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Monday, October 10, 2005
The Supreme Abortion Court?

If this makes me a lousy conservative, so be it. A Supreme Court Justice candidate's opinion on abortion isn't that important to me. Well, that's not exactly true, it's not unimportant, but it's also not in the top five questions I would ask them. I'm not sure it's in the top ten. I've become increasingly annoyed that the primary concern on both sides of the political spectrum when it comes to judges, especially Supreme Court judges, is where they stand on this one topic.

And I get it too. I understand the passion on both sides, and I understand the implications of upholding or overturning this one decision. I have an opinion on the matter. I think everyone knows my opinion on the matter. I think everyone knows how I would like to see the court rule on the matter if it were to come before the court again.

Still, regardless of where you stand on the issue, is it worth risking the integrity of the Supreme Court, of the judicial branch as a whole even, just so you can have that one issue decided in your favor? It's that kind of thinking that gets a highly qualified nominee (like Robert Bork) defeated. It's that kind of thinking that gets judges with absurd viewpoints on American law as a whole nominated in the first place (like Ruth Ginsburg). Who cares if they're nuts. Who cares if they view the constitution - the guiding document on which their very role and purpose is based - as some pliable "concept," or worse still just one of many "guiding" legal documents to consider from both inside and outside our borders. Doesn't matter - as long as we KNOW what their stand on the all mighty abortion issue is - everything else is secondary.

Abortion. That's it. That's the Supreme Court's only purpose now. Don't think so? Watch a little TV coverage - listen to talk radio, right or left - watch the pitiful joke that are the "confirmation hearings." Every thought, every analysis, every interpretation, every line of questioning is intended for one purpose - to glean where the candidate will come down on the only thing that matters.

Think of it like this Jason, it will make it easier for you. Abortion is not the only topic, but it is the topic by which we are able to judge the judical climate a certain individual will lead us in. Its like a pulse. If your against abortion, your for capital punishment, hard drug laws, limited government, and a more "conservative" interpretation of the constitution. If your for abortion, your the opposite. This is no secret, kind of the holy war we are in, but it is spoken about as often as said holy war.
I also wonder, was your post an attempt to cover for the President's inept nominee, I can't tell.
I'm sorry if I seem agressive Jason, but regardless of the abortion issue, The President picked this nominee with the same effort he choose the FEMA head. Plus, the libs are behind here's like, what the f**K.
Actually Mark I was not trying to make a particular point on Miers, but if I was it would be that she appears to be another example of this very trend. My supposition is that the President is likely very certain as to where she stands on abortion and how she would rule on the matter - he may be so determined to get that one right, that he was willing to pick on known commodity of perhaps lesser credentials specifically because he could be certain on how she would rule in that area.

As to your premise that abortion, or ones stance on abortion, is reasonably predictive of the way you would rule in other areas, frankly I'm not convinced.
For once I completely agree with Jason.

First, I have to agree with Mark's analysis - the left is for Miers because she looks about as moderate as they can expect from the president. Plus she's over sixty, so they are looking at possibly getting a chance to replace her in 10 years. The right feels betrayed. They were hoping for a hard core fundamentalist Christian younger than 50. They would like to have an outspoken born again southern baptist in there for 30 years. Clearly the political climate after Katrina is against Bush, so he must have felt he had to go moderate, but conservatives feel he has clearly conceded too much in order to avoid a fight.

But I also agree very much with Jason - the supreme court is a critical institution which should be occupied only elite constitutional scholars. We need to have people in there who appear to have no political constituency. People who are interested in being a voice, not for their own political beliefs, but a voice for the constitution itself. I would expect the only people who should be nominated are people who have been writing and thinking about the meaning of this document since long before being nominated.

I agree that Harriet Miers is completely unqualified. My view of the most unqualified sitting justice however is not Ginsburg, but Thomas.

Finally one's stance on abortion does not predict anything about those other issues. Catholics for example by doctrine should be against both capital punishment and abortion.
To Braveheart,

Do you agree that Ginsburg is not qualified because she does "have a political constituency"? (your words)

She was the ACLU general counsel from '73 to '80 and servered on their Board of Directors from '74 to '80.

There are two issues I mentioned in evaluating the appropriateness of a supreme count nominee: 1. demonstrated experience in constitutional law, 2. not having a political bias outside of that law. Anyone who has been thinking and writing about constitutional law for years passes the first test - even if I may disagree with their analysis. Under the second test, what I mean is that someone should not bring their personal views based on things other than the constitution ( religion, race, personal experience ) into their interpretation of constitutional law.

For example a justice might feel personally that civilians should as a practical matter not be allowed to posssess assault rifles, and also believe that the constitution says that they are allowed to have them. I would want a justice to rule based on their view of what the law says - not their personal opinion.

Now someone's interpretation of constutional law will necessarily have its political bias. So a more libertarian minded justice might decide that the right to bear arms means anyone can just up and buy assault rifles, and a more socialist justice might decide that this should be allowed only under the context of a militia like the national guard. I don't think it is invalid for a justice to appear to have a political affinity when it comes to interpretation of the constitution. Their whole job is to clarify points where there is doubt and ambiguity. Each person will do that differently - thats why we have 9 of them.

You may not like the ACLU, but their main focus is on constitutional law. Being legal counsel to them I think strengthens the validity of a nominee. What I would object to for example is a justice who would say something like "I'm a feminist and that philosophy will be a guiding principle in my judgements - I rule to expand rights for women matter what the constitution says." I think similarly about anyone who would say that their religious beliefs will help guide their judgements. For example on the issue of abortion. Suppose for sake of argument that there was an amendment to the constitution that says flatly "abortion is legal". I wouldn't want a justice to rule against abortion on the grounds that it is so fundamenally against their religious beliefs that they can't rule for it no matter what the constitution says.

Bush can't withdraw Miers. It would be another political black eye he can't afford. Latest NBC poll has only 28% of Americans saying the country is on the "right track".

I think the best of all possible outcomes is if Repulicans promised to not vote to confirm any more "stealth" nominees with no constitutional record, and that then Democrats would in return agree to vote with Republicans against Miers. Then I think we would get a nominee who has experience, a clear record, and who the senate could vote on, knowing what that person believes. The current process of sending people with no well known record has backfired on Republicans repeatedly, and doesn't serve the nation.

Good points. And thanks for the clarification on political background.

However, in the real world – today’s world, no nominee is going to announce where they stand on particular issues or if their religious or political background will affect their judgment. Ginsburg was not much different from Roberts in her answers to the Senate Judiciary committee. In fact her opening statement was (I’m paraphrasing) ‘I will not state specifics on how I would rule on any cases.’ Therefore we go back to their background to glean what we can of their philosophy.

This has nothing to do with liking or disliking the ACLU. They, like other advocacy groups, bring a perspective to constitutional interpretation. That perspective aligns with a political philosophy much of the time. Please keep in mind that Ginsburg was confirmed on a unanimous voice vote. Bill Clinton was the president. Ginsburg was his pick. Short of anything terribly wrong with the nominee, the president gets to place their pick on the Bench.

Don’t you agree that the same standard needs to be applied to all nominees? It appears that the standards are different for Republican vs. Democratic presidents.

As for Bush: My opinion is that the conservatives in this country expected to get a known commodity. Similar to what the liberals in America received in the Ginsburg nomination and confirmation.

Could you please explain how the ‘current process has backfired’ on Republicans. If your measuring stick is the latest opinion poll, that is invalid in a historical context.

What I mean about backfiring is that most of the justices on the court were appointed by Republican presidents, yet Republicans are the ones who feel the court is too liberal. This is because they have appointed people with very thin records on constitutional law but drawn from conservative circles - and then many of those justices have turned out to be much more liberal than the Republicans wanted.

Consider Justices Souter and O'Connor. Both Republican nominations, both with very thin records in constitutional law. And both considered to be among the more liberal justices. I tend to think the country got lucky on those two, but I bet many on the right say unlucky. So I'd say the stealth strategy hasn't worked out to well for you.

You can contrast this with Ginsberg. When she was nominated she had argued 6 cases before the supreme court. She could refuse to be specific to the Senate about her views on the constitution all she wanted to - but she had a very clear record you could look at to see how she interprets the constitution.

The other Democrat picked Justice was Breyer. Was a supreme court law clerk, and had been a federal judge for many years and had written about consitutional matters. He was qualified and his views were well known.

I may not agree with conservative Justice Rehnquist, but I can't fault that guy for qualifications for either. He was first in his class from an elite law school, was supreme court law clerk, and had been a federal judge for years. He had a record.
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