My bets are that the Justice or Justices that Bush chooses to appoint will display the following characteristics:
The nominee will have a far right wing judicial philosophy. The merry old days when a Republican will appoint a moderate justice like O’Conner or Souter is over. “No more Souters” has even been a rallying cry amongst the right ever since Justice Souter voted to uphold Roe vs Wade. In summary, whenever someone who has been wronged by the government goes to the Court for help, it’s a very safe bet that this new Justice will side with the government except on exceptional occasions where the law can’t plausibly be bended that way. That’s “strict constructionism” for you. What, a prison guard punched you in the face and broke your jaw? Well, getting your jaw broken may be CRUEL, but is it really all that UNUSUAL? Case dismissed!
He/She will be relatively young as far as judges go. Early to late 40s, possibly early 50s. Bush will want his resounding 51% mandate and 3% landslide in 2004 to last for the next 40 years or so.
The nominee will be a woman, or a minority. This will make it harder for the Democrats to oppose him/her because the Republicans will try to make their opposition seem racially charged rather than the opposition being on ideological grounds.
If the OP’s illustration is truly an indication of what he understands, then I would suggest that the OP has absolutely no clue what strict constructionism is.
Bricker, we have been chasing this one around for some time. If you would care to tell the ladies and gentleman of the jury just what a “strict constructionist” is it might enlighten us all. So far all I can figure out is that you think that the substantive due process doctrine is a steaming pile of bull manure. It seems to me that “strict construction” is a code word for don’t change anything but with Roe v. Wade, and the “enemy combatant” cases and the Texas Sodomy case in play I’m not all that sure of it. A little help here would be appreciated.
Just maybe the nature and scope of strict construction of the Constitution will become the real debate here since all our President has seen fit to unambiguously tell us is that he would not re-appoint Justice Taney, the author of the lead opinion in Dred Scott.
I think the OP has it about right. In fact, GW told us what kind of judge he was looking for in the 2000 election…someone like Scalia or Thomas. I see no reason to disbelieve him on this. <Shudder.>
Okay, North Carolina has a few jurists who are acting on the basis of their Christian principles, which they believe to have been incorporated as the foundations of the law.
They’re conservative activists – like the liberals, they read into the law that which is not explicitly there, nor can be reasonably construed as the proper interpretation of words.
The Four Horsemen of early New Deal infamy are likewise men who read their social philosophy into the law, using SDP to do so. Lochner depended in large part on SDP.
To give Rick and Dewey credit, they’ve both said that part of their objection to SDP lies in how it has been abused in the past.
A strict constructionist is someone who pays attention to the explicit language of the Constitution, or to the circumstances in which it was enacted, as a guide to what it means, and does not construe it, in general, to reach beyond the explicit language. (I’ve cited several examples in past threads where reasonable inferences not explicit in the text are accepted by strict constructionists.)
Strict constructionism does not necessarily match a conservative political philosophy – it’s a jurisprudential philosophy. Two examples of past strict constructionist Supreme Court justices with liberal philosophies are Felix Frankfurter and John M. Harlan II.
Harlan, I would hold up as an example of what the best one can reasonably expect from Mr. Bush might be. I personally would be relatively comfortable with another Anthony Kennedy or Sandra Day O’Connor on the court.
But I believe Mr. Bush is looking for activist judges of a conservative bent who will consistently rule with what he wants the law to be, not for strict constructionists.
We should be so lucky! (Actually, the very best I would hope for…when I am really in dream mode…would be another Souter. But, I don’t think there’s much chance of that.)
The reality is that nobody on the USSC is a strict constructionist. Virtually no cases that appear before the high court are decided on issues like how old a person must be to be elected Senator or whether Congess has the power to build an aircraft carrier. Issues like these where the explicit language is clear are decided at lower levels.
Any issue that appears before the USSC requires the justices to interpret what the Constitution means as opposed to just reading what it says. If someone agrees with their interpretation they hail the justices for their wise decision in keeping with the clear intent of the Constitution. If someone disagrees than they curse the justices for their blatent partisan activism which ignores the text of the Constitution in order to promote a narrow ideology.
So Roe v. Wade aside, my understanding is that there are a lot of other rulings based on the right to privacy, which isn’t expressily stated in the Constitution. Do constructionalists hold that we have no right to privacy in the US.
At least some seem to believe something along those lines. I believe Bork for example, criticized not only Roe v. Wade but Griswald v. Conn. (?) which I basically struck down laws limiting a couples rights to use contraception on the basis of a right to privacy.
Kyllo v. US. I don’t agree with the interpretation; I think a search using thermal imaging equipment is reasonable without a warrant.
But I would never characterize the result as activism, partisan or otherwise. Kyllo simply interprets the text of the Fourth Amendment differently than I would. I don’t like the result, but I don’t call it partisan or activist.
Apart from the privacy that naturally ensues from the protections against unreasonable search and seizure? No, there should be no generalized “right to privacy” read into the Constitution.
I do believe that Bush’s criteria is a right-leaning strict constructionist and not his/her position on Roe vs. Wade. The OP’s defnition of a “strict constructionist” is completely off the mark. A strict constructionist attempts a literal interpretation of the constitution without any personal bias. Whether that’s possible is another argument.
Huerta, Irony is a finely crafted tool produced by some of the greatest craftsmen this language has ever known, intended to be used like a rapier to disarm and defeat an opponent. Do not use it like a bludgeon, to beat him about the brow! Little Nemo, your realistic cynicism is precisely how I see the situation.
Let me point out that the James Dale case (the young gay man thrown out of the Scouts) was decided contrary to strict construction, with the Court recognizing a “right” that I’m sure Bricker would agree is no more clearly specified than privacy – free association. Unless it’s your contention that whenever Boy Scouts gather together, they are doing so to petition their representatives for a redress of grievances, they have no explicit constitutional guarantee to freely associate, with our without atheists and homosexuals excluded from their midst. Nor do the rest of us. For some reason, however, even the strictest of constructionists has no problem with the right of free association, a penumbra of the First Amendment right to petition – and when you get beyond the bunch of people wearing jungle masks and chanting “SDP” the ultimate basis for the reasoning in Lawrence.
In any case, I’d be interested if some of the Republicans here, who seem to have some insight into Mr. Bush’s thinking, would suggest what he is in fact looking for with the idea of getting them through the Senate, in terms of people who “would be another Justice ___”
What Bush said in regards to the type of justices is essentially code language for someone who is against Roe v. Wade. That decision is pretty muchthe epitome of a bad decision for a “right-leaning strict constructionist”.
You know, a “strict constructionist” should actually construe the Constitution fairly broadly as regards rights and fairly strictly as regards powers, reading the precise language of the Ninth and Tenth Amendments as instructions in proper construction.
None of them do, though.
BTW, Hugo Black was a strict constructionist – a First Amendment absolutist. “When it says ‘Congress shall make no law…’ it means just that.”
Maybe, but I doubt that is the position of his supporters. One wonders how many of them understand that strict-constructionist means someone who doesn’t belive we have a guarenteed right to privacy, and that in voting for someone who will appoint such judges, they are essentially voting to limit their won guarenteed rights.
