Judge Roberts' Senate Hearings

Thomas is incorrect about the supposed "purge". Alan Simson retired from the Senate because he was weary of it. (He, by the way is a close friend and admirer of Dick Cheney). I am speaking here from personal knowledge.

What has happened is that, after a very long period in the minority, the Republicans have finally assumed control of the Congress. The majority party always, of necessity, is far more effectively organized than the relatively impotent minority. Republican control, and internal discipline is a rather pale thing compared to what the Democrats exercised when they controlled the Congress - both House and Senate.

The shades of Sam Rayburn and numerous Senate Democrat Barons rise up in indignation over Thomas' ill chosen phrase. Rove and Delay are minor practicioners of the arts they exercised for so long.

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Debra_Law wrote:

I don't see anything in the Constitution that specifically says you have a "right to physical integrity."

Gee whiz. Maybe our constitutionally secured rights of life and liberty have meaning and substance? Do you think we can give those concepts some substance to protect people from unreasonable government interference into our private lives? Hmmmmm.

Your comments are irrelevant to my point which was that it is wrong to read things into the Constitution which it doesn't say.

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Thomas wrote:

I hear you've done your share of subversion too.

Straying on-topic for a moment: When I compare the Rogers hearings to earlier confirmation hearings, the trend I find most remarkable is the declining number of Republican senators who ask their own nominees good, tough questions. Arlen Specter seems to be the last one left. In the late eighties there were quite a few more of them. Unfortunately I didn't have the presence of mind to write down their names, and Google doesn't yet let you search for the image of a face you have in your mind. But Alan K. Simpson of Wyoming, for one, belonged to this old-fashioned brand of Republican senators I'd like to see more of -- but don't. It seems they all got swept away in the Rove-, DeLay-, Grassley- purge of the late nineties, which I find shameful and tragic.

that's my take as well, thomas. simpson was a tough old bird.

i thought specter did a damn good job (though i missed the first 5 or so minutes), and was pretty non-partisan, as that goes...

the rest? eehhh... no surprise though, really.

still wouldn't be surprised if some of the republicans gave roberts a thumbs down for not giving the big signal that he'll kill off roe once and for all.

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Maybe it's just me, but does anyone else think that Judge Roberts looks Ollie North? It's just a tad creepy.

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georgeob1 wrote:

The shades of Sam Rayburn and numerous Senate Democrat Barons rise up in indignation over Thomas' ill chosen phrase. Rove and Delay are minor practicioners of the arts they exercised for so long.

I'll take your word for it. For what it's worth, Wikipedia disagrees with you. But the "purge" was not the most important part of my point, and I won't insist on it for now. My most important observation was the apparent trend of declining internal quality control. As I said, Simpson and Specter were not the only tough senators I noticed in the hearings of the late 80s, just the only ones whose names I remember. (Orrin Hatch had a lot more bite 10-20 years ago too.) It's not just on the Republican side either -- Joe Biden, for example, definitely featured more substance and less self-important posing in the Scalia and Bork hearings than he does now. But from looking at those old videos, there definitely seems to be a trend of sacrificing quality control to partisan cheerleading, and that worries me. And, sorry George, the trend looks more conspicuous to me on the Republican side than on the Democratic side.

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glitterbag wrote:

Maybe it's just me, but does anyone else think that Judge Roberts looks Ollie North? It's just a tad creepy.

You hit the nail right on the head!!!

They all look like blue eyed ROBOTS!! It's like Ollie North spawned a clone!! AAHHH, THEY ARE CLONING THEM!!!! AAHH!!! Shocked

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Thomas wrote:

But the "purge" was not the most important part of my point, and I won't insist on it for now. My most important observation was the apparent trend of declining internal quality control. As I said, Simpson and Specter were not the only tough senators I noticed in the hearings of the late 80s, just the only ones whose names I remember. (Orrin Hatch had a lot more bite 10-20 years ago too.) It's not just on the Republican side either -- Joe Biden, for example, definitely featured more substance and less self-important posing in the Scalia and Bork hearings than he does now. But from looking at those old videos, there definitely seems to be a trend of sacrificing quality control to partisan cheerleading, and that worries me. And, sorry George, the trend looks more conspicuous to me on the Republican side than on the Democratic side.

I agree with all of that. In particular I believe the now very well organized single interest groups across the political spectrum, but most powerful on the left, have left the Senators playing to their well-funded and powerful constituencies more than acting on their own beliefs.

My point was that the majority party always finds it necessary and beneficial to exercise some discipline within its ranks. Moreover their majority status gives their leaders the muscle required to exercise that discipline. Historically the strongest and most authoritarian leaders in the House and Senate were Democrats - Lyndon Johnson, Mike Mansfield, William Fullbright in the Senate and. most notably, Sam Rayburn in the House. They wrote the book on monolithic party control of their members, and the current crop of Republicans (Rove and Delay included) are, at best, a very weak and pale imitation.

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Brandon9000 wrote:

Debra_Law wrote:
I don't see anything in the Constitution that specifically says you have a "right to physical integrity."

Gee whiz. Maybe our constitutionally secured rights of life and liberty have meaning and substance? Do you think we can give those concepts some substance to protect people from unreasonable government interference into our private lives? Hmmmmm.

Your comments are irrelevant to my point which was that it is wrong to read things into the Constitution which it doesn't say.

The Constitution doesn't say a lot of things. But it does say one of the purposes of the Constitution is to secure the blessings of liberty to all; it does say that no person should be deprived of life, liberty, or property without due process of law. So what is liberty? What is due process of law? When and how may the government interfere in your private life without violating your constitutionally-protected rights to life and liberty?

Don't YOU have a constitutionally-protected fundamental life and iberty interest that would protect you from governmentally-enforced sterilization?

The fact that you don't understand the meaning of life and liberty . . . the things this country was founded upon . . . makes you ignorant. The Constitution does not need to set forth a specific laundry list of protected life and liberty interests because it protects them all without listing them. That's the relevant point that completely soars over your "strict constructionist" head.

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Debra -- If you were a judge, hearing a case, and one of the parties claimed it had a right under the constitution that was not previously on anybody's 'laundry list'. What arguments by the other party would convince you that the alleged right is not, in fact, a constitutionally protected one?

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Debra_Law wrote:

The fact that you don't understand the meaning of life and liberty . . . the things this country was founded upon . . . makes you ignorant. The Constitution does not need to set forth a specific laundry list of protected life and liberty interests because it protects them all without listing them. That's the relevant point that completely soars over your "strict constructionist" head.

Is Brandon really ignorant? If no "laundry list..." is needed, why then was the Bill of rights added to the constitution?

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Debra_Law wrote:

Brandon9000 wrote:
Debra_Law wrote:
I don't see anything in the Constitution that specifically says you have a "right to physical integrity."

Gee whiz. Maybe our constitutionally secured rights of life and liberty have meaning and substance? Do you think we can give those concepts some substance to protect people from unreasonable government interference into our private lives? Hmmmmm.

Your comments are irrelevant to my point which was that it is wrong to read things into the Constitution which it doesn't say.

The Constitution doesn't say a lot of things. But it does say one of the purposes of the Constitution is to secure the blessings of liberty to all; it does say that no person should be deprived of life, liberty, or property without due process of law. So what is liberty? What is due process of law? When and how may the government interfere in your private life without violating your constitutionally-protected rights to life and liberty?

Don't YOU have a constitutionally-protected fundamental life and iberty interest that would protect you from governmentally-enforced sterilization?

The fact that you don't understand the meaning of life and liberty . . . the things this country was founded upon . . . makes you ignorant. The Constitution does not need to set forth a specific laundry list of protected life and liberty interests because it protects them all without listing them. That's the relevant point that completely soars over your "strict constructionist" head.

Thomas wrote:

Debra -- If you were a judge, hearing a case, and one of the parties claimed it had a right under the constitution that was not previously on anybody's 'laundry list'. What arguments by the other party would convince you that the alleged right is not, in fact, a constitutionally protected one?

What right are you suggesting?

How about a state or national prohibition against wearing hats? Does the constitution protect your right to wear a hat?

So long as an individual is exercising a life, liberty, or property interest that doesn't harm another person, I believe that interest is entitled to constitutional protection and may not be infringed unless the government has a rational, important, or compelling interest in infringing that right and that the means used are reasonably tailored or necessary to serve that interest.

Even though the Constitution does not specifically say that Congress shall pass no law infringing upon a person's right to wear a hat, I cannot think of a rational government interest that would support a law that prohibits a person from wearing a hat. However (to answer your question), if the government presented reasonable arguments that convinced me that wearing hats caused injury or death to others, then maybe I would rule that the alleged right to wear a hat was not protected by the constitution.

george wrote:

Is Brandon really ignorant? If no "laundry list..." is needed, why then was the Bill of rights added to the constitution?

George:

To understand why a Bill of Rights was added to the Constitution, you will need to read at length about the historical debates between the federalists and the anti-federalists. See, for example, the following:

http://www.libertystory.net/LSUNFORGETBATTLEFORBILLRIGHTS.htm

The anti-federalists feared a strong central government and wanted concrete, written security against possible tyranny. The federalists, on the other hand, argued that a bill of rights was unnecessary. After all, why should the constitution state that government shall not have the power to do this or that when government wasn't granted the power to do this or that in the first place? The federalists feared that the addition of a bill of rights would be more harmful than helpful to preserve the people's liberty interests from governmental infringement.

One federalist, Massachusetts Congressman Theodore Sedgwick, was not interested in a bill of rights. He said this was like declaring “that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper.” How could a bill of rights possibly spell out all the rights the people retained when they formed the government?

To ensure that other rights not specifically "enumerated" in the Constitution would also be protected against governmental infringement, the people approved and ratified the Ninth Amendment (1791):

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Just because the constitution does not specifically list all of your life and liberty interests (it's impossible to list them all), that doesn't mean the government has the power to deny or disparage those unlisted life or liberty interests.

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I am quite familiar with the early history of the country and the dialogue & political action that preceeded the Bill of Rights. However your proposition was in essence that the life & liberty phrase was, by definition, inclusive, and it is therefore evident that just about anything you desire can be included in it. The facts behind the addition of the Bill of Rights themselves provide a vivid demonstration that the framers - or at least many of them - did not accept your proposition.

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Thomas wrote:

Debra_Law wrote:
I don't see anything in the Constitution that specifically says you have a "right to physical integrity."

No, but it was implied in the original meaning of the "right to life".

Debra_Law wrote:
Gee whiz. Maybe our constitutionally secured rights of life and liberty have meaning and substance? Do you think we can give those concepts some substance to protect people from unreasonable government interference into our private lives? Hmmmmm.

These concepts already had well-understood meanings and substance when they were written into the constitution. And even the staunchest strict constructionists agree that the specifics of that substance can change with technical progresss -- Bork's example in The Tempting of America is that wiretapping a phone is a search under the Fourth Amendment, even when the wiretappers never enter the house. The disagreement is that according to strict constructionists, courts cannot find new substances and new meanings in the text, principles that were not understood to be in there when the constitunal provision was passed. Their opposition thinks that courts ought to have much more leeway as they interpret the text.

I confess I'm having a hard time over here deciding if you honestly don't know that or if you are deliberately attacking a straw-man version of strict constructionism for rhetorical effect. I am inclined to bet on the latter.

I'm using sarcasm to attack Brandon's ignorant notion that if the constitution doesn't specifically spell out a right, it doesn't exist.

This is the same moronic, idiotic, moronic (oh, I already said that), ignorant train of thought that spurred the majority (White, Burger, Powell, Rehnquist, & O'Connor) in Bowers v. Hardwick to frame the issue in this manner:

The majority wrote:

. . . The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time. . . .

. . . Striving to assure itself and the public that announcing rights not readily identifiable in the Constitution's text involves much more than the imposition of the Justices' own choice of values on the States and the Federal Government, the Court has sought to identify the nature of the rights qualifying for heightened judicial protection. In Palko v. Connecticut, 302 U.S. 319, 325 , 326 (1937), it was said that this category includes those fundamental liberties that are "implicit in the concept of ordered liberty," such that "neither [478 U.S. 186, 192] liberty nor justice would exist if [they] were sacrificed." A different description of fundamental liberties appeared in Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (opinion of POWELL, J.), where they are characterized as those liberties that are "deeply rooted in this Nation's history and tradition." Id., at 503 (POWELL, J.). See also Griswold v. Connecticut, 381 U.S., at 506. . .

http://laws.findlaw.com/us/478/186.html

The majority ruled that the constitution did not protect sexual relations between consenting adults from criminalization, the majority upheld the conviction.

Justices BLACKMUN, BRENNAN, MARSHALL, and STEVENS, dissented:

Quote:

This case is no more about "a fundamental right to engage in homosexual sodomy," as the Court purports to declare, ante, at 191, than Stanley v. Georgia, 394 U.S. 557 (1969), was about a fundamental right to watch obscene movies, or Katz v. United States, 389 U.S. 347 (1967), was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about "the most comprehensive of rights and the right most valued by civilized men," namely, "the right to be let alone." Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

We the people have a right to privacy! We have a right to be left alone. The government has no damn business sticking it's nose into our private lives and liberty interests unless we're acting in a manner that causes injury or death to others.

The government cannot commandeer our bodies and force us to breed or procreate or serve as incubators for children we don't want against our will nor can the government sterilize us against our will. The government cannot enter the bedrooms of consenting adults and dictate who we may or may not have sex with nor what sex acts are permissible or impermissible.

It doesn't matter whether the moral majority who lived in 1776 or those who live in 1986 would have approved or not approved before the constitution extends protection to our individual right to be left alone from governmental interference in our private lives. This is what is implicit in the concept of ordered liberty whether you or Scalia recognizes that fact or not.

In Lawrence v. Texas, the majority (Kennedy, Stevens, Souter, Ginsburg, and Breyer) of the court (with O'Connor filing a concurring opinion) finally got it right:

Quote:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions. . . .

. . . The Court began its substantive discussion in Bowers as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time." Id., at 190. That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. . . .

. . . It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992).

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georgeob1 wrote:

I am quite familiar with the early history of the country and the dialogue & political action that preceeded the Bill of Rights. However your proposition was in essence that the life & liberty phrase was, by definition, inclusive, and it is therefore evident that just about anything you desire can be included in it. The facts behind the addition of the Bill of Rights themselves provide a vivid demonstration that the framers - or at least many of them - did not accept your proposition.

I see you're putting a NEW SPIN on your previous comments. Here's what we were talking about:

Debra_Law wrote:
The fact that you don't understand the meaning of life and liberty . . . the things this country was founded upon . . . makes you ignorant. The Constitution does not need to set forth a specific laundry list of protected life and liberty interests because it protects them all without listing them. That's the relevant point that completely soars over your "strict constructionist" head.

George wrote:
Is Brandon really ignorant? If no "laundry list..." is needed, why then was the Bill of rights added to the constitution?

The issue we were discussing was what the Constitution says and what it does not say. Our protected life, liberty, and property interests have meaning and substance far beyond those few rights enumerated in the Bill of Rights. This is a concept that Brandon fails to grasp and I believe this falls into the category of ignorance.

Then you jump in and ask if Brandon is really ignorant . . . if no laundry list (of protected rights) is needed, why add the bill of rights to the constitution? I answered your question and my answer demonstrates the ignorance of Brandon's position.

Now you claim that your comments served some other purpose? Get real. If you want to argue some other point . . . argue it. But trying to put a new spin on your previous comments is a misleading tactic used to divert attention from what you really said.

The Bill of Rights specifically secures some rights, but not all rights. It is IMPOSSIBLE for any written document to set forth all possible rights with respect to every conceivable governmental denial or disparagement. That's why the ninth amendment exists. So, contrary to your accusation, the framers and ratifiers DID in fact accept my "proposition" that it is impossible for a written document to set forth all liberty interests that are protected from governmental deprivation or disparagement.

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CONFER

Debra wrote:

. . . This is the same moronic, idiotic, moronic (oh, I already said that), ignorant train of thought that spurred the majority (White, Burger, Powell, Rehnquist, & O'Connor) in Bowers v. Hardwick to frame the issue in this manner:

The majority wrote:
. . . The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time. . . .

I have another major CRITICISM with respect to INACCURATE and MISLEADING language used by the Supreme Court and many other courts.

The Constitution does NOT CONFER nor grant rights. It SECURES the inalienable rights (among others) to life, liberty, and the pursuit of happiness that we already had by virture of our birth and that we retained when we formed our republican form of government.

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Quote:

Roberts Nomination Sent to Full Senate

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President Bush's Efforts to Influence the Future
President Bush's Efforts to Influence the Future
By Alan Dershowitz
09.23.2005

Never before in American history has a president, elected by so few, sought to influence so many so far into the future. President George W. Bush is determined to have his hand-picked justices dominate the judiciary for the next 35 years. By nominating young ideologues to the Supreme Court and the appellate courts, Bush is essentially seeking to exercise power through his surrogates on the bench for many decades beyond his constitutionally permissible term.

Nor will this be his only legacy to our children and grandchildren. By creating an unimaginably large debt, he is burdening our progeny to the fourth and fifth generations. Finally, by bogging us down in Iraq for years to come, he will be exercising influence on our military and foreign policies well after his successor takes over the Oval Office.

All this from a President who came to office by losing the popular vote but winning the vote in the Supreme Court by 5-4, with the five all being loyal Republicans. He was then re-elected by the thinnest of majorities, and his current approval rating couldn't get him elected regardless of the number of justices he had in his pocket.

It is doubtful whether he now has a real "mandate" even to impose significant and controversial changes over the lives of Americans during his remaining few years in office, but how can anyone even begin to claim he has a mandate to influence the lives of Americans not yet born or not old enough to vote.

The framers of our Constitution never intended the lifetime appointment of justices to last 35 years. The average lifespan of an American at the time our Constitution was drafted barely exceeded 35 years. Our first president nominated 14 justices during his 8 year tenure because the average term a justice served was far less than 10 years.

There is no good reason, in constitutional or political theory, for the Senate to defer to the President's choice of justices or judges who will serve well beyond his term. There is good reason to defer to a president's choice of cabinet members who serve with him and only during his term. But these considerations have little relevance to the judiciary, which is an independent branch with life tenure.

Senators, especially those who are not asked to "advise" on the nomination, should feel no obligation to "consent" if they believe that the lifetime service of a nominee would not be good for our children and grandchildren.

On a more fundamental level, we should seriously consider term limits for the justices and judges - perhaps one non-renewable term of 15 years, with staggered resignations that would assure every president at least one nomination to the high court.

A system that made sense when life expectancy was in the 40s makes little sense at a time when life expectancies may soon reach into the 80s and 90s. It is too easy for an ideological president to exploit this system by appointing younger and younger and more and more ideological candidates to our courts. This is precisely what George W. Bush is doing, and the senate should not let him get away with it.

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There are two vacancies on the Supreme Court (and given the advanced age of other justices, more vacancies will soon arise). Despite Dershowitz's criticisms, those vacancies need to be filled.

The Constitution requires the President to appoint replacements subject to legislative consent. The position is not subject to "popular vote" by the people. The only question is whether the candidate has the good character and legal qualifications necessary to hold the position.

The only way to keep our courts fair and neutral is to provide judges with secure appointments to the bench unaffected by political pressures.

If we desire a limit on the term of years that a judge or justice may serve on the bench, the only way to achieve that is through a Constitutional amendment. Therefore, Dershowitz's conclusion that the SENATE should not let Bush get away with doing exactly what the Constitution provides is RIDICULOUS.

If Congress (not the SENATE alone) chooses to do anything (within its power), then let two-thirds of both houses propose a reasonable amendment to the Constitution to provide a limit on the term of years that a judge may sit on the bench and let the States decide the issue through the amendment ratification process.

United States Constitution, Article II (The Presidency):

Section 2. . . . He [the President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

United States Constitution, Article III (the Judiciary):

Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

United States Constitution, Article V (the Amendment Process):

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

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Roberts confirmed as chief justice

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It looks like all of the Democratic presidential hopefuls voted "No." No one wants to play the centrist card? Here are the votes (78-22):

Votes (WashPo)

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Judge Roberts' Senate Hearings

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