SCROLL DOWN FOR NOVEMBER 4TH & 5TH UPDATES
I received an e-mail from my dear friend and liberal, Michael J.W. Stickings over at The Reaction, he also writes for the Moderate Voice together with Joe Gandelman, and another young rising star by the name of David Schraub. He has posted a great two part commentary round up called Scalitovision, spanning the Blogosphere spectrum, open to all sides and focusing on the best voices from around the Blogosphere.
He had a proposition. The proposition was to unite the liberal and conservative spectrum of the Blogosphere, initially in opening up the information and communication flow, and exchange of links, regarding Judge Samuel Alito's election to the Supreme Court. I was keen to stop the filibustering Democrats in their tracks, and listened very intently.
Little did I know that I had started something that finished up on CBS News as: 'Went To The Blogosphere To See A Fight And Civility Broke Out'. Read on....
My immediate reaction was: great idea, noble and elegant suggestion, far reaching but smart, idealistic but perhaps not insurmountable, most of all visionary; my morning after reaction is: what an incredibly difficult proposition, what on earth was I thinking, and how will we ever achieve it, when perhaps the greatest minds in America have failed; finally or should I say foremost of all how can we parse the ginormous subject of abortion, with any kind of hope for consensus.
The revival of communication between the right and the middle of the Blogosphere surely needs to start with the establishment of mutual respect, then mutual understanding of what each other's issues are, then one can identify the issues on which one can make common cause.
The immediate cease-fire on insults is imperative. The insults in principal wouldn't be a problem if it weren't for the fact that we suspect the other side really means them -- if there is a solid base of mutual respect, then one can tease each other, which is very healthy, but the base has to be there first.
The two sides don't respect each other. How do we get across that barrier : "evil", "moonbats", "buy this t-shirt, annoy a liberal" etc. Well for a start that leaves Michelle Malkin wondering what to call the liberals, what to write in general, and most of all how to promote her new book on liberals published yesterday which needs to sell copies...She has however got a very good point, as the insults from the liberals have been equally nasty: "fascist", "war mongers", all the words to describe every part of the human anatomy....
Next on the agenda would be to see what points we do agree on and link each other when discussing those. That should thoroughly confuse the left, and get them wandering if nothing else. Then we need to deal with issues that we don't agree on, and see which ones we can concede and which ones we simply cannot. And after all that commotion back and forth, we will no doubt end up where we started, namely the almighty abortion issue.
Therefore the only way forward in all sincerity, is to take a deep breath and deal with the emotional issues first. Emotions determine the issues and set the agendas, and it is that common ground which we should strive to achieve.
The questions to put forward to both the liberal and conservative spectrum are:
1. What about this nomination makes you feel threatened?
2. What about this nomination makes you feel hopeful?
3. What about this nomination annoys you?
4. What about the Supreme Court in general upsets you?
5. What about the Supreme Court in general gladdens your heart?
6. How can you see a compromise on the abortion issue (I mean the question itself is a contradiction in terms)
Michael J. W. Stickings, who got me into this mess in the first place (just kidding Michael it's a noble idea), has this to say:
"Disparate elements of the political blogosphere united for a brief time around the Harriet Miers nomination, but President Bush's recent nomination of Samuel Alito to replace Justice O'Connor on the Supreme Court has renewed hostilities between left and right and returned the blogosphere to a medium of warring echo chambers blustering on the extremes.
The blogosphere should be a network of information and communication, a place for diverse voices to be heard, for opinions popular and unpopular to be debated and considered. It should be a place where we learn from one another and where we have our opinions challenged by the best voices from across the spectrum. Instead, it is often a state of nature where only the loudest and most extreme are heard and where the voices of reason and contemplation are drowned out by partisanship and ideological fervor.
The blogosphere's greatest strength, its unregulated diversity, may also be its greatest weakness.
Now, with the Alito nomination, as with the Plame leak, the war in Iraq, and other such divisive issues
and stories, we find ourselves subjected once again to juvenile name-calling and the general debasement of political discourse. But there are also intelligent, thoughtful voices out there, and those are the voices that must be heard above the din of extremist rhetoric.
No one has all the answers, but it is within our power to ask the right questions.
The Alito nomination is but one story among many -- right now, the big story. But initial reaction to the
nomination, and to Alito personally, serves to remind us that it is much easier to cast stones than to work for greater understanding. You may support Alito, but do so on the merits, do so without succumbing to name-calling and negativity. I may oppose Alito, but I may do so on the merits as well.
Passions will flare, of course. There is much at stake here, not least with hot-button issues like abortion in play. But let us not lose sight of the possibility of the blogosphere to foster dialogue even among those who disagree on the fundamentals. It is too easy to wallow in the comfort of your own particular echo chamber, surrounded by those with whom you have no disagreement, for self-vindication is a powerful drug. But I urge everyone to break free of their echo chambers and to listen to what others are saying. That's the beauty of the blogosphere.
In the end, you may still disagree with those other voices out there, but at least you have allowed
yourself to be challenged by diverse opinions and perspectives.
All of us, it seems to me, should work for that kind of civility in the blogosphere."
As these next few days develop, it would be great to have your opinions and preferably agreements on this delicate issue. It is important to bear in mind that electing Judge Samuel Alito should be our foremost focus, and that opening channels of unbiased and respectful communication is the first step in attaining that Scalitovision 2005.
Read my article on the nomination of Judge Alito : The Coming of The Apocalypse for The Left.
UPDATE: I am only just now in the process of alerting some heavyweights in the Blogosphere, and will be updating you as their posts, comments and e-mails arrive.
The First is Joe Gandelman @ The Moderate Voice, who has written a post :
"The nomination of Samuel Alito promises to cause many pajamas to be wrinkled as bloggers stay up until the wee hours of the morning, writing posts and posts about it...particularly as the issues swirling around him become more heated.
Bloggers on the left, right and center see blogs as potentially playing an influential role in the ongoing debate.
Here's a fascinating, must read post on what's being discussed by some bloggers and how they see their role, in accordance with their particular beliefs."
David Schraub has posted a comment below to agree in principle that a more civilized dialogue would be welcomed, but that he does not believe that Michael had in mind to join forces in order to come to a consensus on the election of this nominee.
I am not sure what the alternative would be other than an endless debate in a double echo chamber, resulting in agreeing to disagree, and be polite in the process. Surely at this stage the idea is to find ways in which we can agree on this nomination. We are in the process of hearing the SECOND nominee to the Supreme Court. At some stage we have to look at what is good for the country as a whole in respect of the outside world, which believe it or not does exist.
None of us have a choice as to who is nominated. That prerogative lies with the President. The U.S. President at the moment is a duly elected Republican, who has nominated a SECOND nominee to the Supreme Court.
At this particular juncture to vote another superbly qualified nominee out, I believe is counter productive, for the country. Especially not in return for some endless dialogue, even if it is polite, which will by definition result in an echo chamber, and where you are already predisposing that you could not vote for Alito no matter what. You have to work towards a realistic goal.
Ideally we should start with what we've got. We have Judge Samuel Alito. The idea is to find consensus, and to do it in a respectful way. If there are reasons why you cannot support this nominee, then say what they are, and let's try to work them through to achieve a mutual goal and not simply to endlessly debate a hypothetical THIRD nomination.
Patrick Belton @ Oxblog has sent an e-mail promising to respond and so has Eugene Volokh @ The Volokh Conspiracy, who is his usual busy self.
FURTHER UPDATE: Susan Olasky @ Worldmagblog has posted on the subject and called it "A Civil Debate':
"Alexandra at All Things Beautiful is trying to foster a more civil discussion of the Alito nomination among bloggers. Here's a nominee, who by most accounts, has earned the respect of academics, lawyers, and jurists across the political spectrum. So wouldn't it be something if we actually honored the nomination by discussing it in a respectful way, without resorting to name calling and distortions. Alexandra proposes a few questions to get the conversational ball rolling."
Darling Kevin Aylward @ Wizbang sent an e-mail to say that he's posting.
Ann Althouse wasn't keen on the questions...and politely declined. She has two great posts on Alito here and here, which shouldn't be missed.
George Berryman @ Alamo Nation has linked with a post, but says I am not going to like it, I think "Off with their heads" is how he summed it up. I love George, a no nonsense blogger, who tells it like it is, always.
Doug over @ Below The Beltway just e-mailed to say he will be posting on this later this afternoon, and Memeorandum has also linked to this post.
Hugh Hewitt has an interesting link: "The Christian Science Monitor looks at Judge Alito's record in cases involving abortion. The conclusion: He's a superb circuit court judge who is applying the law as the Supreme Court has announced it. Anyone purporting to know how Judge Alito will rule on abortion -related cases as a member of SCOTUS is making it up. Period." Thanks Hugh, just what I was looking for!
The Anchoress has posted a long and thoughtful post , one of her usual gems, and on our subject 'Alito and The Diplomatic Blogosphere':
"Alexandra at All Things Beautiful,
one of the most unique spots in the blogosphere, is experimenting with
a rather unique idea: Discussing the SCOTUS nomination of Judge Samuel
Alito, within the blogosphere, both left and right, without name-calling, hysterical rants or invective. A brave idea!"
UPDATE: Doug @ Below The Beltway has just posted:
"Over at All Things Beautiful,
Alexandra asks if its possible for liberals and conservatives to have a
civil debate over the nomination of Judge Samuel Alito to the Supreme
Court. After thinking about the issue, my own opinion is that while
such a civil debate is possible, it is highly unlikely given the highly
charged nature of political debate in America today.
[...]
Instead of just interpreting the law, the Courts are now the drafters of social policy. Why do you think that the annual pro-life and pro-choice rallies that take place in Washington, DC pass by the Supreme Court?"
FURTHER UPDATE: The CBS News has just posted about this article:
'Went To The Blogosphere To See A Fight And Civility Broke Out'
"The Anchoress tips us off to a possible effort underway at All Thing Beautiful to join the left and right halves of the blogosphere in a respectful, civil discussion over the Supreme Court nomination of Samuel Alito. Can the world of blogs survive?"
The great, and ever determined in his relentless resolve, Matt Margolis @ Blogs for Bush mentions this article in his Confirm Alito Coalition.
One of my all time favorites and a permanent interesting and informative read, Tom Maguire posts as an update:
"By odd coincidence, a positive thinker at All Things Beautiful has a beautiful idea - maybe bloggers can exchange ideas across the political spectrum without a lot of name calling. Although her specific interest is the Alito nomination, the concept could be extended - maybe a Network of the Nice, or some such.
Love the idea, plan to come back to it."
I am trying to remain positive Tom, I really am.
Kevin Aylward @ the fabulous Wizbang just posted 'What if peace broke out in the Alito confirmation process':
"Alexandra von Maltzan at All Things Beautiful wonders what would happen if all sides in the debate on the Supreme Court nomination of Judge Samuel Alito were, for lack of a better term, civil. No more name calling, insults, race/religion/sex baiting, etc. Sounds like a good idea, right?
[...]
"It is said that consumers vote with their wallet. In the case of blogs, consumers vote with their eyes and keyboards. For civility to breakout in the process readers, not bloggers, will have to affect that change by averting their eyes from invective and toward civil debate."
ANOTHER UDATE: My dear friend Jeff Goldstein, named the 'Thomas Mann of the Blogosphere' (incidentally by me), mentions this article ( I am the 'allowing for good faith' link), within the context of his discussion on Kevin Drum's attacks on Judge Alito:
"Kevin’s superficial analysis is long on ascribing motive and short on allowing for good faith—and so represents a method of argumentation that is quickly becoming the standard tactic of many left-leaning political commentators"
Media Lies posts an article, not wanting to get involved until it has a more informed opinion about Judge Alito's nomination, but had this to say in it's article about this subject: "I am a firm believer that the more the federal government intrudes into our daily lives the less power we have. [...] The amount of freedom we have is inversely proportional to the amount of power we concede to the federal government.[...] I want judges who understand that and have the courage to say, "This is a legislative matter. The Court has no power to rule in this case and will not do so." "
The WaPo has more ammunition today. They were bound to come up with something new, and the racial issues are always a front row ticket.
John Hawkins @ Right Wing News has a 'Conservatives Vs. Liberals On The Role Of A Judge: The Strip Search Case', and I have put forward this issue for his Friday Q&A.
FURTHER UPDATE: A quick round up of events thus far. An overwhelming majority of my conservative blogger friends, who did respond via e-mail, but did not wish to be quoted, felt that they were absolutely fed up with the liberals and did not wish to engage in pointless rhetoric. Experience has told them that the liberals simply wish to whine and go on and on debating, and winging. Even a dialogue that excludes insults does not take away from their lack of co-operation in matters that involve taking a firm stand (other than abortion), and therefore endless dialogue, the conservatives say they have no time for, unless it serves to introduce a conclusion, such as the election of the nominee we have on the table. According to them it is apparent that the liberals are either sitting on the fence, or aiming to discredit the present nominee, which inherently suggests that they have another one in mind? The conservatives say that they are not interested in wasting their time in what they think is a noble albeit fruitless endeavor to join forces.
Michael Stickings @ The Reaction, who is "proud to be a liberal", and whose aim is to unite forces of communication, posts an article explaining the liberal point of view, but is careful to stress that he is not asking his liberal readers to elect Alito: "Let me be clear about something: I am certainly not suggesting that we liberals and moderates capitulate and support the Alito nomination without reservation. Alexandra have linked up, but we don't necessarily agree. I was anti-Miers, she was pro-Miers. She's pro-Alito, I'm withholding judgment despite serious concerns about his hardcore conservatism and the potential tipping of the balance of the Court well to the right."
Michael also posted on The Moderate Voice our unified aim: "It's our attempt to reach out beyond the usual echo chambers of the blogosphere and to encourage a civilized discussion of the Alito nomination (and hopefully other issues that divide us so deeply)."
So far, although it's early days, it has not even been 24 hrs, I see this entire exercise as a "BACK TO SQUARE ONE" certainly from the majority of the conservatives' point of view, and as far as the liberals are concerned, civility is required but the rhetoric still remains. The overall aim according to the conservatives on and off the record, is to simply carry on engaging in much of the same discussions as before.....I shall not give up as yet, being an incurable romantic at heart.
In the final analysis CBS News had the best title covering my article: 'Went To The Blogosphere To See A Fight And Civility Broke Out'. I guess you have to laugh...
Kevin Aylward has e-mailed to say he is writing a post. I shall keep you updated through the night zzzzzzzzzzzzzzzzzzz. And true to his word, he has, And I have linked to it a few paragraphs above. I didn't want you to be too far down Kevin, just in case anyone went to sleep after my long blurb.
ANOTHER UPDATE: One of the uber-bloggers sent me a long and thoughtful e-mail (I will have to clear with him whether I can publish his name), and weighed in with some smart observations:
"Something to keep in mind - it would be qiuite odd to criticize the DNC or RNC (for example) for failing to reach out to the other side - their whole mission is to energize the base and raise money (i.e., raise blood pressures and money).
And many leading blogs (more on the left) are just activist agit-prop sites
doing the same thing."
FURTHER UPDATE: PoliPundit weighs in on why the left should oppose Judge Alito :
1. He’s a conservative replacing a swing Justice
2. He’s a white man replacing a woman
3. He’s a member of the Federalist Society
4. He wrote the pro-life dissent in Casey
5. Harry Reid warned President Bush not to nominate him
If, despite all this, Alito is confirmed, then Democrats will finally have to come to grips with the fact that they’re the minority party, that their opinion matters not a whit when it comes to judicial nominees. This will probably cause Ted Kennedy’s head to explode."
Well we are not concerned with Ted Kennedy today, he is not a liberal. And no, there isn't a Part II coming up titled Civility with the Democrats!!!
Open Trackbacks: Mudville Gazette , The Political Teen, Wizbang My Vast Right Wing Conspiracy, Publius Rendezvous, Stop The ACLU, California Conservative
I don't have anyone to add to the conversation, but I do have a general list to exclude. Exclude any individual or group that repeats talking points from either political party or establishment. If they can't come up with opinions on their own, don't let 'em in.
If they relentlessly defend the president, or any member of the administration, or if they relentlessly defend a democratic candidate past or present, they are two entrenched in their beliefs to be able to think about common ground or talking civilly. There are just doing the dirty work of the politicos in power, and no better then the bile spewers.
Sorry, just read a right wing blog,and it sent shivers up my spine in fear.
Jim R
Posted by: Jim R | Monday, November 07, 2005 at 04:47 PM
Kenny,
I just checked out Crooked Timber, and I like what I see. I will keep on reading them and add them to my list, thanks for that.
Posted by: Alexandra | Saturday, November 05, 2005 at 02:57 AM
Kenny,
I like Brad De Long, although he has a little too much commentary on economics at times, when he addresses a subject he is thorough, interesting, has a global view, and is well worth the read.
Mathew Yglesias is genuinely insightful and thought provoking, and even when you don't agree with him his reasoning is solid and certainly merits respect.
There is also a libertarian blog run by some Redneck nut, it's called Redneck Peril. I would say it is the best all rounder read in the blogosphere on subjects that range from adoption in Kazakhstan to the war in Iraq, to the Five Languages of Love, and back again to Theology, the spirituality in Christianity, to name but a few. Eloquent, thoughtful, and thought provoking, the super intelligent author grasps the essence of varied subjects and dissects with vigor and undeniable reasoning, that ingratiates him with the conservatives and liberals alike. A truly not to miss read.
I also must not forget The Volokh Conspiracy, which I read and comment on often, with Eugene Volokh, Orin Kerr, David Bernstein et al. Although not strictly liberal as such I would say more libertarian like Glenn Reynolds really.
I have yet to satisfy my occasional hunger for fashion sites, or sites that generally deal with a little more varied girly subjects. On this note I should mention Manolo for Men (I don't like his site for women, knowing Manolo Blahnik (the uber-shoe maker) personally for some 30 years, I find the site does not do my hero justice). The problem with including a Manolo anything site (they have about 8), is the fact that there seems to be a language gimmick which may interfere with dialogue.
Posted by: Alexandra | Saturday, November 05, 2005 at 01:31 AM
Alexandra,
Like the list, but strikes me as rather heavily skewed to the conservative side...what do we have in the way of liberals, anybody? I do like Crooked Timber myself.
Posted by: Kenny Pierce | Friday, November 04, 2005 at 06:28 PM
Kenny,
On the question of reasonable bloggers, other than the divine Anchoress:
Ed Morrissey (Captain's Quarters), Hugh Hewitt, Tom Maguire (Just One Minute), both Susan and Marvin Olasky (Worldmagblog), Kevin Aylward (Wizbang), Doug Mataconis (Below The Beltway), Glenn Reynolds. I will have to say Jeff Goldstein (Protein Wisdom), although he does not suffer fools gladly, but then neither does Tom Maguire. Ann Althouse who is one of the best true bloggers out there, is a no nonsense lady and again does not take empty rhetoric lightly. Her podcasts are excellent and well worth the listen. And finally Alex at Sigmund, Carl & Alfred, but if you don't make the grain, she will mow you down like an overgrown lawn, so you had better know what you are talking about!
Posted by: Alexandra | Friday, November 04, 2005 at 05:19 PM
Some would say the elections were rigged, and stolen.
No, no, Jim, I'm talking about Washington, D.C., not the state of Washington.
Posted by: Kenny Pierce | Friday, November 04, 2005 at 05:07 PM
You know, I just actually made this comment over at Ann Althouse's blog, which I will shamelessly cannibalize here:
Oops. Can't find it. Don't remember which Althouse post it was on.
Anyway, gist was that it's pointless to argue about which side is meaner and nastier and bigger jerks, because the answer is always the same: whichever side's been losin' lately.
What you can do is ignore the jerks and collect people who aren't. Jim, what's your opinion on Crooked Timber?
Posted by: Kenny Pierce | Friday, November 04, 2005 at 04:43 PM
"“which seems to be to be most recalcitrantly and adamantly unwilling to accept the fact that the People voted them out of power in Washington" Some would say the elections were rigged, and stolen. See Harpers None Dare Call It Stolen :)
Compromise may not be the best term to use. Consensus, agreement, etc. Not necessarily getting to "we all like" but at least, "we can live with." It seems all to often, we get two sides arguing - can we find a third option totally palatable and agreeable to both sides? At this juncture, I don’t think we can. It would take an individual who is truly a bridge builder to take this on. There aren’t any in Washington, with the exception of maybe Barak Obama.
As with the mean and nasty stuff, one last comment here. There is mean and nasty on both sides. I have tried to avoid reading anything by anyone I figure is spewing entrenched uglyness from both sides. I don't know who to invite. Micheal Stickings, obviously, Pastor Dan at StreetPophets, Bullmoose I think has already been mentioned, and others depending on the topic.
Kenny: I still can't remember how to do links right, and never will, so just put up with this weak link.
jimr
Posted by: Jim R | Friday, November 04, 2005 at 02:10 PM
I'll tell you one suggestion: enough with the "there are mean and nasty people on the other side" stuff...I agree that Ann Coulter could no more carry on a civil conversation with a liberal than she could incubate a penguin's egg with her armpits, and the same goes double for 99% of the commenters over at Daily Kos land, where the rivers of bile never suffer from drought. So? Just don't invite Michelle or Ann or Molly Ivins or the Kossacks to the serious-discussion table, that's all. The Anchoress and Jeff Jarvis, to name just two, seem to me each to be quite civil when they dissent, as a general rule (no doubt they have their snarky moments but then we all do). So, how's this: instead of our listing the people on the other side we think are jerks, could we build a list of people from different perspectives that we think seem more or less reasonable, most of the time?
I've started the ball with Jarvis and Her Anchorship; somebody else's turn now...
Posted by: Kenny Pierce | Friday, November 04, 2005 at 12:58 PM
I had started to write something positive about "Can't we all just get along," but it got sidetracked into why I think many progressives/liberals/moderates will have trouble with many on the Hard Right (as you said above, what will Michelle (or Anne C) have to say, then?).
Many on the right don't *want* a "dialog." They want a no-holds-barred knife-fight-to-the-finish.
Not all, not even most.
But enough who are vocal, and have "access," to poison the well.
For what it's worth, my musings are here:
for the "tease," and
>for the full text
Posted by: C. McDonough | Friday, November 04, 2005 at 12:39 PM
Hm, I don't tend to blame the Court for deciding cases against my side -- when I get mad at the Court it's for the way they decide a case, for the quality (or blatant lack thereof) of the reasoning, for the inconsistency of method...in other words I can generally distinguish between somebody who honestly disagrees with me and somebody who dishonestly disagrees with me, and the Supreme Court of the last few decades has -- it seems to me -- made a career out of dishonest disagreement. Disagreement fascinates me. Dishonesty, by contrast, moves me to contempt. And I must say that I have not been fascinated by the last half-century's Supreme Court. ;-)
In what respect do you want the President to "compromise"? This is a word that I think you're using differently from the way I would use it; so I'm not sure what you mean by it and therefore not sure I agree. Would you consider Roberts a "compromise" nomination? Would you determine whether a nomination was a compromise based on whether Senate Democrats said, "Okay, this is a candidate we like?" or what? I mean, how can we tell whether any given candidate is a compromise candidate or not? And how much responsibility does the Democratic segment of the Senate (which seems to be to be most recalcitrantly and adamantly unwilling to accept the fact that the People voted them out of power in Washington) have for cooperating in the compromise? A compromise, after all, takes good intentions on both sides.
Posted by: Kenny Pierce | Friday, November 04, 2005 at 12:32 PM
Kenny,
I don't think it is the court's problem to restore confidence. It is up to the elected officials to do this. As long as we have a president that feels there is no need to compromise, we will always have contention. The court's job is to decide cases. The officials job is to put judges on the court that can do that effectively. Don't blame the court for deciding cases agains the way you want. Blame the elected officials who put them there.
Posted by: Jim R | Friday, November 04, 2005 at 12:12 PM
Jim,
If the nomination process was truly a compromise, NON-partisan rathern than BI-partisan we would all be better off.
Boy, absolutely, I'm standing and applauding. That's a big part of what I'm getting at by saying that the Supreme Court's greatest asset is the People's confidence that it will judge impartially rather than with a stacked deck -- once that confidence is gone then the nominations can't help but become a partisan tug-of-war, which just appalls and disgusts me.
So I guess one big question is, how does the Court go about restoring that confidence? Especially since you don't seem to have any more confidence that Supreme Court Justices are impartial than I do...any ideas? How do we get back there? Or am I wrong to think that there was ever a time when the People respected the Supreme Court's integrity and impartiality?
Posted by: Kenny Pierce | Friday, November 04, 2005 at 11:44 AM
Kenny said:
"I wouldn't think that liberals would want to live in a world in which a conservative majority on the Supreme Court suddenly started announcing that all sorts of pieces of the partisan Republican platform were actually implicit in the Constitution and that liberals throughout the country would henceforth have to live under those new rules"
Doesn'this go both ways? My whole point about this is that it depends on where you stand. If the nomination process was truly a compromise, NON-partisan rathern than BI-partisan we would all be better off.
Posted by: Jim R | Friday, November 04, 2005 at 11:28 AM
1. What about this nomination makes you feel threatened?
I believe this administration is beholden to the religious far right. I do not think that W has a compromise bone in his body. I think it showed with Dobson saying he was consulted on the nomination of Miers, before the she was nominated. The nomination process should be non-partisan, and it will always be partisan. I think the government works best when the legislature is one party, and the executive branch is another. I fear the tyranny of the majority when one party has both. I think the whole nomination process is politicized, and anytime there is an us Vs them everyone loses. This did not start with Bork, it started way before that.
While the filibuster is not a Constitutional item, I think it is an important tool. Both sides use it, I think it is a good senate rule. It forces choices to be compromises rather then pandering to an extreme agenda – to either side.
2. What about this nomination makes you feel hopeful?
Not much. I only have a hope that he really will put his personal beliefs aside, and rule on the law based on constitution and precedent, and not preconceived political agenda.
3. What about this nomination annoys you?
It all started with the Sandra Day O’Connor, with John Roberts as coach, we will get to many “I can’t answer that” answers. I think the best nominees come as a result of true advice and consent, and compromise, not ram this guy down their throats.
4. What about the Supreme Court in general upsets you?
Not much. I think many decisions go extreme, and eventually swing back, and eventually settle down. I think the entire process has been hijacked by a single issue. There are so many more issues to be resolved than just abortion. I would be interested in how a justice sets priorities - individual rights Vs. group rights, states rights Vs. federal rights, right to privacy Vs government intrusion, and these are just a few.
5. What about the Supreme Court in general gladdens your heart?
I am not sure I would use the term “gladden your heart” but … The Supreme is a true representation of what framers of the constitution had in mind. Stability of government. With two houses in the legislature that get voted in on differing time periods, and a presidency that is separate and voted on separately, and an independent judicial branch, with this we have a guarantee that we have a stable government. It becomes very difficult to overthrow the government.
Given the wide political spectrum in the United States, everyone is bound to disagree with something sometime. There are people who just flat out find the worst in anything. They will always be angry and in fight mode. I find these people have hijacked a lot of the discourse. I cannot and will not read anything by Ann Coulter as a result. I think the 66 percent of the people who are in the middle really don’t have a voice.
6. How can you see a compromise on the abortion issue (I mean the question itself is a contradiction in terms)
The only way to come to a compromise is to take the legal issues out of the conversation. Planned parenthood needs to take on a role of helping to reduce abortions from a counseling and birth control perspective. The religious right needs to step up and allow sex ed in schools that covers the entire spectrum of sex ed and birth control, not just abstinence, and support birth control accessibility. The fight should not be about abortion, it should be about unwanted pregnancy. It should be about alternatives to abortion, including making adoption easier, and finding better ways to take care of children whose birth parents cannot, don’t want to take care of them. There needs to be much better care around the victims of criminal behavior that leads to pregnancy, including rape and incest. We need to address the problem of kids not being able to talk to their parents about sex. We need to address the overarching problem of domestic abuse. While some of this can be addressed legally, I think all of this is more policy, grassroots problem solving. All sides of the spectrum need to be realistic, and most aren’t.
As long as the fight is legal, everyone loses. My dad was a surgeon working at a big city county hospital in the 60s. One of his most memorable, and impressionable cases was a woman who came in to the ER after a botched illegal abortion. She left the hospital with no ability to have children in the future. Only she knows the circumstances that led to her having the abortion, but because it was not done as a good safe medical procedure she nearly paid with her life. My argument is that if she never got pregnant in the first place, she would not have needed the abortion. But for whatever reason she did feel she needed one. If abortion was legal she would not have had the severe medical side effects she did.
Posted by: Jim R | Friday, November 04, 2005 at 11:26 AM
Man, I just can't shut up...I AM sick.
Okay, here's somebody making the same point I was making about judges who are all over the map procedurally but whose decisions fall reliably in favor of one political faction. That is, in answer to the question, "How can you tell whether a judge is ruling based on his own politics rather than on the law?" one thing you can say is, "A judge who rules on the law picks an approach to the law and follows that rule consistently, even when it leads him to conclusions he doesn't like; a judge whose interest is the imposition of his own politics, decides what conclusion he wants to reach and then, on a case-by-case basis, selects whichever approach to the law will allow him to get to that conclusion."
Here's Robert Alt making precisely that criticism of the Ninth Circuit's relatively shameless Reinhardt. Money quote: "Again, I think that he reaches the right decision based on the law, but I also think that he is disingenuous when he states that the court makes this decision based on law rather than policy preferences. Based on the rank inconsistency in Judge Reinhardt's Substantive Due Process jurisprudence, the only reasonable conclusion is that his decision was predicated specifically on his liberal policy preferences."
My point exactly, Robert.
Posted by: Kenny Pierce | Friday, November 04, 2005 at 10:01 AM
P.S. In case I wasn't clear, Jim: I'd like to hear you go on a real rant. Sock it to us.
Posted by: Kenny Pierce | Friday, November 04, 2005 at 09:48 AM
Jim, I'd love to hear your answers to Alexandra's six questions.
As far as common ground: I wouldn't think that liberals would want to live in a world in which a conservative majority on the Supreme Court suddenly started announcing that all sorts of pieces of the partisan Republican platform were actually implicit in the Constitution and that liberals throughout the country would henceforth have to live under those new rules, unless and until they could muster a supermajority to set them aside. I'll rise up in just as much anger if the Five Catholics say the Constitution guarantees a right to fetal life as I have over the leftist's assertion that the Constitution guarantees a right to abortion on demand.
At any rate, if you want to find common ground, then you have to know what people think the issues are to begin with. What the issues are is determined by what people feel is important...and now, at the very least, you certainly know what I feel is important. Answer Alexandra's questions and we'll see where common ground can be found. Seriously, take a shot at it. You know that I feel strongly about the Rule of Law, and about keeping promises (such as the People's promises made in the Constitution and the Justices' promises to uphold the Constitution), and about the authority of the People over self-appointed elites instead of vice versa, and about the widespread loss of respect for the Supreme Court, and about simple honesty, and about checks and balances. What do you feel strongly about, when it comes the Supreme Court?
Okay, I am now officially in shut-up-and-listen mode. I have a very strong suspicion that when I get over this flu or whatever it is I've been fighting the last three days, I'm going to look back at what I've posted and be horrified...
Posted by: Kenny Pierce | Friday, November 04, 2005 at 09:43 AM
If the Constitution is a "living document", then the day might come that socioloical, economic and obstetric arguments weigh against abortion. If the Supreme Court's membership is supposed to change its views over time, then surely, it is subject to a change of perspective on any issue at any time -- from eminent domain,to whether the President can order limited military involvements without the approval of Congress.
In short, the "Constitution as 'living document'" principle opens the door to a judicial dictatorship. It is this question which must preoccupy us, and no other.
Posted by: fd10801 | Thursday, November 03, 2005 at 11:48 PM
JS Narins,
This certainly sounds juicy upon first impression, but I can imagine a whole host of genuine reasons as to why it may prove to be entirely taken out of context and/or may not necessarily reflect badly or at all on Alito's ethical standards. This isn't meant to defend per se, it's just merely my initial observation based on the content of the article.
This is however precisely the kind of incident and the detailed analysis thereof, for which the confirmation hearings are meant for.
Personally, I hazard a guess, that this will turn out to be something of a red herring.
Posted by: north by Northwest | Thursday, November 03, 2005 at 09:49 PM
I really enjoyed reading your detailed explanations. It certainly has helped me enormously to understand your point of view in particular and the nuances of the debate in general!!! It also highlights, that a debate without a thorough appreciation of the above, is bound to run aground. Thank you!
Posted by: north by Northwest | Thursday, November 03, 2005 at 09:22 PM
NxN,
On the majority/minority: I remember seeing poll data for the first time in, of all places, the New York Times, back when I was delivering it as a way to help pay for my college education. The extremes in both directions are, and so far as I know always have been, distinct minorities. Most Americans are uncomfortable with abortion on demand with no restrictions at all; but most Americans are also uncomfortable with treating all abortions as premeditated murder. Both the vocal pro-life movement and the vocal pro-choice movement represent minority opinions.
I think it was in the Times that I first saw a poll that broke down support for abortion on demand by gender and marital status. Interestingly, if I remember correctly, the group that most overwhelmingly supported abortion on demand were single men; and a majority of women were opposed to it. I remember the categories as falling in this order, from most avidly supportive of abortion on demand to least supportive of it:
Single men
Single women
Married men
Married women
A small majority of men were, I think, in favor of unrestricted abortion on demand; a slightly larger majority of women were opposed to it. I don't know to what extent that would still hold, though it makes a certain intuitive sense from the standpoint of sheer selfishness. (Single men get the best deal out of abortion because they neither are burdened with an unwanted child nor have to run the significant health risks posed by even a "safe and legal" adoption. Back then, too, single men were in general more promiscuous. As rates of female promiscuity have risen this gap may well have closed or even inverted; I wouldn't know.)
What is certainly clear is that there has never been anything approaching consensus on the matter, and certainly that neither the original ratifiers of the Constitution, nor subseuqently anything resembling a supermajority of American voters, has ever agreed to be bound by a Constitutional-level, almost-impossible-to-overturn guarantee to abortion on demand. And that makes the Court's pretense that it is a "Constitutional right" a fraud and a usurpation of power.
Posted by: Kenny Pierce | Thursday, November 03, 2005 at 09:00 PM
Alexandra,
I would imagine at this point it's pretty clear what my answers to your first five questions are:
1. What about this nomination makes you feel threatened?
Nothing, really, because I am confident that Justice Alito will base his rulings on the law rather than on his own political agenda, and will not go beyond the law to pretend that the People have made commitments that they have not in fact made. Thus I have no fear that he will pretend, for example, to have discovered a Constitutional right to fetal life, or a Constitutional obligation to submit all Congressional legislation for ratification by the United Nations General Council, or any such nonsense that the Constitution itself does not in fact address. It's the first nomination I can remember where I have had so little trepidation (not even Roberts's).
2. What about this nomination makes you feel hopeful?
See above. The Rule of Law might yet be resurrected from the dead.
3. What about this nomination annoys you?
The fact that we had to go through the Miers stealth nomination in order to get to this one, and the suspicion that many of Alito's supporters would be quite happy to see him crusade for the right -- that is, that they support him because he is "conservative" in the political sense rather than that he is humble before the law and will not set himself above it.
4. What about the Supreme Court in general upsets you?
[laughing] Well, that should certainly be obvious by now.
5. What about the Supreme Court in general gladdens your heart?
I love the institution as it was originally established. I am absolutely delighted that the Founders had read their Aristotle and knew that majorities could be genuinely tyrannical, and I love the idea of a branch of government responsible neither for creating law nor for enforcing it, but purely for explaining what it means. The Rule of Law is vastly superior to unfettered democracy; though of course even unfettered democracy is superior to judicial oligarchy.
6. How can you see a compromise on the abortion issue (I mean the question itself is a contradiction in terms).
I don't think for a moment the Left Third is in any mood to compromise, which is foolish, because they are a distinct minority and cannot forever impose their will on the conservative and moderate majority. And as long as Roe v. Wade is considered "Constitutional" there's no room for compromise; that was the whole point of the decision -- to give a 100% win to the Left so that they wouldn't have to accept the compromises inevitable in a legitimately democratic process.
But if -- or, rather, when -- Roe is overturned, then I think it is reasonable to expect to see compromises both geographically and legislatively. Geographically, different states will settle at different points on the spectrum, and this will become part of each individual's decision-making process in choosing where to live. As far as compromises inherent in specific laws: there simply will be pretty much universal exceptions for rape and incest, whether or not those exceptions can be logically reconciled to the rationale behind whatever degree of prohibition is imposed by a given law. I think teenaged girls will be widely subject to parental consent (not just notification) -- just as they are in every other major medical procedure -- except in cases where abuse can legitimately be foreseen and a court has acted to suspend parental rights. I think Casey-style paternal notifications (though not consent) will be widely required, and not just for husbands, but for unmarried biological fathers. The general tone in red states will be that both the fetus (who will certainly be considered an individual with human rights) and the mother will be considered to have rights that must be balanced, and perhaps the father as well, and therefore that abortion on demand without cause will be proscribed; the amount of cause required will vary from state to state. Blue states, on the other hand, will allow abortion on demand for pretty much everybody other than teenaged girls or perhaps women with healthy babies late in pregnancy.
There will be one hell of a battle royal over abortion of potentially handicapped children (I believe that at present over 80% of American fetuses suspected of having Downs Syndrome are aborted). I don't know where that compromise would settle.
That's my guess, at least.
Posted by: Kenny Pierce | Thursday, November 03, 2005 at 08:46 PM
I think this article has a lot to say about Alito's lack of ethics.
I can't imagine a good reason why he didn't recuse himself.
Posted by: JS Narins | Thursday, November 03, 2005 at 08:28 PM
Kenny,
Quick question, as I failed to google the answer: How was this majority/minority data established and when was it last polled? What's the percentage split?
Posted by: north by Northwest | Thursday, November 03, 2005 at 08:27 PM
NxN,
...how is it practically possible to ever reach any kind of definitive ruling on any case, which in the end has landed in SCOTUS lap so as to precisely reach such clarification, if a strict adherence to your premise "...judge[s] should shut the hell up and let the people, by means of their elected officials, address the issue" were to be observed?
Because, as the previous, intolerably long post would show if you were so masochistic as to wade through the whole thing (which I certainly don't recommend), the "definitive ruling" to be sought in each case is precisely, "Have the People expressed their will on this issue through the Constitution or its amendments, and if so, to what did they commit themselves?" You cannot reach a definitive ruling on the questions of, "Have women been endowed by their Creator with an inalienable right to abortion on demand?" or, "Have atheists been endowed by their nonexistent Creator with an inalienable right to pay a traffic ticket in person without having to bear the sight of the Ten Commandments hanging on the wall?" Even if the Supreme Court does rule on it, it's still in play as a potential target of a supermajority amendment, or as a field for nonviolent civil disobedience, or whatever. But you can reach a definitive ruling on the questions of, "Have the People of the United States ever bound themselves to guarantee women an inalienable right to abortion on demand?" or, "Have the People of the United States ever bound themselves to protect the sensitive eyes of atheists from the vile and unclean sight of the Ten Commandments hanging on the wall?" In those two specific cases, the answers are patently, "No," and "No." Clearly those answers leave open the questions, "Have women been endowed by their Creator with an inalienable right to abortion on demand?" and, "Have atheists been endowed by their nonexistent Creator with an inalienable right to pay a traffic ticket in person without having to bear the sight of the Ten Commandments hanging on the wall?" But (a) those are not the questions properly posed to the Court, and (b) the reason those questions are left open for the present is precisely that the People have not chosen to close them, and therefore cannot be required to live up to a commitment that they have never made.
At least, you can reach a definitive ruling if the People of the United States are confident that the Supreme Court Justices have honestly tried to figure out what the People of the United States, past and present have agreed to, rather than imposing their own will instead of the People's. That confidence -- the confidence of the People in the impartiality and integrity of the Supreme Court -- is the Supreme Court's most precious possession, the one thing they ought to have guarded above all else. And they pissed it away long ago. If the People believe that a decision was arrived at in good faith, they can be reconciled to following it even if they think the decision was mistaken, because if we don't all follow the rules everything will fall apart. But if the People believe that the Justices themselves are not following the rules; if the people believe that the Justicies are imposing their own will rather than holding the People to their own word, then the People's confidence in the Rule of Law is shattered; and the Rule of Law is what allows disagreeing factions to live out their disagreements without civil war.
For God's sake, look at what the confirmations have become. They are what they are because a string of grossly irresponsible and usurpative decisions have destroyed the People's faith in the integrity of the Supreme Court. The battle is not to place a person on the Supreme Court who will interpret the law accurately; it is to place a person on the Supreme Court who will make the right people win. Just listen to the liberal objections: "He consistently rules on the side of corporations;" "he consistently rules against the environment;" in short, "he consistently fails to vote for us." Because we all know now that it's the Supreme Court, not the People, who has taken over the job of "fixing" the Constitution. For nigh on fifty years now, the fix has been in.
It absolutely sickens my heart.
Posted by: Kenny Pierce | Thursday, November 03, 2005 at 08:18 PM
The definition of tyranny of the majority is in the eye of the beholder -- unless the tyranny in question has been ruled out by the law. If the law has failed to proscribe a particular form of tyranny then the judges are, or ought to be, powerless, because their sole proper power comes from the law. That is one of the fundamental points of disagreement between those who support judicial activism (a possible definition of which is "the doctrine that judges ought to establish justice, as opposed to insisting on conformity to existing law, even if that means unilaterally altering existing law") and those who do not. When you look at Brown vs. Education, are you capable of saying, "Look, even if the Constitution didn't really mean that, the Supreme Court needed to alter it because otherwise the White majority would never have voted to abolish segregation"? If so, then your allegiance is to judicial activism, which essentially holds that there is a higher standard of justice than the mere law and that judges should follow that higher standard. Most of us, I think, would agree that positive law (including the Constitution itself) is often flawed, and that there is a higher standard of Justice, and that it is perfectly possible for the law as codified and ratified to be not just inadequate and incomplete, but downright unjust. But only a judicial activist thinks that that excuses a judge who decides to "fix" the unjust or inadequate law. (As you perceive, I strongly suspect that the Pope is a judicial activist -- at least, I do if the noises he's made about excommunication of persons who "cooperate" with abortion law are meant to extend to judges who might choose to rule in accordance with laws that facilitate abortion rather than to hand down such rulings as the Pope thinks are required by the Law of God.)
I could, if I wanted to, call the anti-abortion regime of the post-Roe years a "tyranny of the minority," with just as much reason as a pro-abortion person could call abortion restrictions a "tyranny of the majority" -- if "tyranny" is going to mean simply "passing laws to which I happen to object." The difference is that the tyranny of the minority, as implemented by liberal judicial activists, threatens the fundamental compact by which Americans have agreed to settle differences peacefully.
A precise definition of judicial activism is no easier to create than is a precise definition of pornography; yet, as with pornography, that doesn't mean there aren't obvious cases. Judicial activism takes place whenever the will of a judge is promoted -- by that judge -- above the will of the People as enshrined in the law that the judge claims to be implementing.
What makes the Consitution valid is not that it is right, nor that it perfectly distills the essence of justice, nor that it is divinely inspired, nor that a judge likes what it says. What makes the Constitution and its amendments valid is the fact that the People ratified it. What they ratified, is what a reasonable person of the period would have thought the Constitution or the amendment meant. It may very well be that since that time new situations have arisen that were not contemplated, and that are not spelled out specifically in the Constitution. For example, when the People ratified protection of the individual against unreasonable searches and seizures, they did not imagine computers and electronic "property." But if Constitutional principles can be extended without recourse to partisan axioms or presuppositions alien to the mind of the original ratifiers and rejected by a plurality of the People now faced with the new situation, then it is reasonable to extend those protections accordingly; thus we can say that electronic data is protected against searches without a warrant issued upon demonstration of probable cause.
What we see with the last half-century of liberal activism, however, is one decision after another that clearly does not reflect the original intent of those who ratified the Constitition and also imposes the partisan axioms of the minority to which the Court majority belonged, over the objections of the People. In such a case, it is idle to pretend that "the People" have in any meaningful sense ratified that Constitutional provision -- and the Constitution's authority derives solely from its ratification by the People.
To take two obvious examples:
(1) It is impossible to pretend that the voters who ratified the Constitution and the Bill of Rights, had in mind extreme codification of a "right to abortion." As the four-judge minority in Casey caustically and unanswerably observe:
Yep. That about sums it up. It is simply impossible to pretend that the American people, either at the point at which the Bill of Rights was ratified or at any time since, have ever supported or consented to the extreme position on abortion rights that Roe pretends is implicit in the Constitution. Not that the liberal Supreme Court bothers to pretend that American people support that position, after all; they give every evidence of considering that the American public's constant willingness to allow restrictions on abortion is (in your words) a "tyranny of the majority," so screw the "tyrants." But if the American people never as a body agreed to that position, then they never ratified it and the Constitution doesn't mean it, and the Supremes' pretense that it does represents a rank abuse of power and usurpation of the People's authority.
(2) The "establishment" clause clearly was not intended by those who ratified the Constitution to proscribe such things as Ten Commandments displays. Nor is it remotely possible to pretend that, at the time the Supreme Court began issuing a string of decisions catering to the desires of the ACLU and similar groups, the People's understanding had changed. The People of this country never agreed to be subject to a legal system that claimed that the Ten Commandments and indeed any other mark of piety had to be banished from the public sphere -- not when they ratified the Constitution, not in the years leading up to those decisions, and not when those decisions were issued. Those decisions were issued without the permission (even implied) of the ratifiers of the Constitution, and over the bitter objections of the majority of Americans. You may very well think that those decisions were the "right" decision by your own personal definition of Justice and by the personal definitions of those whose opinions conform comfortably to your own, but those decisions were made in defiance of the authority of the People acting as a body both past and present, and therefore in defiance of the authority of the Constitution. And the authority of the Constitution is the only authority a Supreme Court Justice has.
What in America we do with the rule of law (or did before the Supreme Court began to run amok), is simply this: the People agree, at a certain point, to be bound from that time forward by certain rules. Some of those rules are contingent solely upon the majority of the People's changing their minds. But by some of those rules, the People agree to be bound by stronger bonds. They agree that once they have accepted those rules, the minority can count on those rules' being followed, even if the majority changes its mind, as long as the majority that changes its mind isn't big enough. But if you get a big enough majority, a super-majority, a Constitutionally-amending majority, then even those rules can change -- but once that super-majority has imposed new rules, then it's stuck with those rules, and the minority can count on those rules being followed, up until a super-majority is constructed on the other side.
This provides true stability and true protection for minority opinions, which has a safe and predictable field of operation, especially since super-majorities take a long time to build. (This is precisely why liberals, who have been a very impatient bunch of people, have objected to having to wait for the pseudo-Constitutional implementation of their policies until they could manage to build a supermajority; it is why they have been so enamored of judicial activism -- judicial activism fights against the "tyranny of the majority," which is another way of saying, "Judicial activism lets us put into place policies that we think are necessary but to which the narrow-minded and selfish majority of our fellow Americans object.") But (1) these rules that provide safe haven for minority opinions are imposed not by God, nor by a divinely appointed king, nor by a super-smart bunch of people who consider themselves to be smarter and wiser and better educated and more morally advanced than the unwashed fundamentalist rabble. No, by the People are they adopted and ratified, and until the People have agreed to them they have no valid legal force. (2) When a self-perceived elite seizes control of the Constitution and begins to impose upon the People policies to which the People objects and that earlier generations of the People never ratified, they destroy the very compact that gives the Constitution its validity and gives them their authority, and they also destroy the very predictability that ensures the safety of minorities. Once the super-rules can be changed at the whim of something less than a super-majority, every minority opinion is in danger, and indeed even the majority opinion is in danger if an unscrupulous minority manages to pull off a coup. In fact the very minority that pulled off the coup no longer can feel safe, because if the majority manages to get the power back they can impose their will just as rapidly as the original usurpers imposed theirs. Nobody can any longer enjoy the stability of known law.
And this is precisely why liberals are now so desperately crying, "Stare decisis, stare decisis, for God's sake we have to respect stare decisis." If conservatives manage to get control of the Supreme Court, and proceed to act with as little regard for the original conspirators' decisions as the original conspirators showed for the precedents they violated and for the common law they ignored and for the will of the people they pretended to serve, then all the gains liberals made in their agenda through the courts can vanish overnight, as rapidly as they made them. Thus we see the odd spectacle of a group of people who want to sponsor judicial activism as long as liberals are in charge, and yet the moment the People give power to conservatives, the decisions of their liberal predecessors must suddenly be given a petrified inviolability that those very predecessors denied even to the Constitution itself. For decades Americans could never be sure what new "right" the liberal-dominated Supreme Court might discover that nobody but the ACLU had ever imagined; for decades you could never be sure what practice that had been followed by generations of Americans from before the very Revolutionary War might suddenly be found to be "unConstitutional" and instantly declared illegal through decisions arrived at by the will of five nonrepresentative and unelected officials but not then reversable save through a nationwide supermajority -- and now suddenly liberals have discovered that "stability" is the summum bonum of the law? I'm sorry, but the day liberalism committed itself to policy innovation through unpredictable judicial fiat ungrounded in the will of the People, is the day it lost any moral authority to appeal to stare decisis.
Can you not see the difference between a Constititional provision ratified by the People and a Constitutional provision invented by a "creative" five-person Supreme Court majority? Can you not see that if there is any place in all of the government where innovation at the will of a few individuals absolutely must be anathema, it is the one place where a decision once made cannot be set aside by the People except by a supermajority? If a majority of American men and women were to decide that women should not vote, that would just be too bad -- because at a certain point in the past, a supermajority of American voters decided that women should vote, and agreed to guarantee women that right. If (as in the case of Prohibition) the majority changes its mind now and decides, "Oooh, we shouldn't have done that," too bad; unless of course they can build a supermajority to release themselves from their obligation. If 55% of American voters in every single state of the Union vote tomorrow to deny women the vote, and the next day the Supreme Court says, "Too bad, they have a Constitutional right to vote whether you like it or not," that is just the Supreme Court doing its job. The People agreed to be bound by that rule, and if they regret it now they can put together a supermajority or else just live with the regret as best they can. But the American people never at any point, in any meaningful sense, ever agreed to guarantee the right to abortion on demand. And the Justices in Roe v. Wade knew that perfectly well -- and didn't give a damn, 'cause they believed themselves to be overthrowing the "tyranny of the majority," and they were sufficiently self-enamored as to believe that their own Towering Wisdom, along with their good fortune in finding themselves in a position of readily abused political power with clearly inadequate checks and balances on that power, freed them from any constraint in imposing their will on a recalcitrant and uncooperative and unenlightened People. That is judicial activism.
When a small and unrepresentative minority abuses such political power as it has managed to acquire in order to impose its own policies upon all those who are so unfortunate as to be subject to their power, over their objections and without any valid authority so to do -- well, what exactly do you mean by the word "tyranny"?
Posted by: Kenny Pierce | Thursday, November 03, 2005 at 07:51 PM
Kenny & Jim R,
This seems to be truly the case. At least this is my impression since following this whole issue. The procedural argument seems rooted in fact and is thus certainly compelling, but how is it practically possible to ever reach any kind of definitive ruling on any case, which in the end has landed in SCOTUS lap so as to precisely reach such clarification, if a strict adherence to your premise "...judge[s] should shut the hell up and let the people, by means of their elected officials, address the issue" were to be observed?
Posted by: north by Northwest | Thursday, November 03, 2005 at 07:38 PM
People vs. Judges vs. elected officials. hmmmmmm. " let the people, by means of their elected officials, address the issue" We have seen the present and it does not work. We have seen the enemy and he is us.
So when a tyranny of the majority sets in, elected officials are always right? I think not. I may be wrong but aren't most lawsuits people against people, or people against elected officials? Judges, many elected, (not SCOTUS) have to figure out which people are right, and which people are wrong. In SCOTUS, the elected officials - elected by the people - put them there. They are no more out of control then the people who elected the officials that put them there.
I read your definitions and agree to what they say. I am not sure I agree with your examples (damn leftist of me huh?). I will think on it. One difficulty I have with this discussion is again, it depends on which side of the fence you are on whether the judge is activist or not. How can we prove how they came up with a decision? And that my friend is what this whole discussion is all about.
Posted by: Jim R | Thursday, November 03, 2005 at 05:33 PM
Having said that:
If the framers were precognizant, they may have included specifics like abortion. They weren’t so they didn’t. It was left to a judge nearly 200 years later.
Right there. Right there in a nutshell you have the difference. It was not left to a judge 200 years later. No, no, no, no, no, no, no, a thousand times no, nyet, me genoito, mais absolument non. It was left to the People. There is a procedure set out by the Constitution by which any deficiency in the Constitution is to be remedied, for God's sake, and it bloody well does not involve "a judge realizes that the Constitution doesn't address something he thinks it should have addressed so he announces that it says what he thinks it should have said to begin with." That is precisely the difference between judicial activism and judicial restraint. If the Constitution doesn't address it, that doesn't mean an appointed-for-life, out-of-control judge should leap in and fill the gap; it means the judge should shut the hell up and let the people, by means of their elected officials, address the issue.
Also stare decisis (1) is not as important as the Constitution itself and (2) is fatally undercut when the established precedents came from judges who did not respect the Constitution itself. Otherwise if you manage to get five grossly irresponsible Catholics on the Court to say that the Constitution requires all citizens to be baptized in the Catholic Church and attend Mass, then all responsible justices who follow must uphold that precedent in defiance of the Bill of Rights. Which is, if you'll pardon me, absurd. Respect for precedent must assume that the precedent was set with respect for the Constitution.
As far as standards for what constitutes judicial activism: well, one clear sign is when a judge swings wildly from one method of interpretation to another in order to get the desired results. Try reading some of the Brennan/Warren Court opinions on the Second Amendment (where suddenly the Court is desperately determined to stick to the most restrictive possible view of the original intent of the authors, in defiance of what the Federalist Papers show the actual intent of the authors to be), compared to the "emanations" and "penumbras" resorted to in order to conjure up a Constitutional guarantee to the right to abortion. The only consistency among those opinions is that where the Court of that era thought people ought not to have a particular right (such as to carry guns) it would use whatever approach to interpretation it found most convenient to circumscribe and abolish those rights; whereas where that Court thought people ought to have a particular right (like abortion) it would use whatever approach to interpretation it found most convenient to expand and establish those rights. It is simply not possible to read a wide variety of the opinions of the Court of that era and not see that the Court would first determine the desired result, and then adopt whatever approach would yield that result; rather than having a consistent approach that would bind the Court in such a way that it could not arrive at whatever conclusion it found convenient. And that, my friend, is one very clear mark of judicial activism: when the political orientation of your decisions is markedly more consistent than the reasoning and methodology used to get there.
Judicial activism is result-oriented: you decide what is right, and then find a process that lets you reach the desired result. Judicial restraint is process-oriented: you decide what process of interpretation is most faithful to the will of the People as codified in the law, and then you follow that process to whatever result it leads to whether you like the end result or not.
Posted by: Kenny Pierce | Thursday, November 03, 2005 at 05:13 PM
Kenny, what happened to the attempt to get to common ground? Oh yeah - we're all jerks. :)
Posted by: Jim R | Thursday, November 03, 2005 at 04:57 PM
[grinning] I know my description was biased. On this one I'm not impartial and not pretending to be...
Posted by: Kenny Pierce | Thursday, November 03, 2005 at 04:53 PM
Jim,
I don't think his being in the minority is particularly troublesome, simply because the court he's been on for years is notoriously one of the farthest left-leaning courts in the nation. A centrist judge on that particular court is going to be in the minority from time to time.
As far as how often he's been overruled: the raw numbers aren't worth much. The real questions require us to examine his rulings, and the Supreme Court's explanations of the bases on which he was overruled. For the real questions are:
1. When he has been overruled, did the Supreme Court, in the process of overruling him, alter their own precedents? If the Supreme Court discovers that Alito's faithful application of their precedents leads to a result they don't like, so they alter their rules to get a more palatable result, this reflects badly on the Supreme Court's ability to set enduring precedent, but not on Alito's interpretation of the former precedents newly set aside.
2. When he was overruled, did the overruling majority (or, as is actually most often the case, the overruling plurality) have to drag in extra-Constitutional partisan assumptions in order to justify overruling him? If that is the case, then it is again the Supreme Court that deserves criticism, not Alito.
See, your standard rather begs the question of whether the nine people who have recently been on the Supreme Court accurately represent the "mainstream" either of the judicial community or of the nation at large. Considering that "mainstream" is a word that partisan Democrats have coopted to mean "would keep giving us opinions favorable to the far Left even though the American people have rejected the leadership and principles of the far Left at every electoral level," that's a pretty significant petitio principii. Conservatives would argue fiercely that it has been the Supreme Court that has been miles out of the mainstream over the past half-century, and that they are trying to bring it back toward a more reasonable middle ground.
It raises, though, a very interesting question: what is the judicial mainstream? If the Supreme Court (thanks to a perverse nomination process that has been heavily skewed toward leftist activism for the past forty years) is significantly further to the left than are the other levels of the judiciary, then the majority of lower-level judges will provide largely leftist opinions more often than not, simply because they are bound by Supreme Court precedent. This will make the "mainstream" appear further to the left than it really is. In fact, since a characteristic difference between leftist judges and judges on the right is precisely a difference in philosophy as to the extent of judges' discretion in subjecting everybody else to the judges' personal views of right and wrong -- since leftist judges have in recent decades seen themselves as holding the prerogative to decide what ought to be the law rather than what the law actually is, while conservative judges consider themselves bound by the law -- a far-left Supreme Court can push the lower judiciary much farther to the apparent left than could a far-right Supreme Court push the lower judiciary to the apparent right, simply because the lower-court conservative judge is much more likely to consider that he is constrained by Supreme Court decisions he finds distasteful, than is the lower-court liberal judge.
At least, that seems to me to be the lesson of the past thirty years.
Put it this way: an extreme leftist judge is willing to set aside the Constitution's original intention as ratified by the people, and replace it with his own ideas of right and wrong. (I have heard that Thurgood Marshall once said, "The Constitution was flawed, but we fixed it," which would be a remarkably frank admission of abuse of judicial power. But I can't confirm that he actually said it.) An extreme conservative (as in, the kind of conservative who People for the American Way is in haste to assure us is "out of the mainstream") is willing to set aside prior liberal precedent, and replace it with his own ideas of what the people agreed to when they ratified or amended the Constitution. The extreme conservative doesn't respect irrational liberal precedent; the extreme liberal jurist doesn't respect common law, the Constitution, the legislature, the executive, or the People, except insofar as they happen conveniently to support his own personal ex cathedra moral/political agenda. Personally, I think one of these forms of extremism is a heckuva lot more extreme than the other.
Or here's another way to make the same point: a leftist Supreme Court has imposed upon the people of the United States an exceptionally extreme far-left position on abortion. The analogue in the other direction would be a Supreme Court that imposed, equally by judicial fiat, a standard that said that fetuses had an absolute Constitutional right to life that legislatures could not abrogate or threaten. If Alito were to hold the perfectly reasonable position that the Constitution in fact does not address the specific issue of abortion either way, and that therefore until such time as the people choose to address that issue Constitutionally through amendment, the issue was properly remanded to the legislatures of the individual states to work out such compromises as the People might find most palatable -- why, then Teddy Kennedy would call Alito an "extremist." But those justices who imposed the present extreme far-left position on all Americans by judicial fiat? To Teddy Kennedy, they're "mainstream."
Having said all this, I would imagine you think I'm mischaracterizing the judicial philosophy of the Left; by all means feel free to provide what you consider to be a more accurate formulation.
Also, Jim, I presume you know that if somebody's response to your comment is ten times as long as your original comment, they're not really responding to you...you just got unlucky enough to kick-start their hobby-horse... ;-)
Posted by: Kenny Pierce | Thursday, November 03, 2005 at 04:52 PM
Kenny,
"The extreme conservative doesn't respect irrational liberal precedent; the extreme liberal jurist doesn't respect the Constitution, the legislature, the executive, or the People."
I think this comment is a biased view. The comment that a liberal jurist does not respect the constitution is flat out (fill in your own negative term here) I think it really depends on which side of the isle you stand whether a jurist respects the constitution, or irrational precedent. And this is the challenge in any discussion between good well meaning moderates and progressives, like at DailyKos and the irrational far right. ;)
I think the supreme court has probably made more opinions that are agreed by more people than not. Abortion aside. When someone disagrees with an opinion they spew the that is creating laws, not interpreting law or constitution. I have yet to read any good operational definition of judicial activism vs. judicial restraint. One that everyone agrees to. We can all point to judges with whom we disagree, and call them activist judges because they ruled against what we call the law, or the way we read the constitution. I also think it really depends on what the jurist is focusing on when they are making a decision.
Stare Decisis, is as important as reading the constitution. Hey – John Roberts said so. I do not believe the constitution covers ALL 21st century problems. If the framers were precognizant, they may have included specifics like abortion. They weren’t so they didn’t. It was left to a judge nearly 200 years later. Don’t get me wrong, there are a lot of things that are covered by the constitution. I just don’t think everything is. The judges ruled based on what they believed to be constitutional issues, and other precedent.
One problem a judge has to deal with, is which is more important – individual rights, or group rights. How does one interpret the first amendment as it pertains to school prayer? If a school does not endorse it, is it still OK? Or does the first amendment really put the onus on states to determine that? “Congress shall enact no laws…” If a judge rules one way, it can be decided that it is activism – depending on which side of the issue you are on. I think it was judicial activism for them to stop the Florida vote recount in 2000. Others think this was a good decision. It depends on which side you are on.
Posted by: Jim R | Thursday, November 03, 2005 at 04:39 PM
I am amazed at how easy- and expected- to complicate a simple matter.
He is acknowledged as an excellent jurist by his peers, on both the left and right. His peers have nothing but the highest regard for him.
What more can we ask for? Since when is proven capability, track record and reputation less important than his personal ideologies- the same ones his peers say are kept off the bench?
In fairness to Senators Kennedy, et al, I agree that justice Alito should be enjoined from home schooling any children of liberal senators in the matters of religion, political ideology or ballet.
OK, Everybody happy? Can we get on with it already?
Posted by: sigmund, carl and alfred | Thursday, November 03, 2005 at 03:50 PM
The reader has asked this post to be removed for revision, and he will re-post.
Posted by: Kenny Pierce | Thursday, November 03, 2005 at 02:31 PM
Thanks for doing this, Alexandra. I think I've started something that could be quite beneficial to everyone who wants to see good, intelligent commentary and analysis in the blogosophere. It's not all about huffing and puffing and attacking your enemies. It's about presenting ideas and being challenged by those with whom you disagree.
http://the-reaction.blogspot.com/2005/11/scalitovision-2005-part-2.html
Posted by: Michael Stickings | Thursday, November 03, 2005 at 01:16 PM
Jim R - I see your logic but would warn against an all too automatic adoption thereof.
A frequently dissenting Judge may think out of the box, and as such, might add great value in stalemate as well as high profile cases where not only the parties but society at large is at loggerheads - such as Roe v. Wade. So, rather then outright rejection as a result of frequent dissent, careful study of each individual dissenting opinion might provide the basis for strong support of a confirmation.
Posted by: North by Northwest | Thursday, November 03, 2005 at 12:57 PM
David,
There is of course a huge difference between (a) looking for reasons why Alito should not be confirmed and (b) looking for reasons why he should be confirmed, especially when rejection/acceptance is automatically assumed according to partisan affiliation.
The extraordinary potential of the proposition lies in my opinion in the agreement to declare 'acceptance' a prerequisite for all unfolding discussion - with the clearly understood caveat in the event of the emergence of a 'deal breaker'.
Posted by: North by Northwest | Thursday, November 03, 2005 at 12:35 PM
What I would like to see in a judge is truly someone who will put aside personal opinions, and interpret the law. This is the same as what everyone wants. Unfortunately, we all have differences in opinion as to what that means. We can all point to cases where a judge ruled against what we would like them to have done. For example, during the Terri Shiavo debacle, ALL the judges ruled in favor of her husband and the right to let her die, and against her parents and their right to keep her alive. Tom Delay at the time indicated that these judges should be impeached, or killed, and he wanted to be able to appoint judges that would rule his way. Is appointing Alito getting what Tom Delay wants?
One question I would like to have answered is not necessarily are his opinions the same as mine, but how many times have his opinions been over ruled, and how many times has he been in the minority? If he has been over ruled more times than other judges, or he has been in the minority a significant number of times, I think I would have to protest his being confirmed. I would protest because at that point in time, he would be out of the main stream of the rest of the legal community.
Posted by: Jim R | Thursday, November 03, 2005 at 12:33 PM
I am not sure what would you have in mind realistically speaking, and not as an ideology? Surely not an endless debate where an already second nominated supreme court judge is outed by the disagreements the likes of which we've seen before. Do you think you will achieve this goal of civil communication if now what you are suggesting is to vote against Alito and the President to nominate a THIRD judge? At some point you have to look at the bigger picture, and the stability of a country that is looked at from the outside.
It is too late now to be discussing who the nominee should be. What I believe to be the only way forward is to discuss how we can persuade each other that the SECOND nomination is what we can all live with. If what you are saying is that now we should all have an endless debate over who else to nominate, and cause absolute disharmony and disarray in doing so I would have to disagree with you. That, I don't think is productive at this stage of the proceedings, nor I think in spirit of what I wished to achieve by my article, which is meant to unite forces.
You cannot unite forces if you are still looking through a tunnel vision looking glass, and simply wish in the end to agree to disagree. None of us have a choice as to who is nominated. That prerogative lies with the President, and at this stage to vote another superbly qualified nominated judge out, I believe is counter productive, Especially not in return for some endless dialogue, where you are already predisposing that you could not vote for Alito no matter what.
Posted by: Alexandra | Thursday, November 03, 2005 at 04:15 AM
"He had a proposition. The proposition was to unite the liberal and conservative spectrum of the Blogosphere, initially in opening up the information and communication flow, and exchange of links, in the quest to get Judge Samuel Alito painlessly elected to the Supreme Court, and stop the filibustering Democrats in their tracks."
I don't think that's what Michael was going for. Whether or not Alito should or shouldn't be confirmed is, at this point, an open question. The goal as I understand it is to have a fair and open debate, free of partisan distortions or mudslinging. THAT goal I support wholeheartedly.
Posted by: David Schraub | Thursday, November 03, 2005 at 03:03 AM