# SCOTUS - Seat Open **URL:** \ **Category:** The BBQ Pit\ **Created:** [July 1, 2005, 2:34pm UTC](https://boards.straightdope.com/t/scotus-seat-open/310692 "2005-07-01T14:34:41Z")\ **Posts on this page:** 14\ **Page:** 5
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [July 1, 2005, 8:28pm UTC](https://boards.straightdope.com/t/scotus-seat-open/310692/81 "2005-07-01T20:28:44Z")
> [@Metacom](#): > > The supreme law of the land is the constitution, not international treaties. > [@Constitution of the United States of America](#): > > This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; **and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land** ; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding Just a quaint little provision of the Constitution… ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [July 1, 2005, 9:13pm UTC](https://boards.straightdope.com/t/scotus-seat-open/310692/82 "2005-07-01T21:13:24Z")
> [@Otto](#): > > Just a quaint little provision of the Constitution… 😉 Thanks for the assist. > [@Metacom](#): > > Legally OK or morally OK? There’s a difference; did he OK torture as being acceptable to him personally or as being legal according to the laws he’s payed to understand? Good point. He was paid to follow the law, to > [@](#): > > exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation. [http://www.abanet.org/cpr/mrpc/rule\_2\_1.html](http://www.abanet.org/cpr/mrpc/rule_2_1.html). If he was merely interpreting the law, most agree that he did a bad job, including, apparently, the same master who he was serving by making his bad interpretation. If he was writing what he was told to, then he violated basic ethical principles that apply to lawyers and judges, which showed bad judgement. If he can’t get it right as a government lawyer, why promote him? > [@](#): > > He didn’t create any laws, he merely determined that some didn’t apply to the situation he was asked to examine. Wait, so it’s ok to not apply a law when it should be applied (because that is somehow not judicial legislation) but to apply it when it should not apply is not ok (because it is judicial legislation)? > [@](#): > > Because he wouldn’t have masters as a Justice. He was employed by the Bush administration and was acting in a professional capacity as their counsel. If he was a justice, he wouldn’t be in that position to anyone. Again, he screwed up as government attorney, why not promote him because then he won’t be supervised at all. :rolleyes: > [@](#): > > It wasn’t his job to seek a modification of the treaty. You are right. His job was to use his independent legal judgment to interpret the laws of the United States (which includes treaties). Depending on which version we believe he either did so quite poorly, in bad faith, or not at all. Let’s skip Justice and just make him King. > [@](#): > > Without knowing what he was speaking of, I don’t know. I do think the Geneva convention is a good thing, myself, so I’d be interested in knowing more about his position on the topic. Here is a handy guide: [http://www.nytimes.com/ref/international/24MEMO-GUIDE.html](http://www.nytimes.com/ref/international/24MEMO-GUIDE.html) and another [http://slate.msn.com/id/2119122/](http://slate.msn.com/id/2119122/) ---
**Author:** ![Metacom](https://avatars.discourse-cdn.com/v4/letter/m/ecae2f/32.png) [@Metacom](https://boards.straightdope.com/u/Metacom)\ **Post date:** [July 1, 2005, 9:15pm UTC](https://boards.straightdope.com/t/scotus-seat-open/310692/83 "2005-07-01T21:15:49Z")
> [@Otto](#): > > Just a quaint little provision of the Constitution… OK, you got me. But I would be curious to know if the United States could legally sign a treaty that violated the constitution; in other words, is the constitution the “supreme of the supremes” or are treaties considered equal to the constitution? ---
**Author:** ![Metacom](https://avatars.discourse-cdn.com/v4/letter/m/ecae2f/32.png) [@Metacom](https://boards.straightdope.com/u/Metacom)\ **Post date:** [July 1, 2005, 9:34pm UTC](https://boards.straightdope.com/t/scotus-seat-open/310692/84 "2005-07-01T21:34:22Z")
> [@Gfactor](#): > > [Rule 2.1: Advisor](http://www.abanet.org/cpr/mrpc/rule_2_1.html) That says he _may_ include moral factors in his advice. It doesn’t say he’s obligated to. And in this case, I don’t know if doing so would make sense. Presumably Bush is smart enough to understand the moral ramifications of torture. And, according to the NY Times cite you gave, he did outline the negative, non-legal ramifications of not treating the detainees in accordance with the Geneva Convention rights afforded to POW’s. > [@](#): > > If he was merely interpreting the law, most agree that he did a bad job, including, apparently, the same master who he was serving by making his bad interpretation. Cite? I’d seriously be interested in knowing if most lawyers, judged, and other people qualified to make the assesment think he did a bad job. Your own cite (the NY Times guide to the memos) says that other government lawyers thought the same as he did. > [@](#): > > If he can’t get it right as a government lawyer, why promote him? _If_ this was indeed a screw-up, and I don’t know enough about the legal system to know whether it is or not, I still don’t think it’s necessarily a good idea to torpedo his career over a single mistake. > [@](#): > > Wait, so it’s ok to not apply a law when it should be applied (because that is somehow not judicial legislation) but to apply it when it should not apply is not ok (because it is judicial legislation)? He’s not a judge, so I don’t know why you’re talking about judicial legislation. He was asked if the Geneva convention prohibited this practice. In his opinion, and that of other government lawyers, it didn’t apply. He didn’t make any laws, even by a broad stretch of the imagination. > [@](#): > > Again, he screwed up as government attorney, why not promote him because then he won’t be supervised at all. :rolleyes: Again, because (if it’s a mistake) it’s a single mistake in a long career. > [@](#): > > Depending on which version we believe he either did so quite poorly, in bad faith, or not at all. Let’s skip Justice and just make him King. Again, I’d like a cite showing that there’s a consenus in the legal community that he gave incorrect legal advice or acted unethically. If there was such a consensus, I’d certainly think he would be an unacceptable candidate. I think the ruckus over Mr. Gonzales’ role in the torture scandal is ridiculous, and I say that as someone who votes a straight Democratic ticket. It seems to me like the guy was just doing his job, and that the villians are the policy makers in the Bush administration–but, again, if you have any evidence that there’s a consesus in the legal community that he screwed up, or that what he did was unethical (according to lawyer ethics, not human ethics 😛 ), I’d certainly change my mind. ---
**Author:** ![whiterabbit](https://avatars.discourse-cdn.com/v4/letter/w/cab0a1/32.png) [@whiterabbit](https://boards.straightdope.com/u/whiterabbit)\ **Post date:** [July 1, 2005, 9:51pm UTC](https://boards.straightdope.com/t/scotus-seat-open/310692/85 "2005-07-01T21:51:32Z")
> [@askeptic](#): > > Go ahead. You got a rule against drinking two nights in a row? Not really, come to think of it. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [July 1, 2005, 10:11pm UTC](https://boards.straightdope.com/t/scotus-seat-open/310692/86 "2005-07-01T22:11:59Z")
> [@Metacom](#): > > That says he _may_ include moral factors in his advice. It doesn’t say he’s obligated to. And in this case, I don’t know if doing so would make sense. Presumably Bush is smart enough to understand the moral ramifications of torture. But not smart enough to understand the difference between disemble and disassemble. :rolleyes: I wouldn’t let the guy wax my car. > [@](#): > > And, according to the NY Times cite you gave, he did outline the negative, non-legal ramifications of not treating the detainees in accordance with the Geneva Convention rights afforded to POW’s. A I read it, it says that the non-legal ramifications were passed on to him. > [@](#): > > A memorandum from William H. Taft IV, the State Department’s legal adviser, to Mr. Gonzales warned that the broad rejection of the Geneva Conventions posed several problems. “A decision that the conventions do not apply to the conflict in Afghanistan in which our armed forces are engaged deprives our troops there of any claim to the protection of the conventions in the event they are captured.” > [@](#): > > Cite? I’d seriously be interested in knowing if most lawyers, judged, and other people qualified to make the assesment think he did a bad job. My admittedly-skewed, informal poll says yes. Moreover, the government agrees: > [@](#): > > Torture is abhorrent both to American law and values and to international norms. Thisuniversal repudiation of torture is reflected in our criminal law, for example, 18 U.S.C. §§ 23402340A;international agreements, exemplified by the United Nations Convention Against Torture (the “CAT”)’; customary international law2; centuries of Anglo-American law3; and the longstanding policy of the United States, repeatedly and recently reaffirmed by the President. > **[FindLaw Legal Blogs - FindLaw](https://www.findlaw.com/legalblogs/)** > > Get the latest legal news and information, and learn more about laws that impact your everyday life by visiting FindLaw Legal Blogs. Here is another good source of information on the torture debate. [http://news.lp.findlaw.com/hdocs/docs/torture/powtorturememos.html](http://news.lp.findlaw.com/hdocs/docs/torture/powtorturememos.html), btw. If torture is abhorrent to American law and values, why didn’t Mr. Gonzales point that out in his memo? It seems like he thought he found a technicality that excepted our practices from an otherwise moral and legal proscription. And it also seems like he was quite wrong in so doing. > [@](#): > > _If_ this was indeed a screw-up, and I don’t know enough about the legal system to know whether it is or not, I still don’t think it’s necessarily a good idea to torpedo his career over a single mistake. Sure and he just got promotion. Let’s not go crazy. > [@](#): > > He’s not a judge, so I don’t know why you’re talking about judicial legislation. He was asked if the Geneva convention prohibited this practice. In his opinion, and that of other government lawyers, it didn’t apply. He didn’t make any laws, even by a broad stretch of the imagination. He’s in the executive branch–not the legislature. Executives can’t legislate either. It’s in the constitution. And he made up an exception to a rule, which most would condemn if he was a judge, because his job is to apply the letter of the law. > [@](#): > > Again, I’d like a cite showing that there’s a consenus in the legal community that he gave incorrect legal advice or acted unethically. If there was such a consensus, I’d certainly think he would be an unacceptable candidate. I welcome the opinions of other Dopers-at-law on the topic. If, as some argue, he was merely parroting the opinions of his employer, then he failed to exercise independent professional judgment, which is unethical. ---
**Author:** ![Baldwin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/baldwin/32/7264_2.png) [@Baldwin](https://boards.straightdope.com/u/Baldwin)\ **Post date:** [July 1, 2005, 10:29pm UTC](https://boards.straightdope.com/t/scotus-seat-open/310692/87 "2005-07-01T22:29:52Z")
> [@](#): > > Quote: > Originally Posted by Baldwin > Muad’Dib – I don’t care what your politics are (thanks for the imaginary lightning bolts, though). But please, for the love of Christ, proofread your posts and work on your spelling. Thanks. > > Sorry, it came out in a two second flurry of typing. Your brain is faster than your fingers! I apologize for my comment; it’s just that the Straight Dope has a higher average level of literacy than most places on the Internet, and I’m always afraid we’ll lose that. Doesn’t excuse me being snippy. (Is it legal to apologize in the Pit?) I’m feeling a little more hopeful than I did when Justice O’Connor’s announcement came this morning. Bush is a lame duck, and doesn’t pull as much weight in the Senate as he used to. ---
**Author:** ![Scott\_Plaid](https://avatars.discourse-cdn.com/v4/letter/s/258eb7/32.png) [@Scott\_Plaid](https://boards.straightdope.com/u/Scott_Plaid)\ **Post date:** [July 1, 2005, 10:32pm UTC](https://boards.straightdope.com/t/scotus-seat-open/310692/88 "2005-07-01T22:32:01Z")
> [@Baldwin](#): > > (Is it legal to apologize in the Pit?) **Ban’ed!** 😃 ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [July 2, 2005, 12:46am UTC](https://boards.straightdope.com/t/scotus-seat-open/310692/89 "2005-07-02T00:46:44Z")
> [@Metacom](#): > > Do lawyers who defend child molesters support child molestation? No. Gonzales didn’t say, “I support child molestation,” but he did say, “it’s legally ok to molest children as long as you only molest them a little. Because I can interpret the rule to say that it isn’t technically child molestation. According to my interpretation, only severe pain or permanent damage that was “specifically intended” constitutes child molestation, so go ahead and inflict cruel, inhuman or degrading treatment, because that doesn’t count,” following your analogy. That’s what he said about torture–that it’s ok to be cruel, inhuman, or degrading as long as you don’t specifically intend severe pain or permanent damage. That’s ugly. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [July 2, 2005, 1:10am UTC](https://boards.straightdope.com/t/scotus-seat-open/310692/90 "2005-07-02T01:10:38Z")
> [@Metacom](#): > > I wasn’t aware that Gonzolez had taken the position that torture was OK and the laws against it were out of date and “quaint.” It was always my understanding that he was merely providing a justification at his employers behest. Can you provide a cite to proving that he thinks torture is OK and that the laws against it are out of date and “quaint”? Here is a start: > [@](#): > > In 2004, when this memo was leaked to the press, Gonzales said about the memo in Senate confirmation hearings that “…I don’t recall today whether or not I was in agreement with all of the analysis, but I don’t have a disagreement with the conclusions then reached by the department.” This indicates that, despite the Bush administration’s withdrawal from the memo, Gonzales still believes that the Justice Department was correct in its reasoning about torture. > **[Alberto Gonzales](https://en.wikipedia.org/wiki/Alberto_Gonzales)** > > Alberto R. Gonzales (born August 4, 1955) is an American lawyer who served as the 80th United States Attorney General, appointed in February 2005 by President George W. Bush, becoming the highest-ranking Hispanic American in executive government to date. He was the first Hispanic to serve as White House Counsel. Earlier he had been Bush's General Counsel during the latter's governorship of Texas. Gonzales had also served as Secretary of State of Texas and then as a Texas Supreme Court Justice.... The administration, OTOH, has done its best to distance itself from the memo: > [@](#): > > In a Jan. 25, 2002, memo to Bush, Gonzales said the new war on terror “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.” Some State Department lawyers charge that Gonzales misrepresented so many legal considerations and facts (including hard conclusions by State’s Southeast Asia bureau about the nature of the Taliban) that one lawyer considers the memo to be “an ethical breach.” In response, a senior White House official says Gonzales’s memo was only a “draft” and just one part of an extensive decision-making process in which all views were aired. [http://www.msnbc.msn.com/id/6733213/site/newsweek/](http://www.msnbc.msn.com/id/6733213/site/newsweek/) and this > [@](#): > > Last June, Gonzales indicated he no longer held some of the extreme views of the president’s “unlimited” powers first laid out in this memo. Amid the furor over the Abu Ghraib Prison photos that depicted Iraqis being abused and humiliated by U.S. soldiers, Gonzales insisted to reporters that the “torture” memo of Aug. 1 and other documents then making headlines were little more than “irrelevant” legal theorizing. It is not surprising why Gonzales was distancing himself: the Justice Department’s Office of Professional Responsibility recently launched an investigation into the origins of the Aug. 1 memo. The probe will look into whether the lawyers were irresponsible in pushing beyond the normal boundaries of advocacy. In a tense meeting last June, Jack Goldsmith, then head of the Justice Department’s Office of Legal Counsel, told Gonzales he was withdrawing the Aug. 1 memo. Goldsmith then resigned—at least partly due to his discomfort about the memo. It was only then that Gonzales decided to distance himself from it. (Goldsmith declined to comment.) > > But there is no evidence that Gonzales ever rejected such reasoning before the Abu Ghraib scandal came to light. On the contrary, sources say, he and his staff relied heavily on John Yoo and his legal theories. \*Id. \* ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [July 2, 2005, 1:19am UTC](https://boards.straightdope.com/t/scotus-seat-open/310692/91 "2005-07-02T01:19:23Z")
> [@Metacom](#): > > Again, I’d like a cite showing that there’s a consenus in the legal community that he gave incorrect legal advice or acted unethically. If there was such a consensus, I’d certainly think he would be an unacceptable candidate. > [@](#): > > By several accounts, Gonzales and his team were constantly looking to push legal limits, to widen and maximize Bush’s powers. [http://www.msnbc.msn.com/id/6733213/site/newsweek/](http://www.msnbc.msn.com/id/6733213/site/newsweek/) I thought his job was to interpret statutes. But he had an agenda? And an activist one? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [July 2, 2005, 1:34am UTC](https://boards.straightdope.com/t/scotus-seat-open/310692/92 "2005-07-02T01:34:51Z")
> [@Metacom](#): > > OK, you got me. > > But I would be curious to know if the United States could legally sign a treaty that violated the constitution; in other words, is the constitution the “supreme of the supremes” or are treaties considered equal to the constitution? Treaties are on the same footing with federal statutes. They preempt state laws, but are subject to the Consitution. [http://www.lexrex.com/enlightened/AmericanIdeal/aspects/limited\_gov\_treaty.htm](http://www.lexrex.com/enlightened/AmericanIdeal/aspects/limited_gov_treaty.htm) [http://www.harvardlawreview.org/issues/118/Rosenkranz.pdf](http://www.harvardlawreview.org/issues/118/Rosenkranz.pdf) (pdf) [http://en.wikipedia.org/wiki/Supremacy\_Clause](http://en.wikipedia.org/wiki/Supremacy_Clause) ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 2, 2005, 1:45am UTC](https://boards.straightdope.com/t/scotus-seat-open/310692/93 "2005-07-02T01:45:26Z")
> [@Metacom](#): > > It’s there. Hear’s the relevant quote: > Gonzales said “the war against terrorism is a new kind of war” and “this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders **quaint** some of its provisions.” > > The Geneva conventions say alot more about the questioning of enemy prisoners then simply “don’t torture them,” IIRC, so it’s hard to know exactly what he was referring to. It’s about interrogations. According to the [Geneva Convention](http://www.unhchr.ch/html/menu3/b/91.htm), you can’t interrogate POWs to get information from them in the way a police detective might interrogate a suspect (my bolding): > [@](#): > > No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind. ---
**Author:** ![cckerberos](https://avatars.discourse-cdn.com/v4/letter/c/f0a364/32.png) [@cckerberos](https://boards.straightdope.com/u/cckerberos)\ **Post date:** [July 2, 2005, 2:05am UTC](https://boards.straightdope.com/t/scotus-seat-open/310692/94 "2005-07-02T02:05:06Z")
> [@Chance the Gardener](#): > > It’s a little early, but who’s the replacement going to be? There are so many to choose from, it’s hard to say. Some have mused on Alberto Gonzalez, but I’m betting Bush keeps him by his side. Slate had a pretty good article on possible nominees: [http://slate.msn.com/id/2121270/](http://slate.msn.com/id/2121270/) [Previous page](https://boards.straightdope.com/t/scotus-seat-open/310692.md?page=4)