Bush set to mollify religious conservatives today

[beyelzu]

Originally Posted by D. Scarlatti

This is his third nomination, Einstein.

[Waluigi]

Isn't it technically his fourth? His first three being Roberts for Associate Justice, Roberts for Chief Justice, and Meirs for Associate Justice.

You know, not to be pedantic or anything...

[D. Scarlatti]

Originally Posted by Waluigi

Isn't it technically his fourth?

Well, see, you're one of those drooling liberal tyrants that reads things into the Constitution that simply aren't there. What Article II says on the subject is only that "[the President] shall nominate ... Judges of the supreme Court[.]"

Where Congress gets off enacting this "Chief Justice" business is anyone's guess, since its regulatory powers are confined to tribunals inferior to the Supreme Court and its power over the Court itself is limited to tinkering with its appellate jurisdiction.

So John Roberts, according to "strict constructionism," is merely an unconstitutional potentate.

[alphamale]

i love internet death threats, they fucking rock

just to up the ante a little,

i will be glad to tell you my exact location and go halveses on any travel costs if you want to come break every bone in my fiscally conservative and socially liberal body*

My problem is with the other dickhead. If you want some do this:

- fly to orange county airport in california
- rent a car and ask for directions to Rancho Santa Margarita
- ask anyone there where 24 fitness is and go there - I'm there most weekdays between 5P and 7P
- go to the free weight room and ask for me
- then we'll go to the parking lot and what's gonna rock is your head

[TomJoe]

Originally Posted by alphamale

- go to the free weight room and ask for me

So someone should walk in and ask for "alphamale"?

[alphamale]

Originally Posted by TomJoe

So someone should walk in and ask for "alphamale"?

Patrick

[Waluigi]

Originally Posted by D. Scarlatti

Well, see, you're one of those drooling liberal tyrants that reads things into the Constitution that simply aren't there. What Article II says on the subject is only that "[the President] shall nominate ... Judges of the supreme Court[.]"

Where Congress gets off enacting this "Chief Justice" business is anyone's guess, since its regulatory powers are confined to tribunals inferior to the Supreme Court and its power over the Court itself is limited to tinkering with its appellate jurisdiction.

So John Roberts, according to "strict constructionism," is merely an unconstitutional potentate.

Yeah? And you're ugly!

[D. Scarlatti]

As expected, the press, led by Linda Greenhouse of the NYT, is focusing on Alito's dissenting opinion in the 3rd Circuit's version of Planned Parenthood v. Casey. First of all, it's a bit misleading to characterize it as "Alito's lone dissent," since it was a panel hearing involving only three judges. The 3rd Circuit upheld most of the PA statute under consideration with the notable exception of its spousal notification provision.*

Alito's dissent has more to do with his disagreement as to the interpretation of Justice O'Connor's undue burden test, enunciated in an earlier abortion case which the 3rd Circuit is trying to follow in Casey. According to that test, if what O'Connor calls an undue burden is found pursuant to the application of a statutory provision, then the statute itself is subjected to strict scrutiny, which means the court must find that the provision is narrowly tailored to a compelling government interest.

If no undue burden is found, then the provision needs only be rationally related to a legitimate government purpose. This is what Alito is talking about in the excerpt from his dissent that is being quoted in the press. It isn't some atavistic appeal to matrimonial patriarchy as it might appear standing on its own.

Alito's reasoning stems in part from the fact that the provision was attacked by the plaintiff on its face; in other words, it hadn't had time to find application to real life events. Although Alito concedes that there may indeed be circumstances whereby a woman seeking an abortion would be put in physical danger from the mere act of informing her spouse, the provision itself provides for an exemption in such circumstances.

Furthermore the undue burden test to which the 3rd Circuit refers was enunciated in a case that required a teenager seeking an abortion to notify both of her parents and Alito finds the relationship between a pregnant woman and her spouse versus a pregnant teenager and both of her parents factually distinguishable for purposes of a strict application of the undue burden test.

That's my defense of Alito for today.

* Section 3209 of the Act states:

(a) SPOUSAL NOTICE REQUIRED.--In order to further the Commonwealth's interest in promoting the integrity of the marital relationship and to protect a spouse's interests in having children within marriage and in protecting the prenatal life of that spouse's child, no physician shall perform an abortion on a married woman, except as provided in subsections (b) and (c), unless he or she has received a signed statement, which need not be notarized, from the woman upon whom the abortion is to be performed, that she has notified her spouse that she is about to undergo an abortion. The statement shall bear a notice that any false statement made therein is punishable by law.

(b) EXCEPTIONS.--The statement certifying that the notice required by subsection (a) has been given need not be furnished where the woman provides the physician a signed statement certifying at least one of the following:

(1) Her spouse is not the father of the child.

(2) Her spouse, after diligent effort, could not be located.

(3) The pregnancy is a result of spousal sexual assault as described in section 3128 (relating to spousal sexual assault), which has been reported to a law enforcement agency having the requisite jurisdiction.

(4) The woman has reason to believe that the furnishing of notice to her spouse is likely to result in the infliction of bodily injury upon her by her spouse or by another individual.

Such statements need not be notarized, but shall bear a notice that any false statements made therein are punishable by law.

(c) MEDICAL EMERGENCY.--The requirements of subsection (a) shall not apply in the case of a medical emergency.

. . .

(e) PENALTY; CIVIL ACTION.-- Any physician who violates the provisions of this section is guilty of "unprofessional conduct," and his or her license for the practice of medicine and surgery shall be subject to suspension or revocation. . . . In addition, any physician who knowingly violates the provisions of this section shall be civilly liable to the spouse who is the father of the aborted child for any damages caused thereby and for punitive damages in the amount of $ 5,000, and the court shall award a prevailing plaintiff a reasonable attorney fee as part of costs.

[D. Scarlatti]

Originally Posted by Waluigi

Yeah? And you're ugly!

What I really meant to say is you're right, but it's fun to play the strict constructionist on occasion to demonstrate what a silly doctrine it can be. What's funner is to play the strict construction/original intent game so we can get back to public hangings.

[livius drusus]

Thank you for the analysis of Alito's Casey dissent, Scarlatti. Very interesting stuff. Any chance you'll do something similar with his dissent in Doe v. Groody?

[alphamale]

Originally Posted by D. Scarlatti

What I really meant to say is you're right, but it's fun to play the strict constructionist on occasion to demonstrate what a silly doctrine it can be. What's funner is to play the strict construction/original intent game so we can get back to public hangings.

You think the rule of democratically-established law (not by judges) is a big joke?

[D. Scarlatti]

Originally Posted by livius drusus

Doe v. Groody

I was unfamiliar with that case until now. I'll read it more closely later, but on first glance it appears that Alito would allow a broader reading of a search warrant by police officers than of the 4th Amendment by federal judges. To a civil libertarian, that is not a good sign.

[D. Scarlatti]

Originally Posted by alphamale

You think the rule of democratically-established law (not by judges) is a big joke?

Did I not already mention that the conservatives on the Rehnquist Court invalidated far more democratically enacted federal statutes than the liberals? This is the problem with the unrelenting politicization of the judiciary. When a law that you like is invalidated by liberals, you scream bloody murder. But when a law that you don't like is invalidated by conservatives, you fire up the high school football chants.

[Clutch Munny]

Originally Posted by alphamale

If you want some...

Oh, man. This is so sad, I feel guilty for finding it funny.

Really, really guilty; really, really funny.

[livius drusus]

Originally Posted by D. Scarlatti

I was unfamiliar with that case until now. I'll read it more closely later, but on first glance it appears that Alito would allow a broader reading of a search warrant by police officers than of the 4th Amendment by federal judges.

See, this is why I'd love to see your fuller analysis. From the snippets I've read, I can't really make heads or tails of Alito's argument. I mean, don't judges determine how broadly police can read a warrant based on their construal of the 4th Amendment?

To a civil libertarian, that is not a good sign.

That's the feeling this civil libertarian gets.

[alphamale]

Originally Posted by D. Scarlatti

Did I not already mention that the conservatives on the Rehnquist Court invalidated far more democratically enacted federal statutes than the liberals? This is the problem with the unrelenting politicization of the judiciary. When a law that you like is invalidated by liberals, you scream bloody murder. But when a law that you don't like is invalidated by conservatives, you fire up the high school football chants.

I'm not so much concerned with law invalidation as I am with the creation of new rights, constitutional interpretations that go way off from the initial intention, or even contradict it, and the apparent invalidation of parts of the Bill of Rights. And the bypassing of the amending procedure for the last 30 years - why go thru all that stuff when you can get it from a judge a LOT easier? There are a number of things like this - e.g. since the Korean War, we've gone to war with out declarations of war. It makes it seem to me like the constitution is viewed as a quaint historical document that has nothing to do with the real world.

[D. Scarlatti]

Originally Posted by alphamale

... the apparent invalidation of parts of the Bill of Rights.

I'll address precisely this point later when I attempt to provide a synopsis of Groody. But I have to go now because my federal welfare assistance check just arrived and I'm off to squander it on Popeye's chicken and malt liquor, like a good liberal.

[livius drusus]

Don't forget the biscuits. Popeye's makes the best biscuits of all time, man. You'd do well to forego the chicken and just spend your whole welfare loot on them.

[wei yau]

Those are some damned good biscuits. Do they make them with chicken fat or something?

[Adam]

I can tell Scarlatti is kidding, b/c we real liberals just hold up the Popeye's and the liquor store so we can save our welfare lewt for hookers and crack.

Seriously, thanks for the analysis, Scarlatti. I was hoping we'd eventually get to some of the good stuff we got in the Roberts thread. Not that the exchange of playground insults isn't entertaining, mind you .

[Sock Puppet]

The chicken-chesting was particularly entertaining. I knew I kept alpha off my ignore list for a reason.

[Clutch Munny]

Originally Posted by alphamale

I'm not so much concerned with law invalidation as I am with the creation of new rights, constitutional interpretations that go way off from the initial intention, or even contradict it, and the apparent invalidation of parts of the Bill of Rights. And the bypassing of the amending procedure for the last 30 years - why go thru all that stuff when you can get it from a judge a LOT easier? There are a number of things like this - e.g. since the Korean War, we've gone to war with out declarations of war. It makes it seem to me like the constitution is viewed as a quaint historical document that has nothing to do with the real world.

Some of the phenomena you mention are worth serious concern. But it looks like you're reinventing your position in light of Scarlatti's demolition of the first version. The big problem is the circumvention of democratically-passed laws; oops, I mean, it isn't.

In any case, on what grounds do you refer to the creation of "new rights" rather than the discovery of rights implicit in those already recognized, singly or in aggregate? In law as much as in math or science, it can be a long and surprising process, teasing out just what a set of complex propositions commits one to. Wiles didn't create Fermat's Theorem; he just showed that accepting some basic logico-arithmetic axioms ultimately commits us to it. Constitutional principles are no less conceptually and inferentially fecund.

[alphamale]

In any case, on what grounds do you refer to the creation of "new rights" rather than the discovery of rights implicit in those already recognized, singly or in aggregate? In law as much as in math or science, it can be a long and surprising process, teasing out just what a set of complex propositions commits one to. Wiles didn't create Fermat's Theorem; he just showed that accepting some basic logico-arithmetic axioms ultimately commits us to it. Constitutional principles are no less conceptually and inferentially fecund.

The answer is obvious and your analogy is bogus - mathematics is a self-consistent system - deductions from previous theorems or axioms can be proven to be true, and are not accepted until proven. The constitution, on the other hand, is like a playground for an activist judge/legislator. He can (and they do) select some parts and ignore others, capitalize on the imprecision of language, assert historical precedents which are open to interpretation one way or another, etc.

[Clutch Munny]

Originally Posted by alphamale

The answer is obvious and your analogy is bogus - mathematics is a self-consistent system - deductions from previous theorems or axioms can be proven to be true, and are not accepted until proven.

Er... and mathematicians do math, while lawyers do law. There are many differences. Are they relevant to the point at hand? Not that you've given any reason to think, no. The point, recall, was this: It is completely unsurprising that complex systems of propositions should have implications that are only gradually realized and elucidated.

If you have any objection to that sentence, please explain it clearly.

If you don't, you can see what follows from it: Anyone wishing to claim that newly asserted rights are being "created" rather than "discovered" from an existing complex system of propositions outlining rights is going to have to offer more than the fact that people didn't used to assert those rights.

Which you've failed to do.

[alphamale]

Er... and mathematicians do math, while lawyers do law.

Er... damn straight. You appeared to claim that the validity with which lawyers make supposed deductions is akin to the validity or logical correctness with which mathematicians do - it isn't. Again, mathematicians make proven deductions from a self-consistent logical system for which there is no possibilty of refutation. The supposed validity with which judges make deductions is a very specious analogy. The constitution and its history is FAR from a logical system. When ussc judges make deductions, there are usually opposing judges who make opposing deductions. How can this be? In mathematics, a mathematician proves his case and there is no more argument.

There are many differences. Are they relevant to the point at hand? Not that you've given any reason to think, no.

Just a second - YOU brought math into it!

The point, recall, was this: It is completely unsurprising that complex systems of propositions should have implications that are only gradually realized and elucidated.

That may be true, but the very complexity of a non self-consistent system provides ample opportunity for a judge bent on mischief rather than upholding the law - one way or another he can argue for the result he wants.

My understanding of Roe v. Wade was that states may within limits regulate abortion within narrow limits after 3 months but not before. Now tell me - exactly where did the magic amount of time 3 months come from? Deducible from the 14th or 4th amendment? Maybe if I read the very fine print of the fifth amendment I'll see it there? Inferable from our legal heritage from the Persian Empire? I wait your exposition with baited breath (not).