[Rollin' Rog]

Originally Posted by gbrumb

I see your memory is as good as your ability to keep a job. I said linskyjack is our resident curmudgeon. RR is our resident Quaker.

Lol, I won't complain about that -- having graduated from a Quaker school -- indeed I have tremendous respect for them.

Thanks for the compliment!

[GoneForNow]

Originally Posted by Rollin' Rog

Lol, I won't complain about that -- having graduated from a Quaker school -- indeed I have tremendous respect for them.

Thanks for the compliment!

As you will recall, you informed us that you went to the same school as Nixon, Whitter (sp?), which, as I remember, is a Quaker school. And you're welcome.

[Rollin' Rog]

Indeed, it's in my "profile" here -- Whittier. The "Quakerism" of the school was always in the distant background -- but it did make me aware of their independent intellectual and moral traditions.

[sglv]

OK, so what does any of the last 2 pages have to do with Alito? I can't even get his name right most of the time. The fact of the matter is, he at least has some experience. So what, he disagreed with a state law. What's wrong with one opinion/ decision where he says men have some rights? It takes two to tangle most of the time. If you're donating to a sperm bank, then shut up - you have no rights. But if you engage in an intimate relationship, particularly a relationship that is as intimate as marriage, then yes, your spouse should at least be informed. Doesn't give him the right to say no, can't do this. Just let him know. Many cases (I believe California is famous for them) have stated that just because you're the man, you still can't stop a woman from getting an abortion.

So what, he stood up for the man's right to at least know. Big deal.

[plschwartz]

To borrow and adapt a phrase, I know John Roberts; John Roberts is a friend (all right, an acquaintance) of mine. And Sam Alito is no John Roberts.

What is the difference? Roberts respects Congress and its constitutional primacy; Alito shows serious signs that he does not. Some time ago, Jeffrey Rosen, a superb legal scholar, pointed out Alito's dissent in a 1996 decision upholding the constitutionality of a law that banned the possession of machine guns. We are not talking handguns, rifles or even assault weapons. We're talking machine guns.

Congress had passed the law in a reasonable and deliberate fashion. A genuine practitioner of judicial restraint would have allowed them a wide enough berth to do so. Alito's colleagues did just that. But Alito used his own logic to call for its overturn, arguing that the possession of machine guns by private individuals had no economic activity associated with it, and that no real evidence existed that private possession of guns increased crime in a way that affected commerce -- and thus Congress had no right to regulate it. That kind of judicial reasoning often is referred to as reflecting the "Constitution in Exile."

Whatever it is, it's not judicial restraint.

Roberts is a very conservative guy, and a strict constructionist -- one who means it. He understands that Congress is the branch the framers set up in Article I, Section 1 of the Constitution. It is not coincidence that Article 1 is twice as long as Article II, which created the executive branch, and almost four times as long as Article III, which established the judiciary. Judges should bend over doubly and triply backward before overturning a Congressional statute, especially if it is clear that Congress acted carefully and deliberatively.

Too many judges, including some of the brightest, talk a good game of judicial restraint, but somehow find that deference is due Congress only when it passes laws they like. The smart ones find some rationale for overturning laws they don't like, preserving a patina of consistency, but not more than that. (A few, including Clarence Thomas, don't even pay lip service to the principle when voting to overturn legislative acts.)

Many of these judges do give substantial deference to the executive branch, perhaps because they have served in the executive branch. That is true of Thomas and Antonin Scalia, as it was of William Rehnquist, and is true of Alito as well (he served as U.S. attorney in New Jersey). It is true, of course, of Roberts too, but he has at least demonstrated deference to Congress. This is one of the reasons I have advocated putting more people with legislative experience on the court. It is a shame that we are losing Sandra Day O'Connor, our only justice who was ever elected to office, and have only one remaining, Stephen Breyer, who has worked in Congress.

President Bush had alternatives -- strong conservatives who understand the role of the courts and the role of Congress. Judge Michael McConnell is one. It is a shame that the president didn't choose one of these men or women. Whatever else it does with Judge Alito at the confirmation hearings, the Senate needs to hold his feet to the fire on this larger issue of deference to the legislative branch.

-- Steve Clemons
rest at a paysite rollcall.com

[Mulderator]

Originally Posted by plschwartz

Mulder
since you set yourself up as the great constitutional expert, could you tell us under what part of the constitution did the then SCOTUS give as granting them the power to intervene in the way that they did?
Would you say that it was a ruling from prescident or was it judicial adventuring

Scotus? Don't know what you're referring to.

BTW--I am no consitutional expert by any means, but obviously my educational background and my job provides me with an advantage in understanding the constitution over most others without the same background. Kind of like how most people would not understand psychology the way you do. Also, I tend to be very practical and common sense oriented, so decisions that turn on legal technicalities do not impress me much. Ironically, its why I have no real problem with Roe v. Wade even though from a legal standpoint, the decision is a fiction. However, it does accomplish a necessary evil in providing a means to control unwanted pregnancies. I would not like to see it overturned, but on the other hand, if you simply apply good legal reasoning without a social agenda, there is no way that decision can be justified constitutionally.

[Mulderator]

Originally Posted by plschwartz

To borrow and adapt a phrase, I know John Roberts; John Roberts is a friend (all right, an acquaintance) of mine. And Sam Alito is no John Roberts.

What is the difference? Roberts respects Congress and its constitutional primacy; Alito shows serious signs that he does not. Some time ago, Jeffrey Rosen, a superb legal scholar, pointed out Alito's dissent in a 1996 decision upholding the constitutionality of a law that banned the possession of machine guns. We are not talking handguns, rifles or even assault weapons. We're talking machine guns.

Congress had passed the law in a reasonable and deliberate fashion. A genuine practitioner of judicial restraint would have allowed them a wide enough berth to do so. Alito's colleagues did just that. But Alito used his own logic to call for its overturn, arguing that the possession of machine guns by private individuals had no economic activity associated with it, and that no real evidence existed that private possession of guns increased crime in a way that affected commerce -- and thus Congress had no right to regulate it. That kind of judicial reasoning often is referred to as reflecting the "Constitution in Exile."

Whatever it is, it's not judicial restraint.

Roberts is a very conservative guy, and a strict constructionist -- one who means it. He understands that Congress is the branch the framers set up in Article I, Section 1 of the Constitution. It is not coincidence that Article 1 is twice as long as Article II, which created the executive branch, and almost four times as long as Article III, which established the judiciary. Judges should bend over doubly and triply backward before overturning a Congressional statute, especially if it is clear that Congress acted carefully and deliberatively.

Too many judges, including some of the brightest, talk a good game of judicial restraint, but somehow find that deference is due Congress only when it passes laws they like. The smart ones find some rationale for overturning laws they don't like, preserving a patina of consistency, but not more than that. (A few, including Clarence Thomas, don't even pay lip service to the principle when voting to overturn legislative acts.)

Many of these judges do give substantial deference to the executive branch, perhaps because they have served in the executive branch. That is true of Thomas and Antonin Scalia, as it was of William Rehnquist, and is true of Alito as well (he served as U.S. attorney in New Jersey). It is true, of course, of Roberts too, but he has at least demonstrated deference to Congress. This is one of the reasons I have advocated putting more people with legislative experience on the court. It is a shame that we are losing Sandra Day O'Connor, our only justice who was ever elected to office, and have only one remaining, Stephen Breyer, who has worked in Congress.

President Bush had alternatives -- strong conservatives who understand the role of the courts and the role of Congress. Judge Michael McConnell is one. It is a shame that the president didn't choose one of these men or women. Whatever else it does with Judge Alito at the confirmation hearings, the Senate needs to hold his feet to the fire on this larger issue of deference to the legislative branch.

-- Steve Clemons
rest at a paysite rollcall.com

This is a very thoughtful argument and very accurate. I don't know if the authors opinion on Alito is correct, but I absolutely agree that judges need to bend over backwards in deference to the legislature--its the only way our tripartite system of government works properly.

[linskyjack]

Here is a very good summation of ALL of Judge Alito's writings on abortion based issues. I think that the man is not the threat the pro-choice people think he is. In fact, I am very impressed by his decisions:

http://www.nytimes.com/2005/11/02/po...1Ya1G1ERwZduKA

[Prolix]

Originally Posted by Mulder

This is a very thoughtful argument and very accurate. I don't know if the authors opinion on Alito is correct, but I absolutely agree that judges need to bend over backwards in deference to the legislature--its the only way our tripartite system of government works properly.

Mulder, I am very surprised to hear you say this, because I have agreed with many things I have seen you write. But I think that you and plschwartz are missing the whole point of our system of government. The United States Supreme Court should not and must not give any deference to Congress or the wishes of the Executive Branch of the government (except in determining whether laws that would otherwise violate the equal protection clause of the Fifth Amendment have a rational or compelling basis, or other limited situations where the Constitution specifically requires the Courts to give deference to the legislative or executive branch). The sole role of the Court, as established by precedent for over 200 years, is to decide whether laws, passed by the States or Congress, are constitutional. The inquiry should be limited to deciding whether a particular law is forbidden or permitted by the Constitution.

The Court serves to protect all or us from Congress or the Executive branch from becomming oppressive, from gaining too much power, from imposing the will of the majority when that violates the founding principles, and from growing beyond the limits set by the constitution. [Don't we want to prevent our Court from becomming a rubber stamp of the wishes of the party in executive power - like the Court of Stalinist era Soviet Union - or many other Courts throughout history and around the world?].

The Court must never feel pressured by public opinion, by Congrsssional opinion, or by Executive opinion. While it is true that the Constitution must be interrpeted in a manner that reflects changing society and technology - the individual justices must bring to the Court their independent judgment, rather than giving deference to Congress to tell them how the Constitution should be interpreted.

[Rollin' Rog]

The LA Times also published an interesting review of what past associates have had to say about him -- liberals in their own right:

http://news.yahoo.com/s/latimests/20...ctedsupporters

Samuel A. Alito Jr. was quickly branded a hard-core conservative after
President Bush announced his nomination, but a surprising number of liberal-leaning judges and ex-clerks say they support his elevation to the Supreme Court.

Those who have worked alongside him say he was neither an ideologue nor a judge with an agenda, conservative or otherwise. They caution against attaching a label to Alito.

... and for what it's worth, I agree with Prolix -- the Supreme Court is the third branch of our system of checks and balances. It is not just any court, and they are not just any judges. It is not designed to be deferential when constitutional issues are at stake (which is all they decide), but to provide necessary corrective action to Administrative or Legislative excess.

[Mulderator]

Originally Posted by Prolix

Mulder, I am very surprised to hear you say this, because I have agreed with many things I have seen you write. But I think that you and plschwartz are missing the whole point of our system of government. The United States Supreme Court should not and must not give any deference to Congress or the wishes of the Executive Branch of the government (except in determining whether laws that would otherwise violate the equal protection clause of the Fifth Amendment have a rational or compelling basis, or other limited situations where the Constitution specifically requires the Courts to give deference to the legislative or executive branch). The sole role of the Court, as established by precedent for over 200 years, is to decide whether laws, passed by the States or Congress, are constitutional. The inquiry should be limited to deciding whether a particular law is forbidden or permitted by the Constitution.

The Court serves to protect all or us from Congress or the Executive branch from becomming oppressive, from gaining too much power, from imposing the will of the majority when that violates the founding principles, and from growing beyond the limits set by the constitution. [Don't we want to prevent our Court from becomming a rubber stamp of the wishes of the party in executive power - like the Court of Stalinist era Soviet Union - or many other Courts throughout history and around the world?].

The Court must never feel pressured by public opinion, by Congrsssional opinion, or by Executive opinion. While it is true that the Constitution must be interrpeted in a manner that reflects changing society and technology - the individual justices must bring to the Court their independent judgment, rather than giving deference to Congress to tell them how the Constitution should be interpreted.

No--this is precisely the single most dangerous type of judge you can have on the court. The perfect example of this is the Florida Supreme Court trying to be a "super-legislature" an re-write the election law in Florida. Judges shouldn't be subsituting their views for that of the people, which is enacted through the legislature. Only when the laws are clearly unconstitutional should judges over turn legislation. The reason is that you can fix the legislation--you can vote out legislators--you can do nothing with a maverick judge that is substituting his views for that of the legislature. And that goes either way--conservative or liberal. That's why good judges give due deference to the legislature. BTW--this really isn't debatable--every judge will tell you that a judge is supposed to give deference to the legislature--if there is any doubt--don't overturn the legislation--only when the judge is sure it is unconstitutional should he or she take action.

Again, if judges don't do that, then the balance of power is shifted away from the people and in favor of appointed judges.

[linskyjack]

I wonder how many Americans could actually name their state assemblyman or senator. Maybe 5%?

[Rollin' Rog]

From the NYT article posted by Linskyjack:

Judge Alito wrote. "I agree with the essential point that the court is making: that the Supreme Court has held that a fetus is not a 'person' within the meaning of the 14th Amendment.

Now isn't that Roe v. Wade in a nutshell?

This is going to make some folks VERY unhappy if he sticks with that interpretation ...

[linskyjack]

That was my thought---but who knows.

[Mulderator]

Originally Posted by Rollin' Rog

From the NYT article posted by Linskyjack:



Now isn't that Roe v. Wade in a nutshell?

This is going to make some folks VERY unhappy if he sticks with that interpretation ...

Actually, that's not Roe v. Wade in a nutshell. If the fetus were considered a person, then clearly abortion would not be permissible under the Constitution. Most right wing judges don't believe a fetus is a "person" under the Constitution.

Agian, this shows people's misconception about Roe v. Wade. The real issue in that case is not whether abortion should be legal but who gets to say whether its legal or not and to what extent. I think its prettys clear that the legislature should be making those decisions, not judges. You can see the dilemma in this--judges have to make up rules about when and where and under what circumstances abortion should be permitted. Obviously, no judge in his right mind would hold that an abortion should be legal for a healthy fetus and mother at 9 months. Well, how the hell can judges make these rules? Their not trained to study medical issues and come up with procedural guidelines. The whole thing is way to complicated for judges to be doing.

The reality is that if Roe v. Wade is overturned, its not going to make that much of a difference because most states will still allow abortion. Most will liiely outlaw partial birth abortions, but that's not a high percentage of the abortions anyway.