Bush Picks Judge Samuel Alito for Supreme Court

Slave owners -- in that time they would have had cases coming before them that would determine whether the civil rights of blacks were constitutionally protected, even whether they were or were not property.

It seems like they might have a uniquely one-sided perspective in a matter such as that. Likewise, a court of all men might surprise me in ruling for women's reproductive rights, but I wouldn't expect them to be able to see the far reaching implications the way that just one woman could.

The matter of perspective is, I think, about the only real argument I can make against having a homogeneous court.

Five justices isn't a very big majority so it's hard for me to take issue just yet, but were it seven justices from similar background, I might start to argue for diversity.

We want the best,no matter what race,religion,or sex they are.

FreeDuck wrote:

The matter of perspective is, I think, about the only real argument I can make against having a homogeneous court.

Maybe it's because our constitutional philosophies are different. If you believe in "the living constitution" or something to that effect, I can see why diversity of perspectives is important. But if you believed in originalism as I do, you might find that a black justice's perspective on civil rights is about as pertinent to deciding cases as a woman's perspective on C++ is to software engineering.

Why is the membership of the Court comprised largely of white, male, Catholic, eastern, and professionally-insulated justices? Is it truly because they are the BEST? What does the current composition of our nation's highest court truly reflect? What message does it send?

When the justices--who are persons and not machines--decide cases and controversies, they are required to use JUDGMENT.

I refer you to the Amistad,a slave ship that was taken over by slaves.

Maybe it's because our constitutional philosophies are different. If you believe in "the living constitution" or something to that effect, I can see why diversity of perspectives is important. But if you believed in originalism as I do, you might find that a black justice's perspective on civil rights is about as pertinent to deciding cases as a woman's perspective on C++ is to software engineering.

If one views the justices as mere oracles of the law -- mouthpieces for the sayings of the judicial gods -- then the composition of the court is truly irrelevant. Indeed, it would hardly matter what their qualifications were, as long as they were committed to a strict policy of originalism.

Debra_Law wrote:

Why is the membership of the Court comprised largely of white, male, Catholic, eastern, and professionally-insulated justices? Is it truly because they are the BEST? What does the current composition of our nation's highest court truly reflect? What message does it send?

The honest answer to these questions is "I don't know". I also don't know why about 90% of all people in my own profession are male. (I'm a physicist.) Thinking back to my high school days, I don't remember the girls being particularly less talented than the boys. I just don't think it follows that such conspicuous deviations from the average are necessarily the evidence of something bad in the profession of physics. And the same applies to the diversity of the Supreme Court.

Debra_Law wrote:

When the justices--who are persons and not machines--decide cases and controversies, they are required to use JUDGMENT.

I agree, but so is the programmer of computer software. In the analogy I hinted at, the judge corresponds to the programmer, not the computer; the facts correspond to a problem specification that the program is supposed to model and solve; the law corresponds to the programming language and its formal rules; applying the facts to the law corresponds to implementing the specification in the programming language; and the decisions correspond to the code being written. (I guess law enforcement would correspond to the behavior of the program, but we didn't get that far.) I am not saying this is a perfect analogy. It shouldn't be too hard to find holes in it, and I didn't find it too important when I mentioned it to FreeDuck, who develops software for a living as I do. I think she understood what I had meant by it, but the analogy you competently refuted, Debra, is not the analogy I had made. Perhaps I ought to be more careful with my analogies in the future.

I'm sure you just misspoke, but judges do not apply the facts to the law. Judges apply the law to the established facts.

I think you are saying if judges, regardless of their diverse perspectives, apply the Constitution in accordance with the "original intent" of the framers and ratifiers of the Constitution to the established facts of the case, the outcome will always be correct?

The Constitution was designed to secure the blessings of liberty--not just for the generation that ordained and established the Constitution--but for all future generations.

The Constitution was designed to endure as society progressed in order to address the issues that future generations would face. Our courts cannot judge the legitimate interests of government today through a lens that is over 230 years old; they must apply present day standards and that's where a diversity of perspective is helpful for the judges to reach a considered judgment that truly secures liberty and justice for all while giving due deference to the legitimate interests of modern-day government.

You believe Roe v. Wade was decided incorrectly. According to you, a woman does not have a liberty interest in her own procreative destiny that is secured by the Constitution. If that is true and judges are the programmers, what law would they need to plug into the program to achieve the "correct" result?

Debra_Law wrote:

The Constitution was designed to secure the blessings of liberty--not just for the generation that ordained and established the Constitution--but for all future generations.

I agree. That's why the constitution specifies an amendment process.

Debra_Law wrote:

The Constitution was designed to endure as society progressed in order to address the issues that future generations would face. Our courts cannot judge the legitimate interests of government today through a lens that is over 230 years old; they must apply present day standards and that's where a diversity of perspective is helpful for the judges to reach a considered judgment that truly secures liberty and justice for all while giving due deference to the legitimate interests of modern-day government.

I disagree with your premise here; but if I agreed with it, I would also be agreeing with your conclusion about diversity.

Debra_Law wrote:

You believe Roe v. Wade was decided incorrectly. According to you, a woman does not have a liberty interest in her own procreative destiny that is secured by the Constitution. If that is true and judges are the programmers, what law would they need to plug into the program to achieve the "correct" result?

I am not sure what you mean by "correct result" here. If you are asking what I think would have happened if the Burger court had correctly applied the current federal constitution to the facts of Roe, my answer is that the constitution says nothing about abortion, and that the case ought therefore be decided by the laws of the state of Texas.

I know nothing about the Texas constitution, so for all I know it may have contained a clause from which Roe's counsel might have derived a protected right to terminate a pregnancy on demand. But I don't see such a clause in the federal constitution.

In particular , I believe that "women have a right to on-demand abortion" does not follow from "nor shall any state deprive any person of life, liberty, or property, without due process of law". To answer the second sentence of your paragraph I just quoted, I do assume women have a liberty interest in their own procreative destiny, but I see no evidence that the "process" in the state of Texas was not "due". I think the Roe decision is an example of substantive due process run awry. I don't mean to argue the merits of this right now -- for the sake of our diversity argument, I am willing to assume that my opinion here is wrong. I'm just saying that I would not view this question of constitutional law differently if I was an originalist woman rather than an originalist man. By contrast, I might well view it differently if I was a "living constitution" woman, as compared to a "living constitution" man.

If your question assumes that the result of Roe was correct, and you are asking how the constitution would have had to be different to make Blackmun's conclusions correct, I can think of several answers. One is a clause that explicitly says: "persons have a right to live beginning at time x." If x means "the date of birth", all abortions are legal. If it means "the moment of conception", all abortions are illegal except when they are necessary to save the mother's life. A different solution -- one that Germany's constitution adopts in its kinda-bill-of-rights -- is to add to the more abstract amendments a clause like: "The details shall be regulated by a federal statute". That way, the German parliament lays down many of the specifics that our bill of rights lays out in the abstract. So far, it has been a workable and ethically satisfactory approach for us. I don't see why it wouldn't work in the United States.

Debra -- you and I differ on many things, and I'd prefer it if we could argue out our disagreements one at a time. In the posts you were responding to, I mostly tried to make clear why I think that diversity is more important for adherents to the "living constitution" than for originalists. The comparative merits of originalism verus the "living constitution" are also an interesting topic. But it is independent of the diversity issue, which is what I was trying to talk about. If you don't mind, I would like to settle the diversity question before we move on.

So, do we agree or disagree that diversity among Supreme Court judges is more important if the court follows a "living constitution" approach than if it follows an originalist approach?

"Many provisions of the Constitution, however, are drafted in general terms. This creates flexibility in the face of unforseen changes, but it also creates the possibility of alternative intepretations, and this possibility is an embarrassment for a theory of judicial legitimacy that denies that judges have any right to exercise discretion. A choice among semantically plausible interpretations of a text, in circumstances remote from those contemplated from its drafters, requires the exercise of discretion and the weighing of consequences. Reading is not a form of deduction; understanding requres a consideration of consequences. If I say, "I'll eat my hat, "one reason why my listeners will "decode" the meaning of this statement in nonliteral fashion is that I couldn't eat a hat if I tried. The broader principle which applies to the Constitution as much as to a spoken utterance, is that if one possible interpretation of an ambiguous statement would entail absurd or terrible results, that is a good reason to reject it.

Even the decision to read the Constitution narrowly, and thereby to "restrain" judicial interpretation, is not a decision that can be read directly from the text. The Constitution does not say, "Read me broadly, or, "Read me narrowly" THE DECISION TO DO ONE OR THE OTHER MUST BE MADE AS A MATTER OF POLITICAL THEORY AND WILL DEPEND ON SUCH THINGS AS ONE'S VIEW OF THE SPRINGS OF JUDICIAL LEGITIMACY AND THE RELATIVE COMPETENCE OF COURTS AND LEGISLATURES IN DEALING WITH PARTICULAR TYPES OF ISSUE>"

It is especially telling that the framers and ratifiers themselves never intended that their 18th Century thoughts or views should be controlling. [/url]
Is this an interpretation on your part or a historical fact? If it's the latter, what is your evidence for it.

[quore="Debra, quoting Kennedy"]"Had those who drew and ratified the due process clauses. . . known the components of Liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew that times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

Closed-minded they were -- as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society's law-trained elite) into our Basic Law.

Even Justice Scalia who hypocritically says he applies a "dead" constitution acknowledges that our Constitution is not exactly dead, but rather enduring.

[The drafters of the constitution] could not see into the future and provide a specific provision for every conceivable issue that could possibly arise hundreds of years in the future. Nevertheless, they provided future generations with broadly applicable constitutional principles embodied in the text of the constitution itself that would survive for all time.One of those concepts was "due process of law" that embraced both substantive fairness and procedural fairness.