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The concept of 'activist judges'

 
 
kuvasz
 
  1  
Reply Fri 15 Oct, 2004 10:29 pm
Baldimo wrote:
Quote:
You are wrong about Bush and Kerry.

Here's what you said Bush said: : 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.

Here is what Bush really said in the second debate and nowhere in his response did he mention God.
Quote:
I would pick somebody who would not allow their personal opinion to get in the way of the law. I would pick somebody who would strictly interpret the Constitution of the United States.


Here is what Kerry said:
Quote:
Now, I will not allow somebody to come in and change Roe v. Wade.


He has said that he wouldn't allow someone to come in and change abortion that would mean he would not allow a judge on the SC who didn't support abortion. If a new case came up on the issue, then he would want a judge that wouldn't consider the issue and just rule against it based on how that judge already feels. If all he ever has in the SC were pro-abortion judges then how would a new case be fair?

Quote:
So, according to Baldimo, the 9-0 decision of Brown v. Kansas Board of Education "is not the way our nation should be run."

I do not think you have any understanding of what the Constitution was attmpting to do. Its intent was not merely to set up a political system where the majority ruled. More important was that it set up guidelines where the minority was protected from the majority.


Can you please tell me where it says this in the constitution?

It does mention voting in the constitution and what it takes for something to win a vote and what it takes to pass a law, and it is majority rule.



Apparently you reveal little to no knowledge of constitutional law, the debates of the Constitutional Convention of 1787, the ratification debates in the state legislatures of the 13 original Colonies, the arguments on government power versus individual rights discussed in the Federalist Papers, nor any of the philosophic groundwork of Aristotle, Locke and Rousseau, upon which this nation's own constitution was laid.

Were you asleep in 7th grade when they taught you civics or are you purposely obtuse here?

You sure as hell seem to know nothing of the history of our nation's ratification of our founding document nor why there is even a Bill of Rights, and I wonder if you ever even heard of James Mason and the Virginia Bill of Rights James Madison used to write the first 10 amendments to the US Constitution.

If by "democracy" one simply means rule by the majority, then one of the great problems in a democracy is how minorities are treated. By "minorities" we do not restrict this meaning to people who voted against the winning party, but rather include those who are different from the majority by reasons of race, religion, or ethnicity. No society can aspire to call itself democratic if it systematically excludes specific groups from the full protection of the laws.

The "majority" ruled in Nazi Germany and according to you the Third Reich would easily fit your stunted description of a "democracy," and yet millions of minorities were shoved into gas chambers. So if by your definition, democracy is merely "majority rules" you are little more than a bloody fascist who should be held up to the ridicule you would so richly deserve if you truly believe this.

"There is no worse tyranny than that of a majority. The test of democracy is not that the majority should always get its way but how far minorities are respected."

John Stuart Mill

In other words, ones that even someone dumber than a bag of hammers would understand, the majority was and always is considered to be a danger to minority rights in a democracy.

That is right out of Aristotle's "Politics," which Madison used as a primer when he wrote much of our founding document. All you have to do is read "Politics" to see it.

When a majority rules in a democracy, it controls the government, and the US Constitution contains restrictions on government as safeguards against majority rule expressed as the power of the government to deny rights to the minority.

Let me make it even easier for you.

Democratic Majority = Government.

US Constitution's Bill of Rights = restrictions on power of Government over Individuals

Under the US Constitution, the Government or Majority has prohibitions on it to deny rights to the Minority.

And I have but one question for you. Baldimo. How the flying fu*k did they ever allow you to graduate junior high school without knowing this?
0 Replies
 
Baldimo
 
  1  
Reply Sun 17 Oct, 2004 03:56 pm
Quote:
It appears you don't understand how the court system works. Judges can not come in and overturn prior rulings. The case must be brought before them which usually means a case similar enough that they revisit a prior ruling. This is extremely rare.


I said that same thing you just explained. Here's what I said:
"The only way it could be over turned is if a new case was brought before the court. They just can't go back and overturn something just because they don't like it. Look at the Lawrence case, the SC went against one of its earlier judgments on the subject. Roe vs. Wade could only work in a similar way."

Quote:
Since the USSC ruled on Roe v Wade, any similar case brought before a lower court MUST be ruled on in light of the higher court ruling. This makes it highly unlikely for the USSC to accept a case similar to Roe. In fact, the court would have to ignore the precedents it set and agree to take a case that was ruled on as they said it must be. Under the way the court works, it would require an "activist" court to overturn Roe. Kerry's statement is interesting in that it is precisely what the law requires, respect for previous court rulings.


If this were indeed that case then how was it that the USSC ruled in the opposite way in the Lawrence vs. Texas case? They made a new ruling and didn't even take into account the previous case, which was only about 17 years old.
0 Replies
 
parados
 
  1  
Reply Wed 20 Oct, 2004 01:11 pm
Baldimo wrote:

Quote:
If this were indeed that case then how was it that the USSC ruled in the opposite way in the Lawrence vs. Texas case? They made a new ruling and didn't even take into account the previous case, which was only about 17 years old.


Sorry it took a while to get back to this. I looked up the Lawrence case. An interesting case but I am not sure it is one you wish to use to show why the court could overrule Roe. The court revisited Brower partially because of consequences that went beyond homosexuality in that case. For anyone interested, Lawrence was basically about the rights of a person to commit lewd homosexual acts in the privacy of their own home. Brower said states could pass laws to make it illegal. Lawrence overturned Brower saying that Brower was too restrictive in its ruling in applying the standard only to homosexuals.

The reasons giving for overturning Brower basically boil down to:
A.) laws purporting to prevent an act actually are preventing personal relationships
B.)Brower claimed that laws against homosexuality had ancient roots but in reality US had no such laws until the 20th century.
C.)Since Brower, public attitudes and laws had actually become more permissive for homosexual acts. 25 states down to 13 prohibiting them.

Baldimo,
The thinking in taking on Roe again would appear to be the exact opposite of the reasoning to relook at Brower.
A.) abortion laws would interfer in a personal relationship between woman and Dr.
B.)Laws and prohibitions against abortion didn't appear in the US until the late 19th early 20th century so there is really no long standing prohibition.
C.)Public attitudes are certainly no more against abortion than they are against homosexuality.

Let me close with part of the courts reasoning in overturning Brower.
Quote:
but this Court's obligation is to define the liberty of all, not to mandate its own moral code,
One can only hope that this is a standard all courts can live by.
0 Replies
 
Foxfyre
 
  1  
Reply Wed 20 Oct, 2004 03:46 pm
What goes on the privacy of the home beween consenting adults is nobody's business and I don't know any conservatives or liberals who think it should be. I know there are some nuts out there who favor some kind of morality policing, but they have to be a tiny tiny majority and come from the far ends of both left and right. (Extreme conservatives might not want you to have weird sex while extreme liberals don't want you to smoke or wear fur, etc.)

I personally want judges to interpret the existing laws and not make new laws to appease these radical extremists. Too often we see extremists wanting the interpretation of law to favor them but resent if a new interpretation walks all over one of their sacred cows.
0 Replies
 
mesquite
 
  1  
Reply Wed 20 Oct, 2004 04:32 pm
You're endorsing Kerry then?
0 Replies
 
Foxfyre
 
  1  
Reply Wed 20 Oct, 2004 06:46 pm
No. Kerry has already said he wants judges who judge on ideology. I'll go with Bush who says he wants judges who judge on the basis of law.
0 Replies
 
mesquite
 
  1  
Reply Wed 20 Oct, 2004 09:41 pm
Shucks, too bad. I thought maybe for a minute that you had an epiphany.

Kerry did not say that he wanted judges that would judge on ideology, he said he would not appoint judges that would strive to overturn Roe vs Wade.

Bush on the other hand said that he would only appoint judges that understood that our rights were derived from God, which you try to spin as not catering to the religious right pro-life crowd.

Kerry is personally against abortion, but does not believe it is proper to legislate his faith. Bush clearly believes in legislating his faith.
0 Replies
 
Foxfyre
 
  1  
Reply Thu 21 Oct, 2004 01:40 am
Kerry didn't say he wouldn't appoint judges who wanted to overturn Roe v Wade. Bush wouldn't appoint such a judge either. Kerry did say he would not appoint a judge who did not favor Roe v Wade or who would put any restrictions whatsoever on abortion. That's ideology.
0 Replies
 
Einherjar
 
  1  
Reply Thu 21 Oct, 2004 01:54 am
Foxfyre wrote:
Kerry didn't say he wouldn't appoint judges who wanted to overturn Roe v Wade. Bush wouldn't appoint such a judge either.


Rolling Eyes
0 Replies
 
Foxfyre
 
  1  
Reply Thu 21 Oct, 2004 02:17 am
Okay, I put in too many negatives there. Kerry will appoint judges who support Roe v Wade and all forms of abortion. He has said as much. I would be surprised if Bush would even ask a judge about his/her views on Roe v Wade or abortion but would rather ask his/her views on the law and administration of opinion based on interpretation of law and Constitutional principles. Bush does NOT want judges who make law from the bench. Kerry does. That's the difference.
0 Replies
 
Einherjar
 
  1  
Reply Thu 21 Oct, 2004 02:23 am
Any judge "makes law from the bench". And Bush has made it perfectly clear that he would only apoint Judges who "understand that our rights are derived from god", meaning christian judges who wear their religion on their sleeve, making any inquiery innto that judges opinion on Roe vs Wade superfluous.
0 Replies
 
mesquite
 
  1  
Reply Thu 21 Oct, 2004 11:17 am
Foxfyre wrote:
What goes on the privacy of the home beween consenting adults is nobody's business and I don't know any conservatives or liberals who think it should be. I know there are some nuts out there who favor some kind of morality policing, but they have to be a tiny tiny majority and come from the far ends of both left and right. (Extreme conservatives might not want you to have weird sex while extreme liberals don't want you to smoke or wear fur, etc.)

And you make that statement as a former Texan that has expressed familiarity with the Texas Republican Party Platform from which are these excerpts?
Quote:
Homosexuality - The Party believes that the practice of sodomy tears at the fabric of society, contributes to the breakdown of the family unit, and leads to the spread of dangerous, communicable diseases. Homosexual behavior is contrary to the fundamental, unchanging truths that have been ordained by God, recognized by our country's founders, and shared by the majority of Texans. Homosexuality must not be resented as an acceptable "alternative" lifestyle in our public education and policy, nor should "family" be redefined to include homosexual "couples." We are opposed to any granting of special legal entitlements, recognition, or privileges including, but not limited to, marriage between persons of the same sex, custody of children by homosexuals, homosexual partner insurance or retirement benefits. We oppose any criminal or civil penalties against those who oppose homosexuality out of faith, conviction, or belief in traditional values.
Texas Sodomy Statutes - The Party opposes the legalization of sodomy. The Party demands Congress exercise its
authority granted by the U.S. Constitution to withhold jurisdiction from the federal courts from cases involving sodomy.

Texas Republican Party Platform

I am not sure what you mean by "a tiny tiny majority", is that like 50.001% ? Whatever number though, it appears to be large enough for the republican party to suck up to.
0 Replies
 
Platypus
 
  1  
Reply Thu 21 Oct, 2004 04:05 pm
For anyone interested in this, there was a surprisingly good article about this (general) theme in yesterday's Boston Globe.
Quote:
In her prepared remarks, Marshall said: "Judges do become the focus of attack politics. It has been so since our country's founding and is certainly evident in the heated political climate today."

But, she added, "It would be foolish, in my judgment, to heed the voices of those who would curtail a judge's independence. . . . It would be foolish to tinker with the [John] Adams model of constitutional government that has served us so well for more than two centuries."
0 Replies
 
Baldimo
 
  1  
Reply Thu 21 Oct, 2004 06:25 pm
mesquite wrote:
Foxfyre wrote:
What goes on the privacy of the home beween consenting adults is nobody's business and I don't know any conservatives or liberals who think it should be. I know there are some nuts out there who favor some kind of morality policing, but they have to be a tiny tiny majority and come from the far ends of both left and right. (Extreme conservatives might not want you to have weird sex while extreme liberals don't want you to smoke or wear fur, etc.)

And you make that statement as a former Texan that has expressed familiarity with the Texas Republican Party Platform from which are these excerpts?
Quote:
Homosexuality - The Party believes that the practice of sodomy tears at the fabric of society, contributes to the breakdown of the family unit, and leads to the spread of dangerous, communicable diseases. Homosexual behavior is contrary to the fundamental, unchanging truths that have been ordained by God, recognized by our country's founders, and shared by the majority of Texans. Homosexuality must not be resented as an acceptable "alternative" lifestyle in our public education and policy, nor should "family" be redefined to include homosexual "couples." We are opposed to any granting of special legal entitlements, recognition, or privileges including, but not limited to, marriage between persons of the same sex, custody of children by homosexuals, homosexual partner insurance or retirement benefits. We oppose any criminal or civil penalties against those who oppose homosexuality out of faith, conviction, or belief in traditional values.
Texas Sodomy Statutes - The Party opposes the legalization of sodomy. The Party demands Congress exercise its
authority granted by the U.S. Constitution to withhold jurisdiction from the federal courts from cases involving sodomy.

Texas Republican Party Platform

I am not sure what you mean by "a tiny tiny majority", is that like 50.001% ? Whatever number though, it appears to be large enough for the republican party to suck up to.


If you really think that all Republicans think this way then you are wrong. I don't agree with homosexuality but I wouldn't want a law that restricted it. Let people do what they wish in the privacy of their own home. When that behavior appears outside of the home or hurts those in the home then the law should step in, but only then. I do think that the federal court system should stay out of state politics.
0 Replies
 
mesquite
 
  1  
Reply Thu 21 Oct, 2004 08:08 pm
Baldimo wrote:
If you really think that all Republicans think this way then you are wrong. I don't agree with homosexuality but I wouldn't want a law that restricted it. Let people do what they wish in the privacy of their own home. When that behavior appears outside of the home or hurts those in the home then the law should step in, but only then. I do think that the federal court system should stay out of state politics.


Baldimo, it is not a matter of what I think republicans think. It is obvious that at least the republican leadership thinks this way, since they put it in the party platform. What I quoted was direct from the 2004 platform. Did you check the link? Those quotes also were only to respond to one particular statement. The document is loaded with the mixing of religion and politics.

Texas Republican Party Platform
0 Replies
 
Finn dAbuzz
 
  1  
Reply Thu 21 Oct, 2004 10:24 pm
Re: The concept of 'activist judges'
Debra_Law wrote:


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.

Is not a legislative system where a large group of individuals, serving at the pleasure of the citizens, enact laws more consistent with the notion of democracy than one where a relative handful of appointed individuals, serving (for all intents and purposes), for life, do so?

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.

Agreed, when their judgment of what punishment is disproportionate to which crimes can, without ambiguity, be predicated upon a clearly expressed intent of the Constitution or is consistent with the prevailing sense of equity within society.

Judicial intervention in the hanging of a modern day horse thief would hardly cause a stir in the general populace. Not so, however, in the case of a convicted murderer. Perhaps someday society's prevailing sense of equity will not include executing murderers, but this isn't the case now, and it isn't the role of judges to advance their personal notion of social evolution.

Every judicial intervention is not a defense against mob rule.


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.

Of course it is and Scalia is hardly arguing otherwise.

The point of disagreement arises in determining when the voters or their elected representatives are acting in an unconstitutional manner.

That determination is not to be based on the personal sense of equity or morality of any judge. It must rest upon a legal foundation.

So called activist judges are those who consistently seek to break new ground, who seek to speed up their vision of social evolution.

That their vision may coincide with mine or yours doesn't make them right.
0 Replies
 
au1929
 
  1  
Reply Fri 22 Oct, 2004 09:52 am
WASHINGTON Soon after President George W. Bush took office, two events set in motion an extraordinary battle between the White House and Senate Democrats over the appointment of federal judges..
First, the new president and his aides turned to the Federalist Society, a conservative lawyers' group, to help select candidates..
When Bush announced his first batch of nominees, 8 of 11 had been proposed by the society. There could be no clearer signal that Bush intended to follow the pattern set by the elder George Bush and Ronald Reagan of shifting the courts rightward and reaping the political benefit of pleasing social conservatives..
Then, at a weekend retreat in April 2001, Democratic senators adopted an aggressive new strategy in dealing with judicial candidates. .
Under Bush's Republican predecessors, the Democrats believed they could block only a candidate with some egregious fault. But that weekend, two prominent law professors and a women's rights lobbyist urged the senators to oppose even nominees with strong credentials and no embarrassing flaws, simply because the White House was trying to push the courts in a conservative direction..
Now, after more than three years of battles over judicial appointments, Bush's ambitions for the courts are clear, but his record is mixed. He has succeeded in placing staunch conservatives on the bench in many cases, but has been foiled in others by Senate Democrats like Charles Schumer of New York who charge him with trying to "create the most ideological bench in history.".
The conflict between the White House and the Democrats has been particularly sharp, in part because Democrats reasoned that Bush could not claim any mandate to remake the courts, given his contested election victory over Al Gore. .
With Americans now preparing to elect a president who will almost certainly have an opportunity to name at least one Supreme Court justice, Democrats and Republicans remain deeply entrenched in their positions over who belongs on the bench..
Bush has said that the Democrats have been "playing shameful politics" with judicial confirmations and that his choices deserve a straight up-or-down vote, which they would presumably win. Of the 45 or so appeals courts candidates who have gone to the Senate floor, the Democrats have blocked 10, going so far as to use a filibuster to stop consideration. The Republicans hold a slim majority with 51 votes, but overcoming a filibuster requires 60 votes..
Democrats argued that they were justified in going to such extraordinary lengths, in part because the Republicans had not given many of President Bill Clinton's judicial choices a hearing, effectively keeping seats vacant until a Republican was in the White House. .
And at their 2001 retreat, the Democrats were persuaded by two professors, Laurence Tribe of Harvard and Cass Sunstein of the University of Chicago, and by Marcia Greenberger, the co-president of the National Women's Law Center, that the federal courts were at a critical juncture..
Underlying all of the political maneuvering is a rich debate over whether and how much candidates' philosophies and records influence what kind of judge they will be..
Republicans have largely stuck to a script, saying it does not matter who is put on the bench as long as they are solid lawyers. On a recent campaign trip, Bush suggested he paid little attention to the ideology of his judicial choices..
"I don't have a litmus test," he said. "When the nominees come before people in my administration, we don't say, 'What is your specific position?' on that issue or another issue. What we say to the person is, 'What is your judicial temperament? Will you be willing to faithfully interpret the law?"'.
But his critics note that Bush's judge-selectors do not have to ask about issues like abortion. Many of the judicial candidates already have strong and unambiguous records opposing legalized abortion. For example, some of Bush's appeals court nominees have called abortion "a sin" and "an abomination" and the Supreme Court's ruling legalizing the procedure immoral and "the court's most awful ruling.".
.
Because most of Bush's nominees come before the Senate Judiciary Committee with clear conservative records, the confirmation hearings have produced a ritual in which candidates say under questioning from friendly Republican senators that they would never allow personal views to influence their decisions but would simply follow the law. Democrats say they find that implausible and argue that these candidates were chosen only because of their firmly expressed conservative views..
.
One of the underlying factors to the battles between Bush and the Senate Democrats was the widespread belief that they were dress rehearsals for a larger battle they would soon fight over at least one, and probably a few, Supreme Court nominees. At the start of the president's term, the nine justices had been together for about 10 years without a change in the lineup, something that had not occurred since the early 19th century. Moreover, three were older than 70..
White House aides were so confident that Bush would have a chance to nominate at least one justice in his first term that they compiled a list of candidates. But none of the justices retired, and no one expects any to do so before the presidential election..
That list of possible nominees is still operative, senior Republican advisers say, though some of the political calculations may have changed because of the Democrats' willingness to wage a confirmation fight. At the top of the list is Alberto Gonzales, the White House counsel and a Bush confidante. Gonzales, who still likes to be called "Judge Gonzales" for his two years on the Texas Supreme Court, would be the first Hispanic member of the Supreme Court..
.
But a Gonzales nomination could be hampered by questions about his role in overseeing the drafting of legal memorandums that appeared to allow American forces to mistreat prisoners in Iraq and elsewhere in certain circumstances..
The other leading candidate remains Judge J. Harvie Wilkinson 3rd, who sits on the United States Court of Appeals for the Fourth Circuit, based in Richmond, Virginia. He is likely to be palatable to many Democrats and was a protégé of the late Justice Lewis Powell, who was widely admired..
Wilkinson turned 60 in September, and Republicans, more than Democrats, have shown a preference for younger candidates, who will have longer judicial careers ahead of them and thus greater influence..
That increases the prospects of Judge J. Michael Luttig, 50, who sits on the same court as Wilkinson..
0 Replies
 
 

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