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New Supreme Court nomination in light of Rehnquist death watch

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    (Original post by Bismarck)
    Doing so would clearly be unconstitutional, and conservative judges are much more likely to respect the letter and spirit of the Constitution than the liberal ones.
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    (Original post by Bismarck)
    Doing so would clearly be unconstitutional, and conservative judges are much more likely to respect the letter and spirit of the Constitution than the liberal ones.
    Nice in theory, but even the conservatives have been known to bend a rule or two ("much more likely" but not 100% guaranteed). Plus, the new guys might demonstrate some Bush loyalty, 'hand that feeds' and all, and let's not forget how strongly Jeb campaigned.
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    (Original post by Gwen)
    Nice in theory, but even the conservatives have been known to bend a rule or two ("much more likely" but not 100% guaranteed). Plus, the new guys might demonstrate some Bush loyalty, 'hand that feeds' and all, and let's not forget how strongly Jeb campaigned.
    So how do you explain Scalia, Thomas, and Rehnquist voting against the Schiavo parents? The two categories of SC justices is not liberal and conservative, but literal interpretors of the Constitution and those who think the Constitution should change with the times. I'm not aware of any instance of the former type of justices going against the Constitution just to please Republicans.
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    (Original post by Bismarck)
    The two categories of SC justices is not liberal and conservative, but literal interpretors of the Constitution and those who think the Constitution should change with the times. I'm not aware of any instance of the former type of justices going against the Constitution just to please Republicans.
    If there are only two categories, where do ‘centrists’ like O’Connor come in? Interpreting the Constitution is their job, that doesn’t mean they aren’t influenced by political ideologies – look at the abortion issue, Roe v. Wade, the decision was based on the “right to privacy” which wasn’t even specified in the Constitution (it's even called ‘the Unconstitutional Decision’ by some) Looking at it laterally, I don’t see why the new Justices couldn’t base a future Schiavo case on ‘interpretations’ which would favour a particular group – it’s been done before. Plus, voting ‘yes’ to the parents would certainly not constitute (ho ho) a complete breech.

    If I were to look at this fairly for both sides though, I’d say it’s entirely speculation. Neither of us can actually prove how the Court will split (if indeed it does) when another Schiavo case comes up.
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    (Original post by Bismarck)
    So how do you explain Scalia, Thomas, and Rehnquist voting against the Schiavo parents? The two categories of SC justices is not liberal and conservative, but literal interpretors of the Constitution and those who think the Constitution should change with the times. I'm not aware of any instance of the former type of justices going against the Constitution just to please Republicans.
    That is a little naive. Look at this about Rehnquist:

    "He dissented on some landmark decisions during his career on the bench. They included Roe v Wade, the 1973 ruling that women have a constitutional right to an abortion. He also objected to a 2003 ruling that struck down laws criminalising gay sex, and to a ruling that preserved affirmative action to favour black student admissions at public universities.

    The chief justice pressed for the expansion of states' rights at the expense of central government; he backed the death penalty and opposed the separation of church and state."

    Are you trying to say that what is clear ideological conservatism is in fact nothing more than a "strict interpretation of the constitution"? How can one possibly interpret anything other than through one's own ideological worldviews? I am not saying Rehnquist frequently usurped the constitution in order to satisfy republicans, but the very manner in which he will have interpreted the constitution would have been affected by his right-wing outlook. Human beings are not robots who all see things in the same way. You and I could watch a football game and give totally different accounts if we passionately supported opposite teams. In the same way two justices could see the constitution (which does not, for obvious reasons cover issues like abortion or gay marriage) and reach different verdicts.

    Take, as Gwen has done, Roe v Wade. Rehnquist's dissent was no doubt primarily an ideological one (he was anti-abortion and pro-state) but he backed this view by suggesting a lack of constitutional evidence for the ruling. However, the other judges in the court found that the state of Texas was in violation of "Roe's" right to privacy. Rehnquist's dissent was founded on a desire for self-determination of the states (Roe v Wade overturned anti-abortion laws in all the states) as well as a personal ideological objection to abortion.

    An even more blatant ideological decision was Rehnquist's rejection of the re-count in Florida which gave the White House to Bush. This went against his life-long campaign for individual states to be more autonomous and again, was clearly founded on an ideological preference of Republicanism.
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    (Original post by englishstudent)
    "He dissented on some landmark decisions during his career on the bench. They included Roe v Wade, the 1973 ruling that women have a constitutional right to an abortion. He also objected to a 2003 ruling that struck down laws criminalising gay sex, and to a ruling that preserved affirmative action to favour black student admissions at public universities.
    Do you want to find me the part of the Constitution that gives women the right to an abortion or allows affirmative action? Fact is that these things are a late 20th century invention, and did not exist when the Constitution was being drafted.

    The chief justice pressed for the expansion of states' rights at the expense of central government; he backed the death penalty and opposed the separation of church and state."
    Who was this written by? A reporter? An expert on our judicial system would never say something as simple or as dumb. Justices don't press for issues, it just so happens that their ideology on how the constitution should be intepreted often leads to them taking certain positions. The Constitution clearly favors state rights over the rights of the federal government, and states had significantly more power than the federal government until as recently as the 1930s. The death penalty was acceptable when the Constitution was written, and God played a much larger role in public life back then than it does not. To suggest that taking these positions goes against the Constitution is ludicrous.

    Are you trying to say that what is clear ideological conservatism is in fact nothing more than a "strict interpretation of the constitution"? How can one possibly interpret anything other than through one's own ideological worldviews? I am not saying Rehnquist frequently usurped the constitution in order to satisfy republicans, but the very manner in which he will have interpreted the constitution would have been affected by his right-wing outlook. Human beings are not robots who all see things in the same way. You and I could watch a football game and give totally different accounts if we passionately supported opposite teams. In the same way two justices could see the constitution (which does not, for obvious reasons cover issues like abortion or gay marriage) and reach different verdicts.
    Are you going to provide any evidence of Rehnquist abandoning his strict interpretation of the Constitution to help the Republicans? You forget that most cases before the SC get settled by a unanimous vote. Law isn't as flexible as some make it out to be.

    Take, as Gwen has done, Roe v Wade. Rehnquist's dissent was no doubt primarily an ideological one (he was anti-abortion and pro-state) but he backed this view by suggesting a lack of constitutional evidence for the ruling. However, the other judges in the court found that the state of Texas was in violation of "Roe's" right to privacy. Rehnquist's dissent was founded on a desire for self-determination of the states (Roe v Wade overturned anti-abortion laws in all the states) as well as a personal ideological objection to abortion.
    This doesn't change the fact that the founders of this country did not believe in a right to privacy, and that this right is a modern invention. Interpreting the Constitution literally inevitably leads one to conclude that there is no (or very little) right to privacy and certainly no right to an abortion. I think if you told Madison or Hamilton that women had the right to an abortion, they'd think you a madman.

    An even more blatant ideological decision was Rehnquist's rejection of the re-count in Florida which gave the White House to Bush. This went against his life-long campaign for individual states to be more autonomous and again, was clearly founded on an ideological preference of Republicanism.
    Autonomous? Rehnquist upheld the ruling of the Florida Secretary of State.
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    I find it rather bad luck that the balance is not being more altered by the death and resignation, because before this year I have felt the balance favours the liberal, activist side more than it should. Before his year it was essentially 4 liberal judicial-activists (Breyer, Souter, Stevens, Ginsburg) versus 3 conservative constructionists (Rehnquist, Scalia, Thomas), with the swing votes of O'Connor and Kennedy frequently meaning the liberal side triumphed.

    The SC still contains Ginsburg, Breyer, Souter and Stevens who are all indisputably of the liberal, judicial-activist mindset. Those 4 acting almost as a bloc mean that only one of the other 5 has to join them for a decision to be carried.

    Currently, on the other side we only have Scalia and Thomas of the conservative, strict-constructionist mindset.

    If Roberts and whoever-else-is-nominated join the conservative constructionist side then the SC is levelled up at 4 - 4 with the swing vote of Kennedy remaining as the deciding factor. Then again, Republicans seem to have pretty bad luck with choosing SC nominees who actually stick to the opinions they had before they joined the court.
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    The Rehnquist court has also served up one of the worst decisions known to mankind - the Kelo case, which basically gets rid of property rights across the whole country. I'd be interested to see how Roberts and Bush's next nominee would have decided Kelo differently.
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    (Original post by tommorris)
    The Rehnquist court has also served up one of the worst decisions known to mankind - the Kelo case, which basically gets rid of property rights across the whole country. I'd be interested to see how Roberts and Bush's next nominee would have decided Kelo differently.
    Nomination of Roberts isn't really that significant anymore. He appears to be identical to Renhiquist in his stance on many things e.g. like Rehnquist heisn't a fan of big federal government and he doesn't like Roe v. Wade.

    What is more significant now is who is going to be the potential swing voter?
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    (Original post by tommorris)
    The Rehnquist court has also served up one of the worst decisions known to mankind - the Kelo case, which basically gets rid of property rights across the whole country. I'd be interested to see how Roberts and Bush's next nominee would have decided Kelo differently.
    Of course, Rehquist was a dissenting voice on that case, and we can easily assume that Roberts would have dissented, as well. Let's just hope the next nominee will be a more reliable voter on these issues, as well.
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    (Original post by tommorris)
    The Rehnquist court has also served up one of the worst decisions known to mankind - the Kelo case, which basically gets rid of property rights across the whole country. I'd be interested to see how Roberts and Bush's next nominee would have decided Kelo differently.
    That decision was passed using the votes of: Stevens (liberal, judicial-activist), Souter (liberal, judicial-activist), Ginsburg (liberal, judicial activist), Breyer (liberal, judicial-activist) and Kennedy (moderate, swing vote).

    It was opposed by Rehnquist (conservative, constructionist), Scalia (conservative, constructionist), Thomas (conservative, constructionist) and O'Connor (moderate, swing vote).

    Thus we see that private property rights were eroded not by conservative justices of similar opinion to the current US administration, but by liberal justices who hold a very different opinion to the current US administration. You can't hold Rehnquist responsible for a decision that he and the other conservatives strongly opposed. Indeed, the new nominees, if in the same conservative, constructionist mould as Rehnquist would undoubtedly have taken the same stance as Rehnquist.
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    (Original post by JonathanH)
    You can't hold Rehnquist responsible for a decision that he and the other conservatives strongly opposed. Indeed, the new nominees, if in the same conservative, constructionist mould as Rehnquist would undoubtedly have taken the same stance as Rehnquist.
    No, I know. When I said "Rehnquist court", it is code for "the court which Renquist is Chief of".

    I think, at this point, the old phrase "Conservatives piss me off almost as much as liberals do" comes in to play (I think that's attributable to Matt Stone, though I could be wrong).
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    I know what 'The Rehnquist Court' means, I spent a year studying US politics (and got over 93% on the A2 exam on it ). I just felt that the way you said it may have misled those who aren't so informed.
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    (Original post by WSJ)
    Reid to vote against Roberts-
    Judge Roberts's intellectual strength is obvious, Mr. Reid said later, but the senator wasn't "too sure if his heart was as big as his head."
    This really makes me want to beat Reid, and anyone who agrees with him, over the head with a 2x4. Yeah, the law, particularly at the federal level, is really about hugs, candy canes, and camping trips. :rolleyes: I hate people sometimes....
 
 
 
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