Let's Bork This Dork!

MensNewsDaily ^ | April 16, 2005 | Lee Duigon

[Nasty McPhilthy]

Even if there aren't enough votes in the Senate to boot him off the Supreme Court, it's still a good idea to impeach Justice Anthony Kennedy. Indeed, he is not the only federal judge who ought to be impeached; but we have to start somewhere.

Kennedy was appointed to the Supreme Court by President Reagan, it being tacitly understood that he would demonstrate a modicum of respect for the Constitution. Today his nickname might be "Constitution? What Constitution?" He is not the man he was, and there's no reason why America should be stuck with him.

Let his impeachment serve as a re-confirmation hearing. Is he still worthy of a seat on the Supreme Court? Let's find out.

Even without the votes to cook his goose, the American people deserve to hear Justice Kennedy explain why he now finds the Constitution irrelevant. Let him stand before the nation and tell us why, when he has a decision to make, he bases it on anything but the Constitution.

Roper v. Simmons (abolishing the death penalty for heartless murderers under the age of 18) displayed Kennedy at his inimitable worst. Make him tell America why he deems his personal opinions of more weight and worth than the written Constitution. Ask him who appointed him a super-diplomat authorized to suck up to Europe by overturning American laws. Demand that he explain where in the Constitution he finds license to resort to foreign laws and European Court rulings as a basis for American jurisprudence.

Let the entire Supreme Court be put on notice that all justices are subject to re-confirmation under color of impeachment. A justice may survive impeachment, but we can guarantee it won't be fun. It may well be something he'll want to avoid in the future, simply by fulfilling his oath to uphold the U.S. Constitution--and only the U.S. Constitution.

[Nasty McPhilthy]

Even without the votes to cook his goose, the American people deserve to hear Justice Kennedy explain why he now finds the Constitution irrelevant.

[kingattax]

absolutely......impeach this goober

[Non-Sequitur]

I wish that just one of these columnists would actually read the Roper v Simmons decision before writing their column.

[sergeantdave]

Kennedy: "We need to reconsider the idea of private property."

[Ragnorak]

According to the Constitution, the President negotiates treaties and they must be ratified by a two thirds vote in the Senate.

Kennedy cited an unratified treaty as Constitutionally binding law. All five justices who signed onto that opinion ought to be impeached. It is a crystal clear violation of their oath of office to uphold the Constitution and it doesn't need to be more complicated than that.

[Lunkhead_01]

And the House should impeach not only Kennedy who wrote the decision, but also those Justices who concurred in the opinion. Doing so will have to effects. First, it will send a strong message to judges and Justices that their job is to interpret the law in light of the U.S. Constitution and its sources. Second, it will force the DemonRATS in the U.S. Senate to crap or get off the pot on the issue of fillibustering judicial nominees -- particularly if the Republicans in the Senate hold together and remove five of the Justices.

[CyberAnt]

I absolutely agree. I was stunned to see him argue that America must use INTERNATIONAL LAWS to temper our laws - WHAT ..?? Since when ..??

Like Mark Levin says, this is their PERSONAL POLICY they are making - and they're not conforming to the Constitution. Therefore, because this justice has not lived up to his "good behavior" standard - he needs to be removed.

[Non-Sequitur]

I absolutely agree. I was stunned to see him argue that America must use INTERNATIONAL LAWS to temper our laws - WHAT ..?? Since when ..??

But Justice Kennedy did not say that. What he said was, "Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court’s decision in Trop (Trop v Dulles, 1958), the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments.”"

[hflynn]

Justices serve lifetime appointments. Under the Constitution they can be removed from the Court only by first being impeached (accused) by a majority vote of the U.S. House of Representatives and then convicted by a two-thirds vote of the Senate. This is 1 of the super majorities mentioned in the Constitution and I would say impossible to achieve given the membership of the current Senate and the Senate in the foreseeable future.

[Nasty McPhilthy]

Not surprisingly, Justice Scalia is none too impressed with the work of the majority in Roper, and especially its discussion of foreign practices:

The Court thus proclaims itself sole arbiter of our Nation's moral standards — and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

[JoeV1]

HERE, HERE (or is it HEAR, HEAR?)!!!

[JoeV1]

To hell with it. We need a bullit proof congressional majority so the legal age can be lowered to 10 in capital murder cases and then fry the bastards one and all.

[CyberAnt]

Sorry .. I'm thinking of the guy that debated with Scalia. Now .. HE DID SAY he thought we should use international law - maybe it was Souter.

[Ragnorak]

"Not controlling" doesn't cut it. He does find it controlling because without it he has no basis to rule the way he did. We have 50 States 18 of which passed laws allowing the execution of minors. He certainly found the international law to be more controlling than the laws of those 18 States.

We had the opportunity to ratify a treaty in accordance with the Constitution and chose not to do so. The Constitutional process rejected the treaty and therefore he is obligated and bound by his oath of office to do the same.

Please, this is like a judge citing evidence that was excluded at trial when he declares someone guilty but says it didn't influence his opinion.

[Non-Sequitur]

Not surprisingly, Justice Scalia is none too impressed with the work of the majority in Roper, and especially its discussion of foreign practices...

That would be the same Justice Scalia who wrote in McIntyre v. Ohio Elections Comm'n (514 US 334 (1995)), "The practices of other nations, particularly other democracies, can be relevant to determining whether a practice uniform among our people is not merely an historical accident, but rather so 'implicit in the concept of ordered liberty' that it occupies a place not merely in our mores but, text permitting, in our Constitution as well. See Palko v. Connecticut, 302 U.S. 319, 325 (1937) (Cardozo, J.)."

[Non-Sequitur]

We have 50 States 18 of which passed laws allowing the execution of minors.

Read the decision. He found the fact that 32 states plus DC have laws that do NOT allow them to execute minors more compelling.

[hocndoc]

I'll tell you who "authorized" him: the majority of the SC, who were bound to know that he would invoke foreign law.

He's just one of 4, possibly 5, who are guilty of judicial highhandedness.


We need Constitutional judges ruling on the United States Constitution (and nothing else).

[Ragnorak]

If your point is that Kennedy took careful steps to write words that claim he is not citing foreign law as the final authority you are correct and I am not disputing that he used those words. I am disputing that those words make sense and that he even meant them.

If he doesn't find it binding why is it ever mentioned in the opinion? This case exists to form another precedent to allow International Law to become more binding in future Supreme Court opinions. Think of the precedents that have already been set and how the groundwork was set.

If in fact 32 States give him a sufficiently adequate reason to rule as he did there is no reason to ever mention any foreign law. The Constitution did not set up a democracy among States for the Supreme Court to rely on. If he is ruling that there is a critical number of States that believe something that can be Constitutionally binding, the only number he could find in the Constitution to rule that way would be the 75% to ratify an Amendment. 32 only gives you 64%. 64% is even below two thirds (the only other super-majority number mentioned anywhere in the Constitution) so he is ruling that a simple majority of States is "controlling" if you remove the foreign law.

There is no basis in the Constitution to rule the way he did. It is a betrayal of his oath of office. Impeach him and ask him under what circumstances would the laws of any number of foreign countries give you legal weight to overturn the laws of a single State in this country. Continue this line of questioning and he will either say the foreign law is binding or he will admit that there exists no reason in the known universe to cite foreign law in domestic cases other than to impose the personal will of the court on the rest of America which is exactly what this opinion did.

[Non-Sequitur]

There is no basis in the Constitution to rule the way he did. It is a betrayal of his oath of office.

Again, I say. Read the decision.

If there is no basis on the Constitution to rule the way he did, then it is equally true that there is no basis in the Constitution for limiting the death penalty for any age. Why not also impeach the majority justices in the 1988 case of Thompson v Oklahoma, which said executing those under 16 was cruel and unusual? Should we impeach the majority justices in Penry v Lynaugh, which ruled that executing the retarded was cruel and unusual? There have been any number of cases where children under 10 killed playmates. Should they be subject to captial punishment? Where would you draw the line? And if you agree with Thompson, but disagree with Roper then why?

Impeach him and ask him under what circumstances would the laws of any number of foreign countries give you legal weight to overturn the laws of a single State in this country.

In the first place, the court upheld the state of Missouri in the Roper decision. They held that the execution was unconstitutional. In the second place, Kennedy did not use the laws of a foreign country as the basis for his decision. The court cited at least a dozen prior Supreme Court and lower court decisions as precedent, referenced a number of U.S. medical studies in support, and only mentioned foreign sources at the end, and almost in passing.

Continue this line of questioning and he will either say the foreign law is binding or he will admit that there exists no reason in the known universe to cite foreign law in domestic cases other than to impose the personal will of the court on the rest of America which is exactly what this opinion did.

Nonsense.

[Ragnorak]

If there is no basis on the Constitution to rule the way he did, then it is equally true that there is no basis in the Constitution for limiting the death penalty for any age.

This is almost correct. There is a basis in the Constitution to limit the age for the death penalty. It is Article 1 where the legislative branch is established. It could also be limited by amending the Constitution in accordance with Article V.

Should we impeach the majority justices in Penry v Lynaugh, which ruled that executing the retarded was cruel and unusual?

Not familiar enough with Penry, but I am quite familiar with Atkins v. Virginia. Yes, we should absolutely impeach the justices who signed on to the majority opinion in Atkins.

The criteria used to decide mental competence, whether it is age, mental disability, insanity, etc is set by the legislative branches of government and signed into law by the executive branch or made law by a super-majority overriding a veto. Courts are obligated to review cases based on laws written by legislatures. They are not supposed to write laws or set policy. The court in this case wrote a new law forbidding the execution of anyone under 18.

You may happen to think that there should be a de facto age limit when it comes to the application of the death penalty rather than or in addition to a set of criteria and specific evidence to be evaluated by a judge and/or jury. There may be merit to this view. Convince your fellow citizens, petition your legislature and make it happen. Until such time, the express will of the people finds its voice through laws written by legislatures and no judge or collection of judges has the right or the Coinstitutional authority to supplant the law with his or their own collective views. When judges choose this course they ought to be impeached.

The only restriction put on the death penalty in the Constitution is "due process of law." The whole 8th Amendment argument is joke and has no relevance to "cruel and unusual punishment" as it was defined at the time the Constitution was written. "Due process" started as a rather limited guarantee carried over from the Magna Charta originally phrased as “by the law of the land” and modified to “due process of law” in 1354. Sir Edward Coke defined it as “indictment and presentment by good lawful men, and trial and conviction in consequence.” The first major case dealing with it didn’t arise until 1856 in Murray’s Lessee v. Hoboken Land Improvement Co. In that case a unanimous court viewed it to be a limit on the legislature’s ability to make any new process “due process of law.” (apparently, no such limit applies to the judiciary...) Its major evolution came out of the due process clause of the Fourteenth Amendment. In Davidson v. New Orleans (1878) Justice Samuel commented “It is not a little remarkable, that while this provision has been in the Constitution of the United States, as a restraint upon the authority of the Federal government, for nearly a century, … this special limitation upon its powers has rarely been invoked ... but while it has been a part of the Constitution, as a restraint upon the power of the States, only a very few years, the docket of this court is crowded with cases... There is here abundant evidence that there exists some strange misconception of the scope of this provision as found in the fourteenth amendment.” This decision held, “That whenever by the laws of a State...and those laws provide for a mode of confirming or contesting the charge thus imposed, in the ordinary courts of justice, with such notice to the person, or such proceeding ... as is appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive ... without due process of law, however obnoxious it may be to other objections.“ Yet he went on to say, “There is wisdom, we think, in the ascertaining of the intent and application of such an important phrase in the Federal Constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded.”

The Supreme Court held that due process only protected a right to the process. Think of every obnoxious objection that has since fallen under the very broad umbrella of due process from its humble starting point. If you think that Kennedy is not deliberately giving foreign law a similar humble starting point then we just have a fundamental disagreement. I would merely ask, if the citation of foreign law is truly as insignificant as you say, why on earth did he waste the time and ink to include it?