Posted on 10/28/2005 8:33:00 AM PDT by Rutles4Ever
There's the rub. We're supposed to believe that a judge who follows stare decisis above the Constitution will somehow abandon that view when he reaches the highest court. There is nothing to suggest THAT is likely, particularly when such unwritten judicial protocol has been ingrained the mind since law school.
We have Luttig calling Roe a "super-stare decisis"--undoubtedly what Sen. Specter was grasping for when he referred to Roe as "super-duper precedent"--as though precedents are measured in degrees, and Roe is the most untouchable. I must have missed that lesson on constitutional law, which teaches how we identify a "super-duper precedent," as opposed to, say an itty-bitty one.
The consensus among those who think in such terms hold Roe as untouchable by the Supreme Court. It is “super-stare decisis,” “settled case law,” and its merits can never again be brought to the court or the facts revisited, even when Roe herself (Norma McCorvey) petitions the court to reopen her case. A sympathetic Edith Hollan Jones felt bound by precedent to reject her petition, yet urged the Supreme Court to grant certiorari. Naturally, certiorari was rejected last year by the Supreme Court, “not on the merits of the case," according to McCorvey. "The denial order merely expresses the Court’s discretionary refusal to give appellate review to a lower court decision.” Had the lower court, led by Jones, gone against precedent and ruled in favor of McCorvey, the Supreme Court without question would have been forced to take the case. What irony.
Disciples of the unwritten rules of judicial protocol--who inevitably place the Constitution second--are the last type of nominees we need on the court. Luttig, Roberts, Miers, Alito may satisfactorily vote in many cases, but a nominee untrained in the defense of the Constitution against the new tradition of judicial supremacy is unlikely to be a beacon for change. They may be a speed bump for a while, but ultimately will do nothing to change the direction liberals have set for the court.
As the saying goes, when you keep doin' what you're doin', you're going to keep gettin what you're gettin'.
The fact that 7 of 9 justices on the Rehnquist court were Republican appointees, most of whom without proper respect for the Constitution, is evidence that we must be doing something wrong.
Janice Rogers Brown is something different. Known for her courageous dissents, Brown has said, "We cannot simply cloak ourselves in the doctrine of stare decisis."
Her enemies have taken note:
"Brown has often been the lone justice to dissent on the California Supreme Court, illustrating that her judicial philosophy is outside the mainstream. Not only does she show an inability to dispassionately review cases, her opinions are based on extremist ideology that ignores judicial precedent, including that set by the U.S. Supreme Court." (Save Our Courts)We need someone with an enlightened, originalist outlook on the role of the judiciary, not someone who has gotten where they are because they bowed to the status quo."Justice Brown's disdain for legal precedent could not be clearer. In many of her decisions, Justice Brown appears to be a jurist on a right-wing mission.... Justice Brown's record proves that she is unable or unwilling to divorce her personal views from her responsibility to fairly interpret the law and the Constitution. She should not be elevated to a federal court where she could further undermine the rule of law and the attendant legal protections." (Congressional Black Caucus)
"Janice Rogers Brown demonstrated her opposition to a woman's right to privacy when she wrote a caustic dissent to a California Supreme Court's ruling that a California parental consent law with respect to abortion violated the state constitution's right to privacy." (NARAL Pro-Choice America)
That's a question I wish we knew.
It would be easier to know had Alito stated his view of Roe V. Wade in the Farmer opinion. At least Edith Jones and Emilio Garza gave some indication as to their true viewpoint on abortion, even when they, like Alito, felt compelled to uphold Supreme Court precedent. Both seem to share the opinion that the Supreme Court could and should overturn Roe, on the basis of new information, while expressing the opinion that the lower courts are helpless against precedent.
I don't agree with the helpless part, since every judge indeed has the obligation to reject unconstitutional opinions. Plus, the irony is that the Supreme Court is not likely to hear an abortion-related case until a lower court somewhere contradicts Roe. Only then would the full abortion question likely make it to the court, where all nine justices could hear it, and the originalist judges someday overturn it.
By your logic, Scalia, Thomas and Rehnquist would never have been appointed.
Fine, but the question still looms large--if this guy is as good as everyone says, why the hell didn't Bush nominate him in the first place?
Well, that scares me.
Judge Al Ito? The OJ judge??
He took what he thought to be the path of least resistance by not offending the rats and got burned.
We need to fix this court, not maintain the status quo. Bush thought letting Harry Reid vet his pick would allow it to sail through the Senate.
The SCOTUS today is broken. Replacing Sanda Day O'Conner with Sanda Day O'Conner II will not fix this court.
You said: "Yes, Alito saw dissented in Casey, but it was on the grounds that notification to the husband prior to an abortion does not violate Roe V. Wade. He did not attack Roe on its merits, and appears to respect it as settled precedent.
More recently, Alito voted with the majority in Planned Parenthood of Central New Jersey v. Farmer to strike down New Jersey's partial birth abortion ban. See my post #151."
Nellie Gray of March to Life said that Roe v Wade is the "unsettled law" as before Roe abortion was illegal.
Never use the terms of the enemy.
He is replacing a swing vote on the Court, and their whacko base will not settle for anything less than all out war.
We'd better have our powder dry, and be prepared to buck up the spineless in the Senate when the heat gets turned up.
We will get that battle so many wanted to have.
Tune in daily. Also, start keeping track of the number of times he uses the "Dagger" image. Taranto on Opinionjournal.com, the WSJ website has compiled about 20 uses of "dagger" imagery from Schmucko's verbal meanderings over the years.
"Alito got unanimous consent from the Judiciary Committee in 1990, with names like Byrd, Reid, Kennedy, Biden, Kerry, Harkin, Lautenberg, Leiberman, Dodd, and Leahy all signing off on him.
There's almost no chance of a filibuster, and they have almost no ground to stand on to fight his credentials since he's already been vetted and they gave him an overwhelming stamp of approval."
Logically, you are correct. However, the Dims you mentioned are rarely logical.
I suspect that they'll find some grounds to fight his nomination - namely, during the time he has been on the bench (these past 15 years), his writings and decisions are too conservative and 'are not 'mainstream'. They didn't know all of this when they approved him previously, but, now that they do, in good conscience they cannot vote to confirm him (they won't mention that they are getting more pressure from Neas, the ACLU, NARAL, NOW, moveon, etc. than they did previously).
ping
As opposed to "But Harriet Miers owns a gun. She even shot it once!"
LOL, how could one compare the 2 to each other?
huh?
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