The concept of 'activist judges'

Joe writes:

Quote:

Numerous? Name three abortion policies that "far exceed anything envisioned by the 1973 court."

1. So called 'partial birth abortion'
2. Late term abortion
3. Performing abortions on minors without parental notification.

Roe v Wade is written with the understanding that the state has little or no interest in the unborn child in the first trimester, increasing interest in the second trimester, and a good deal of interest in the third trimester. The 'constitutional right' portion of it is based on the clause in the Constitution stating rights are rendered to persons born. It is the language spelling out the state's interest that has been largely ignored by lower courts.

A constitutionall amendment that extended rights to the unborn would render Roe v Wade unconstitutional and a new law would need to be written. As it will require a constitutional amendment to overturn it, and that's why I say it won't happen in our lifetime.

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Foxfyre wrote:

He has actually said that a number of times, most recently in the third debate. And, he refers to this phrase from the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--
Quote:

unless of course that pursuit of happiness includes twisting a doobie, marrying someone of your own sex, seeing a prostitute, gambling, or any other harmless pursuit that is distasteful to the large fundamentalist religious voter base and financial backers.... :wink:

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Well okay, I have no interest in marrying anybody of my own sex or seeing a prostitute. I have been known to gamble a bit. But I give up. What's 'twisting a doobie?'

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Foxfyre wrote:

Mesquite (on the President having a litmus test for judges) quote:

Quote:
Pres. GEORGE W. BUSH: We need commonsense judges who understand that our rights were derived from God. And those are the kind of judges I intend to put on the bench.

He has actually said that a number of times, most recently in the third debate. And, he refers to this phrase from the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--

There isn't a quarrel with that I think.

First, he did not repeat that phrasing in the third debate. In the third debate he said:

Quote:

BUSH: What he's asking me is, will I have a litmus test for my judges? And the answer is, no, I will not have a litmus test. I will pick judges who will interpret the Constitution, but I'll have no litmus test.

Transcript

That is far from the other quote above, which indeed was a litmus test. You could even say that was a flip-flop, but in reality there is no doubt that his position is still the same. He is just more careful about what he says in public.

Secondly, judges interpret the Constitution, not the Declaration of Independence, and the Constitution is conspicuously free of any mention of God.

Thirdly, when GW speaks of God he is not speaking of the generic creator or natures god of the Declaration of Independence. It is abundantly clear that he is speaking of the Bible God of his faith.

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Okay I misspoke on the third debate. Flip flop? I think not. It's just a way of saying the same thing in different ways. And how do you presume to know what is abundantly clear? You are probably right as most Christians do consider God to be the Bible God of their faith, and this in no way at all changes the fact that we all have inalienable rights protected by the Constitution and no judge should mess with those, nor should any judge presume to write law based on his/her personal ideology.

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Re: The concept of 'activist judges'

FreeDuck wrote:

http://www.courtinginfluence.net/

I thought this site was interesting. Especially since Bush is always complaining about 'judicial activism' and whatnot.

Another one complaining about "judicial activism" is Justice Scalia.

Scalia decries judicial activism in Harvard talk

Quote:

Supreme Court Justice Antonin Scalia, one of the high court's most conservative justices, told a packed forum in one of the nation's most liberal cities that the courts have strayed into a realm of judicial activism that is ultimately bad for democracy.

In a wide-ranging talk at Harvard's Kennedy School of Government last night, Scalia told about 400 students that issues such as capital punishment, abortion, and physician-assisted suicide should be matters for voters, not judges. . . .

"I will stipulate that by going beyond what it should be doing the court can do some good stuff, so can a king," Scalia said. "But that doesn't prove it's good for a democratic system as a whole. A stopped clock is right twice a day."

The sad and shocking element of Scalia's criticism is his absolute and inexcusable ignorance. Our government is NOT a pure democracy; our government is a republic wherein individual rights are protected against the whims of mob rule.

Mob rule (a pure democracy) might demand the death penalty for rapists or horse thieves. At one time it did. But the Constitution protects individuals from cruel and unusual punishment. If the punishment is not proportionate to the crime, it is cruel. The Supreme Court must step in and declare that the death penalty is cruel and unusual punishment in certain circumstances.

Neither Justice Scalia nor any of our other Justices sitting on the bench of the Supreme Court may abdicate their proper roles in our government built upon the concept of checks and balances. When the voters or the people the voters elect to office act in an unconstitutional manner, the courts must step in when called upon to do so and correct the wrong. This is not "activism" on the part of the members of the judiciary -- it's their sworn DUTY.

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ebrown_p wrote:

No fishin,

I think I am on solid logical ground on both counts.

Hardly. More likely you know the conflict exists but just don't like what resolving it would mean.

Quote:

Notice that in my skillfully worded hypothetical you quote, I include the phrase "damaged by the actions or inactions of its parents".

There is a very big difference in saying "parents should not act in a way that damages a baby they are bringing to term" and saying "parents should not bring a baby with a defect to term".

Yes, there is a big difference in saying "parents should not act in a way that damages a baby they are bringing to term" and saying "parents should not bring a baby with a defect to term" but as you have admitted yourself, in your carefully worded phrase, if the state has a compelling interest in preventing children from being born with a defect and the fetus develops one then there is nothing that stops the state from forcing a termination. What is a parent's "action or inaction"? Failure to perfom a genetic test before pregnancy? Failure to eat properly? A woman that consumes alcohol or drugs during pregancy?

If a woman is pregnant and a herion addict by your statement, the state has a compelling interest to step in. There is nothing there that limits what the state can do once they do step in.

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These are two separate issues. You are trying to make an equivalency that simply doesn't exist.

Don't confuse my comments in regards to your phrase with my earlier comments re: Roe v. Wade. This is an offshoot of that discussion. You haven't shot down the earlier comparison - you've danced around it because you don't like the implications.

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Foxfyre wrote:

Mesquite (on the President having a litmus test for judges) quote:

Quote:
Pres. GEORGE W. BUSH: We need commonsense judges who understand that our rights were derived from God. And those are the kind of judges I intend to put on the bench.

He has actually said that a number of times, most recently in the third debate. And, he refers to this phrase from the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--

There isn't a quarrel with that I think.

But foxfrye, you said you had a problem with kerry saying that he would not appoint a judge who was not in favor of roe v. wade because just because someone is pro life does not mean that they will actively choose to try to overturn roe v. wade.

Bush said the same thing about people who feel that they get their rights from God. (or creator is actually what the quote from the declaration of independence) He said we need common sense judges who believe we get our rights from god and he intends to put more of those kinds of judges on the bench. An atheist judge would still protect the rights of people whether they believed in the creator or not. So what kerry said is in the same context as what bush said.

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Foxfyre wrote:

Joe writes:

Quote:
Numerous? Name three abortion policies that "far exceed anything envisioned by the 1973 court."

1. So called 'partial birth abortion'
2. Late term abortion
3. Performing abortions on minors without parental notification.

So-called "partial birth abortion" is just another type of late-term abortion, so your first and second points are not substantively different. And Roe v. Wade certainly did anticipate that there would be late-term abortions. As Justice Blackmun wrote:

"For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion [b]except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother[/b]." [emphasis added]In other words, late term abortions done for the preservation of the life or health of the mother are not only allowed under Roe v. Wade, they are, in truth, constitutionally protected.

With regard to parental notification statutes, those were not anticipated by the Roe court, primarily because they didn't exist until after the Roe decision was rendered. And they weren't the product of an activist judiciary: they were the product of state legislatures.

Foxfyre wrote:

Roe v Wade is written with the understanding that the state has little or no interest in the unborn child in the first trimester, increasing interest in the second trimester, and a good deal of interest in the third trimester. The 'constitutional right' portion of it is based on the clause in the Constitution stating rights are rendered to persons born. It is the language spelling out the state's interest that has been largely ignored by lower courts.

You have no idea what you're talking about. I've provided a link to the Roe opinion: take a moment and familiarize yourself with it before you compound your errors.

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I disagree with Revel and Joe for reasons already stated. I can't do anything about people who cannot understand the absolute basic foundation of the principles in the Constitution including the letter and intent, but I think you both miss the point.

Bush believes we have certain inalienable rights that were endowed to us by the Creator and these are constitutionally protected. How he defines Creator is immaterial to the discussion. Bush wants to appoint judges who will maintain the integrity of the intent and letter of the law despite their personal ideologyh.

Kerry believes only a judge who is pro-abortion should be appointed which presumes a judge is incapable of competently interpreting the letter and intent of the law unless he posseses a particular ideology. This is dangerous and it is wrong.

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Foxfyre wrote:

I disagree with Revel and Joe for reasons already stated. I can't do anything about people who cannot understand the absolute basic foundation of the principles in the Constitution including the letter and intent, but I think you both miss the point.

Bush believes we have certain inalienable rights that were endowed to us by the Creator and these are constitutionally protected. How he defines Creator is immaterial to the discussion. Bush wants to appoint judges who will maintain the integrity of the intent and letter of the law despite their personal ideologyh.

Kerry believes only a judge who is pro-abortion should be appointed which presumes a judge is incapable of competently interpreting the letter and intent of the law unless he posseses a particular ideology. This is dangerous and it is wrong.

Sometimes foxfrye you just beat everything when it comes to ignoring what you want and restating something despite it not being being right.

I will try again.

The problem you have with Kerry is the same problem you should have with Bush if you were going to be consistent.

Bush said we should have more common sense judges who believe that we get our rights from God and he will appoint judges to the bench like that.

An atheist who does not believe we get our rights from God is just as likely to follow the intent of the laws of the land as someone who believes in God. The criteria that Bush uses that someone has to believe that we get our rights from God is a litmus test and has nothing to do with whether a judge will follow the intent of the laws of the land or not.

In other words, I am agreeing with you that Kerry is prescribing a litmus test; I am just saying that George Bush uses a litmus test also. A litmus test is not only about abortionist issues.

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The litmus test for Bush is that judges follow the letter and intent of the law and the Constitution as protecting inalienable rights. He believes such rights come from God, but where the rights come from is immaterial. I will concede that an implication will be drawn from that one statement that he would appoint only judges who believe in God, but putting all his statements on this subject together, it would be hard to conclude he would require a judge to believe in God. I believe he has a strong enough political sense that for sure he would not ask a judge if the judge believed in God.

Kerry has stated flat out if a judge is opposed to abortion, that judge won't be appointed.

It's splitting hairs, but I'll concede Revel has a point re litmus tests, but the only litmus test Bush will have is that the judge understand a concept of inalienable rights as protected by the Constitution and a willingness to interpret the intent and letter of the law rather than create new law. This in my opinion is commendable and extremely important.

Kerry's litmus test requires a judge to be pro-abortion. To me this would bar 2/3rd of compentent jurists from appointment, is a dangerous precedent, and is wrong.

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Foxfyre wrote:

Okay I misspoke on the third debate. Flip flop? I think not. It's just a way of saying the same thing in different ways. And how do you presume to know what is abundantly clear? You are probably right as most Christians do consider God to be the Bible God of their faith, and this in no way at all changes the fact that we all have inalienable rights protected by the Constitution and no judge should mess with those, nor should any judge presume to write law based on his/her personal ideology.

The two statements regarding judge selection are not even remotely similar.
One speaks to interpreting the constitution, and the other the only criteria is understanding God.

One way to know what is abundantly clear is to listen to his words concerning his religion which have been posted enough times already. Another is to simply see the examples of his selections.

Quote:

NARRATOR: In the last year, in recess appointments, Bush has pushed through two federal judges, Charles Pickering and William Pryor, both outspoken religious conservatives.

Transcript
You say that judges should not write law based on their personal ideology, yet you seem to think it is proper to select judges because they are heavily immersed in an agreeable theology.

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I think you're splitting hairs and refusing to put it all into proper context Mesquite. I thought I was pretty explicit in that it doesn't matter what the judge's individual ideology is about much of anything so long as he can set it aside and deal only with the letter and intent of the law and is committed to doing that with due diligence and integrity.

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Foxfyre wrote:

The litmus test for Bush is that judges follow the letter and intent of the law and the Constitution as protecting inalienable rights. He believes such rights come from God, but where the rights come from is immaterial.

One more time: where rights come from is very material. Judges are tasked with interpreting the Constitution, not the Bible.

Quote:

I will concede that an implication will be drawn from that one statement that he would appoint only judges who believe in God, but putting all his statements on this subject together, it would be hard to conclude he would require a judge to believe in God.

If that is so hard for you to conclude, perhaps you should try using your own advice and look at his words through the eyes of the one that said them.

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I believe he has a strong enough political sense that for sure he would not ask a judge if the judge believed in God.

If by strong political sense you mean Karl Rove, then I agree. There is no need to ask when the answer is on the sleeve.

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Kerry's litmus test requires a judge to be pro-abortion. To me this would bar 2/3rd of compentent jurists from appointment, is a dangerous precedent, and is wrong.

Kerry is not pro-abortion, he is pro-choice and would not support a judge that favored overturning Roe vs Wade. Just because you support the war in Iraq, should you be labled pro-death and destruction? As for that barring 2/3 of competent jurists, what are you smoking? Bear probably wants some too. I do suspect it would bar the likes of Judge Roy Moore.

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If you believe that GW Bush does not have a pro-life litmus test for his SC picks...

You probably believe the war is going well in Iraq, that global warming is fiction and that Bush and that Cat Stevens is a terrorist threat.

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Let's see, Ebrown, I do think the war is going as well as any war goes in Iraq, I am in no way convinced that there is any credible scientific evidence proving global warming, Bush isn't a terrorist threat, not quite sure about Cat Stevens.

And Mesquite must have that smoking stuff you're alluding to in order to believe that pro choice is not the same as pro abortion. Also that nominating only pro choice judges who would not vote to overturn Roe v Wade, despite any new evidence or law that might be passed, is my definition of demagoguery.

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Foxfyre wrote:

I think you're splitting hairs and refusing to put it all into proper context Mesquite. I thought I was pretty explicit in that it doesn't matter what the judge's individual ideology is about much of anything so long as he can set it aside and deal only with the letter and intent of the law and is committed to doing that with due diligence and integrity.

If you are implying that is GW's view, no sale.

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I think this is absolutely GW's view and I think his appointments to date support his commitment to it.

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Quote:

It's splitting hairs, but I'll concede Revel has a point re litmus tests, but the only litmus test Bush will have is that the judge understand a concept of inalienable rights as protected by the Constitution and a willingness to interpret the intent and letter of the law rather than create new law. This in my opinion is commendable and extremely important.

You are wrong, that is not what George Bush said. He said that he would appoint "more judges who believe that people get their rights from God". So he is in effect going to exclude or reduce all those who don't believe that we get our rights from God.

Which is a curious statement in and of itself when you think about it. Do we even have any atheist judges on the bench? If we don't or we don't know, I wonder what George Bush meant when he said, "more common sense judges who believe we get our rights from God?"

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The concept of 'activist judges'

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