UPDATE: So that was McCain's response, and Obama opposes the decision too:
"I have said repeatedly I think the death penalty should be applied in very narrow circumstances, for the most egregious of crimes... [But] I think that the rape of a small child, 6 or 8 years old, is a heinous crime, and if a state makes a decision that under narrow, limited, well defined circumstances, the death penalty is at least potentially applicable, that does not violate our Constitution."So, Obama has (cleverly or sincerely) deprived McCain of an issue, it seems. And yet the most relevant question is Supreme Court appointments. You might think that it's rather predictable that Obama, given the opportunity to nominate a new Justice, will choose someone who would almost surely have joined today's majority. Ask him: You've said you oppose the Supreme Court's decision in Kennedy v. Louisiana, but does that mean you will try to pick Justices in the mold of Roberts, Scalia, Thomas, and Alito. See? You don't need to ask. You already know the answer. But don't be too confident that McCain would choose Justices who would have joined today's dissent. I wouldn't bet on that either.
Posts
82 comments:
Indeed, doesn't it distill down to If not here, then when? And if not at all, then say that.
What a brave stand by McCain, does Obama have to 'one up' him now?
In other news: Catholic Seminarians all over the world collectively breathed a sigh of relief...
McCain should have taken the opportunity to propose an amendment limiting the Court's power to rule on such cases. It would make a great campaign plank, since most people favor the idea of letting the voters decide what appropriate punishments are.
Doesn't McCain know how resilient little kids are after they've been raped over and over again?
Gosh, it's only a "life sentence" for the victims because you've decided that in advance! Clearly, McCain needs therapy and education to get over his intransigence, arrogance, & ignorance.
(the actual quote -no lie)
No prosecutor could ever run for public office if they did not seek the death penalty for any and all child rape (no matter how severe) cases.
"My opponent allowed a child rapist to escape the death penalty!!"
rabble rabble rabble!
"My opponent is pro-child-rape. Soft on crime/hard-on for rapists"
So if SCOTUS isn't suppose to account for "evolved standards of decency", shouldn't that apply to "devolving standards of decency" also?
What is "profoundly disturbing" is the prospect of a McCain victory. McCain is out of step with Christianity, common sense, and the standards of the EU.
Jury nullification will be big in a McCain tenure.
What in hell does "evolved standards of decency" mean, anyway? Is it in the Constitution?
It sounds like the usual frou frou lefty meaningless PC bullshit that is supposed to mean something, but the actual definition is amorphous, malleable, and mostly ad hoc.
I think this is one of those six impossible things liberals believe before breakfast.
obama's reaction might surprise the regulars:
http://politicalticker.blogs.cnn.com/2008/06/25/obama-splits-with-supreme-court-on-rape-executions/
In "despicable" -- I hear a really weird re-mix of Sylvester the Cat saying what he just-must-say, but, not quite reaching the status of the Big Bad John.
he moderator of the debate, asked Dukakis, "Governor, if Kitty Dukakis [his wife] were raped and murdered, would you favor an irrevocable death penalty for the killer?" Dukakis replied coolly,
"No, I don't, and I think you know that I've opposed the death penalty during all of my life," and explained his stance.
After the debate, Dukakis told Estrich he was sorry and didn't realize it was that question[7]. Many observers felt Dukakis' answer lacked the passion one would expect of a person discussing a loved one's rape and death.
Many — including the candidate himself — believe that this, in part, cost Dukakis the election, as his poll numbers dropped from 49% to 42% nationally that night.
Will some brave moderator be brave enough to ruminate out loud about one of Obama's daughters?
I'd like to see a debate in which the moderator suddenly, but very gently, pulls two live baby ducks out of a box.
Then he gives one to Obama and the other to McCain.
Then he says, "Which one of you will eat a live baby duck?"
Then we would find out who the real man is.
UWS guy - read the link i posted. obama doesn't agree with the decision either. get your stances straight before spouting off?
Chaz: ....duh? Who on earth thought that Obama was gonna come out in favor of defending child rapists?
and george....I laughed pretty hard at that one.
Is SCOTUS in the tank for McCain? Their recent decisions are so whacked it appears they are trying to shock and enrage sensible people to vote. And if they do vote, I predict they will vote against far-left Obama.
The Scotus lunacy could also draw out the conservative base in droves.
So if SCOTUS isn't suppose to account for "evolved standards of decency", shouldn't that apply to "devolving standards of decency" also?
Sure... if they devolved.
But at what point in American history do you think the majority of the population *didn't* favor the death penalty for the rape of eight-year-old children?
The mistake isn't about child rape but about overruling the political decision.
I have trouble with the political decision but that's open to discussion and a vote and more discussion. First of all because it wants to apply the death penalty as revenge or punishment, which it ought not to be.
Nothing about its being cruel or unusual, however. Just bad policy for the surviving society.
As I said earlier, McCain should introduce an amendment overturning this decision and shut down the Senate unless it's brought up immediately. Let's see Obama put his money where his mouth is.
rhhardin is absolutely correct. Quite apart from the matter of policy is the question of "Who makes the policy?".
I have said it before and I'll say it again: the Supreme Court is the wrong body to be making final decisions as to Constitutional interpretation. The legislative power to amend and pass laws and the power to amend the Constitution lies with the legislatures. It's simply common sense that if they write them they can tell the Court "No, that's not what we meant."
More here: http://groups.google.com/group/separation-of-court-and-politics/web/introduction
Though not an Obama fan, I think his response to this case is a sincere one.
Perhaps that is because I simply cannot imagine a loving father thinking otherwise, and whatever else I think of Obama, I think he loves his daughters.
I'm just curious: Were any of these SC justices nominated by a president who was himself ever credibly accused of rape, sexual harassment, and/or obstruction of justice?
I'm just curious: Were any of these SC justices nominated by a president who was himself ever credibly accused of rape, sexual harassment, and/or obstruction of justice?
If that question was any more loaded, it would get pulled over for a DUI.
Donna B. said...
"Though not an Obama fan, I think his response to this case is a sincere one. ¶ Perhaps that is because I simply cannot imagine a loving father thinking otherwise...."
Four members of the majority are fathers, Donna.
Okay.
Let's postulate that both men pass the live baby duck test.
Put before each of them two trays: One shall hold gold, the other a lump of glowing coal.
Whichever shall put the blazing ember in his mouth shall live, the other shall die.
Officer Rev,
That would depend on what the national consensus of "was" was.
Brock said...
"I have said it before and I'll say it again: the Supreme Court is the wrong body to be making final decisions as to Constitutional interpretation. The legislative power to amend and pass laws and the power to amend the Constitution lies with the legislatures. It's simply common sense that if they write them they can tell the Court 'No, that's not what we meant.'"
This is so profoundly idiotic that I lack the energy to begin to explain why it's wrong. See generally The Federalist No. 78 (Hamilton) ("If it be said that the legislative body are themselves the constitutional judges of their own powers, ... it may be answered[] that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents"); Todd Zywicki, Beyond the Shell and Husk of History: The History of the Seventeenth Amendment and its Implications for Current Reform Proposals, 45 Clev. St. L. Rev. 165, 220-1 (1997) (noting that Bork's proposal of a legislative override spectacularly misjudges how such power would be used), and cf. my post here (noting that Garcia v. San Antonio Metro. Transit Authority, 469 U.S. 528 (1985) is spectacularly pollyannaish).
Maybe Obama "opposes" the decision and maybe he doesn't. The relevant question is whether he's going to do anything about it if he becomes President, and the answer to that is "no".
Said it before, and it's true:
The closer we get to the general election, the less that will seperate McCain and Obama on the issues - the campaigning pressures will make them close together on the large and most of the small issues. The only thing that they will have at the end will be their track record and their personalities.
Obama is busily bartering his for money and influence - McCain's is already set in stone with the press and will not suffer in the same way as Obama's does when it comes to restating his positions on issues, or as they are known, "flip flops".
Simon, I've read the Federalist Papers too, thanks. FP78 (just a few lines down from your quote) says:
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.
Hamilton was merely establishing that the Constitution would be superior to a "mere" statute. I don't think anyone disagrees with that.
But what do the words of the Constitution mean? Who is to judge when the Constitution and the statutes conflict? I think it's fine that the Courts get the first crack at it, but who controls in the final accounting?
Hamilton also mentions:
It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents.
And is it any better when the Court substitutes their will over the will of the people? I don't think so. In fact, I say that the Court's substitution is the worse one because the Court never has to ask the people "Were we correct? Did we get it right?" The Congress does, and often.
Call it the Law of Conservation of Constitutional Authority. Someone's got to have it. You can't make it disappear, so who's to hold it? Since the Constitution is fundamentally the charter of agency given by the people, put the branch of government closest to the people in charge of saying what it means. If they get it wrong this year they'll answer for it on the year next.
Simon, you think my idea is "so profoundly idiotic that [you] lack the energy to begin to explain why it's wrong", but you want McCain to amend the Constitution to overturn this specific case? Inconsistent, much?
Brock and Simon,
C'mon guys, you're both arguing good points but you're both arguing around the important point. Yes, Simon is right that the USSC was intended to be a balance on the Legislative Branch and the Founders realized that the Legislative Branch could not implement oversight over themselves. Yes, Brock is right that the current Court is not a force for balance, but itself is a rogue legislative branch that is near-fascist at best. No branch currently exercises balance over the USSC.
I agree with Brock that the answer is to give the Legislative Branch the power to override Supreme Court decisions. It should be difficult but possible.
In this case a Legislative Branch should be able to pass a law stating that "yes, indeed this is in fact what we mean and you (USSC) are wrong so go to the back of the classroom and wear a dunce cap".
The current system simply can not stand. America can not be held hostage to the dream of electing enough leaders such that those leaders pack the court with judges that are both intelligent and sensible. It's just not going to happen.
Right now we know for a fact that Barak Obama will appoint to the Supreme Court judges that make the 5 stooges in this case look like Rush Limbaugh.
In other words, we're all screwed ... for a very long time.
We need a constitutional way to put the USSC in its place.
Remember, Patrick Kennedy raped a child. Anthony Kennedy raped America.
Thanks paul. Maybe you can forward the full proposal to your Congressman. I have, and comments are appreciated.
So Obama opposes the decision--wow!--this guy is Bill Clinton on steroids. You just know he approves of the decision, but he knows the last two big decisions invite the Republicans to push the "what kind of Court do you want" argument. The solution? A nice, limited, states' rights kind of statement. You're right, Ann, that McCain is not dependable to appoint an Alito, but I'll hold my nose and bet he won't give us a Souter.
"As I said earlier, McCain should introduce an amendment overturning this decision and shut down the Senate unless it's brought up immediately. Let's see Obama put his money where his mouth is."
You're a loudmouthed rabble rouser, Simon. Por que no te callas, bobo? You're proof that the English are not anymore sophisticated than the typical Indiana Hoosier. I'd bet you moved from the old sod to the new clod to avoid indecency charges back home and avoid gaol time. I'd prefer an undocumented worker who picks cotton than a cotton-picking, grating, pseudo-intellectual like you. How do you earn a living? What evil person is paying your way? Who is your madam? What do you offer to the Gross Domestic Product, other than inflammatory beyond the pale dogma? I'd much prefer some sweet strawberries. I hope your visa gets revoked pronto and you do your time in Reading gaol for indecency and corrupting the youth on two continents.
Am I just new here, or is Trumpit crazy?
He's not crazy, he's just a troll.
You two can 69 all you want. Just clean up the mess afterwards.
As I said earlier, McCain should introduce an amendment overturning this decision and shut down the Senate unless it's brought up immediately. Let's see Obama put his money where his mouth is.
And if McCain does not do so, should we assume that he is being intellectually dishonest by not putting his money where his mouth is? That seems to be your implication per Obama if Obama didn't join in on such an effort in the Senate. What does it say if McCain doesn't decide to start such an effort in the Senate? (And I suspect he won't.)
Paul, the present court is using its legitimate power to illegitimate ends, yes, but that is a criticism of the majority - not of the institution. To start off constricting or expanding the power of any gien branch based on a criteria no less arbitrary than because you or I agree with it at any given instant is playing with fire.
Brock said...
"Simon, you think my idea is 'so profoundly idiotic that [you] lack the energy to begin to explain why it's wrong,' but you want McCain to amend the Constitution to overturn this specific case? Inconsistent, much?"
Your idea (at least as I read it) is to remove the court as the final arbiter of Constitutional questions, putting Congress in that place. That such a proposition is not ony not common sense but outright lunacy is debatable, but I fail to see how it is remotely in tension (let alone "inconsistent") with suggesting McCain initiate the Article V amendment process.
In any case, I think both candidates made the right move in distancing themselves from this decision. There's no upside in defending the majority's view, unless you are just doing it as a subset of an general opposition to capital punishment. Both of them have made their point, and both will move on to the next issue, I'm sure.
somefeller said...
"And if McCain does not do so, should we assume that he is being intellectually dishonest by not putting his money where his mouth is?"
There's a distinction here, one that Ann's post points to. McCain will appoint judges who can be expected to balk at this kind of activism - indeed, who may well vote to overturn it. Obama, by contrast, has said that he will appoint precisely the sort of judges who would approve of this result. Thus, McCain's hostility to this result is consistent with his preexisting commitments and positions and thus arrives with at least some credibility; Obama, however, is in the position that his johnny-come-lately opposition to this result is starkly at odds with his prior positions. That puts the onus on him in a way that it doesn't fall on McCain.
Trumpit said...
"Simon[, p]or que no te callas, bobo? You're proof that the English are not anymore sophisticated than the typical Indiana Hoosier."
Tomaré que como elogio - "bobo."
Simon said:
I fail to see how [your idea] is remotely in tension (let alone "inconsistent") with suggesting McCain initiate the Article V amendment process.
You suggested that allowing Congress to be the final arbiter of Constitutional interpretation was "idiotic", but also proposed that McCain (a member of Congress) seek to amend the Constitution (using his Congressy powers) to achieve the same end.
Frankly, I think an amendment is overkill here. The Constitution is fine as written - it's the Court's interpretation of "cruel and unusual" that's the problem.
When a change in the law is unnecessary a clarifying, guidance-providing opinion may still be helpful. The SEC does this all the time. That's my first (and so far, only) question in my FAQ.
Simon, I don't think that's a very strong argument. You're basically saying that McCain's position on these issues makes it unnecessary for him to make the sort of stand you are suggesting for him to take, while Obama's position makes such a stand absolutely necessary for him. Sorry, that sounds like a heads-I-win, tails-you-lose argument, and not one that follows necessarily from the initial premises. Actually, one could argue that the onus is placed on McCain exactly because of his prior positions, because it's his job as a leader to actively promote his positions and see to it that they are acted upon, rather than just passively wait for someone else to move.
In any case, as I stated earlier, I suspect this decision won't lead to any Senate action. Each campaign has staked out its position, and there's no burning need for either to do much more than that at this time.
Paul said...
"In this case a Legislative Branch should be able to pass a law stating that 'yes, indeed this is in fact what we mean and you (USSC) are wrong so go to the back of the classroom and wear a dunce cap.'"
See the Zywicki article I cited above. A congressional power to override decisions would not be used to correct decisions like this - it would be used to throw out decisions that limit Congressional power (such as Lopez or Plaut) or that refuse to limit that power in ways that are politically embarrassing (such as the Carhart case last term).
The idea of letting the legislative branch be the judge of their own power is, as I've often said before, putting the foxes in charge of the henhouse. It is, emphatically, the province and duty of the judiciary to say what the law is. Even when they're wrong.
The Constitution is the will of the people, not the Courts. When the Courts are wrong, someone needs to tell them so.
Somefeller, we'll have to agree to disagree. Just to clarify, what I'm saying is this: When two politicians condemn a massively unpopular decision, if that reaction is squarely within the compass of politician A's prior statements and public positions, yet squarely at odds with politician B's prior statements and public positions, the suspicion arises that politician B is a lying, opportunistic sack of shit. A fortiori when politician B has already established a reputation as a basically untrustworthy lying opportunistic sack of shit who'll say anything for a vote.
Brock said...
"The Constitution is the will of the people, not the Courts. When the Courts are wrong, someone needs to tell them so."
That's fine. The available tools are Article V, impeachment, or elect better Presidents who will select better judges. But again, it is, emphatically, the province and the duty of the judiciary to say what the law is. If the Congress disagrees, it is free to change what the law is.
Congress is not Parliament - nor, still less, "The People."
In any event, as outrageous as I find today's decision, I'm sanguine about the long term. Congressional outrage (in that case misplaced) over Employment Division v. Smith ultimately bought us City of Boerne. These things have a way of working out if you have enough judges of the right views. All the more reason to shelve our disagreements with McCain.
The Constitution is the will of the people, not the Courts. When the Courts are wrong, someone needs to tell them so.
Unless we're talking about some sort of Rousseauian General Will here, there's no will of the people that can be measured or acted upon in these matters. Actually, if one wanted to be rather abstract about it, one can say that the Constitution is the will of those who drafted its provisions at different points in history, and the only will needed thereafter is the will to quietly assent to its authority. But let's not go there, it's getting late.
We have judicial review on Constitutional issues in this country, and have had it for centuries. Any attempt to get rid of that, aside from whatever other lack of merits such an attempt might have, would be utterly un-conservative on a pretty basic level, to the extent conservatism entails a certain degree of respect, however grudging, of the established institutions of society. I'd be very wary about wanting to open the sort of populist Pandora's Box you are talking about.
Brock said...
"You suggested that allowing Congress to be the final arbiter of Constitutional interpretation was 'idiotic,' but also proposed that McCain (a member of Congress) seek to amend the Constitution (using his Congressy powers) to achieve the same end."
Those positions are in no tension at all, Brock, unless you think that the power to change the Constitution (article V) and the power to say what it currently provides (the province of the courts) are identical.
Simon, we will have to agree to disagree. However, I can't help but think your opinion on this issue is not so much based on the merits of each side's position, but your belief that one side is an "untrustworthy lying opportunistic sack of shit", as you put it, and everything else follows from that premise rather than any other. But I may just be guessing here. In any case, I need to get some sleep. Good night.
When the Scalia, Scalito, Long Dong Silver court overturns Roe, then their will be such an uproar in the nation, and protests in the streets, that President Obama and the Democratically controlled congress will have to amend the Constitution or face the voters' wrath come election time.
By the way, I get a little chuckle out of the fact that the Federalist Society is often portrayed as some kind of secret society, a ruthless single-minded cabal, yet as the exchange between Brock and myself upthread illustrates, we aren't exactly what you'd think of as a hive mind.
Trumpit confuses glee with joy. In that, he/she is not unique, not at all, nor is that a strictly partisan thing.
Haven't you all figured out both of those things yet?
Obama, however, is in the position that his johnny-come-lately opposition to this result is starkly at odds with his prior positions.
How? Has Obama previously taken a contrary position on legislative authority to penalize child rape? He was a state legislator, but I do not remember hearing about him holdin a contrary position.
John, it's starkly at odds with what he has said about the role and power of the judiciary in the past - as Ann's post alludes to.
John, it's starkly at odds with what he has said about the role and power of the judiciary in the past
Specifically, how? My understanding is Obama wants judges who can empathize. Why not judges who empathize with raped children?
I don't think that we have to worry about McCain appointing another Justice Ginsburg, but more likely another O'Connor or Kennedy, or maybe even Souter or Stevens.
By all indications though, the one Justice who would most likely be an Obama pick would be Ginsburg. After all, she made her name with the ACLU (as a volunteer lawyer, and then a general counsel). After all, what organization is more interested in protecting the downtrodden? (Since, of course, felons are invariably the downtrodden, regardless of who they murdered or raped - unless it is a 6-8 year old child).
Obama said he would appoint a Souter.
JohnTaylor88 said...
"Obama said he would appoint a Souter."
And which way did Justice Souter vote in this case? Lookit, I have a great deal of respect and appreciation for Justice Souter; I think he's one of the best writers on the court, and the more caselaw you read, the more you come to appreciate and value the judges who write well, even those you disagree with. But he is often dreadfully wrong, and more particularly, if Obama points to him, that circumscribes his credibility in criticizing this decision.
i dont really get the bloodlust for the death penalty.
for the miniscule number of offenders that this decision affects, you dont think a life sentence is enough, particularly with all of the inevitable horrific tortures by incarcerated colleagues and guards?
the mere possibility of mistaken conviction is reason enough to eliminate the death penalty.
Lookit, I have a great deal of respect and appreciation for Justice Souter; I think he's one of the best writers on the court, and the more caselaw you read, the more you come to appreciate and value the judges who write well, even those you disagree with.
Then that Obama said he would reach across the aisle to appoint a Republican judge that a Republican president would nominate should placate you.
And which way did Justice Souter vote in this case? ... [Souter] is often dreadfully wrong, and more particularly, if Obama points to him, that circumscribes his credibility in criticizing this decision.
I do not understand this argument. Obama clearly disagrees with Souter here, and Obama was not suggesting that he would clone Souter and nominate him again. So where is the evidence that Obama would not appoint a Justice who is like Souter save that he empathizes with raped children over child rapists?
the mere possibility of mistaken conviction
There is no doubt this man raped his 8-year old stepdaughter. The question is what constitutes a proportionate sentence.
Sigh.
for the miniscule number of offenders that this decision affects, you dont think a life sentence is enough,
These offenders, for the most part, don't GET life sentences. Which is not an argument for them getting death sentences, anymore than the reverse is true.
For freakin' cryin' out loud.
There are two discussions. One has to do with the role of SCOTUS with regard to other branches.
The other has to do with what to do with regard to rapers of children (and, by extension, those who sexually assault children even short of rape).
I would submit that:
1) The SCOTUS decision has little practical effect on, or use with regard to, the latter, and
2) It's pretty disgusting that people are willing to have the theoretical discussion they love to have, in outrage, on the backs of actual kids (who, in context, by every reasonable definition ought to be considered victimized) even if that means, on so-called principle, that attention is deflected from the more relevant and realistically urgent (in the aggregate) issues surrounding sentencing of perpetrators of this type.
This comment here is in context of this one on another thread (with this one clarifying the **).
When [the court] overturns Roe, then their will be such an uproar in the nation, and protests in the streets, that President Obama and the Democratically controlled congress will have to amend the Constitution or face the voters' wrath come election time.
They're welcome to try. I'd support an amendment giving people control over their own bodies, even though I don't support the courts claiming one already exists. It obviously doesn't.
But even if Congress passed the amendment, it needs to be ratified by 37 state legislatures before it becomes official. There aren't 37 states in the union that would pass it. There probably aren't even 13.
for the miniscule number of offenders that this decision affects, you dont think a life sentence is enough, particularly with all of the inevitable horrific tortures by incarcerated colleagues and guards?
Unless you actually *want* lifers to suffer those "inevitable horrific tortures" that's a dishonest argument. And since you were just today sneering at people who support the use of torture as punishment, well, I guess that tells us all we need to know about your sincerity.
The Constitution allows capital punishment and bans cruel and unusual punishments. Discarding the death penalty in favor of a sentence of "life in prison being unofficially tortured by other criminals" is precisely the wrong thing to do, constitutionally speaking.
UWS guy - In other news: Catholic Seminarians all over the world collectively breathed a sigh of relief...
The Catholic Church adopted a tolerant attitude towards gay pederast priests in the 60s, much to their later regret. (The Boy Scouts and the military were smarter, and kept their organizations from the huge damage the gay pederasts in a position of authority caused the Catholic Church.)
And, in defense of the pederasts, such as it is a defense of the gay pervs - pederasty is a time-honored gay trait - love of pubescent boys - NOT male children under 12. It is NOT "child molestation" or "child rape". The law is quite clear on that, even if the public and media, sloppy with their definitions, are not. Rape of a child under 12 is a mega-crime, and the younger the kid is from 12, the worse it is in penalties meted out.
Sex with adolescents, except true rape with violent coercion, is treated more leniently than child rape, right up to the typical "no never mind" that some 14 year old slut everyone knows is eagerly doing it with several "boyfriends" aged 14-22.
Again, no Catholic Priest was prosecuted for child rape. Just sex with adolescents while in a position of authority.
I have mixed feelings about this SCOTUS decision. As an opponent to the death penalty in all cases except for mass murder, I am supportive of the result.
A much better punishment for the guy is to put him in jail in the general prison population. They'll handle him. The government does not need to handle it. The government does not need another power that would undoubtedly be applied less than evenly, most likely to blacks disproportionately.
But I hate the decision, too. As soon as Kennedy started babbling about an emerging moral standard, he should have realized that Legislatures, not courts, are the proper venue for the determination of what is or is not an emerging moral standard.
I am not sure this protects Obama on the issue. It is absolutely clear that he will nominate judges exactly like Stevens-Ginsburg-Souter, or if forced a Breyer. And McCain is unlikely to do that.
Although I think if McCain was being honest, he would name as his favorite Justice Kennedy.
... if a state makes a decision that under narrow, limited, well defined circumstances, the death penalty is at least potentially applicable, that does not violate our Constitution.
If this is Obama disagreeing with the decision, then he's got a funny way of doing it.
If a state imposes the death penalty under narrow, limited and well-defined circumstances (like child-rape), it's still only *potentially* applicable?
What other conditions need to be satisifed to make it *actually* applicable? Other than threading the statute through Anthony Kennedy's 'evoloving standards' needle?
What other conditions need to be satisifed to make it *actually* applicable?
A conviction by a jury.
A much better punishment for the guy is to put him in jail in the general prison population.
If the Government is unwilling to execute someone, no matter what the crime, it has a responsibility to protect that criminal while he or she is incarcerated.
In other words, the government, not some kind of prisoner-run goon squad thuggerish machine, should be running the prisons.
Count me in the the group that thinks trumpit is an idiot! There you go trumpit: an emerging national consensus.
In other words, the government, not some kind of prisoner-run goon squad thuggerish machine, should be running the prisons.
The government does run prisons. And look what you get.
The Exalted said...
"the mere possibility of mistaken conviction is reason enough to eliminate the death penalty."
Yes and no - I agree that it's reason enough to eliminate it in all cases where factual guilt is subject to any doubt at all. I would want to preserve the option, however, for that subset of cases (no matter how tiny) when there's no question whatsoever -- it's done in broad daylight with six thousand witnesses, the killer confesses but on appeal challenges the death sentence because the cop flubbed his Miranda warning, perhaps. As I've said before, I would shut down the death penalty, at least temporarily, because of the evidentiary concern, but I would want to leave the door open for cases such as this one where, as John points out above, there was no question of factual guilt.
(And I would leave the door ajar even if I thought no one should ever be executed, because I recognize that the availability of the death penalty gives a prosecutor leverage in obtaining plea bargains, something you completely ignore.)
MadisonMan said...
"If the Government is unwilling to execute someone, no matter what the crime, it has a responsibility to protect that criminal while he or she is incarcerated."
I completely agree, albeit (I suspect) for somewhat different reasons.
Hooter Dandy,
You truly are a detriment to this blog and should find another place to troll and leave your trail of pro-bush inanities and filth. You voted for that scumbag twice and should pay a heavy price for destroying the economy and the environment. How about being incarcerated in the same cell with Charlie Manson for the rest of your putrid life without a toothbrush. I'm armed to the teeth to ward off scum like you. Viva the 2nd amendment! I have hollow point bullets too, especially for jerks with hollow brains, like that? I'm a crack shot. No squirrels for me, just human turds that get in my way.
Trumpit is the evil twin of Titus.
Hooter Dandy. That's pretty funny! Like irrelevant/revenant.
do me! do me!
I think ole buddy trumpit meant he was a "crack pot" and not a crack shot. He has the post to prove it.
do me! do me!
Are you old enough?
"Are you old enough."
Based on the homo-to-hetero makup of the comment fan section, Ann Althouse is apparantly the Liza Minelli of the Blogosphere...
revenant,
i was speaking pragmatically. these people are sick child abusers, they will be destroyed by their fellow prisoners. its a fact, i'm merely acknowledging it. and given that fact, i just dont understand the hue and cry. its not like the USSC released these people with mules and 40 acres.
simon,
how do you structure your death penalty system to only be applied in cases of "absolute" guilt?
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