Here Today... Gone To Hell!

Thank you Harriet.  I am sure you are a great person, but you were not qualified for the court.


Miers withdraws Supreme Court nomination
Bush: Decision confirms 'my deep respect and admiration'

Thursday, October 27, 2005; Posted: 10:06 a.m. EDT (14:06 GMT)


Manage Alerts | What Is This? WASHINGTON (CNN) -- President Bush on Thursday accepted the withdrawal of Supreme Court nominee Harriet Miers, according to a statement from the White House.

In her letter to the president, Miers said she was "concerned that the confirmation process presents a burden for the White House and its staff and it is not in the best interest of the country."

The White House said Miers had to withdraw over concerns that senators wanted documents of privileged discussions between the president and his top lawyer. (Watch video: Withdrawal accepted -- 1:38)

"It is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House -- disclosures that would undermine a president's ability to receive candid counsel," Bush said. (Full statement)(Miers letter)

But Democratic and Repbublican senators told CNN's Ed Henry that they hadn't asked for privileged documents.

Bush vowed to fill the vacancy "in a timely manner."

"Harriet Miers' decision demonstrates her deep respect for this essential aspect of the constitutional separation of powers -- and confirms my deep respect and admiration for her," Bush added.

Senate Democratic Leader Harry Reid, who said he had recommended that Bush nominate Miers, blamed "the radical right wing of the Republican Party" for killing her nomination.

"Apparently, Ms. Miers did not satisfy those who want to pack the Supreme Court with rigid ideologues," the Nevada Democrat said.

Senate Majority Leader Bill Frist said he respected Miers' decision and looked forward to working with the president to help quickly pick a new nominee.

"We remain ready to fulfill our duty to provide advice and consent on judicial nominees," the Tennessee Republican said. "And the Supreme Court still awaits its next justice -- a highly qualified nominee who is committed to upholding the Constitution and who believes in the limited role of a judge to interpret the law and not legislate from the bench."

Miers, 60, was nominated on October 3 by Bush to replace retiring Justice Sandra Day O'Connor, who was often a moderate swing vote, on the high court. (Profile)

O'Connor will stay on the court until he replacement is confirmed by the Senate.

Bush's decision to nominate Miers, White House counsel and a longtime adviser, had divided his supporters, many of whom wanted a nominee with a clear record of opposition to abortion.

Miers' nomination stirred up controversy because of her lack of judicial experience and questions about her knowledge of constitutional law.

Days after her nomination, Bush defended Miers against Democratic charges of cronyism and questions about her conservative record, saying she shares his legal philosophy.

"I picked the best person I could find," Bush said. "People are going to be amazed at her strength of character and her intellect."

Senators had hoped to begin confirmation hearings the week of November 7.

CNN's Dana Bash and Ed Henry contributed to this report.

Nicely done. From what I've read she really wouldn't have been qualified.

What I don't get is why she was appointed in the first place...

interesting.
now lets go back on condi's case ;)

aha ;D :hihi: :peace:

Interesting.  And probably a very good thing.

And a pretty big "blow" to this admnistration, no matter what the reasoning.  To have his fist pick be so completely "destroyed" (and, rightly so) by the press, public, and even some members of his own party......Yowza.

Good - now he can appoint Michael Brown.

 :hihi:

That seems to be the line doesnt it?

Youre right, she was an atrocious nomination and unfit for the Supreme Court by many accounts. ?But the truth is, if there was definitive evidence that Harriet Miers was anti-abortion, this discussion wouldnt be taking place.

But her stance is certainly less than definitive and her withdrawal was inevitable. ?For strictly political reasons, I was hoping for her confimation; partly because it would have cemented the rights disdain for Bush and partly because I simply couldnt envision a better nomination (save for possibly Alberto Gonzales). ?There was also the possibility that she was more moderate than expected. ?

Now Bush will do one of three things:

1. Nominate a "real" conservative, which will win back his base and likely force Democrats to strongly contest, and possibly filibuster, the nomination. This will make Democrats and their obstructionism the issue, possibly reigniting the nuclear option and distracting from whatever White House scandal fallout thats taking place at the time. ?It should not be forgotten, however, that the right has completely lost whatever high ground they thought they had when it comes to contention. ?Prior to Miers' nomination, FOX News and the like stated over and over that Democrats would contest anybody that Bush chose. ?The Minority Leaders personal recommendation and support doesnt do much for that argument, does it? ?:hihi: ?The only senators to make their discomfort with her clear were Republican. ?The only ad to run against her came from the right. ?She was excoriated by Right-Wing blogs and pundits. ?The right fought for her withdrawal, ironically undermining the presidents decision and her "right to an up-or-down vote." ?Republican senators and advisers worked for her withdrawal behind-the-scenes. ?Theyve proven their hypocrisy, and it should not be forgotten in the next nomination. ?

2. Nominate another slightly ambiguous conservative similar to John Roberts. ?This might be more easily said than done, but is probably the safest option politically.

3. Nominate Alberto Gonzales. ?This nomination would likely recieve near unanimous support in the Senate, but runs the risk of once again inflaming the right. ?Its my hope that he makes this decision.

Miers' nomination has obviously been a nightmare on every level which might have been enough for withdrawal anyway, but the real reason she withdrew probably has a lot more to do with these stories which would have been a major issue in the confirmation hearings:

1. The apparent death blow...a recently uncovered 1993 speech in which she says "The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women's [sic] right to decide for herself whether she will have an abortion." ?She lost whatever minimal Right-Wing support she had left with those words.

2. Senators may question ex-lottery director who sued contractor

AUSTIN, Texas A U-S Senate panel may seek testimony from a former Texas lottery official during hearings on Supreme Court nominee Harriet Miers of Dallas.

Miers, who's now the White House counsel, chaired the three-person Texas Lottery commission from 1995 to 2000.

Another lottery official has claimed Miers let a company keep its contract because one of its lobbyists helped President Bush get into the National Guard in the 1960's.

The Senate Judiciary Committee on November seventh will begin hold hearings on the Miers nomination.

Committee members recently asked lottery contractor G-TECH whether it would object to testimony from Lawrence Littwin.

Littwin, who was the lottery's second executive director, was fired in 1997 after just four months on the job.

He sued G-TECH, but late settled.

Littwin, who signed a confidentiality agreement, declined to comment other than to say he would agree to testify if subpoenaed.

A G-TECH official says the confidentiality agreement allows Littwin him to discuss the issues with government authorities.

G-TECH, which denies wrongdoing, says it will provide any additional information the senators need.

3. Senators Question Tax Shelter Letters
Miers's Law Firm Sold Documents Backing Arrangement the IRS Criticized

By Jonathan Weisman
Washington Post Staff Writer
Thursday, October 27, 2005; Page A08

Senators from both parties are pressing Supreme Court nominee Harriet Miers about her former Texas law firm's lucrative business helping to promote tax shelters that were subsequently deemed abusive by the Internal Revenue Service.

The actions of the firm Locke Liddell and Sapp, which Miers headed for much of the 1990s, received glancing scrutiny early this year, when the Senate Permanent Subcommittee on Investigations released a scathing report on the tax shelter industry. The report quoted the legal adviser of a potential investor as blasting the firm for effectively signing off on a "classic 'sham' tax shelter."

Now that the firm's former co-managing partner has been nominated to the Supreme Court, senators are zeroing in on Locke Liddell's efforts.

Sen. Norm Coleman (R-Minn.), the chairman of the investigations subcommittee, said yesterday he is "very seriously concerned" about the firm's sale of cookie-cutter legal opinions, attesting to the legitimacy of tax shelters promoted by accounting giant Ernst and Young. He said he will raise it personally with Miers today.

"I have a high standard for the ethics of a Supreme Court justice," Coleman said. "These were very questionable transactions, and the volume of work done on this was substantial -- in the millions of dollars."

In the late 1990s, as the stock market boomed and the rich accumulated wealth at unprecedented rates, the major accounting firms went into business developing and selling intricate ways to shelter income from taxation. They would then refer clients to prominent law firms such as Locke Liddell, which would issue opinion letters that individuals could present to the IRS as a defense for their actions. The tax shelters involved funneling income through short-lived business partnerships that could be written off as losses.

Sen. Max Baucus (Mont.), the ranking Democrat on the Finance Committee, sent the firm a five-page letter last week, demanding detailed explanations about Locke Liddell's activities on behalf of Ernst and Young's Contingent Deferred Swap tax shelter, which fell under IRS scrutiny in 2000 and was designated as abusive in 2002.

Such an inquiry could spell still more trouble for a nominee already facing questions about her credentials and political beliefs. White House spokesman Dana Perino said the matter was not relevant to Miers's nomination because she was not involved.

"Harriet Miers had nothing to do with the tax shelter transactions at issue, nor did she work with the clients involved. The majority of the relevant transactions took place after Ms. Miers had left the firm," Perino said.

In fact, just over half of the transactions involving Locke Liddell were done while Miers was with the firm, according to John H. McElhaney, a lawyer at the firm. Miers is not a tax lawyer, but as co-managing partner, she should have been aware of such a lucrative part of the firm's business, Senate investigators from both parties said. McElhaney agreed in an interview yesterday that given the flow of money involved -- an average of $1.8 million a year between 1999 and 2001 -- "it's a fair assumption that she was aware" of the activity.

Ernst and Young began work on the Contingent Deferred Swap shelter in 1998, and then enlisted Miers's firm to provide clients with a letter indicating that the shelter "should" be upheld in court, according to the investigations subcommittee.

Typically, Ernst and Young would receive $250,000 per sale. Locke Liddell would get $50,000 or $75,000 a letter, McElhaney said. From 1999 to April 2002, 74 such transactions were sold to 142 taxpayers, with Locke Liddell issuing 132 opinions worth as much as $5.4 million, McElhaney said.

Miers was elected president of the firm Locke, Purnell, Rain and Harrell in 1996 and was made co-managing partner in 1999 when Locke Purnell merged with another firm to create Locke Liddell and Sapp. She served in that position until 2001, when she joined the White House staff.

Under the tax shelter arrangement, the client would create a business partnership and transfer income in the form of payments to that partnership. Those payments would then be written off as losses to offset taxable income, according to the investigations subcommittee. The following year, the partnership would be dissolved. Its funds would be treated as capital gains, and thus would be taxed at a lower rate than ordinary income.

McElhaney yesterday stood by the firm's opinion and said no court has ruled the transaction illegal because the federal government has never prosecuted a case to judgment.

"Just because there's been an opinion by the IRS doesn't mean it's illegal," he said.

But Locke Liddell's legal opinion was repeatedly questioned when it was for sale, not just by prospective clients but also by some at Ernst and Young. In September 1999, a client of Ernst and Young was troubled by the firm's legal opinion.

"I have reviewed the materials you provided to me," the client's lawyer wrote in an e-mail to the accounting firm after examining the Locke Liddell opinion letter, "and from all indications, the transaction appears to be a classic 'sham' tax shelter."

On Sept. 8, 1999, one Ernst and Young tax professional complained that the Locke Liddell letter did not comport with Ernst and Young's own opinion about the deal's legitimacy. The shelter could not even be considered "more likely than not" to be upheld in court, let alone that it "should" be upheld, according to the e-mail.

The tax shelter is not the only Locke Liddell-related issue under scrutiny by senators who must consider Miers's nomination.

In 2000, the firm agreed to pay $22 million to settle a lawsuit stemming from the firm's representation of Russell Erxleben, a former University of Texas star football kicker whose foreign currency trading company was alleged to be a Ponzi scheme. Erxleben had bragged that he had the same law firm as then-Texas Gov. George W. Bush, according to Senate investigators.

In 2001, Locke Liddell settled a class action suit for $8.5 million with investors who alleged they were defrauded in a fake bond scheme operated by firm client Brian Stearns, a Texas businessman sentenced to 30 years in prison after he was found guilty on 80 charges, including money laundering and securities fraud.

---

Not to mention more Karl Rove hijinks as it relates to James Dobson. ?She would have had a lot to answer for at the confirmation hearings, and it could have been disasterous in many different ways - not the least of which igniting new scandals.

Lets not be confused, this official line about "White House documents" is a complete red herring. The White House knew when making this nomination that such documents were likely to be requested and could have stonewalled that like they did with John Roberts. Its simply the best excuse they could muster up to still kind of blame Democrats even though Republicans were at least just as adament about requesting those documents and the only real contention, and the only negative ads, have come from the right. It saves them from dealing with what could have been another full-blown scandal during the hearings. Its an extraordinarily, yet typically pathetic chapter of this administration, on just about every level.

Wrong.? Actually it would still be taking place.? Read my initial reaction as soon as I heard of the nomination:

http://www.heretodaygonetohell.com/board/index.php?topic=22837.msg398438#msg398438

In my first post on the nomination I actually stated that I thought she would be quite conservative.? However, her qualifications were not good enough for me.

Couldn't envision a better nomination? ::)?

There is a difference between asking her to withdraw by the party that nominated her because she is not qualified, and the opposing party not giving her a vote because they disagree with her judicial philosophy.? I don't think the republicans have lost any high ground.? Name one Republican Senator that asked for her nomination to be withdrawn?? There certainly weren't many.? In fact, most wanted to wait until after the hearings.

If he does this I will be astonished; name another political hack to fill the seat of another political hack.? Although I shouldn't be surpised if he does this considering he nominated Miers shortly after the Brown fiasco.
I'll bet it has more to do with the fact that writings that have come forward show that she is a below average legal writer, she completely botched an easy consitutional issue when discussing it with the Senators, she had to redo her questionaire because it wasn't sufficient, and because she confused Warren Burger and Earl Warren.

I meant in the general sense.  Im positive that the initial furor was over her lack of "conservative credentials."  Perhaps youre an exception, but conservative bloggers, message board posters, and pundits all explicitly stated this as their primary cause of concern within hours of her nomination.  They screamed about the fact that she donated to Al Gore and was even a Democrat.  And lets not kid ourselves, "conservative credentials," "conservative judicial philosophy," "legislating from the bench," "judicial tyranny," "ideological purity"....it all boils down to abortion in todays political climate.  Do you think theyre biting their nails in uncertainty over how she might rule in business cases?  It all comes down to abortion.  The fact that shes an apparently abysmal nomination otherwise is secondary and provided an adequate rationale for opposing her.  And perhaps that is the real reason for some, but her conservative track record, or lack thereof, was the real issue for most conservatives.  Its the reason the White House felt it necessary to hammer home her religion.  Its the reason Bush had to constantly justify his decision by asserting that he "knew her heart."  Its the reason that Karl Rove and Dick Cheney had to justify the choice to James Dobson and Rush Limbaugh, respectively.  If you think Rove was talking to Dobson about how good she is techinally, youre mistaken.  If it was known hours after her nomination that she was strictly anti-abortion, theres really no question that things would have been a lot different.



Not from this president, no.  I assume that you think Janice Rogers Brown is a good nomination...I do not.  Therefore, I cant envision Bush making a better nomination - one similar to Sandra Day O'Connor.


I dont think any senators publicly, officially opposed the nomination.  But if you think that Trent Lott, or Sam Brownback didnt work off-camera to relinquish this nomination, Id again suggest that youre mistaken.  Lott made his contempt for Miers very apparent, stopping just short of guaranteeing an opposing vote.  And I think that accepting this "qualifications" arguement is naive.  I know that it wasnt the main issue among pundits, bloggers and commentators, I strongly suspect the same of senators.  A secondary issue, sure - not the primary one.  However the point is that the right has continuously asserted that the president should be allowed to choose his nominee and have a "simple up-or-down vote."  Arguing for the nominations withdrawal, regardless of the rationale, undermines that principle.  If they had a problem with her qualifications, and they subscribe to that philosophy, they should encourage her vote anyway and vote accordingly.  And I know youll say that no senators officially asked for her withdrawal (even though the entire base did), but they certainly pressured her withdrawal through constant criticism and I suspect attempted more behind-the-scenes.  The bottom line, the Right-Wing betrayed their up-or-down philosophy by wanting her withdrawal.


Well you basically responded for me.  :hihi:  I certainly dont like Alberto Gonzales, but I certainly prefer him to nearly any short-list federal judge thats been mentioned...or John Cornyn.


Well Id propose that if you held that same intellectual standard to the highest office, wed have a different president.

"I also have picked a secretary for Housing and Human Development.  Mel Martinez from the state of Florida." ?George W. Bush, Washington, D.C., Dec. 20, 2000

"They want the federal government controlling Social Security like it's some kind of federal program." ?George W. Bush, Nov. 2, 2000

"Kosovians can move back in." ?George W. Bush, CNN interview, April 9, 1999

Just a sample, of course. 

She didnt just become inadequate...shes no more an inadequate, crony nomination today then she was three weeks ago.  If this outside pressure wasnt mounting and an inadequate questionaire was filled, I dont think she would have been pulled like this. 

So you don't think any conservative who is a constitutional law expert and is not a crony of the president would make a better Supreme Court Justice than Miers ???

Unless were discussing a moderate conservative such as Sandra Day O'Connor: no.? Robert Bork fits into the criteria you just offered.  If Im a senator, Im not voting for a nomination that I feel will make regressive, oppressive, or harmful decisions and I think that George W. Bush is inclined to make such a nomination post-Miers.? Id rather risk confirming an inadequate but potentially moderate nominee such as Miers than a Right-Wing reationary such as Janice Rogers Brown.

You seem to have a thing for this Janice Rogers Brown you keep mentioning. What is it about her that makes you think that she "will make regressive, oppressive, or harmful decisions "? Is it because she is black?

Regressive and oppressive?  In which way?  I think most conservative legal scholars aren't arguing for a nominee that is an activist conservative, they are arguing for an originalist.  They are not trying to find someone that will find a right to life (abortion wise) in the due process clause. 

Before you call originalists activists, I would suggest the main difference: (here comes a generalization) those that seem to have the more liberal judicial philosophies tend pay more attention to rights not specifically enumerated in the Constitution (right to privacy, right to abortion, Miranda rights, right to homesexual sodomy) and often disregard some specifically enumerated rights (6th Amendment confrontation clause, contracts clause, "public use" clause of the 5th and 14th amendment, First Amendment in regards to Campaign Finance).  If you think disregarding some enumerated rights and creating rights out of the blue and bypassing the democratic process is progressive, I'll have to disagree.

what harmful decisions do you have in mind.

 ???

If youve been paying attention to recent coverage, you would know that Brown is a leading short-list candidate for nomination, so that would be the reason I mention her. ?

She ironically has a dubious record on issues of discrimination, is completely opposed to affirmitive action, and is likely to overturn Roe v. Wade if presented the opportunity since she apparently has little obeisance for precedent. ?

However the fact that you chose to make her race an issue certainly says a lot about you. ?You had absolutely no reason to mention her race apart from your own personal issues with it. ?Unfortunately, many like you have used her race as a shield for criticism and a tool for race-baiting which is pathetic as it is laughable.

You say you won't vote for a nomination that makes regressive, oppressive, or harmful decisions, and then you single out the one black woman who is under consideration for the spot, when there are many white and hispanics, male and female conservatives in the running. But now you accuse me of making race an issue. ::) Indeed, "pathetic and laughable." Do you think Judge Clarence Thomas is also regressive?

And you say Brown has a "dubious record on issues of discrimination," but then you go and attack her for opposing the discriminatory policy of affirmative action? This contradiction makes no sense whatsoever? :confused:

What are you basing your claim on that she doesn't follow precedent??


I see this precedent thing used quite often and I think it is funny when those that pursue a so-called progressive judicial philosophy point to precedent.? You do realize that Lawrence v. Texas, which said that criminalizing homosexual sodomy was unconstitutional overturned precedent of less than 15 of Bowers v. Hardwick; and Roper v. Simmons overturned precedent in regards to Capital Punishment for minors.? I didn't hear one of the people that follow this precedent line (which they try to use as a justification to Roe) say one thing about those cases.? Seems like they like some and not others?

Furthermore, it is funny to see those that argue for a "living Constitution" make this precedent argument.? Isn't the foundation of the "living Constitution" that times change and so should the law?? Do we never overturn precedent?? I wonder if people realize that most of the decisions that these people talk about as precedent were overturning previous precedent before that.

I personally don't think precedent holds too much water.? When a decision is wrong, it should be overturned.? Just like Plessy v. Fuergeson, which was settled law and judicial precedent, Roe was decided incorrectly and should be overturned.? Even if it is overturned, it will probably still be legal in 45 out of the 50 states.? Again, I am hardly a pro-life religious conservative.? Bad decisions in one area breed more bad decisions in other areas.

Roe v. Wade was decided correctly. It's a privacy issue. The Federal government doesn't have to right to tell women if they can get an abortion or not. Outlawing abortion would be a bigger disaster than prohibition. Women will do it anyway, or go to Europe if they have money.

From what I understand, its well understood that her opinions often argue against established precedent. ?Perhaps Im wrong - feel free to correct me.

However you do make a good point about the paradox of deference to precedence - somewhat similar to this (http://www.law.com/regionals/ca/judges/supreme/brown.htm):

Not that government is all bad. Having experienced desegregation firsthand as an African-American child in rural Alabama, she considers Brown v. Board of Education a great ruling, even while acknowledging it represents the kind of judicial activism she disfavors. "How could anybody of my background not think that Brown was an extremely good idea whose time had come?"

My concern isnt wholly about adherence to precedent, but a lack thereof (especially to modern precedent) coupled with an extremely conservative, reactionary disposition and unabashed hostility for government. ?Overturning Roe v. Wade is what I would consider a regressive decision. ?Stifling rights for homosexuals is regressive. ? Weakening the seperation of church and state is regressive. ?Now of course I cant definitively say that should would do make these decisions, but from what I know about, Im inclined to believe that shes more likely to than not. ?"Thus, lawyers have secured the right of topless dancers to perform, but have banished prayer from public life." ?The implications of a quote such as this makes me uncomfortable. ?Thats not a nominee I can support. ?



I dont think you understand...you were the one that made her race an issue.  I used her as an example because shes a well-known frontrunner and made no reference of her race because it had absolutely no relevance to anything.  Youve made your racial issues very apparent. 

Actually, that quote was by me, not Berkeley. The way you quote different people in a single post without indicating who the quotes are from makes it confusing.

And apparently you don't understand. When you talk about people being regressive, and then you pick on the one black woman in the running, when there are plenty of other non black candidates with similar views, it speaks volumes. It looks like you did it subconsciously and didn't even realize it, but you introduced race into this. I am merely responding to your actions.

Im aware.? If you look again, youll see that BerkeleyRiots quote has "BerkeleyRiot" written above it.? : ok:


 :hihi:

This is the last Ill respond to this pathetic suggestion.?

You injected race into this.? Janice Rogers Brown is one of the most high-profile candidates on a very short list, and just happened to be the first one to come to mind.? I didnt take her race into account for one second before you witlessly brought it up.? I understand that, as somebody seemingly incapable of looking past race, you cant understand how one could do so.? Its an opportunity for someone who typically has their own racial issues to "play the race card," and while its laughable, its also disturbingly indicative of your own hang-ups.? And unfortunately, that behavior has been typical of Right-Wingers concerning Rogers Brown, or any other black person that pushes their agenda.? The fact that shes black played on your mind, not mine.? You felt compelled to tie her race into the discussion when it had absolutely no relevance whatsoever.? I was talking about a judge, you had to talk about a black judge.? Youre apparently incapable of discussing a black person without drawing attention to their race.? ?

But considering your penchant for calling gays "fags," your bigotry certainly does not surprise me.?

And it just so happened that the black woman happened to be the first one to come to your mind. My, what a coincidence!

Also, I'm not the one who considers her "regressive," but you have the insolence to call me a bigot ::)?

Hey, maybe Booker can join the "HTGTH Gestapo", as you put it....




/jarmo

I doubt very much that Booker is racist at all.  Brown is one of the more high profile nominees and considering that the consensus was that Bush should appoint a woman her name came up often.  Come on Pop, you make a lot of very insightful posts, don't stoop to the levels of others on this board.  I saw some on this board trying to portray you as a racist a few weeks ago; don't fall into that same trap.

Not to be an ass, but have you ever read the opinion or the Constitution?  Because if you haven't it is not worth me explaining legally why it was a poor decision.  As I have said before, most people are outcome oriented when it comes to the Supreme Court.  However, that is not how the Court is supposed to work.

I've read in years ago, when I saw a senior at College. I agree with the basic premise, it's a privacy issue.

And where exactly is this right to privacy in the Constitution that takes the power of the legislative branch away in this area?

To any that are interested, here is an excerpt from a case involving the second amendment.? I came upon this case here: http://instapundit.com/archives/026483.php

This is Judge Kozinski's dissent.? Kozinski is is on the Court of Appeals for the 9th Circuit.? He is probably one of the brightest legal minds in this country.? I haven't heard his name mentioned at all for the court, but he definately should be mentioned.?


"Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that ?speech, or . . . the press? also means the Internet, and that ?persons, houses, papers, and effects? also means public telephone booths. When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases--or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we?re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as spring-boards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it?s using our power as federal judges to constitutionalize our personal preferences. . . .

All too many of the other great tragedies of history? Stalin?s atrocities, the killing fields of Cambodia, the Holocaust, to name but a few?were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. See Kleinfeld Dissent at 5997-99. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars. My excellent colleagues have forgotten these bitter lessons of history."

Read the whole thing, it is very good: http://notabug.com/kozinski/silveira_v_lockyer

I can't phrase it as articulately like him, but I agree.

It is wrong to use some constitutional provisions as spring-boards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions.

The type of hypocrisy he is talking about is exactly why we need judges who will interpret the constitution strictly and will not legislate from the bench.

Anyway, he seems like an excellent candidate for SCJ. He understands the purpose of why we have a constitution and laws in the first place, and, unlike Miers, he has the experience and intellectual prowess to serve on highest court in the land.

Right here (although it doesn't give, specifically, the right to privacy you're asking about):

Amendment IX.

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

Amendment X.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The constitution does not give them the right, specifically, to make the law. Therefore, the fed shouldn't have it.? I agree that Roe v Wade was, perhaps, not correctly decided, in that it basically prohibited ANYONE from making the law to govern abortion.

To me, it appears to be a cut and dry "States Rights" issue.?

I disagree about the Ninth Amendment providing a basis for the right to privacy.? The Ninth Amendment was not included in the Constitution as a provision in which the Supreme Court is to enforce certain rights.? ?Rather, it was included as an interpretive protection to the enumeration of the Bill of Rights.? Recall that many of the Founding Fathers, including Hamilton in the famous Federalist Paper 84, argued that there was no need for a Bill of Rights because the power given to the Federal government was specifically enumerated.? In other words, because Congress did not have the power to establish a religion in Article I section 8 there was no need for providing a clause in a bill of rights that prevented the Federal Government from passing laws in that respect.? It became clear, however, that the Constitution could not be ratified unless the Constitution included a Bill of Rights.? Because of the argument that Hamilton and others made, many feared that including a Bill of Rights would lead to a broader reading of the Article I section 8 powers.? In other words, if the Founders had to expressly exclude Congress from legislating in certain areas, despite the limited enumerated powers of Art. I section 8,? then it is logical to read the Constitution that absent such Bill of Rights Congress would be able to legislate in those areas.? However, it would be impossible to make a list of everything that the states wanted to prevent the federal government from legislating under.? Thus, they inserted the Ninth Amendment.

The enumeration in the Constitution, of certain rights, (including a Bill of Rights) shall not be construed to deny or disparage other retained by the people (shall not be read to assume that Congress had that power to legislate in those areas absent a bill of rights).

History certainly supports this reading.

Furthermore, it would quite odd for a provision that limits the power of the Federal government in favor of leaving the power to the states to be incorporated into the Fourteenth Amendment to be used against the states (as in Roe or Griswold).

Then Tenth Amendment is much more clear.? It specifically refers to powers.? Where the Ninth Amendment was included to prevent a broad reading of the Article I section 8 powers, the Tenth was included to make clear that the enumerated rights were the only ones given to the Federal Government.? Thus, if it is not listed, they don't have the power to legislate in that area and that area is reserved to the states.

I agree with this 100%.? I do not believe that there is "right to life" prohibiting the states from legalizing abortion anymore than I believe there is a right to privacy prohibiting the states from criminalizing it.

So you agree then that it would be unconstitutional to REVERSE Roe V Wade (meaning allow the Fed to create a law making abortion illegal).? You want it "overturned" in the sense you want the Supremes to make it a State's Rights issue??

Sounds reasonable to me....

Edit: My point in including IX and X together, in my original post, was that, taken together, they were the granting of State Rights, and the limiting of Federal Power in areas not specifically covered by the Constitution.? And it is State Rights that is the thing that takes away the power of the legislative branch in "right to privacy" matters.

In sum total, the two ammendments seem to say:

IX:
Just because we only listed these rights (The Bill of Rights) doesn't mean they are the ONLY rights the people are entitled to.  They are, however, the only rights which can/will be legislated or controlled by the Fed.

X:
Whatever rights the people or State might wish to grant/have are solely the authority of the State to govern, and not the Federal Government, outside of those specifically listed in the Bill of Rights.

I certainly don't believe that Congress has power to outlaw abortion.  Granted, of course, you could probably justify it under the current commerce clause jurisprudence.  However, I think the commerce clause jurisprudence has been a mess ever since Wickard v. Filburn.  They had a chance to continue to draw back on it with Reich, but chose not to.

The whole issue of reversing Supreme Court decisions is an interesting one.  It actually goes down to the whole debate over judicial supremacy.  I believe that the Supreme Court was meant to be the final arbiter, thus Congress could not overturn SC decisions.  Especially since abortion is part of the right to privacy which the justices claim is actually part of the Constitution.  Of course, this is much different than cases such as Miranda v. Arizona which originally created the Miranda rights as a buffer based on the Court's supervisory powers, to protect Constitutional rights, but not as an actual right (of course this was debated).  In those cases Congress should be able to overturn cases.

To summarize, yes, thatis basically my position.

I think we are on the same page.  Those provisions are definately States' rights provisions.  While it does take the power away from the legislature, it is the Federal legislature and not the state legislature.  I don't think those provisions should be read to create judicially enforceable rights.  Rather, if Congress chooses to legislate in those areas, the decisions should limit the government based on a limited reading of the Articel I section 8 powers, not on a right to privacy from the pnumbras in the Constitution.

Yup, I definitely think we're on the same page. :)

Looks like it will be Luttig or Alito.  This could be a great day for the country.  Both would be outstanding Supreme Court justices.

What do you think those on the right will make of this (http://www.nytimes.com/2005/10/30/weekinreview/30rosen.html?ei=5090&en=aaedb14066699300&ex=1288324800&partner=rssuserland&emc=rss&pagewanted=print)?:

. . . [T]he idea of superprecedents is more powerful than a simple affirmation of stare decisis. An origin of the idea was a 2000 opinion written by J. Michael Luttig, a judge on the United States Court of Appeals for the Fourth Circuit, who regularly appears on short lists for the Supreme Court.

Striking down a Virginia ban on a procedure that opponents call partial-birth abortion, Judge Luttig wrote, "I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey," the case that reaffirmed Roe in 1992, "to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy."

Also, do you take issue with his apparent reverence for such precedence?

I have not read the entire opinion of what the article is referring to.  However, I doubt very much that Luttig would hold Roe as superprecedent in the sense of not being willing to overturn it.  I believe Luttig is an originalist.  Among originalists there is disagreement as to when original understanding should be set aside because of precedent.  For example, recent scholarship shows that the interpretation of the 14th Amendment from an originalist perspective has been completely wrong in a number of different ways.  Most scholars believe that the Privileges and Immunities Clause was meant to do the real work in that Amendment, not the due process clause.  Most originalists would not suggest that we go back that far, although some do.

Luttig was on the Fourth Circuit Court of Appeals.  Being a judge on a Circuit court, Luttig was bound by Supreme Court precedent.  Thus, he could not have overturned Roe or Casey even if he had wanted to.  If you recall, prior to Casey both Kennedy and O'Connor had written opinions critical of Roe.  In fact, O'Connor argued for it to be overturned.  The whole reasoning behind not overturning Roe, in Casey, was that based on Kennedy's and O'Connor's argument about precedent (an argument that Scalia absolutely destroys, and then further makes a mockery of in Lawrence when they refuse to follow their same reasoning from Casey).  Thus, since the entire decision in Casey was written based on those justices' view of precedent, it is not surprising that Luttig used that language when overturning the partial birth abortion law in the 4th Circuit.  In other words, I don't think it is telling of anything about his view point on precedent.

The fact is, most justices have differing viewpoints on precedent.  For example: http://volokh.com/posts/1120411716.shtml explains Thomas's viewpoint.  Here is an interesting article on precedent for originalists written by Randy Barnett, one of the scholars cited in the NY Times article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=714982 (sorry it has to be downloaded).
 


Personally, I tend to be in more of the Thomas mold.  If something was a bad decision that is inconsistent with the Constitution than it should be overturned.  For example: Plessy was superprecedent under any standard.  However, it was incorrect and should have been overturned.  Thus, I think there are certain factors that must be taken into consideration when determining whether something should be overturned or not.  I tend to fall on the side of overturning, however, there are instances where I think precedent should be considered.