October 22, 2005

Well, If You Insist

I oppose the Miers nomination, Mr. Bear.

Goodness knows I'd like to be wrong. If she doesn't withdraw her nomination, I hope to be proven wrong. But I cannot support the nomination of someone to the highest court in the land who isn't a constitutional scholar.

That piece of paper is the most important thing we have, and if it isn't worth fighting for, then—as we used to say in 2001-2-3—the terrorists will have won.

Via Protein Wisdom, where the "Ginsburg Rule" still means something, thank goodness. (Jeff is right: there are plenty of ways for Miers to prove herself without breaking that precedent, and tying future Justices up in legal knots.)

Posted by Attila at October 22, 2005 11:32 PM | TrackBack

Li'l Miss, as i've said, maybe here, I am disappointed in the Miers nomination.

But your observation that she isn't a constitutional scholar may cause me to rethink the issue.

We have such scholars on the Supreme bench already, and they all disagree. I've always thought that that most important document was purposely written in plain lahguage just so the common person could understand it. perhaps we need someone who can read it with fresh eyes, somewhat divorced from the cobwebs of years of interpretation.

After all, it was an eminent constitutional scolar, Oliver Wendall Holmes, (and not only Holmes) who decided that "Congress shall make no law..." means "Congress shall make laws in certain circumstances. . . "

Posted by: Averroes at October 23, 2005 06:16 PM

I want someone who is interested in that piece of paper, and has a systematic, consistent way of interpreting it. Otherwise, we're going to get O'Conner lite.

Posted by: Attila Girl at October 24, 2005 12:40 AM

O'Connor wan't all that bad. Read her opinions in dissent on the marijuana and property case (Kelo).

In fact, name me the only three justices who dissent in both of those cases?

Hint: two are gone.

Now, read an contrast thomas' and Scalia's decision in the marijuana case.

I want somebody who will not be a judicial activist (in the old sense, someone who stays within interpreting the law, as opposed to its present sense, someone who decides cases in a way i don't like). And they should "adapt" the constitution to modern problems within the constitution, rather than trying to "grow" the document.

Like i said, i want someone who can read "Congress shall make no law..." as "Congress shall make no law..."

this applies to NO ONE now on the bench!

btw, just to try it out on you, I think that the separation of church and state language applies to mroality as well, since the founding fathers made no real distinction. (Sure, they knew there were irreligious atheists, but didn't want to allow them to take oaths, for instance, to testify in court.) i want someone who would declare any law made for reasons of morality unconstitutional.

what say you? not that conservative?

Posted by: Averroes at October 24, 2005 08:20 AM

Yes. Not that conservative. I still think murder, theft, rape and other assaults should be illegal. (Now you are going to say those are practical matters, rather than moral ones, but I believe they are both.)

Scalia disappointed me deeply with his decision regarding California's authority to set its own rules regarding medical use of marijuana. Thomas came through.

My issue with O'Conner was not that she didn't get both those cases right, but that she determined what she thought the "right" response should be, and then reasoned backward from there. (For instance, I suspect her decision on medical marijuana had less to do with states' rights than it did with her experience with cancer.) I suspect Miers will do the same, more or less deciding what the outcome "ought" to be, and then finding a rationale to buttress that position.

Posted by: Attila Girl at October 24, 2005 01:05 PM

Attila: "I still think murder, theft, rape and other assaults should be illegal. (Now you are going to say those are practical matters, rather than moral ones, but I believe they are both.)"

Not what i wold say. i wouldsay that these are criminal laws. They are laws which are needed, not because of any morality, which can change from person to person, but because acts we criminalize are, or should be just those acts which violate rights guarantedd under the founding doctirnes, like life and liberty, or acts which threaten the constitutional structure which guarantees such rights.

i want to avoid laws agains sodomy and laws which require taxpayers to pay into moral systems like welfare extablished becasue someone argued "it's the right thing to do, so you should pay."

Remember, a liberal is someone who feels a great debt to his fellow man, and will work untiringly to take your money to pay for it. Social "conservatives" are people who believe that they have the right morality, and want to take everyone's money to use the power of government to make sure that if they can't have fun doing things their morality forbids, no one else can either. this is closet liberalsim (see above).

That does not mean that i am absolutely against government social programs, merely that they must be supported by arguments based on preservation of the country which preserves our fundamental rights. or it simply may be in the interest of people in a community to vote in taxes to care for the homeless, say.

Buckley's conservative principle is "My rights end where your nose begins. There is no place for the enforcement of morality as morality with government.

Posted by: Averroes at October 24, 2005 06:48 PM

Sorry, i'm feeling effusive. Can't resist.

"Scalia disappointed me deeply with his decision regarding California's authority to set its own rules regarding medical use of marijuana."

BUT, if you red his disappointing decision, he manages to express disgust with the argument made by the majority for the key poiont and then offers a convoluted "better" argument for the same point.

"My issue with O'Conner was not that she didn't get both those cases right, but that she determined what she thought the "right" response should be, and then reasoned backward from there. (For instance, I suspect her decision on medical marijuana had less to do with states' rights than it did with her experience with cancer.)"

I don't do mindreading. i agree, however, that she sometimes argued to points she thought should be true. As far as i can see, Thomas is the only one who doesn't do that. in his decision on the marijuana issue, he hinted that the 1970 federal drug law whch was the authority for the Fed's action might be unconstitutional. You'll never get Scalia to say that!

btw, i really don't care aboput the motivation for a justice's decision so long as the reasoning is sound. both the O'conner decisions in question are scathing and right on point. we have no way of knowing if she would have written the marijuana decision if she had never had cancer. but i can't imagine her arguing any differently.

Rhenquist also joined the dissent. And, in fact, she voted with Rhenquist more than any other judge.

One last point, while i may have your attention. I knew Souter was going to be bad when in his haring he said that he c ertainly thought that legal reasoning was important, and that Stare was important, but that he thought that a judge should never lose sight of the fact that their decisions "affect real people." Of course, this is exactly what we want the justices to forget.

I've never understood people who argue against a decision because of its results.

Posted by: Averroes at October 24, 2005 06:59 PM

All we have are intentions/reasoning and results. I want both to matter in law, but WRT the Constitution, I want people on the bench at SCOTUS who begin with original intent, and place greater weight on reason than results. The Court is no place for pragmatists.

I stand by my assessment of O'Conner; the fact that she accidentally got it right in a few recent cases that got a lot of ink doesn't change the fact that she was on the bench for a lot of years, making decisions according to a judicial philosophy known only to her.

I agree with you that Thomas is the template. Not Rehnquist or Scalia. Thomas.

As a matter of fact, we probably agree a great deal on the correct approach to lawmaking; what we disagree on is the meaning of the word "morality." After all, the Founding Fathers did not feel they were granting rights: most of them felt that the rights were granted by God, and that they were simply articulating what these were.

I'd say therefore that the very writing of the Constitution was part of a moral stance, which had at it core not just "life, liberty and the pursuit of happiness," but property rights.

Posted by: Attila Girl at October 24, 2005 11:10 PM

Actually, i think, the "creator" language is not relevant. The template was from Locke, and the language is natural law. the point is that we have rights not becasue they are granted by anyone, but becasue it is part of our nature.

I have come to dislike the term "original intent." It has become too narrow, and too dependent on inane arguments about what the Founders thought about things in 1781 or something. People who argue this tend to go outside the constitution to argue from other writings. To me, the minutiae of what people thought about the problems of the day are not all that relevant. What is relevant is what is in the constitution, and how to apply the great notions therein to today's situation.

We are no longer a country in which Christianity can be assumed. it may be the case or not that this founder or that meant freedom of religin to mean freedom of Christian religions, but the foiunder were inspred enough to write a small constitution with few specifics, opting instead for braod ideals.

Part of the most important history of our nation is how "all men are created equal" has come ever closer to meaning that, to meaning "each individual in mankind is created equal." the original intent people might argue that slave holders like jefferson could not have meant it like it is interpreted today. in fact, this argument has been made in our history.

original intent people also tend to ignore one of the best sentences in the constitution: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

this shifts the burden on rights to those who would say that the constitution does not have a certain right. in other words, "there is no such right in the constitution" is a non-argument. Rights are ours by nature, and the constitution puts limits on those rights only so far as is necessary for the functioning and preservation of our society.

In other words, show me where in the constitution that it says we do not have a right to privacy.

You are right about pragmatists. After Roberts was confirmed, i happened to flip past the business channel. they were quite happy with him, noting that he seemed to be a Rhenquist-style pragmatist, noting that strict interpretation types like Thomas and Scalia have a hard time finding a place in the constitution to hang pro-business policies like tort reform.

btw, just someting to consider: for those who think that law has to be based on morlaity, there is always the problem of determing just what morality to baer it on. this is not so much a problem in Saudi Arabia or the Christian colonies. but i am glad that the founders wrote it wider than they might have, more ideal. if we see our rights as natural, as Locke and jefferson would have it, we can avoid many problems.

Posted by: Averroes at October 27, 2005 12:53 AM

Again--I think you and I may disagree less than you think. I don't think we are a specifically Christian nation, though I do believe we have certain Judeo-Christian ideals that can be respected without giving the "Christian Taliban" free rein.

And the line about all "men" being created equal could very easily be read to mean just that--all men. Naturally, I wouldn't be very happy with that, and the founders' original intent to put all persons on an equal plane as much as possible helps us to justify letting black men and (especially) women vote, even if it isn't, as a technical matter, in the language.

Posted by: Attila Girl at October 27, 2005 02:03 AM

As for heritage, being neither a Judeo nor a Christian, i see things from a different perspective. Our values come from the great sweep of classical liberalism which rose up in Europe to counter the old autocratic divine right ideology. there is nothing particulary Christian about it. in fact, for the most part, the high Christians, at least, were on the other side.

i agree that "all men" probably DID mean just that to the founders, but that would be becdause their own views were, in Nietzsche's term, "timely." To properly interpret the constitution, i think we have to take a more untimely view of the language. Look at the language unfettered by notions strictly of their times.

I think it is clear, for example, that most of the foiunders, if not all, would never intend anythng in the constitution to allow parading on the beach in a bikini. but i think that the language in the constitution actually supports that.

but i agree with you that we probably agree about most things. My view is sytarkly philosophical, and may even be impractical.

I noted your qualifier, "as much as possible." i wonder why such a qualifier should be necessary. i think the language is more than clear, which, of course, never kept anyone from misinterpreting it. "Born equal" means that and only that. it is not a call to remove all "unfairness" from life itself, as it is sometimes interpreted today, expecially by those who argue that "equal" should mean "equal in results." You've heard the arguments where financial statistics are cited and the argument is made that "equal" isn't being realized.

Of course, the founders were saying that the course of one's life, that part not subject to serendipity, be formed "bnot by the color of one's skin, but by the quality of one's character."

The only trap here is one that Nieytzsche mentions: "Victors know no accidents." There is a tendency for those who are successful to conclude that they have succeded by the quality of their character, and that their success is proof of same, and that if others were merely as virtuous as they were, and tried as hard, they would necessarily be as successful as they are.

Posted by: Averroes at October 27, 2005 04:26 PM

My phrase "as much as possible" reflects the fact that the founders were willing to accept that slavery might live on for a few more generations.

Posted by: Attila Girl at October 27, 2005 05:40 PM

Thank you for this most enjoyable conversation.

Posted by: Averroes at October 28, 2005 01:36 PM

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