Never mind that, in Supreme Court level cases, the two are indistinguishable. :rolleyes:
Your protests would be just a little more convincing if you had ever, ever been able to point to a case where you could draw such a line in a way that could withstand even the minimal scrutiny it would get on this board. But you never have, have you?
They’re not supposed to be, although I agree that it’s sometimes functionally unavoidable.
And, like I said, common law pretty much blows the distinction to smithereens.
My point was that the open-and-shut cases, where no industry-standard “reasonable person” could accuse a judge of doing anything but weighing the facts against the law, are dealt with at the lower levels. At the highest levels, the courts don’t bother with those cases, they get only the ones where laws are murky or in conflict or of debatable constitutionality. There, rendering *any * decision can be described as “making law”, by those inclined to do so - but that’s their job and somebody has to do it. If the legislative branch doesn’t like the result, they can change the law or the Constitution as appropriate.
But the **Bricker ** approach to jurisprudence, if actually put into practice, would effectively require all but open-and-shut cases to be appealed to the legislative branch. Wonder why we don’t see that mentioned?
I see. I have heard this opinion from a number of conservatives. By the way, what did you say your profession was? 
I didn’t see that quote from Bricker, earlier. It makes no sense at all. The judiciary produces rulings-- that’s a result.
The point I was trying to make is that every decision makes law, because law is defined, in our system, as the complexus of all constitutions, statutes, regulations, executive orders, formal opinions, and case law. Perhaps the probate court of Hoodwink County makes new law only extremely rarely, save for the fact that applying a given statute to a case adds one more precedent to the system, but the higher appellate courts will make law in this sense every day.
Even taking Mr. Bork’s “inkblot” point into account, it is difficult to read the Ninth Amendment as saying anything but that there are rights that are not enumerated in the U.S. Constitution, and the Constitution may not be construed to deny that truth. (Dewey made the interesting point the last time this issue came up that the recognition and guaranteeing of such rights may reasonably be delimited to those defined in state constitutions or by statute. While I’m not certain I agree with that, I can see its plausibility.) But a true textualist or originalist who finds decisions like Loving and the Wisconsin right-to-travel decision reprehensible because “the courts are making law” is simply refusing to read the plain text of the Constitution. (Distinguish this from someone making the argument that there is no guaranteed right to marry or to travel; while I would disagree, I can see the point.) But to me, to deny the idea that the Ninth Amendment guarantees anything is to place one’s own opinions in place of the words of the Constitution, something conservatives are wont to accuse liberals of doing, but are blind to those among themselves who do it.
Say, where’s Debaser? 
Four Senators call on O’Connor to reconsider retirement. . I rather doubt that she would do this, but is remarkable to me that four Senators mistrust Bush enough to try to take away his chance to even nominate someone, and that they are not all Democrats.
Has anyone ever announced their retirement and then reneged on it?
I can’t imagine O’Connor, if she’s tired and ready to quit, being tempted by the Chief Justice position. If anything, it’s more work isn’t it?
Forget Rehnquist - he just said he ain’t leavin’ any way but feet first.
Turns the pressure back up on Bush, and at a time when Rove is weakened.
She’s very didicated to her husband, and he’s suffering from Alzheimer’s. She ain’t coming back.
I didn’t know it was Alzheimer’s. Horrible damn disease.
I agree. I don’t see any chance of her coming back.
All of those senators are women. There are at least two off-the-top-of-the-head reasons which may be motivating them other than distrust of Bush. 1. O’Connor is the first woman to serve on the court and they want a woman to remain on the court. 2. O’Connor, being a woman, would add a viewpoint on abortion issues which men may lack.
Enjoy,
Steven
Did I miss Ruth Bader Ginsberg’s gender reassignment surgery? Damn, I need to pay more attention to the news.
…must…not…make…snarky…remark.
Seriously, I rarely think of Justice Ginsberg. Justice O’Connor came first and truly made history by accepting President Reagan’s appointment to the Bench. It may also be her role as the swing vote that has placed her more prominently in the spotlight than Justice Ginsberg ( who is remaining kinda silent on all of this from what I am reading. Has she held forth about this process in the last few weeks? )
Cartooniverse
( note- that is not a photo-shop job. the Justice was addressing a Cornell University graduation ceremony. I believe she is an alumni ).
Nitpicky grammar/usage comment: Only if both she did have SRS and cloned her/himself. She is, I think, an alumna. 
More seriously, RBG is something of a classic liberal justice but, for obvious reasons on this court, has not produced any milestone majority opinions. Though a fairly good craftswoman of well-written opinions, she does tend to be overlooked as a result.
On the other foot, SDO’C is a moderate conservative who was probably the key person in post-Brennan Court trends – while she will often side with the Rehnquist/Scalia side of things, she will also attempt to establish a moderate alternative to doctrinaire conservatism or liberalism, working with Kennedy and Souter for the most part. More than any other living person except the retired Justice Blackmun, she is responsible for the preservation of abortion rights within some degree of permissible regulation. On a variety of other issues, she’s often set a standard that can obtain majority support.
Ahh. I sit corrected. My apologies.
Democratic Filibuster of Roberts Unlikely
Now I hardly expect Bricker to retract his OP, though I am waiting for him to point at any negative comments whatsoever by Democrats as some sort of vindication.
For the record, this whole thread has been yet another execise of the conservative “sore winner” mentality.
For heaven’s sake, why wouldn’t I retract my OP?
All signs right now point to my OP being wrong. I prefer to wait until Roberts is actually confirmed, sans filibuster, to admit that I completely missed the target, the barn the target was pinned to, and the compass direction in which the barn sits.
Obviously, if Roberts is filibustered, that will be a strong vindication of the thinking which inspired this OP, since many centrist and center-left sources are characterizing him as about as unobjectionable as it will get from this administration. So a filibuster of this particular candidate, if it happens, will be an unwelcome but thorough vindication of what I said.
But contrary to that gloomy prediction, it looks like I’ll be wrong here. And if I am, I’ll link back to this thread and trumpet it from the rooftops, just as I would have if I had been right.
Hope springs eternal, eh Bricker?
