Patterico's Pontifications

I guess this thread is as good as any to ask some q’s, w/my own a’s in brackets.

1. Which problem has been greater over the years w/SCOTUS: judges who did not understand the law from the get-go, or judges who understood it well but, lacking stability, drifted Left and twisted the law to instead satisfy their own preferences?
[drift]

If one of these two probs has been the more common, in what ratio?
[100:1? maybe higher.]

2. How effective have paper trails been in the past at predicting judicial stability?
[not at all]

How much more often than by chance do paper trails and stability correlate?
[no real correlation at all that I can see]

3. What factor has had the greatest correlation in the past with subsequent stability?
[significant time in Washington beforehand. If you ain’t been seduced and are still a constructionist after having been there awhile, you’ve proven you can handle it, I guess]

4. What criteria would you use to ensure (inasmuch as that’s possible) stability from a nominee?
[time in Washington, personality, judicial philosopy, and yes in that order, cuz JP will change if the person has elitist tendencies]

—

I wouldda picked someone other than HM myself, but I can also see why Bush chose her, too. The q’s above are similar, I gather, to what he was looking for too.

She’s a stealth constructionist that he thinks the D’s’ll be forced to confirm now. Agree or disagree, I’m pretty sure that’s his intent, and that he expects Justice Miers to quickly win back the disaffected with her rulings. I guess we’ll see.

ras (f9de13) — 10/14/2005 @ 5:42 pm

This Harriet Miers nomination has uncovered another more important issue, the surge for power by the far right faction of the Republican party. They are flexing their muscle and chiding the President for not taking their fight to the Senate floor on a nominee more credidentaled as “one of theirs”. The hissie-fit is a power play.

For me it has revealed the nature of the beast and I am not impressed. First, for them to establish their position on such weakness shows to me they are not fit to govern. They can’t govern if given the chance. Second, it reveals to me the dangerousness of their governance if given the opportunity. It reminds me of the Barry Goldwater’s Presidential nomination and race against Lyndon Johnson. Johnson had only to point out (using Goldwater’s own words) that Goldwater was an extremist and a dangerous and scary fellow. Follow him and bad results will follow. The country ran away from Goldwater and embraced Johnson. Here, the far right conservatives are doing as Goldwater did and will probably suffer the same result (defeat somewhere down the road). If they don’t get a grip on their zeal, then they risk the flight to the center by those who can no longer stomach what will be seen as oppressive policies.

John McCain would appear to be a prime beneficiary of such flight as he has made an example of standing up to these zealots. McCain’s actions are beginning to make much more sense to me.

Jerry (365706) — 10/14/2005 @ 9:53 pm

Wanting judges who believe in, and have a record of supporting, judicial restraint, this is what makes one a far right zealot these days?

Man. Have the Dems ever done a number on you.

Jimmy B (302dff) — 10/14/2005 @ 10:22 pm

Jimmy B wrote:

Wanting judges who believe in, and have a record of supporting, judicial restraint, this is what makes one a far right zealot these days?

Well, if you want a Justice who believes in judicial restraint, you want a Justice who will support Roe v Wade, Kelo v City of New London, and all of the other liberal decisions which have already been taken, because to work to overturn those abominable decisions will still be judicial activism: they are currently the law of the land, whether we like it or not.

The conservative argument seems to be that someone who favors judicial restraint must mean someone who is willing to undo previous judicial activism; that’s one Hell of a definition of restraint!

Dana R. Pico (a071ac) — 10/15/2005 @ 4:50 am

Jesus, you don’t have a clue about how the judiciary works.

Angry Clam (a7c6b1) — 10/15/2005 @ 6:06 am

Would you consider the result of Brown v. Board of Education an example of judicial activism? If not, why not?

Tillman (1cf529) — 10/15/2005 @ 10:02 am

The reasoning employed in Brown v. Board, which was based upon (what were subsequently demonstrated as) flawed social science “research” was indeed a case of severe judicial overreach.

However, as Robert Bork noted, the outcome fit well within the original meaning and intent of the Civil War Amendments to the Constitution, making the outcome constitutionally proper.

This, incidentally, is why I have such a problem with the Miers supporters who say things like “she’ll vote the way you want” – voting the way I want is not acceptable, unless its done through proper originalist reasoning.

Angry Clam (a7c6b1) — 10/15/2005 @ 11:51 am

I know you’re the expert Clam, so I’m trying to be humble about this. And thanks for answering; since Law 101 is more than likely old hat to you by now.

So you’re saying that Bork is referring to the 14th amendment added in 1868? And it was the reasoning in the ruling (using a social science study) that makes it an activist ruling?

Tillman (1cf529) — 10/15/2005 @ 12:46 pm

Yes. I’ll dig up the actual Bork passage sometime tonight if you’d like.

But remember, the whole point of the 13th-15th Amendments (before the Supreme Court gutted a lot of their protections in The Slaughter House Cases and Plessy v. Ferguson) was to end the state imposed discrimination against American blacks – not just the 14th Amendment, but also things like barring the “badges or incidents of slavery” doctrine under the 13th Amendment.

Thus, the original purpose of those amendments- promoting social equality of blacks by banning state discrimination against them was frustrated by the Supreme Court in decisions like Plessy. The decision in Brown helped to restore the original purpose of the amendments. However, the decision didn’t rest on those grounds, but rather fuzzy reasoning like “feelings of inferiority” in students in segregated schools (the infamous doll study cited in the decision, for example).

So the Brown court reached the right result, but for a very wrong reason. And that’s why, like I said, the mere fact that Miers may vote properly is not, in and of itself, reason to support her- the reasoning behind the vote is actually more important.

Incidentally, the events of Plessy are a strong illustration of the dangers of the Imperial Supreme Court that we have today- it explicitly nullified several stated provisions of the Constitution.

Angry Clam (a7c6b1) — 10/15/2005 @ 12:55 pm

Incidentally, that’s part of what made the whole Bork nomination battle so horribly unfair to Bork as a man, since he was painted as a racist segregationist, all while actually stating repeatedly that the Constitution contains explicit textual commitments to the contrary.

Angry Clam (a7c6b1) — 10/15/2005 @ 12:57 pm

I agree that Brown is an example of reaching the right result for the wrong reason. However, if the choice is between having Brown decided as it was and having Plessy remain “good” law, I have to prefer the former to the latter. Similarly, if a federal law of dubious constitutionality under the Commerce Clause were challenged, I’d rather see it struck down under a poorly written decision applying a crude analysis of the commerce clause than see it upheld under a more nuanced one written by Justice Scalia. At some level, actual results have to count for something.

Xrlq (428dfd) — 10/15/2005 @ 2:32 pm

Thanks again for the information Clam. (Busy day yesterday – I didn’t mean to just disappear like that.)

Anyway, on the face of it, originalism sounds like a worthy goal. An unelected body like the court system has no business making controversial laws for everyone.

On the other hand, settling fiery issues like abortion, it has been argued, on the local level pits neighbor against neighbor and causes needless strife on an extremely personal level. In this view, the S.C. decisions on divisive issues provides for more civil communities.

Actually however, I’m not sure this argument really works as advertised. I live in a conservative area and commonly see people protesting, for example, abortion and pornography. Of course, if these conflict-ridden issues were settled on a state level, maybe it would be even worse – I don’t know. I’d like to know what you think about that view.

Tillman (1cf529) — 10/16/2005 @ 6:42 am

“On the other hand, settling fiery issues like abortion, it has been argued, on the local level pits neighbor against neighbor and causes needless strife on an extremely personal level. In this view, the S.C. decisions on divisive issues provides for more civil communities.”

That was the Court’s idea in Roe. I don’t think it quite worked out that way.

Part of the problem is that there’s a huge cultural difference between places like, say, New York and Topeka. Creating national standards for contentious issues is certain to piss off most all the people in one place or the other.

Legislation would piss off people too, but it has a distinct advantage- those same people can organize to repeal or amend it, or vote with their feet and move to a jurisdiction more in line with their own wishes. Neither of these freedoms to control their own laws are present with Supreme Court fiat.

Besides, for all the talk of consensus and happiness and cute puppies, our political system was designed to be contentious, both among the electorate and the elected officials, so I don’t think the goal of “wow, now no one’s pissed at each other, because they’re all pissed at the Court” is really an appropriate one.

Angry Clam (a7c6b1) — 10/16/2005 @ 6:49 am

Good food for thought Clam – I agree. I’ll keep thinking about it.

Tillman (1cf529) — 10/16/2005 @ 8:37 am

You should go into polling, ras, since you ask some practical questions. Results seem not to be enough for many. It must be achieved through a particular thought process and for the right reasons.

owl (3bffcc) — 10/16/2005 @ 9:20 am

Yes. You see, although originalism is currently associated with conservatism, it isn’t ideologically required to be.

It has come to this because the decisions unmoored from the constitution since the Warren Court have been largely leftward. It wasn’t always so- around the turn of the last century and until several years into the New Deal (the “Lochner Era”), the non-originalist jurisprudence was distinctly conservative, protecting, “constitutionally,” substantive economic rights that were not found in the Constitution, much like the current Court protects unfounded “rights.”

Point being, it’s ok to be an Originalist and a liberal. It seems strange only because leads to overturning some Court policy decisions that appeal to you. That’s difficult to agree to do.

Angry Clam (a7c6b1) — 10/16/2005 @ 9:21 am

Clam, where we will probably disagree is how to apply originalism. For example to me, the court should not prevent campaign finance reform under the pretext of free speech.

Plus, thus far I’ve only listened to one side of the story – I need more information.

Tillman (1cf529) — 10/16/2005 @ 10:05 am

Well, yes. obviously there can be disagreements with originalism, just like any other historical reasoning.

That said, it provides a context and a consistent approach where there is, ultimately, a correct and an incorrect answer, rather than the simple ipse dixit of much modern decisionmaking.

Angry Clam (a7c6b1) — 10/16/2005 @ 10:19 am

Tillman: what is “pretextual” about the notion that free speech prohibits laws aimed at stifling political speech? Isn’t that exactly what the free speech and free press clauses are for?

Xrlq (428dfd) — 10/16/2005 @ 10:31 am

Xlrq, you will probably think I take the term “speech” too literally. But I don’t believe our founding fathers intended for our politicians to be showered in money to help them make up their minds about the issues. I believe that free speech was all about being able to speak one’s mind without fear of criminal charges.

Also, we have laws regulating speech that take profanity and pornography into consideration. To me, if one billionaire can flood our TVs with their propaganda, that is a greater offense than profanity.

Tillman (1cf529) — 10/16/2005 @ 11:15 am

If the First Amendment wasn’t about protecting the free flow of information on political subjects, I’m not sure why we should bother having a First Amendment at all. Laws against profanity may impact the way you can get a message across, but they have a negligible impact on your ability to express the ideas at all and have them understood. However, a flat out ban on ads telling voters what they need to know about an upcoming election is a whole ‘nuther matter.

Xrlq (435d9e) — 10/16/2005 @ 2:52 pm

Xlrq, maybe if you could see how money is corrupting republicans, you would acknowledge that there is an issue here. According to this WAPO article, it looks like even Ralph Reed is for sale to the highest bidder.
http://www.washingtonpost.com/wp-dyn/content/article/2005/10/15/AR2005101501539.html

It’s just far too easy for politicians to rationalize away their integrity when large sums of money are involved. I’m not sure campaign finance reforms is the answer, but something should be done.

Tillman (1cf529) — 10/17/2005 @ 9:30 am

10/14/2005

Goldstein on Miers

22 Responses to “Goldstein on Miers”

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