pageok
pageok
pageok
Miers Wanted Alito:

Jan Crawford Greenburg has an article in the Washington Post/s Outlook section suggesting that the appointment of conservative judges has been one of the few (if not the only) successful major initiative of the Bush Administration. Near the end of the article, which appears to be based upon her new book, she has an interesting account of the Alito nomiation:

Alito was waiting in the wings when Miers's nomination fell apart. Unlike Reagan, who appointed the more liberal Kennedy to the court in 1987 after his nominations of Robert H. Bork and Douglas H. Ginsburg went down in flames, Bush had no problem seeking another solid conservative. With a Republican majority in the Senate, he did not compromise. Alito was considered a solid conservative, though not combative like others, and he had hired liberal law clerks. Bush hoped that Alito, like Roberts, would prove effective in building coalitions.

The call from the White House surprised Alito. Living in New Jersey, he had been insulated from the negative Washington buzz over Miers. He had absorbed the disappointment about being passed over and had come to terms with remaining a federal appellate judge. Alito didn't know that he had been Miers's choice for the O'Connor vacancy after Roberts got the nod for the top spot. She liked his quiet confidence; he didn't seem to be pushing too hard for the job. When Alito was nominated just four days after Miers dropped out, she greeted him warmly in the White House, moments before Bush introduced him as his next nominee.

(Emphasis added.)

Related Posts (on one page):

  1. Greenburg on Thomas:
  2. Miers Wanted Alito:
  3. Legalities:
Jeremy T:
I'm appreciative that Bush nominated Roberts and Alito, two excellent conservatives. But what I've read about the "job interviews" scares me.

For instance: "[Miers] liked [Alito's] quiet confidence; he didn't seem to be pushing too hard for the job." Well what the hell difference does it make whether someone "pushes" for the best judge job in the world? Isn't something like that to be expected?

I read somewhere else that one of the Fourth Circuit interviewees for one of the spots (J. Harvey Wilkinson?) was not selected essentially because he told the president he didn't jog. I guess I want "hiring decisions" for the Supreme Court to be based on legal acumen and ability, not silly stuff like jogging or "pushiness."

The interviews for the Supreme Court were apparently not very different from the interviews I did to get a job for my 1L summer. That's pretty sickening.
1.21.2007 12:10pm
Constantin:
Revisionist history. Miers is leaving the company in a week and is talking to make herself look selfless and put-upon, as opposed to someone who might have abused her position and manipulated a process, and her personal friendship with President Bush, to land a spot on the Supreme Court.

He's in charge, so ultimately the debacle was his fault. But I've never quite agreed with the characterization of Miers as some kind of victim.
1.21.2007 12:47pm
Cornellian (mail):
For instance: "[Miers] liked [Alito's] quiet confidence; he didn't seem to be pushing too hard for the job." Well what the hell difference does it make whether someone "pushes" for the best judge job in the world? Isn't something like that to be expected?

I can see something of a point here. If a judge considers himself brilliant, God's gift to jurisprudence and an obvious choice for the Supreme Court and tells you that he wants the job for that reason, then I wouldn't want him nominated regardless of his views on the issues. Such an outlook is incompatible with proper judicial temperament, in my opinion. In addition, such a judge is likely to be lousy at building majorities by persuading his colleagues.
1.21.2007 1:01pm
Thorley Winston (mail) (www):

Not to mention the problems they might have during a Senate confirmation hearing and a hostile MSM looking for any excuse to sink one of Bush's SCOTUS nominees.
1.21.2007 1:27pm
Stephen C. Carlson (www):
I read somewhere else that one of the Fourth Circuit interviewees for one of the spots (J. Harvey Wilkinson?) was not selected essentially because he told the president he didn't jog.


The article alludes to candidates that were "too old." With Wilkinson being in his 60s and the jogging question, it looks like the concern about Wilkinson was his expected longevity (or lack of it) on the court.
1.21.2007 3:01pm
Ploni:
I can only lament for the umpteenth time the fact that the public has been sold, hook, line, and sinker, the false claim that Roberts and Alito are justices in the mold of Scalia and Thomas. Scalia and Thomas are orignalists who occasionally vote to seriously disturb government policy and reach results that seriously conflict with conservative policy preferences. (See e.g. Thomas's votes in Apprendi, Harris, and Bajakajian, and Scalia's in Texas v. Johnson, Craig, McLaughlin, Apprendi, Nader, Massachusetts v. Smith, Gonzalez-Lopez, and don't forget Hamdi!) I have no doubt that we will not get that kind of voting out of non-originalists Roberts and Alito.
1.21.2007 3:11pm
William Baude (mail) (www):
But Harvie Wilkinson does jog. See, e.g., this Economist story.

"The 60-year-old Mr Wilkinson said he ran three and a half miles a day. But the president urged him to do more cross-training. "
1.21.2007 3:54pm
Jeremy T:
Ploni,

You write: "I have no doubt that we will not get that kind of voting out of non-originalists Roberts and Alito."

I think it's far too early to make that sort of a judgment. I've been quite satisfied with Roberts and Alito so far, and I'm a committed originalist. In fact, I've found that Alito has had a slightly more originalist bent than even Scalia on occasion.
1.21.2007 4:04pm
Cornellian (mail):
In fact, I've found that Alito has had a slightly more originalist bent than even Scalia on occasion.

Not exactly setting a high bar. Scalia ignores original understanding lots of times, often without even bothering to pay lip service to it in his decision.
1.21.2007 4:06pm
Jeremy T:
Cornellian,

Why would a judge who considered himself, as you put it, "God's gift to jurisprudence" necessarily eliminate himself from contention? I don't think that's necessarily intemperamental. I'd prefer the arrogant judge who got the right answer over meek and humble judge who got the wrong answer. I bet you would too. Quite frankly, I've never met very many lawyers or judges who don't think the world would be a better place if they were on the Supreme Court. (I certainly think the world would be a better place if I was on the Supreme Court.)

And besides, it's a stretch to expect that the "pushiness" of a judge in a job interview situation would necessarily translate to good jurisprudence and a good judicial temperament. Ruth Bader Ginsburg is, by all accounts, a meek, humble, and nice lady. But her jurisprudence is arrogant to the extreme. Antonin Scalia is the very picture of an arrogant alpha male, but his jurisprudence is extremely modest, as it should be.
1.21.2007 4:09pm
Jeremy T:
Cornellian,

"Not exactly setting a high bar. Scalia ignores original understanding lots of times, often without even bothering to pay lip service to it in his decision."

This is true to a point, such as [i]Ashcroft v. Raich[/i], but I think that saying this happens "lots of times" is something of an overstatement.
1.21.2007 4:11pm
Adam B. (www):
If a judge considers himself brilliant, God's gift to jurisprudence and an obvious choice for the Supreme Court and tells you that he wants the job for that reason, then I wouldn't want him nominated regardless of his views on the issues.

This was one of the things which really turned Arlen Specter against Judge Bork; he testified that he was looking forward to the "intellectual feast" which SCOTUS would be for him.
1.21.2007 4:34pm
anwoolf (mail):
If a judge considers himself brilliant, God's gift to jurisprudence and an obvious choice for the Supreme Court and tells you that he wants the job for that reason, then I wouldn't want him nominated regardless of his views on the issues.

I definatley would want someone on the Supreme Court that thought he would do a great job. If someone who thought that they were not qualified or not smart enough for the job were nominated, that person would probably just "follow" the other judges and fail to bring anything of use to the supreme Court, except for a sure vote on way or another. But, I guess that is what you were saying you wanted when you stated that you wouldn't want him "regardless of his views on the issues". That seems very bold to say that you wouldn't want him on the supreme court just because he he sees himself as brilliant. Views on issues should be the determinant for nomination. Am I right?
1.21.2007 6:11pm
Ken Kukec (mail):
Personally, I care much more whether a Supreme Court nominee is intellectually qualified than whether he or she is "pushy" or "humble." I certainly understand, however, why a politician making the nomination might feel otherwise.

First, as some here have observed, personality counts during the confirmation process. Second, the appointing politician probably believes that a pleasing personality will add to a nominee's ability, if confirmed, to build coalitions that will help move the Court in the direction the politician wants to move it. (Although this trait is overrated, it would be natural for a politician to see things that way; it's how the political branches work.)

That said, there is a legitimate place for judicial "humility": a willingness at least to consider the possibility that one's most dearly-held legal beliefs could be wrong, and a corresponding willingness to keep an open mind. History teaches that even the most cocksure judge can look foolish 50 or a 100 years in the rear-view mirror. (Think Korematsu or Plessy).

By this measure, Jeremy T., Justice Scalia's jurisprudence hardly qualifies as "extremely modest." I realize that you are speaking of his jurisprudence's substance rather than its form -- of, say, his deference to States' rights rather than his writing style (which is the polar-opposite of "modest"). Still, one mark of a modest jurisprudence is the willingness to decide cases on the narrowest grounds fairly presented -- a reluctance, that is, to reach out for issues that could as easily be avoided. "Modest" isn't the first modifier that comes to mind in describing Scalia's jurisprudence on this scale, either.
1.21.2007 6:23pm
Cornellian (mail):
"Not exactly setting a high bar. Scalia ignores original understanding lots of times, often without even bothering to pay lip service to it in his decision."

This is true to a point, such as [i]Ashcroft v. Raich[/i], but I think that saying this happens "lots of times" is something of an overstatement.


Two points: first I can think of other examples off the top of my head, e.g. Lujan v. Defenders of Wildlife where Scalia dreams up a new view of the meaning of the Article II "take care" clause utterly unsupported by any evidence of original understanding, a meaning completely unnoticed by anyone else over the past 200 years. I'm not an expert on ConLaw so I'm pretty confident that a little research could turn up quite a few more examples. Second, justices like Souter and Ginsburg don't pretend to be originalists, so Scalia's deviations from originalism are harder to reconcile with his purported championing of originalism.
1.21.2007 6:52pm
Just an Observer:
More tantalizing is Greenburg's revelation in an ABC News report this morning:

Jan. 21, 2006 — In her new book "Supreme Conflict," ABC News' legal correspondent Jan Crawford Greenburg reveals for the first time how Attorney General Alberto Gonzales tried to block the nomination of White House counsel Harriet Miers.
1.21.2007 7:12pm
Kate1999 (mail):
Jeremey T. writes:

Ii>In fact, I've found that Alito has had a slightly more originalist bent than even Scalia on occasion.

What's the evidence for that? Off the top of my head, I'm not sure I can recall Alito ever making an originalist argument.
1.21.2007 7:13pm
NI:
I sometimes agree with Scalia and sometimes disagree, but I lost all respect for him when he joined the opinion in the Texas case (I forget the name of it) in which a woman was arrested and jailed after being pulled over for not wearing a seat belt. The opinion contained a line to the effect that on those facts the woman should probably be allowed to sue but we don't want people suing the police so she can't either.

Prior to that I had assumed that he was an intellectually honest textualist who could be counted on to uphold those individual rights with a textual basis. Joining that opinion made him a result-oriented activist hack, albeit a conservative one.
1.21.2007 7:53pm
Cornellian (mail):
Joining that opinion made him a result-oriented activist hack, albeit a conservative one.

Don't forget Bell Helicopter where Scalia takes sovereign immunity, a doctrine found nowhere in the Constitution, and extends it to private contractors doing work for the federal government to shield them from state tort law claims. I guess that would make it non-sovereign sovereign immunity. Someone ought to ask him about that the next time he gives one of those speeches about only recognizing rights if they're right there on the face of the Constitutional text.
1.21.2007 8:57pm
Jeremy T:
"sovereign immunity, a doctrine found nowhere in the Constitution,"

Does your copy of the Constitution contain an Eleventh Amendment? ;-)
1.21.2007 9:15pm
Mark Field (mail):

Does your copy of the Constitution contain an Eleventh Amendment?


Even if the Eleventh Amendment were a sovereign immunity provision (it's not, or is at best very limited), it doesn't apply to the federal government.
1.21.2007 10:49pm
SimonD (www):
Greenburg's statement that "Bush fulfilled his early vow to appoint justices in the mold of Scalia and Thomas" does rather beg the question of what Greenburg (and Bush) think that mold is. After Zedner and United States v. Gonzalez-Lopez, how can anyone contend that Alito, in particular, is "in the Scalia mold"? It doesn't seem right, either, to call Roberts as being in Thomas' mold. Both the Chief and Justice Alito seem, more than anything, to be in the mold of the old Chief. Greenburg labels "Roberts and Alito [as] two of the most conservative justices to reach the court in many years." That might be so. But that does not make them in the mold of Scalia and Thomas.
1.21.2007 11:40pm
Cornellian (mail):
"sovereign immunity, a doctrine found nowhere in the Constitution,"

Does your copy of the Constitution contain an Eleventh Amendment? ;-)


Nothing in the Eleventh Amendment provides that any level of government is immune to anything, it simply prohibits federal courts from hearing certain suits against state governments.
1.22.2007 12:37am
Cornellian (mail):
Both the Chief and Justice Alito seem, more than anything, to be in the mold of the old Chief.

I'd take the Rehnquist mold over the Scalia mold or Thomas mold any day.
1.22.2007 12:39am
Lev:

If a judge considers himself brilliant, God's gift to jurisprudence and an obvious choice for the Supreme Court and tells you that he wants the job for that reason, then I wouldn't want him nominated regardless of his views on the issues.


Finding such a person and putting him on the court would certainly shorten the process of finding out what type of gift from God he is, instead of waiting for a few years after confirmation.
1.22.2007 12:49am
llamasex (mail) (www):
I can't believe you all aren't focusing on the biggest pile of bullshit in this piece.

"The call from the White House surprised Alito. Living in New Jersey, he had been insulated from the negative Washington buzz over Miers. He had absorbed the disappointment about being passed over and had come to terms with remaining a federal appellate judge."

I'm sorry, What? You expect us to belive Alito wasn't following what was happening with Mier's nomination because he lived in Jersey? Hell I am in GA and I was aware of what was happening, I think a judge would be more interested in that sort of thing than me.

Not to mention this was front page news, does Alito not read a newspaper?
1.22.2007 1:28am
David M. Nieporent (www):
NI:
Prior to that I had assumed that he was an intellectually honest textualist who could be counted on to uphold those individual rights with a textual basis. Joining that opinion made him a result-oriented activist hack, albeit a conservative one.
So the fact that the opinion (it's Atwater v. Lago Vista, by the way) had a single line in it you disagree with -- I'm not sure which line you mean -- means he should have written a separate opinion. I see. I think your problem is a failure to understand the way the Supreme Court operates. Justices don't write separate opinions because they disagree with a single sentence in the opinion; they write separate opinions when there's a specific legal point they want to make.

Also, your criticism makes no sense. (Leaving aside that the word "hack" is generally short for, "I disagree with someone smarter than I am.) If you think the holding was wrong, then he should have dissented, regardless of what that "line" said. If you think the holding was right, then it makes no sense to criticize him for being "results-oriented."


Cornellian:
Don't forget Bell Helicopter where Scalia takes sovereign immunity, a doctrine found nowhere in the Constitution, and extends it to private contractors doing work for the federal government to shield them from state tort law claims. I guess that would make it non-sovereign sovereign immunity. Someone ought to ask him about that the next time he gives one of those speeches about only recognizing rights if they're right there on the face of the Constitutional text.
Do you mean Boyle, rather than Bell? The former was where Scalia announced the governor contractor defense. But it wasn't a sovereign immunity case; it was a federal preemption case. (Brennan wanted to turn it into the former, I think. But that was a dissent.)
1.22.2007 1:46am
David M. Nieporent (www):
Llamasex, it was front page news that she withdrew. It was not front page news that she was going to withdraw. Of course there were rumblings that various senators and interest groups were disappointed with her nomination, and even that her confirmation might be in trouble, but that's not the same thing. Up until the time she actually withdrew, there seemed a strong likelihood that Bush would stubbornly (as he always has been) stick with her nomination up to, and through, the judiciary committee hearings.
1.22.2007 1:55am
Lev:

You expect us to belive Alito wasn't following what was happening with Mier's nomination because he lived in Jersey?


Yeah. You gotta problem wid dat?
1.22.2007 2:20am
Jeremy T:
Cornellian and Mark Field,

Good God y'all. The Eleventh Amendment is absolutely a soveriegn immunity provision. It was adopted to overturn Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), which held that states were suable by noncitizens in federal court.

Mark Field,

I didn't ever say that the Eleventh Amendment applied to the federal government. Cornellian said that the concept of sovereign immunity did not appear in the Constitution, and I pointed out that it did. Before you fire off snarky responses, try reading what people have written next time.
1.22.2007 5:35am
NI:
David, the point isn't that there is a single line with which one disagrees; the point is what that single line actually says. And here (actually a few lines) is what it actually says:

"If we were to derive a rule exclusively to address the uncontested facts of this case, Atwater might well prevail. . . . But we have traditionally recognized that a responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review. See, e.g., United States v. Robinson, 414 U. S. 218, 234-235 (1973). Often enough, the Fourth Amendment has to be applied on the spur (and in the heat) of the moment, and the object in implementing its command of reasonableness is to draw standards sufficiently clear and simple to be applied with a fair prospect of surviving judicial second-guessing months and years after an arrest or search is made. Courts attempting to strike a reasonable Fourth Amendment balance thus credit the government's side with an essential interest in readily administrable rules."

Now, I am very sorry but a true textualist would have gone completely ballistic and done what he could to distance himself from that statement no matter how much he liked the rest of the opinion. That is so completely contrary to textualism that it is as if somebody were to claim that atheism was consistent with Catholic doctrine. I stand by what I said earlier: by signing on to that opinion with that language Scalia, the so-called textualist, exposed himself as a result-oriented activist apparatchik (since you don't like the term hack). It disqualifies him from ever again complaining about his colleagues departing from clear constitutional text.
1.22.2007 8:18am
Mark Field (mail):

Good God y'all. The Eleventh Amendment is absolutely a soveriegn immunity provision. It was adopted to overturn Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), which held that states were suable by noncitizens in federal court.


That still doesn't make it a sovereign immunity provision. The Eleventh Amendment regulates jurisdiction, not the substantive issue of immunity.


Mark Field,

I didn't ever say that the Eleventh Amendment applied to the federal government. Cornellian said that the concept of sovereign immunity did not appear in the Constitution, and I pointed out that it did. Before you fire off snarky responses, try reading what people have written next time.


The issue Cornellian raised had to do with whether federal government contractors are immune from suit. The Eleventh Amendment wouldn't apply to that case.

It's not just my reading skills that need work; apparently my snark does too. My original post was in no way intended to be snarky.
1.22.2007 11:44am
David M. Nieporent (www):
NI: leaving aside that Scalia is an originalist, what "clear constitutional text" did the Court depart from?
1.22.2007 11:56am
Jeremy T:
Mark,

The fact that the Eleventh Amendment does not use the words "sovereign immunity" and the fact that it is a jurisdictional law doesn't mean it's not directed at sovereign immunity. It clearly is, as the background against which it was ratified (Chisholm v. Georgia) indicates.
1.22.2007 12:02pm
Mark Field (mail):

The fact that the Eleventh Amendment does not use the words "sovereign immunity" and the fact that it is a jurisdictional law doesn't mean it's not directed at sovereign immunity. It clearly is, as the background against which it was ratified (Chisholm v. Georgia) indicates.


I agree that Chisholm raised a sovereign immunity issue which caused the controversy that led to the 11th A. But even I am enough of a textualist not to describe the 11th A as itself a substantive sovereign immunity provision. It just doesn't do that. It leaves the substantive issue to state courts (with a footnote about Congressional power to abrogate state sovereign immunity under the post-Civil War amendments).
1.22.2007 12:52pm
NI:
David, the right is to be secure against unreasonable seizures; absolutely nobody that I know of thinks the seizure (arrest) of the plaintiff was reasonable. There is no textual authority for limiting a right because the results are unwieldy, which raises a standing gripe I have against conservatives who claim that judges should interpret rather than make law.

If you're going to be an originalist, or a strict constructionist, then the President has no authority over the Air Force or the Marines since Article II says he is the commander in chief of the Army and Navy but doesn't mention the Air Force or Marines. Small claims courts are unconstitutional since the Seventh Amendment provides for jury trials for all $20 disputes. National parks are unconstitutional since they don't fit within the list of reasons given in Article I that the federal government may acquire land. And the Commerce Clause jurisprudence, including Raich, is simply laughable.

But since few find those results palatable, judges, liberal and conservative alike, do mighty linguistic gymnastics to evade the plain meaning of the text. Brennan/Warren/Douglas did it, and Scalia does it. The real difference between them is that Brennan didn't pretend to be what he wasn't: an originalist and/or strict constructionist.

I don't really care whether Scalia calls himself an originalist, a textualist, or a strict constructionist. What he is, is a hypocrite. I myself am one of those who believes the Constitution is a living document; it saves me from believing in jury trials for $20 disputes.
1.22.2007 1:08pm
Falafalafocus (mail):

If you're going to be an originalist, or a strict constructionist, then the President has no authority over the Air Force or the Marines since Article II says he is the commander in chief of the Army and Navy but doesn't mention the Air Force or Marines. Small claims courts are unconstitutional since the Seventh Amendment provides for jury trials for all $20 disputes. National parks are unconstitutional since they don't fit within the list of reasons given in Article I that the federal government may acquire land. And the Commerce Clause jurisprudence, including Raich, is simply laughable.

I'm personally an originalist in terms of interpretation. I'll break down your paragraph, hopefully to cut down on your standing gripe:

1. the President has no authority over the Air Force or the Marines since Article II says he is the commander in chief of the Army and Navy but doesn't mention the Air Force or Marines.

Leaving aside the fact that the Marines are still at least arguably tied to the Navy through that "branch's" history, the fact that the President is currently commanding the Air Force does not worry me much. No litigant has yet to come to SCOTUS complaining that they are illegally conscripted into an unconstitutional military. If one makes that colorable claim, and finds a way to avoid the various procedural pitfalls, then we can talk about the President's excesses. The originalist motto is that we don't fix what ain't broke. You may not agree, which is your right.

2. Small claims courts are unconstitutional since the Seventh Amendment provides for jury trials for all $20 disputes.

As I am sure that you are aware, the constitution sets down the minimum requirements and federal statutes set down the outliers. In any event, from a purely textual analysis your complaint breaks down. If a person is entitled to a trial by jury for any claim over 20 dollars, who is to hear it? I see no court which is required in the federal constitution save the United States Supreme Court. As to that court, we cannot have a jury trial in SCOTUS because that court's constitutional jurisdiction is limited only to:

Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The fact that there is this textual contradiction means nothing, however, because an originalist who looks at the amendments and the text of the constitution also looks at the history of the changes. Your belief in jury trials is essentially irrelevant.

3. National parks are unconstitutional since they don't fit within the list of reasons given in Article I that the federal government may acquire land.
Agreed. But then, I don't imagine that you'll find many cases where Scalia and/or Thomas are standing firmly on the side of national parks, citing verse and text for their constitutional support.

4. And the Commerce Clause jurisprudence, including Raich, is simply laughable.
For your general premise "the Commerce Clause jurisprudence . . . is simply laughable": Agreed. As to your inclusion of Raich, I give a qualified agreed. As I'm sure you'll find in the archives of VC, there are quite a few people who believe that Raich was less about the commerce clause and more about administrative law (and whether the AG's interpretation was within the legal mandate of the FDA).

The fact that the result may be unpalaple to my political views does not change any of this.
1.22.2007 1:36pm
NI:
Falafalafocus, I think you are absolutely right that there are all kinds of procedural reasons why none of the examples I cited is likely to go to SCOTUS, though I strongly disagree with your reading of the Seventh Amendment. The Seventh Amendment speaks in terms of a right, and if I have a constitutional right to something (in this case a jury trial on a $20 claim), it logically follows that Congress has a duty to create the framework for it to happen. You would not seriously argue, I hope, that Congress could do away with criminal trial by jury simply by re-writing the jurisdiction statute?

But all of that said, we don't have to quibble about the Air Force or national parks because we have two real life examples of the problems I cited: Atwater and Bell Helicopter. In those two cases judicial conservatives ignored plain textual meaning to achieve a desired result.
1.22.2007 1:57pm
Falafalafocus (mail):
But NI,

Your argument that a right requires procedural framework requires that we tear up several sections of Article 3, at least if you want a federal jury. If congress were to statutorily create a federal jury for such a right, based solely on the language seen in the current seventh amendment, I would argue that SCOTUS would have no review authority over those jury trials because the federal jurisidiction, being substantially supplanted by the seventh amendment, effectively evicerates Supreme Court review.

As to your complaint about judicial conservatives, I appologize for continuing to quibble, but is Scalia a judicial conservative, or a judicial originalist? Earlier you indicated the former. Now you imply the later.
1.22.2007 2:08pm
NI:
Falafalafocus, if I am the sole source of food for my children, and they have a right to dinner (which I will assume for this hypothetical), then I must, as a matter of justice, give my children food. Giving them food is not a matter of grace at that point; it is a matter of right since I hold the monopoly on something to which they are entitled as a matter of right.

If we had multiple court systems all competing in the free market I might agree with you but the fact is Congress has the monopoly on creating federal jurisdiction. It therefore must, as a matter of both justice and logic, provide the framework for litigants (both civil and criminal) to do everything within the court system that the Constitution says they have the right to do. And if that requires tearing up several other sections of Article III, well, yet another illustration of why nobody takes the text as seriously as some conservatives claim. Otherwise instead of enforceable rights the Constitution becomes mere nice sentiment, similar to the old Soviet Constitution which also wasn't worth anything.

I hate to quibble back, but a judicial originalist is a judicial conservative, just as a Presbyterian is a Calvinist and just as a St. Bernard is a dog.
1.22.2007 2:51pm
Falafalafocus (mail):
"the fact is Congress has the monopoly on creating federal jurisdiction."

At this point, I'd just be repeating myself. Instead, I'll merely point out that the historical fact that Congress has a monopoly on power does not mean that Congress is mandated to use that power. If that were the case, then the fact that the House has the sole authority to impeach and the Senate has the sole authority to convict (which has been affirmed by SCOTUS) mandates that the house always impeach and the Senate always convict.

As for your statement that an judicial originalist is a judicial conservative, I humbly disagree. A judicial conservative believes in natural law as a basis for decision. This is to be somewhat slightly differentiated from a political consevative who tends to think in terms of status quo and a judicial originalist, who believes that the text of the constitution, and the historical reasons for the text chosen mandate the outcome of the case. All three may end up backing right-wing results, but that does not make all three republican, and it does not mean that an originalist equals a judical conservative or a political conservative.

Or to use your hypothetical, both the Presbyterian and the Jew believe in G-d (i.e., they both get to the same result). Are they therefore both the same religion? Or even further along your line of thinking: both a pomeranean and a boxer are dogs. Are they therefore interchangeable for your average dog lover?

Ergo, your parent/child hypothetical. But I ask you to expand it a bit.



Logically then,

first amendment only protects "the freedom of speech" and not "speech", congress should prohibit all speech and permit only "the freedom of speech"


, then I look to the constitution to see what courts are mandated by the constitution. Seeing only the US Supreme
1.22.2007 3:28pm
Falafalafocus (mail):
"the fact is Congress has the monopoly on creating federal jurisdiction."

At this point, I'd just be repeating myself. Instead, I'll merely point out that the historical fact that Congress has a monopoly on power does not mean that Congress is mandated to use that power. If that were the case, then the fact that the House has the sole authority to impeach and the Senate has the sole authority to convict (which has been affirmed by SCOTUS) mandates that the house always impeach and the Senate always convict.

As for your statement that an judicial originalist is a judicial conservative, I humbly disagree. A judicial conservative believes in natural law as a basis for decision. This is to be somewhat slightly differentiated from a political consevative who tends to think in terms of status quo and a judicial originalist, who believes that the text of the constitution, and the historical reasons for the text chosen mandate the outcome of the case. All three may end up backing right-wing results, but that does not make all three republican, and it does not mean that an originalist equals a judical conservative or a political conservative.

Or to use your hypothetical, both the Presbyterian and the Jew believe in G-d (i.e., they both get to the same result). Are they therefore both the same religion? Or even further along your line of thinking: both a pomeranean and a boxer are dogs. Are they therefore interchangeable for your average dog lover?
1.22.2007 3:29pm
Falafalafocus (mail):
Appologies for the double post. I need to become friends with the preview button.
1.22.2007 3:29pm
NI:
Well, I think at this point we're both repeating ourselves so I will just reiterate that the problem with your position is that then our Constitution becomes indistinguishable from the old Soviet Constitution -- nice words on paper but no enforceable rights. A right is only a right if you can enforce it; otherwise it is completely illusory.

On the various permutations of judicial conservative, there are Christians who talk in tongues and there are Christians who believe talking in tongues is of Satan, but there are basic, core beliefs on which all Christians agree. You can set whatever boundaries you like between originalists, textualists, and political conservatives, but what they all have in common (that is relevant to this discussion anyway) is that they claim that they, unlike them durned liberals, interpret law rather than make law. And my point is that that's nonsense. Unless you want a mechanistic, literalistic approach, which leads to the results I've been arguing against, __everybody__ makes law rather than interprets it.
1.22.2007 4:18pm
John Herbison (mail):
To give a dead horse one more flogging, how can anyone contend (without chuckling) that any member of the Court in the Bush v. Gore majority is not a "result-oriented activist hack"? If Justices Scalia and Thomas had adhered to originalism in that case, I wonder who President Gore would have appointed to succeed Chief Justice Rehnquist and Justice O'Connor?
1.22.2007 6:17pm
David M. Nieporent (www):
David, the right is to be secure against unreasonable seizures; absolutely nobody that I know of thinks the seizure (arrest) of the plaintiff was reasonable. There is no textual authority for limiting a right because the results are unwieldy, which raises a standing gripe I have against conservatives who claim that judges should interpret rather than make law.
NI, anybody who claims the existence of "clear constitutional text" based on the existence of the word "unreasonable" is being, well, unreasonable.

Now, one can claim the court got the result wrong, but to claim that Scalia ignored "clear constitutional text" because you did a survey of a few of your friends and they thought it was an unreasonable arrest is, well, results-oriented criticism.

In fact, the court's opinion showed that arrests for misdemeanors have longstanding historical precedent.
1.22.2007 6:23pm
Jeremy T:
The result in Bush v. Gore was correct, but the reasoning was shabby. The case should have turned on the Constitution's plenary delegation of elector appointment power to the legislature, and held that no state supreme court (or any court) may review decisions of the state legislatures with respect to presidential elector selection and qualification.

But that case came out on such a short time-frame that it's understandable the decision has some logical flaws.
1.22.2007 6:30pm
NI:
OK, David, I'll bite. What's the argument that that arrest was reasonable?

I may not know precisely where the "reasonable" line gets drawn in all cases, but that is not a tough question on the facts of this particular case.

But that's not where the Court's activism lay in any event. Rather than say that reasonable is a bit difficult to define and so the lower courts would have some leeway, the Court said that NOBODY gets to sue the police over a misdemeanor arrest whether unreasonable or not. That because it can't be defined precisely they will strike "reasonable" from the text altogether. That is Activism with a capital "A".
1.22.2007 7:55pm
Falafalafocus (mail):

You can set whatever boundaries you like between originalists, textualists, and political conservatives, but what they all have in common (that is relevant to this discussion anyway) is that they claim that they, unlike them durned liberals, interpret law rather than make law. And my point is that that's nonsense. Unless you want a mechanistic, literalistic approach, which leads to the results I've been arguing against, __everybody__ makes law rather than interprets it.


Hmm. I wonder if that's true (that all those magic labels we use to decribe what are essentially far righties in robes are meaningless) or only appears to be so in the context of specific cases. Let's find out. What is the conservative position on hearsay of nontestimonial witnesses in relation to the Confrontation Clause? Arguably, the conservative jurist would point out that Ohio v. Roberts, being well established precedent which had no serious challenges, should be the law of the land. Or perhaps the conservative would say "what interpretion keeps the most criminals in jail?" and finding that admitting the hearsay does the trick, votes in accord.

What about those weirdos on the court then? Hmm. . .

Perhaps if we changed gears. I know, medical marijuana! The only good result that a conservative can come to on that issue is to side with the government, just like Justice Thomas did. No, wait. . . Hmm. I've got it. They must be liberal! Those durned liberals! You have convinced me, NI. let's you and I join in a campaign to get some real conservatives onto the bench, not like those panty-waist hippy, criminal hugging judges we have there today!

Of course, it's possible that the Justices really are following what they, in good faith, believe is a jurisprudentially sound system of interpretation. No, that can't be it.
1.25.2007 3:27pm