Here are a couple links on Janis Rogers Brown (who the President should have nominated).
NOW. Janice Rogers Brown’s Legal Opinions | PBS
People For the American Way – Janice Rogers Brown: In Her Own Words
This is a ulta-liberal site and you can see, they hate her. She’s got to be good to get them this ticked. 
Popularity: 1% [?]
Hey! I’m really liberal and I don’t like Kim Jong Il. Does that mean you’re pro-North Korea?
Oh come on “angry”.. see the the little smiley after the statement?
PS: Sorry about the liberal thing. Stick around and perhaps you’ll get through it
Nah.
My point, though, should be well-taken. I’ve heard the sentiment before from the likes of Ann Coulter that the next Supreme should be someone who really “gets under the liberals’ skin,” like Scalia. I don’t really need to point out that this is a really bad standard for picking the next Supreme Court Justice.
And I think claims that we need more “strict constitutionalists” like Scalia are a bunch of hooey. Scalia is every bit the “judicial activist” that Ginsburg is- as is every other appellate justice in America. Of course justices’ personal opinions color their bench opinions- no one who’s actually read Scalia’s opinions can tell me with a straight face that his personal beliefs are not influencing his decisions.
But that’s not the issue. The issue is whether we have a Supreme Court that looks at the Constitution and sees an evolving document, or interprets it literally as it was written way back when. The “living document” position is well-established law in the Supreme Court. “Strict constitutionialism” isn’t. Take a look at the court’s decision in Griswold v. Connecticut if you don’t believe me.
Thus, anyone who’s a “strict constitutionalist” is just plain wrong according to decades of jurisprudence. This really isn’t even a hard question.
It is, however, an *important* question in the sense of individual rights. Scalia and his ilk err on the side of restricting rights, Stevens and the left wing of the court err on the side of granting them, so long as they are consistent with underlying principles that are directly expressed in the Constitution. For example, there is no explicit right to privacy in the Constitution (a fact of which Scalia constantly reminds us), but the Griswold court looked at the Fourth and Fifth Amendments, and other provisions, and gleaned that without a right to privacy, those provisions would be meaningless.
While it’s fun for a lot of people to get on one side of the party line or the other and cheer for the home team, the fact is that a more liberal Supreme Court is in everyone’s best interest in the long term, whether the question is controversial like abortion or gay rights, or more traditional like due process or religious freedom. And history bears that out.
..everyone’s best interest?? That might be the most self-centered thing I’ve ever heard! Is that what you would say to the millions of murdered pre-born babies? “Sorry you are dead, but hey, your mother got off a little easier.”
Bah!
Hm. Well, I think you’re really mixing issues here.
1) You’re taking a scientific and/or religious belief of yours, assigning it the status of “fact.” I personally don’t like abortion, but biologically and ethically I can’t really equate the termination of a first term preganancy (with a fetus in capable of demonstarting all the characteristic of a living organism) with murder. You do believe that, as you have a right to. But it’s hardly an established fact.
2) Which brings us to my next point: the Constitution enumerates a number of principles which really have nothing to do with the issues you’re talking about. It’s mainly a document discussing political, legal, and quasi-ethical ideas about equality and other fundamental rights. One of those fundamental rights is freedom from beliefs imposed on one by the state. I have my own beliefs about the ethics of our society. Frankly, I think the way we treat farm animals is disgusting and morally reprehensible. That’s my belief though, and it’s not right for me to expect a secular government and country to share that belief.
3) So, we have lots of different people with lots of different beliefs. What’s the tiebreaker? The Constitution. This is a set of core rights vested in all Americans, free of ideology or religious belief (in fact, freedom from religious belief is one of those rights.)
4) Even accepting for the moment your assertion that legalized abortion is murder, you have to admit that the Constitution is very rarely black and white. The Supreme Court ALWAYS has to balance rights in order to come up with the solution. Sometimes due process concerns give way for government efficiency. Sometimes free speech is abridged so that people are kept out of danger. And practically nothing is right or wrong 100% of time.
5) #4 lends itself to a moral argument as well. Surely you’re not asserting that any act, devoid of its context, can be wrong 100% of the time. While we all agree that murder is a very serious crime, we also agree that it is morally permissible to kill another person in self-defense. So, any court decision completely banning abortion seems totally unacceptable and unrealistic, from a moral standpoint as well as a Constitutional one.
6) Finally, and most importantly, your understanding of the Supreme Court’s current abortion jurisprudence seems wildly inaccurate. The court, realizing that there were other people’s rights involved than the mothers’, constructed a whole other Constitutional test for abortion laws: the undue burden test. And that test has told us that it’s okay for a state to make laws banning abortions after the first trimester.
Incidentally, on the “self-serving” remark: it’s sort of ironic (and pretty funny, actually) to be accused of being self-serving by anybody who so rigidly contends that the court must support their own religious ideology. So, really, if that’s the best argument you can come up with, it’s practically a concession on the substantive issues.
“One of those fundamental rights is freedom from beliefs imposed on one by the state.”
Yet, that’s exactly what pro-abortionists are doing to us no-abortionists every day … and, apparently, you believe that to be okay.
“What’s the tiebreaker? The Constitution.”
Which does not mention abortion, but those founding documents and fathers have given us one line of interest … apparently, it’s law of this land that every man (person) has an unalienable right to “life……”
“This is a set of core rights vested in all Americans, free of ideology or religious belief (in fact, freedom from religious belief is one of those rights.)”
Actually, Freedom OF Religion …. not FROM … using your logic we have Freedom FROM Speech …
“The Supreme Court ALWAYS has to balance rights in order to come up with the solution.”
Always has to balance rights? Actually, since you are aparently slipping into “legal” territory, the SCOTUS ALWAYS must interpret the law as it fits into the Constitution … and, they suck at that quite a bit.
“While we all agree that murder is a very serious crime”
Yeah!! We agree!
“we also agree that it is morally permissible to kill another person in self-defense.”
Then it’s gone …..
Killing another person in self-defense isn’t “murder” under the law. We seem to be having issues with definitions.
(this is what I get for reading from the bottom – up … )
“The issue is whether we have a Supreme Court that looks at the Constitution and sees an evolving document, or interprets it literally as it was written way back when.”
Dude … this isn’t even CLOSE to being relevant. But, I’ll play ….. the “Bill of Rights” were written WAY back then …. maybe Freedom of Speech is outdated and past it’s prime.
” The “living document†position is well-established law in the Supreme Court. “Strict constitutionialism—
Well-established? Oddly enough, so is defining the legality of a law based upon what the Constitution actually says.
“For example, there is no explicit right to privacy in the Constitution…[useless remark removed by me], but the Griswold court looked at the Fourth and Fifth Amendments, and other provisions, and gleaned that without a right to privacy, those provisions would be meaningless.”
That doesn’t mean they were right. I’ve read those same 4th and 5th Amendments and disagree …. For example, a windows open. As a cop rides by, he peers in and sees a husband stabbing his wife multiple times … the cop stops, gets out of his car, busts that door down, and arrests the guy …. according to YOUR own logic, this guy’s non-existent “right to privacy” out-weighs the fact that the cop happened to look in and see a crime being committed …. and, it’s the same BASIC scenerio that brought Griswold v. Connecticut to the SCOTUS.
“the fact is that a more liberal Supreme Court is in everyone’s best interest in the long term”
“Fact”? That’s a belief, not a fact …. The more liberal SCOTUS justices have brought other factors into deciding what is legal in this country …. Yes, I am including Sandra Day-O’Connor in the “liberal” mix of the SCOTUS – she has a hyphenated-name ….. Some of those “other factors” include International “Law” …
The same Constitution that they claim to be interpretting states rather plainly (and in English that can still be understood this far into the future) that the Constitution is the supreme law of this country …. Treaties that get signed (and become law of this country as well) MUST not impede on that very same Constitution … [alas, I must stop ... as I can go no further without naming names and that is something I'd prefer not to do]
You seem to be dismayed that this “is slipping into legal territory.” Why? This is a legal discussion we’re having.
You repeat yourself quite a bit, so I’ll try and stick to your main points as succintly as possible.
First and foremost: I don’t know what you think you know about the Constitution, but a lot of what you’re saying is just not correct. It’s also clear to me that you’re not bothering to read any of the opinions that have interpreted the Constituion over the past couple centuries. In other words, you don’t sound like you really know what you’re talking about.
1) Pro-life (pro-abortion, whatever) is not a “religious” belief that is being forced on your or anybody. It’s grounded in the right to privacy in teh Constitution. Even if you don’t believe in that right, can’t you at least intellectually appreciate the difference?
2) “The unalienable right to life” as the key factor- You forgot to finish that thought. The constitution gives rights to life, liberty, and property. All of which are balanced against other rights. See practically every decision the United States Supreme Court has ever handed down.
3) You’re wrong on on the religion point. What you’re talking about is the Free Exercise Clause (freedom of religion), and what I’m talking about is the Establishment Clause (freedom from religion). Incidentally, freedom OF religion can be suspended to the extent that there is a legitimate, non-discriminatory reason for doing so (e.g., drug laws can be enforced against Native American religious ceremonies which use peyote.)
4) “Murder”- what you’re doing is on the level of semantics and is non-responsive to my moral argument. Whatever you choose to call the act of killing, we both agree that there are certain instances in which killing morally acceptable. If you think about it long enough, the applies to pretty much anything- context is the key where moral decisions are concerned.
4) You’re just wrong on the “living document” point. First, the question as I framed it is exactly the dispute between “strict constitionalists” and what you would detrimentally refer to as “judicial activists.” And, “living document” won out: the Supreme Court decided this ages ago. See Griswold and every case that’s ever cited it. This is one of the things that drives Scalia crazy, because he’s in the minority on this issue.
5) Your 4th and 5th Amendment arguments have nothing to do with the Constitutional right to privacy. The example you cite is the “plain view” doctrine, which would allow the police to conduct a search and seizure without a warrant and not violate the 4th Amendment. But the 4th Amendment itself DOES protect against unreasonable searches and seziures, which does imply a right to privacy implied elsewhere in the Consitution (e.g., 5th and 9th Amendments). Again, you really need to read your case law if you expect to intelligently contribute to this discussion.
6) “Everyone’s best interest”- Admittedly, I was assuming that you liked your individual rights, which conservative courts historically restrict. If you don’t like those, then my statement was most certainly incorrect as applied to you.
7) Of course the Constitution is the surpeme law of the land. And . . .?
1) Pro-life (pro-abortion, whatever) is not a “religious†belief that is being forced on your or anybody. It’s grounded in the right to privacy in teh Constitution. Even if you don’t believe in that right, can’t you at least intellectually appreciate the difference?
Intellectually? I’m a dumb southern redneck christian conservative.
So, if I say that abortion should be illegal, I’m pushing my religious views on somebody. But, if they say that abortion should be legal in all circumstances, they aren’t pushing their non-religious beliefs on me? That doesn’t make sense.
2) “The unalienable right to life†as the key factor- You forgot to finish that thought. The constitution gives rights to life, liberty, and property. All of which are balanced against other rights. See practically every decision the United States Supreme Court has ever handed down.
We weren’t arguing “liberty, and property”. We’re discussing the “life” part of that. Maybe we should change it to “unalienable right to life, liberty, and the right to privacy unless you are in your own home, were stupid enough to believe your sexual partner, or the government thinks you’re too irresponsible to do it on your own” ….
3) You’re wrong on on the religion point. What you’re talking about is the Free Exercise Clause (freedom of religion), and what I’m talking about is the Establishment Clause (freedom from religion). Incidentally, freedom OF religion can be suspended to the extent that there is a legitimate, non-discriminatory reason for doing so (e.g., drug laws can be enforced against Native American religious ceremonies which use peyote.)
Find me, in the Constitution, the phrase: “Freedom from religion” … and, while you’re at it, find the phrase “Seperation of Church and State.” …. the very Constitution you are TRYING to quote simply states that Congress cannot pass any laws which A) establish a national church/religion or B) restrict your practice of your religion.
It’s also nice how you have no problem with suspending my right to practice my religion, but have all sorts of issues when they allow me to practice “more”.
4) “Murderâ€- what you’re doing is on the level of semantics and is non-responsive to my moral argument. Whatever you choose to call the act of killing, we both agree that there are certain instances in which killing morally acceptable. If you think about it long enough, the applies to pretty much anything- context is the key where moral decisions are concerned.
A) I don’t believe it wrong to kill somebody holding a gun to my wife’s head. That’s NOT murder and is NOT morally wrong.
B) You STATED “murder” and tried to equate it to “KILLING” … which are two totally different things.
5) Your 4th and 5th Amendment arguments have nothing to do with the Constitutional right to privacy.
That’s because there’s not such thing as a “Constitutional Right To Privacy”.
6) “Everyone’s best interestâ€- Admittedly, I was assuming that you liked your individual rights, which conservative courts historically restrict. If you don’t like those, then my statement was most certainly incorrect as applied to you.
Restriction of Rights and Denial of Rights are different items, hoss.
A) Making abortion illegal …. does it “unrestrict the rights” of the mother, or “deny the right to life” of the child?
Look, you’re really not reponding to anything I’m saying. You’re just answering for the sake of answering.
Pretty much everything you’ve said about the Constitution is just wrong. If you’d bother to crack open a copy of U.S. Reports, you’d see that. The Establishment Clause covers far, far more ground than this outlandish idea of a “national church.” Hell, you can probably just Google “Establishment Clause” and “Supreme Court” and come to that conclusion.
Likewise, the fact that you refuse to even concede negligible points like the difference between religious beliefs and Constitutional principles, or that the Supreme Court uses balancing tests to determine rights (which it does- I’m just dumbfounded that you’re even trying to argue the point), or that there is a Constitutional right to privacy (there *just is*, this is a settled point of law) is making this discussion virtually impossible.
The fact that you’re denying the existence of well established legal principles doesn’t change the fact that they still ARE established legal principles. And it’s not like I’m making this up. I’ve been citing case law left and right, and could give you even more- if you don’t even want to acknowledge reality, how can we have a rational discussion about this?
Incidentally, the “dumb redneck” comment is totally uncalled for. First, I wasn’t even using the word “intellectual” in the context of “smart”; I was using it in the context of “cognitive.” Ironically, the distinction was lost on you.
Second, I’m from the South too- I grew up in rural Tennessee. As a product of the Tennessee public school system (4th grade through college graduation), I’d have to be a “stupid redneck” too. But, as a product of said school system, I’d also have to admit that that’s really a non-sequitur. Right?
*Angry Dissenter*
Quick! Attack!!! Attack!!! I’ve no more arguments!!!
*/Angry Dissenter*
FYI … I only majored in Political Science :: University of Houston …. but thanks for calling me stupid on more than one level.
Are you ALWAYS an ass, or did somebody tinkle in your Rice Krispies this morning? You’ve just taken the WHOLE discussion from a civil discussion between two people who obviously do not agree on matters and turned it into a personal assualt on me, my intelligence, and my beliefs.
Typical Liberal, to be honest.
With the admitted execption of “Ironically, the distinction was lost on you,” (which was perhaps mean but at least a little funny), what personal attacks have I made on you or your beliefs? Pointed out that you haven’t read or understood any case law that applies to the legal arguments you’re making?
I don’t doubt that you majored in political science, or that you’re an intelligent person. But none of that changes the fact that you’ve been just flat-out wrong nearly every time you’ve tried to talk about the Constitution in this conversation. If this were a test in Con Law, you would fail. We don’t even get to the argument portion because you’re not even providing proper warrants for the claims you’re making.
So, to answer your last question, I guess I’m pretty much always an ass. Like all us typical liberals.
Ah, but do you consider yourself to be a good person?