On the party-line Alito Senate Judiciary Committee vote, here’s John Podhoretz, writing at the Corner:
Though it’s certainly true that there’s too much partisanship now and that it’s terrible we can’t come to agreement on judges blah blah blah, there’s something nicely austere about Samuel Alito winning approval from the Senate Judiciary Committee without a single Democratic vote. I mean, who would want a grubby yea vote from Ted Kennedy? A stuffed-up yea from Pat Leahy? A yea vote from Joe Biden that would take 17 minutes to cast? It’s not clear to me that if Herb Kohl read the word “yea” on the piece of paper he sticks in front of his face when he actually has to say anything, that he would even be able to pronounce it correctly. Their performances during these hearings were shameful, so who needs ‘em?
Well, we as a working republic do, in the sense that our republican system of government needs a functioning and coherent advice and consent process that is not simply a stage for grandstanding politicos who wish to use the forum as a fundraising exercise.
These hearings have become nothing more than exercises in the marketing of political soundbites, and SCOTUS is threatening to become, almost by force of will, an extension of the legislature with superlegislative powers.
Some have suggested scrapping the hearings altogether; others say we should simply stop televising them to take away some of their media appeal (in fact, I may have suggested that myself once upon a time—though I can’t honestly remember, because as many of you know, I spend a good deal of time drinking Sauza through a lime-flavored swizzle stick). But my past pronouncements aside, it seems to me now that the only way to fix the system is to make it MORE public—to reassert the role of the judiciary, and to given public lie to the creeping belief that SCOTUS is supposed to be “representative” of the spectrum of America, a kind septuagenarian and ideologically-forged Benetton in stylish black robes.
But that is not the role of the Supreme Court. And there is no mandate to replace one justice who tended to vote in a particular way with a virtual clone in order to maintain an artificial balance which, like “diversity”, is often presented as a wortwhile end in itself.
Which it is not. It is anathema to our system of justice, where Justices are enjoined to look at the law dispassionately and interpret it based on a text-based rigor, not to serve as advocates, or to play the role of Solomon.
The judicial system is coequal. Giving it that superlegislative role, or rather—allowing time and a continuation of advice and consent that splits directly down party lines, effectively politicizing the judicial process at the nomination level—would turn SCOTUS into an unelected panel of lifetime-appointed bureaucrats who can effectively and substantively destroy (in the sense of make moot) the democratic process that provides our checks and balances.
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Ditto “stability”, which has killed hundreds of thousands because people like jimmy Carter preferred stability to liberty.
Word.
After watching some of the paid political grandstanders at work in these hearings, I’ve come to believe that television is the portal through which all evil (meaning interest group bucks) flows. Cutting the interest groups and their paid hatchetmen off from TV exposure is like denying real humans oxygen. Without TV, I’d like to believe that even Dick Durbin would act like less of a douchebag.
Although even the most optimistic observer knows that Ted Kennedy would still act like a drunken whore at church on Sunday even if he were the last man on earth.
I wonder what Lincoln would have done with “him”?
I take it I failed to convince you that, despite the Supreme Court already being an unelected panel of lifetime-appointed bureaucrats, federal judges should be subject to retention elections. I’d steal your bandwidth and point to Vote for Judges, but that horse died last July.
BTW, is there a trick to doing a trackback to PW? Or is the trick not to try?
Make it into a “Mr. or Ms. Supreme Court Beauty Contest” consisting of talent, an oral interview(Question No.1 “What color or you”), and a bathing suit display. Just the suits on hanger, oh lord please not on 55 to 60 year old Yale or Harvard graduate bodies. Then Bert Parks can sing from the grave while the winner beams and cries for the cameras. Loser gets a ride home from Sen. Kennedy.
Much ado about nothing. Democrats in congress will continue to act as children, and they will continue to attrack a smaller following–simple as that.
The last Democrat to receive a greater than 50% share of the presidential votes was LBJ in 1964.
IIRC, in 1988, when the Democrats had a 295 seat majority in the House, over 100 held anti-abortion views, literally none do so today.
The Democrts have marginalized themselves into a party that pimps for a few of special intrest groups: NEA, PFAW, NARAL, INT’L ANSWER. As Progressives they’ve come to favor the status quo: leave Saddam in power, don’t reform Social Security, no choice in education, and the UN as a paragon of morality.
JPod is correct about one thing: the Democrats’ “perfomances during these hearings were shameful, so who needs ‘em?” Republicans do not need to give them any cover, in fact, Republicans should work to expose this contemptible behavior every chance they get.
The country will survive. Democrats are taking positions that engender smaller, and smaller public support.
As Democrats refuse to work with the majority, they will garner results acording to such obstructionist efforts, and therefore Democrats will have little influence with the nation’s agenda. So be it.
Look, the Federal Reserve’s current power, the Supreme Court’s, all the administrative agencies’ that have administrative law powers, exist to push the accountability of making laws and regulations into bureaucratic mazes and fogs and technical puzzle domes, and out of where The People might watch its representatives. The Senate was suppose to be the place for the Wise Men. It has come down to it now that the Senate is a six-year-with-renewal whorehouse where pomposity and grandstanding are the point of the exercise. A serious political system gains from insolating law-making greybeards from faction. If cannot find a place for an aristocracy of the putatively wise (however truly wise it might be) to assert itself in the formal legislature, it will find other means to let that aristocracy to legislate from other insolated crannies of the state.
I agree with Forbes, the dems are maginalising themselves right out of relivance. They are in a downward spiral of delusion where their decreasing influence causes increasing desparation and idiousy. I predict after further loses in 2006, the party will embrace Leiberman, the country will forgive the madness, and the poisenous atmosphere in DC will moderate somewhat. But then what do I know, I thought the Broncos were going to win last week.
Hope springs eternal, and I really believe our form of government needs at least two strong partys, to provide perspective. God help the democrats!
TW-“french”…I don’t quite know what to do with that, it’s right on the tip of my tongue…
Look, I agree with you on the obvious logical deficiencies of the Dems….
but
?
What does that mean?
You mean ignore the common-law?
Ignore the Restatement (Second) of Judgements? Torts? Contracts?
Ignore the MPC?
What about statutory construction?
There is no pure law text.
This isn’t Huckleberry Finn….
otherwise, it would be easy.
Wow, lookie at Toby taking a shot at my professional training. It’s not often I get so baldly condescended to.
So. I’ll break it down for you in a way that you don’t feel like you need to step up and suggest I’m dishing out bullshit. And in return, you can refrain from ever having to pull out your legal dick and waggling it for me and whoever else happens to be reading here again. Fair enough?
Text-based rigor, as I was using it, was shorthand for whenever possible, using the plain text + the accretion of precendent and stare decisis where it best applies most clearly and obviously, and then as a rule avoiding finding penumbras and emanations as part of your interpretive arsenal; the same goes for finding ways to broaden existing law based on analogies that are not in fact as rigorously considered as they can possibly be (and here, as an example, I’ll cite what I see as slippery slopes in expansive commerce clause power with Raich, “public good” in Kelo, and, as a rule, in decisions based around the idea of coercion—particulary as they relate to potential states of mind; such law that attempts to adjudicate thought—under the guise of good or ill—creeps me out.
I’m sorry I don’t have the time in each of my posts to take each phrase I use and break it down in the most complete way possible so that commenters like you don’t have to show up later and put me in my place with your litany of official sounding hypotheticals that, frankly, don’t undermine my point one bit—nor do I have the time, in between diaper changings, writing posts, answering emails, and trying to live my life to rehash my philosophical differences with Gadamer, Ricouer, et al., on legal interpretion and intentionalism (if you’re interested, you can search for my post where Stanley Fish tried to dismantle Scalia) just because you want to look like a hard-nosed skeptic of my loose language, or because you want to distinguish the reading of law from the reading of literature for the purposes of diminishing one of the two exercises.
For the record? Huckleberry Finn shouldn’t be easier to interpret than law. There’s your irony. Which is why even though there is no “pure law text” (and what do you mean by “pure,” anyway, or “text”, for that matter?), that doesn’t mean that a rigorous text-based approach (as opposed to an approach that figures into its “readings” the priviliged contingency of contexts or the specter of “unintended consequencies” or the notion of “a living Constitution” or the expansion of legal theory to the introduction of internatioal law) isn’t the proper way to go.
In short, text-based rigor means precisely that. Originalism has its problems when it runs into ratification intent; strict constructionism runs into problems when questions of enumerated powers arise. Etc. But those problems don’t mean that the best way to interpret law is to try to divine its intent, then work from there historically.
Now. I hope my tone hasn’t come across have as arrogantly or rudely as yours. Because that would just suck.
(Did T. Marcell just bring a knife to a gunfight?… hypothetically speaking)
At the risk of sounding dim-witted, seems to me that
is telling both as a statement of common sense, and illustrative of the legal profession’s own self-preservation instinct; I mean, if laws were written so that lay people (people without law degrees, in this context) could understand them <gross oversimplification>we wouldn’t need lawyers everytime we wanted to sign a contract </gross oversimplification>. Hence, Marcell’s challenge of Jeff’s “text based rigor.”
I’ve always contended that laws are written by lawyers (in the guise of legislators) to keep lawyers in business. Like most rules there are exceptions, but for the most part lawyers are in the unique position to be able to create demand (through legislative practice) of creating demand for their own services. I mean, there’s not much of an open market for lawmakers, now, is there?
And I realize that I might be committing the same error we (rightly) complain about re. the Left in that I’m assigning meaning to Marcell’s post. I’m really not pretending to do that.
Just wanted to make that clear – I’m fitting his post into some preconceived notions of my own. I’m not saying I’m necessarily wrong, but I will admit that it’s my opinion and not necessarily fact.
Unlike, say, some of Bill Bennett’s critics.
And once again I ask, why, specifically, does the Democratic Party, the party of slavery, secession, segregation and surrender, the party that brands itself as the party of minorities, women and the working man that marches behind a Klansman, a woman-killing drunken whoremonger and a union-busting, botox’d California harpy, have to be part of that process?
And isn’t it insane to assume they can function that way?
“Huckleberry Finn shouln’t be easier to interpret than law.”
You spelled “shouldn’t” wrong.
Wheeew!, Jeffrey, as usual, taking seven paragraphs to say what you could have in one.
At least that speaks to your “professional training” though, eh?
And thank you for describing my legal dick’s erudition as “waggling” when, as so often occurs, what it really wants to do is shake, shimmy, and the occasional, shamma-lamma-dingdong, but I defer to your adejectival eminence here.
Contrary to my waggling legal dick, your exceedingly flaccid arguments ignore the complications involved in interpreting existing statutory or common-law. It’s not just a matter of reading a single text and explicating what should be derived therein, usually, statutory law is derived from common-law, which means that judges determined antecedently the scope and definition of the law.
Therefore, any “originalist” reading, with which, by the way, I usually agree–and am wholly in favor of Alito’s certain nomination–must still subsist on prior juducial interpretations. The Model Penal Code and Restatement of Contracts and Torts are good examples of the juduciary pre-dating legislative mandate.
In any case, while I agree that justices (Sandy? I’m looking in your direction) can create out of whole cloth the rights they wish to establish, legal interpretation typically has to consider a whole host of other influences, including the canons of statutory construction.
And Whackdaddy? You are correct in that legalese and insular knowledge constitute a peremptory, even cardinal position regarding legal issues, e.g. in personam jurisdiction determination in cases wherein you might have an in rem cause of action keep us in business.
You now owe me $200; services rendered.
Nan, if I knew who the fuck you were, I might care.