July 26, 2007

A Court-packing plan?

Here's a NYT op-ed saying that Congress ought to consider a new Court-packing plan:
WHEN a majority of Supreme Court justices adopt a manifestly ideological agenda, it plunges the court into the vortex of American politics. If the Roberts court has entered voluntarily what Justice Felix Frankfurter once called the “political thicket,” it may require a political solution to set it straight.
"When"... "If"... "may".... The writer, Jean Edward Smith, author of a biography of FDR, is not exactly taking a position on what the Roberts Court is doing.
Still, there is nothing sacrosanct about having nine justices on the Supreme Court. Roosevelt’s 1937 chicanery has given court-packing a bad name, but it is a hallowed American political tradition participated in by Republicans and Democrats alike.

If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two.
"[P]ersists in thumbing its nose at popular values"? Okay, now Smith seems to be taking a position, though there's no substance in his piece that backs this up, but even if it were backed up, it would be an idiotic point. He starts out fretting about a Court that enters the political sphere, and he ends up worrying about the Court failing to pick up the values of the political majority. So which is it?

Of course, I know: You want the Court to transcend politics but to transcend it in the direction that squares with your politics. I laugh at that.

Two more things:

1. Specify which cases are bothering you! If the "values" you prefer are so "popular," why can't Congress simply enact them as a matter of statutory law? I need to know what you're talking about before I can tell whether these new statutes would violate constitutional law. For example, if you're irked that the Court didn't strike down the "partial-birth abortion" statute, Congress doesn't have to restock the Court with Justices who will expansively construe abortion rights, it only needs to repeal its own statute!

2. The Constitution does create checks on the Supreme Court, and Congress can decide to use them. But such actions by Congress will themselves have a political effect. You need to look down the road and see if you like those effects too. It's not enough to say, wouldn't it be great to be able to suddenly appoint 2 new Supreme Court Justices at a point when we have a President who will nominate individuals we think will do things we like? You will need to explain why this solution is so important, and, when you that, you will probably end up in a debate that will portrays the Court as political. You may succeed in increasing the number of Justices at the expense of delegitimatizing the very Court you want to rely on. And when the next President comes in, he or she will have more power to choose Justices for openly political reasons.

59 comments:

The Drill SGT said...

Jean she is a he.

and it's still an incoherent argument, hopelessly politicized, and a dumb idea.

Toby said...

Court packing is a "hallowed American political tradition"? That's ridiculous. The last time it was even attempted 70 years ago. And the last time done successfully was over 130 years ago. The republic is only 231 years old and the Supreme Court is younger than that. To say court packing is a hallowed tradition stretches the meaning of those words beyond the breaking point.

Ann Althouse said...

Correct.

I thought it might be a "he." Was just listening to a thing on NPR this morning about Jean Shepard.

Richard Fagin said...

Once you come to the understanding that in the view of the Times, the Supreme Court is "thumbing its nose" at the political will of the majority when its decisions contradict the political beliefs of The New York Times, and the Court is the "defender of the Consitution" when its decisions support those same political beliefs, then the Times op-ed becomes understandable.

The editors of the Times are devoid of any consitutional principle when opinining on what is and is not a good court decision. Their opinions reflect only orthodox support for "rights" in favor of people they consider to be victims of our society, and waiver of certain rights by those deemed to be favored by our society (except in the practice of forcing others to give money to those deemed to be victims).

No doubt we can look back and find the Times supporting FDR's 1937 Court-packing proposal as well.

Henry said...

Three words for Mr.Smith:

Texas
Congressional
Redistricting

Smith may think it would be nice for the current congress to remake the court. But he needs to to think what the court will look like when the next Tom DeLay / George W. Bush combination gets the upper hand.

So one or two justices would provide corrective? How about 10 back at you? Guys like DeLay don't play for close calls.

Simon said...

"If the 'values' you prefer are so 'popular,' why can't Congress simply enact them ...[?] For example, if you're irked that the Court didn't strike down the 'partial-birth abortion' statute, Congress doesn't have to restock the Court with Justices who will expansively construe abortion rights, it only needs to repeal its own statute!"

It goes to the paradox I've noted before - the desperate attempt to protect a countermajoritarian device protecting a policy choice they claim enjoys majority support. Of course, it's no paradox in reality, just a smokescreen. No rational person would rely on a supermajoritarian device to maintain a policy they believed commanded majority support, so the conclusion is unavoidable that NARAL and so forth simply don't believe their own propaganda.

rhhardin said...

You get the least political court by reducing its size, not increasing it.

Simon said...

It's par for the course, needless to say, that the justices who Smith disagrees with are acting ideologically, while the other four (or five in many cases) are doing... What? Is he really so naive as to think the Ledbetter dissenters weren't being "ideological"? Or does he have a Dahlia-esque view where ideology is so broadly-defined as to sweep any judicial philosophy into its scope?

John Stodder said...

Smith may think it would be nice for the current congress to remake the court. But he needs to to think what the court will look like when the next Tom DeLay / George W. Bush combination gets the upper hand.

One of the most annoying recent tendencies of Democratic liberals and their supporters is to act as if "sauce for the goose, sauce for the gander" is a rule that should not bind them. When the Democrats started using the filibuster to prevent votes on appellate justices, they were warned it would come back to haunt them. But actually, it won't. Precedents only apply to the right sorts of people, doncha know. If Harry and Nancy want to do it, it's fine. As long as Congress remains in its natural state (Democratic), fine. But if through some vote-stealing Diebold, Cheney/Rove scheme the Republicans took over and used the same precedent to pursue their ends, it's "here come the brownshirts!"

When I was more of a liberal (I still don't quite believe I'm not one now), I admired the insistence on principle, even if sticking with principle meant our side lost some battles. Apparently, the new style liberal thinks that's wussy. Principles = what we want.

Simon said...

rhhardin said...
"You get the least political court by reducing its size, not increasing it."

So presumably state Supreme Courts - most of which have 5-7 members - are much less political than SCOTUS, and three-judge panel hearings are much less political than en banc hearings? Is there any empirical data that backs up this assertion, or at least a sound theoretical rationale? I mean, ipse dixit isn't going to get you far.

Bissage said...
This comment has been removed by the author.
Jeremy said...

I think this is a great idea. This congress can add two justices, and then the next congress can add two more, and the next can add two more, and then in a few decades, our Supreme Court will be a mass of 31 bickering partisan windbags. Hell, after a long enough time, the Court may be the size of the Senate.

Bissage said...

The sinister motive behind that court-packing editorial is patent.

How could anyone miss all the recent advertising in the New York Times purchased by the Cabinet Makers Association ?

And why did it buy so much advertising, you may well ask?

Well, more Justices means the United States Supreme Court will need a bigger bench!

And just who do you think’s going to build it?

The law clerks?

Sloanasaurus said...

The writer must be a Rovian plant. No Democrat with a brain would write such an idiotic article.

The only justifiable reason to expand the court would be because it is too busy and it needs more justices. Or.... the Court should start limiting its decisions to 10 pages. That would help a lot.

rhhardin said...

I don't see what's wrong with my ipse dico, but if you insist : a large court just represents the general population in its direction, retirements and reappointments being frequent. A one-man court gets direction only once in 50 years.

You may not like the result for 50 years, but it won't be political. Almost by definition.

Simon said...
This comment has been removed by the author.
rhhardin said...

All the Jean Shepherd you want here . I used to fall asleep listening to him.

Simon said...

John Stodder said...
"When I was more of a liberal ... I admired the insistence on principle, even if sticking with principle meant our side lost some battles."

Quite: “Legal minds tend to respond to a statement of clear and compelling principle.... Upon identifying a principle, they crave consistency. To stop and think who will win and who will lose is to sacrifice legitimacy.” Althouse, Electoral College Reform: Déjà vu, 95 Nw. U. L. Rev 993, 1007 (2001). To me, sticking to first principles - even when they produce a result I don't like - is a badge of honor. But on the other hand, cf. Althouse, The Humble and the Treasonous: Judge-Made Jurisdiction Law, 40 Case W. Res. L. Rev. 1035, 1039-40 (1990) ("By professing unconcern for practical reality and a pure, unalloyed love for an idea, one loses control over outcomes and argues unwittingly for bad results ... [T]here is something unprincipled about embracing an abstraction and taking it to its logical limit, without the stabilizing effect of considering policy implications").

B said...

One need look no further than today's outrageously reasoned lead editorial in the New York Times:

__ Defying the Imperial Presidency

to see the leftist, out-of-touch-with-reality, damn the Constitution mentality of it's
publisher and editors.

One line in particular is amazing:

If these (executive) privilege claims make it to court, it is likely that Ms. Miers and Mr. Bolten will lose.

Funny - I have read nothing but the opposite from lawyers across all the political spectrum.

The Times is slowly melting, melting . . .

Donald Douglas said...

The left just can't stand any positive Bush legacy. Why provide specifics regarding cases? Just delegitimize this administration, future presidents be damned.

DStevens said...

Smith is nothing more than an Angry Left, half-witted nothing-burger (your typical NYTimes opinion write).

'Nuff said, nothing to see here, move on folks...

Adrian said...

what, not a single joke about this line yet?
"it plunges the court into the vortex of American politics."

Simon said...

rhhardin said...
"I don't see what's wrong with my ipse dico...."

To make an unsupported dogmatic assertion is the privilege of those who've earned it -- the index case being Pythagoras, from whose students the phrase originates, according to Cicero, who had earned authority strong enough that his students could simple say that he, pythagoras, himself said it, without offering reason. You haven't earned that kind of intellectual cachet. Don't feel bad - very few people have.


"a large court just represents the general population in its direction, retirements and reappointments being frequent. A one-man court gets direction only once in 50 years."

This is akin Prof. Turley's theory, but I don't think his theory (or yours) it's very persuasive. You could far more effectively accomplish the same thing as you and Jon are looking to do by having judges serve terms of office - an approach that would avoid the inefficiencies of a huge court. The perceived "problem" isn't plainly so, even if it were, the proposed remedy isn't clearly a solution to it, it has several foreseeable problems and will entail numerous unforeseeable problems.

It isn't enough to have an idea, to believe you might be able to improve on something that has worked and worked well for some time - even if you are one of those who, as Oakeshotte put it, who "never doubts the power of his reason (when properly applied) to determine the worth of a thing, the truth of an opinion or the propriety of an action." To paraphrase the way I put the point last year, in my view, traditional practise erect a rebuttable presumption that grows stronger with the passage of time, and even when the traditional solution is less than ideal, it at least has the virtue of being tried and tested. Its unintended consequences have already become apparent. That isn't to say that change should never happen - Burke, after all, warned that "[a] state without the means of some change is without the means of its conservation" since without that capacity "it might even risk the loss of that part of the constitution which it wished the most religiously to preserve" - but nevertheless, when you have a law and a proposed change, the latter bears the burden of proof that it should be adopted, and when they seem co-equal, the former prevails. The longer the law has been on the books, the higher the burden of proof required. If you have a clearly dysfunctionally system, and you have a compelling alternative to bring forth, one which seems likely to cut a narrow path without displacing too much else, then great. But the lower in stature the problem or the higher in risk the solution (or particularly when both) the less persuasive it is.

I don't even agree with the apparent premise that the court ought to be a "representative" body swayed and "direct[ed]" by popular sentiment. Quite the opposite, if that were their purpose, there would be no need for life tenure in the first place.

John Stodder said...

Simon,

Everything has its limits. Sometimes principles are in conflict. Especially in the case of a badly conceived law that, nonetheless, must be enforced until it's changed.

But it is easier to correct the tragic results of an unthinking obedience to principle than to correct the tragic results of a purely expedient mentality. As an earlier post said, if politicians unhappy with the Supreme Court try to cure it by adding two new members, the next regime will just double down -- add 4. And very quickly, the Supreme Court would lose authority and be seen as Congress, only more pretentious.

Simon said...

Re the article B posted:

"If these privilege claims make it to court, it is likely that Ms. Miers and Mr. Bolten will lose."

It isn't, as Patterico has explained.

"Congress can and should proceed against Ms. Miers and Mr. Bolten on its own, using its inherent contempt powers."

Inherent powers that, as my co-blogger Pat has pointed out, stem from the same source as executive privilege. They can't have it both ways.

"Congress’s need for the information, though, is substantial. It has already turned up an array of acts by administration officials that may have been criminal."

If this were so, the piece would specify these supposed acts. The NYT doesn't, the Congress hasn't, and the supposedly malfeasant action that underlies this fictitious scandal is explicitly authorized by statute, see 28 U.S.C. § 541(c), and is in any event within the inherent power of the Presidency, as has been repeatedly reaffirmed by the Supreme Court.

dave in boca said...

About the only time the Supreme Court was overruled was when Jackson told Marshall to enforce his ruling on the trail of tears and when Lincoln shunted Taney to oblivion.

The NYT is having a Linda Greenhouse moment of vapid vacuous shriek-out.

Actually, poll after poll shows that the Roberts court IS reflecting the majority---just not the majority of space cadets in the NTY cocoon-bubble.

Simon said...

John,
In General Grant's famliar epigram, “I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution.” The difficulty arises when, as you say, an issue brings two or more principles into conflict.

"But it is easier to correct the tragic results of an unthinking obedience to principle than to correct the tragic results of a purely expedient mentality. As an earlier post said, if politicians unhappy with the Supreme Court try to cure it by adding two new members, the next regime will just double down -- add 4. And very quickly, the Supreme Court would lose authority and be seen as Congress, only more pretentious."

This is exactly what killed legal realism, as I understand it (and a point Ann has alluded to many times) - the court's authority, the reason why we obey its dictates, rests on the assumption that it is non-political, merely a proxy for the authority of the law. Legal realism's "painful candor" begged the question of why five unelected justices' opinions should trump 218 elected Congressmen, 51 elected Senators and one elected President's john hancock.

Adherence to principle has important normative value:

"While announcing a firm rule of decision can thus inhibit courts, strangely enough it can embolden them as well. Judges are sometimes called upon to be courageous, because they must sometimes stand up to what is generally supreme in a democracy: the popular will. ... The chances that frail men and women will stand up to their unpleasant duty are greatly increased if they can stand behind the solid shield of a firm, clear principle enunciated in earlier cases."

Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989). The problem I have with beinding rules to "consider[] policy implications" is that it necessarily makes the judge the arbiter of what is good policy - the detatchment from which being precisely the source of their authority. Indeed, it is precisely the "los[s] [of] control over outcomes" that makes formalistic rules so appealing: they cabin the discretion of the judge. "The Supreme Court's constitutional role appears to be justified only if the Court applies principles that are neutrally derived, defined and applied." Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 35 (1971). I have grown very fond of a phrase PBS recently used to describe Justice Black: the text was his mandate, but is was also his limit. I tend to invert that: the text is judge's limit, but it is also a mandate to go as far as the text goes. Scalia's point in Law of Rules is normative as much as it is formalist: the mandate of the text is an authority a judge is more likely to use when s/he can ground the result firmly in the text or in the neutral, generally-applicable principles, the result of the application of which the judge doesn't appear to "control."

Bissage said...

Here’s a long-view of the SCOTUS Bench. Link. You could fit in two more Justices (one on each end) and maintain decent sight-lines, but that wouldn’t require much in the way of expensive carpentry, and that’s a problem.

Maybe you could squeeze in four more Justices, but that’s still not so great a contract for the cabinet makers, so we really should try to do better.

Six new Justices would make for an expensive enough work project, but there really isn’t the room, and Congress would balk at funding a nifty new building for SCOTUS (if Congress isn’t getting one, too) and that might put the kibosh on the whole enterprise.

So, what to do, . . ., what to do, . . . ?

Wait a minute, I’ve got an idea!

We can pack the Court with seventy-two brand spanking new Justices and still keep the old building. It would require a brand new, very expensive bench and that would be win-win for everyone concerned!

The new bench would be based on a much-loved design that has proven its good looks and practicality well throughout the years, and here’s what it would look like, only much, much bigger. Link.

Peter, I’d like Justice Kennedy, to block, please.

Circle gets the square!!!

TMink said...

Simon wrote: "To me, sticking to first principles - even when they produce a result I don't like - is a badge of honor."

But Simon, you my friend have principles! Thus you have a sense of honor.

Would that it were thus with everyone.

Trey

P. Rich said...

Althouse. Perhaps you should have left "Here's a NYT op-ed..." until the end. Otherwise the question of whether or not it's BS is immediately superceded by the question of what particular flavor of BS it surely is.

Fred said...

I'm sorry, this turned into a very long piece.

The answer to the problem is easy

Politics shouldn't be the driving force behind justice, because that's anything but justice.

Understanding the problem and coming up with a solution? Not so easy

When Democrats do it, it's wrong.
When Republicans do it, it's wrong.

Correcting it, encouraged or discouraged by academics, probably based on bias. The bias is likely political and therefore wrong.

How do you fix a problem that is a result of an inherently flawed justice system? You can't unless you go after the root of the problem, otherwise it'll just happen again. Going after the root problem isn't easy either, because then you have to admit that there is a flaw with how we define ourselves and few are willing to admit or accept when they are wrong. (likely psychological or a human biological trait)

What frightens most politically charged Americans is the strong sense of party loyalty and external group and corporate influences that have taken over American government. Partisan loyalty trumps principles and values that conservatives were often applauded for in the 20th century, partisan loyalty now trumps the 'save the world and baby seals' mentality for Democrats that gave them a reason to bat themselves on the back and Republicans a reason to acknowledge they "have a good heart, despite having no economic sense."

In many ways, the prior driving forces behind our political parties were flawed. The passion the values incited got in the way of reasoned policy and resulted in pork-filled legislation. The issues never seemed as divisive, or inspiring as much animosity as we're witnessing now through the advancement of technology and mass communication.

21st Century American Crossroads

One transition in American government that may revolutionize politics and policy is this hostility and distrust that exists between the elite and everyone else. The elite (educated, rich, powerful) are usually Republican, from my experience, though the language from Limbaugh/Coulter implies that "hollywood" liberals are the "elitists" against the "common man/working class." (You and me)

Historically, the U.S. has a tradition of 'attempting' to work together to get stuff done for Americans. That tradition changed to pretending to work together, and has further devolved into attempting to pretend to work together to shape American policy.

If gridlock fades and pork dies, what replaces it?

The jaded call it pork, but at least we gained something from gridlock and pork-barrel politics. At the very least, American political stability was achieved. Additionally, gridlock kept our politicians from getting out of control and President's from attempting to legislate from the White House. Republicans under the leadership of Bush, Cheney and Rove made the mistake of believing that their power was indefinite as long as they continued their attack on the American characterization of the other party. It amounted to a campaign that would assassinate the character of the entire Democratic party and it was working very well, until Bush came along and screwed it all up.

I'm of the opinion that 2008 belongs to the Democrats. Money, policy, merits of issues, 'actual ability to get things done', sadly, none of that matters. In the way that Republicans seized power through patriotism and alienating those that disagree on policy, Democrats will do the same by remaining in that arena. Pat Buchanan recently wrote a good article on the negative environment we will see and the difficult challenges America will face as the empire falls. This is how empires die

Democrats will make the same mistake Republicans have made. If there is one flaw all Americans share, it is the belief that our existence is central to the world cause. We belong to an egocentric society of fools prone seduction of power and the corruption of evil-- while, occasionally throwing partisans a bone.

The new party leadership doesn't exist in government

Now, with the power that we've granted Rush Limbaugh, Ann Coulter, Michael Moore, Jon Stewart, Al Franken, Bill O'Reilly, Jerry Falwell, Pat Robertson, and even blog writers, (such as Ann Althouse!) Internet forums, websites, etc, we're seeing a highly divisive and adversarial new political arena. Some people (me, for example) believe it is destroying the America we knew and replacing it with a battleground for partisan warfare.

Middle America tends to be 'progressive' or idealistic / the everyone live-and-let-live crowd. The problem is, in this new America and political system we've created and participate in, it is impossible for the idealist's vision of America to exist.

So what we're left with is a serious war between Republicans and Democrats for the heart of America.

Conservatives experienced an unprecedented extension of political power going back to Clinton's years

Republicans had a good shot at shaping American law and policy for decades to come and to a certain extent they won the jackpot with Bush's court appointments and an admittedly spineless Democratic leadership that was more concerned with their public image and political power than supporting their convictions. We'll see if the political move pays off in 2008 and beyond, but if it does pay off it'll be in large part because of Republican strategy failures and a poor sense of judgment due to excitement and the trance that Bush's rhetorical flute locked them in.

I'm a budding Libertarian/former Clintonian moderate Democrat. I was seeking conservatism for the longest time, my family is split evangelical Christian and Catholic, so it made sense for me to seek out conservatism.

I realize now that I sought out conservatism at the wrong time; the conservative government never bothered me much until it started leaning heavily on civil liberties and privacy rights. The Patriot Act is what probably set me on track for libertarianism as opposed to conservatism, then to be dubbed Unamerican and Unpatriotic for arguing against such policies was the last straw for me. Heck, I figured, no skin off my back, that's how power is won and it's how the country and the minds of millions of people are controlled.

From a personal standpoint, the challenge of achieving that kind of power is part of the American 'dream' that everyone interested in the political process is seeking.

Where Republicans went wrong, is they allowed their excitement to get the better of them. Bush's strong following of Evangelical Christians was a major boost in 2000 and the swift-boat ads and anti-terrorist/"pro-America" campaign was probably what tipped the scales in 2004. What Republicans didn't realize was how volatile and sensitive the political arena was. I know many here may disagree on this point, but the Fox news shows that are highly favorable towards Christian Conservative interpretations of life and politics and decision of Fox to refrain from covering the War, and a refusal to be 'honest' about President Bush's serious character flaws served as a smokescreen that blurred Republican vision and has landed the party a very serious blow for years if not decades to come.

When I was at the University of Wisconsin, my lawyer friends (some of which are brilliant, genius even) were very passionate about supporting President Bush, one of my best friends often talked about how EVIL and corrupt President Clinton (the liar!) was, and how morally bankrupt liberals were in general for supporting him after the revelations of monica-gate.

Back then, I suspected he listened to Rush Limbaugh and read occasional Ann Coulter fuel to energize him for his daily mental exercises; he battled many liberal thinkers throughout Madison, it was entertaining to say the least.

What I learned from him and what I was observing of the new conservative movement was a high tolerance for hate speech and encouraging the use of political rhetoric (pro-war = pro-America), and abusing language(anti-conservative policy = UnAmerican) in order to manipulate, coerce and deceive people into agreeing with conservative points or disagreeing with liberal ones.

It's my opinion that the "decline" of conservatism as we approach the 2008 elections has Bush and political strategists to blame for the response coming from bloggers, 'the media' and our millions of 'morally bankrupt' citizens that roam the streets.

Rush, O'Reilly, Coulter will urge you to fight these nitwits that comprise of a highly vocal minority that champion 'liberal' fools. What they won't tell you is that attacking people based on love for God and country is the surest way to invoke a FIGHT response from an otherwise weak collective with questionable leadership.

Language, rhetoric, it's a problem guys and it's going to haunt your party in 2008.

Ann Althouse said...

I've written several NYT op-eds myself (and 5 columns that appeared on the op-ed page), so....

Anyway, rhhardin said: "All the Jean Shepherd you want here. I used to fall asleep listening to him."

I used to go to bed at the time when Jean Shepherd came on, but I always stayed awake through the whole thing. I'd then fall asleep listening to Barry Farber.

Fred said...

Simon wrote: "To me, sticking to first principles - even when they produce a result I don't like - is a badge of honor.

Trey says: But Simon, you my friend have principles!

Brilliant.

Thus you have a sense of honor.
Not so much.

Simon said...

Fred, I really have no idea what motivated that baseless attack, and you're welcome to elaborate if you want, but funnily enough, glib hostility from a Paulista isn't something that particularly troubles me.

Fred said...
This comment has been removed by the author.
Jeff said...

Yeah, Fred does have some issues. I assume it was a ironical comment on "hate speech" from his dissertation length comment above. Anyway, I was just going to point out that everything Fred lays at the feet of the Republicans, I see it at the feet of the Democrats. Funny how the rose tint distorts things depending on who is wearing the glasses.

Fred said...

UPDATE: revising comment for clarity.

Simon, I pushed out a long post above about how partisan abuse of language and rhetoric will haunt Republicans in 2008.

So, my use of "brilliant" to recognize your principles was intended as a compliment as I agree with Trey's praise for principled people. :)

"not so much" was a not-so-subtle way of saying:

I don't agree with the implication that people who think differently are something less than honorable. I appreciate 'passion' as much as 'logic.' Sometimes they conflict but both are admirable qualities in leaders and thinkers. :) As we've learned from this administration, honor and political affiliation are not one and the same, even if public opinion treats both similarly.

As for Ron Paul, it is his principles that I admire most about him! I admire people who stand by well-reasoned and logical decision making. It isn't easy to do, and I admit it is something I'd like like to aim for.

Sorry to disappoint you, it wasn't an attack on your honor. :)

Cheers,
Fred

Simon said...

Jeff said...
"Yeah, Fred does have some issues. I assume it was a ironical comment on "hate speech" from his dissertation length comment above."

Having authored several fairly lengthy comments myself, I feel compelled to point out that concision is a virtue, but that doesn't necessarily mean shortness. Sometimes an idea just takes so many words to express.

Fred said...

Jeff: that was the point! :)

I wasn't trying to call out Republicans for doing something that Democrats are innocent of. I think I mentioned that Democrats are going to do the same thing, it's human nature.

The reason I brought up the 2008 elections was because I believe the war-rhetoric "with us or against us", the "unpatriotic" labels and "unAmerican" language, "liberals hate Jesus" language is gonna bite back due to Bush's problems in the White House.

Maybe you don't realize how much verbal abuse Democrats (even Ron Paul supporters) have taken over not agreeing on foreign policy. So my argument is that because liberals are raging right now over 2000 and 2004 (and the patriotism stuff) they are going to serve it back in spades. In the past do you recall Liberals ever bringing up military defense and the importance of God in their lives?

They very well may believe in God and even be strong Christians, but as a party they kept their mouths shut to appease the non-Christian groups. That is no longer true. The new battle for middle America will revolve around war, religion, and civil rights and liberties your common enemy will use Bush's failures to emphasize how wrong you were. (whether it is true or not)

Simon said...

Fred - oh. Okay. Sorry. Well, y'know... Glib is bad. As I said to Jeff above, clarity is better than brevity. :)

On Ron Paul, I tend to agree with Ann on libertarianism. I think it's "good stuff to cut conservatism with, each tending to curb the other's worst impulses," but "[t]here is something incredibly obtuse about the libertarian view, something that misses the reality of human life and that is very wedded to a stark abstraction. In pure form, it is repellent." I'm sympathetic to the idea that the state should intervene minimally (and that the federal government should use as light a touch as possible and only ever as heavy a touch as is constitutionally permissible), but that is a far cry from saying it lacks authority to do so when required by outstanding moral exigency, and Paul's vision is too extreme for me.

Fred said...

That's ok, no offense taken.

The response to my misinterpreted / miscommunicated 'attack' post proved my point!

:)

Theo Boehm said...
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Theo Boehm said...
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rhhardin said...

To make an unsupported dogmatic assertion is the privilege of those who've earned it -- the index case being Pythagoras, from whose students the phrase originates, according to Cicero, who had earned authority strong enough that his students could simple say that he, pythagoras, himself said it, without offering reason. You haven't earned that kind of intellectual cachet. Don't feel bad - very few people have.

You might want to look into Galambosianism and go all the way. Particularly note the nondisclosure agreement.

Ipse dixit is Latin, by the way.

Fred said...

I'm not so easily discouraged, thanks for the feedback. Cheers.

Trumpit said...

"NARAL and so forth simply don't believe their own propaganda." -Simple Submajority Simon

Whatever are you talking about, Sir? Do you ever know?

Simon said...

Theo - thanks. And that's okay - I tend to repeat myself. ;) That's one reason (not the main one) why I like to quote directly from previous comments - the regulars know where I stand on most issues. I don't have to reinvent the basic building blocks every time, just put them together in hopefully new and interesting way.

On style and the medium - I think the main thing about writing in blogs and comments is that you have to abandon traditional rules of paragraphing. You've got to break a lot more often, otherwise it gets unreadable, even though that can sometimes be a pain (this is why for really substantive stuff, I tend to abandon the blog format altogether and just post a PDF from word). At the other extreme, I think if you adopt the "newspaper" approach to paragraphing, that just looks clunky and horrible. I see comments occaisionally that seem almost like a bad parody of a newspaper article, and you can tell this person hasn't got the hang of it.

"This is not the place, I'm sorry to say, to develop extended thoughts, unless, of course, you're Simon. ;-)"

Well, I look at what I write here and at SF as being part of a single, contiguous, developing body of thought, and to some extent, that goes for comments in other places as well. :)

Ron:
"Ipse dixit is Latin, by the way."

Uh...Yeah...? And? I know that. :p

I'm not sure what you're referring to Galambos for by the way - in relation to the libertarian question? I'm not familiar with him, but from what Wikipedia says, I doubt I'd agree with him on much.

Simon said...

Trumpit said...
"Whatever are you talking about, Sir? Do you ever know?"

If you gaze at those funny squiggles on your screen, they start to cohere into things we call "letters," which are the basic building blocks of what we call "written language." If you'd prefer, if reading's a problem for you, I can explain it for you in a vlog. I'll be sure to use small words for you.

downtownlad said...

But this is what the framers intended.

And we all know that things should be done exactly as they were in 1776.

rhhardin said...

"Ipse dixit is Latin, by the way."

Uh...Yeah...? And? I know that. :p


Well, the students were Greek.

Galambos didn't have any ipse dixits as he was the only one allowed to explain his theory. Others were not at liberty to talk about it.

As long as you're into piling rules on, I thought you should consult the master.

It's no principle if it involves half measures.

Simon said...

Ron:
"Well, the students were Greek."

Indeed so, but Cicero, who told the story to history, was Roman. ;) In any event, you're making it seem like I'm engaging in empty formalism instead of suggesting that you have to support assertions with citation or reasoning, a seemingly reasonable request.

downtownlad said...
"But this is what the framers intended."

The framers intended to create (and indeed wrote, being the important point) that the size of the Supreme Court be determined by Congress. We're talking about subconstitutional principles of wise public policy, not the boundaries of constitutional permissability. Of course Congress could follow Bissage's suggestion and have an 81-Justice Supreme Court. They could also expand the House of Representatives to include 10,000 members (i.e. the Article 1 maximum of one representative for every 30,000 people divided into a population of 300,000,000), but that wouldn't seem a good idea.

The framers created a framework and left the detail to be taken care of within that framework. You want to permit gay marriage, DTL, pass a law. Nothing in the Constitution stops you from doing that. What stops you from doing it is your inability to make a coherent argument that might bring people onto your side, and your unfortunate tic of savaging even potential allies, anyone who doesn't meet your test of sufficient ideological purity (need we revisit the "everyone who hasn't moved out of wisconsin is a homophobe" incident?)

rhhardin said...

"Well, the students were Greek."

Indeed so, but Cicero, who told the story to history, was Roman. ;)


Let's review, on the matter of ipse dixit :

To make an unsupported dogmatic assertion is the privilege of those who've earned it -- the index case being Pythagoras, from whose students the phrase originates,

Simon said...

Ron,
You're being obtuse. The term comes from the Roman Cicero's relation of things said by the Greek Pythagoras' students. Either go edit http://en.wikipedia.org/wiki/Ipse_dixit#Origin to reflect your understanding of the history, or (more productively) back up your points with evidence, citation, or reasoning. This line of discussion is done.

reader_iam said...

But it is easier to correct the tragic results of an unthinking obedience to principle than to correct the tragic results of a purely expedient mentality.

Now, there's food for thought.

I think it resonates truth, with regard to the Supreme Court in particular. I would think quite the opposite, in other contexts.

Which leads instantly to the next questions, among others: What's the difference between Universal principles and universal ones? Where and how should First Principles be circumscribed, and even, perhaps, be vulnerable to trumping, as being more properly viewed as first principles within smaller realms of analysis?

After all, mission creep is a fundamental tendency of human nature, as invariably exhibited by humans both individually and collectively. Shouldn't that reality have some standing?

rhhardin said...

You're being obtuse. The term comes from the Roman Cicero's relation of things said by the Greek Pythagoras' students.

You could almost say, about ipse dixit, that it's a translation.

Roger said...

the editorial is further proof that the NYT is descending into the nether regions of moonbattery--does anyone, by the remotest of chances, know the NYT editorial position when FDR tried to pack the court? Would be interesting to see if they are consistent.

murrito said...

I may not be very smart or certainly a person of a wordly nature, but when I was in school we studied FDR's administration. And he, waaaay back then tried to pack the Supreme Court.To get all his NRA (socialist programs) passed. He tried to get a minium term limit to get justices to retire. And I believe he also tried to expand the court. But to no avail. Now I don't exactly have all the research on this subject but I'm sure out there in bloggo land someone can come up with the specifics.

Dewave said...

It's really funny to watch the liberals, long the eager proponents of judicial activism to bypass legislators and voters, suddenly become unhappy over the ability of courts to influence the 'political sphere'.

Why the sudden change of heart, guys?

Michael said...

Excerpted from: Schumer to fight new Bush high court picks

New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President Bush “except in extraordinary circumstances.”

“We should reverse the presumption of confirmation,” Schumer told the American Constitution Society convention in Washington. “The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.”