Miers withdraws nomination

[Booker Floyd]

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.

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

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.

 

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.?

[POPmetal]

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.

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 ?

[jarmo]

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

[Surfrider]

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.

[Surfrider]

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.

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.

[RichardNixon]

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

[Surfrider]

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?

[Surfrider]

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

[POPmetal]

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.

[pilferk]

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?

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.?

[Surfrider]

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?

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.

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).

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.

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.

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 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.

[pilferk]

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.

[Surfrider]

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....

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.

[Surfrider]

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 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.

[pilferk]

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 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.

[Surfrider]

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

[Booker Floyd]

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?:

. . . [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?

[Surfrider]

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?:

. . . [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."

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).
 

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

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.