It would appear that President Bush may appoint more than one Justice. O'Conner's absense will make the politics all the more critical, since she often is the swing vote and balancer on critical issues.

It's a pretty safe bet that Bush will appoint another woman to replace "the most powerful woman in America."

http://en.wikipedia.org/wiki/Sandra_Day_O'Connor

. . . "the most powerful woman in America."

You mean that's not Hilary?

Should be interesting . . .

Bush is by no means obligated to choose a woman nor a "swing voter," however. Of course, qualifications for the seat don't seem to figure as significantly as ideology, these days.

Roe v Wade is dishonest, a sad moral chapter in our history, and will be eroded, IMO, but with one third
of health care costs going into the last six months
of life, some form of passive euthanasia and hospice
care will likely be accepted. Look for lots of Frankenstein experiments among the ultra-wealthy in the attempt to extend life.

MM:

Are you equating hospice care with euthanasia?

I say try Bork again.

w.c., I missed the question about hospice care. I feel that refusal of treatment should be a right of
individuals and their families. How to implement such decisions within a framework of the law is why we have gentlemen like this:

http://en.wikipedia.org/wiki/William_Rehnquist

He will be missed. A real justice, imo, and an old Barry Goldwater Republican. The last?

So it's now Roberts for Chief Justice . . . and a woman, no doubt, to fill the other vacancy.

Whose your personal pick, Mr. Phil?

The nuclear option:

http://www.frontpagemag.com/Ar...Article.asp?ID=10636

http://www.nationalreview.com/...anow200505170812.asp

http://en.wikipedia.org/wiki/Janice_Rogers_Brown

Or chemical warfare:

http://en.wikipedia.org/wiki/Priscilla_Owen

http://www.nationalreview.com/...tler-werry082102.asp

2005 is a unique experience for me. For the first time I actually find myself concerned about America becoming too conservative. Maybe I'm getting soft or turning gay or something. I know this guy who just pulled a Helminiak and has a boyfreind now... Oh, yuk!!!
No, no, I'm quite sure I still like girls and liberals still seem pretty nutty. Slap! Slap! Ok,
I'm feeling much better now. It was just my evil twin again.

2005 is a unique experience for me. For the first time I actually find myself concerned about America becoming too conservative.

I think we need to nuance that a bit, MM. The word "conservative" means a lot of different things to a lot of different people, including conservatives. If one reads "conservative" as "Puritanical" then I tend to agree. We don�t need more of that. If "conservative" means limited government and a counterweight to some people�s desire for outright Marxism and institutionalized hatred of western ideals, then we can never have too much conservatism.

I know this guy who just pulled a Helminiak and has a boyfreind now... Oh, yuk!!!

To Barry Goldwater, what consenting adults did in the privacy of their bedrooms was not the business of the state. I agree with that. But as soon as we�re talking about divvying out Federal entitlements and thus engaging in social engineering, then its only fair that we have to make judgments on what is "for the good of society at large." One might agree that criminalizing gayness is anti-freedom and anti-conservative (in terms of limited government). At the same time, though, it might not be in society�s interest to promote it.

Actually, �Judicial Activism� means �E=mc2�
by My Future Wife

quote:

The left's redefinition of judicial activism to mean something it's not allows liberals to claim they oppose judicial activism and to launch spirited denunciations of conservative judges as the real "judicial activists." This is the Democrats' new approach to winning arguments: Change the definition of words in mid-argument without telling the guy you're arguing with. Chairman Mao would approve.

quote:

The very act of redefining "judicial activism" to mean invalidating any law passed by elected officials is precisely the sort of Alice-in-Wonderland nonsense we're talking about. Liberal judges redefine the Constitution's silence on abortion to mean "abortion is a precious constitutional right." Liberal flacks in the media redefine judicial activism to mean "striking down laws."

Rush says: "Words mean things." That's a message that still rings true.

Brad,

I'm pretty much agreeing with Coulter on this one.
One of her better pieces.

As far as the sanctity and privacy of one's own bedroom, can we really say that in a libertarian and
spiritual-sexual laisse-faire frame of mind?

Doesn't the bedroom spill over into society when thirty-million future citizens and potential taxpayers are terminated 20 years before they would normally become taxpayers and voters?

Doesn't the bedroom spill over into the public realm when there is an AIDS epidemic and we have to spend seven times more on that than prostate and breast cancer research combined? Or when 20 million Americans require herpes vaccine, and new pennicillin-resistant strains of the older STD's threaten the public health with new epidemics.

The emotional cost and psychiatric care of those broken by what they have done in the sanctity of the bedroom becomes a public issue when treatment programs for the indigent and other general fallout occurs.

Then there is the public issue of "What do we teach in schools about the birds and the bees?"
And do taxpayers want to support "Heather has two mommies?"

Seeing that the bedroom has collaterally damaging effects on our finances and our freedoms, I believe
that it should prove enough to keep The Court very busy for the forseeable future.

sexualpolitics.com

quote:

As far as the sanctity and privacy of one's own bedroom, can we really say that in a libertarian and
spiritual-sexual laisse-faire frame of mind?

Doesn't the bedroom spill over into society when thirty-million future citizens and potential taxpayers are terminated 20 years before they would normally become taxpayers and voters?

Doesn't the bedroom spill over into the public realm when there is an AIDS epidemic and we have to spend seven times more on that than prostate and breast cancer research combined? Or when 20 million Americans require herpes vaccine, and new pennicillin-resistant strains of the older STD's threaten the public health with new epidemics.

The emotional cost and psychiatric care of those broken by what they have done in the sanctity of the bedroom becomes a public issue when treatment programs for the indigent and other general fallout occurs.

Oh man. Now I know what if feels like to be on the receiving end of an Ann-Coulter-like bludgeoning of reason and logic. Well said, MM. What can I say but "Amen, brother"?

And I think you helped us to see that there is a certain political/social philosophy that runs head-on into a real problem with its own logic�or lack of same. As soon as you�re grabbing a significant chunk of my earnings in taxes in order to pay for the social costs of a "Everybody just do their own thing with no restrictions" philosophy then you can see how a number of people might feel that being forced to spend a good 1/3 to 1/2 of their wage-earning lives in support of someone else�s spiritual-sexual laisses-faire does not allow them to "Do their own thing with no restrictions" � unless their idea of doing their own thing is working for others on a compulsory basis. No thanks.

Dr. Sowell (one of my heroes) weighs in on Roberts and the Constitution. (His latest book is Black Rednecks And White Liberals.)

Whose constitution is it?

quote:

There has been much hand-wringing about how or whether we can tell what the "original intent" was among those who wrote the Constitution. But the moral and legal bases for the authority of the Constitution do not rest with those who wrote it. The moral and legal authority of the Constitution comes from those who ratified it � "we the people" � not those who wrote it.

The writers of the Constitution themselves understood this.

That is why some of these writers also wrote "The Federalist Papers" to explain to people across the country why they should ratify the Constitution.

Not only did that generation ratify the Constitution, succeeding generations have accepted the Constitution, with whatever amendments they found necessary to add, for more than two centuries. It is the American people who have made the Constitution the law of the land.

Once we understand that, we can see through the silliness of all the learned hand-wringing about what the writers of the Constitution might possibly have meant when they wrote it. What matters is what the people understood those words to mean when they ratified it and amended it. They didn't vote on what was in the back of somebody else's mind.

Much of the Constitution is remarkably simple and straightforward � certainly as compared to the convoluted reasoning of judges and law professors discussing what is called "Constitutional law," much of which has no basis in that document.

A couple Amazon.com reviews of his book which looks like a page-turner:

quote:

Not only that, the reader that has beef with Sowell states that Sowell lashes out at the culture that participates in gang related movements, ie gangsta rap culture, etc because this behavior is not new. This type of behavior existed 200 years ago, and is just the expression of the ghetto culture that hasn't been brought out of poverty, mainly because our politicians praise this behavior as 'black culture', when in fact it originated through the redneck culture.

quote:

My advice to naysayers - even if your perspective is crippled by being an high income person and/or a "yankee" - is to read the book. In 1989 Grady McWhiney published "Cracker Culture: Celtic Ways in the Old South" and described the vast cultural divide between North and South that existed prior to the War. As any careful reader would've noticed, *all* of the stereotypes that would later be applied to African-Americans were first applied to White Southerners by Northerners. This is a reality. And the Civil War taught us, if nothing else, that the South was - in the emerging industrial world - an anachronism. Thomas Sowell takes these observations as his point of departure. I can imagine that the people who'll most take offense at the book are caucasian, elitist, self-styled "liberals" who want to maintain *their* static, monolithic idea of "Black Culture" as some kind of museum piece. This is an articulate, searching text that goes well beyond the traditional Liberal/Conservative ping-pong.

Some background analysis regarding judicial activism, the "living" Constitution, and perhaps a return to a humbler approach to the Constitution.

Living Constitution, R.I.P.
by Curt Levey

quote:

Democrats� appropriation of the activist allegation should be viewed as evidence that proponents of judicial restraint are making headway. It is an implicit admission that this critique of liberal jurisprudence has proved effective. Moreover, the Democrats� reliance on a "so are you" argument indicates the absence of a defensible judicial philosophy on the Left. And, like former segregationists embracing civil rights, liberals� calls for judicial restraint � no matter how insincere � are a sign that the times have changed for the better.

quote:

May the living Constitution rest in peace. The concept is utterly without meaning as a legal standard and, instead, is a recipe for unrestrained judicial power. Because the Constitution is a contract between the people and their government, its modification should require the consent of the parties to the agreement. Thus, a living Constitution can be analogized to an automobile lease agreement that the car dealer feels free to modify as his notions of a fair deal evolve.

Miers 2006
Does the president�s second Supreme Court pick hurt Republicans?
by Wynton C. Hall

quote:

Worse, the selection of Harriet Miers represents a huge missed opportunity to galvanize the base heading into the midterm elections, elections where the in-party traditionally loses seats. Now was the time for Bush to pick a fight � a major fight � with the Democrats over his next judicial appointment. Had he, for example, picked Janice Rogers Brown, Bush would have had a double win: 1) He would have reinforced his longstanding commitment to "diversity," and 2) he would have boxed Democrats into a tactical corner by forcing them to choose between giving his nominee a fair hearing or pillorying yet another qualified black conservative nominee to the Supreme Court, thus exposing the Democrat hypocrisies on both race and merit.

The general consensus is that this is a major flub by Bush. I agree. There were some obvious bedrock Constitutional originalists out there who actually have the judicial record to back that up. With Harriet Mier we have to guess�and hope she really is a Constitutional originalist.

This is a dumb move by Bush and I can tell by the look on his face when he introduced her that he was already quite defensive about this choice. Nothing against Ms. Mier, of course, but we�re talking about a lifetime appointment to the Supreme Court. As Mark Levine said to Hannity yesterday, "If not now, when?" We have a Republican president and a majority in the Senate? This is a curious move by the president. Very curious. I wonder what you all think.

She may very well be/do everything he hopes, and be much easier to confirm than another candidate. Remember, Bush's allies here are Republican Senators, and that includes quite a few moderates who would not necessarily be supportive of a more ideological choice (e.g., Janet Rogers Brown).

All I can say, however, is that things must be going pretty well in the rest of the world if this is the most important thing the media can focus on. . . and the hearings haven't even begun.

LOL!

If the image doesn't show, see http://www.signonsandiego.com/...rib/20051005/27.html

Here's an anti-Miers petition.

Looks like that petition was effective. I think Bush must have seen that it was possible that Miers would not be approved, and that would have been a really bad setback.

Overall, I was not impressed with her as a potential judge. She seems like a very nice, highly capable person, but far from being qualified for the position.

I don't know what Bush was thinking, here. It seems he thought his conservative base only cared about abortion rights, and so he was surprised to discover that there was much more at stake than that. The far greater concern is the latitude with which some of the judges have come to interpret the constitution, going so far (for example) as to invoke precedents in other countries as a basis for determining rulings.

Back to square one, and hopefully using the head this time and not just the heart.

Good analysis, Phil.

First off, it�s obvious that Harriet Miers is one talented, confident, plucky lady. She sounds like she serves the president well (ummm�other than helping him to find a qualified nominee for the Supreme Court). But articles such is this, which provides a bit of background information on her thinking and philosophy, might simply serve to highlight that there is a major difference between carrying out policy and setting it. Both are tremendous talents but they are different talents. We should probably end it at that. One can�t blame Harriet Miers for being ambitious and accepting the nomination. But Bush, on the other hand�

The word on the street seems to be that Bush thought Miers was a cinch for overturning Roe v. Wade. But as Ann Coulter sagely says:

quote:

We've been waiting 30 years to end the lunacy of nine demigods on the Supreme Court deciding every burning social issue of the day for us, loyal subjects in a judicial theocracy. We don't want someone who will decide those issues for us � but decide them "our" way. If we did, a White House bureaucrat with good horse sense might be just the ticket.

Bush didn�t show a real good understanding either of conservatism or the problems of the Supreme Court and its core function. Probably only those people closest to the president know what he was thinking. But by the way he was promoting Miers, he seems to have given much weight to the fact that she is, A, a woman and, B, quite Christian. Neither of those are bad things, of course. And a case can even be made that, all things being equal, it�s not a bad thing to pick a woman as a symbolic gesture. But "symbolic gesture" has to be seen as just that, that this symbolism is not an added qualification but a purely political consideration. When all one�s ducks are in a row regarding qualification then go ahead and pick a black female lesbian Wiccan cross dresser. But make sure she (or he?) is an originalist regarding the Constitution!

My take on the Presidents decission to nominate Miers was the fact that he personally knows her. He did not have to rely on anyone elses opinion about her. I think he felt she would not turn out to be someone else than who he personally knows who she is. Who was it both Souter and Kennedy that turned out to be something different that what they appeared. Both those nominations were based on what others suggested who they might be. On Miers Bush knows her personally. He had a ten year working relationship with her to understand how she thinks.

I say he sends Janice Rogers Brown to the hill now. Let the libs attack her.

Don't forget. Justice John Paul Stevens is 85 years old. So Bush might get a third nomination.

I had somewhat of a news-free weekend as I spent much of my time reading and watching old movies. (And a relatively new one: Batman Begins which, despite the somewhat rushed, illogical and contrived ending, was finally a Batman movie worthy of its name.) So I woke up this morning to discover we have a nominee! Alito. The NRO conservatives are clearly in love with him and, as pointed out in that small piece by Ms. Long, a Democrat-controlled Senate unanimously confirmed him to the Court of Appeals. I�m sure Judge Alito has committed several heinous crimes since then, as Biden and Kennedy will no doubt let us know. My gosh, if they do it�s time to slam dunk these people and drive them back to the ideological fringes where they belong�okay, I know that�s almost the entire Democratic Party now, but you know what I mean.

The Fifth Catholic/Maggie Gallagher

quote:

David Bernstein on Volokh.com notes that Judge Sam Alito, if confirmed, will be the fifth Catholic on the Court, making it the first time a majority of Supreme Court Justices are Catholic.

He offers this observation:

"I'd venture that it's not simply a result of more enlightenment on the part of non-Catholic Americans, but also that Post-Vatican II, the Catholic Church is less foreign, both in prayer (in that mass is now in English), sociologically (because Catholics no longer differ that much from other Americans in where they send their kids to school and how many children they have), and in terms of ideas (e.g., the Church's renouncement of anti-Jewish theology; compare the 19th century Edgardo Mortara case). In short, as with American Jews and other groups, a story of both declining prejudice and assimilation."

Hmm, tell that to Scalia and his nine kids. . . .

Anti-Catholicism came in two forms: the high protestant variety, which looked down on Catholics for being obedient peasants with too many kids and the low church (evangelicals) sort, which saw the Church of Rome as their historic religious enemy.

High protestants and their secular equivalents like the fact that ordinary Catholics are now virtually indistinguishable from the broader culture. Evangelicals have dropped their intense dislike of Catholics because they value the Catholic Church's fidelity to basic Christian teachings on abortion, marriage, and sexuality.

The net results is a decline in anti-Catholicism, as the Catholic Church becomes both more and less "mainstream" at the same time.

An interesting article concerned Alito's purported libertarian streak�a streak I heartily agree with:

Alito's Libertarian Streak
by Ilya Somin

quote:

Additionally, Alito has taken important libertarian positions on free speech issues. In Saxe v. State College Area School District (2001), he concluded that anti-harassment rules should not be allowed to infringe on free speech in a case where a public school anti-harassment code was used to forbid expression of some students' religiously based opposition to homosexuality. He has also written opinions protecting commercial speech, notably in Pitt News v. Pappert, where he struck down a ban on paid alcohol advertisements in student newspapers. Expansive definitions of "harassment" and restrictions on commercial speech are two of the most important threats to free expression today. Libertarians have every reason to welcome this aspect of Alito's jurisprudence. Liberals, too, have reason at least partially to embrace Alito's positions here. After all, school anti-harassment codes can just easily be used to stifle gay activists' criticisms of religious conservatives as the reverse. And the latter probably control more school boards than the former do.

I think this is a great perspective on courts, the Supreme Court, and on the Constitution itself. After reading it I certainly understood this idea of the thin end of the wedge or the frog in a slowly-heating kettle of water.

No More Striking Down Constitutions
By John Haskins

quote:

While we're at it, Roe v. Wade is not "bad law" or "settled law" or any other kind of law. It's a court opinion on one case. Calling it "law" is a way of reassuring Chuck Schumer that he is a direct spiritual descendant of the Founding Fathers and Justice Thomas is not.

Signers of the Declaration and the Constitution and justices until FDR's time would cringe to hear constitutionalists call rulings "law" -- binding though illegal. Citizens and officials are to reject unconstitutional rulings. Jefferson, Madison, and Lincoln did, citing their sworn oath. It is no accident that judges have no army.

If constitutions count, homosexual marriage remains illegal in Massachusetts. John Adams's constitution says explicitly the people are "not bound" by any law not ratified by their Legislature. Four Boston judges struck down a constitution that stood in their way -- one they've sworn to uphold. The word "treason" comes to mind -- a strong word that Liberals would use lustily if they could, but then the Left is all about winning and conservatives are about slowing them down.

Has "conservative" governor Mitt Romney refused to enforce a ruling dissenting justices and Harvard law professors say is bogus? His oath compels him to refuse the court its pleasure. He pleads impotence. Do constitutionalists demand that the outlaw justices resign? Silence. Or Romney? No, they fancy him in the White House. At what point will "constitutionalists" stop siding with the establishment against the Constitution?