O'Connor Resignation

[Judy G. Russell]

Uh oh...

This is the moment of truth for the nation, the real test of where we're going as a country -- and the time I was most afraid of in the Bush Administration (not to mention the single most important reason why I voted against Bush in both of his elections). A moderate conservative -- a swing vote keeping the Court as close to the center as it's possible to be -- is retiring from the Supreme Court of the United States.

Sandra Day O'Connor sent in her resignation letter today after 24 years on the Supreme Court. An Arizona Republican, she had been a state legislator and a state court judge before being named to the High Court in 1981 by President Reagan.

O'Connor is, above all else, a centrist: someone who steadfastly refuses to be pulled to the extremes by either side. She has voted with the right bloc on many occasions, but generally on principled and not dogmatic grounds. She has voted with the left bloc also on many occasions, again usually on principled and not dogmatic grounds. She focuses on the practical: what will work for this country? She often writes a concurrence -- an opinion that prevents the idealogues on either side from having their way and that provides a moderate path for lower courts to follow.

Who will take O'Connor's place may well turn out to be the single most important decision of Bush's presidency. As much as I would like to hope that he will be forced to nominate another centrist, I am desperately afraid that we are going to see a Scalia clone -- someone who is so dogmatically devoted to a particular (and extreme) rightist point of view that we will see substantial individual liberties eroded, particularly in the area of women's rights.

Sigh... this is very scary...

[Lindsey]

I have the same fear. Seems to me the very best we could hope for would be for Bush to appoint Gonzales, something I understand that he very much wants to do. Gonzales is not so extreme as Thomas or Scalia, but OTOH, there are those torture memos. Do we want somone on the bench of the highest court of the land who appears to condone the use of torture? I think the country is in serious trouble.

[chm]

Yes, what a surprise this morning.

Rehnquist was thought to be the one who might retire now.

I'll miss O'Connor. And, yes, I worry about who will be her replacement.

[Lindsey]

Rehnquist was thought to be the one who might retire now.
The speculation over the last couple of weeks had been interesting. O'Connor, if you remember, had wanted to retire some time ago, and I've forgotten just what constellation of events was speculated to have kept her from it. At any rate, there was some noise that O'Connor might be the one to retire at the end of this term; apparently she abruptly stopped hiring clerks some months ago, she sold her Washington house, had made plans to be spending more time in Arizona this fall, and of course, her husband is known to be in ill health. And at the same time, there were reports that Rehnquist was really in more robust health than it sounded from the press reports, and some thought that he might delay his own retirement for a bit if O'Connor had let it be known that she really wanted to step down now.

But of course, besides O'Connor and Rehnquist, there is John Paul Stevens, who is 85 years old. He's not giving any signs of wanting to retire just yet, but certainly he is not going to be on the bench for very many more years. Give Bush three appointments, and we may have a 5-member majority of Scalia/Thomas clones. An ominous thought; back, perhaps, to an era when the Court was the chief obstacle of social progress rather than its chief protector.

--Lindsey

[Judy G. Russell]

In trouble, yes, but perhaps less so with Gonzales than with a Scalia clone.

[Judy G. Russell]

I suspect Rehnquist will also retire soon. But whoever replaces Rehnquist is -- at worst -- replacing an old rightist bloc vote with a young rightist bloc vote. Replacing O'Connor with anyone other than a moderate conservative could be real trouble.

[Wayne Scott]

You'll be surprised to find that I'm as worried as you. I just hope that Schumer and Leahy won't go into immediate attack mode and get W's back up. That could result in the nuclear option and foul up the entire legislative process. I just hope that the President will pay some attention to semi-sane conservatives like Cain, Specter and Lindsey and come up with someone like Gonzales who is pretty close to O'Connor's point of view. If you manage to muzzle Schumer and Leahy, turn your attention to Fat Teddy and stuff a sock in his mouth.
Worried in Wyoming

[Judy G. Russell]

I know you share my views on the Court, Wayne -- we've spoken of this before. But if you think I have any more ability to muzzle the attack dogs of the left than you have to muzzle the attack dogs of the right, you're sadly mistaken.

[woodswell]

Wayne, Although I am almost always on the opposite side of the political spectrum from you, I want to reassure you that I have written to my Senators and asked them to push for a moderate to replace O'Connor.

First, I know there is no chance at all that anyone farther left than moderate can be nominated at this time, much less actually get in.

Mostly, though I honestly believe that the courts need to be less radical in any direction than the legislative or executive branches, since they are the last resort to sanity.

Let's hope the current executive will have some sanity for a change.
Anne

[Mike]

particularly in the area of women's rights.
And gay rights.

[Judy G. Russell]

That goes without saying. If women (at last count, something on the order of 51-52% of the population) lose the fight, gays don't have a prayer.

[Dick K]

I know you share my views on the Court, Wayne -- we've spoken of this before. But if you think I have any more ability to muzzle the attack dogs of the left than you have to muzzle the attack dogs of the right, you're sadly mistaken.
Judy -

There was a very sobering editorial in today's issue of the "Washington Post," a newspaper generally characterized as "left/liberal." You can find the whole text at http://tinyurl.com/7avee

but the first paragraph gives a pretty good idea of where they are going with this:

SECONDS AFTER President Bush announces his choice to replace Supreme Court Justice Sandra Day O'Connor -- whenever that happens and whoever the nominee is -- liberal interest groups will release a blast of e-mails promising a "rollback" of American liberties if the person is confirmed. Conservative groups, at the same moment, will blitz with e-mails proclaiming the nominee a modern John Marshall. Ads will appear on television. Journalists will be hit with distorted "reports" attacking or defending the nominee's "record," as groups release their opposition research or their defensive spin. Both camps, in short, will unleash the huge sums they have raised in what will be, for all intents and purposes, a political campaign -- a political campaign, unfortunately, for an office that is meant to be not merely apolitical but actively insulated from politics.
Alas, I fear the Post will be shown to be correct....

[Judy G. Russell]

The real hitch here is that I don't see what else this could be except a political campaign. Unless, of course, the President had the wisdom and courage to nominate another moderate... And even then you'd see a political campaign except with the interest groups reversed.

[RayB (France)]

The real hitch here is that I don't see what else this could be except a political campaign. Unless, of course, the President had the wisdom and courage to nominate another moderate... And even then you'd see a political campaign except with the interest groups reversed.

Wayne and I spoke on the phone for about an hour the other night and this was one of the topics. We both are fed-up to the teeth, and saddened, with the way our political system has degenerated. This polarization that exists is cancerous and will consume us all if we persist. This criticism applies not only to our politicians but to all who have closed thier minds to reason, compromise and common sense.

Like you, we agree that this is an important time in our history. This is a test for Bush. He doesn't lack the guts but let's hope he acts wisely. And if and when he does that the 'haters' will show some dignity with regard to ALL points of view. Let's put the daggers away.

[Dan in Saint Louis]

Alas, I fear the Post will be shown to be correct....
Attachment too big for forum rules (ca 40 KB), so get it here:

http://landiss.info/Declaration%20of%20Independence%202005.doc

[MollyM/CA]

Uh oh...
Who will take O'Connor's place may well turn out to be the single most important decision of Bush's presidency. As much as I would like to hope that he will be forced to nominate another centrist, I am desperately afraid that we are going to see a Scalia clone -- someone who is so dogmatically devoted to a particular (and extreme) rightist point of view that we will see substantial individual liberties eroded, particularly in the area of women's rights.
Sigh... this is very scary...

There is something we can do, very easily. MOVE-ON PAC is a political action organization that, in general, supports centrist to liberal candidates, causes and actions. You can go to their web site and sign a petition that will go to your legislators. I think you have to join, so they have your address (and thus the relevant legislators) on file.

Here is the URL for the petition asking your legislator to stand firm and not let Bush railroad in the Stone-Age justice of his choice.

http://www.moveonpac.org/protectourrights

MoveOn does lots of other things too, and you will get e-mail from them frequently, telling you about ads they're putting up in various media, about phone campaigns, about parties, about other activities. When you log in to the site you'll be given an opportunity to make a donation, and it's an easy way to do that, too.

They're one of the first Web-based PACs and rated as quite effective. I'm quite happy with my association with them and have not received unsolicited political e-mail or snail mail from other sources since joining. Indications are that they keep your particulars to themselves.

[MollyM/CA]

This polarization that exists is cancerous and will consume us all if we persist. This criticism applies not only to our politicians but to all who have closed their minds to reason, compromise and common sense.

Hear, hear.

And I wish there were a litmus test for candidates so maybe we could get a few in who exercise reason, compromise, and common sense.

[MollyM/CA]

Well,at least we won't have to worry about a frivolous constitutional amendment banning gay marriage. Being gay in itself will probably become a hanging offense.

Judy --got any idea what proportion of women vote, and what proportion of admitted gays? Seems to me those are the relevant numbers.

[Judy G. Russell]

Wayne and I spoke on the phone for about an hour the other night and this was one of the topics. We both are fed-up to the teeth, and saddened, with the way our political system has degenerated. This polarization that exists is cancerous and will consume us all if we persist. This criticism applies not only to our politicians but to all who have closed thier minds to reason, compromise and common sense.
I couldn't agree more but (and this is an important "but")... one of the concerns people like me have about the Bush Administration is the attitude it puts forth of being (a) God's anointed (and therefore automatically entitled to whatever it wants) and/or (b) deserving of having its way on everything because it has an electoral "mandate" (its small majority in an election at which an awful lot of people didn't vote).

It's very hard to compromise or reason with someone who says "my way or the highway" from the beginning. Bush suggests, very often, that his idea of compromise is to give him everything he wants.

Now I don't want to suggest that there aren't people on the left who have every bit the same entrenched mindset: that everything Bush says or does is automatically wrong, even if it's nothing more than getting up and saying, "Yep, it's Monday July 4th, all right."

How to make those two sides move off their extremes and into the center is beyond me.

[Judy G. Russell]

Well,at least we won't have to worry about a frivolous constitutional amendment banning gay marriage. Being gay in itself will probably become a hanging offense.
Frightening, isn't it?

Judy --got any idea what proportion of women vote, and what proportion of admitted gays? Seems to me those are the relevant numbers.
Nope, I'm afraid I don't. And I'm not sure those numbers will tell you all that much since there are (believe it or not) many women who aren't entirely sure women's rights are a good thing and even (gasp) conservative Republican gays.

[Judy G. Russell]

MOVE-ON PAC is a political action organization that, in general, supports centrist to liberal candidates, causes and actions.
Errr... "centrist to liberal"? Centrist? MOVE-ON???

[Dick K]

The real hitch here is that I don't see what else this could be except a political campaign. Unless, of course, the President had the wisdom and courage to nominate another moderate... And even then you'd see a political campaign except with the interest groups reversed.
Oh, it will be political, of course, but the part of the Post piece that most got to me was the implied prediction that if Bush nominates anyone to the left of Pat Roberts, the radical right will scream "Betrayal!" and if he chooses anyone to the right of Michael Moore, the MoveOn lefties will predict the imminent demise of the Republic and start threatening to move to Canada. This continuous demonization of the opposition (examples of which can easily be found in this very forum) is really depressing, regardless of which side it comes from.

I am somewhat amused to see that many of those who are now wistfully characterizing Sandra Day O'Connor as a moderate (present company excluded, of course!) did not hesitate to excoriate her as a tool of the Far Right when she went with the majority on Bush v. Gore (or was it Gore v. Bush?) in 2000.....

[Dick K]

...and even (gasp) conservative Republican gays.
Yup; they call themselves the "Log Cabin Republicans." Like many women, there are many gays who refuse to allow sex (or sexual orientation) to be the sole definining factor of their political existence.

[Dick K]

You can go to their web site and sign a petition that will go to your legislators. I think you have to join, so they have your address (and thus the relevant legislators) on file.
Because they are so easily falsified or manipulated, e-petitions are routinely ignored by legislators and other political leaders. The only purpose of a MoveOn e-petition is to collect names and addresses for MoveOn's mailing lists.

And if you really think MoveOn can be characterized as "centrist to liberal," I would respectfully suggest that your political compass is in need of recalibration ;).

[Judy G. Russell]

This continuous demonization of the opposition (examples of which can easily be found in this very forum) is really depressing, regardless of which side it comes from.
I know. Sigh. I know.

[Judy G. Russell]

People are certainly entitled to define their politics any way they want. But when they do so in a way that's really very much against their own interests, I wonder...

[Dick K]

People are certainly entitled to define their politics any way they want. But when they do so in a way that's really very much against their own interests, I wonder...
Sure, but it is a question of which "interests" will be given precedence. Take, for example, the admittedly simplistic case of a young woman of childbearing years who stands to inherit $5,000,000 from her parents. If she votes Republican, she may be said to be voting against her reproductive freedom interests, but if she votes Democrat, one could say she is voting against her financial (freedom from estate tax) interests....

[RayB (France)]

**If she votes Republican, she may be said to be voting against her reproductive freedom interests, but if she votes Democrat, one could say she is voting against her financial (freedom from estate tax) interests....**

Only by the hate-monger of one's choice or, as you said, simplistically by taking each position to its extreme and ignoring everything else in between.

[Judy G. Russell]

I guess I find it a very easy choice when it's freedom on one side (particularly the freedom to be what one is born to be) and money on the other. And while I will fight to the death to protect someone else's right to make a different choice, I really don't understand it.

[Dick K]

Only by the hate-monger of one's choice or, as you said, simplistically by taking each position to its extreme and ignoring everything else in between.
And that is precisely my point: I have trouble saying that a member of any group (Blacks, women, Jews, gays,...) should automatically be assumed to back a particular party because that party supports the "interests" of his or her group.

[Dick K]

I guess I find it a very easy choice when it's freedom on one side (particularly the freedom to be what one is born to be) and money on the other. And while I will fight to the death to protect someone else's right to make a different choice, I really don't understand it.
Judy -

But this ultimately leads to the categorization of all the members of any minority group (be they women, Blacks, gays, Jews, Hispanics, or whatever) as single-issue voters who are only interested in one question and who can therefore be taken for granted by the party which has the reputation for supporting "their interests."

[Judy G. Russell]

No, I'm not defining "freedom" that narrowly... or at least I hope I'm not.

For the gay community, it's literally a matter of being allowed to live freely and openly, or being prosecuted and persecuted. That's not, IMO, a "single issue".

[MollyM/CA]

Judy -

But this ultimately leads to the categorization . . . as single-issue voters who are only interested in one question and who can therefore be taken for granted by the party which has the reputation for supporting "their interests."

But isn't this just the basis of both parties' shameless pandering to the Religious Right? Only, not one "question" (a word not in the vocabulary of that group) but a consolidation of questions.

[MollyM/CA]

They liked Ms O'Connor fine --if "centrist" can mean independent of anyone else's thinking so that one reasoned opinion falls to the left and another with those to the right.

[MollyM/CA]

The only purpose of a MoveOn e-petition is to collect names and addresses for MoveOn's mailing lists.


I've never gotten one piece of snail mail that could possibly be related to my presence on MoveOn's mailing list. The only political mail we get is flyers and pleas asking us to vote for or help fundd right-to-life initiatives and legislation, anti-some color other than pink i/l, teach creationism in our schools i/l etc., or for money to support our vile Richard Pombo's vile projects, and I can't conceive of these having anything to do with MoveOn lists. And I've never gotten one piece of political e-mail, period, except from MoveOn.

It's my belief, however, given the weakness of e-mail petitions even when printed out to deliver, that Move-on's main objective with them is to give fundraising and other support for the other kinds of campaigns more strength by citing the numbers that have signed the petitions.

[Judy G. Russell]

I suspect, however, that if you have them a choice between Sandra Day O'Connor and Ruth Bader Ginsburg... they wouldn't be quite so fond of O'Connor.

[Jeff]

I suspect, however, that if you have them a choice between Sandra Day O'Connor and Ruth Bader Ginsburg... they wouldn't be quite so fond of O'Connor.

What's with these women and three word names? The usual two isn't good enough for them?

- Jeff

[Dick K]

I've never gotten one piece of snail mail that could possibly be related to my presence on MoveOn's mailing list. [...] And I've never gotten one piece of political e-mail, period, except from MoveOn [emphasis added].
I was not speaking of snail mail, and the fact that you now receive political e-mail from MoveOn simply proves my point.

It's my belief, however, given the weakness of e-mail petitions even when printed out to deliver, that Move-on's main objective with them is to give fundraising and other support for the other kinds of campaigns more strength by citing the numbers that have signed the petitions.
Of what value is "citing the numbers," since those numbers are so easy to falsify or manipulate?

[Judy G. Russell]

It's no worse than Billy Bob, you know.

[Lindsey]

What's with these women and three word names? The usual two isn't good enough for them?
Perhaps you would prefer that they just keep their maiden names and not adopt their husbands' surnames? You know, you guys don't have this problem to deal with, you keep the same name from birth to death no matter what, so don't go preaching to women about how they should style their names.

--Lindsey

[Judy G. Russell]

You tell 'em, lady! (says Judy Geissler Russell...)

[Lindsey]

You tell 'em, lady! (says Judy Geissler Russell...)
There you go. Women shouldn't disappear from the record just because they got married, but that pretty much what happens with a lot of the friends you had growing up.

--Lindsey

[Mike]

... I have trouble saying that a member of any group (Blacks, women, Jews, gays,...) should automatically be assumed to back a particular party because that party supports the "interests" of his or her group.
Exactly, Dick. Especially since most parties appear to support the interests of those at the helm.

As a member of one of the groups noted, I can say that any assumptions about which party(s) I would support are invalid.

It's true that one particular party has included, uh..., exclusion of my demographic group within its platform, but if someone assumes that because I'm gay I must be a Democrat, then s/he is wrong.

And if someone assumes, after reading the above paragraph, that I must be a Log, then s/he is still wrong.

[Mike]

That goes without saying. If women (at last count, something on the order of 51-52% of the population) lose the fight, gays don't have a prayer.
Of course, it could be scary to be in a dark room with some of the people who meet the entrance criteria for both groups.

[RayB (France)]

Perhaps you would prefer that they just keep their maiden names and not adopt their husbands' surnames? You know, you guys don't have this problem to deal with, you keep the same name from birth to death no matter what, so don't go preaching to women about how they should style their names.

--Lindsey

I'm from the 'Who Cares' camp. I ran into many, many double-barrelled names when we lived in the UK. I just figured that the mother narrowed the possible father down to two and didn't want to slight either one. Seems fair.

[Mike]

Well,at least we won't have to worry about a frivolous constitutional amendment banning gay marriage. Being gay in itself will probably become a hanging offense.
Kind of like what the Rhea County (TN) commissioners tried to do last year?

[Mike]

Not ALL men do that. You and I both know one man who took his wife's surname upon marriage.

[Judy G. Russell]

Of course, it could be scary to be in a dark room with some of the people who meet the entrance criteria for both groups.
Let's put the heads of the radical right groups in a dark room with some of those folks! I know who I'd bet on to come out alive!

[Lindsey]

You and I both know one man who took his wife's surname upon marriage.
I do? I don't remember. Doesn't matter: it's true for the overwhelming majority of men in the U.S. Changing surnames is not something that, on the whole, they personally have to deal with.

--Lindsey

[Mike]

ROFL! I suspect Falwell and his ilk would quickly be terrorized by a bunch of bull dykes.

Shall I call some friends? <g>

[Judy G. Russell]

ROFL! I suspect Falwell and his ilk would quickly be terrorized by a bunch of bull dykes. Shall I call some friends? <g> GO FOR IT!!!!

[MollyM/CA]

Women becoming hyphenated to their husband's, or husbands', surnames still gives the kids problems, though. Confuses the greataunts when they come to write the birthday checks!

[MollyM/CA]

Ah, but I signed up to receive bulletins from Move-on! If I subscribed to, say, a financial newsletter I would certainly expect to receive it: I don't quite see the point.

[Dick K]

Ah, but I signed up to receive bulletins from Move-on! If I subscribed to, say, a financial newsletter I would certainly expect to receive it: I don't quite see the point.
The point is quite simply that e-petitions are not worth the paper they are not printed on.

[RayB (France)]

I do? I don't remember. Doesn't matter: it's true for the overwhelming majority of men in the U.S. Changing surnames is not something that, on the whole, they personally have to deal with.

--Lindsey

When Gays get 'married', does one change thier name?

[Lindsey]

Who will take O'Connor's place may well turn out to be the single most important decision of Bush's presidency.
There's a very interesting commentary by Bruce Shapiro (http://www.thenation.com/doc.mhtml?i=20050718&s=shapiro) on this question posted a couple of days ago on the Nation web site.

--Lindsey

[Lindsey]

When Gays get 'married', does one change thier name?
I would have no idea; I don't know any married gay couples. But since same-sex marriages are only recognized in one state in this country, and that only very recently, I don't think there's been time to establish a common practice about surnames.

In any case, it doesn't change what I was saying: a change of surname on marriage is not an issue that the overwhelming majority of men in this country have to deal with for themselves, and even for those very few who do change their names, it's an entirely voluntary choice, not an expectation that is laid on them by society.

--Lindsey

[Dick K]

There's a very interesting commentary by Bruce Shapiro (http://www.thenation.com/doc.mhtml?i=20050718&s=shapiro) on this question posted a couple of days ago on the Nation web site.
It is a very good piece, indeed, and I was particularly struck by Shapiro's reasoned arguments against what seems to be a tendency of many liberals today to deify O'Connor, simply because she is not as far to the right as Scalia and Thomas.

I would take slight issue with Shapiro on one point, however. He is quite correct when he notes, Whether a nominee is female, African-American or Latino, there can be no sentimental presumption that once on the Court a nominee's ethnic identity or gender will trump a well-established track record on the far right. But he criticizes Thomas for having ...bitterly suggested that he was being punished for refusing to toe the line of African-American orthodoxy. In fact, Thomas' suggestion was rather prescient: Here in Washington, there have been fierce criticisms (and even withdrawals) of invitations extended to Thomas to speak in local public schools, on the grounds that he "is not in step with the African-American community." That kind of treatment of a justice of the Supreme Court, whatever his political bent, is appalling.

[Lindsey]

someone who is so dogmatically devoted to a particular (and extreme) rightist point of view that we will see substantial individual liberties eroded, particularly in the area of women's rights.

Sigh... this is very scary...
Speaking of scary: Bush's new appointee(s) may get to decide on another important issue--habeas corpus, specifically, habeas corpus review as it applies to death penalty cases. This from Ari Berman's The Daily Outrage (http://www.thenation.com/blogs/outrage?bid=13&pid=5058):

The sluggish pace of executions in America is too much for Republicans to handle. The recently introduced "Streamlined Procedures Act of 2005" would restrict the ability of prisoners on death row to appeal their sentences to federal courts, thereby gutting the 300-year legal precedent of habeas corpus review. House Democrats have little chance of stopping the bill, even though a Columbia University study found that of the 5,826 death sentences handed down between 1973 and 1995, 68 percent were reversed on appeal. A full 40 percent of convictions upheld by state appeals courts were later overturned through habeas corpus; precisely the mechanism "compassionate conservatives" now want to block.

Let's hope the Senate will fulfill their "cooling saucer" role on this one.

--Lindsey

[Judy G. Russell]

There has been a consistent effort to block habeas corpus access in death penalty cases for more than 30 years -- steadily eroding the rights of prisoners. I'm hoping the recent evidence suggesting that at least one truly innocent man has been executed may stem the tide.

[Lindsey]

I'm hoping the recent evidence suggesting that at least one truly innocent man has been executed may stem the tide.
Yes; although since the Court is on record saying that it's perfectly OK to execute a demonstrably innocent man as long as he had a "fair trial," I can't say that I am hopeful that adding one more justice in the mold of Thomas and Scalia would do much in the way of tide stemming. :(

--Lindsey

[Dick K]

Yes; although since the Court is on record saying that it's perfectly OK to execute a demonstrably innocent man as long as he had a "fair trial," I can't say that I am hopeful that adding one more justice in the mold of Thomas and Scalia would do much in the way of tide stemming. :( Under what mathematical model does 2 constitute a majority of 9? The position which dismays you (and whic I do not like either) was not the sole product of Justices Scalia and Thomas.

[Judy G. Russell]

Yes; although since the Court is on record saying that it's perfectly OK to execute a demonstrably innocent man as long as he had a "fair trial," I can't say that I am hopeful that adding one more justice in the mold of Thomas and Scalia would do much in the way of tide stemming. :(
No, someone with that mindset isn't likely to be inclined to put on the breaks.

[Judy G. Russell]

Under what mathematical model does 2 constitute a majority of 9? The position which dismays you (and whic I do not like either) was not the sole product of Justices Scalia and Thomas.
Lindsey didn't say Scalia and Thomas were the only ones on that side. She said that it was not likely that the Court would move away from that position if those who are most in favor of it are joined by others of their philosophical bent. That is hardly rocket science -- or even math.

[Dick K]

Lindsey didn't say Scalia and Thomas were the only ones on that side. She said that it was not likely that the Court would move away from that position if those who are most in favor of it are joined by others of their philosophical bent. That is hardly rocket science -- or even math.It is definitely not rocket science, but the position was supported by a majority of the Court's members. Thus, it would seem to be neither rocket science nor higher mathematics to note that the position is unlikely to be rolled back if any new Justrice(s) is of the same philosophical bent as any of the members of that majority--not just clones of Thomas and/or Scalia.

[Judy G. Russell]

it would seem to be neither rocket science nor higher mathematics to note that the position is unlikely to be rolled back if any new Justrice(s) is of the same philosophical bent as any of the members of that majority--not just clones of Thomas and/or Scalia.
There we part company. Some members of the Court -- Justice O'Connor among them -- have been moving away from the more dogmatic view often espoused by Scalia and/or Thomas. Indeed, I think it's fair to describe Justice O'Connor's views in particular as an evolving skepticism about the death penalty. Replacing such a Justice (who appeared to be moving towards a much more centrist position on the death penalty) with a Justice more aligned with Scalia and Thomas (and thus entrenched in what has to be described as a pro-death penalty stance) makes the prospect of any move to the center by the Court as a whole vastly less likely.

One of the realities of a Court governed by majority vote is that it is much harder to find room in the middle when the number of those at the sides (dare I say -- at the fringes) grows.

[Lindsey]

The position which dismays you (and whic I do not like either) was not the sole product of Justices Scalia and Thomas.
As Judy points out, I didn't say that it was.

--Lindsey

[Lindsey]

No, someone with that mindset isn't likely to be inclined to put on the breaks.
Or the brakes. ;)

--Lindsey

[Judy G. Russell]

Sigh... I niver sed I culd spel.

[Bill Hirst]

Sigh... I niver sed I culd spel.
And now POTUS wants to appoint a justice who supports Roe v. Wade, for now, but I suspect he'd be able to find grounds to limit its scope.

[Judy G. Russell]

It's certainly not as good an appointment as we might (in our wildest dreams) have hoped for, but it also doesn't seem to be as bad as the ones we might (in our worst nightmares) have feared.

I highlight the word "seem" because Roberts really doesn't have much of a track record and so it's difficult to see where he might go once he has that particular black robe.
And I know that if I were a very clever (or cleverly advised) and very conservative Republican President, I would pick a very very conservative judge who didn't have much of a track record so the other side wouldn't have much ammunition.

[Lindsey]

And now POTUS wants to appoint a justice who supports Roe v. Wade, for now
Well, he said in the confirmation hearings for his current post that he considered Roe v. Wade to be settled law, and therefore binding precedent, but that is exactly the position a federal appeals court judge has to take--he has no power to rule counter to what the Supreme Court has said. That doesn't mean that he wouldn't, as a Supreme Court Justice, seek to have Roe overturned. (And in his capacity as Deputy Solicitor-General under--was it Reagan?--he did sign a brief arguing that Roe was wrongly decided and should be be overturned. Was that his opinion, or simply the argument he was making on behalf of his client? We don't know. But his wife, apparently, is very active in the pro-life movement, for whatever that is worth.)

That said, there are still currently 5 votes on the Court (not counting O'Conner) in favor of upholding Roe, so Roe itself is in no immediate danger. The real danger, as you have noted, is in rulings that would limit its scope and make it all but meaningless, and the loss of O'Conner's vote does make that a much stronger possibility.

But the fuss over Roe is a distraction from graver concerns, or perhaps it is a convenient surrogate for those concerns. The larger concern is that Roberts, a member of the Federalist Society, is one of those who thinks, like Thomas and Scalia, that the clock stopped in 1791, and that any interpretation of the Constitution that does not reflect the world as it was more than 200 years ago is invalid.

You've heard, I'm sure, of the infamous French Fry case by now (Hedgepeth v. Washington Metropolitan Area Transit Authority)? Sensational as the facts of that case are, Salon.com points out that the real significance is not Roberts's decision itself, but the reasoning behind it:

Roberts wrote that the Metro's mandatory arrest policy was not unconstitutional in part because it would not have been "regarded as an unlawful search or seizure under the common law when the Amendment was framed," that is, under the law as it stood in 1791. He described this inquiry as "the usual first step" in assessing Fourth Amendment cases, but really it is not. Instead, it is part of an approach to the law put forward by Justice Scalia, one that has been used inconsistently at best by the Supreme Court, garnering a clear majority's support in only one Fourth Amendment decision. It is an approach that would in essence freeze our rights as they were in 1791. And it is contrary to a great deal of modern Supreme Court case law that is dear to most Americans -- from protection against wiretapping to protection of the right to choose.


No question that Roberts is a brilliant lawyer. No question that he is well-liked by both Republicans and Democrats in Washington. But I think those very qualities could also make him very dangerous. Maybe even more dangerous than an obvious wing-nut. My hope is that even though he is very conservative, he is not an ideologue, that he is willing to listen and open to persuasion.

--Lindsey

[Bill Hirst]

No question that Roberts is a brilliant lawyer. No question that he is well-liked by both Republicans and Democrats in Washington. But I think those very qualities could also make him very dangerous. Maybe even more dangerous than an obvious wing-nut. My hope is that even though he is very conservative, he is not an ideologue, that he is willing to listen and open to persuasion.


--Lindsey
I suppose you're right, that all we can do is hope he's willing to listen and isn't going to apply 1791 standards to things like internet privacy and stem cell research. There's not enough in Roberts' record to predict what he might do on any given issue. We'll just have to wait and see what he does with the cases that come before the court.

By the way, an obvious wing-nut would have almost zero chance of being confirmed. <wry grin>

[Lindsey]

There's not enough in Roberts' record to predict what he might do on any given issue.
Or at least not enough to be able to hang him with. But of course, that's the whole idea.

By the way, an obvious wing-nut would have almost zero chance of being confirmed. <wry grin>
Yeah, right. That's why Janice Rogers Brown is now sitting in the DC Circuit Court of Appeals...

--Lindsey

[Judy G. Russell]

My hope is that even though he is very conservative, he is not an ideologue, that he is willing to listen and open to persuasion.
Ditto... and it's only a hope...

[Lindsey]

and it's only a hope...
And a thin one at that. :(

My best guess is that he is a blue-eyed Scalia.

--Lindsey

[Judy G. Russell]

My best guess is that he is a blue-eyed Scalia.
His reputation all the way back to college is that he's more of a pragmatist (like O'Connor) than an idealogue (like Scalia).

[Lindsey]

His reputation all the way back to college is that he's more of a pragmatist (like O'Connor) than an idealogue (like Scalia).
Let us hope! That Federalist Society membership really bothers me.

--Lindsey

[Judy G. Russell]

That Federalist Society membership really bothers me.
I wonder if that isn't the kind of thing any Republican lawyer does these days, the way joining the ACLU is the kind of thing any Democrat lawyer does.

[fhaber]

I wonder if that isn't the kind of thing any Republican lawyer does these days, the way joining the ACLU is the kind of thing any Democrat lawyer does.

I'm old enough to remember when anyone could read the Federalist Papers just out of admiration for the style and argument, with no ideological freight to speak of. Same with Burke and Hobbes.

[Judy G. Russell]

I'm old enough to remember when anyone could read the Federalist Papers just out of admiration for the style and argument, with no ideological freight to speak of. Same with Burke and Hobbes.
The Federalist Society has little (if anything) to do with the Federalist Papers. They say their purpose as "a group of conservatives and libertarians interested in the current state of the legal order" is to redress a liberal bias in the law: "Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society."

[Lindsey]

I wonder if that isn't the kind of thing any Republican lawyer does these days, the way joining the ACLU is the kind of thing any Democrat lawyer does.
Maybe. I never realized one was expected to practice law on a partisan basis, but what do I know? Though I'm pretty sure I know lawyers who belong to neither group.

One thing for sure, though: Federalist Society membership appears to be a de facto requirement for any sort of appointment in this Administration that requires legal expertise.

--Lindsey

[Lindsey]

liberal ideology which advocates a centralized and uniform society."
That statement in itself is evidence they have only a rather loose connection with reality. I mean, good heavens, what is "centralized and uniform" about the Democratic Party?

--Lindsey

[Judy G. Russell]

Perhaps they only want to answer one element of the Democratic Party?

Naaaaah...

[Judy G. Russell]

One thing for sure, though: Federalist Society membership appears to be a de facto requirement for any sort of appointment in this Administration that requires legal expertise.
That, as my sister in law would say, ...

[fhaber]

>The Federalist Society has little (if anything) to do with the Federalist Papers.

I think you perhaps underestimate the power of icons.

[Judy G. Russell]

Oh I understand the efforts some people make to co-opt icons for their own purposes. I just don't buy into the propaganda, no matter who tries it.

[Bill Hirst]

That statement in itself is evidence they have only a rather loose connection with reality. I mean, good heavens, what is "centralized and uniform" about the Democratic Party?

--Lindsey
For that matter, what does "liberal ideology" have to do with "centralized and uniform"?

-Izzy Phorum in Intercourse, Pa.

[Lindsey]

Good question!

--Lindsey

[woodswell]

Judy, I listened to part of a discussion on Roberts today in which one of the participants claimed that the Federalist Society originally wanted to call themselves the "Anti-Federalist Society" but rejected that as too complex. He claimed this proves how unprincipaled the group is. I know nothing about the background or even the identity of the person who made this statement.
Anne

[Judy G. Russell]

one of the participants claimed that the Federalist Society originally wanted to call themselves the "Anti-Federalist Society" but rejected that as too complex.
Oh my... In any event the interesting question in all of this may turn out to be whether Roberts actually was a member of the Federalist Society at all! He now says he doesn't remember belonging even though he's listed in the '97-'98 leadership directory as a member of the steering committee of the organization's Washington chapter.

[Dan in Saint Louis]

He now says he doesn't remember belonging

Honest, officer, I don't REMEMBER leaving that Maui Wowie in my glove compartment.......

[Judy G. Russell]

Honest, officer, I don't REMEMBER leaving that Maui Wowie in my glove compartment.......
ROFL!! I mean, really, how do you not remember whether you did or didn't join a group in the last five years???

[Lindsey]

I know nothing about the background or even the identity of the person who made this statement.
That was Alfred Ross of the Institute for Democracy Studies (http://www.institutefordemocracy.org/) being interviewed (http://www.democracynow.org/article.pl?sid=05/07/26/1419244) on Democracy Now!

I don't know anything about the IDS, either, beyond what appears on their web site (which includes a brief page explaining what they see as the Federalist Society agenda, and links to more extensive resources), but here's the bio they offer on Alfred Ross:

Alfred F. Ross is the Founder and President of the Institute for Democracy Studies. He is an attorney and graduate of Columbia University Law School, and has been researching anti-democratic movements for over thirty years. He was a lecturer at Columbia University's School for International and Public Affairs, and an Associate Economic Affairs Officer with the United Nations Conference for Trade and Development in Geneva, Switzerland. From 1992-1995 he directed national and international research on anti-choice groups and movements at Planned Parenthood Federation of America's Public Policy Institute and then founded and served as Executive Director of the Center for Democracy Studies.

Bruce Shapiro was on the same program on Monday to talk about Roberts; he has an interesting article (http://www.thenation.com/doc.mhtml?i=20050801&s=shapiro2) on the Nation web site that addresses the question, "Why Roberts?"

--Lindsey

[Lindsey]

Oh my... In any event the interesting question in all of this may turn out to be whether Roberts actually was a member of the Federalist Society at all!
The statements I've heard seem to turn around the question of whether or not he paid dues. Maybe he joined and was put on the steering committee, but never actually got around to writing the check for his dues payment...

--Lindsey

[Judy G. Russell]

The statements I've heard seem to turn around the question of whether or not he paid dues. Maybe he joined and was put on the steering committee, but never actually got around to writing the check for his dues payment...
That's shaving things too fine for me. If he was on the steering committee, he was a member, dues or not.

[Lindsey]

That's shaving things too fine for me. If he was on the steering committee, he was a member, dues or not.
It would sure seem that way to me!

I can see how someone might forget joining an organization if it was done simply as a matter of form. But how can you forget being on that organization's steering committee?

The true irony is that he has called a lot more attention to the Federalist Society connection by denying it than there ever would have been if he had said nothing at all.

--Lindsey

[woodswell]

Lindsey, Yes, I found the transcript for the interview. Here's is the part I heard:
ALFRED ROSS: Well, it's interesting. At one of their recent conferences at Yale Law School, which was opened to anyone who wanted to attend, they actually chuckled about the fact that originally they were going to name it the Anti-Federalist Society, but it didn't sound very good, so they called it the Federalist Society. The point here is the -- this organization of extremist lawyers really has no principles about what they call themselves, whether they remember if they were members of the Steering Committee or not. The point is whatever sells and moves their agenda forward, they're prepared to use. And this debate over Federalist or the Anti-Federalist is really illustrative of the underlying cynicism and ruthlessness of this organization.
The Federalist (Society) Papers: John Roberts and the Right’s Move to Take Control of the Judiciary (http://www.democracynow.org/article.pl?sid=05/07/26/1419244)
Anne

[Lindsey]

I listen to Democracy Now! nearly every day. I was first put onto it by a lovely couple I met on a Nation magazine cruise I took last December. They were BIG fans of Amy Goodman. The public radio station here doesn't carry it, but I pick it up on webcast. (Ditto for Diane Rehm.)

--Lindsey

[woodswell]

I listen to Democracy Now!
If you get DISH Network satellite TV, Free Speech TV carries Democracy Now! several times a day.
Anne