With a piece in the Wall Street Journal titled “Lay Off Our Judiciary,” Ted Olson just assured himself membership to the RINO bad Republicans club. Welcome aboard, Mr. Solicitor General:
“A prominent member of the Senate leadership recently described a Supreme Court justice as ‘a disgrace.’ An equally prominent member of the leadership of the House of Representatives on the other side of the political aisle has characterized another justice’s approach to adjudication as ‘incredibly outrageous.’
These excoriations follow other examples of personalized attacks on members of the judiciary by senior political figures. So it is time to take a deep breath, step back, and inject a little perspective into the recent heated rhetoric about judges and the courts. We might start by getting a firm grip on the reality that our independent judiciary is the most respected branch of our government, and the envy of the world. … We expect dignity, wisdom, decency, civility, integrity and restraint from our judges. It is time to exercise those same characteristics in our dealings with, and commentary on, those same judges — from their appointment and confirmation, to their decision-making once they take office.”
Are some of you starting to recognize how egregious these attacks by DeLay et. al are and how bad they are for the country?
(via Drudge)
Birkel
Of course the first comment was made by Democratic Senator and Minority Leader Harry Reid.
I wonder why the MSM wasn’t all a-twitter about that attack on Justice Clarence Thomas. And where was the editorial by a prominent elected Democrat criticizing Senator Reid?
Points to ponder, I suppose.
You know what worries me even more than that? The attacks Lincoln and FDR made on the judiciary. Those nearly toppled the country. Thankfully we pulled through both those events. And both those presidents are remembered quite fondly by historians, IIRC.
neil
Well, Ted Olson does owe the Supreme Court Justices a favor, after all.
Just Curious
wow. So, DeLay’s concentrated, plotted bomb throwing is justified by FDR’s dumbass unconstitutional over reach?
I don’t follow that logic…
am I being too literal?
Eric Almquist
Maybe you should check out David Brooks column in the New York Times. When even liberal abortionists such as him and Ruth Bader Ginsburg declare Roe v. Wade a mistake that should have been left to the states, then maybe there is something to the anger towards justices who invent new constitutional rights to reflect societal concerns. Also, is Mark Levin a rabid evangelical? His book called ‘Men in Black’ is dead on. His critique is not theological, it is that a constitutional republic cannot survive when judges believe that it is a living document. You then have tyranny by a few, robed, elites.
Birkel
Just Curious–
The fact that you ask “am(sic) I being too literal?” might give you an answer to that question.
(BTW, why did you miss the Lincoln part of that historical reference? I’m just asking.)
The point is that the supposedly co-equal branches are not currently equal. The SCOTUS can overrule Congress and the POTUS but they can’t ever face a push back, as it currently stands. What about that screams co-equal to you?
The Court asserted its supremacy (not co-equality) early in the Republic’s history. And that power has been tested on two previous occasions.
Lincoln pushed back against a SCOTUS that was trying to assert its will against the people. Remember how they overruled the Missouri Compromise? It was kinda a big deal at the time.
FDR pushed back against a SCOTUS that was unwilling to give the popularly appointed POTUS what he wanted. And out of that grew the modern Court. This Court is asserting judicial supremacy not co-equality.
And this Court is not allowing the will of the people (as counted by elections of a majority of Republicans at all levels of federal government–and governors for that matter) to be done.
That’s the link you oughta see between Lincoln, (Please don’t forget about him next time!! He’s important!!) FDR and Bush
JG
‘a constitutional republic cannot survive when judges believe that it is a living document.’
I can’t believe I just read those words. You really believe the constitution ISN’T a living document? That sounds like something I’d read in a militia handbook. Please tell me you don’t speak for the majority of conservatives. If so we are soooo fucked.
The Disenfranchised Voter
“His book called ‘Men in Black’ is dead on.”
HAHA, that WAS a joke right? I sure as hell hope so.
Richard Bennett
The constitution’s live vs dead status has no bearing on current religious-conservative attacks on the courts, any more than dismay over activist vs. restrained judges is at the root of their discontent.
There is a faction among the religious right that wants to run roughshod over the constitution in any form, and you can recognize it from such statements as “courts violating the will of the people” and similar pabulums. The courts are supposed to *very soundly crap all over* the will of the people when that will is at odds with the constitution’s scheme of federalism, separation of powers, and individual and family liberty.
If the Religious Right had its way the Constitution would be a memory, so naturally they attack its defenders, the courts. The only document these people recognize is the Bible, and they don’t even understand most of it.
Birkel
Hey RB, I’m a flippin’ atheist, you imbecile. The will of the people was overrun by the SCOTUS in 1857 when CJ Roger Brooke Taney basically voided the Missouri Compromise in the Dred Scott case. Heard of it?
And how did that work out for the country, you know-nothing ignoramus.
Now, you want to talk about fatuous pablum? Okay, let’s start with your stupid “Religious Right” horseshit, okay? How about the fact that most of the people who overturned the MC in Dred Scott did so on religious grounds? Hmmm? You wanna make the argument that the SCOTUS should get the last call then fine, have at it. But you know what else, that’s a reason against your bullshit argument you dumb SOB.
Let me spell it out for you slowly: If the SCOTUS has the final call and 5 religious freakazoids were on the Court under your line of reasoning they’d be able to judge things on their religious basis. Okay? Do you get it? We need co-equal branches to avoid just that outcome. GO READ SOME HISTORY, you farkin’ moron!
Courts should be co-equal branches. When they assert primacy over the other two branches, as they did in Dred Scott, really bad stuff can happen. See e.g. The Mother Farkin’ Civil War where 600,000 people died.
So look you sophomoric piece of crap, you want to address my arguments and get off your bullshit talking points or not? ‘Cause it’s obvious you didn’t want to do so with that last comment.
Farkin’ idiot.
Kimmitt
So I can put you down as against Brown v. Board of Education, then?
Kimmitt
Or Loving v. Virginia?
stickler
Birkel is either a mouth-breathing poltroon or a real-live fascist.
Distorting history (and not skilfully, either) is the province of half-educated ideologues.
The “Religious Right” may be peddling “horseshit,” that’s true, but they’re out there, they’re in the Oval Office, the House and the Senate, and they’re dead serious.
Look up “Dominionist Reconstruction” for some shits and giggles, and see what comes up. If God’s Law trumps the Constitution, and a heretic schismatic hellbound Baptist asshole tries to tell me what God’s Law is, well then we have a problem. One that will result in a rather profound political crisis.
And the Baptist will still, at the end of Days, be sniffing sulfur.
Birkel
Clever boy.
And I suppose you support Plessy v. Ferguson which was an assertion of judicial supremacy then?
Fantastic.
Now what?
Oh, that’s right. I remember now. We should force the judiciary to be co-equal.
Birkel
And I’ll put stickler in for a Dred Scott supporter.
Wonderful.
Half-educated? I’m sure I’ll be willing to compare mine to yours. You go first just to keep it interesting.
Kimmitt
And I suppose you support Plessy v. Ferguson which was an assertion of judicial supremacy then?
What I support is the common-sense notion that just because judicial review has been abused doesn’t mean that it doesn’t have its place.
Birkel
Right then. As I’ve said previously in comments to this blog we shouldn’t assume the worst of other arguers.
Now that we’ve dispensed with BS. I have not dismissed the need for judicial review. Look at what I’ve typed above. It’s about judicial supremacy. Judicial supremacy has given us real problems in our past. Agreed?
So what we need is three, count them 3, co-equal branches of government.
Get it?
W.B. Reeves
Birkel,
There was a lot wrong with the Dred Scott decision. However, in point of fact the court did not “overrule” the Missouri Compromise since that was not the issue before the court. It did put forward an argument that claimed the Federal Government had no authority to regulate slavery, despite recognizing that the Government had done precisely that at the time of its founding re: the territories that later became Alabama, Mississipi, etc.
As the dissenting Justices pointed out, the SCOTUS could not effectively rule on issues that were not before the court. The Missouri compromise, as such, played no part in the pleas of the litigants in Dred Scott. Therefore, the argument went, the court’s statements on matters outside the purview of the case in question had no standing in law. One can either agree or disagree but the Congress of the United States as a body never accepted the Court’s ruling on these matters, so saying the SCOTUS overuled the Missouri Compromise is inaccurate.
Likewise your claim that the Executive and Legislative branch cannot “push back” against the Judiciary strains credibility. The Legislative branch holds the ultimate power in that it can amend the Constitution. The Scotus has no power to rule on amendments and is limited to interpreting such law. Likewise the Executive has been known to refuse to enforce the edicts of the court without directly challenging them. (see Andrew Jackson)
BTW, Richard Bennett didn’t say you were a member of the religious faction. In fact he didn’t refer to you personally at all, so I don’t see what your atheism has to do with anything. As for the majority in Dred Scott, that they wrapped their arguments in the rhetoric of piety hardly trumps the fact that they were Southern partisans and that some were slaveholders.
Birkel
WB Reeves,
Apparently you’re hard of reading. The problem with Dred Scott was the Court’s assertion of judicial supremacy. And yes, they did, in effect, overrule the Missouri Compromise. It was part of the reason for the Civil War.
You’re right to say they didn’t technically overrule the MC. That wasn’t my point, as was plainly obvious. But while we’re being technical, your claim that the legislature can amend the Constitution strains credibility. That is strictly not true, but I’m sure you know that. (You know, it takes the 3/4 of the States and all.)
“The Scotus has no power to rule on amendments and is limited to interpreting such law. ”
Sure. And the Courts couldn’t interpret the 14th Amendment to allow ‘separate but equal’ I suppose. Oh wait. They did just that. So let me guffaw at your assertion that SCOTUS can’s “rule on amendments” okay?
As for you comment RE: Richard Bennett:
He quoted me directly and in the same sentence mentioned the religious right. I’m sure it was an accident as you allege. (I’ll stop being disingenuous now.)
Birkel
Perhaps I shoulda said “repudiated the Missouri Compromise” to be more specific.
Eric
I don’t know if JG will see this, but what do the militias have to do with constitutional governance? I work in Kansas City and have seen the Missouri, then the Kansas Supreme Courts find constitutional reasons to order the legislature to spend hundreds of millions of dollars more on schools. Since you’re a ‘living constitution’ believer, you won’t have a problem with this. I do. What is the point of elections if judges can make up constitutional points of law out of thin air to advance their personal beliefs? I want strict constructionists who follow the law, without making rulings based on their feelings of what is ‘just’.
Kimmitt
Okay, what’s the difference between “judicial review” and “judicial supremacy”?
Birkel
judicial supremacists–strikes down law and replace it with what they will thus replacing the legislature as a rule-making body
judicial review–strikes down law goes home and has itself a beer ’cause the job’s been done
****************
That’s off the top of my head in about 30 seconds with an attempt at humor for good measure. And Eric’s example (I assume it to be true without reading more.) about the Kansas SC ordering schools to spend money is one example of supremacy.
And note: You can press me past my ability to know “The Answer” on the difference between the two. It’s a bit of a feel thing that I’m willing to defend only so far. Clearly there are hard cases that neither you nor I would find so easy to classify so let’s just leave it at that.
Kimmitt
judicial supremacists–strikes down law and replace it with what they will thus replacing the legislature as a rule-making body
Again, I’m stuck with Brown v. Board of Education issues.
W.B. Reeves
Birkel,
It’s true that the states must ratify Constitutional amendments but the states cannot pass an amendment directly and submit it for ratification. That power resides soley with the legislative branch. This is very potent power, which is why the founders designed the ratification process. They wanted to insure that any amendments would be genuinely representative of constituent sentiment. They did not want to leave the door open to legislative tyranny. Note, the founders did not place ratification in the hands of the Executive or the Judiciary. Clearly they did not wish to give either of these branches any say in the Amendment process.
I cannot agree with your argument vis-a-vis SCOTUS overuling the Missouri Compromise. Its self contradicting. Had the court’s opinion been generally accepted as law you would be correct but it was not. It was the lack of such acceptance which contributed directly to the split in the Democratic Party resulting in the Republican victory leading to the onset of civil war. The war itself is the starkest repudiation of the SCOTUS’ opinion, not proof of its application.
Yes, if you had said “repudiated” rather than “overuled” I would have had no quarrel with you. That’s because these words have completely separate meanings. One has the force of law and the other does not.
I also disagree with you about the main problem with Dred Scott being the assertion of “Judicial Supremacy”, a phrase that appears nowhere in the ruling. What does appear is the assertion that the right to hold property in slaves trumps, not only the power of the Federal government but the rights of the various State governments as well. Taney and the majority held that the right to property in slaves was inviolate. It Followed from this that the Federal and State governments were obliged to defend the rights of slave owners throughout the territory of the United States. This of necessity included the free states. That is the dirty little secret of Dred Scott. It was the most sweeping violation of “states rights” attempted up to that time.
It’s not that I’m “hard of reading”, I just think you’ve got it wrong.
Birkel
Kimmitt,
You’re stuck with all the bad ones too. Korematsu, Dred Scott, Plessy etc.
Best of luck with explaining those. In the meantime, you can admit that judicial supremacy has been abused just as often as it’s been used for the forces of good. Just like legislative or executive supremacy would’ve been. And then you’ll admit that when I argue for three co-equal branches it’s a pretty fair argument, as these things go.
*********************************************************
WB Reeves
Well now you’re just drunk or something.
So the fact that Dred Scott was overruled by, say, A FARKIN’ CIVIL WAR proves that it was never in force instead of proving the obvious notion that the political apparatus (executive and to a lesser extent legislative) pushed back against the SCOTUS? Good luck with that.
And as to your unconscionable Constitutional claim that Dred Scott was simply a property rights case instead of being about the continuation of slavery, you might want to keep your identity slightly more anonymous than it is. Just b/c the SC said it never made it true.
I don’t just think you’re wrong. I think your view is morally and ethically repugnant.
Oh, and don’t forget to bring that weak “southern strategy” stuff over to my blog. That’s one you can’t win. Not. Even. Close.
http://randombirkel.blogspot.com/
W.B. Reeves
“So the fact that Dred Scott was overruled by, say, A FARKIN’ CIVIL WAR proves that it was never in force instead of proving the obvious notion that the political apparatus (executive and to a lesser extent legislative) pushed back against the SCOTUS? Good luck with that.”
The Executive and the Legislature were in the hands of southern partisans and their concilliators at the time of Dred Scott. The pushing that took place in the three years prior to the Civil War was partisan on behalf of the GOP, not institutional on behalf of either the Executive or Legislative branch. What ensued was a political stalemate and chronic constitutional crisis, not a combined Legislative/Executive “push back”.
You, yourself began this thread by citing “Lincoln’s (along with Pres. Roosevelt’s) attacks on the Judiciary. This places your “Push Back” squarely after the outbreak of civil war. That is, after the outbreak of the war that rendered the legal argument null.
Are you suggesting that the war was fought over the issue of Judicial Supremacy? I ask because I don’t see how wartime decisions can be separated from the requirements of war. War dictates policy. That was Lincoln’s argument. Every wartime President since has used the same argument. Where did he ever say that “pushing back” against the Judiciary was a goal of the war? Did he ever say anything like this?
“And as to your unconscionable Constitutional claim that Dred Scott was simply a property rights case instead of being about the continuation of slavery, you might want to keep your identity slightly more anonymous than it is. Just b/c the SC said it never made it true.”
Excuse me but as far as Taney and the majority of the SCOTUS were concerned Dred Scott was a case about property. That is what slaves were under the law. Or to quote the opinion:
“The only two clauses in the Constitution which point to this race, treat them as persons whom it was morally lawful to deal in as articles of property and to hold as slaves.”
That is a matter of historical fact, not my opinion. Yours is a clumsy distortion.
I would add that since slavery is a system of holding humans as property, there is no contradiction in Dred Scott being both a case about property and slavery. It is about many other things as well, Supreme court cases usually are.
I find your suggestion that I should be worried about my safety ludicrous.
As I said in the beginning, there are many things wrong with the Dred Scott decision. I don’t recall suggesting there was anything right about it. However, if a straw man is the best you can manage, have at it.
Someone brought up the question of the whole constructionist/living document debate earlier. Here’s another quote from Dred Scott that seems relevant:
“The change in public opinion and feeling in relation to the African race, which has taken place since the adoption of the Constitution, cannot change its construction and meaning, and it must be construed and administered now according to its true meaning and intention when it was formed and adopted.”
Birkel
1) There was no GOP prior to the Civil War, jerk off. Here’s the history for the Google deficient. There was a Republican Party and it started in 1854 to oppose slavery. But the GOP didn’t come into being ’til 1875. Funny how a Republican candidate won three years after Dred Scott eh?
2) Lincoln ran in 1860, in part, on the basis of harnessing the out of control judiciary. See here for the opposition to Dred Scott.
3) Dred Scott was about property law.–Yeah, tell it to the slaves, moron. Or, better yet, tell it to the Republican Party of 1860 which saw it differently. Jag off. (It’s called judicial tyranny, I mean supremacy, for a reason.)
4) I never mentioned your safety. I just don’t think you’ll make a lot of friends arguing that Dred Scott wasn’t about slavery. Farkin’ idiot with your reading comprehension problems again.
5) Excellent work poaching one line from an opinion. Golly!! How authoritative!! [Next thing you know you’ll be arguing that Dred Scott wasn’t about slavery!! tee hee hee] And with that quote in hand I’m sure you’ll explain to me why it’s important for the SCOTUS to maintain judicial supremacy. (‘Cause that way we coulda maintained Dred Scott, I suppose.) Notice, if you will, that the Missouri Compromise which represented the will of the legislative and executive branches, was in fact being repudiated in Dred Scott and that is why it represented a dose of judicial supremacy.
-OR-
You could admit that Dred Scott was about the SCOTUS making law, not judging law. But then you’d be admitting what you so obviously don’t want to admit. Namely: The SCOTUS is just as likely to make mistakes as is the legislative brance or the executive branch. And thus the 3, count them three, branches should be co-equal.
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Now, would you like to attempt an assault on my thesis? Or, for sh!ts and giggles would you like to continue to argue garbage in the hope that you actually produce something meaningful. I await your pitiful attempts.
W.B. Reeves
Re: Birkel
I’m not going to waste a lot of time on this. Birk’s characterization of what the cited links show is so far removed from the truth that distortion is the mildest word for it.
1) The GOP site makes it plain that the the term Grand Old Party (GOP) was coined as discription of the Republican party. It has never been used to describe any other organization. When it was coined is irrelevant. This is a dodge.
2) The History site indicates that opposition to Dred Scott was one plank in the Republican platform. I already pointed out that the GOP, as it was later known, had opposed Dred Scott. What Birk thinks this proves, other than his own inability to understand opposing arguments, is hard to say.
3) Birk can’t deny the quote from Dred Scott vis-a-vis slaves as property so he decides to ignore it.This appears to be his basic MO with any fact that contradicts his prejudices.
4) Right. Birk was just worried that I wasn’t going to make any friends. Sure.
5) Evidently vaguely aware that his strategy of ignoring the quote from Dred Scott is weak, he tries to recover by muddying the waters.
He is the one who raised the suggestion that Dred Scott was not about slavery while making a pretense that it was my argument, just as he now pretends that I am arguing for “Judicial Supremacy” or that I am in favor of the Dred Scott decision. Never mind that I never endorsed any of these things. Birk appears to enjoy making up such stuff.
There’s a morbidly adolescent quality to a the mind that hurls epithets such as “idiot” and “moron” but quails into prissyness when it comes to good old anglo-saxon obscenity. “Farking” indeed! Such coyness belies the tough guy posturing and the insults indicate an inability to discuss any subject on its merits.
.
Birkel
Here is my one and only thesis; the rest is peripheral.
*****
There have been two political push backs against the courts in the past. 1860 and 1930s.
*****
Why then is the press calling the current push back a demonstrably bad thing given the results of the two previous occurrences?
Birkel
Oh, and as a bald appeal to authority I will mention that Justices O’Connor and Breyer agreed with my position–that current attitudes toward the Court are no worse than they have been historically–in their C-SPAN telecast with Tim Russert.
Justice Scalia dissented (his word) and said the “living Constitution” theory has caused the Court to act more politically (thereby writing law instead of interpreting it) and that this made the Court political actors. Therefore, he saw the problem not as one of politicians lashing out at the Courts but as the Courts invading the space of the duly elected legislature.
So, keeping score at home:
**Breyer and O’Connor side with Birkel.
**Scalia dissents in part and agrees in part with Birkel.
Just so you know.