Bring It On!

By Craig R. Harmon on Jul 2, 2008 | Reply

My take is that he’s a smooth-talking pol who says what he thinks he needs to say to get the job done…in this case, getting his under-qualified ass into the Oval Office after which we’ll learn what his actual principles by his actions in office.

My opinion, based upon his promise regarding the sort of people he’ll put forward for the Supreme Court, is that he’s a liberal and I don’t care for any more Justice Ruth Joan Bader Ginsburgs, Justice Stephen Gerald Breyers, Justice David Hackett Souters or even Justice Anthony McLeod Kennedys deciding that what’s in their own hearts is more important than what’s in the Constitution or in whatever statute they’re supposed to be interpreting and applying.

Even if Obama turned himself into a raving conservative on every other issue, on Supreme Court Justices, he’s a raving liberal and I won’t contribute to his being in a position to do what he’s promised to do to the SCOTUS.

By Craig R. Harmon on Jul 2, 2008 | Reply

I don’t agree with everything that any of the Justices come up with. I’m merely less afraid of what the conservatives will decide to do than I am of what the liberals will decide to do. As to whether that decision will or will not lead to more American deaths remains to be seen. I hope it won’t but whether it will or won’t, I agree with Scalia more often on more issues than I agree with Ginsburg when it comes to the rule of law.

By Craig R. Harmon on Jul 2, 2008 | Reply

And none of that has anything to do with whether Obama is a liberal or conservative.

By Mateo Giovanni on Jul 2, 2008 | Reply

Somewhere I commented on this, but oh well. Who really cares; he will definitely have us in less wars than McCain.

Peace and Freedom

By Craig R. Harmon on Jul 2, 2008 | Reply

I mean that whether Scalia’s right or wrong about the detainee decision leading to more Americans’ deaths has nothing to do with whether Obama’s a conservative or a liberal (or a progressive realist). The issue of the sort of justices Obama would appoint that I raised definitely is directly related to whether Obama is a conservative or a progressive realist.

By Ken Grandlund on Jul 2, 2008 | Reply

Craig-

“…in this case, getting his under-qualified ass into the Oval Office…”

And who, pray tell, other than a person who has already been president, IS actually prepared to handle that job? A failed Texas oilman? A former fighter pilot with a pill popping wife?

Truth is that any candidate has about as much experience to sit in the Oval Office as any other. Hillary’s tenure as 1st Lady gave her no special experience to handle the job, yet she said she was more prepared than Obama? How? By knowing the layout of the West Wing?

For the first time in a long time, neither major party candidate has executive governmental experience, nor it seems, much business executive experience. Typically, our presidents have risen from the ranks of Governorships or VP status. But even that is no guarantee that an individual is “more prepared” for the job of president. Again, look at the current office holder-a complete failure if ever there was one.

All this “experience” talk is more dust in the eyes of voters.

We must look at the candidates positions and past actions to best discern who they may become as president. Now granted, Obama is swinging more centrist now that the primaries have finished. Any real surprise there? Not to me. Most candidates swing from their party edges towards the middle once the general campaign kicks in-they have to in order to garner enough votes all the way around. That Obama has taken positions towards the center should be no surprise. Also of no surprise is that politicians say one thing and then change their positions later. Hell, we all do that at times. It’s called re-evaluating based on changed events or information and frankly it’s the mark of maturity.

But of course, the very definition of conservatism is to avoid change or minimize it when it occurs. Change scares those who prefer the status quo, even when they realize that the status quo is all screwed up. Conservatives are willing to wait until everything falls to pieces, and then wish to revert to the “good old days” instead of trying to find a way forward. This is as true of conservative voters in general as it is of Supreme Court Justices. Yet the court has consistently moved the implied values of the Constitution towards a more equal society in spite of the stalwarts of conservativism.

Fear of change seems to ring loudly in the efforts of conservatives to paint Obama as anything but what he purports to be-namely an agent of governmental reform. That is not un-American at all-it is the reason America exists in the first place.

You fear a SCOTUS with a more “liberal” bias, because you prefer things to stay as they are. Correct? I fear a more conservative court because they will try to keep things the same, or worse, reverse course on individual freedoms. Yet my fear drives me towards change, and my complaints about the GOP candidate are that he will do little to alter the disasterous course Bush has led us down. We live in troubling times, times with many serious challenges, and to continue down the current path only ensures more trouble ahead.

I prefer a different path, with different players altogether.

SO, Obama-conservative or Progressive realist? The latter to be sure. Any conservative-speak he delivers is a combination of the man himself and the need to gain middle-of-the-road voters. We already know he has religious beliefs (as does most of the country) so for him to talk about religious issues should come as no surprise. But he is no theocrat, and is not willing to pattern the secular government of America on religious doctrine or superstition.

A progressive realist desires change while knowing he can’t do it alone. And he also knows that change, in normal times, should be gradual but comprehensive.

These aren’t normal times though, and the next president will likely be tied to all of Bush’s disasters of the past, as well as any he may engineer in his final days in office.

By Craig R. Harmon on Jul 2, 2008 | Reply

Here you go”. It’s not a list of prospective justices but it’s a clear indication of the sorts of justices Obama would (and would not) put up for the job.

By mr bigstuff on Jul 2, 2008 | Reply

dusty,
1. scalia is a fucking idiot. like all idiots he will one day do himself in. just like w and hopefully cheney

2. obama is a progressive realist. i really believe and hope that the dem plan on fisa is to overturn it later with a majority in both houses and obama in the white house once the fumigators, exorcists, and exterminators finish up their unenviable task………in about 24 months or so. i really believe that obama will prove more liberal than his campaign stances are once majority rule is re-established in the good ole usa. like you, i wish gore had fought to the death (not his, the other guys) in 2000. he could have prevailed. i wish w, cheney and the other neo-con artists had all been impeached and imprisoned or worse by now. they certainly deserve it. i wish american troops were out of both afghanistan and iraq by now. i wish gas was $1.19/gallon like it should be. i firmly believe that by 2010 things will be much much better here in the good ole usa once sane order is restored and progressive rule guarantees the realization of the american dream once again. obama is just doing now what is necessary to win by a large large margin. he knows he can’t count on a slight victory because republican’ts always cheat. it’s the only way the incompetent can “compete”. republican’ts think that a man with not enough gumption to cheat ain’t worth his salt. they worship machiavelli. look at the corrupt piss poor state of republican’t leadership now. obama knows he must win by a landslide to prevent p.w. songbird from getting close enough to cheat. with all the republican’t dissatisfaction with mcsame, obama is looking to pick up each and every disenchanted former w supporter. he knows they are so easily conned. i know he is moving too far to the center, but there is a purpose in his actions.

By Craig R. Harmon on Jul 2, 2008 | Reply

I want them to know the law, to respect the Constitution, to restrain themselves to operating within the Constitution and not to make shit up just because they think it SHOULD be in the Constitution. That’s what I want: justices who are not respecters of persons but will rule according to the law regardless of the person or conditions presented by the persons. Judges aren’t supposed to care about the people before them. They’re supposed to care about the law, apply the law. That’s all.

By Ken Grandlund on Jul 2, 2008 | Reply

Well Craig- the Constitution not only allowed slavery in this country (albeit with an end date for new importation of slaves)but slavery was upheld for quite some time.

Until the Supreme Court ruled that the INTENT of “all men are created equal” should apply to black people too.

And then the THOUGHT that women should be included too.

Neither position is spelled out verbatim in the original document, in fact the framers didn’t think women capable of political thought at all. Perhaps some “activist” judges looked at the law AND the people it affected when changing those values of American jurisprudence. Or maybe they just made that shit up too.

By Craig R. Harmon on Jul 2, 2008 | Reply

Until the Supreme Court ruled that the INTENT of “all men are created equal” should apply to black people too.

Uh, no. Sorry. History’s all wrong here. The Constitution allowed slavery until the constitution was amended to preclude slavery. Supreme Court Justices aren’t supposed to amend the Constitution. The Constitution doesn’t give them that power. It gives that power to the people…or rather, the people retained that power to themselves and their elected representatives.

Dusty might think you’ve made a good point but I think you’re wrong from beginning to end.

In any case, perhaps you’ve heard the phrase, “Justice is blind”? The point of that is that the law applies to all regardless of who they are or in what condition they live.

By Craig R. Harmon on Jul 2, 2008 | Reply

Same, of course, with women’s sufferage. These had nothing whatsoever to do with Supreme Court justices deciding that the Declaration’s “all men are created equal” extended the vote to women.

By Craig R. Harmon on Jul 2, 2008 | Reply

What is that that Santayana said about those who are ignorant of the law? That they are doomed to make historically inaccurate comments on the internets?

By Craig R. Harmon on Jul 2, 2008 | Reply

Er…ignorant of history, not of the law. Although, I guess that would extend to ignorance of the history of the law.

By Craig R. Harmon on Jul 2, 2008 | Reply

After all, the Supreme Court’s last (or at least last famous) slavery decision before the civil war and the 13th – 15th amendments was the Dred Scott decision wherein the Chief Justice declared that blacks had no rights a white man was required to respect.ac

So much for the Supreme Court ridding the nation of slavery.

By Craig R. Harmon on Jul 2, 2008 | Reply

It was, rather, the people that made that whole ridding the country of slavery and extending the vote to women shit up. They just required the SC Justices to follow the Constitution as they amended it.

By Craig R. Harmon on Jul 2, 2008 | Reply

THAT’s the way it works in this country…or, rather, the way the Constitution set it up to work in this country. The PEOPLE have the power to make the law through their elected representatives. The Justices are appointed to uphold what the people have done to make laws and amend the Constitution.

By Craig R. Harmon on Jul 2, 2008 | Reply

The Constitution nowhere gives Supreme Court Justices the power to make shit up no matter what’s in their hearts

By Craig R. Harmon on Jul 2, 2008 | Reply

And the fact that Obama, professor of Constitutional Law at University of Chicago, doesn’t understand that means he has no business making Supreme Court appointments, with or without the advice and consent of the Senate. It’s rather disturbing that you, Ken, who are so obviously well informed about many things, are so wrong about such important things.

By Ken Grandlund on Jul 2, 2008 | Reply

OK then, how about Marbury v. Madison- the first case of activist judges whereby they ruled that the Supreme Court had the authority to overrule acts of Congress that they deemed unconstitutional? There was no specific portion of the constitution that spelled out that futy of the court.

Or maybe the McCulloch v. Maryland ruling that established the concept of “implied power” by which much of the congressional actions take place today? Another case ofd judicial activism?

Or maybe Plessy v. Ferguson which upheld racial segragation even AFTER the 14th amendment granted full citizenship to black males? More activist judges distorting the intent of the law, no?

Or maybe the more recent Kelo decision where the courts turned private property rights and eminent domain on their historical heads?

Judges always make rulings based on a combination of things, like judicial precedent and their own personal biases included. “Activist” judges are those who change the context of the old way of thinking while ruling on the bench.

Seems that the only way equality tends to progress is through the courts, and sometimes through constitutional amendments.

Again, this goes back to the very definition of conservatism, which is to avoid change at all costs, whether it be for the better or for the worse.

Conservatives relish in status quo, until they are forced to see (though not always admit) that their way of doing things hampers human growth by promoting stagnantism.

We’ve had plenty of “activist” judges throughout our short history, and sometimes they rule towards conservatism and sometimes not. What specifically do you fear today from “activist liberal” judges anyhow? They might not overturn abortion? They might think all people deserve equal treatment under the law? They might , just maybe, rein in some of the executive abuses of the last 8 years???

Hell, it seems that when a conservative judge forms an “activist” opinion, conservatives have no real worry. Kind of a double standard there, no?

Seems to me that we have greater issues to contend with than who is appointed to the bench. Even though judicial nominations can shape this country a great deal, they pale in light of the current economic quagmire that the end of cheap oil will bring. Hell, in light of possible serious economic challanges, I’d think a more “liberal” court would be preferable if things get really squishy. At least they would be less likely to embrace a totalitarian regime in times of crisis than a conservative bench would be. And if anything, that stance would ensure that an “activist” executive branch would trod over the basic tenets of our government like the current one has- and has done so with a predominantly “conservative” SCOTUS backing him up.

By Craig R. Harmon on Jul 2, 2008 | Reply

The power originates with the people. They elect representatives to exercise their power on their behalf. Once unelected Justices get into their heads or hearts that that power is theirs, we no longer have a representative republic; we have a nine-headed dictatorship.

By Ken Grandlund on Jul 2, 2008 | Reply

Craig- I admit to shooting a bit from the hip regarding the SCOTUS role in amending the rights of minorities and women initially. This does (or at least DID) come originally from groups of citizens.

I can’t possible know every detail of everything under the sun, and sometimes put forth a poorly thought out position based on emotional reactions.

Still, I contend that had not the SCOTUS affirmed those rights of women and minorities through tangential cases, thus creating judivial precedence, there have been plenty of SCOTUS justices who would have had no compunction reversing them, thus becomeing “conservative” judicial activists.

Point of fact is that the Constitution grants the SCOTUS very limited powers, powers that were expanded by an “activist” court with the McCulloch v. Maryland ruling.

By Ken Grandlund on Jul 2, 2008 | Reply

I’ll also say that I am no Constitutional scholar. But the framers clearly intended that constitutional changes would occur, and included guidelines for those changes to occur through the amendment process. They had no intent for the document to be a static one, and in fact assumed that it would, and should, change over time.

That those changes sometimes happen through judicial interpretation is now a part of the process-one could say part of the evolving constitution they established.

Further, how many presidents themselves have been constitutional scholars? Certainly not GW Bush. Do you, Craig, posit that he also had no business selecting nominees to the court? From your comments about Obama, one could infer that is your position. However, who is selected to sit on the high court was never left to the people to decide, but rather to the elected president with the consent of the Senate.

So maybe there are no activist judges at all, but only activist presidents and Senators who are ultimately responsible for those who sit in those highback chairs in the SCOTUS.

By Craig R. Harmon on Jul 2, 2008 | Reply

Ken,

I was just going to bring up the unconstitutional, blatant power grab from the people that was Marbury. I’m not sure what an unconstitutional act by unelected Justices has to do with anything we’re discussing here.

As for conservatives, it’s not as simple as being enthralled with the status quo. Conservatives believe that things must change. That’s not it at all. It’s about wariness with wide-ranging change. It’s about trusting the tried and true over the untried novelty. It’s about acknowledging the limits of reason and a healthy pessimism about human nature. It’s about placing the power to bring about change with the people at the most local level of gov ernment rather than with big government. It’s about equality before the law and fearing government enforced equality of economic status as leading to totalitarianism. It’s about many things but it is not about being enthralled with the status quo. And bringing up judicial acts of unconstitutional naked force doesn’t exactly make me consider electing someone who will give us more of the same. No thanks.

Dusty,

Yes, of course Obama, if he should become president, can put up whomever he wants for SCOTUS. This is my whole point. The reason I will not vote for Obama: he’s a liberal who has promised to appoint liberal justices to the Supreme Court who will, undoubtedly make more shit up that isn’t in the Constitution and which they were never give the power to do by the people.

And I may have to get used to it but I don’t have to like it or, based upon Obama’s promised Supreme Court appointment standards, think Obama anything other than a liberal.

By Craig R. Harmon on Jul 2, 2008 | Reply

Anyway, I’m withdrawing from the discussion. I’ve made my points. Thanks to all for the discussion opportunity. I may not often agree with you but I value the opportunity to try to reach agreement.

Ciao!

By Craig R. Harmon on Jul 2, 2008 | Reply

I’ll also say that I am no Constitutional scholar. But the framers clearly intended that constitutional changes would occur, and included guidelines for those changes to occur through the amendment process. They had no intent for the document to be a static one, and in fact assumed that it would, and should, change over time.

That those changes sometimes happen through judicial interpretation is now a part of the process-one could say part of the evolving constitution they established.

With the first paragraph, I, happily, agree in its entirety. With the second paragraph, I, with sadness in my heart, also agree but I would add that no people ever gave the Supreme Court Justices the power to do that second part and I would prefer Justices who will eschew participating in the exercise of power that no one ever gave them but which they simply gave themselves.

This is my whole point here: McCain is more likely to appoint Justices who are more likely to restrain themselves to powers explicitly given them in the Constitution than are, I suspect, Justices appointed by Obama.

Now I really mean it. I’m out of it. Have a good one all of you.

By Ken Grandlund on Jul 2, 2008 | Reply

I’ll just add this and then I’m out too…

From “The Originalist’s Dilemma” by Peter J. Smith (a portion of the abstract of the complete paper, published in the Minnesota Law Review, Feb. 2006)

“In response to Anti-Federalist complaints that the Constitution was dangerous because it was ambiguous, James Madison and Alexander Hamilton argued that judges would construe the Constitution in the same manner that they construed statutes, and in the process would fix the meaning of ambiguous constitutional provisions. In other words, the original understanding was that constitutional ambiguities would be resolved, among other means, through adjudication….

(snip)

The study suggests that the (current) Justices, while professing fidelity to the principles of originalism, have not robustly, or at least consistently, adhered to the original understanding of how constitutional ambiguities would be resolved.

(my emphasis added)

link:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=799165

Seems to me that “activist” judges are alive and well on both aisles of the political spectrum.

By Ken Grandlund on Jul 2, 2008 | Reply

Always stimulating Craig.

Enjoy the day.

By Ken Grandlund on Jul 2, 2008 | Reply

And as this entire SCOTUS conversation is far afield from the original post question (albeit tangentially relevant to ones opinion of Obama as a whole), I refer back to my initial comment to answer the question of the post.

By Craig R. Harmon on Jul 3, 2008 | Reply

Ken,

I have no objections to the Justices “fixing” ambiguities, constitutional or statutory. What I object to is Justices extending their own powers and sphere of powers beyond those given them by the Constitution. The same founders, the federalist ones, argued that a Bill of Rights wasn’t necessary because the Constitution was an instrument which conveyed a set of powers to the federal government which was strictly limited to those expressly enumerated while reserving all other powers to the states or to the people (see the 10th amendment). There’s nothing ambiguous about that. Therefore there is no constitutional provision for the Court adding to its enumerated powers. It must act within the limits of what you, yourself, have referred to as quite limited.

But if the Constitution needed to be amended every time a technological advance came along which, say, allowed the government to more efficiently invade the privacy of individuals — wiretapping capabilities, for example — in order to keep the government limited in their police powers, the amendment process would be endless and could never keep up with the technological advances. Therefore, because we live in a country which utilizes case-law to keep up with advances and to fill in spaces not imagined by the framers, the courts quite properly answer those questions. BUT, in my view, they must do so within their constitutionally provided powers. If the Constitution provides them no enumerated power to address an issue, they must leave the issue unaddressed. That is, they must leave the issue to be addressed by the political branches: the legislators to enact laws consonant with the will of the people and the executive to enforce such laws as it views to be constitutional.

Therefore, I see a ruling like Marbury as quite different than rulings which fill in blank spaces in statutes or in constitutional provisions that technological advances have outstripped. The first aggrandizes the powers of one branch of the government beyond those powers granted them; the second does what the Constitution envisioned.

I also agree that “judicial activism” is not limited to liberals on the court. Those in power will always be tempted to accumulate power and we should be ever vigilant in checking their attempts, particularly within the branch of government least able to be checked: the Judiciary and, in particular, the SCOTUS for neither the people nor the other two branches are easily able to check the Supreme Court when they rampantly abuse their powers.

By Craig R. Harmon on Jul 3, 2008 | Reply

Off topic alert! I don’t expect much comment (though comment is, as always, welcome) but I have commented elsewhere that I think the courts often go too lightly on those who sexually abuse children. When the courts get it right, I should commend them and not just chide them when they get it wrong.

This time, they got it right. However, I suspect that some future appeals court will cut this down and, alas, undo the good that this court has done. I’m sorry but there should be no possibility of any sexual abuser of children ever setting eyes upon another child again, let alone ever being set free into the general population to have the opportunity to abuse other children. Possibility of parole in the year 3209 seems about right to me.

By Craig R. Harmon on Jul 3, 2008 | Reply

Rick Alley, lawyer for the defense, who said:

“If it was as traumatic as they indicate, they would be able to give you (specific dates and times of the incidents). Simply because it’s shocking doesn’t make it true,” Alley said.

is something less than a human being. No, sir. That’s quite backwards. People who are traumatized don’t go and mark their calendars and journal about the exact time and date of each trauma. They do their best to try to forget what’s been done to them. They cannot remember specific dates and times of the incidents BECAUSE they were traumatized.

Worthless. Sub-human. Pond-scum.

Please understand. We need defense lawyers. Our system can’t work without them. But just once, I’d like a defense lawyer, after his worthless-to-society client gets convicted, to say he’s glad his client was jailed. That that was the best thing for society. That the safety of the children he abused and of the children he might abuse if ever let out of prison are worth more than their client ever dreamed of being and that their client should rot. Just once.

By Ken Grandlund on Jul 3, 2008 | Reply

Dusty-

I don’t think him to be anything at all like Bush, other than the fact that both are politicians.

Pandering to voters, as reprehensible as we may consider it to be, is simply the only viable way for a candidate to win enough general election votes. It is a problem with the system as much as it is a problem with the “common wisdom” of candidates and campaigns.

I think that most voters expect some pandering, and put little stock in whether or not a candidate commits to every aspect of a campaign.

It is a sad state of affairs, but it is a reality.

By Lisa on Jul 3, 2008 | Reply

Tee Shirt anyone?

http://www.thoseshirts.com/ktc.html