Sunday, May 3, 2009

The Supreme Court Shuffle and AOTW

With the first 100 days (or is that daze?) of Obama just over, news has broken that, while expected, wasn't something I thought was going to be this soon. But it is.

The News You Already Know - Justice David Souter, a nominee of President George HW Bush, has indicated he is ready to leave the bench. He will likely do so after his successor is confirmed. As he has been a consistently left-leaning Justice in the court, his departure will most likely not shift the balance, as President Obama will most assuredly nominate another liberal (unless his nominee surprises him (the last one to do that would be Justice Souter)).

Naturally, both sides of the political arena are lined up with their expectations. Here's an example (nod to Toad for these quotes (and the idea for subsequent comments I have)):
"Obama's own record and rhetoric make clear that he will seek left-wing judicial activists who will indulge their passions, not justices who will make their rulings with dispassion," - Ed Whelan, president of the conservative Ethics and Public Policy Center.

"We're looking for President Obama to choose an eminently qualified candidate who is committed to the core constitutional values, who is committed to justice for all and not just a few," - Nan Aron, president of the liberal Alliance for Justice

Judicial Activism and the Next Justice
- Let's start with a quote from Justice Souter on the issue of judicial activism:
"We therefore have a clear question about which institution, a legislature or a court, is relatively more competent to deal with an emerging issue as to which facts currently unknown could be dispositive. The answer has to be, for the reasons already stated, that the legislative process is to be preferred . . . The experimentation that should be out of the question in constitutional adjudication displacing legislative judgments is entirely proper, as well as highly desirable, when the legislative power addresses an emerging issue like assisted suicide." Washington v. Glucksberg, 1997
Essentially, a decision crosses the line to judicial activism when the decision does not merely uphold or strike down an existing federal or state law, but when the decision of the court creates new laws outside of the legislative process. What can ensue is, quite simply, the proclamation of laws by nine individuals (or 5 in the usual 5-4 split).

Let me explain this further by taking a case known for judicial activism: Roe v Wade.

(To clarify, I'm using this as an example only because I'm familiar enough with it to do so. This is not about the subject of the case, only the activism of the decision. Delete rules still apply.)

The case was a challenge of the Texas law, which was itself a badly written law. The proper course of judicial restraint would have been to strike down the law, then let Texas write one that doesn't suck. This creates better law and allows the state to retain its power.

While striking down the vague Texas law was the right course, the Court crossed into judicial activism when it, in essence, created a new right (although it does possess some merit as part of the right to privacy (5th and 14th Amendments) ) and determined boundaries for it (the trimester rules) based simply on their best guess (rather than suggesting legislation would be the best remedy). This extension of federal control by judicial fiat into an area formerly regulated by the states is the essence of judicial activism in this case.

So, in the end, the danger of placing activist justices on the Court lies in their ability to create law, not just affirm it or set it aside. And this (as well as misconduct) is the reason to reject any Presidential judicial nominee.

The Politics of Filibustering - When Obama's nominee comes before the Senate Judiciary Committee, he will face a potential problem.

There is a rule in place that allows the minority party to bottle up a judicial nomination. The rule states that one member of the minority party must consent to end debate. In his switch back to the Democrat party, Senator Arlen Specter, the former ranking minority member of the committee and RINO most likely to do so, lost that power.

However, unless the nominee has a clear history of judicial activism (and not just liberal-leaning decisions) or significant misconduct, the GOP would be foolish to oppose the nominee. I have stated the myriad things in the administration I would oppose with the most fiery of rhetoric. But since every single judge will fail the socail conservative litmus tests, opposition on this will make them look like the party of No. And with that in mind:

Rush Limbaugh is Asshat of the Week!

I had to think long and hard after the moment it occurred to me to put Rush in the dunce seat this week. Hell, I've avoided talking about Rush for similar reasons I shy away from a certain other topic we're not discussing in this post. It's because the substance gets lost in an inane babble of half-formed and oft-irrelevant bullshit. After all, my more liberal readers hate his living guts. That's not an exaggeration. And this shit is going to give them fuel. Although if they fail to stay on topic and just go off on their little pissy trip, I've got the delete button already warmed up. So on with the asshattery.

The moment came on Friday's show. Rush was discussing the whole judicial nomination process and the fact that Arlen Pecker was out of the way (leaving room for Lindsey Grahamnesty to be a dick). Here's the moment:
Now, folks, admittedly this is a bit of a long shot because this is going to require that the Republicans have the fortitude to even do this, to even try it; 'cause if they did -- if they essentially filibustered the vote in the Judiciary Committee -- the media is going to be all over these things. I mean, it's going to be like Dunkirk. It's going to be like Hiroshima. It's going to be like Nagasaki. I mean, nuclear ammo is gonna rain down on these guys if they try it. But it's possible.
Part of that is truth. If the Republican members do block a nominee, it's going to be a shitstorm. Which is why I believe that, barring someone that is clearly an activist judge, they need to unanimously pass through any nominee that comes down the pike.

It pains me to have to give El Rushbo the bitch slap for this, but this is the kind of things the Democrats will use to both demonize the GOP with some justification and to justify filibusters of biblical (On the Origin of Species-ian for my atheist readers) proportions when the GOP manages to get control. And Rush's cheerleading of this (because the GOP almost always listens to the wrong advice) is pushing dumb.

For the GOP to get their asses back in power (thanks to Arlen Pecker, they have almost none), hey need to do two things. First, stick with positive principles (and then keep them when you get in power. Second, don't use the Supreme Court nomination process as a battleground.

I'd suggest that maybe Rush should get back on the Oxy to mellow his ass out on this, but that's be too easy. So he can join all the other smiling faces on Asshat Lane.


Dave Miller said...

Nice post Patrick. I for one would love to see the GOP oppose every Obama nominee.

After the Dems approved Roberts and Alito, it would be fun to see how this would be handled.

Great choice for your ATOW. Longtime coming for a person who has become a lightning rod of criticism for the GOP.

Gayle said...

Patrick, I don't see how the Democrats can use what Rush says "with some justification" to demonize the GOP when Rush is not in charge of the GOP. I agree that they probably will, but they're wrong to do so. Rush is a talk-show host, admittedly conservative and admittedly an entertainer. He says things like that all the time. It's his style to be insulting and arrogant, which is one of the reasons that I don't listen to him anymore. I don't like that style. I doubt he's ever going to mellow out because it's who he is.

The GOP definitely does need to stick with positive principles and not forget about them when they get in power. I'm truly tired of our politicians on both sides betraying us!

Arthurstone said...

I for one hope Obama puts forth the biggest, toughest, liberalist jurist he can find.

The idea of 'activist judges' as a left-wing phenomenon is yet another conservative fantasy.

Patrick M said...

Arthur: That's why I didn't say judicial activism is a liberal thing. If Obama appoints an activist, he'll be a liberal one. But I haven't forgotten the one down in Georgia (or somewhere South) with the 10-ton 10 commandments.

(I'd comment on your links, but I'm having problems opening them for some reason (shitty lib sites)) :)

Toad734 said...

First off, Rush Limpballs is always asshat of the week. He rambles about shit he knows nothing about, hes a monday morning QB, he hates America and wants it to fail, he hates black people, he obviously loves eating...a lot, he will never go on any show which may challenge his views and he has never debated anyone from the other side and he is a hillbilly heroin addict.

But, with regards to Judicial Activism, I would firstly like to point out that installing the 10 commandments on courthouse grounds in the middle of the night is the epitomy of judicial activism but you would never hear that from Fox news. That being said, everytime I even turn on Hannity and Colmes i hear more bias and bullshit in 15 minutes than I hear from MSNBC, Bill Maher, CBS, ABC and CNN combined for an entire month. This shit is just the Enquirer with a 3 piece suit, a bible and a 3rd grade haircut.

So, when left with issues not already decided by a lower court or addressed in the constitution what are they supposed to do, just quit and go home or interpret the laws and judgments they have??

So what do you think they are doing when they become such "activists"?

Again, when the slaves were freed that was judicial activism. When women and blacks were given the right to vote, that was judicial activism..or so you would have called it. But in fact, it was the literal interpretation of the constitution. Albiet, a new interpretation of the constitution but the right interpretation. But it took a judge, not a democracy who hated blacks and women to decide this. Sometimes its better to leave the laws to the people who actually know something about law.

Patrick M said...

Toad: Must you always blather while trying to get to a point?

Except you seem to have never gotten to one, so, I'll just let your comment stand (while I laugh at you).

Toad734 said...

The point is there has alwasy been what you would call an activist judge. The constitution is vague. YOu can't always get all your laws directly from the constitution so there is always going to be interpretation of what they meant. That doesn't mean they are activist judges because they disagree with Sean Hannity. In fact, it probably means they actually know the law.