२५ जानेवारी, २००६
If the Democrats vote on strict party lines againt Alito...
... will that give them more or less clout when it comes to the next nominee? I think the answer is less. The split vote on Roberts gained the Democrats something of the appearance that they were really weighing the merits of the nomination. Why would they want to mess up that appearance by voting as one? Perhaps they think, what was the point of supporting Roberts if we just ended up with Alito? But what happens with the next nominee? Perhaps the thought is that Bush has already proved so much about his freedom to pick whomever he wants -- just avoid the Miers mistake -- that there is no point in trying to preserve any influence over his choice. They can only hope that another slot will not open before they have the chance to regain control over either the Senate or the Presidency. Presumably, the analysis of how to vote on Alito reflects a strategy for winning future elections. The Democratic Party stands for something. But what? Based on what the Democratic Senators have emphasized, I'd say it's abortion rights and limiting presidential power.
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I think they believe that there is a right of privacy inherent in the 4th, 10th, and 14th (among others) amendments to the U.S. Constitution that prohibits the government from mandating that a woman remain pregnant to term. They also are concerned about the assertions of unchecked executive authority - really, this is an important issue and not simple politics. The reality is that if a president can, without a warrant, intercept communications of citizens, and no agency or court can check this authority - an unprincipled executive (not meaning to imply W. is unprincipled, but remeber Nixon?) could use this unchecked power for very problematic reasons not in any way tied to national security. It is a question worth raising - why have the FISA 72 time-warp provision if the executive need not use it? These are honest debates.
1) As a strictly political matter, the split vote on Roberts just gave commentators inclined to bash the Democrats rhetorical ammunition. ("Roberts is so moderate that even Senator X voted to confirm him, but Senator Y is so partisan that he/she voted no.") The Democrats should have voted as a group one way or t'other.
2) If Alito is confirmed, would it matter if the president of NARAL were the next nominee?
Wisjoe:
"I think they believe that there is a right of privacy inherent in the 4th, 10th, and 14th (among others) amendments to the U.S. Constitution that prohibits the government from mandating that a woman remain pregnant to term."
They believe what, now? ;) Look, you can read the document, it's not long, and doesn't say any such thing. I could be glib and suggest that the diffence between people who believe that the Constitution protects a general right to privacy and those who do not is that the former group read the Constitution and see what they want and the latter group read the Constitution and see what is actually written, but to be so glib is neither fully accurate nor entirely fair, to either side.
Rather, it seems to me that there is a very simple difference of opinion at the heart of the dispute over the "right to privacy": those who believe there is look at the Bill of Rights and say "well, the Constitution guarantees certain, specific privacy rights, which means that there is a general right to privacy," while those who believe there isn't look at the same text and say, "if there is a general right to privacy, there wouldn't need to be specifically enumerated rights of privacy, ipso facto, there is no general right to privacy." Personally, I think the latter has the best of it. However, even if there were such a right, the "right to abortion" does not follow from the "right to privacy" - that would be a "right to bodily autonomy" if it were anything. To reach the conclusion that the Constitution creates a "right to abortion", one must first abstract from the enumeration of specific privacy rights to a broad-based "right to privacy", and then from this abstraction, abstract again the latter "right to bodily autonomy", a process that amounts to "prophylaxis built upon prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction" (Minnick, 498 U.S. at 166) (Scalia, dissenting).
It's fine, I suppose, for Democrats in the wild to make up new things they'd like the Constitution to say, but for someone who's taken an oath to support and defend the Constitution to flat-out make stuff up is essentially violative of that oath.
"I think quite the opposite--this HAS to be a party line vote as a show of strength."
I'm not sure how "if we're going to lose, let's lose together" is a show of strength. And I also think your comment that the Dim Senators have "already proved to be quite wimpy in committee hearings" is inaccurate: they weren't wimpy, they were simply incompetent. They would be wimpy if they threw softball questions and generally rolled over for the nominee; with the single exception of Herb Kohl, they all tried to be tough and to ask difficult questions, they were just unable to do so. Hence, not wimpy, but incompetent. Crucial difference.
Mark,
The argument that the Ninth Amendment protects unenumerated rights, and that saying otherwise specifically violates the amendment's own terms, is frequently heard, but none-the-less, breathtakingly circular.
Needless to say, I think your interpretation - and don't get me wrong, you're in good company: Randy Barnett thinks the same thing - of the Ninth Amendment is specious, and entirely wrong. To summarize very briefly: defending Kelo the other day, the Althouse commenter David Garland averred that "[t]here is absoltely nothing that prevents a state from adopting constitutional provisions that afford greater protections of individual rights than provided by the Federal Constitution." While I'm sure David wouldn't agree with me any more than you will, I think David's point is precisely what the Ninth Amendment says - while the act of ratifying the Federal Constitution dramatically reduced the scope of the powers the people can delegate to their States in their state constitutions, the enumeration of rights in the Bill of Rights should not be taken to be an exhaustive list of the rights of citizens, and should not thereore be read as to reduce those rights the people of a state can reserve in their state constitutions, in the maner that other Federal Constitutional provisions are.
See generally comments here for more detail on my views of the Ninth and Tenth Amendments; see also, e.g., Kurt Lash, The Lost Original Meaning of the Ninth Amendment, 83 Tex. L. Rev. __, and The Lost Jurisprudence of the Ninth Amendment, 83 Tex. L. Rev. __.
It's obvious from these posts here that Alito is a HUGE defeat for the left. Courts have provided the left with their only real successes in pushing through their agenda. For example, it was a Maryland COURT last week that decided all of a sudden after being a state for 250 years that Gay marriage is legal.
Alito will be a stronger road block the left agenda mostly because he has shown that he interprets the Constitution more strictly rather than making up stuff on his own. This means...yes... deferring to the executive branch and legislative branch more often because the Constitution says the President has executive power and the Congress has legislative power. In contrast, the Left wants the Court, filled with liberal judges, to have executive and legislative power.
The left cannot win when the people have a choice. The left's only avenues for victory are revolution followed by tyranny or activist liberal courts.
Mark,
Re the ninth, I think we'll have to. ;)
Re a mooted amendment, I wouldn't object to a privacy amendment; I don't think anyone, least of all the dissenters in Griswold are opposed to the idea of a right to privacy. The point is that there isn't one now, so if there should be one, an amemdment should be made. It's an argument against the process by which the privacy protections are added to the Constitution, not an argument against the substance of the protections.
However, as you will infer from my previous post, even if an amendment guaranteeing a right to privacy were passed (I must point out that such an amendment it would have to be very carefully drawn, since - as Bob Bork has pointed out - the liberal meme of the "right to be left alone" is essentially antithetical to the rule of law, and its inclusion into the Constitution would destroy the Constitution as a governing document within a decade, in my view, since no liberal or conservative for an instant believes in the "right to be left alone"), I would say that it does not protect the right to an abortion. Abortion is not a right supported by a general right to privacy, in my view; it must rest on a right to bodily autonomy, and only then if one discounts the value of the right to bodily of the child. So in order to overturn an abortion ban in Court - that is, to pursuade me a a Judge that there is a constitutional right to abortion - you would have to pass an amendment which said, in as many words, that there is a right to an abortion.
However, to remove any ambiguity, I would love if Democrats or anyone propose a constitutional amendment which would specifically grant a right to privacy. Many state constitutions already have such a clause. It would lead to an honest and informative debate on the role of government in personal life. I also believe it would expose as hollow many conservatives' claims that they stand for limited government. As recent debates on Patriot Act and the domestic spying program demonstrated, it is primarily Democrats who stand for limited government and respect of civil liberties.
I agree with you that the GOP is perfectly happy to have a big intrusive government as long as it's their particular goals that are being met. I do not agree that the Democrats are any better. Their support for limited government and respect for civil liberties have much more to do with their being the minority party than any real differences in core beliefs.
buck turgidson: Alito has admitted repeatedly that he will say anything to get a job. In other words, he is a weasel and a liar.
Could you please cite this? I am unfamiliar with Alito saying anything of this nature.
If the Constitution does not protect our liberty surrounding reproductive rights, could a state pass a law that would force a woman to have an abortion?
The question of abortion is not one of reproductive rights, though it is often framed that way. The question is whether or not babies have rights before they are born. If it was decided that babies do have rights before birth then the state could not pass laws to force women to have abortions.
Gerry:
I do not think the Democrats would be voicing the same concerns over deference to the Executive if President Clinton was still in office. I base this belief in the fact that they did not voice those concerns when he was in office.
BULL. Most of the opposition to the 1995 'anti-domestic terror' bill (post-OKC) came from Democrats. And I don't defend Clinton's record on civil liberties, because he was as bad as a Republican. The last President we had who made a genuine effort to respect them was Carter (in fact, he is the only President since Eisenhower, who actually wasn't bad on the issue, to genuinely respect them.)
Ann:
Democrats do, as a matter of fact, stand for abortion rights (we believe that the best way to fight what is a social ill is by sex education, birth control and family planning-- and it's been working pretty well since the early 90's, thank you very much).
And, we stand for limiting the power of the Government to restrict your personal freedoms. There are certainly cases where the national interest may require that some freedom be restricted, but we believe that there must be a clear case made before this is done. And since we've been told that the 'war on terror' will last for decades, the whole 'state of war' argument is bogus-- just as it would be if such moves were made during the Cold War (which also lasted for generations, but we had the good sense to pass the FISA reforms during it anyway). No law abiding American should ever have to fear our own government.
We also stand for:
Universal Healthcare (the method to this end is open to debate but that is a goal that we on the left have).
Making education, including access to higher education, affordable for anyone who qualifies academically.
Free trade is part of the global economy, but we should tie free trade agreements to the attainment of or at least significant progress towards labor, environmental and corruption standards similar to our own.
Letting people do as they wish with other consenting adults; it's not our or the state's business what that is. Allow consenting adults to marry who they want to marry.
Jobs that pay enough to support a family, pay for college and save for retirement on.
A healthy environment for ourselves and our children.
More investment in education, both grade school and higher education.
An investment in ending homelessness. No one should be hungry or not have a roof over their head unless they choose to, and most homeless people today don't choose to.
Investment in research in technology, including stem cell research and other technology which promises to improve the lot of humanity.
Campaign finance reform (yeah, every time we pass it, there are still always loopholes, abuses and corruption, but that isn't a reason to give up and quit trying to create a better system.)
Restoring the Louisiana and Missisippi Gulf coasts, the state of Florida (there are still people waiting for help from the 2004 hurricanes there), and realizing that the first duty of our government is to help out people in America who need help.
A foreign policy in which America leads by example and consensus, rather than intimidation. Rebuild our relations throughout the world.
Support for Democracies, even when they elect people we don't like (which is happening more and more in Latin America).
Reforming immigration by cutting off the job supply for undocumented aliens by 1) allowing those already gainfully employed to do so openly and pay taxes into the system, and 2) punishing employers who break the rules with prison time. Telling people 'don't come, but there's a job waiting for you when you get here,' is hypocritical and accomplishes nothing.
There are other things as well, but the list is too long. I posted once on my blog about what Democrats are for, maybe I will put it up again.
So we stand for a lot more than what you are suggesting.
Also, there is a big difference qualitatively between Roberts and Alito. A lot of Democrats supported Roberts because he isn't in the end, uniformly conservative. And Democrats (as opposed to Republicans) were willing to support Harriet Miers.
So it's not like Democrats are uniformly being 'no.'
Further, if you are a Republican and Alito goes in, consider this: In 2008, Democrats have a sterling opportunity to gain control of the Senate (22 of 32 seats up that year are Republican held, and the mix of freshmen Republicans-- traditionally the most vulnerable to an upset-- and older Republicans likely to contemplate retirement even skews this farther). Should a Democrat also win that Presidential election (also very possible based on historical trends that voters tend to vote for change every few elections), then Republicans would have no legs to stand on if a Liberal President were say, to nominate an extremely liberal justice (and there are some out there, who make even Stevens look pretty moderate.)
People also seem to confuse depth and quality of education with intelligence... Alito may not be stupid, but I fail to see the depth of his intelligence either in his written opinions or in the his responses during the hearings. Unlike Roberts, he is not a bright star. He is a classic case of mediocrity with influential friends.
Wow! He's so slippery, he must ahve tricked the ABA into giving him a unanimous "well qualified" rating for SCOTUS even though he's a shallow, mediocre non-entity!
Wait, wouldn't that make him actually smart? Nah - can't be that. He's just got a lot of 'influential friends' at the ABA.
"If the Constitution does not protect our liberty surrounding reproductive rights, could a state pass a law that would force a woman to have an abortion? What Constitutional Amendments would protect our reproductive liberty in these cases? Or do you believe that the Constitution would allow these laws to stand?"
The Federal Constitution would indeed allow such laws to stand, repugnant though they might be. But while that sounds a little callous, it must be kept in mind that the Constitution is not a panacea for all that ails society, and nor is it the only tool that controls the power of a state to legislate. Its own Constitution and the electoral process are the two primary mechanisms by which the people control their state governments; there are vast areas of legislative territory - from the bluffs of foolhardyness to the cliffs of absurdity to the rocky mountains if iniquity - on which the Federal Constitution remains obstinately silent. The genuius of the Constitution is precisely that it assumed a population engaged enough and intelligent to govern themselves, imposing only the barest restrictions on self-government necesssary.
Now, there are those who would disagree with me on this, and who would suggest that such laws would fall afoul of due process. But I do not believe in substantive due process; insofar as that clause imposes a restriction on the ability of the states to legislatve, my views are essentially expressed in Justice Scalia's concurrence in Connecticut v. Doe, 538 U.S. 1 (2003), viz., that absent a claim of a Constitutional violation, a validly-enacted statute provides all the process that is due.
"Democrats (as opposed to Republicans) were willing to support Harriet Miers. So it's not like Democrats are uniformly being 'no.'"
You have to be kidding. You're smarter than this, Eli. Democrats supported Harriet Miers because they could scarcely believe their luck - they supported her for precisley the reason that virtually every Republican not on the White House payroll opposed her: because it was transparently obvious that after everyone had prepared for Bush to hand us another Clarence Thomas, he had nominated a David Souter. To laud Democrats for being willing to "compromise" by accepting Miers is disingenuous at best and absurd at worst: they didn't support her to compromise, they supported her because they thought Bush had handed them victory from the jaws of defeat.
If it was not obvious from the follow up, in my little comment above I meant the 9th Amendment, not the 10th. Oops.
simon stated: "It's fine, I suppose, for Democrats in the wild to make up new things they'd like the Constitution to say, but for someone who's taken an oath to support and defend the Constitution to flat-out make stuff up is essentially violative of that oath."
Apparently, the Roe majority and a significant number of judges have flat out violated their oath. I'm surprised they haven't been impeached or arrested!
There is an obvious disagreement as to whether all individual rights need be enumerated. Perhaps we should amend the constitution to make explicit all the unenumerated rights we seem to enjoy, e.g.: (1) the right to listen to music (not explicitly protected in the constitution, thus the government can take it away);(3) dancing in public(not explicitly enumerated), etc., etc., etc.
Eli, so your platform is basically socialist?
"Apparently, the Roe majority and a significant number of judges have flat out violated their oath. I'm surprised they haven't been impeached or arrested!"
Democrats controlled the House of Representatives - and thus the keys to the impeachment process - until the last of the Roe majority was off the bench. But flatly, in my view, you're absolutely right: the Roe majority should have been impeached and considered themselves lucky if they weren't tried for treason.
"There is an obvious disagreement as to whether all individual rights need be enumerated. Perhaps we should amend the constitution to make explicit all the unenumerated rights we seem to enjoy, e.g.: (1) the right to listen to music (not explicitly protected in the constitution, thus the government can take it away);(3) dancing in public(not explicitly enumerated), etc., etc., etc."
So many obvious points to make in response to this. Why would you think that the Federal Constitution should protect everything? Why does every problem have to be solved with a straightjacket? If you want a right to enjoy music, why not put it in your state constitution? Better yet, why not excercise some responsibility and deny the state government the power to regulate it in the first place? Pass a law declaring the right, and so on. Not every question can or should be solved at the Constitutional level. With regard to the right to listen to music, you could reframe it in reverse as a first amendment right on the part of the person making the music. And for that matter, where in the Federal Constitution do you see a grant of power that would permit it to ban music (therein lies the rub - you only need extensive reservations of rights from, i.e. limitations on, Federal power, if you believe in a broad Federal power in the first place, which I say doesn't exist)?
Lola:
"when Judge Alito was up for the federal court of appeals, he received a unanimous vote by the Judiciary Committee (including Ted Kennedy who said he had a "distinguished record")."
I think that argument is a little weak. Obviously when Alito was up for his Court of Appeals gavel, he wasn't then a Judge, and most of the serious Democratic concerns stem from his record on the bench subsequent to his confirmation by unanimous consent.
Really, when you think about the mud flung by our friends across the aisle, the only thing that they tried to fling that could possibly have been a concern prior to Alito's prior confirmation was the CAP issue, and if that was all they had on Alito, he'd be getting confirmed by unanimous consent today, too.
A strict party line vote will mean to the voter that elections matter, and the side with more votes gets to pick the judges.
So obvious now, but in the past the President was granted significant deference in his choice for justices, in all but a few instances easily confirmed.
Democrats see Alito bringing The End Of The World As We Know It. Of course, that's been said before, and still the sun rises and birds sing and the wind blows. But no matter, The World Is Ending Right Now!!!
This is precisley why Roe was a bad decision: the SCOTUS is now hopelessly corrupted by politics. Let's just get it over with and elect them to 6 year terms.
Geoduck:
Are you just not reading the thread above? I've already made my views regarding the ninth and tenth amendments and their relevance to unenumerated rights clear in an exchange with Mark. You might disagree with my interpretation of the ninth amendment, but don't suggest I'm ignoring it because you don't like it.
Is there a "right to enjoy music"? In the sense that there is a right to do all those things which we have witheld from the power of govenrment to infringe. But beyond that, as Judge Bork put it in The Tempting of America: "I am far from denying that there is a natural law, but I do deny both that we have given judges the authority to enforce it and that judges have any greater access to that law than do the rest of us."
"I was surprised that you also felt that music under the 1st Amendment would not be a fundamental liberty, and I wanted to be sure I understood your views on that question."
I shoudl clarify that, as I think I might not have been adequately clear on this point. I think you could make a very strong First Amendment case that you have a right to make music free from the censorship of a state or the Federal government, but I think it is more tenuous to suggest a parallel right to listen to music. To put it in the native terms of the First Amendment, the New York times has a right to write anything it wants (we'll set aside questions of propriety and libel here for a moment), but you do not have a first amendment right to read what is written in the New York Times. This isn't to say I think a state can or should pass a law saying you can't read the New York Times - just that such a law is not prohibited under the free speech clause of the First Amendment.
* * *
"From a more general point of view, I guess I don't understand why anyone would be comfortable with loosing liberty to the state. I struggle to understand why Americans would happily support the loss of liberty."
Funnily enough, I think of it in precisely the opposite terms. I think of the use of the Courts to decide (and tehreafter foreclose) any number of issues on which the Constitution has nothing to say precisely as being losing liberty to the government. There's anotehr lovely quote from Nino that sums it up: "[e]very time the Supreme Court defines another right in the Constitution it reduces the scope of democratic debate." To me, saying that the Constitution doesn't protect a right isn't giving up that right - quite the opposite! It means that the people of each state are free to weight competing conerns in reaching a conclusion: is this something we want to proscribe the government from doing by putting it in our state constitution, or do we want to permit government to legislate on this topic? And once the people have permitted the state to take an action by granting the state the authority to take that action, thy can further restrain it through the ballot box, and by voting against any politician who was dumb enough to vote for a reading restriction.
It seems to me that your reasoning rests on an axiomatic view that the Constitution must be the first, last and only line of defense of our rights. Ironically enough, while I get circularly reasoned accusations that I am violating the ninth amendment with my reading of it, if I allowed myself to engage in the same sort circular reasonining, I think I would say that it is this underlying presumption (that the Constitution must be the first, last and only line of defense of our rights) that violates the terms of the ninth amendment. When you see the ninth amendment through my eyes, suggesting that a right cannot be protected by any means other than the Federal Constitution is precisely the proposition that the Ninth and Tenth Amendments were written to prevent! :p
The Ninth Amendment as it is written;
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The Ninth Amendment as liberals and libertarians see it;
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the Supreme Court.
Or perhaps;
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. These rights shall be held in trust for the people by the Supreme Court.
Geoduck, Roger-
I appreciate the civility compliment, I do try (I get worked up sometimes, as I'm sure we all do) although I'm not sure that I deserve it today, in light of snapping about whether or not Geoduck had read a previous comment (it broke my own rules about presumption of good faith); I realize that these threads can get long and convoluted. In my defense, I'd just got out of the dentist when I wrote that post, so I was in a pissy mood. ;)
Incidentally, re Roger's comment, I should clarify: I don't have a law degree. I did a year of law school, but couldn't afford to finish. So while I've chosen to try and learn as much as I can, I comment primarily from a lay perspective; the internet has been incredibly powerful in opening doors and permitting people to immerse themselves in legal discourse that really wasn't available outside the academy until recently, I think. I don't believe that people have to have a J.D. to participate in legal discourse, they just have to be willing to read a lot. ;)
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