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  #1  
Old 05-12-2009, 04:21 PM
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Emphathy

I predict two things will come out of the appointment process for the next Supreme Court Justice: (1) it will be a circus and (2) in the end, GOP attacks against the nominee will be widely viewed as silly. My reason for first prediction is history - this sort of thing generally is a circus these days. My reason for the second prediction is that the GOP efforts so far have been so silly as to be frivolous. So far, they seem to be pinning their hopes on convincing people that "emphathy" is a code word for judicial activistism. I don't think that charge will stick, mainly because it makes no sense to argue that judges are better off not being able to emphathize. This writer said it well:
Quote:
...Empathy isn't sloppy sentiment. It's not ideology. It's just a check against the smug certainty that everyone else is sloppy and sentimental while you yourself are a flawless constitutional microcomputer.

http://www.slate.com/id/2218103/
We need justices who are immersed in the law, but we also need human beings. For example, when the Supreme Court allowed Paula Jones' lawsuit against Bill Clinton to go forward, one of the arguments the Court adopted was that the civil litigation process is not so overwhelming that it would interfere with the president's ability to do his or her job. While I think they reached the right result with respect to Paula Jones, to think that the litigation would not result in distractions for the president is just crazy. That decision showed that the justices are not always in touch with reality. Some emphathy would be a good thing to have on the Court.
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Old 05-12-2009, 04:30 PM
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If Al Franken gets in, it won't be much of a battle, I doubt any in the 60-vote block would oppose Obama on the nomination. Without the filibuster, the GOP is toothless in the Senate. They can do the hand-wringing complain about everything as they cry like little girls thing, that's about it, but buddy, as shown in the Gallup results on the other thread, that just ain't workin'!
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Old 05-13-2009, 04:04 PM
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It will be tit for tat. You can bet that if the opportunity had arisen Bush would have packed the court with as many young ultra-conservatives as he could have gotten in. I think and hope that Obama will not be so vindictive and will nominate those jurists who hold out hope for reasonable interpretation of the law.
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Old 05-13-2009, 08:27 PM
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Unless the Supremes judge by the original intent of the Constitution there is no real Constitution. A "Living Constitution" is in fact, no Constitution.
I realize I am hopelessly out of step with "modern" culture.
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Old 05-13-2009, 08:54 PM
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Originally Posted by MS Fowler View Post
Unless the Supremes judge by the original intent of the Constitution there is no real Constitution. A "Living Constitution" is in fact, no Constitution.
I realize I am hopelessly out of step with "modern" culture.
just 'modern'?

remember the bill of rights? - amendments to the constitution, but pretty well regarded by most Americans
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Old 05-13-2009, 09:06 PM
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The Repubs are emasculated right now - Obama could get Pelosi in as Chief Justice and it'd be easy to do.
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Old 05-13-2009, 09:38 PM
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Originally Posted by MS Fowler View Post
Unless the Supremes judge by the original intent of the Constitution there is no real Constitution. A "Living Constitution" is in fact, no Constitution.
I realize I am hopelessly out of step with "modern" culture.
I don't know about that, but I do think you might be out of step with the framers of the Constitution.

If there ever was an original intent behind the Constitution, it is impossible to know. It was ratified by 13 former colonies, one at a time, over a period of 2-1/2 years. More than 1,000 individual delegates voted on the ratification question. Do you think that every delegate or state that voted for ratification had exactly the same intent with respect to every part of the Constitution? I don't.

Many of the leaders behind the Constitution, including my fellow Virginian James Madison, one smart son of a gun, believed that the Constitution needed to evolve. His original intent was that we not be bound by what people these days call original intent.

So, I think any effort to try to stick with the original intent is futile and probably contrary to what Madison would have wanted.
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Old 05-14-2009, 06:46 AM
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I don't know about that, but I do think you might be out of step with the framers of the Constitution.

If there ever was an original intent behind the Constitution, it is impossible to know. It was ratified by 13 former colonies, one at a time, over a period of 2-1/2 years. More than 1,000 individual delegates voted on the ratification question. Do you think that every delegate or state that voted for ratification had exactly the same intent with respect to every part of the Constitution? I don't.

Many of the leaders behind the Constitution, including my fellow Virginian James Madison, one smart son of a gun, believed that the Constitution needed to evolve. His original intent was that we not be bound by what people these days call original intent.

So, I think any effort to try to stick with the original intent is futile and probably contrary to what Madison would have wanted.
If that is the case--evolving apart from amendment--then it isn't worth the paper it is printed on. The supremes can use anything they choose as precedent--US law, foreign law, even what is politically expedient. Not good for a law-abiding country.
Amendment is the procedure proivided for evolving--I'm OK with that--but apart from that, the document is meaningless.
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Old 05-14-2009, 08:58 AM
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...The supremes can use anything they choose as precedent--US law, foreign law, even what is politically expedient. Not good for a law-abiding country...
That is almost true. If the Supreme Court decided to go off on its own, ignoring the text of the Constitution and the case law, then we would have a real problem. For the most part, that hasn't happened over the 220 years the Constitution has been in effect. Why do you think it will now?

The recent criticism of certain justices' reference to foreign law is misplaced. The Court has never applied foreign law. It applies US law. Difficulty sometimes arises in figuring out what US law is. In those cases the justices look to various sources, including foreign law, as persuasive authority. There is nothing inappropriate or lawless about it.
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...Amendment is the procedure proivided for evolving--I'm OK with that--but apart from that, the document is meaningless.
I couldn't disagree more. Our Constitution is ingenious. It works very well.
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Old 05-14-2009, 12:38 PM
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Our Constitution is ingenious. It works very well.
If it can be changed without using the amendment process specified in it, how can it be said to "work"? It was written to limit the power and reach of the federal government. the Founders had some person, first-hand experience with oppressive, non-responsive government. It is inconceiveable to me that they would sanction the "living Constitution".
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Old 05-14-2009, 12:51 PM
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Originally Posted by MS Fowler View Post
Unless the Supremes judge by the original intent of the Constitution there is no real Constitution. A "Living Constitution" is in fact, no Constitution.
I realize I am hopelessly out of step with "modern" culture.
If the actual intent of the COTUS was implemented it would be the conservatives, not the liberals who would regret it.
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Old 05-14-2009, 12:52 PM
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Originally Posted by MS Fowler View Post
If it can be changed without using the amendment process specified in it, how can it be said to "work"? It was written to limit the power and reach of the federal government. the Founders had some person, first-hand experience with oppressive, non-responsive government. It is inconceiveable to me that they would sanction the "living Constitution".
The power and reach of the Federal Government was increased more by the amendment process than anything else.
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Old 05-14-2009, 03:11 PM
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The power and reach of the Federal Government was increased more by the amendment process than anything else.
The amendment process requires more than a majority of people in the states to approve. Whether I agree with the amendments or not, that is the process. I am far more comfortable with that process than the whim, or judicial activism on the part of non elected persons.
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Old 05-14-2009, 03:34 PM
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Originally Posted by MS Fowler View Post
...It is inconceiveable to me that they would sanction the "living Constitution".
First, we have the problem of figuring out who "they" were before we can know what they would or wouldn't sanction. Whatever the original intent was, I think it quickly became established through years of Supreme Court decisions that the Constitution is dynamic. It has been that way for centuries now and it works quite well.

Speaking of interpretation, did you notice that the word "sanction" can either mean "approve" or "penalize," depending on the context. I don't know what that has to do with our discussion, but I find it interesting.
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Old 05-14-2009, 03:40 PM
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Originally Posted by MS Fowler View Post
The amendment process requires more than a majority of people in the states to approve. Whether I agree with the amendments or not, that is the process. I am far more comfortable with that process than the whim, or judicial activism on the part of non elected persons.
I agree with that. I just disagree that a recognition that the Constitution evolves is the same thing as judicial activism. Judicial activism, which probably comes more from the right than from the left, consists of judges going beyond the narrow dispute presented by the parties or resolving the dispute between the parties by applying what the judge thinks the law should be rather than what it is. I don't think that is the same as accepting that the Constitution evolves. I think it would be an act of judicial activism to reject accepted Constitutional law based on some notion that the Framers intended some other meaning. That approach would be contrary to customary judicial decision making. IMHO.
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