Redstate

See, Rove and W. read RedState pretty regularly... at least that's what my "inside" source tells me. That must be why they realized that Gonzales was a no go.  :)

I am saddened to see McConnell being crossed off.  He is an intellectual heavy weight and I think he would get less opposition from Dems despite (IIRC) being on-record as opposed to Roe.

Well I guess Luttig and Roberts stock just went up.  And I'll still say "guy we haven't heard of" is ahead in my books.

FWIW, I still think a Gonzales appointment for Stevens or Ginsberg would be acceptable, but Dems would probably fight it tooth and nail.

Mike Krempasky, of course.

Seriously, I'm sort of wondering if the President's pick won't be fought tooth and nail in any case by the Senate Dems.  I'm trying to imagine a nominee that Reid, et al., would react to by saying, "Well, okay."

THIS is a judicial fight to shoot our bolt on.  Bring it on.

If Stevens or Ginsberg leave in later years.

Or an appellate judge confirmed by wide margins by these Democrats.

On me? If nominated I will not run...if elected, I will.

I think for Gonzales' sake, they need to put this 'torture' stuff to bed before they nominate him for anything else. He would just get roasted if they sent him up there now. Besdies, they just kicked that topic off the stage; why bring it back?

"We fought our hardest at Antietem and won, so let's now go easier on the rebs at Gettysburg."

If nominating Gonzales or McConnell wouldn't be the strongest strategy to succeed Rehnquist or O'Connor, why would a Gonzales-McConnell strategy be okay to succeed Ginsberg or Stevens?

feddie over at ConfirmThem seems to be happy with his inside source's recounting of the situation:

   POTUS is upset about it, but has been told and understands Gonzales is a deal breaker with conservatives. Gonzales has participated in forming a list without his name on it. - Anonymous Source

There's a great deal more that I wish could say, but I am sworn to secrecy. I will say this though, conservatives will NOT be disappointed with who the president has in mind to replace Rehnquist and O'Connor. Dubya is going to come through for us on his Supreme Court picks, folks, so get ready to rumble.

So if you believe in feddie and his insider, maybe this will be a happy ending.

This is great news. Gonzales should stay on as AG. It looks like we will soon see how well the so called "memorandum of understanding" about judges holds. My own is opinion is that the seven democratic senators will not hold up their end of the deal if a true conservative judge like Luttig or Roberts is nominated. They will filibuster. You heard it here first. I know these democrats too well.

Allan Bartlett

I had asked the air if the President had talked to Rove.  The loss of the movement for the midterms would be a political disaster.

I wonder what the reaction would be to Hatch, who's wrong on stem cells.

Another name I've heard mentioned is Cornyn.

Jeff Sessions of Alabama might be another option, since you're mentioning senators.

Well, it's all about what shifts the median voter on the Court. Replacing Rhenquist with Luttig keeps the median voter at O'Connor.

That's the logic, at least. I still say Bush should nominate a solid conservative no matter who end up retiring. But the Dems fundamentally care about a choice that doesn't shift the median.  

To which I do not have an answer.

So what's wrong with McConnell, since (as noted) he is on record as being against Roe? With Gonzales there was a serious issue with the need for recusal in too many possible cases, but I have to say that all the nit-picking I have seen here on possible SCOTUS choices is a little weird, more like the sort of extreme party-line fuss-budgetry you'd get from an old Commnuist party than the attitude of a party that used to be dedicated to freedom.

McConnell has some off-kilter decisions since he's been on the 10th Circuit and some of his inclinations based on his academic writings lead me to believe he would create angst among conservatives.

See here for some insight.

Hatch is too old.  The short list is limited to people under 60.  Bush wants to shape the Court for 25-30 years.  Not 5-10 max (Hatch is already 71).

Given that Reid, Leahy, Schumer, et al will fight any nominee tooth and nail unless they are a card carrying member of the ACLU, let's put up the most conservative possible candidate who can be widely seen as part of the mainstream.  Let's send up Judge William Pryor.

I think Pryor gives you a lot of value not just because he energies the base, and not just because he's a fair minded jurist, but because Pryor is willing to defend himself and his views without sitting idle during Democratic attacks.  Just as in his first set of confirmation hearings, Pryor isn't going to back down from his views on Roe.  He's an eloquent spokesman for so much of what we believe in, and Bill Pryor deserves to be the next Justice nominated to the United States Supreme Court.

First, I think the "nitpicking" comes from seeing a moderate Clinton appoint two ideologically consistent liberals while we have Reagan/Bush/Nixon/Ford appointees who have more often than not turned out to be squishy or leftist.  So conservatives are getting a little touchy about appointing more anti-federalists.

Second, here is a liberal op-ed hoping for McConnell:

There are a handful of others, but only Judge Michael McConnell of the 10th Circuit gives me hope. Here's a guy who once clerked for famed liberal jurists Skelly Wright and William Brennan. No, the Bush team has not lost its mind. McConnell's writings as a law professor at the University of Chicago and University of Utah indicate a rightward tilt. He holds the extreme view that the Constitution protects the unborn. Even so, McConnell is a brilliant constitutional scholar who has actively worked against Congress' efforts to outlaw flag burning. He also criticized the Supreme Court's actions in Bush vs. Gore, saying Florida should have been given time to do a recount, and he publicly opposed President Clinton's impeachment.

    If Rehnquist finds the door, give me McConnell. Otherwise, give me a blindfold and earplugs. It will all be easier to take that way.

Particularly the part about the fair minded jurist.  Lest we lose sight of the end goal it is not to simply appoint judges who will legislate from the bench from a conservative as opposed to a liberal perspective.  The end goal is to appoint judges who will adhere to original intent.  Then means adherence to federalism and the doctrine of enumeration.  

Sessions would be especially sweet - Republican governor in Alabama, and he was blocked from a federal judgeship before he became a Senator by the late Sen. Heflin. After Heflin retired, Sessions took the seat.

but I certainly consider myself reliable. :)

And National Review considered me reliable enough to link to my post at Southern Appeal about Rehnquist's soon-to-be-announced retirement:

http://www.nationalreview.com/benchmemos/064813.asp

Make of it what you will.

Anyway, I trust my sources. They're solid.

I can't remember where I read that, but I did read W. wanted to nominate under 60 year olds only.  

This balance of liberals, conservatives, and moderates on the Supreme Ct talk is bull crap.  If Dems were in control and had 9 openings, they'd nominate all Ruth "ACLU" Ginsberg types.  The so-called precious balance is a phony line the Dems promote to scare conservaitves into thinking there is something sacred about the current makeup, and necessary because Dems have a hard time winning elections.

Those that have a problem with the Democratic Republic style government shouldn't be falsely rewarded with like-minded liberal activist judges.

There's nothing special about this particular balance.  Bush should go all out for originalists for each open seat.  I'm fairly certain he can at least replace Rehnquist and O'Connor with originalists.

1.  Hugh Hewitt said today on his radio show the following:

a.  the Conservatives will be happy with the nominee;

b.  he is sworn to secrecy and can't disclose

What's this "sworn to secrecy" thing, anyhow?

2. In any event, this is our rendevouz with history.  This is our chance to bring back the Sup. Ct. to its originalist intent/textual interpretation.
   
3.  Mr. Bush, if you are reading, read on:

MAKE A CASE FOR (A) SOCIAL CONSERVATIVES, (B) FREE ENTERPRISERS, (C) GOVERNMENT/SECURITY CONSERVATIVES THAT YOUR NOMINEE IS GOOD FOR THEM.

YOU WILL KILL 3 DUCKS AT ONCE (Where is john kerry when you to go hunting - haha).

FURTHER MAKE A CASE THAT THIS IS GOOD FOR

(D) HOMEOWNERS AND SMALL BUSINESSMEN - (Kelo decision); (E) STATE RIGHTS AND LOCAL CONTROL (So even the left loonies can petiton their municipalities and states for legalized pot and legalized stupidity...ok, drop the last one)

This is of course, if Karl and George are reading.

Which makes him about 50.  Perfect age to be appointed to the Supreme Court.

protects the unborn, I'd like to see the source for that.  That would be interesting.  I think that Scalia and Thomas might agree with that view.  But not many justices in the last 30 years have held that view.

If you can dig up the source for your comment, I'd appreciate it.

Here is my satirical take on it.  It has some, oh ok, a lot of truth in it.

George Bush's Next Supreme Court Nominee Scalia And Thomas Clone

by http://satire.myblogsite.com/blog  at 09:13PM (PDT) on June 27, 2005  

(June 27, 2005).   The White House has laid the groundwork to place a new Justice on the Supreme Court, amid speculation that ailing Chief Justice William Rehnquist soon will step down.   Keenly aware that this is his most important Court appointment, other than his prior show to face the  allegations of drug abuse, plagiarism, AWOL, womanizing and being a Bible-believing Christian, President Bush is looking for a young, athletic, healthy, photogenic and racially acceptable nominee in the mold of Justices Antonin Scalia and Clarence Thomas.

Both Justices believe that the Constitution should be interpreted literally with a weight given to the intent of the Founders and that unelected judges should not legislate from the bench based on ever changing fad in pop culture or benevolent agitprop.

An anonymous source that required "swearing of secrecy," informed that Karl Rove, the renowned White House architect, with a minor in biology, is working 24/7 in the underground bio-chem laboratory, formerly owned by Saddam Hussein, to clone "two Scalias and one Thomas" in a wicked plan to change, once and for all,  the face of the American jurisprudence.

If he succeeds, first time in the history, the new Supreme Court will have a triplet and a twin.

justices will be chosen in the next 4-5 years, I actually hope that the Senate dems will filibuster Rehnquist's replacement (assuming he is the next justice to retire).

There case is strongest if they are filibustering Stevens replacement.  Especially if (how can I put this delicately) Justice Stevens leaves without technically "retiring."  Replacing a liberal (even though the liberal was nominated by a Republican president) with a conservative gives the other side the political capital to get money and energy into their causes.  Replacing Rehnquist with a conservative is, well, expected.

So there.  I triple-dog dare Harry Reid to filibuster the next Supreme Court appointment.  Especially if it is Rehnquist's replacement.  Go ahead and burn up all of your energy fighting a battle that can't be won.

Then when it is time to replace O'Connor, Ginsburg, and Stevens, you won't be able to make the argument that you are reserving the filibuster for "extraordinary" circumstances.

Agree: Gonzalez would be a disaster. For me it is a clear choice: Michael Luttig.

Clerked for Scalia.  Believes in Scalia.  A basketball analogy: a principled and rock-solid assistant of Bobby Knight (at least Scalia too is outspoken...)-- yes, Luttig could become the "Coach K" of the USSC.

Meanwhile Thomas or Scalia needs to be Chief.  Period. There are good arguments for both but give me Scalia.  And it would not break my heart if Kennedy or O'Connor stepped down.  If that happened I would show some real guts and put Janice Rogers Brown on the court.  If you saw my blog on Saturday, you get an idea of why I am so enthusiastic about her.  And she is on the DC Circuit...

And for any or ALL of the above: even if it takes a "nuclear option".  The sooner the better from where I sit.

Nominate Roy Moore!

Sessions would be good and there is no fear in losing a Republican seat in Congress.  Roy Moore is running for Governor, but change and run for Senate instead.

We need to make our voices heard that we want solid conservatives on the USSC.  Gonzales has not given that reassurance.  I still believe that he might even have been rejected had he been nominated, considering how NB it is with the conservative Republican senators' base . . .

would be just as furious over a Moore nomination.

Moore is a certified kook/anarchist.

2004 if she had wanted Bush to appoint her replacement.  Supposedly, she was sick over the possibility that Gore might win, as she wanted to retire back then.  After seeing what Bush's form of "compassionate conservatism" entailed, I think any of the possible retirees do NOT want Bush naming their replacement. Would you want a man who supports those who call for the impeachment of any judge (Dobson and Company) who disagrees with you to appoint your successor? A man who supports those who "understand" violence against judges?  The right wing has hoisted themselves on their own petard with possible retirees on the Supreme Court by their very public extremist behavior regarding judges.  

I predict only, possibly, Rehnquist will retire until Bush is out of office.  Unless, of course, one of them leaves without "technically retiring," as you are inferring.  And what, exactly, does that mean?  I hope that you are not encouraging violence against one of the SCOTUS?  Although with what Cornyn said, and many other hard right wingers say, I am not surprised.  

he sounds like an excellent candidate. I too thought the Court should have left Florida to stew in its own juices back in 2000, allowing its legislature to determine its electoral votes, or, if necessary, the US House to decide the election as the Constitiution directs. And overturning Roe on the basis of the personhood and rights of the unborn would be the exact way to go there, rather than seeking to challenge Griswold and privacy rights (which I do accept as sound). And I'm all in favor of an expansive view of citizens' rights under the first amendment.

Can anyone else see what is so horribly wrong with this?  Does the Supreme Court really just boil down to positions on the today's hot topics?

Insofar as it implies a deeper understanding of the relationship of human beings to the law, it seems perfectly natural to take this into account.

Poorly worded - I wasn't talking about stem cells specifically, but the prolific number of items which appear to be litmus tests.

Until the twin pillars of the modern left (Judicial supremacy and the Living Constitution) are demolished, the activist judges and their supporters have made it very important knowing judges' positions on issues.

Until we get enough executives and legislatures with the spine to just say No and ignore some rulings someday, the next best thing is to improve the Judiciary as best we can.  That means improving the rulings for now (the hot-button issues) and later (getting non-activists on the bench).

Immediate results don't just improve life now, but they also help keep activists fired up.  So, I'm fine with it, if we make sure the immediate results don't hinder the long-term goals.

I hope that you are not encouraging violence against one of the SCOTUS?

It's ridiculous that you even inferred that from those comments.

that shouldn't mean a justice should conform exactly with all the issues on your laundry list of items you find important.  Thomas, you are an attorney, with a fine understanding of the law and solid historical perspective.  I remember your post on Moynihan, which grieved me, but is there no room for variance and discussion even here?  That Orrin Hatch, a good and honorable man and a fine conservative, would be a poor choice for the Supreme Court because he doesn't support the orthodoxy on stem cells blows my mind.  

So you believe that the Executive and Legislature should simply ignore the Judiciary?  That is.....disturbing.

Do you also feel that the Exceutive should ignore the Legislature?  

Your post seems to be more a rationalization for why  you should have a multi-faceted litmus test than an accurate reading of today's society.  

If you have several litmus test issues you are almost CERTANILY looking for an activist judge.  

When Judges overstep their bounds, it might be reasonable for a President to make like Andrew Jackson and test the court's popularity.

If the President gambles, ignores the Court, and the public backs the Court, then we know the Court's power comes from the sovereignty of the people.

However if the President ignores a terribly bad decision by the Court, and the people back him, then the Court gets checked back in line, equal to the other branches.

As for litmus test issues, you're totally wrong.  Certain issues can be benchmarks of a judge's activism or lack of it.  Certain questions based on current issues are fair to ask and do not amount to a rightist activism.  If I were on the Senate Judiciary Committed, I'd be asking: Does the judge support the use of international law to overturn lawful criminal sentences in the US?  Is the judge support the federalizing abortion and other state issues?  Does the judge take an expansive enough view of the Commerce clause  to support a federal ban on intrastate, non-commercial cultivation of marijuana?

These are fair questions, I think.  So is wanting to know if a judge would be inclined to mandate that the government fund the destruction of human life in the name of research, such as we're dealing with in the stem cell debates.

Wouldn't that defeat the original purpose of the Founders when they created a third branch presumably removed from the whims of political popularity by their appointed status.

Andrew Jackson was inexusably and dead wrong.  Using his action as a template provides little support for your contention, other than he was wrong and he got away with it.

Neil, I don't believe your questions are in fact fair, at least not in the sense that they provide an unbiased and anti-activist filter for the Court.  You are engaged in a framing exercise - "Do you support mandated government funding for the destruction of human life?" is about as fair as "Do you support the using unsterilized clotheshangers on women seeking abortion?"  Neither question actually gets at the root of the issue, but rather inflames the issue so that it collapses back into a shouting match.

The more I read on it and ruminate on it, the more convinced I am that there will be two vacancies this summer --- Rehnquist and O'Connor --- and Bush will appoint Luttig as CJ and Garza to fill the latter spot.

It's clear from the Gonzales talk that Bush wants to appoint the first Hispanic Justice.  He doesn't seem too worried about the un-PC move of replacing O'Connor with a male Justice as long as that Justice is also a non-white male.  My guess is that Bush got word that those two Justices were retiring and set out to appoint Luttig and Gonzales, feeling that Luttig would basically be a young version of Rehnquist and Gonzales would be slightly more conservative than O'Connor.  In fact, he may have planned to make Gonzales the CJ in this case.

But with the conservative outcry, Bush now knows Gonzales is a no-go.  The other young, Hispanic judge qualified for the spot is Garza, who is reportedly not intellectual enough for the CJ job but would be perfect for O'Connor's spot.  Luttig, who is 51, is often accused of wanting to start a "Federalist Revolution."  In other words, he's perfect for the CJ spot.  Thomas would be better, but he probably doesn't want to go through another confirmation battle.

So Luttig and Garza will replace Rehnquist and O'Connor, with Luttig as CJ.  No doubt Bush will keep an eye on McConnell in case Stevens retires in later years.

But if he's not intellectual enough to be Chief Justice I don't understand how he could be intellectual enough to be an associate justice.

If the Founders wanted the Court to have the final, unassailable say-so on the interpretation of the Constitution, they would have written it into Article III.

They didn't, though.  Judicial review is just a Judicial power grab, that the other branches have every right to stand up to.

Can you imagine the fits that would be thrown if the President, say, claimed he had the last, unchallengable word on the Constitutionality of laws?  That's what the Courts have done, and they shouldn't be allowed to get away with it.

You can easily convince me that limiting the jurisdiction of the courts is better than just ignoring them, but our Presidents and Congresses have lacked the backbone to do either.

I was talking about Wilkinson I just spelled it M-C-C-O-N-N-E-L-L to throw off the Masons.

Yah, McConnell would be great, I was totally mis-rembering the two names.

committed a gross act of injustice in ignoring the Court's decision, one which resulted in the deaths of innocent people whose only "crime" was to inhabit lands which certain greedy men wished to make their own. I certainly hope no one sees that as a positive template for future action. If anyone does then, for once, I might agree with the critics who trot out that tired old slur-label "fascist".

The rule of law is important, folks-- even when you disagree with said law you do not have license to ignore it on a whim.

If it weren't directed at me I'd Zero you out.

The rule of law applies to the courts, too, and when they overreach, it is valid to ignore their orders.

So we go back to Marbury again, eh?  Two things - if anybody has a say in this fight it's the legislature.  Their power is not perfectly clear in Article III (depending on which clause trumps which) but they can certainly limit the jurisdiction of the Court.  They haven't.  The President simply does not have any authority to ignore the Court.  None.  Zip.  Zilch.

There's not much sense in arguing this extensively, since despite its detractors, Marbury is about as firmly ensconced as a judicial decision can be, but if the Constitution is the supreme law of the land, and the judges enforece the law, then how on earth could they not review other laws subject to the highest law?  To enforce an act of Congress in direct contravention with the Constitution would render the amendment process moot, not to mention ignore their charged responsibility to administer the law.

Between Scalia and Thomas.  Scalia writes long, drawn-out opinions with metaphors that send law professors into nerd-euphoria.  Thomas is much more of a concise, just-the-facts kind of guy.  Doesn't mean one is smarter than the other, just a difference in style.

with the principle of Judicial Review they would have said so in the Constitution, to turn your logic back on you. The index case for this principle, Madison vs Marbury, was decided within the lives of the Founders and whatever they thought of the details of that decision they did not object to the making of it in principle else they would have speedily amended the Constitution to prevent future such excercize of judicial power.

What some so-called conservatives (and I cannot honestly use the label when such folk hold a profoundly radical view) fail to appreciate is that the courts are part and parcel of the checks and balances that are intended to limit to power of government and even when exercized wrongly (and men will always make mistakes) it serves a deeply conservative cause and should be respected and revered by anyone who rejects the concept of tyranny.

that the Constitution gives Congress the right to limit judicial review, I think you'd be hard pressed to make your 'fascist' label stick.

I'm all in favor of checks and balances, when they go both ways.

But when the Court hand down rulings, and nobody gets to challenge them, that's not balanced.  That's an accumulation of power in one place, that is the first step toward some ugly political systems.

So I ask you this, then:  What is the check on a bad Court decision?  A bad President can have his funding cut off.  A bad Congress can get vetoed.  What happens to a bad (but not criminal, so as to trigger impeachment) Supreme Court?  If the other branches can't ignore a runaway court, what can they do?

Just because he used the word fascist?  Would your prefer authoritarian, or totalitarian?  Ignoring the courts in favor of the presupposed or actual popular will is certainly a function of early authoritarianism, before the authority figure has gathered enough strength to simply replace the court with those to his liking.  It's a fair characterization.  We have got to stop flipping out on these words - there seems to be a creeping conservative PC ethic at work here.

If the Court has truly stepped outside the law, the Congress should impeach the justices, limit the jurisdiction, or pass an amendment which settles the issue for all time.  If the Congress cannot do that, you should ask yourself whether the Court has really stepped that far out, or if they simply are not in agreement with your political persuasion.  That's a horse of a different color.

There is a very clear method of handling judicial overreach.  In some cases Congress simply needs to clarify existing laws.  In others they can pass Amendments that completely trump judicial review.

While fascist may be a harsh word your advocacy of the Executive branch being able to pick and choose which laws they will obey is very troubling.  Do you also think that cops should choose which criminal laws they will enforce?  

the proper remedy is to either

A) Pass a constitutional amendment setting aside their decision. If that fails then accept the fact that your pet peeve is not widely enough shared by the body politiv.

B) Appoint better judges (what we are o0f course talking about here)

Taking the law into one's own hands is only warranted in very extreme situations, and only by private citizens who are willing to pay the price of breaking the law (see: MLK Jr. Thoreau, Gandhi, the ancient Christian martyrs etc.) For a governmment official* to deliberately and wilfully violate the law of the land in his public actions is an act of despotism and tyranny and should result in the speedy removal of said official from office and his prosecution to the fullest extent the laws allows.

What part of "A government of laws not men" is unacceptable to anyone here?

* A government official who cannot in good conscience obey a law in his public acts ought properly resign his office and protest the law as a private citizen.

Professors need to go into "nerd-euphoria."

Write, Antonin, write.

Re: If the other branches can't ignore a runaway court, what can they do?

But to reiterate:

a) Pass a Constitutional amendment nullifying the decision. Yes, that's hard to do (on purpose), but then so is overriding a presidential veto-- which doesn't mean that Congress gets to ignore any veto that outrages a slim majority of its membership

b) appoint better judges.

Those are the rememdies. If you can accomplish either, then accept defeat and move on. Nothing in the Constitition gaurentees any one party of ideology victory in everything, all the time.

The above should read "If you can NOT accomplish either..."

Congress can limit the jurisdiction of the Court.  Congress can spell out explicitly in a new law what the Court misinterpreted.  Congress can even cut funding for the Court, should they so desire.  Congress and the President could presumably appoint more justices to the Court.  Bad judicial decision will bear bad judicial fruit, which will return to the Court in due course for correction.

The bottom line is that the Court is always challenged by the passage of new laws.

if, in light of the ability to limit jurisdiction, Congress refused to do that and the President simply ignored the Court's decision, that would support dropping the new f-bomb, would it not?

was talking about the Executive branch ignoring judicial decisions.

See, maybe we have a misinterpretation here, heh.

I consider passing new laws in defiance of the court's ruling of unconstitutionality to be 'ignoring' a court's claim.  

Just re-pass the law, and keep doing it.  If the courts keep crossing the line between upholding the law and rewriting it, take away their jurisdiction to begin with.

I just want to see something that challenges the Court's self-described final authority on the Constitution.  Shrugging your shoulders and saying "Oh well, they're the Court, nothing we can do about that" is not the kind of feeble acceptance of tyranny this country was founded on.

the part where the poster said "I am only talking about the Executive branch".

Silly me. I thought I was responding the thread that began:

Until we get enough executives and legislatures with the spine to just say No and ignore some rulings someday, the next best thing is to improve the Judiciary as best we can.

What happens if the Court just comes down and says that the intent of the Congress was inherently unconstitutional?  I'm not just talking about weird interpretations of laws.  I'm talking about the cases where the Court just outright says "No, you can't do that, we're throwing out that law and all of them like it," such as in the Texas sodomy case.  How do you "clarify" around that?

And yes, I do think the cops have the right to choose not to enforce a bad law.  The conscience of each individual person in government is a barrier to tyranny.

You give two choices.  In neither choice do you deny the claim of the Supreme Court that it is not equal to the other two branches, but instead above them.

I think that's a real shame.

Not necessarily repass the same law, but attempt to pass laws which both satisfy the Court and achieve the goal sought.  Or to amend, if the Congress, as the voice of the people, believe that the Court has utterly misinterpreted the Constitution.

Neil, where would you place the final authority to interpret the Constitution?  Someone has to do it.  Make an argument as to why either the legislature or the executive could/would/should do a better job.  Otherwise, we're not fighting over the tyranny of the Court, we're fighting over the politics of the Court.

And, to track some of the Durbin discussion, if you think the SCOTUS is tyrannical, you ain't seen tyranny.

If you notice in my original post that started this whole discussion, I said "executives and legislatures," so I agree completely that the Legislature needs to fight in this, too.

But ultimately, if the Judiciary tells the Executive to do one thing, and the Legislature says the opposite, the Executive has to pick a side.  His understanding of the Constitution, and his fear of response by the sovereign People, should guide his decision, not just the claims of the Supreme Court of its own power.

a circumstance where the Executive would do this without the concurrence of the Legislative. If one looks at the two classic instances of the judiciary being rolled --enforcement of the Indian Removal Act and the belated decision that the New Deal could be justified under the Constitution-- in both cases the executive and substantial majorities of the the legislative were united in carrying out popular programs.

I think the People have the final authority.  Each co-equal branch has the authority to act according to their own understanding of the Constitution and the oath of office taken.

It's just that, when the Congress and the President do wrong, the People get to vote them out.  We don't get that option for the Courts, so I say it's up to the other two branches to maintain the balance for us.

And I never said we have tyranny today.  I said that a system of government where unelected, unaccountable people get final say on what the entire government can and can't do, will lead us to tyranny.

William Pryor on the other hand would probably make an outstanding Associate Justice.

They should be long enough to cover the subject but short enough to keep the observer's interest.

So the Constitution really is living!  If the People decide they don't like a particular aspect of the Constitution, they just send their Reps to Congress and a simple majority can change it to their liking?  I know you didn't mean that.  The Courts have little practical control over anything real - they couldn't form a tyranny even if they wanted to.  If the Court enforeces the law it must interpret it, and the highest law is the Constitution.

What about the Founder's fear of mob rule?  The Courts are distanced from the passion of the popular will for a reason.  You argue they should not be - but your arguments seem to stem from the foundational thought that you don't agree with them.  I get the feeling I am not going to like the Court in the next 20 years, unless Sandy Day and Stevens can hang on until 2009.  This won't mean I'll attack the authority of the court or the state of the balance.

by passing a sodomy law that does not specifically identify a group of people(homosexuals).

O'Connor explicitly states in that ruling that the PROBLEM with THAT law was it wasn't universally applied.  A man and woman who performed the same act as two men were within the law.  

The Texas legislature could, if it so chose to do so, pass a new law that applied to everyone.  The law would EFFECTIVELY be the same but would meet the  Supremes requirements.

The resolution of that single issue implies so much, and the manner of its resolution says so much, about how a prospective nominee views the law, and how it operates, and man's relation to it.

Let us take Hatch for example. Does he oppose legalized abortion? As a general rule. Why? Does he oppose embryonic stem cell research? Generally not. Why? And why the divergence?

The answers to those questions -- and how he got to those answers -- speak volumes about some extraordinarily important questions, like, what is a judge's role in the law? What does the Constitution mean? How should it be interpreted? How does the law treat its subjects?

And so on.

In Hatch's case, it suggests to me that he is flexible -- not in his ability to make the law fit new facts, but in his ability to change or shift from core principles depending on the benefits of so doing. (I do not accuse him of political expediency; I accuse him of reordering his basic views to produce a desired benefit for society.) That is precisely the last thing I want in a judge. That way lies Harry Blackmun.

I don't care if he's conservative or liberal or whatever. I hate RBG's jurisprudence, and I loathe only slightly less Breyer's, but I respect them, because they are consistent. It is for the same reasons that I respect Scalia and Thomas so much -- I think I fell in love with Scalia when I read that confrontation clause case, or maybe it was the "use of a gun" case. Regardless, I don't want results-oriented jurisprudence. And I worry that Hatch would give that.

"The Courts have little practical control over anything real - they couldn't form a tyranny even if they wanted to."

Tell that to the Iranians, whose Supreme Court is the Council of Guardians, which claims the final, unaccountable authority to overturn anything done by the other branches of government in the Islamic Republic.

As for mob rule, that's why I want to see the Senate elected by State Legislatures again, and very badly want to keep the Electoral College (as chosen by a method selected by the State Legislatures) in place.  That way it'll take an awful lot of people conspiring to elect and empower a Hitler, enough people that could overturn the whole system no matter what the Constitution says.

that you don't want "results-oriented" jurisprudence.  I ask you to do the same for me.  It is difficult to do, I fear, but it's the right thing.

I also think there is a third scenario beyond either political expediency and societal benefit that can explain Hatch's (and others) opinion - they simply disagree with your exact definition of life.  That does not imply flexibility - that demonstrates a difference in opinion, granted, on a sub-element to your modern Punic War (grin), but still on the margins.

That's a possible explanation, but from what I know of the backstory, it's unlikely.

There is, to my mind, a strong but not dispositive argument that the Constitution positively forbids abortion or other experiments on humans. However, that is a somewhat deeper reading of the text than I am entirely comfortable making; I'd be more comfortable saying that it is entirely silent on the issues.

. . .being a first-rate intellectual is necessary to be an effective CJ, just as it has not been historically necessary for great Presidents.  No one familiar with his history would describe Earl Warren as a great mind--but regardless of what one thinks about the decisions of the Warren Court, one would be a fool to deny that he was a very effective Chief Justice.  Scalia is probably the smartest member of the current Court, but he's got questionable people skills and has a reputation for being a bit of a bully (and is fond of sniping at colleagues in footnotes).  I'm comfortable in saying that he wouldn't be a good CJ.

in regards to Roe vs Wade and stem cells probably (possibly?) is reflective of his Mormon faith. The LDS does not teach that life begins at conception, but rather holds that there is a later point at which the fetus (embryo?) gains a soul, based on some passages in the Book of Mormon which speak in this manner.  So it's not necessarily the case that Hatch is moved by political expediency, but rather that he adheres to a slightly different set of core assumptions.

As an aside I would also say that there is nothing necessarily wrong with a certain flexiblity or a respect for the opinion of the people in a legislator. So criticism of Hatch as a "politician" is a bit off base: he is, and is supposed to be, a politician in his current role.

in Lawrence. While Justice O'Connor did cite equal protcetion, the majority did not. For the majority the issue was that such laws inherently violate the citizens' innate liberties to order their private lives as seems to good to them. Despite the howls from the extremist right on that decision, it was actually a deeply conservative (small "c") decision and several analysts from the non-wacky right (notably gun rights activists) found cause to agree with the majority's logic. And indeed, had the Court followed O'Connor instead, the consequences would be rather different and the decision really would be a stepping stone toward a gay marraige decision as Scalia erroneously (and quite histrionically) feared.

As an aside just how would anyone propose such a decision (which had a 6-3 majority) be "nullified" by either Congress or the Executive? If the courts are united to abiding by it how would they propose to prosecute gay people? They would in effect have to create a rival judiciary staffed by political lackeys doing their bidding. Anyone else think that would be a really, really awful idea, enough to make the Founders groan in their tombs?

in a totalitarian government is usually just a rubber stamp for the ruler. Anyone think the Supreme Soviet ever told Stalin "No, you can't do that?" Maybe the Reichstag stood up to der Fuhrer and we never heard about it?

Why do I have this weird feeling the certain posters here never opened a history book or else seem to think that we Americans are a separate species of being, utterly immune to the normal corruptions of power and passion?

My mistake.  I forgot that O'Connor was the concurring and not majority opinion.

I called Emilio Garza "Samuel Alito" for, um, the same reasons.

Scalia is well-liked by most of the other justices, which is pretty amazing considering how often he belittles their opinions in his own opinions. the fact that the others still like and respect him despite this proves to me that he has great people skills and would be an effective cj.