Pat Oliphant by Pat Oliphant

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  1. Simon_Jester

    Simon_Jester said, 4 months ago

    I love Sotomayor….unless Rush Limbaugh tells me otherwise

  2. Jase99

    Jase99 said, 4 months ago

    I love only who Fox News tells me to with out question. Everyone else is the unyielding spawn of Satan. I must make cheep, snide remarks against anyone Fox News tells me too. Fox News talking points are the absolute words of God. I must not think for myself, lest I anger Fox News and hurt the troops.

  3. nomad2112

    nomad2112 said, 4 months ago

    Like it will matter.

  4. Adora68

    Adora68 said, 4 months ago

    I love the fact that I’ve been put into a position where I’ll be considered a racist if I don’t profess love for The Anointed One’s choice, even though she’s a bigoted judicial activist.

    Not.

  5. humormehere

    humormehere said, 4 months ago

    Hey, She’s alright. I’m sure I won’t agree with her most of the time, but if she will have some semblance of using the US Constitution to decide cases, I’m ok with that.

    These folks are out of control, anyway…

  6. Anthony 2816

    Anthony 2816Genius_badge said, 4 months ago

    It’s so tiring hearing people use the term “judicial activist” without knowing what it means, or else just using it to refer to liberal justices but not the conservative ones.

    “Innocent until proven guilty” is a prime example of judicial activism, Adora. Doesn’t appear anywhere in the Constitution. So I take it you’re against that concept?

  7. parkersinthehouse

    parkersinthehouse said, 4 months ago

    activist as opposed to inertist

  8. Anthony 2816

    Anthony 2816Genius_badge said, 4 months ago

    Where are the screams about judicial activism from people like Adora for this?

    “For all the talk of “modesty” and “restraint,” the right wing Justices of the Court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights: the infamous Ledbetter decision, for instance; the Louisville and Seattle integration cases, for example; the first limitation on Roe v. Wade that outright disregards the woman’s health and safety; and the DC Heller decision, discovering a constitutional right to own guns that the Court had not previously noticed in 220 years. Over and over, news reporting discusses “fundamental changes in the law” wrought by the Roberts Court’s right wing flank.”

    http://tinyurl.com/lkm6co

  9. believecommonsense

    believecommonsenseGenius_badge said, 4 months ago

    ^ ditto the thought behind your post, Anthony.

    Also, since Roe v. Wade is now established precedent, which even Chief Justice Roberts has acknowledged it now is, then seeking to overturn it is “judicial activism” by definition.

  10. Michael Morrin

    Michael Morrin said, 4 months ago

    Ah Ha, I see someone is up on their Heinlein. Perhaps I should change my user ID to Manny Davis, since I do the same kind of work with a similiar relationship to the client. Your thoughts on this please, and you know who you are.

    Bye the bye, Republicans quit supporting REAL conservative judges a long time ago, since a truly conservative judge tends to think the Constitution actually means what it says, which proves embarrassing for Republican ideas. Witness Chief Justice Earl Warren, one of the most conservative governors California ever had, who, try as Republicans wanted, could not find the word ‘seperate’, associated with ‘equal’ in the Constitution, resulting in the Brown v Board of Education ruling and those following after. Nor could he find the word ‘maybe’ in the fifth amendment, resulting in the Miranda decision. No, republicans want activist judges too, just right wing activists.

  11. DrCanuck

    DrCanuck said, 4 months ago

    And where in the constitution does it say gays CAN’T get married?

    (Oh, hey; then we’ll just change the constitution….)

  12. GNWachs

    GNWachsGenius_badge said, 4 months ago

    There are two different definitions of “judicial activism” floating around. After the Warren court wrote the laws they wanted the country to have eg Roe v Wade, Death Penalty- Miranda etc etc the accusations began. Being very clever the liberals responded see above and totally redefined the term.

    By the new definition if Congress voted to close the NYT and the SCOTUS overturned that they would be called activist. ANY law that Congress passes that is in direct conflict with the words of the constitution must be overturned. That is not activism that is mandatory.

    The problem with the Anthony/BCS view of a living constitution is every new appointee can then rewrite it to be what he wants. If an umpire wants 4 strikes to be out that is OK until the next umpire decides something else.

    My favorite ploy of the left is to actively change the law through a ruling and then say you must follow stare decisis.

    Heller was so obvious I was amazed at the pathetic dissent. This was the 2nd A right after freedom of speech, press etc. not #10 or #11. The RKBA is so basic in our country and the reason it was written was self defense and fear of an overbearing big government.

  13. lalas

    lalas said, 4 months ago

    GNW – then how does yelling “FIRE!” in a crowded theater fit in? It should be covered by the 1st, but it has been carved out and declared illegal.

    This argument relates to her comments about legislating from the bench. Where the law is gray, the courts color it in.

  14. GNWachs

    GNWachsGenius_badge said, 4 months ago

    lalas: this I love. Something I actually know. Freedom of speech can be tempered by “time, place or manner” (that is the law).

    The RKBA can be tempered exactly the same way- read Scalia’s opinion. He said examples of when the right may be abridged (in the written opinion) convicts, mentally ill, school zones, courthouses.

    BTW, one of my pet peeves -one may definitely shout fire in a crowded movie theater, but one cannot “falsely” shout fire…

  15. believecommonsense

    believecommonsenseGenius_badge said, 4 months ago

    GNW, actually the Roe v. Wade decision was handed down in Jan. 1973 under Chief Justice Warren Burger, a Nixon appointee who was considered a conservative and a strict constructionist.

    And I don’t think it’s a clever twist of words to say that concerted attempts to overturn Roe v. Wade, an established precedent, is to advocate “judicial activism.”

  16. Anthony 2816

    Anthony 2816Genius_badge said, 4 months ago

    Wachs: “My favorite ploy of the left is to actively change the law through a ruling and then say you must follow stare decisis.”

    This brings up three thoughts. First, I take it when the right does this, it’s okay with you?

    Second, are you suggesting that stare decisis should be abandoned?

    Third, if an appellant judge is confronted with a case that the black-letter law, as written, doesn’t quite cover, or it isn’t clear how it covers it, what should happen? Should the case just be put in limbo until the legislature can make a more specific law for that particular case (writing new law to cover an existing case, in other words)? Or should the judge make a decision on the case, creating precedent, and then be subjected to howls of “judicial activism” from the right?

    If you’re against judicial activism, and choose the first option, explain given the sheer number of cases decided daily how our legislatures would deal with the workload.

  17. GNWachs

    GNWachsGenius_badge said, 4 months ago

    BCS: As a libertarian I very very strongly believe in a woman’s right to chose. The decision must be solely between the woman and her physician. I maybe the only person here who has actually ever ordered an abortion. (Accutane causes birth defects)

    That said, Roe v Wade was a poor decision with no basis in law or the constitution. It was an activist decision (which I favored). At the time the individual states were already beginning to pass laws allowing free choice. As a Federalist I think this is the way to go.

    Sorry BCS but overturning established “wrong” law is not judicial activism. Plessy v Furguson? Well established, stare decisis and all that but it had to be overturned.

    All the Warren/Burger court activist decisions overturned established law. You now want to invoke stare decisis after you got what you want. And besides a living constitution would allow for just that, overturn liberal judicial decisions. You want it both ways a living constitution and stare decisis.

    In Roe v Wade and Brown v BofE I am just playing devil’s advocate.

  18. Anthony 2816

    Anthony 2816Genius_badge said, 4 months ago

    Stare decisis is only binding on lower courts, meaning it can’t be binding on the U.S. Supreme Court. In other words, the Supreme Court doesn’t have to follow any precedents.

    Thus, you can have both stare decisis and a living constitution.

  19. GNWachs

    GNWachsGenius_badge said, 4 months ago

    Anthony you, like BCS, ask intelligent well thought out questions. Thank you.

    I lean towards an originalist interpretation of the Constitution because we need a firm basis on which to conduct out lives. If the law keeps changing how should we act?

    Is the death penalty fair? Is it racist? etc. Legitimate questions to be answered by the legislature and the executive not banned arbitrarily by the judicial. Same comment re abortion, same sex marriage etc where there is no black letter law to follow.
    In those cases where the judge must make a decision and must use best personal resources in the absence of legislative directive follow the minimalist concept.

    Basically where it is not necessary to decide broadly it is necessary not to decide broadly.

    Re stare decisis. Very important concept, the basis of law in our society. But I will not accept overturning an established law and then claiming stare decisis. Let me ask you, after Heller do you accept the RKBA for all Americans except felons and the mentally ill? Stare decisis would say yes.

  20. GNWachs

    GNWachsGenius_badge said, 4 months ago

    Of course stare decisis is only legally binding on lower courts but for the Supremes to overturn well established precedent there should be something more than I personally don’t like it. There should be a constitutional basis behind the ruling.

    How justices could read the constitutional phrase “equal protection” or “privileges or immunities” and say that means you can treat whites differently than blacks because of skin color is clearly personal preference not constitutional. I will never ever accept stare decisis of that. And apparently (see Seattle and Louisville and Ricci) the justices are beginning to agree with me.

  21. Anthony 2816

    Anthony 2816Genius_badge said, 4 months ago

    I’m not sure how practical an originalist interpretation can be, given how things have changed. We have technology (and weaponry) far beyond anything the original authors could have imagined. Machine guns, life support, lethal injection, cars, internet, food technology, more diverse population…the list is endless.

    Adding amendments is too time consuming, and still couldn’t even begin to cover the new situations (and wouldn’t be “originalist” anyway).

    —

    After Heller, it would seem the answer to your question is yes, although personally I don’t agree with the Heller interpretation. You may already remember that I don’t see how the second amendment can apply to anything but single-shot muzzle loaders, unless one adds a heaping dose of judicial activism.

    I also think it’s extremely debatable whether it should apply to non-militia members.

    And there’s the little problem that the Supreme Court has never applied the 2nd amendment to the states via the 14th, like they have with most of the rest of the Bill of Rights, so there’s nothing to stop a state from banning all weapons from its citizenry.

  22. Anthony 2816

    Anthony 2816Genius_badge said, 4 months ago

    Interesting blurb on the Wikipedia page for Heller, showing how Scalia abandoned his claimed passion for originalist interpretation in order to apply judicial activism for Heller:

    Richard Posner, judge for the United States Court of Appeals for the Seventh Circuit, compares Heller to Roe v. Wade in as much as it created a federal constitutional right that did not previously exist, and he asserts that the originalist method—to which Justice Antonin Scalia adheres—would have yielded the opposite result of the majority opinion.
    “ The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property. It is doubtful that the amendment could even be thought to require that members of state militias be allowed to keep weapons in their homes, since that would reduce the militias’ effectiveness. Suppose part of a state’s militia was engaged in combat and needed additional weaponry. Would the militia’s commander have to collect the weapons from the homes of militiamen who had not been mobilized, as opposed to obtaining them from a storage facility? Since the purpose of the Second Amendment, judging from its language and background, was to assure the effectiveness of state militias, an interpretation that undermined their effectiveness by preventing states from making efficient arrangements for the storage and distribution of military weapons would not make sense.

  23. Anthony 2816

    Anthony 2816Genius_badge said, 4 months ago

    “How justices could read the constitutional phrase “equal protection” or “privileges or immunities” and say that means you can treat whites differently than blacks because of skin color is clearly personal preference not constitutional.”

    In fact, wouldn’t treating differently actually be the originalist interpretation? :)

  24. GNWachs

    GNWachsGenius_badge said, 4 months ago

    If I remember correctly Scalia does not claim to be an originalist but rather a texturalist.

    Those of us originalists say “freedom of the press” means TV, radio, internet etc. We interpret it to mean what the people at that time would have done/used if they lived today. RKBA fits right in there. What would a militia member (ALL able bodied men) have used. Thus what does our military carry with them or use routinely.

    Although Heller was 5-4 the vote on only militia was 9-0. I think we can put that behind us. It is a prefaced clause.

    Incorporation will come. Sotomayor voted no but California lower court voted for incorporation and we just filed before the supremes on the different appellate rulings. There actually are several Bill of Rights rulings not incorporated yet not just 2A.

    So whites are the new 3/5? :>)

  25. Anthony 2816

    Anthony 2816Genius_badge said, 4 months ago

    Wikipedia, for what it’s worth, calls Scalia (and his twin brother, Thomas, of course) originalists.

    To save some space, take a peek at the first few lines here: http://en.wikipedia.org/wiki/Originalist

    Sounds very different than what you’re saying…it says the meaning is determined when it was written, not “to mean what the people at that time would have done/used if they lived today”. That latter approach seems way too open to wild guessing and personal bias…like changing the 2nd amendment to mean this arm but not that arm, and okay in this building but not that one, or okay for this mental disease but not that one. All judicial activism IMHO.

    BTW, since you say the militia was all able bodied men, that means no guns for women? Originalist, no. Judicial activism, yes?

    —

    I think texturalism is not a good idea. Different people can interpret text differently, especially when they’re decades or centuries apart. Thus, I think investigating legislative intent beyond the text has a valid place.

  26. lindz.coop

    lindz.coopGenius_badge said, 4 months ago

    Adora took the words right out of Flush’s mouth!

  27. Adora68

    Adora68 said, 4 months ago

    I have to go with what GNWachs said here. Thanks for doing all the research and writing it so well, GN.

  28. Anthony 2816

    Anthony 2816Genius_badge said, 4 months ago

    What research? I didn’t see any sources from Wachs. Just my own that contradicted things he said.

    But look whom I’m replying to: Adora, who uses the term “judicial activist” without even knowing what it means.

    You never answered the question, Adora: “Innocent unless proven guilty” is a prime example of judicial activism. Doesn’t appear anywhere in the Constitution. So I take it you’re against that concept?