Supreme Court Nominee John G. Roberts
Scott Kirwin
Today is a big day for domestic politics junkies. If you don't know enough about President Bush's first pick for the Supreme Court, here is a rundown of sites to help you. Supreme Court Nomination Blog is a good place to start with links to several stories in the media. It's sister blog SCOTUSblog has more, as does "Underneath Their Robes" - a blog with a name that makes me say "EEEeeeewww" .
As usual the only issue Democrats and the Left in general seem to care about is abortion. Will Roberts help overturn Roe v Wade or not? Liberals forget that true conservatives value a concept called "Stare Decisis". This puts us at a disadvantage when it comes to repealing laws. Roberts seems to put stock in the concept so I'm not holding my breath hoping that Roe v. Wade gets overturned soon.
I mean, seriously. Probably the only reason it's not Gonzales up there is because Bush's base blackballed him!
Abortion is the hot-button of the Religious Right, a group that represents about 10-15% of the President's support. They are a single issue group.
For the rest there are broader issues such as Roberts' overall interpretation of the Constitution and the exercise and restraint of judicial power. Those are things that touch upon abortion but on other areas of concern for Conservatives as well: states rights, eminent domain, and separation of powers.
So to answer your question, Yes, it is different for Republicans.
Beyond that, I do not think it should be automatically assumed that any prior US Supreme Court decision, including Roe v Wade, is likely to be overturned by this judge and any combination of the sitting justices of the Supreme Court.
One of the main principles in constitutional law is the power of stare decisis, in other words, literally, the "old decisions". Because precedent in the US constitutional system is almost as important as the specific wording of the US Constitution and its amendments.
Roe v Wade in 1972 was sustained by an overwhelming vote of the US Supreme Court, 7 to 2. There was nothing narrow about that majority. And this is a fact that will be taken into account by almost any justice of any US Supreme Court.
There is a sort of mythology that has grown up around a notion that Roe v Wade was decided on the basis of a presumed right to privacy that had never been addressed by the US Constitution. And there has been talk ever since that Roe v Wade should be overturned on that basis.
But a careful reading of the opinion of justice Harry Blackmun, who played a leading role the decision, the real issue was that there was and is no constitutionally defined standard as to when life begins, and that the US Constitution assigns rights of citizens solely to persons born or naturalized in the United States.
"Conception", therefore, no matter how precious a concept it might be in several or even all religious faiths or other systems of thought, has no meaning that has been defined by the United States constitution. Different individuals, different religious groups, and so on, have differing standards as to when life begins. And these standards cannot be universally imposed on the entire American people.
I think, therefore, that regardless of social and political pressures brought by the sides of this deep social conflict, the that US Supreme Court -- this or any future one -- automatically overturning an earlier major decision, is not likely to be borne out in practice.
And as conservatives above all should have cause to remember, once someone is awarded a permanent lifetime seat on the US Supreme Court, that person is answerable solely to his own self and his intentions to serve and protect the Constitution of the United States.
Arnold Harris
Mount Horeb WI
Courtesy of GOP Vixen.
It's a legitimate concern to wonder if Roberts is in the former camp or the latter.
"There is a sort of mythology that has grown up around a notion that Roe v Wade was decided on the basis of a presumed right to privacy that had never been addressed by the US Constitution. And there has been talk ever since that Roe v Wade should be overturned on that basis."
That "mythology" or lie was concocted by Robert Bork, who wants to use public revulsion against Roe vs. Wade (1973) and its consequences as a means to overthrow Lawrence &Garner vs. Texas (2003), Stanley vs. Georgia (1969), and Griswold vs. Connecticut (1965). Bork is a totalitarian, a Toohey of the Right, a moral collectivist, who hates the concept of individual autonomy and wants total government control over all sexuality.
I'm totally against any Bork on the Court. Scalia is bad enough. If Roe vs. Wade is to be overturned (and I think it should be), then that must be done, not on the basis of a denial of the woman's right to privacy, but instead on the basis of an affirmation of the baby's right to life.
I would favor a Human Life Amendment to extend Fourteenth Amendment protection to the baby in the womb. Short of that, we must get Justices who will at least read Roe vs. Wade narrowly, so as to allow parental notification, a ban on partial-birth abortion, and other such measures to limit abortion. Even according to Roe vs. Wade itself, states can protect human life after it becomes "viable", i.e., able to survive outside the womb (which medical science is making ever earlier).
Fortunately, this Bob Roberts just may possibly be such a Justice, don't know. I know very little about him, but from what little I know, he doesn't sound like another Bork. Good! I hope not. I doubt that he will be. He should be investigated as to his views on the Constitution, and then, if he passes muster, try him out and see what he does. That's all we can do.
i think you make a good statement for Dems. If they make this process difficult, by the next pick people will be turned off, they will ignore the Dems then.
If they act diplimatic, and do it quickly, then they will have greater credibility on the next nominee. Besides the fact that the guy is qualified.
Thomas does not believe in Stare Decisis, Scalia does.
When that decision is finally overturned (I say "when" because I do not believe it is an "if"), the so-called "Religious Right" will cease to be a major power in our politics, because they will have no reason to be loyal Republicans anymore.
Even if they do win in a handful of states, most women seeking abortions possess the means to cross state lines and get the abortion anyway. Thus, the state laws will be practically unenforceable.
Result, as a practicle matter, not a whole lot changes. But those who scream about judicial activism and about rulings from "On High" get cut off at the knees.
And I'm saying this as someone who would support abortion bans except for life (not lifestyle) of the mother. But I also realize I'm in the vast minority on this and have a tough road ahead to convince a majority to agree with me.
BK
I know you despise Drudge. But it might behoove you to read Ann Coulter's interview, big as life in top center position on DrudgeReport. Coulter thinks Roberts will shaft the conservatives. Not just about abortion, but perhaps more.
Assuming Roberts is confirmed, and I think he will be, just remember that I warned you today about just the same thing. That is always what happens on the Supreme Court when the Republicans send up a stealth nominee. My reasons sort of dovetail with Coulter's, even if I don't support her position on abortion.
Arnold Harris
Mount Horeb WI
"Dean - while it's true that many conservatives believe in stare decisis, it's also been clear (from the reaction to recent supreme court decisions, and from certain dissents) that there are some conservatives that would prefer to overturn all of the decisions they dislike - say, Wickard for example, or Griswold."
That is a fatal contradiction in either case. Wickard expanded government power without limit, while Griswold upheld the rights of the individual against government power. The two cannot co-exist.
Scott Kirwin wrote:
"Abortion is the hot-button of the Religious Right, a group that represents about 10-15% of the President's support. They are a single issue group."
The "Religious Right" is an anti-concept, contradictory, invalid, definition by non-essentials. Pro-lifers are against abortion above all. Other groups are bent on persecution of homosexuals more than anything else. The two issues have no logical connection. Some who oppose abortion are homosexuals. Some "Religious Rightists" focus primarily on religious freedom or on theological orthodoxy. Some, such as Bork or Santorum, use all of these issues as tools to expand government power over our moral lives. None of that is in any way intrinsic either to being religious or to being conservative, which historically in America has meant opposing expansion of government power.
What we obviously need is a 2-dimensional spectrum, which I described here in the Queen's realm:
"I have come to see it more and more as a 2-dimensional spectrum. On the left are those (materialists) who believe that what is most important is the economic. On the right are those of us (spiritualists) who believe that what is most important is the moral or spiritual. On the bottom are those (collectivists) who believe that what is most important should be controlled by the government or the collective. On the top are those of us (individualists) who believe that what is most important should be controlled by the individual.
In the bottom left corner are the pure Marxists who want total government control of economics (socialism). In the bottom right corner are those like Santorum, Bork, or Scalia who want total government control of morals. Between these are those who want total government control of everything (totalitarians, e.g., Lenin, Hitler, Stalin, Mao, today's Politically Correct movement). In the top left corner are those libertarians such as von Mises who value economic freedom (capitalism) the most. On the left between the Marxists and the economic libertarians are the various New Deal-mixed economy pragmatists. These are the ones who the media call "the moderates". In the top right corner are those Nietzschean individualists such as Camille Paglia and myself who value spiritual freedom the most. Between the economic libertarians and the spiritual individualists are Ayn Rand and the Objectivists who defend capitalism as the supreme embodiment of man's free mind. On the right between Santorum and Paglia are those conservatives such as President Bush and Justice Thomas who are conflicted between valuing freedom and seeing some government control as necessary to protect morality.
That's how I increasingly see it. Spectrums, spectrums, spectrums, spectrums...."
Gimme that ole time Constitution.
Yours,
Wince
I was hoping to see you here! I look forward to seeing you every time these Constitutional issues come up. I liked your comment on Barnett's post on this mysterious John Roberts in Volokh's Conspiracy. Yours was the best comment there.
I said "Bob" Roberts, it was John Roberts. John G. Roberts. Yes, I wonder about him.... Don't know where he stands. Eric Scheie (Classical Values) tells me that the crowd at Kos is trying to "out" his 4-year-old son as a "fag". That's why I never read Kos. Despicable.
Anyway!.... Yes, indeed. We have absolutely just got to get back to the Constitution! We need another Justice Clarence Thomas at the very least. Or Justice Kennedy as he was during Lawrence &Garner, but not before or since.
I'm going to have to go and Google up that interview with Ann Coulter on Drudge that Arnold Harris recommended (he didn't provide a link). It should be extremely interesting if nothing else, just from the combination of those three names.
Arnold Harris
Mount Horeb WI
Wouldn't it be enough to say that deciding whether a fetus has a right to life is an arbitrary value judgement that the court has no right to take away from the voter?
Thanks. I await your treatise on the spectra of jurisprudence theory. How many dimensions with it have?
Yours,
Wince
Thank you!
As to a spectrum on jurisprudence theory, I can see 2 dimensions already:
1) The horizontal or left-right dimension would be that of the "living Constitutionalists" on the left for whom the Constitution means whatever they had for breakfast that morning or whatever fits their agenda at the moment, usually "the Constitution = the New Deal + abortion + affirmative action + whatever else is currently fashionable".
On the right would be "originalists" or "textualists" or "strict constructionists" or "dead/enduring Constitutionalists" (Scalia), or those who at least profess to be one or all of those things.
2) The vertical dimension would be how they tend to interpret the Constitution in terms of individual rights vis-a-vis government powers. At the bottom would be those such as Robert Bork and, to a large extent, Justice Scalia, who see the Constitution as establishing small islands of explicitly stated and very limited individual rights surrounded by an ocean of virtually unlimited government powers.
At the top would be those such as Randy Barnett or, to a large extent, Justice Thomas (and the Justice Kennedy of Lawrence &Garner but not since), who see the Constitution as establishing small islands of explicitly stated and stringently limited government powers surrounded by an ocean of inalienable individual rights, some explicitly stated, the rest implicit in the whole concept of "ordered liberty" and "retained by the people" (Ninth Amendment).
You can guess where I stand on this spectrum.