Posted on 07/14/2005 1:19:22 PM PDT by Congressman Billybob
Two of my ministers have regularly conducted “mini-sermons” for the children in the church. When they do that, they demonstrate a universal truth. No one really understands a subject until he can explain it in plain English to a ten year old. I think the question of appointing new Justices to the Supreme Court cries out for that treatment. The Fry Cook Rule may provide the answer.
One member of the Supreme Court has already resigned, Justice O’Connor. Three others may not be long behind her, Chief Justice Rehnquist, and Justices Ginsburg and Stevens. I won’t repeat what I’ve said before about the age and infirmities of various Justices. Suffice to say, for that hypothetical ten year old, when a President appoints four new Justices to a Court that only has nine members, the effects are profound. And the effects will last a long time, since Justices are appointed for life.
So, it matters a whole bunch if President Bush has a philosophy about what Justices ought to do on the bench, and if he demonstrates that thinking through his appointees to go on that Court.
A brief digression’s in order about the praise being heaped on Justice O’Connor these days by everyone who can walk and chew gum, regardless of their politics. Two weeks ago I covered the difference between the original O’Connor and the current-day O’Connor. The fact that everyone is now praising her has nothing to do with the two different O’Connors, but instead follows the Julius Caesar Rule.
As Shakespeare pointed out by the magnificent speech he wrote for Mark Anthony at Julius Caesar’s funeral, it is always safe to praise dead politicians. No matter how badly you misquote them or abuse their memories, you can be certain they will not rise up and contradict you. Yes, I know Justice O’Connor is not physically deceased. But politically she is “an ex-parrot; she has joined the choir invisible.” (From a career standpoint, of course, quoting Monty Python.)
Many forests have given their lives, and enough electrons died to light up Lithuania, to publish or broadcast mindless blather about the appointment of new Justices. Most of the authors of this twaddle are dumb as a hoe handle about what it means to have a written Constitution, and therefore what it means to serve as a federal judge under that document. A few do know those subjects, but are lying about them for political purposes. Here is the straight skinny.
The Fry Cook Rule
You are Manager of a McDonalds, hiring a new fry cook. You need answers to two questions: Do you understand the job? Are you willing to do the job?
For a Supreme Court appointment, the two questions are: Do you understand the Constitution? Will you enforce the Constitution?
Now that we’ve clarified the Rule for appointment, we should explain why it’s important. As most of you know, on 23 June the Court decided the Kelo case, concerning eminent domain against private homes in New London, Connecticut. To make a long story very short, five Justices ruled that when the Constitution says your home can be taken only for “public use,” it really meant the government can take your house and turn it over to some other private owner who will build a bigger building and pay higher taxes.
Four Justices, a minority who can only complain, protested vigorously that the Court was savaging the Constitution and throwing out one of the key protections of the Bill of Rights.
Now, it isn’t proper to ask a prospective new Justice a bald-faced question, “Do you think the Kelo decision was bad, and should be reversed?” Any nominee who answered that question would have to disqualify himself/herself when a new case on that issue found its way into the Court. On the other hand, a Senator smart enough to ask the right questions (yes, Virginia, there are a few smart and honest Senators), could inquire whether the nominee agrees with Madison, Hamilton and Jay in the Federalist. He might even ask the nominee to explain what Thomas Jefferson meant when he referred to the federal judiciary as “the most dangerous branch.”
In short, it shouldn’t be too difficult to apply the Fry Cook Rule to any nominee for the Court. A few well-crafted questions will ferret out whether he/she understands the job and is willing to do it. Whether he/she understands the Constitution and will enforce it.
There, was that so difficult?
About the Author: John Armor is a First Amendment attorney and author who lives in the Blue Ridge Mountains of North Carolina. John_Armor@aya.yale.edu
Billy Bob, you are surely a reincarnation of Will Rogers, Mark Twain and Teddy Roosevelt, all rolled into one.
You make the difficult so easy to understand, that the ignorant.........the stupid even, are left with no excuse for failing to comprehend.
Asking for what is impossible is not a productive approach. Asking for what is possible, enforcing the Fifth Amendment, is the better approach. That is the way this case will be cut down in future cases. See the history of Plessy v. Ferguson as a template for change in the Supreme Court as better thinking appears among the Justices.
John / Billybob
Wonder if she could pull her letter back if she didn't approve of the nominee?
Ridiculous. First off, as it pertains to the Fifth Amendment, the incorporation doctrine was originally justified in 1897 by Blackmun I believe. Scalia also spoke out against that decision in one of his own just a few years ago.
But by your argument, any doctrine that has been 'settled', if for a specific time, should apparently be left alone. Does that mean Roe v Wade should never be overturned? Not going to get very far down the path to returning to a Constitutional government if we allow that.
Asking for what is impossible is not a productive approach. Asking for what is possible, enforcing the Fifth Amendment, is the better approach.
Okay. Let's play it your way then. More centralization of power than the Framers intended. Applying the Constitution to the separate and sovereign states, another travesty in the eyes of the Framers (see #45). Allowing federal courts to oversee and review state decisions. Again another no-no to the Framers (see #78 and #81).
I tell you what. Let's just throw out the Federalist papers and parts of the Constitution that fly in the face of what you call 'conservative' and continue our compromise down the road to hell shall we? After all, a Republican is picking the SCOTUS judge so that makes practically anyone he decides on as an acceptable 'conservative'. Nothing may be done immediately by asking for the impossible. Continuing down a partisan path that so many desire and refusing to educate the general public (which after reading your article may include you, sorry but I call it as I see it) on the intent and limitations of the Constitution, 'conservatives' will be no better than the liberals they despise.
Asking for what is impossible may not be a productive approach. But what has gotten us to this point is asking only for what is possible. And I wouldn't call that productive in the least
ping
In Bush v. Gore, I was the ONLY lawyer to urge the Court to "strike" the Florida decision, and "do nothing else." And that's what the Court did, unanimously, in Round I.
However, and this is a big however, I do have an instinct for what cannot possibly be accomplished at a given time in a given case. It undercuts all of one's arguments to make one clearly foolish argument. I do not think I will consult with you before filing my 20th brief in the Court. To charge in like a bull in a China shop is NOT a productive approach to any challenge in life.
John / Billybob
PING!
I think she could the way it's worded. She could just say there's no hope that the nominee will be confirmed.
Please provide links to these briefs, I would like to see what you argued on and just how far you pushed the envelope
In Bush v. Gore, I was the ONLY lawyer to urge the Court to "strike" the Florida decision, and "do nothing else." And that's what the Court did, unanimously, in Round I.
Again, not doubting you but I would like to read your argument on this case to see how you came to this conclusion. Bush v Gore was a special case as an election of a federal official was at stake. Therefore, the Supreme Court had every jurisdiction to review a state decision.
However, and this is a big however, I do have an instinct for what cannot possibly be accomplished at a given time in a given case.
Oh good, we'll just keep down the same path then shall we? Lord knows how well it's worked for the past 100 years. Why, we're rolling conservatism back decades, ooops I mean rolling back government waste, power, and expenditure back decades.
It undercuts all of one's arguments to make one clearly foolish argument.
Oh, so Hamilton and Madison were foolish while Blackmun, a truly activist judge was not. Glad we got that straightened out.
I do not think I will consult with you before filing my 20th brief in the Court.
Hey as I said, I would be interested to read the other 19 to see how and what you argue. Centralization of government power isn't that much of an argument for forwarding conservatism though.
To charge in like a bull in a China shop is NOT a productive approach to any challenge in life.
Well somebody needs to start charging something there. Because the pattering around of little Republican feet hasn't done much of squat in my view.
If you want to review my work, feel free to go to the official SCOTUS website and read those briefs. I filed both on behalf of the American Civil Rights Union, whose Board of Advisors includes Judge Robert Bork and General Ed Meese, among others.
Once you have spent more time doing your homework than time spent sniping at me, feel free to report back. Until then, I reject all your objections as coming from someone who knows far less about constitutional law than he thinks. Are you a lawyer? If you are, you must have slept through your course in Constitutional Law.
John Armor, Esq.
I would distill it down even further: "Here is a dictionary. Will you adhere to the meanings of the words in this dictionary, or invent your own?"
Great post. Thanks.
Or Ginsbergs or Kennedys
Bump
Yes because one of us understands the intent by reading the writings of the men who were involved with the document's creation and the other one well....
In exactly two of its cases, the Supreme Court has chosen to make available through its own website all of the briefs filed in the case. As it so happens, I filed briefs in both of those, which were Bush v. Gore, and McConnell v, FEC.
Well, provide a link then. To your brief. Surely you don't expect me to go rambling around the SCOTUS website when someone such as yourself should be more than gratified to provide a link to your work. As for the other 17 briefs, I'm sure some law website has links to this information. I would just like to see where you're coming from in your arguments....
Once you have spent more time doing your homework than time spent sniping at me, feel free to report back. Until then, I reject all your objections as coming from someone who knows far less about constitutional law than he thinks. Are you a lawyer? If you are, you must have slept through your course in Constitutional Law.
No, and neither were all the men who framed this nation. I have however read and understand Tucker and Blackstone. Surely Tucker has a good understanding of the document that was written in his time than you or many others. Wouldn't you agree? Or shall we know throw Tucker's arguments under the bus to maintain your argument.
Your argument on Constitutional 'law' apparently boils down to this. The majority of lawyers accept it as a given, therefore even if it flies in the face of intent, it must be a given. So I put my question to you again. If Scalia and Thomas have voiced disagreement with Blackmun's decision in 1897 (unfortunately they did not voice it in this opinion) are they wrong as well? If you have a problem with that, I would suggest you hope sincerely that Janice Rogers Brown and others like her never get to SCOTUS. Her past opinions are clear she is one of the strongest federalists I have seen in some time. She makes Thomas look moderate.
Also why did those that studied and practiced Constitutional 'law' from the mid 1860s until 1897 not able to find this incorporation clause that you say is a given? Because it was not in the intent of the majority of the writers of said Amendment
BTW, on another subject, hopefully better for you, I didn't hear how your campaign went. Did you have the opportunity to run against Taylor or at least the primaries?
One of your better pieces. Thanks for all your efforts.
There must be no more Souters.
The no-questions tactic gave us Souter.
"The no-questions tactic gave us Souter."
Not true.
The lack of proof of his conservative views in any of Souter's actual judicial opinions, coupled with H.W.'s reliance on that fat RINO bastard Sununu, gave us Souter.
I sincerely hope that Dubya will be looking at opinions that have more than just legal opinion in them, but contain reasoning that includes discussion of public policy and constitutional grounds for an opinion, as well as examining extrajudicial statements. Souter never did much writing on public policy and conlaw, and rarely uttered a peep on where his jurisprudential thought arose from outside of a courtroom back then. That will not fly in a nominee this time.
And back then, of course, that SOB Sununu sealed the deal, and we cannot have another RINO doing the picking. I'm not saying we shouldn't know the facts--I'm saying that we shouldn't allow an inquisition in the Senate. Make the up or down vote on the record, not the examination, of the nominee.
That's my main point here. The nominee must be selected on the basis of an already public record, or the nominee will simply be a RINO, one that the President will have shattered any conservative faith in him by appointing, even while frowning at the new Souter like his dad did, muttering "I never meant to..." Because this time, we'll damn well know he meant to nominate that RINO, because he didn't nominate a proven conservative but 'gambled.'
And I don't know about you, but I didn't vote for Bush so he'd roll the dice on a Supreme Court nominee. I voted for him and the GOP to get constitutionalists appointed, and I'm not about to let that vote go to waste again if it doesn't happen with this appointment, which may be the most important vote on the Court we can hope for during Dubya's term. Abortion and affirmative action are just two issues where things could swing the other way with O'Connor replaced by a constitutionalist. So there must be no compromise on politics, hoping to get their vote next time, because we might not, and then this chance would not come again. There must be no affirmative action appointees from whom the best we can hope for is the occasional conservative opinion like O'Connor. And no more gambling on unproven, unknown, Souters-to-be.
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