So if the Supreme Court were to find that the death penalty constitutes “cruel and unusual punishment” using the “evolving standards” of a maturing society, what would your reaction be?
I know that the death penalty is largely a state issue… but an emerging national consensus on its essential barbaric nature would certainly shape the actions of the states. I don’t ask that it be banned federally - I ask that there be a nationwide dialog on the question of just what, as a society, we find so alluring about executing people. And the result of that dialog would be the abolition of the death penalty at the state level.
If you look at the state-level politics in states that have the death penalty, you’ll no doubt find pols agitating against it, and with a lot of popular support at that. You needn’t be “frightened” at the absence of opposition where it isn’t an issue.
As to your (yet another) hypothetical situation, it would certainly depend on the reasoning the SCOTUS used, wouldn’t it? How about your answer to your own question, now - what would you, a self-avowed principled federalist, think of such an intrusion into a state matter?
It’s not that she is is probably a moderate, but that she’s not definately a conservative. These groups were hoping for someone with a history of deciding (or at least arguing if they’re a lawyer) on their side of issues, and given that the congress/White House is dominated by people who say they are on their side, they think that they deserve an unambigious Scalia type instead of someone Bush claims is on their side.
In short, they’re angry because they don’t know anymore about her then you or I, and they feel that they shouldn’t have to guess given that they control the legislature etc…
That’s not a state issue. The U.S. Constitution clearly and unambiguously forbids “cruel and unusual” punishment. Should a national consensus emerge that the death penalty is such a punishment, a Supreme Court ruling banning it would be well within the Court’s jurisdiction.
Yes, I’m a federalist. But I would never quibble over the federal control of minting coin, or making treaties. Because both of those powers are explictly granted to the federal government by the Constitution.
What of the death penalty?
Well, the Constitution clearly forbids “cruel and unusual” punishment. what does a fair reading of those words mean? Right now, a fair reading of them right now does not prohibit the death penalty, since it is certainly not unusual.
But if a national consensus were to emerge that the death penalty was absolutely wrong, and forty-nine states abolished it, I would have no problem with the Court finding that it was now cruel and unusual punishment, and thus forbidden under the Eighth Amendment.
And it IS frightening that there is no strong national voice to urge us in this direction.
Maybe Reid said what he did because he figured the Dems didn’t have a prayer of getting anyone any better than her, vote-wise.
And if that was indeed his motivation, I expect he’s quite right.
But I still don’t have to like it.
I agree about the importance of varying backgrounds. And I agree that in particular, it’s a pretty good idea to have a Justice or two on the Supreme Court who’s spent some time on a legislature somewhere. But given that criterion, and given that he wanted to pick a woman, I still think he could have done a hell of a lot better. Especially given that while Miers was her law firm’s managing partner, the firm twice had to pay multimillion-dollar fines for aiding clients in defrauding investors. This isn’t the sort of thing that routinely happens to big law firms - but it happened twice on her watch.
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IYHO. The Reagan-era record on Roberts sure makes him look like one to me.
I’m all for winning, but sometimes in order to prosper in the long run, you’ve got to stand for some principles besides just winning.
Just for reference, current Justices, the President who appointed them and when:
John Roberts (CJ) … - GW Bush, 2005 …b. Jan 27, 1955
Stephen Breyer … - Clinton, 1993 …b. Aug 15, 1938
Anthony Kennedy … - Reagan, 1988… b. July 23, 1936
Sandra Day O’Connor . - Reagan, 1981… b. March 26, 1930
Antonin Scalia … - Reagan, 1986… b March 11, 1936
Clarence Thomas … - GHW Bush, 1991… b. June 23, 1948
David Souter … - GHW Bush, 1990… b. Sept 17, 1939
Ruth Bader Ginsburg … - Carter, 1980… b. March 15, 1933
John Paul Stevens … - Ford, 1975… b. April 20, 1920
On Deck:
Harriet Miers … - GW Bush, 2005… b. August 10, 1945
On thing that I hadn’t realised until now… only 2 of the 9 Justices were appointed by Democratic presidents.
Ginsburg was I believe appointed by Clinton, not Carter. If I’m not mistaken, Carter was the only president to serve a full term without making a Supreme Court appointment.
**
Nominated:**
Harriet Miers … - GW Bush, 2005… b. August 10, 1945
**
Sitting:**
John Roberts (CJ) … - GW Bush, 2005 …b. Jan 27, 1955
Stephen Breyer … - Clinton, 1994 …b. Aug 15, 1938
Ruth Bader Ginsburg … - Clinton, 1993… b. March 15, 1933
Clarence Thomas … - GHW Bush, 1991… b. June 23, 1948
David Souter … - GHW Bush, 1990… b. Sept 17, 1939
Anthony Kennedy … - Reagan, 1988… b. July 23, 1936
Antonin Scalia … - Reagan, 1986… b March 11, 1936
Sandra Day O’Connor . - Reagan, 1981… b. March 26, 1930
John Paul Stevens … - Ford, 1975… b. April 20, 1920
Anyway, that allows me to put them in order of appointment, which was my initial intent.
Dewey, regarding your post of Tuesday, # 102, as you must know I know almost nothing of the stars and prima donas of the Texas Bar and even less about the inner workings of the GW Bush operation as Texas governor. What I know is what a Texas lawyer of long experience and sound judgement has told me. I passed it along in the hope it would help in completing the jig-saw puzzle on Ms Miers. Since you are practicing in Dallas your information is likely more direct than mine –although you do seem to be relying on what others have told you and not on direct and personal knowledge.
A couple of points, however. I’m not impressed by Ms Miers presidency of the Dallas or of the Texas Bar Ass’n. Just about every bar association above the small county level seems to be dominated by the fat cat large law firms. If the senior partners /shareholders announce a preference for somebody it pretty well guarantees a block of 250 votes for that person. Ms Miers, as I understand it was in one of those large fat cat law firms. There also came a time, even in Texas, that a woman had to be put in one of those display window positions. I suspect Ms Miers had the luck to be in the right firm and the right time with the right genitalia.
The writing of briefs, the drafting of motions and the drafting of instructions is the work of juniors working for the lead trial lawyer. That is not dishonorable work nor is it unimportant but it is not the work of the lead lawyer – his job is to develop the theory of the case and send out the juniors to do the grunt work. My source is that in big cases Ms Miers was not the lead counsel she was on the brief.
Clearly many of our notable modern Sup Ct Justices did not have judicial experience before they went on the Sup Ct. Clearly some of the best of our lower court judges never had the opportunity to be among the select nine. In the first group are people like Justices Frankfurter and Rutledge who were educators, Warren and Taft who were politicians and Justice Blackmun who came to the court straight from being general council for the Mayo Clinic. Those people were all, however, widely respected before their appointment and pretty well known in the trade. Ms Miers, however, was surely not widely known nor was her work and scholarship respected. I suspect that Ms Miers has not been nominated to the Sup Ct for the same reason I suspect she became president of the Texas Bar Ass’n: she was in the right firm (the White House) at the right time (when the President needed a non-controversial candidate) with the right genitals (presumably).
I don’t know if she will be a distinguished addition to the court, but I would be surprised. I don’t know if the President is expecting her to come down on the social/religious reactionary side of issues, although it is starting to look as if Mr Rove has assured the Rev Mr Dobson that such is the case. What I do know is that there are a lot of more prepossessing practioners, judges and teachers out there and her appointment makes political sense only on one level – she has been the President’s toady for some time and the President expects her to continue to carry water for his cause. I don’t think that the President’s cause is any social issue. I think his cause is big business and I think that Ms Miers is big business’s girl.
I was talking about Will’s perspective, not my own. Most conservatives think the court is liberal. I’m not so sure myself. I think a few high profile cases might make it seem more liberal than it actually is. But there is no doubt that the SCOTUS has moved the country in the liberal direction over the last 60 - 75 years. That’s what the conservatives want to stop.
SG: You’re drawing a whole lot of negative inferences in that post, and I believe that a lot of them are quite unjustified. Let me list a few.
There were a whole lot of female partners at major Dallas and Texas law firms by the time Ms. Miers became the president of those two respective bars. And while it undoubtedly requires substantial political skills to ascend to those positions, you don’t get anywhere near the pool of available talent unless you are a skilled and well-respected attorney. I haven’t heard anybody who knew her as a practicing attorney, either in public or private, describe Ms. Miers as anything other than intelligent and skilled.
Your disparagement of brief-writing in favor of courtroom pontification is entirely unwarranted. I personally have no idea how many cases Ms. Miers tried, or in what capacities, and same with the number of briefs she filed. But she’s not being nominated for Solicitor General, and Supreme Court justices aren’t exactly known for their stirring oratory and ability to craft themes from the available facts. They’re supposed to be up there telling us what the law is and explaining how it works, which is a hell of a lot more like writing a brief than cross-examining a witness.
Now I have no doubt, no question whatsoever, that the overwhelming reason Ms. Miers received this nomination is because she is a dedicated Bush sycophant. That conclusion is unavoidable, really. But let’s not pretend that she is unaccomplished or a simply mediocre attorney. There are certainly more accomplished people out there, but her accomplishments and the recommendations from those who’ve actually known her in her professional capacity make it quite clear that she’s not a dim bulb nobody.
Would we even be having this discussion if Bush had nominated his buddy Al Gonzales? Gonzales’ professional accomplishments were infinitely less impressive than those of Miers before Bush started appointing him to various positions. Yet I don’t think anyone has ever suggested that his background is so undistinguished that he’s unqualified for a Supreme Court seat, unless you count two uneventful years as a Bush appointee to the Texas Supreme Court as automatic qualification for the U.S. Supreme Court.
The norm for what? Per the constitution, the Senate can make its own rules. That’s all that matters. Presumably, it could set the limit at 10 votes to change the rules if it so desired. As it is, procedural rule changes require only a simple majority. And, most importanlty, the fillibuster can’t be used to forestall voting on a prodedural rule change.
