Archive for the ‘Good Reads’ Category:
When Robert Bork speaks, we ought to listen.
With a single stroke -- the nomination of Harriet Miers -- the president has damaged the prospects for reform of a left-leaning and imperialistic Supreme Court, taken the heart out of a rising generation of constitutional scholars, and widened the fissures within the conservative movement. That's not a bad day's work -- for liberals.
Make sure you go and read the
rest of the commentary. It's great. Particularly...
Some moderate (i.e., lukewarm) conservatives admonish the rest of us to hold our fire until Ms. Miers's performance at her hearing tells us more about her outlook on law, but any significant revelations are highly unlikely. She cannot be expected to endorse originalism; that would alienate the bloc of senators who think constitutional philosophy is about arriving at pleasing political results. What, then, can she say? Probably that she cannot discuss any issue likely to come before the court. Given the adventurousness of this court, that's just about every issue imaginable. What we can expect in all probability is platitudes about not "legislating from the bench." The Senate is asked, then, to confirm a nominee with no visible judicial philosophy who lacks the basic skills of persuasive argument and clear writing.
Amen.
David Keene at The American Conservative Union says that
President Bush no longer has the unquestioned loyalty of his voting base.
Most conservatives have stood with Bush from the beginning. Those of us who know him like him. We’ve swallowed policies we might otherwise have objected to because we’ve believed that he and those around him are themselves conservatives trying to do the right thing against sometimes terrible odds. We’ve been there for him because we’ve considered ourselves part of his team.
No more.
From now on, this administration will find it difficult to muster support on the right without explaining why it should be forthcoming. The days of the blank check have ended because no thinking conservative really wants to be part of a team that requires marching in lock step without question or thought, even if it is headed by the president of the United States.
I include myself in the before and after groups of these two paragraphs.
Via:
Gando
Leon at RedState is
laying down his sword on Miers. I'm not positive I am yet, though it's a fight of principle and probably not winnable. Still, fights on principle are good fights as far as I'm concerned.
Ann Coulter:
The only sexism involved in the Miers nomination is the administration's claim that once they decided they wanted a woman, Miers was the best they could do. Let me just say, if the top male lawyer in the country is John Roberts and the top female lawyer is Harriet Miers, we may as well stop allowing girls to go to law school.
True enough!
Fr. Robert F. McNamara:
Some of the Latin baptismal names that ancient Christian parents bestowed on their children were quaint but devout: like “Quodvultdeus,” which means “whatever God wants”; or “Deusdedit,” “God's gift”; or “Desideratus,” “wanted”.
In the 12th century, there lived in Cremona, Italy, a prosperous merchant who took his newborn son to church and announced to the priest that he wanted him baptized “Homobonus”. The word means “good man”. The parent had chosen the child's baptismal name with care, and he was determined to teach his son how to live up to its implications.
He fulfilled his plan well. Homobonus grew up well-instructed in the skills of merchandising, but at the same time a lover of honesty, virtue and self-respect. He came to appreciate that his calling as a businessman was a divine calling. God wanted him to be just where He had put him; it was in the marketplace that he would work out his salvation.
Providentially, Homobonus of Cremona found a wife who possessed the same convictions. Others of their mercantile class might trip over the occupational hazards of ambition, dissipation and vain display, but not Mr. and Mrs. H. Their simple life style gave them all the more means and incentive to reach out to the less fortunate. God appreciated this saintly couple's works of mercy, and even set His stamp of approval on them by working miracles in favor of those whom they assisted; so the author of St. Homobonus's biography assured us.
Among the worthy merchant's devotional habits was to go daily to the church of St. Giles to “report” to God on his activities. It was during one of these visits that he came to the end of his life. On November 13,1197, he was attending Mass. At the Gloria he stretched out his arms in the shape of a cross and fell forward into a prostration. Those beside him thought this was just an act of personal penance. But when he failed to stand for the Gospel, they went over to him and found that he had died.
Pope Innocent III canonized this holy Cremonian only two years after his death. No reason to wait longer. Homobonus had obviously lived up to his name. Like Charlie Brown (if we may make such a comparison), he was a GOOD MAN.
Wouldn't it be wonderful if those who survive us could say of us in all sincerity, “He was a good man,” or “She was a good woman.” There could be no higher human praise. It would mean that we had, as St. Paul says, shown ourselves “children of God beyond reproach... like the stars in the sky.” It would mean that we had conscientiously lived up to the particular task God assigned to us and not wasted his graces. This would mean that we had fully understood why we were created: to know God and love Him and serve Him in this world so as to be happy with Him forever in heaven.
Lileks describes his
jury duty experience and I can't help but think he's writing about the one I had.
Ankle Biting Pundits has some
interesting statistics on the ratio of talking/listening per Senator in the Roberts confirmation hearings.
Joe Biden accused Roberts of "filibustering" one of his questions. The line on Smokin' Joe:
Joe Biden 70-30% (DE) (3,633 - w/ 1,055 word opening "question-1,570)
70% of the words spoken during his time were his own.
Much is made about the precedents up to, including, and beyond Roe v. Wade that uphold the "right" to abortion and the "right" to die. Not much is made about the precedents that might stand in the way of those "rights." Senator Brownback, in his second period of questioning in the John Roberts confirmation hearings yesterday was wondering about the viability of that second group of precedents in future cases:
BROWNBACK: I want to get you, in the limited time I have left, just two quick points. One is on the end-of-life issues. You've had a discussion with several members on end-of-life issues. And this was discussed, for instance, Washington v. Glucksberg is the lead recent case, 1997 case, upheld a state statute banning assisted suicide. Would you agree that that case held that there is not a constitutional right to die -- a right to die does not exist in the Constitution?
ROBERTS: I think that's an accurate conclusion of the holding in that case. Again, without expressing views on correctness or not, since that's where the line has been drawn in terms of what nominees can say, my understanding is that that court rejected the conclusion. It went through the analysis of what liberty interests protected by the due process clause included. And it concluded that there wasn't a right under the liberty clause that trumped the regulation that was at issue in that case.
BROWNBACK: And I believe even the standard that the court held in this case was the rationally related standard, the lowest level of review, that the state can find a rational basis, they can limit these assisted-suicide bans, efforts across the country.
ROBERTS: Once the court concluded that there wasn't a fundamental right that was in conflict with the state regulation, then the court applied the rational relation test to uphold the state law.
BROWNBACK: And you have -- that would be subject to, in your opinion, the continued status of stare decisis as an opinion of the court. And the deference and the dependency that the society has had on that ruling would have the same status as any opinion of the U.S. Supreme Court on the basis of stare decisis, in your opinion.
ROBERTS: It would be subject to the same analysis as any other precedent of the court, yes.
BROWNBACK: Regardless of whether it's a recent opinion, later opinion, this has the same standing because it's an opinion of the courts?
ROBERTS: Some of the court's cases talk about how long an opinion has been standing. Some of the court's cases say that's less of a factor. But it is a decision of the court, a precedent on that issue. Any question of revisiting it would have to be consistent with the principles of stare decisis. And we've talked about those principles and how they apply.
BROWNBACK: Yes. I just wanted to make clear that it doesn't matter the length of time the opinion has set, the number of times it's been revisited, stare decisis is a basic principle that applies to any opinion previously held by the court.
ROBERTS: Yes.
This an interesting point that I think a lot of people forget. There are many cases that are interesting to note, including the aforementioned Washington v. Glucksberg. There is a brief "syllabus" of that case
here. In the case it was held " Washington's prohibition against "caus[ing]" or "aid[ing]" a suicide does not violate the Due Process Clause. Pp. 5-32."
Here's the segment of the day from the confirmation hearings, and a sign that, thanks to the intellect of John Roberts, the politicization of the hearings can't hold water. It is also the tell-tale way we know that Roberts a good fit in the Supreme Court. (
For the condensed version, just read the bold statements)
This is taken from the full transcript,
found here.
Biden:
See, you've told me nothing, Judge.
With all due respect, you've not -- look, it's kind of interesting, this Kabuki dance we have in these hearings here, as if the public doesn't have a right to know what you think about fundamental issues facing them.
There's no more possibility that anyone one of us here would be elected to the United States Senate without expressing broadly and sometimes specifically to our public what it is we believe.
The idea that the founders sat there and said, Look, here's what we're going to do: We're going to require the two elected branches to answer questions of the public with no presumption they should have the job as senator, president or congressman. But guess what? We're going to have a third co-equal branch of government that gets to be there for life; never, ever again to be able to be asked the question they don't want to answer. And you know what? He doesn't have to tell us anything. It's OK, as long as he is -- as you are -- a decent, bright, honorable man, that's all we need to know. That's all we need to know.
Later, Roberts:
Now, the only point I was going to make earlier, because I do think it's an important one -- you make the point that, We stand for election and we wouldn't be elected if we didn't tell people what we stand for.
Judges don't stand for election. I'm not standing for election. And it is contrary to the role of judges in our society to say that,
This judge should go on the bench because these are his or her positions and those are the positions they're going to apply.
Judges go on the bench and they apply and decide cases according to the judicial process, not on the basis of promises made earlier to get elected or promises made earlier to get confirmed.
That's inconsistent with the independence and integrity of the Supreme Court.
And later, Senator Kyl:
I think this last exchange is important because it goes back to what we talked about at the very beginning, when some of us in our opening statements pledged to defend you if you stopped short of answering every question the way that every senator felt important, based upon your view that the matter in question might come before the court; that the canons of judicial ethics preclude you from doing that.
KYL: A very wise senator on this committee once said something. Let me quote it to you. And by the way, I contend that he is still wise.
(CROSSTALK)
KYL: And this is what he said: Judge, you not only have a right to choose what you will answer and not answer. But, in my view, you should not answer a question of what your view will be on an issue that clearly is going to come before the court in 50 different forms, probably, over your tenure on the court.
Now, as I said, that was wise then. It's wise now. It is the statement of then-Chairman Joseph Biden in the Ginsburg hearings. And in all sincerity, I do believe Senator Biden to be wise and I believe that that comment is wise.
It's what's animated your approach to answering, probably by now, hundreds of questions that have been asked of you. And you've answered every question. In some cases, however, you have stopped short of advising us what you believe the law to be because you felt that that matter is going to come before the court.
But you didn't stop there. When permitted, you expanded to tell us why you thought it was a matter that might come before the court and what your general approach to the case would be in terms of your judicial philosophy, how you would approach judging the case, but that you didn't want to talk about your view of what the law was, both because the case could come before the court and also because it's pretty hard to formulate in a question all of the factual considerations that would permit you to know what law would be specifically applicable to that particular case.
KYL: And you and I talked a little bit about the facial challenge to statutes versus the as-applied kind of problem.
So with respect to this last interchange you had with Senator Biden -- and by the way, I'll say, again, to compliment my colleagues, if anybody ever contended that senators weren't both diligent in pursuing what they want to pursue and also very imaginative, they should watch this hearing, because we've been blessed with most creative ways of trying to pull out of you commitments on matters that senators would like to have you make commitments on.
But as Senator Biden just said, and I'm paraphrasing here -- he said without the knowledge of your personal views -- he was talking at the time about end-of-life issues -- we're rolling the dice.
And your response to that, as I understand it, is: My personal views are irrelevant to a case that comes before me of Jones v. Smith, of X v. Y. What I personally think about issues has nothing to do with the resolution of the dispute between those two parties. And were I to let them intrude, I would not be doing my job as a judge, fairly taking the facts of their case and then applying the law that I understand it to be to reach a decision.
Moreover, Judge, isn't it the case that if you were to state your views on such subjects, as they might pertain to a case that would come before the court, wouldn't you actually have to recuse yourself from deciding that case and, therefore, all of the discussion, all of the effort to get you committed to a particular point of view would be for naught because if you expressed it you couldn't sit on the case anyway? Or am I incorrect in that?
And Roberts, again:
I think that's a concern that other nominees have raised in the past, particularly given the expression of the views as part of the confirmation process.
It's not supposed to be a bargaining process.
And if you start stating views with respect to particular issues of concern to one senator, then, obviously, everyone's going to have their list and when that individual nominee, if confirmed, if the bargain is successful from his or her point of view and he gets confirmed, he'll have to begin each case, not with the party's briefs and arguments, but with the transcript of the confirmation hearing to see what he or she swore to, under oath, was their view in a particular area of the law or particular case.
And I think that would undermine the independence of the Supreme Court. It would undermine the integrity of the judicial process. Everyone of the justices on the court today, everyone of them refused to engage in that type of process. And if I'm to sit with them, if I am confirmed, I feel I have to follow the same approach.
Now, I do think I've been more expansive than most nominees. I've gone back and read the transcripts and some of them would not talk about particular cases even if it were unlikely that the case was going to come before the court.
And the reason they gave was, Look, it's hard to draw the line. If I think this case is not going to come before the court, what about this one and maybe that will. And rather than trying to draw the line, I'm just not going to do it.
And those justices were confirmed.
I've taken what I think is a more pragmatic approach. If I think an issue is not likely to come before the court, I have told the committee what my views on that case were -- what my views on that case are.
Perhaps that means it's sometimes difficult to draw the line, perhaps that's right. But, again, if I make the judgment -- and other nominees may draw the line differently. They have drawn it differently in the past or differently in the future.
The nominee, I think, has to be comfortable with the proposition that they're not doing anything that's going to undermine the integrity of the court.
Also see my post on blogsforlife.com, "
Roberts and Roe."
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