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Judges Make the Debate:

Last night, Bob Schieffer asked both candidates whether they would nominate judges who disagreed with their respective views on Roe v. Wade. Here is the transcript:

SCHIEFFER: Senator McCain, you believe Roe v. Wade should be overturned. Senator Obama, you believe it shouldn't.Could either of you ever nominate someone to the Supreme Court who disagrees with you on this issue? Senator McCain?

MCCAIN: I would never and have never in all the years I've been there imposed a litmus test on any nominee to the court. That's not appropriate to do.

SCHIEFFER: But you don't want Roe v. Wade to be overturned?

MCCAIN: I thought it was a bad decision. I think there were a lot of decisions that were bad. I think that decisions should rest in the hands of the states. I'm a federalist. And I believe strongly that we should have nominees to the United States Supreme Court based on their qualifications rather than any litmus test.

Now, let me say that there was a time a few years ago when the United States Senate was about to blow up. Republicans wanted to have just a majority vote to confirm a judge and the Democrats were blocking in an unprecedented fashion. We got together seven Republicans, seven Democrats. You were offered a chance to join. You chose not to because you were afraid of the appointment of, quote, "conservative judges."

I voted for Justice Breyer and Justice Ginsburg. Not because I agreed with their ideology, but because I thought they were qualified and that elections have consequences when presidents are nominated. This is a very important issue we're talking about. Senator Obama voted against Justice Breyer [sic] and Justice Roberts on the grounds that they didn't meet his ideological standards. That's not the way we should judge these nominees. Elections have consequences. They should be judged on their qualifications. And so that's what I will do.

I will find the best people in the world -- in the United States of America who have a history of strict adherence to the Constitution. And not legislating from the bench.

SCHIEFFER: But even if it was someone -- even someone who had a history of being for abortion rights, you would consider them?

MCCAIN: I would consider anyone in their qualifications. I do not believe that someone who has supported Roe v. Wade that would be part of those qualifications. But I certainly would not impose any litmus test.

SCHIEFFER: All right.

OBAMA: Well, I think it's true that we shouldn't apply a strict litmus test and the most important thing in any judge is their capacity to provide fairness and justice to the American people. And it is true that this is going to be, I think, one of the most consequential decisions of the next president. It is very likely that one of us will be making at least one and probably more than one appointments and Roe versus Wade probably hangs in the balance.

Now I would not provide a litmus test. But I am somebody who believes that Roe versus Wade was rightly decided. I think that abortion is a very difficult issue and it is a moral issue and one that I think good people on both sides can disagree on. But what ultimately I believe is that women in consultation with their families, their doctors, their religious advisers, are in the best position to make this decision. And I think that the Constitution has a right to privacy in it that shouldn't be subject to state referendum, any more than our First Amendment rights are subject to state referendum, any more than many of the other rights that we have should be subject to popular vote.

So this is going to be an important issue. I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through. I'll just give you one quick example. Senator McCain and I disagreed recently when the Supreme Court made it more difficult for a woman named Lilly Ledbetter to press her claim for pay discrimination. For years, she had been getting paid less than a man had been paid for doing the exact same job. And when she brought a suit, saying equal pay for equal work, the judges said, well, you know, it's taken you too long to bring this lawsuit, even though she didn't know about it until fairly recently. We tried to overturn it in the Senate. I supported that effort to provide better guidance to the courts; John McCain opposed it.

I think that it's important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that's the kind of judge that I want.

SCHIEFFER: Time's up.

MCCAIN: Obviously, that law waved the statute of limitations, which you could have gone back 20 or 30 years. It was a trial lawyer's dream.

Related Posts (on one page):

  1. Judges Make the Debate:
  2. The Candidates and the Court:
Angus:
1. Obama voted against Breyer?? (Yeah, I know McCain had a senior moment and meant Alito)

2. This doozy:
I do not believe that someone who has supported Roe v. Wade that would be part of those qualifications. But I certainly would not impose any litmus test.
Ummmm...that would then be a litmus test Senator McCain.
10.16.2008 11:22am
Connecticut Lawyer (mail):
Tellingly, Obama never responded to McCain's point that McCain voted to confirm justices that he disagreed with - Ginsburg and Breyer - while Obama vote against justices - Roberts - on ideological grounds.

That sums up the difference between them in a nutshell. McCain drives Republicans crazy because he is not a down-the-line conservative. Obama thrills Democrats because he is a down-the-line liberal.

G-d help us all.
10.16.2008 11:25am
JB:
I do not believe that someone who has supported Roe v. Wade that would be part of those qualifications.

What a terrible response. That grammatically awful sentence does not make it clear whether he is in fact imposing a litmus test ("Someone who supported Roe v. Wade would not be considered qualified") or not considering the issue ("Whether someone supported Roe v. Wade would not be considered"). Whatever he meant, he did not mean what he said, and he leaves himself open for both sides to read whatever they want into his statement.
10.16.2008 11:28am
wm13:
"he leaves himself open for both sides to read whatever they want into his statement."

OMG! I could never vote for a politician who does that. My mind is made up.
10.16.2008 11:34am
JB:
wm13,
I wasn't critiquing his message, but his effectiveness. At the key moment in that part of the debate, when the table was set and he was served what ought to have been an easy softball, he whiffed, and whiffed big. No matter what his position, no matter what he was trying to do, he made a huge tactical error there.

Politicians should be punished for running lousy, counterproductive campaigns. The Democrats, having lost twice largely due to incredibly crappy organization and message control, finally nominated someone who can master the basic requirements of a candidacy; the Republicans, who got lazy facing such doofuses, can no longer get away with their brand of lousy campaigning--politics of personal destruction, dog-whistling, and distracting asides. Hopefully the 2012 election will feature much higher-quality campaigning on both sides. Even a return to the 1988-96 level of competence would be refreshing.
10.16.2008 11:40am
Matt_T:
As bad as McCain's "not a litmus test" litmus test is, Obama comes out looking worse:

I think that it's important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that's the kind of judge that I want.

Obama, the person we're supposed to believe is legally and otherwise erudite, can only make an emotionally charged appeal to "fairness" that totally disregards the role of the judiciary. He would have been much better off - and probably even furthered his cross-aisle appeal - to say that he wants judges that enforce the clear mandates of the Constitution but will defer to the sort of remedial or leveling legislative measures he would like to see.
10.16.2008 11:40am
Johnny Canuck (mail):
"he leaves himself open for both sides to read whatever they want into his statement."

OMG! I could never vote for a politician who does that. My mind is made up.

It is one thing to do it deliberately, but to do it unintentionally, just helps image of fuzzy headed senior
10.16.2008 11:43am
Johnny Canuck (mail):
"fairness" that totally disregards the role of the judiciary.

What have Americans done with the historic role of Courts of Equity- the king's conscience? Is that why the (bad?) pay equity decision

I suspect those undecided voters probably think courts that treat people fairly would be a good thing.
10.16.2008 11:48am
Elliot123 (mail):
"I think that it's important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that's the kind of judge that I want."

So, if the judge disagrees with the legislature about what is fair, he should act on his own views? If there is no law about what the judge thinks is fair, he should act alone? Does nobody else matter besides the judge and his personal views?

This sounds like something written by the people who rant about "Black Robed Masters."
10.16.2008 11:50am
smitty1e:
Which Roosevelt: Teddy or Franky?
10.16.2008 11:51am
lesser ajax:
For the record, H.R. 2831 did not "waive[] the statute of limitations", but instead stated that the cause of action accrues "when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when a person is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice."

Hardly a trial lawyer's dream (20 or 30 years worth of claims), since the change would only have an effect when the person has been subjected to discriminatory pay within the last 180 or 300 days.
10.16.2008 11:56am
Sarcastro (www):
Fairness and equality have No Place in Constitutional discourse! Obama is a fool to bring it up, and this clearly means he's for unfettered judicial MADNESS!

Obama has just lost the People-Who-Hate-Obama-Already vote!
10.16.2008 12:00pm
neurodoc:
I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through...I think that it's important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will.
Ledbetter was a matter of statutory interpretation, that is what Congress had enacted, wasn't it? So how would "a sense of what real-world folks are going through" come into play in deciding a case like Ledbetter? By "if nobody else will," Obama can't possibly mean "if Congress won't," can he?

Damn if it doesn't sound like Obama is calling for the Supreme Court to function as the Supreme Legislature. I lean liberal on Supreme Court appointments, but this is too "liberal," if liberal it is, for me.
10.16.2008 12:03pm
Brian Mac:
Forget Roe vs. Wade, the real travesty was Alien vs. Predator!
10.16.2008 12:05pm
Loophole1998 (mail):
I agree with McCain on the judges issue--despite his inartful way of explaining his position. But I'm voting for Obama for other reasons (mainly due to Bush's policies of the last 8 years and the Palin pick). You can't have everything.
10.16.2008 12:07pm
Sarcastro (www):
neurodoc has a point! Title VII has NOTHING to do with fairness! Congressional intent has NOTHING to do with statutory interpretation, especially if fairness was part of it!

And Statutes of Limitation are purely creatures of statute! Principles of equity and fairness are un-American, man!
10.16.2008 12:10pm
U.Va. Grad:
Forget Roe vs. Wade, the real travesty was Alien vs. Predator!

Thankfully, that was overturned on rehearing in Alien vs. Predator: Requiem.
10.16.2008 12:11pm
John Burgess (mail) (www):

You can't have everything.


No, one never can. But do have a plentiful supply of KY-Jelly on hand, as well as some Preparation H. We're all going to be needing it. If you're clever enough, you might start stockpiling now, as there's sure to be a bull market for them.
10.16.2008 12:12pm
neurodoc:
Fairness and equality have No Place in Constitutional discourse! Obama is a fool to bring it up...
Ledbetter, the example that Obama chose for his pandering purpose, required the Court to apply the law as enacted by Congress to the instant facts of that case, not to engage in Constitutional analysis. "Fairness and equality" were not at issue, and it is impermissible for a judge to decide a case on the basis of what is not at issue in the case before him/her.
10.16.2008 12:15pm
jpe (mail):

So how would "a sense of what real-world folks are going through" come into play in deciding a case like Ledbetter?

If we're in a state of interpretive equipoise, then fairness can be the determinative criterion.
10.16.2008 12:15pm
Johnny Canuck (mail):
Ledbetter was a matter of statutory interpretation, that is what Congress had enacted, wasn't it?

Ledbetter was a 5-4 decision.
Sounds like it only needed one fewer pre 1930's judge.
10.16.2008 12:16pm
Ben P:
The part that jumped out at me came immediately after that excerpt. Where Obama maintained he was willing to support a ban on late term or partial birth abortions as long as it had an exception for the "life and health" of the mother.

McCain's response was to use "finger quotes" (scare quotes) to say something to the effect of

He's for the ""health"" for the mother. You know, that's been stretched by the pro-abortion movement in America to mean almost anything. That's the extreme pro-abortion position.


I may be presuming too much about what other people know, but I think this is a fundamental mistake by McCain in that he doesn't seem to be focusing on who his audience should have been.

Single issue pro-life voters are well aware that one avenue of the debate about abortion is the extent exceptions are allowed for "life and health" and that in the past some have tried to stretch health beyond easily recognizable meaning.

However, I don't think most people who aren't intimately familiar with the abortion debate are really familiar with this concept.

The former group is already solidly in the McCain camp, the latter group are the people he needs. To me, even though I knew what he was talking about, he came across as unecessarily sarcastic and hostile about the "health" of a mother being an "extreme position."
10.16.2008 12:18pm
neurodoc:
Sarcastro, you have no training in the law, you're just indulging yourself in childish nattering here on a law blog, aren't you?
10.16.2008 12:20pm
devil's advocate (mail):

This doozy:

I do not believe that someone who has supported Roe v. Wade that would be part of those qualifications. But I certainly would not impose any litmus test.


For folks who get super rational about this, you can certainly call this a contradiction. But it seems to me fairly obvious this statement just incompletely explains that McCain would look at the basis of their views, e.g., they oppose Roe v. Wade as judge made law, and in the context of numerous other positions where RvW is not the single deciding factor.

Maybe Angus's real allegation here is McCain would tacitly apply a litmus test but isn't willing to say so. That cannot be conclusively established one way or another.

But, on balance, McCain's answer to this question is compelling regarding the role of the courts and presidential appointment. You've got to remove the beam from your eye before you get after the spec in McCain's.

I think he really understands this area. I'm not convinced I would love everybody he picked to put on the court, but the evidence is strong both in his votes for nominees with whose judicial philosophy he disagrees as well as his diplomacy around the filibustering judges issues that he has a more objectively defensible position here.

I even think that would sink in for less legally sophisticated observers. So snide observations about slips of the tongue or poorly explicated criteria can't take away a point I'd say he actually won, for once -- and from a technical debating standpoint he actually addressed the question of whether he could consider a nominee who didn't meet the R v W criterion, whereas Obama simply announced some other kind of fairness test that might amount to an RvW litmus test as well.

If you want a judge to treat a woman fairly and that is your standard, it seems a short leap to the notion that restricting abortion isn't treating a woman fairly --- ergo, yes Obama has a litmus test.

Brian
10.16.2008 12:26pm
David Warner:
Actions. Words.

McCain confirmed the pro-Roe Breyer and Ginsberg. Obama rejected the (likely) anti-Roe Roberts and Alito. It is clear who is more interested in relative pH levels.

The rest is commentary.
10.16.2008 12:30pm
Randy R. (mail):
Bob Schieffer has made it clear that he has a warm relationship with McCain that goes back a long way. Last night he was the moderator. Why hasn't anyone here been up in arms on the obvious unfair and slanted treatment he gave McCain during the debates?

Like how everyone was sure Gwen Ifill favored Obama because she wrote a book? Even though there was no evidence of her supposed favoritism?

Oh, that's right. Don't point out hypocracy. Shut up, Randy.
10.16.2008 12:31pm
Sarcastro (www):
[neurodoc I am an attorney, though I plead guilty to childish nattering.

My clumsy attempt at a point above was that Congressional intent is important in statutory interpretation when the text is abiguous (and to some, even when it isn't).

With Title VII, fairness was a large part of the congressional purpose, and this has bearing on intent, and thus on statutory interpretation.]
10.16.2008 12:32pm
Melancton Smith:
I liked this from Obama:


And I think that the Constitution has a right to privacy in it that shouldn't be subject to state referendum, any more than our First Amendment rights are subject to state referendum, any more than many of the other rights that we have should be subject to popular vote.


Too bad I know which 'other rights' are not in the 'many' that Obama supports.

The A/V of the statement shows more than the stark transcript. There was a hesitation between First Amendment rights and other rights that seemed to me to be him skipping over a certain right that is proximate to the First Amendment.

McCain could have pinned Obama to the wall and win back some of the 'sportsman' voters that 'want to believe' that Obama supports their 'sport'.
10.16.2008 12:35pm
Bored Lawyer:
How did it come about that "imposing a litmus test" is a bad thing? That is a piece of liberal rhetoric that somehow has become mainstream and is a way of knocking Republicans (but never Democrats -- they never impose litmus tests, do they?).

According to many, Roe v. Wade was an abomination of legal reasoning. If a jurist thinks it is a great opinion, then that should disqualify him or her from the bench. What's wrong with saying that?

(Consider the following hypothetical. Judge X is a District Judge who thinks that Lochner was a great decision and our jurisprudence ought to return to that line ASAP. Would that view disqualify him from a Supreme Court seat?)
10.16.2008 12:36pm
Ex parte McCardle:
Sarcastro for Attorney General!
10.16.2008 12:39pm
FantasiaWHT:
Actions > Words.

The scary thing about Obama is that he sounds like a rational centrist, proposing some fairly conservative ideas at times. He can be completely safe in doing so because he knows that Pelosi and Reid will never put anything like that in front of him to sign.
10.16.2008 12:42pm
john d (mail):
Interesting. It's hard for me to imagine granting rights, and then a few years later taking them away incident to a different sitting of the bench. It didn't work with prohibition (on other terms) where drinking was deemed illegal and then later was granted legality again. The market forces were always at work, whether it was illegal or not. And it was interesting to hear Obama say that the decisions should be left to the individual, not the collective will qua legislative means. People are going to get abortions whether it is legal or not. I base my judgment on Roe on other principles, but as a practical matter, overturning Roe won't change much as far as the outcome goes.

Who knows...maybe some time down the road, people will (irrationally) want to overturn Brown. This is about individual rights granted versus collective will hindered. Interestingly, it seems Obama comes out on individual rights, and on the reality of how people make such decisions with doctors/clergymen.

But then, if McCain wins, I don't think he would for a second nominate a judge who would overturn Roe. He's not a batty 'conservative' like Palin.

god help us if Palin were to sit the oval office though...
10.16.2008 12:45pm
Afraid (mail):
"the most important thing in any judge is their capacity to provide fairness and justice to the American people."

No, Obama, the most important thing for a judge to do is to make sure laws adhere to the Constitution of the United States, not to provide your convoluted sense of "fairness" and "justice".
10.16.2008 12:46pm
Steve:
Yes, much credit to Sen. McCain for voting to confirm Breyer and Ginsburg, who were recommended to President Clinton by Orrin Hatch as acceptable compromise candidates and who were confirmed by votes of 87-9 and 96-3, respectively. That really shows a lot of independence from your party.
10.16.2008 12:47pm
paul lukasiak (mail):
For folks who get super rational about this, you can certainly call this a contradiction. But it seems to me fairly obvious this statement just incompletely explains that McCain would look at the basis of their views, e.g., they oppose Roe v. Wade as judge made law, and in the context of numerous other positions where RvW is not the single deciding factor.

I think the statement was far too ambiguous --but Obama's statements were clearly all about ignoring the law as written, and doing what 'feels good', which despite the fact that I'm as "liberal" as they come, is IMHO a really bad idea. (CHanging the legislation is the way to go, and Obama was right to support that change -- but relying on judges for 'fairness' when the law is 'unfair' turns the courts into ideological battlegrounds)

I wish Schieffer had phrased the question in terms of "settled law" and "established precedent" using Roe v Wade and Brown v Board of Ed as examples.
10.16.2008 12:52pm
Angus:
No, Obama, the most important thing for a judge to do is to make sure laws adhere to the Constitution of the United States, not to provide your convoluted sense of "fairness" and "justice".
Except in Obama's example, there were two plausible interpretations of the law in question. One which favored the woman discriminated against. One which favored the company that engaged in discrimination. What Obama is saying is that if both are plausible (and they are), give it to the person who was unjustly harmed.

Given that the jury sided with the woman, I'd say Obama's position is much more popular among the average person than McCain's.
10.16.2008 12:54pm
James Gibson (mail):
For those interested, because of his Heller Dissent ruling Breyer now holds the moniker of "shoot first and ask questions later." A little long compared to the gun control movements moniker against Alito of "machinegun sammy" but also not what Obama would want repeated about one of his favorite justices. In the end Obama showed he does hold litmus tests while McCain can cross party lines. His candidates will be pro abortion, pro-gun control, and any other liberal position being held that year.
10.16.2008 12:59pm
The General:
I love how liberals say fairness and equality and justice require them to ignore the laws and constitution as written and just impose their politically preferred outcomes. Why even have democracy?
10.16.2008 1:02pm
Nunzio:

Obama's view of the judiciary isn't very nuanced. "I want judges to impose my view of fairness and justice to the American people."

Isn't this Sarah Palin's view of the judiciary as well.

Guess you don't need a law degree or to be well versed in Supreme Court decisions afterall.
10.16.2008 1:08pm
pluribus:
Elliot123):

So, if the judge disagrees with the legislature about what is fair, he should act on his own views? If there is no law about what the judge thinks is fair, he should act alone? Does nobody else matter besides the judge and his personal views?

Of course, the judges should always vote for unfairness. Unfairness is one of the foundational values of the American judicial system. Our Declaration of Independence and our Constitution are based on the self-evident truth that governments should treat their people unfairly. The courts in America are essentially unfair, as they should be. And Obama thinks that fairness is a respectable value? Ridiculous! If he is elected, and if he nominates fair-minded judges, I trust that Congress and the people will rise up in protest! Impeachment might be appropriate.
10.16.2008 1:08pm
David Warner:
john d,

"god help us if Palin were to sit the oval office though..."

There are many who have sat there before who have believed that She would. Same with Obama.

Bigotry's uncool, be it color, class, or creed.
10.16.2008 1:08pm
Oren:
McCain says: I'm a federalist.
His voting record: No so much.

Now, if he wants to say than banning partial birth abortion is a principled matter that is more important than federalism, that's fine. I have no qualms with anyone that honestly believes that the ban is a worthy policy that ought to be implemented by Federal law and votes for it. McCain, however, wants to claim that Roe v. Wade is wrong on federalist grounds which implies to me that the partial birth abortion ban is also wrong on federalist grounds.

Standing for federalism only when your ox is being gored doesn't impress me.
10.16.2008 1:10pm
Brian K (mail):
I see I am not the only one who found mccains speech opposing litmus test to sound remarkably like he was going to impose litmus tests.
10.16.2008 1:12pm
Sarcastro (www):
The General has a point. I always here Liberals saying ignore the Constitution and for judges to rule us all.

And props to FantasiaWHT for knowing what Obama's going to do as President based on his many Communist actions, not his silly words.

Like that time he made all those re-education camps back in Illinois, or all acting as a Community Organizer like Stalin, or when he always goes around acting all Marxist all the time.
10.16.2008 1:12pm
David Warner:
James Gibson,

"His candidates will be pro abortion, pro-gun control, and any other liberal position being held that year."

And yet justices serve terms typical longer than a year. Positions change, and justices can too. Souter and Stevens for instance. Nowhere is it written that such change must move in only one direction.
10.16.2008 1:14pm
David Warner:
Nunzio,

"Obama's view of the judiciary isn't very nuanced. "I want judges to impose my view of fairness and justice to the American people."

Isn't this Sarah Palin's view of the judiciary as well."

Unlike the other candidates, Palin actually has a record of nominating justices to the Supreme Court of Alaska. Care to back up your contention with facts?
10.16.2008 1:15pm
Bored Lawyer:

Except in Obama's example, there were two plausible interpretations of the law in question. One which favored the woman discriminated against. One which favored the company that engaged in discrimination. What Obama is saying is that if both are plausible (and they are), give it to the person who was unjustly harmed.


This summation exemplifies what is wrong with the "fairness" mode of jurisprudence. This summary begs the question -- the woman CLAIMED she was discriminated against; the employer denied it. Why does she get the benefit of the "fairness" equation? Maybe the employer had a legitimate reason to fire her, and, because she is a woman, she has a convenient excuse: discrimination. The "fairness" jurisprudence has to assume the merits of the claim -- which is precisely the issue before the Court.

Now consider the issue before the Supreme Court in that case -- statutes of limitation. Those are intended to protect a defendant from stale claims that are hard to defend against. That is particularly the case in discrimination cases where usually the concrete facts -- worker X was fired/demoted/not hired are not in dispute, and the real issue is what was in the mind of the decisionmaker -- a forbidden discriminatory animus or a permitted legitimate business reason. That makes older claims harder to defend.

And yes, I know the jury found for the plaintiff. But that is neither here nor there -- a statute of limitations applies regardless of the merits. It is a general rule that sometimes means that meritorious claims will be denied because they are too old.

This is the other reason that the "fairness" mode of jurisdprudence. The Supreme Court generally takes on cases not to decide the individual dispute but to create a uniform rule of law. If the issue were determined as Obama wishes, would it be "fair" that employers in general now must face stale claims of discrimination that are harder to defend against? How many employers will be forced into expensive settlement in weak cases because, for example, the pertinent witnesses have since left the company?
10.16.2008 1:19pm
DangerMouse:
Obama's view of the judiciary isn't very nuanced. "I want judges to impose my view of fairness and justice to the American people."

Isn't this Sarah Palin's view of the judiciary as well.


No one will honestly engage that question, because to liberals like Obama, you can only be "fair" if you support infanticide. "Fairness" to them is a synonym for liberal anyway, but they speak that way in order to persuade people who don't think like them. So they yell how extreme Palin is because she might want to impose her views on the Court, never bothering to wonder why it's ok for Obama to impose his own views on the Court.
10.16.2008 1:24pm
eyesay:
Ben P:
Single issue pro-life voters are well aware that one avenue of the debate about abortion is the extent exceptions are allowed for "life and health" and that in the past some have tried to stretch health beyond easily recognizable meaning.

However, I don't think most people who aren't intimately familiar with the abortion debate are really familiar with this concept.

The former group is already solidly in the McCain camp, the latter group are the people he needs. To me, even though I knew what he was talking about, he came across as unecessarily sarcastic and hostile about the "health" of a mother being an "extreme position."

I expect to vote for Sen. Obama, and I support a woman's right to choose whether to continue a pregnancy, at least in its early stages. I did understand what McCain meant about the "life and health" exception, and while I have not examined any statistical evidence that might exist to support his position, I did not feel he was "unnecessarily sarcastic and hostile" on this point. In fact, he piqued my curiosity and I'm interested in examining whatever evidence may exist to support his position.
10.16.2008 1:26pm
SeaDrive:
You can have all the litmus paper you want, but unless you run the test, you can't base your decision on it. And no candidate for the Supreme Court is going give candid views on Roe, any more than Roberts and Alito did.
10.16.2008 1:28pm
john d (mail):
thanks Mr. Warner. I'll be sure not to make any judgments ever again on people. I mean, who cares if thier self-conjured reality is so distinguished from an Objective reality.

Btw, I'm not making a judgment on her sex, colour, hairstyle or whatever: i'm making it on her own personal choices to believe in something that is, inherently, insane. She does not even come close to being a 'moderate' Christian. A judgment on her mind is all I have done, and trust me, you should make a judgment on the same, too. If that's bigotry, then my friend, I'm a bigot.
10.16.2008 1:29pm
Dan M.:
Obama has an odd view about the importance of fairness. When questioned about raising the capital gains tax even if it decreased revenues, he contended that he would do it anyway because of fairness. I mean, it's only fair to make "rich" people pay higher and higher taxes and then give "tax cuts" to people who don't pay taxes.
10.16.2008 1:29pm
DangerMouse:
Obama is a looter. That's the bottom line. His idea of fairness is having the government put a gun to your head and ask for more of your money because you worked hard for it while some other slob didn't. That's "fairness." Oh, and it's "fair" to murder babies because their mothers don't want them. Fairness means killing anything that you don't like if you're a woman or a minority.
10.16.2008 1:38pm
eyesay:
DangerMouse:
to liberals like Obama, you can only be "fair" if you support infanticide.
In law, the word "infant" refers to a minor. Otherwise, the word "infant" refers to a human being from birth through the earliest stages of development, before he or she can walk or talk. The word "infant" does not mean "zygote" or "blastocyst" or "embryo" or "fetus." You are entitled to promote the viewpoint that abortion is morally reprehensible, but you are not entitled to call abortion "infanticide."
10.16.2008 1:41pm
neurodoc:
Sarcastro, while you do score occasional points in the unbracketed mode, I think you generally make better, more persuasive arguments with the bracketed approach. The latter doesn't require us to keep reminding ourselves that everything you say is to be understood with a big "NOT" in front of it.
10.16.2008 1:41pm
Sarcastro (www):
[neurodoc you may be right, but I seriously do this entierly for childish amusement. I'm a bit cynical about convincing people of stuff on the internet, so I have a good time instead.

Besides, this makes it so much more weighty when I get serious!]
10.16.2008 1:46pm
eyesay:
Dan M.:
When questioned about raising the capital gains tax even if it decreased revenues, [Obama] contended that he would do it anyway because of fairness.
That is a lie. He never contended any such thing. Moreover, the point is absurd. We all agree that tax revenues are zero at a tax rate of 0% or 100%, and that somewhere in between is a tax rate that maximizes tax revenue. Whatever that point of maximum revenue may be, the current rate of 15% is well below it.
10.16.2008 1:47pm
flyerhawk:
I am amused at how many people are trying to compare the Ginsburg/Breyer votes with with the Roberts/Alito votes.

Ginsburg and Breyer were pre-approved by the Republicans. Roberts and Alito were selected with no consultation with the Democrats because the Bush Administration felt that there was no way that the Democrats would filibuster and since the Republicans controlled the Senate they could get just about anyone in.

I also like the fact that so many of you seem to believe that Supreme Court justices should be nothing more than automatons ruling out opinions.

How does one form an opinion on the 8th Amendment without the use of fairness and decency?

How can one form an opinion on what qualifies as valid use of imminent domain without the use of fairness and decency?

The Constitution of the United States is simply too broad to expect justices to form opinions without at least some personal bias coming into play.

Was the Lochner decision proper? From a purely Constitutional perspective it could be argued that it was. However if you apply even a modicum of fairness and decency to your opinion, the ruling clearly violates Constitutional muster.

I don't believe that Obama holds the opinion that justices should disregard the Constitution in favor of emotional appeals, for a second. However I do think he would select justices that believe that fairness and decency are important bedrocks for any competent judge.
10.16.2008 1:56pm
DangerMouse:
You are entitled to promote the viewpoint that abortion is morally reprehensible, but you are not entitled to call abortion "infanticide."

1. Yes, I can, because if liberals get to play word games by equating "fair" with "liberal," then I get to play word games by equating "infanticide" and "abortion." Go ahead and stop me if you can.

2. Such word games are irrelevant to my point, however, because Obama does, in fact, support infanticide as the killing of a live baby, after birth, if the mother intended an abortion.
10.16.2008 1:56pm
Dan M.:
Obama was presented with the claim that increased capital gains taxes decreases revenues. This was his response:

"Well, Charlie, what I've said is that I would look at raising the capital gains tax for purposes of fairness. We saw an article today which showed that the top 50 hedge fund managers made $29 billion last year — $29 billion for 50 individuals. And part of what has happened is that those who are able to work the stock market and amass huge fortunes on capital gains are paying a lower tax rate than their secretaries. That's not fair."
10.16.2008 2:00pm
eyesay:
DangerMouse:
Obama does, in fact, support infanticide as the killing of a live baby, after birth, if the mother intended an abortion.
Please support this claim with suitable evidence.
10.16.2008 2:04pm
Brian K (mail):
Maybe the employer had a legitimate reason to fire her, and, because she is a woman, she has a convenient excuse: discrimination.

its hard for me give much stock to your opinion when it doesn't even seem like you know what the ledbetter case was about. ledbetter was never fired.
10.16.2008 2:08pm
Sarcastro (www):
Hey, I like boggle, DangerMouse likes hijacking the debate with abortion/infanticide. Word games are fun!
10.16.2008 2:08pm
eyesay:
Dan M.: In an interview, unlike, say, a blog comment posting, one does not have the luxury of taking one's time and carefully editing one's remarks. Just because Senator Obama didn't specifically challenge the lie that increasing the capital gains tax rate would result in reduced revenue, there is no reason to believe that he accepted the lie as true.
10.16.2008 2:10pm
MikeS:
Palin's one appointment to the Alaska Supreme Court sounds pretty darned moderate to me.

Article on Winfree appointment

She also vetoed a bill to prohibit same-sex couple benefits for Alaska government employees - because her AG advised her it was unconstitutional (Alaska's).

Seems to me she has a short but real track record of being able to separate her religious beliefs from the function of the office.

More:
Article on all her judicial appointments
10.16.2008 2:11pm
Roger Schlafly (www):
Obama now says that he agrees with Roe v Wade, but this July AP story said that he disagrees with a key element of that decision:
WASHINGTON—Democratic presidential candidate Barack Obama says "mental distress" should not qualify as a justification for late-term abortions, a key distinction not embraced by many supporters of abortion rights.
Roe v Wade allows late-term abortion for any mental health reason.
10.16.2008 2:16pm
Calderon:
I'll play funhouse-mirror-Sarcastro with this statement:

neurodoc has a point! Title VII has NOTHING to do with fairness! Congressional intent has NOTHING to do with statutory interpretation, especially if fairness was part of it!

We know that providing complete fairness without limitations was the sole goal of Congress in passing Title VII, and thus fairness is the only part of Congress' intent we should consider. Some might say that the fact that Congress put time limits on Title VII claims might show an intent to put bounds on this fairness, but we know that's wrong. Who cares about intent expressed in statutory words when instead we have the intent that we personally wanted Congress to intend, regardless of what it wrote!

[Arguments about purpose or intent always seem post-hoc to me, since most statutes were meant to go so far in accomplishing a goal but no farther. How does relying on intent or purpose tell you in a specific situation on which side the particular case falls?]
10.16.2008 2:18pm
neurodoc:
"Well, Charlie, what I've said is that I would look at raising the capital gains tax for purposes of fairness. We saw an article today which showed that the top 50 hedge fund managers made $29 billion last year — $29 billion for 50 individuals. And part of what has happened is that those who are able to work the stock market and amass huge fortunes on capital gains are paying a lower tax rate than their secretaries. That's not fair."
The "unfairness" where hedge fund managers are concerned, and it is decidedly unfair, is not the 15% federal tax rate on capital gains. It is the counting of hedge fund managers' 20% share in their investors' profits as capital gains and taxing it at the much lower capital gains rate rather than treating it as ordinary income and taxing it at something like 40% (plus applicable state and local taxes). Democrats like Chuck Schumer, Chris Dodd, and others, who purport to be all about "fairness," have been very generously ($$$) supported by the financial industry, especially hedge fund managers, and have doggedly resisted closing this egregious tax loophole. So, Obama is on solid ground when he decries the way hedge fund managers make out on their earnings. The part about bosses paying lower tax rates than their secretaries, though, is demagogery to be sure, since it is so much less than the real story.
10.16.2008 2:25pm
Connecticut Lawyer (mail):
I concur with Bored Lawyer, supra.

Just for the record, since Obama and liberals like to blather on about justice and fairness, let's note that Leviticus and Deuteronomy both state that justice requires the judge to favor neither the rich nor the poor. Come to think of it, that's why Justice is often portrayed wearing a blindfold. I guess in the Obama world, she's peeking and putting a thumb on the scales.
10.16.2008 2:29pm
neurodoc:
Just because Senator Obama didn't specifically challenge the lie that increasing the capital gains tax rate would result in reduced revenue, there is no reason to believe that he accepted the lie as true.
Can you offer compelling evidence to support your assertion that increasing the capital gains tax would not result in reduced tax revenue, or is that just an article of faith for you (like the article of faith is for those who would assert the opposite bringing forward good evidence to support their contention)? If you can't prove to a high degree of certainty that increasing the capital gains rate would not result in lesser tax revenues, how can it be a "lie" for someone to say otherwise?
10.16.2008 2:31pm
flyerhawk:
Just so I'm clear, those railing about Obama's reference to fairness, do you believe that a judge should have zero discretion in determining whether a statute of limitation should apply or not?
10.16.2008 2:38pm
neurodoc:
HumptyDumpty: Yes, I can, because if liberals get to play word games by equating "fair" with "liberal," then I get to play word games by equating "infanticide" and "abortion." Go ahead and stop me if you can.
No one is going to stop you, but do take care not to fall, because even all the king's horses and all the king's men won't be able to put you back together again.
10.16.2008 2:42pm
neurodoc:
Just so I'm clear, those railing about Obama's reference to fairness, do you believe that a judge should have zero discretion in determining whether a statute of limitation should apply or not?
"Fairness," within Constitutional bounds, if there are any in sight, is for the legislature where statutes of limitations are concerned. When a court must decide the issue, there is a statutory limit that applies or there isn't one, depending on whether it is to be found in the statute or not; it isn't a matter of discretion for a court to decide based on their own view of what would or wouldn't be "fair" in the case before them.
10.16.2008 2:52pm
common sense (www):
flyerhawk:
If you reference equitable tolling, please indicate how that would apply in the case that Obama referenced.
10.16.2008 2:56pm
DangerMouse:
Just for the record, since Obama and liberals like to blather on about justice and fairness, let's note that Leviticus and Deuteronomy both state that justice requires the judge to favor neither the rich nor the poor. Come to think of it, that's why Justice is often portrayed wearing a blindfold. I guess in the Obama world, she's peeking and putting a thumb on the scales.

A thumb on the scales is exactly what they want. Women should win over men, minorities over majorities, poor over rich, etc. They want that thumb on the scale in every situation: divorce, employment, contract, or criminal disputes.

This shouldn't be remotely controversial. Liberalism, as a philosophy, exists to promote certain groups over others. Its roots in Marxism categorically rule out any idea of blind justice. Every judge who's a proud liberal is a person with his thumb unapologetically on the scale. If you walk into court where Judge X is a proud liberal and you're not a favored group, get the hell out of there as soon as possible. You have a duty to your client, after all, to zealously represent him. But there's no chance before a biased judge.
10.16.2008 2:56pm
PDXLawyer (mail):
flyerhawk asked:

Just so I'm clear, those railing about Obama's reference to fairness, do you believe that a judge should have zero discretion in determining whether a statute of limitation should apply or not?

I have not yet begun to rail, but I think its pretty clear as a matter of law that judges have zero discretion whether to apply a statute of limitations. And, it isn't really a liberal or conservative thing. That is, if Ledbetter had gone the other way, the ruling would not have been that judges had *discretion* to apply a statute of limitations, depending on whether the plaintiff was a woman or had kids or whether they liked her, but that the judge *must not* apply it.

Do liberals truly think its OK to vary the legal rule depending on the demographics of the parties?
10.16.2008 3:03pm
flyerhawk:
common sense,

If Ledbetter is unaware of the pay of her male counterparts until after the statutory limit expires, how does equitible tolling NOT apply?
10.16.2008 3:06pm
flyerhawk:
PDXlawyer,

So you think the argument in the Ledbetter case was that because she is a woman she should receive special consideration in jurisprudence?
10.16.2008 3:09pm
Sarcastro (www):

omen should win over men, minorities over majorities, poor over rich, etc...This shouldn't be remotely controversial

Once again, DangerMouse understands liberals better than they understand themselves! They SAY equality, but DangerMouse knows they obviously want white male slavery.
10.16.2008 3:13pm
DangerMouse:
Once again, DangerMouse understands liberals better than they understand themselves! They SAY equality, but DangerMouse knows they obviously want white male slavery.

They're liars. In effect, they do want such slavery. But they want it self-imposed. Nothing makes them madder than a proud man who doesn't back down to them. See Joe the Plumber for that, who is being torn apart now by liberal Democrats and the press.

You should stick with the sarcasm.
10.16.2008 3:21pm
David Warner:
lohn d.

"Btw, I'm not making a judgment on her sex, colour, hairstyle or whatever: i'm making it on her own personal choices to believe in something that is, inherently, insane. She does not even come close to being a 'moderate' Christian."

This falls under creed, one of the categories stipulated above.

AFAIK, Palin actually left the AoG church in which she was raised in 2002 as it was getting too "weird" (my guess is that this means culture warish), to attend (not join, BTW, she's not a member of any church, which is kinda radical for a major candidate in a different way) Wasilla Bible Church. Bible churches tend to be less worldly and more focused on personal relationships, including with God, other churches around the world, and other believers in scripture and history. I'm a mere Presbyterian, so I just offer my own experiences.

If you'd like to back up your armchair psychoanalysis, have at it. And I've been blessed against witchcraft myself, on a Habitat for Humanity mission trip in the mountains of Fiji, so you'll have to do better than that. Oddly enough, given the Salem witch trial to which she's been subjected, Palin might have needed it.
10.16.2008 3:23pm
David Warner:
Dangermouse,

"Liberalism, as a philosophy, exists to promote certain groups over others. Its roots in Marxism categorically rule out any idea of blind justice."

You're a danger to whatever cause it is that you imagine yourself to be a part of. Michael Savage is no Noah Webster. Liberalism has roots in Marxism? Marxism wishes. Marxism has its roots in resenting the overwhelming success of Liberalism in kicking Despotism's ass.
10.16.2008 3:29pm
Sarcastro (www):
[DangerMouse Damn! I can't parody that.

I'm a fanatically moderate contrarian, and I'm friends with people of all political stripes. There may be a few liberals who really don't want equality, but I've never met them.

Conservatives value freedom, even to the expense of some equality, whereas liberals value equality, even to the expense of some freedom. There are extremists on both sides, to be sure. But very few go beyond equality to slavery.]
10.16.2008 3:29pm
neurodoc:
flyerhawk to PDXlawyer: So you think the argument in the Ledbetter case was that because she is a woman she should receive special consideration in jurisprudence?
Shouldn't the question be whether Obama thinks so?
Obama: I think that it's important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will.
10.16.2008 3:36pm
Floridan:
Bored Lawyer: "Now consider the issue before the Supreme Court in that case -- statutes of limitation. Those are intended to protect a defendant from stale claims that are hard to defend against."

I haven't gone back to look at the Ledbetter case, but my memory is that the issue was when the statute of limitations began. In this case the company took pains to hide the inequity -- there was no reasonable way for her to know about the discrimination (or, perhaps, to even suspect it) until a significant amount of time had passed.

The SC's decision, then, would seem to encourage a discriminating company to hide the evidence until such time that it was too late to do anything about it.

If this is true, would it not be a fair interpretation that Congress would not pass a law that rewarded hiding a crime and therefore the clock started ticking when the discrimination became known?

Again, this is from memory.
10.16.2008 3:41pm
JosephSlater (mail):
I'm with Angus about Ledbetter. Reasonable minds could (and did) differ as to what the statute required; Obama urging fairness consistent with the broad goals of Title VII hardly seems dangerously radical.

More importantly, I think that McCain really made a mistake by sounding so mockingly dismissive of "women's health" exceptions in abortion bans. He even used air quotes. My wife was apoplectic, and I'm guessing she wasn't the only woman.
10.16.2008 3:44pm
flyerhawk:
neorodoc,

Other than his gratuitous use of the pronoun her I fail to see how he is suggesting that women should be given special treatment.
10.16.2008 3:46pm
KevinM:
Interestingly, the candidates do broadly agree on one thing. McCain wants the states to decide; Obama wants pregnant women and their doctors to decide. Nobody wants the Supreme Court to decide.
I understand why, jurisprudentially, the candidates' disparate positions can be justified, but I'm not completely persuaded that the candidates are overly concerned with jurisprudence. The advantage of framing the issue jurisprudentially is that it gives the candidate wiggle room. You can lose centrist votes being affirmatively "pro-abortion" or by following the "abortion is murder" principle to its logical extreme. Framing the issue as one of "the kinds of judges I'll appoint" makes it sound as if you just want to leave the states/women free to decide. But the zealots among your supporter understand what you mean, or (even better) think they do.
10.16.2008 3:49pm
jukeboxgrad (mail):
Seems to me she has a short but real track record of being able to separate her religious beliefs from the function of the office.


Maintaining that perspective is much easier if you overlook her her much-overlooked proclamation of "Christian Heritage Week," which "plucks Founding Father quotes out of context to give misleading impressions about their views on the role of religion in society."

It also helps if you overlook this:

An Associated Press review of the Republican vice presidential candidate's record as mayor and governor reveals her use of elected office to promote religious causes, sometimes at taxpayer expense and in ways that blur the line between church and state. Since she took state office in late 2006, the governor and her family have spent more than $13,000 in taxpayer funds to attend at least 10 religious events and meetings with Christian pastors, including Franklin Graham, the son of evangelical preacher Billy Graham, records show.
10.16.2008 3:57pm
JosephSlater (mail):
KevinM makes an important point. It's naive to think of these debates as opportunities for candidates to expound in detail about their theories of Constitutional interpretation. Do you really think Obama hasn't thought about the "democracy problem" in judging? Do you really think that Obama -- or really, any liberal in the country who has any knowledge of law or the legal system -- hasn't thought about the question, "gee, what if conservative judges have a different sense of fairness than I do?"

A more pedestrian example: do you think that McCain took shots at Biden while Obama didn't say anything critical of Palin because McCain is sincerely more worried about Biden becoming president than Obama is worried about Palin becoming President? No, I don't think so either.

The answers are mostly about strategy and tactics in an election: trying to win over undecideds and independents; trying to catch up if you're behind; trying to not mess up if you're ahead. Debates are political theater with a particular subset of the public in mind as the audience.
10.16.2008 4:01pm
neurodoc:
See what sarcasm gets you, Sarcastro. You tried to parody DangerMouse's thinking and what happened? DangerMouse (a.k.a. HumptyDumpty) embraced your attempt to mock his singular thinking as in fact a reasonable summary of it, and you had to retreat to the brackets.
10.16.2008 4:06pm
jukeboxgrad (mail):
warner:

I've been blessed against witchcraft myself


But did your witch hunter also talk about "the Israelites" and the "wealth of the wicked?" Shortly before giving you the anti-witch blessing?
10.16.2008 4:08pm
Kenvee:
The problem with "fairness" is that it means so many different things to different people. That's why we have a set of written laws in the first place, so we can know what is and isn't allowed, not just the whims of the king.

Take statutes of limitations, since everyone's talking about Ledbetter. Usually we talk about how SOLs are all about being fair to the defendant, so someone (whether the State or a civil plaintiff) can't just come up with a claim decades after it happened, when the witnesses have forgotten things or become unavailable, documents have been lost or destroyed, and generally the defendant isn't able to muster a defense after so much time has passed. So it's basic fairness -- you can't accuse someone without giving him a fair chance to defend himself. There are reams and reams of caselaw on this when you're talking about criminal defendants against the big bad State. And this is no matter how reprehensible a thing they're accused of doing. Child molesters go free because of the all-important fairness of the statute of limitations.

But if the defendant is a corporation instead of a child molester, suddenly they're not entitled to the basic fairness of the statute of limitations? If there's a tie between statutory interpretations, shouldn't the tie go towards the very person that the statute is intended to protect, the defendant who has lost so much opportunity to defend himself?

There are a lot of different ways to look at "fairness". People only talk about wanting it when they think those in power have the same concept of it as they do. If the people in power think something else is fair, then suddenly it becomes all about strict compliance with the statutes.
10.16.2008 4:15pm
neurodoc:
Other than his gratuitous use of the pronoun her I fail to see how he is suggesting that women should be given special treatment.
And his gratuitous use of "out there trying to raise a family," "trying to support her family," and "being treated unfairly"? (BTW, most individuals who go to court as plaintiffs think they are "being treated unfairly," don't they? And some are in fact "being treated unfairly," aren't they? Ought all who have been "treated unfairly" prevail, no matter what the law might otherwise dictate?)

I don't for a moment imagine that this former EIC of the HLR would seriously maintain "that women should be given special treatment" in court. I think Obama was doing the political thing, that is pandering, with "a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will." And truth be told, while I think the Ledbetter result was probably the right one, I would prefer that Obama chose our next Supreme Court judges rather than that McCain do so.
10.16.2008 4:20pm
LM (mail):
David Warner:

Actions. Words.

McCain confirmed the pro-Roe Breyer and Ginsberg. Obama rejected the (likely) anti-Roe Roberts and Alito. It is clear who is more interested in relative pH levels.

The rest is commentary.

Correlation fallacy, no?
10.16.2008 4:22pm
LM (mail):
neurodoc:

No one is going to stop you, but do take care not to fall, because even all the king's horses and all the king's men won't be able to put you back together again.

Especially considering how ill-suited hooves are for repairing eggs. (HT/Ricky Gervais)
10.16.2008 4:29pm
Oren:

Interestingly, the candidates do broadly agree on one thing. McCain wants the states to decide; Obama wants pregnant women and their doctors to decide. Nobody wants the Supreme Court to decide.

This is facetious. Nobody wants the Supreme Court to chose whether an individual woman will have an abortion. Most Americans want the Supreme Court to prevent the States from constraining that choice -- some want the Supreme Court to allow the States to constrain that choice.
10.16.2008 4:32pm
Ben P:

This is facetious. Nobody wants the Supreme Court to chose whether an individual woman will have an abortion. Most Americans want the Supreme Court to prevent the States from constraining that choice -- some want the Supreme Court to allow the States to constrain that choice.


To be fair I think you're leaving some of the story out by equating people with a policy preference to people with a legal preference.

In my own personal experience, pro-life advocates aren't so concerned with the theoretical legal basis for Roe and it's progeny, they're concerned with the idea that "abortion is bad!"

I think the fact that some want the Supreme Court to allow states to constrain that choice is secondary to the fact that some want the States and the Federal government to affirmatively constrain that choice.
10.16.2008 4:46pm
Nunzio:
I agree with Ben P. But I'm pro-choice, think Roe was wrong and should be tossed and it should be up to the states whether and how much to regulate abortion, just like gay marriage and a host of other issues people strongly disagree on that aren't mentioned anywhere in the Constitution.

As far as Ledbetter, from a policy standpoint the majority had the better argument, though I think the plaintiff got totally screwed.

Title VII applies to employers with 15 or more employees and these suits take up a huge portion of the federal docket. Defendants win almost all of these suit. So although Goodyear can afford to litigate this case, most small employers can't afford to have employees launch lawsuits and dig into discovery going back 20 years. The rule Obama wants will apply to all employers, not just those with more than 500 employees.
10.16.2008 5:07pm
Oren:


I think the fact that some want the Supreme Court to allow states to constrain that choice is secondary to the fact that some want the States and the Federal government to affirmatively constrain that choice.

Yes, that is a distinction that I failed to make.
10.16.2008 5:24pm
RPT (mail):
"Dangermouse:

Liberalism, as a philosophy, exists to promote certain groups over others. Its roots in Marxism categorically rule out any idea of blind justice."

Who knew that Marx was born and wrote before Adam Smith, John Locke, etc!
10.16.2008 5:36pm
KevinM:
As jurisprudence, of course, my point is "facetious." I tried (evidently failed) to signal that I'm aware of that. I was talking about crude political praxis. Many voters think the Supreme Court is voting thumbs-up or thumbs-down on abortion -- or at least consider that view a "close enough" proxy for what they're truly concerned about, i.e., whether abortion is or isn't allowed. I'm talking about the political advantage that the candidates gain by arguing the issue as one of judge-selection, not abortion per se.
10.16.2008 5:45pm
Mark Bahner (www):

Most Americans want the Supreme Court to prevent the States from constraining that choice...


God said this when...?
10.16.2008 6:58pm
PDXLawyer (mail):
flyerhawk: Look at it this way, suppose McCain had told a story about an "honest, hardworking, white Christian family man" who had been screwed by a court decision. I'd find this troubling. Wouldn't you?
10.16.2008 7:51pm
Oren:
Mark, search on goggle for recent polls on abortion. Americans are about 55:45 (+/- 4%) prochoice/prolife.
10.16.2008 7:58pm
Steve2:

Take statutes of limitations, since everyone's talking about Ledbetter. Usually we talk about how SOLs are all about being fair to the defendant, so someone (whether the State or a civil plaintiff) can't just come up with a claim decades after it happened, when the witnesses have forgotten things or become unavailable, documents have been lost or destroyed, and generally the defendant isn't able to muster a defense after so much time has passed. So it's basic fairness — you can't accuse someone without giving him a fair chance to defend himself. There are reams and reams of caselaw on this when you're talking about criminal defendants against the big bad State. And this is no matter how reprehensible a thing they're accused of doing. Child molesters go free because of the all-important fairness of the statute of limitations.



n = 0. Statutes of limitations are always unfair, as they always allow the guilty to get away with it.
10.16.2008 8:43pm
David Warner:
JBG,

"But did your witch hunter also talk about "the Israelites" and the "wealth of the wicked?" Shortly before giving you the anti-witch blessing?"

Well, the Israelites do make a cameo appearance or two in the Bible, so that's possible. There's also a thing or two about the wealth of the wicked as well. I'll make sure to report this to the HUJBGAC post haste.

That, and I had a good kava buzz going, so the whole thing's kinda hazy.
10.16.2008 11:16pm
David Warner:
LM,

"Correlation fallacy, no?"

Sadly, no. <--- no sarcasm at all intended. Hate that phrase otherwise.

This was actually I real sticking point for me in supporting Obama. I find all four to be excellent choices and oppose with some strength politicojudicial theories which would disqualify any of them.

Not that I'm adverse to widening the selection pool.
10.16.2008 11:25pm
David Warner:
JBG,

Maybe you should preach your anti-Christian hysteria to this guy. Or this one. Or this one, who gives David Brooks tingles down his leg.

It might play well on this blog or with the KosKids, but Obama didn't go to that church just to make connections. Given your evident ignorance of the present and past contributions of Christianity to this society, a Christian Heritage Week to raise some awareness of those contributions, as Black History Month has so laudably done, might not be such a bad idea.

"Meetings with Christian pastors, including Franklin Graham, the son of evangelical preacher Billy Graham, records show."

Meetings like this?

You owe me for the Woody link. I'll let you find the Nixon ones.
10.17.2008 12:01am
john d (mail):
ANTI-CHRISTIAN HYSTERIA?

do you realize that's the reason why your vice presidential candidate was chosen? when you've got to avoid strong, competent conservatives to pander to a large voting block, one is inclined to think the other holds a little control on the movements on teh party.
10.17.2008 12:33am
David Warner:
john d,

"ANTI-CHRISTIAN HYSTERIA?"

e e cummings' evil twin? or just that anxious to prove my point?

If your theory were true, he could have just chosen Huck. And if these baby-eating savages controlled the party, why isn't Huck the nominee?

The enthusiasm for Palin was from quarters such as these. That post gives a decent rundown of what the enthusiasm was (for me, I'm in wait-and-see mode thx to JPG and associates) or is (for lots of people in my neck of the woods who haven't haunted the inside of a church in a long time, nor are likely to start) about.

Yes, he mentions abortion (its a rights issue for lots of people on the pro-life side too, not just a dog-whistle for incipient theocracy), and I'm sure JBG will soon inform us that Beldar wet his bed well into the third grade, but I believe the point stands.

I supported her because I thought she was a reformer (I still believe there to be some there there) and I want a female president (given the historical propensity of female heads of state to meet with success).
10.17.2008 1:23am
Randy R. (mail):
MikeS:"She also vetoed a bill to prohibit same-sex couple benefits for Alaska government employees - because her AG advised her it was unconstitutional (Alaska's). "

But otherwise, she is against same-sex couple benefits, as she stated in her debate with Biden.
10.17.2008 2:09am
John D (mail):
Just a note:

There seems to be a second John D posting here. I was taken aback when I saw a comment addressed to a "John D." Not me. I'm the guy who is much more careful about spelling and capitalization, the one who's married to a man, but that's another thread.

Maybe it's time to find another name to attach to my posts.
10.17.2008 5:16am
Litigator-London:
DangerMouse and others had better read up on their classics.

I doubt that either the Greeks or the Romans had much regard to Jewish sacred writings - because the Jewish/Christan/Muslim concept of a single omniscient Deity rather negates the concept of the pagan false god.

The Greek Goddess of Justice ("Themis")was not portrayed blindfolded.

The Roman Goddess of Justice ("Iustitia") was so portrayed - usually with scales in one hand and sword or fasces in the other.

In the UK, statues of the goddess of justice are not so often blindfolded - see that on the Central Criminal Court ("Old Bailey").

Surely, the prime requirement of a judge is an innate sense of fairness. Learning in the law can be acquired, but the courts are courts of Justice - which requires law to be tempered with equity - and more: Ubi Jus ibi Remedium.
10.17.2008 6:50am
jukeboxgrad (mail):
warner:

the Israelites do make a cameo appearance or two in the Bible, so that's possible. There's also a thing or two about the wealth of the wicked as well.


Please don't be disingenuous. Palin's witch-hunter made a connection. Watch the video and read the transcript.

your anti-Christian hysteria


Expecting you to keep your religion out of my government is not "anti-Christian hysteria." Unless you think the Constitution promotes "anti-Christian hysteria."

a Christian Heritage Week to raise some awareness of those contributions, as Black History Month has so laudably done, might not be such a bad idea


It would be less offensive if it wasn't the only "Heritage Week" she ever had. It would also be less offensive if it didn't involve promoting misinformation about what the Founding Fathers said.

It would also be less offensive of there weren't a lot of other troubling indicators that go along with it. Read the Branchflower report and notice why Dial got Bailey's phone call, instead of someone else. Look into why she hired Kopp. And read about a technique she used to win an election against a man named Stein.

Meetings like this?


There you go, being disingenuous again. The problem is not that she ever met with religious leaders. The problem is that she frequently attended religious events at taxpayer expense.

if these baby-eating savages controlled the party, why isn't Huck the nominee?


Here's one reason: Huck's support of creationism is more emphatic than Palin's. In this sense, he would have been too much of a good thing. Wayne DuMond is also a bit of a problem.
10.17.2008 12:03pm
David Warner:
"It would also be less offensive if it didn't involve promoting misinformation about what the Founding Fathers said."

Assertion alone is insufficient for that claim. Indeed, your own statement contains (likely inadvertent) misinformation, unless you can show that the quotes themselves are false. As for what those quotes mean, that's up for debate (I don't think your case is as strong as you imagine - note that none of the quotes contain the word "church"), not charges of "misinformation".

"Please don't be disingenuous. Palin's witch-hunter made a connection. Watch the video and read the transcript."

Mine likely did too. When we fellowship with people around the world we get exposed to their crazy beliefs and they to ours. Good first step on changing those crazy beliefs. Both ways. BTW, what happened to your passion for "context" here? Or are you an agent provocateur, hoping to set an impossibly strict standard for Obama?

"'Expecting you to keep your religion out of my government is not "anti-Christian hysteria.' Unless you think the Constitution promotes "anti-Christian hysteria.'"

Sorry Juke, its already there, and its been there for a long time. That's not advocacy, that's history. The innovation, and it was a great one, of the Founders was to get church (i.e. organized religion) out of government, not religious belief, or any belief for that matter. Freedom of conscience works both ways.

Look, you're currently riding the Obama wave, and more power to you. But this kind of crap is Ned Lamontsville all the way.
10.17.2008 3:29pm
jukeboxgrad (mail):
warner:

Assertion alone is insufficient for that claim.


I cited evidence. You can go read it. If you see a problem with it, I'd like to know specifically what it is. The fact that she didn't use the word "church" is completely meaningless.

When we fellowship with people around the world we get exposed to their crazy beliefs and they to ours. Good first step on changing those crazy beliefs.


If there's any indication that Palin lifted a finger to object to the offensive statement she heard, I'd like to know what it is. She showed no sign of being interested in "changing those crazy beliefs." Instead, she happily received her anti-witch blessing from the guy, after he made his hateful statement.

Just like she showed no sign of being offended when she heard a different offensive statement in her church.

are you an agent provocateur, hoping to set an impossibly strict standard for Obama?


I'd like to know the last time Obama received an anti-witch blessing from an anti-Semitic witch-hunter.

The innovation, and it was a great one, of the Founders was to get church (i.e. organized religion) out of government, not religious belief


Telling me that there's some meaningful difference (in this context) between "organized religion" and "religious belief" is about as convincing as the effort to claim that there's some meaningful difference between creationism and 'intelligent design.'

The Founders did not call for "religious belief" to have any role in government. The Constitution mentions God this many times: zero.
10.17.2008 4:23pm
David Warner:
Juke,

"I cited evidence. You can go read it. If you see a problem with it, I'd like to know specifically what it is. The fact that she didn't use the word "church" is completely meaningless."

You linked to Waldman's take. His rebuttal hinges on Madison's hardcore belief in the separation of Church and State - hence my helpful guidance to you on the content of the actual quotes Palin chose, Washington's refusal to take communion (I noted that Palin has refused to join a church), and Franklin's doubt of the divinity of Christ, mentioned nowhere in the Heritage Week quotes. Many Christians have there been who so doubt.

This is called debate, not misinformation. Of course, Palin likely lucked into choosing those quotes, instead of the ones in which Ann Coulter's ancestor Aaron Burr lays out his plans for Xtian world domination. Or maybe she wanted to use those, but her evil overlords corrected her. I can never keep it straight.

"I'd like to know the last time Obama received an anti-witch blessing from an anti-Semitic witch-hunter."

Actually, I don't think that you do. Nor do I.

"Telling me that there's some meaningful difference (in this context) between "organized religion" and "religious belief" is about as convincing as the effort to claim that there's some meaningful difference between creationism and 'intelligent design.'"

Thankfully, the burden of proof is on the accuser, not the accused. Not that it would likely matter what I told you in any event. You're the ultimate hedgehog, in fat city with a nice big target to go after. No mere fox can divert you from your prey.

Greater minds than ours have debated these matters, and to better effect. As you show ample skill with Google driving, I'll leave further exploration to you. Back to the regularly scheduled programming.
10.17.2008 5:03pm
jukeboxgrad (mail):
warner:

You linked to Waldman's take


Waldman did a nice job of demonstrating how Palin took those quotes out of context. You've said nothing to undermine his analysis.

Palin has refused to join a church


I hope you have a source for that, because what I've read is this:

Six years ago, Palin left Assembly of God to join the non-denominational Wasilla Bible Church


Is your point that it's non-denominational? I have no idea why that's supposed to mean something to me.

the burden of proof is on the accuser, not the accused


Good point. Therefore I'll be waiting patiently while you collect your proof regarding who's the hedgehog.
10.17.2008 6:36pm