should remove Phil Specter from his chairmanship of the Judiciary Committee.
  25. KnightWriter Administrator Emeritus

    Member Since:
    Nov 6, 2001
    star 8
    Not if he doesn't want a backlash, which would be in addition to the considerable backlash Frist has already experienced in his time so far.
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