It isn’t a hijack, actually. I asked you before whether Bush would be happy if Estrada turned out like the last stealth nominee. You replied that Souter was an activist liberal, which was non-responsive but presumably meant that Bush wouldn’t be happy since an activist liberal is a bad thing to be. Aside from pointing up your determined blinderedness to things like the actual judicial philosophies of actual Supreme Court Justices–coughScaliadoesn’tpracticejudicialrestraintcough–it dodges my fundamental point: that your “aw shucks” skepticism about Democrats’ motives and Estrada’s conservatism completely ignores Bush’s potential motives for making Estrada a nominee in the first place.
Souter is, at best, moderate to liberal. He isn’t an activist. If you agree that Bush doesn’t want Estrada to turn out moderate to liberal, than you agree that Estrada’s politics (and, as Bush himself has stated, his judicial philosophy) were considered in making the nomination. And if you agree to that–and unless you believe that the Senate should give the executive carte blanche to make choices on the basis of ideology, which is a creditable argument, albeit not one I’ve heard you make–then you agree that the Senate can consider ideology (even–or especially!–inferences thereof) in deciding whether to confirm the nominee.
I can only speak for myself. Kennedy is more-or-less OK, but he just doesn’t seem to be in the same league intellectually as Souter and Scalia.
You’re treating Estrada like a Supreme Court nominee. As an appellate court nominee, he’s an obvious choice.
Maybe so, but you’re getting ahead of yourself. Bush nominated Estrada two years ago. If he had been confirmed, we’d have a fair amount of information about him by now.
Yes, this is true. OTOH it’s not clear whether Bush might not appoint Gonzales in preference to Estrada. Bush obviously thinks highly of Gonzales. Of course, Gonzales was on the Texas Supreme Court, so experience isn’t a problem.
OK, I’ll try. Please re-ask any questions I overlook.
I have mixed feelings. It’s far from obvious that Estrada’s work as an appellate judge will answer the questions. His work for Clinton shows that he has a good ability to do his job, setting aside his personal political views. In other words, I don’t expect Estrada to make waves as an appellate judge. (Hell, Bork didn’t even make waves as an appellate judge!)
IIRC Bush relied on Warren Rudman, the Senator from Souter’s state of New Hampshire.
I would feel better if he had at least 2 or 3 years. However, as I said, I don’t expect to learn much about how he would rule on the SC.
Yeah, I’d have to agree. I’ve read some of Kennedy’s work, and he does seem to be head and shoulders over Scalia, attempting to apply the Constitutional law of the country instead of his own personal views. Glad to see you can see the difference!
Subtle hint: Do a search for posts from me in your two Estrada threads containing the name Frankfurter. Read the contents. Write a one-paragraph description of what you find in them. I can put together a clear thought and express it in fluent English.
Or perhaps minty will be kindly enough to attempt once again to explain the concept of “judicial philosophy” to you.
What is an activist conservative? IMHO an “activist liberal” is a judge who legislates liberal policies from the bench. An “activist conservative” is a judge who legislates conservative policies from the bench.E.g.[ul][]An activist liberal judge overrides state law to rule that abortion is legal. An activist conservative judge overrides state law to rule that abortion is illegal.[]An activist liberal judge gives various benefits to illegal immigrants, regardless of state law. The activist conservative judge prohibits giving benefits to illegal immigrants, regardless of state law.[]The activist liberal reduces punishments for criminals. The activist conservative increases punishments for criminals.[]The activist liberal re-writes tort law to create new causes of action. The activist conservative re-writes tort law to eliminate traditional causes of action.[/ul]Hopefully, my point is clear. There have been no activist conservative judges on the SC in my lifetime (although Robert Bork might have been one.) YMMV
Do you stand by your earlier assertion that there’s no evidence of Estrada being particularly conservative?
If so, what criteria did Bush use to separate Estrada from all the other not-that-conservative Hispanic lawyers out there?
Particularly, if you agree that Gonzales isn’t conservative enough for many on the right, does that lead you to any inferences about Estrada’s politics?
And how, in your view, has the Bush administration modified their nomination criteria in order to avoid another Souter? Feel free to speculate.
Following from that, what assurances do you believe Bush has that Estrada will be the type of Justice he wants?
More questions you haven’t answered, or points you haven’t responded to:
[ul]
[li]Please address my response to the distinction you made between “interpreting the law” and “legislating from the bench.” Specifically, if by the former you don’t mean Frankfurter-esque extreme judicial deference, what is the difference between the two. Supplementing this with case citations would be wonderfully helpful.[/li][li]Have you abandoned your characterization of Souter as an activist?[/li][/ul]
Guess there weren’t as many as I thought. Mostly variations upon a theme-- Why did Bush nominate Estrada? And if ideology played a part, why is it not valid for the Senate to use ideology as a basis not to confirm?
In fact, a response to my post of 5:24 pm would be helpful in this regard.
And here’s a new question:
Do you believe Lopez and Morrisonto be examples of judicial activism? Why or why not?
To your points:
So the problem with Kennedy is that he’s not smart enough? Upon what do you base this conclusion? He graduated Stanford in three years. He spent a year at the London School of Economics. He graduated cum laude from Harvard Law. He drafted then-Governor Reagan’s sweeping tax initiative. He served over a decade on the appellate circuit. What leads you to the belief that he’s not in the same intellectual league as other Justices? I’m genuinely curious to hear your answer–and I presume, since they must be the source of your view, that you’ll be citing cases to support it.
But you recognize that, for our purposes, there’s no difference here. If Estrada is appointed to the D.C. Circuit, we both agree that he’ll have very little time in which to demonstrate his personal jurisprudence before being nominated for the High Court. And if the Senate confirms him for the appellate court now, when he’s nominated to the Supreme Court in six months they’ll be hit with, “Well, you thought he was good enough for the D.C. Circuit! Nothing’s changed between now and then that makes him any worse a judicial candidate!”
Do you believe that conservative lobbying groups will support the nomination of a not-staunchly-pro-life Justice? Honestly?
Um…sure he did, unless you have a really specific idea of what “making waves” means. Bork wrote a good number of significant opinions on the D.C. Circuit–123 of them, in fact.
So on what basis should senators judge whether he’d make a good Supreme Court Justice?
The difference between William Brennan and Stephen Breyer.
Because. He’s. An. Obvious. Appellate. Court. Nominee. He’s got everything. Smart. Honest. A Harvard Law Review editor. Hispanic immigrant. Overcame a speech defect. Had 15 Supreme Court cases. Partner in a top law firm. Great recommendations, even from Democrats. Worked in both Republican and Democratic administrations. And, most of all, he wants the job. I don’t know why someone who can earn in 7 figures wants a job paying a tiny fraction of that, but as a citizen I’m grateful to have such a capable public servant.
Pretty much, yes. You can argue that Bush would only have appointed a conservative. That’s circular reasoning, and it’s based on an unproven assumption. You can observe that he’s a member of the Federalist Society. AFAIK those are the only indications. Offsetting them is his work in the Clinton Justice Dept.
Your guess is as good as mine. My guess is that Estrada is super-qualified. It has been my impression long before this that one of Bush’s strengths as President is taking the trouble to find very capable appointees. Bill Clinton is certainly smarter than Bush, but Bush’s appointees are more uniformly strong than Clinton’s.
You’re assuming without evidence that Bush has a secret plan to please the right. Furthermore, there are some on the right who don’t want Estrada, because they fear he may be liberal.
Estrada cannot be another Souter, because Estrada isn’t nominated to the Supreme Court. Please ask that question again, if and when he is.
Bush says he wants judges who will interpret the law, rather than legislate from the bench. Estrada says he’s that sort of judge. The Federalist Society focuses on that type of judging.
I’m flattered. This request is far beyond a non-lawyer. I could try to provide a few examples of what the distinction means to me as a non-lawyer FWIW. E.g., Roe v. Wade and* Casey* have no basis in the Constitution. I consider them to be legislating from the bench. (I happen to like the result.) When the speech restrictions in McCain Feingold are thrown out later this year, I would consider that proper Constitutional protection of freedom of speech.
[quote]
[li]Have you abandoned your characterization of Souter as an activist?[/li][/quote]
Yes. At any rate, I’m not willing to try to support that characterization.
That’s an excellent question, which is worthy of a separate discussion. ISTM that the practice has been for the President to nominate judges mostly from his own party and for the Senate to confirm if the nominee is qualified. However, once judges get into the business of making law, then political ideology becomes all-important. A greater focus on ideology unfortunately means less focus on other attributes, like integrity, technical competence, judicial temperament, etc.
For all I know, Bush may have evil motives. But, where’s the evidence?
It depends on the level of the court. I think highly qualified judges wh o will follow the SC and precedent should be approved, assuming that their idiology is not wacky.
No. They seem to recognize the 10th Amendment. Actually, I consider a whole line of cases nearly wiping out the 10th Amendment to have been judicial activism. Of course, they are established law, by now.
It’s just a vague impression I had. Perhaps I was wrong.
Huh? I don’t even know that he ever will be nominated for the High Court. And, if he is, I don’t claim to know when it might happen.
Sure, but that’s a weak argument. It didn’t do Bork any good.
First of all, I don’t know what you mean by “not-staunchly-pro-life.” Personal opposition to abortion? Commitment to overrule Roe v. Wade? Second, there are conservative organizations that are libertarian-type, which are not even anti-abortion.
Yes, I did have a specific idea. Bork was attacked for lots of things during his nomination hearings (and rightfully so IMHO). But, he wasn’t attacked (or barely so) for his decisions as an appellate judge. Few, if any, of his decisions were overturned IIRC. I think he was on his best behavior, hoping to be elevated to the SC. But, the fact remains, if he hadn’t written all those wild articles, his judicial record would have been a pretty meager target for his opponents.
Just like any other nominee, I guess. Evaluate his record, his testimony, his reputation, etc. as best they can. I’ve hired a lot people, and that’s what I’ve always done. It doesn’t guarantee perfect results, but I don’t know of any way to make perfect decisions.
BTW I have a feeling that for some people, a “conservative activist” judge is one who doesn’t roll over and let the liberal activists do what they want to.
Indeed. But the conservative activists Rehnquist, White, Scalia, and Thomas voted to overturn the federal law guaranteeing abortion rights: Roe v. Wade.
Roe v. Wade is not a federal law. It’s a Supreme Court decision.
minty’s comment illustrates my earlier comment: “For some people, a ‘conservative activist’ judge is one who doesn’t roll over and let the liberal activists do what they want to.”
Roe v. Wade is not only federal law, it is federal constitutional law. Your refusal to acknowledge that ridiculously simple fact merely illustrates the lengths you will go to in order to deny the reality that hard-core conservatives are at least as likely to legislate from the bench as hard-core liberals.
And just out of curiosity, do you curse judicial activists every time a citizen of a state is denied the right to sue that state for violations of federal law in federal court?
To the contrary, your refusal to acknowledge the rediculously simple distinction between a judicial decision and a legislative law indicates the lengths that you will go to in order to deny the reality of liberal judicial activism.
Isn’t a SC Justice supposed to overturn a clearly wrong earlier decision? In Roe v. Wade an earlier SC legislated from the bench. Fixing that decision is not legislating, although it is failing to follow precedent. Note that the majority in Casey also didn’t follow the precedent of Roe v. Wade. They legislated further, with little pretence of Costitutional connection. (And, IMHO produced a pretty good law.)
Casey illustrates that SC “legislation” takes an issue away from Congress. We’ve seen the same thing with Miranda. A sweeping SC decision prevents Congress from fixing any problems that crop up after the original decision. That’s too bad, because laws generally don’t work perfectly. It takes some experimentation to get them to work right. Or, sometimes changing conditions cause a law to need revision.
But, when the SC has taken over the issue, Congress and the state legislatures are shut out of the process (or restricted in what they can do.) We either live with the flaws or the SC has to take another whack, making it even clearer that they are actually legislating.
