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Alito as Supreme Court Justice: Are you concerned?

 
 
ebrown p
 
  1  
Reply Fri 27 Jan, 2006 02:11 pm
slkshock,

Are you addressing that comment to the partisan ebrown, or to the non-partisan ebrown?

First the non-partisan...

You are right that polls show that most Americans favor his confirmation. We liberals have simply not made a convincing case. Because of that, either Monday, or Tuesday Alito will almost certainly be confirmed.

First and foremost I am arguing for the system (which incidently is working against me right now) that includes the right of a minority to filibuster in cases where the minority party can make a convincing political case to middle America (which again isn't happening right now).

Look at this from a non-partisan point of view... the system is working the way it should since there isn't the political will to filibuster. The lack of public support is a large part of this.

Now back to partisan ebrown.

I strongly oppose Alito and personally believe a filibuster is justified. I think it is sad that the Democratic party is unable to make the case for one.

I am a bit angry at the Democrats right now for failing to make a solid case. I feel an opposition party with a spine could make a very strong case against Alito that would appeal to the nearly half of Americans who opposed Bush in the last election.

But I am not going to blame the system for the failings of the Democratic party.
0 Replies
 
joefromchicago
 
  1  
Reply Fri 27 Jan, 2006 02:15 pm
ebrown_p wrote:
Your Constitutional argument is flawed.

The Constitution says "advice and consent" without defining what that means. It leaves it up to the Senate to figure out what it means to give "advice and consent".

We are arguing over two different standards of "advice and consent". The drafters of the Constitution specifically didn't set up a process with either one of these standards.

The fact is that under current Senate rules, the filibuster is a legal and viable tactic if 41 Senators feel strongly enough to make the political gamble.

You misunderstand my argument. I never said that, under today's rules, the Democrats are not permitted to utilize the filibuster. Indeed, it is quite clear that they (and the Republicans) can filibuster as much as they want. Furthermore, as I noted in connection with another judicial nomination:
    If the senate rules allow filibusters, then the fact that the senate is stalled due to a filibuster is as much an expression of the senate's advice as any vote.
So I agree with you: it is up to the senate to decide what the constitution means by its "advice and consent," and if the senate decides that "advice and consent" means the affirmative votes of sixty senators, then that's what it means.

I am not suggesting that the filibuster is illegal or unconstitutional (and I don't think the "nuclear option" has any constitutional merit whatsoever). I'm merely saying that the senate should dump the filibuster because it is antithetical to the principles of the constitution.

ebrown_p wrote:
This is the real crux of our argument.

The simple argument I am making is that-- especially in a Supreme Court selection-- this extra Check on the majority party is a good thing.

Of course this is a subjective argument.

With Alito, I am accepting reality. The filibuster will not work because there are not enough Senators from the minority party that feel strongly enough or have the political support to support it.

The partisan ebrown is disappointed with this result since, if I were Senator, I would be at the forefront of championing a filibuster of Alito.

The non-partisan ebrown points out that this result makes the point that the filibuster works. The system will only stop judges who are perceived as more extreme than Alito.

In such a case I feel comfortable that the filibuster is available.

And I am comfortable in predicting that someday the filibuster will be used against a nominee that you support.
0 Replies
 
Thomas
 
  1  
Reply Fri 27 Jan, 2006 02:27 pm
slkshock7 wrote:
You seem to be inferring that Alito is opposed by the majority of Americans, but polls do not show that. Most polls show Americans favor his confirmation, are negative to filibuster, but simultaneously are confident he won't work to overturn Roe V. Wade. I'm not a fan of polls, but characterizing him a "radical" appears to be a charge not shared by the majority.

This impression is confirmed when you look what the majority of poll respondents think about the issues. They oppose overturning Roe v. Wade, but approve of chipping away on its margins. A majority wants to trade of civil liberties for anti-terrorist measures, to the point that a small majority even approves of the warrantless wiretapping. A majority wants a larger role for religion in public life, as Alito is alleged to do. The widespread assertions that he is out of touch with the American mainstream are out of touch themselves.
0 Replies
 
timberlandko
 
  1  
Reply Fri 27 Jan, 2006 02:33 pm
ebrown_p wrote:
... We liberals have simply not made a convincing case.

A tradition of more than a decade's standing.


Quote:
... But I am not going to blame the system for the failings of the Democratic party.


That's fair. However, IMO The Democratic Party can't divorce itself from its role over the past decade in the matters of standing in opposition to and obstruction of the will of the electorate. That too has much to do with the electoral fortunes of The Democratic Party. With the likes of Dean, Kerry, Kennedy, Feinstein, Schumer, and Reed at the helm, the Democratic Party would be better off rudderless.
0 Replies
 
joefromchicago
 
  1  
Reply Fri 27 Jan, 2006 02:40 pm
Thomas wrote:
(1) When candidates for a court need super-majorities to get their jobs, broadly acceptable judges will run the courts. In Germany for example, judges need a 2/3 majority to get onto the constitutional court. All our judges and ex-judges from that court are highly respected. But we never had the kind of infantile love-hate relationships with any of them that Americans had with people like Warren, Brennan, or Scalia. (Yeah I know -- look who's talking! Smile ) I appreciate a good fight between Supreme Court judges, but would it really be so bad if Supreme Court judges needed to convince 60 Senators, not 50, that they ought to sit on that court? The obvious objection to argument #1 is that this is not what the constitution says. This is where #2 comes in.

See objection #1.

Thomas wrote:
(2) For all practical purposes, the American constitution does contain unwritten parts that deserve respect. I know this is a strange thing for an originalist to say, but my mind has opened somewhat to this as a side effect of my discussions with you. For example, nothing in your constitution says that there are nine Supreme Court justices. Yet only two presidents after the founding era -- Lincoln and FDR -- ever tried to use their constitutional discretion for a court packing. And only one -- Lincoln -- succeeded at it. Thus, for all practical purposes, the number of judges on the Supreme Courts is carved in stone. Why wouldn't the filibuster, a constitutional tradition of comparable standing, deserve a similar degree of respect?

FDR's court-packing scheme is an interesting analogy. A Democratic president, with both houses of congress controlled by the Democrats, was thwarted in his attempt to pack the court. There was no need for procedural gimmickry or resort to a legislative quirk to defeat FDR's plan. In that case, the system worked.

The number of justices on the supreme court is fixed at nine as much through political inertia as through respect for any unwritten constitutional tradition. And the filibuster has certainly merited less respect than that. After all, the senate changed its cloture rules twice in the twentieth century: in 1917 and again in 1975 (source). If the number of justices on the supreme court had changed twice in the past century, would you be giving that tradition the same amount of respect?

If the American people want an additional check in the constitutional scheme of checks and balances, then they should incorporate it into the constitution. If they think that we should have supermajorities for judicial nominations (or supermajorities for all legislation that passes through the senate), then they should be proposing a constitutional amendment to that effect.
0 Replies
 
ebrown p
 
  1  
Reply Fri 27 Jan, 2006 02:49 pm
Timber,

I think your use of the term "will of the electorate" is problematic (and an oversimplification). That would imply that Republicans always represent the "will of the electorate" which by any rational definition of that term is incorrect.

I see the exact opposite happening. The Republicans, particularly the Bush presidency, have been successful by appealing to their core-- which happen to be social conservatives. Many of the values are not in line with what Americans say they want.

The Republican party has been very good at having clear strong positions which are well to the right of the American mainstream-- but then explaining and "selling" them well to middle America.

In my view the Democrats should be more like the Republicans in this regard. The Democrat base should include those of us who oppose the Iraq war, want more spending on social programs and value civil rights over security.

Like the Republicans, the Democrats could strongly champion these core values and then explain their position to Americans at large. My values are no more extreme than the "Christian Conservatives" who are dancing in the streets about Alito.

Instead the Democrats are trying to be the moderate wing of the Republican party... and as such, instead of being seen as standing up for their core values, they are seen as "obstructionist".

A filibuster is a strong way to stand for core values. The issues involved with the Alito non-fight relate to what should be core Democratic principles-- the right to abortion, civil liberties and checks on executive power.

I don't know how much we agree on this...

But my belief is that if the Senate Democrats took a united stand against Alito which included a filibuster... combined with with a clear message about the principles they were standing on. And, if this were coupled with consistant action on related issues... I think that mainstream Americans could largely be persuaded.

Unfortunately no one with a voice is making a persuasive arguement... and perhaps we will never know if I am right or wrong.
0 Replies
 
Brandon9000
 
  1  
Reply Fri 27 Jan, 2006 02:50 pm
ebrown_p wrote:
Brandon9000 wrote:
After Alito takes his place on the SC, the new trend in the court's decisions will slowly move the country to the right, and all those annoying liberal ideas will be mostly forgotten by the average person. My only hope is that Bush gets to appoint another SC justice later.


Which "annoying liberal ideas" are you talking about. Civil rights? Interracial marriage? Secular education? Habeus Corpus?

No, I favor all those. I was thinking more about weak defense, no war no matter what the stakes, gay marriage, no action to regulate immigration, abortion (murder), legally mandated identicality of the sexes, a legally multilingual America, etc.
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timberlandko
 
  1  
Reply Fri 27 Jan, 2006 03:02 pm
ebrown_p wrote:
Timber,

I think your use of the term "will of the electorate" is problematic (and an oversimplification). That would imply that Republicans always represent the "will of the electorate" which by any rational definition of that term is incorrect.

Not always, just over the past decade or so - the Democratic Party steadily has been distancing itself from The Center, while the Republicans have appealed to it.

Quote:
I see the exact opposite happening. The Republicans, particularly the Bush presidency, have been successful by appealing to their core-- which happen to be social conservatives. Many of the values are not in line with what Americans say they want.

Nonsense - that The Republican Party has consolidated its grip on power, not just at the Federal but at State and Local levels as well, in the face of unceasing shrill complaint from The Left and the Mainstream Media demonstrates clearly that it is The Left and The Democratic Party which fails to recognize and reflect the mood and will of The Electorate.
Quote:
... I think that mainstream Americans could largely be persuaded.

Unfortunately no one with a voice is making a persuasive arguement... and perhaps we will never know if I am right or wrong.

And there you go - no persuasive argument ... that's the problem The Democrats have had for over a decade, and they're digging themselves deeper issue by issue. It is not that The Democrats need to persuade The Electorate to see things their way, it is that The Democrats fail to see things as does The Electorate.
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FreeDuck
 
  1  
Reply Fri 27 Jan, 2006 03:08 pm
I only see two real issues in that list of fairy tales: gay marriage and unregulated immigration. Your president favors the latter more than any liberals, and gay marriage is a worthy debate topic that would fall under "civil rights".
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ebrown p
 
  1  
Reply Fri 27 Jan, 2006 03:23 pm
Timber,

It is clear we disagree on what is "The Center".

Claiming that a Bush administration that is opposing anti-torture leglislation, wants to override Roe v. Wade, imprisons an American citizen without due process and wiretaps Americans without judicial oversight somehow represents "The Center" seems ludicrous to me. But that is your subjective designation and this argument is neither interesting or instructive.

I think gay marriage is a losing political issue for the Democrats (some people say that it was the Massachusets supreme court that really lost the election for the Democrats). (I am certainly not saying this isn't a fight worth fighting.)

Polls indicate that Americans support Democratic (liberal) position on many issues-- including expanding health care coverage, funding for education, a path to legalization for undocumented immigrants and a drawdown in Iraq.

The upcoming Congressional and Presidential elections are going to be quite telling-- if the Democrats decide to stand for their values. There is general support for many of their principles which will certainly grow when someone starts articulating them.
0 Replies
 
fishin
 
  1  
Reply Fri 27 Jan, 2006 03:30 pm
Cliff Hanger wrote:
fishin' wrote:
As to the original question - I think Alito takes a well reasoned approach to the bench. Contrary to the fear mongering from the left, I don't think Roe is any danger of being overturned any time soon (I don't expect a wholesale overturning of Roe at all. If anything, it will be an incremental chipping away at it until there isn't much left.).


Isn't it just as bad to chip away at it? Hopefully, Alito will be true to his emphatic emphasis on "Stare Decisis" during the hearings.


I dunno. Is it? Many have been going on for some time now about how Bush himself as well as his choice of Alito don't represent the "will of the people" but by and large the polls indicate that "the people" want more limitations on abortion. If that is what Alito beings them is he in fact exercising the will of the people?

(btw, I disagree with the notion that ANY court is there to decide cases based on opinion polls or popular will. Those issues are, IMO best lleft to the legislatures within the framework of the Constitution which the Courts are there to create and ensure adherence to. Wink )
0 Replies
 
McGentrix
 
  1  
Reply Fri 27 Jan, 2006 03:37 pm
ebrown_p wrote:
Claiming that a Bush administration that is opposing anti-torture leglislation, wants to override Roe v. Wade, imprisons an American citizen without due process and wiretaps Americans without judicial oversight somehow represents "The Center" seems ludicrous to me.


This is the problem. Your skewed vision of these events.

The Bush administration does not oppose anti-torture legislation, it wants to allow for unforeseen ciricumstances so no one can come back and accuse the present or future administrations of breaking the law. Having the option to use a method of interogations does not mean anyone will use it. The center understands that.

The Bush does not wish to overturn Roe v. Wade. They are anti-abortion, as are most conservatives and most Americans, yet we and they respect and understand the reasoning of why we have abortion. Being anti-abortion does not make one automatically against Roe V. Wade. The center understands that.

Holding a single American who was caught plotting to kill Americans and association with known terrorists without due process causes very few to wake up with nightmares about big brother watching them. Most see it as a very wise and judicious move. Holding a single American for no reason without due process would raise a shitstorm. The center understands that.

Wiretapping phone calls overseas to people with known terrorist ties or connections is a good idea. That way we can keep ahead of the terrorists. It's too bad we couldn't tap into every call the terrorists were making. The reason this hasn't been a giant issue is that the center understands the need for surveilling terrorists and their contacts in America. Again, no big brother nightmares. That is reserved only for the hardy members of teh ACLU.

The talking points you have posted here seem bad on the surface, but once you look at them in depth, most Americans agree with them.
0 Replies
 
FreeDuck
 
  1  
Reply Fri 27 Jan, 2006 03:41 pm
McGentrix wrote:
The talking points you have posted here seem bad on the surface, but once you look at them in depth, most Americans agree with them.


McG, that post is ripe. I found myself wondering if it was satire. But at least I got this nifty new sig line out of it.
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McGentrix
 
  1  
Reply Fri 27 Jan, 2006 03:50 pm
awwww.... you can't use a typo as a sig line!
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FreeDuck
 
  1  
Reply Fri 27 Jan, 2006 03:51 pm
I know it's not nice, but something about "The Bush" made me laugh hard and I had to use it.
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Thomas
 
  1  
Reply Fri 27 Jan, 2006 04:16 pm
ebrown_p wrote:
In my view the Democrats should be more like the Republicans in this regard. The Democrat base should include those of us who oppose the Iraq war, want more spending on social programs and value civil rights over security.

Like the Republicans, the Democrats could strongly champion these core values and then explain their position to Americans at large. My values are no more extreme than the "Christian Conservatives" who are dancing in the streets about Alito.

I'm skeptical. If the Democratic party had a winning agenda, and if all that kept them back was an overdose of bipartisanship and restraint, they would have fixed this problem long ago and would be back to winning elections by now. I wish the Democrats did have a winning agenda. As a libertarian, I believe in a gridlocked federal government, so I want them to win some elections. But, alas, they don't have a winning agenda.
0 Replies
 
ebrown p
 
  1  
Reply Fri 27 Jan, 2006 04:35 pm
Don't be skeptical.

First, I wouldn't say an "overdose of responsibility and restraint" is the problem.

The Democrats are losing because they lack a clear message. That the Republicans have a very clear message which they are very good at articulating and sticking to is the reason they have been so successful.

Poll data (I am too lazy to dig up right now, but think I will later) show that even people who vote Republican disagree with many parts of the Republican platform.

We have had Gore and Kerry. Kerry didn't lose because he had a clear Democratic method. He lost because he said "I voted for the war after I voted against it". Likewise Gore was little more than a moderate Republican. When was the last time a national politician espoused real Democratic (liberal) prinicples. I think the Democratic party is much to blame for this.

I believe the Republican Right has gone too far out of the mainstream and will pay politically for the war, the deficit, overly harsh immigration laws etc. etc.

The Conservatives gained their modern hold on power with Goldwater-- a candidate who stood for solid priniciples and lost, but set a foundation for the current political debate.

I think with the excesses of the Republican party and the Religious right who seem drunk with power we may seem a quick swing of the pendulum.

We will see if this happens in 2006 or 2008.

But if it doesn't we still need a Liberal Goldwater.
0 Replies
 
Thomas
 
  1  
Reply Fri 27 Jan, 2006 04:50 pm
ebrown_p wrote:
But if it doesn't we still need a Liberal Goldwater.

You have them. From George McGovern to Mike Dukakis, Democratic Goldwaters did run for president. American voters didn't want them, and they all lost big time. That's why today's Democratic Goldwaters -- Bill Bradley, Howard Dean -- fail in the primaries. I think your best chance for November 06 is a recession, which may or may not follow the plunge in economic growth that happened in the fourth quarter of 2005.
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Debra Law
 
  1  
Reply Fri 27 Jan, 2006 10:48 pm
Brandon9000 wrote:
After Alito takes his place on the SC, the new trend in the court's decisions will slowly move the country to the right, and all those annoying liberal ideas will be mostly forgotten by the average person. My only hope is that Bush gets to appoint another SC justice later.


What "annoying liberal ideas" are you talking about?
0 Replies
 
JustWonders
 
  1  
Reply Sat 28 Jan, 2006 09:42 am
Perhaps Ruth Bader Ginsburg suggesting that the U.S. judiciary should be influenced by the constitutions and courts of foreign countries?
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