# What kind of Justices will Bush appoint to the Supreme Court? **URL:** \ **Category:** Great Debates\ **Created:** [November 13, 2004, 4:55am UTC](https://boards.straightdope.com/t/what-kind-of-justices-will-bush-appoint-to-the-supreme-court/274532 "2004-11-13T04:55:20Z")\ **Posts on this page:** 17\ **Page:** 2
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [November 14, 2004, 6:16pm UTC](https://boards.straightdope.com/t/what-kind-of-justices-will-bush-appoint-to-the-supreme-court/274532/21 "2004-11-14T18:16:20Z")
> [@Polycarp](#): > > **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 \_\_\_” That wasn’t irony, it was crass sarcasm. My take: **GWB** wants someone confirmable. For all that the anti-Bush people on here are convinced that he’s a raving ideologue, I don’t see that in his persona (probably not the right place to open a big debate on his overall extremism or lack thereof; just noting that I don’t see him as being personally consumed with anti-_Roe_ zeal or losing any sleep over it). Putting aside the Patriot Act and Iraq (two big things to put aside, and again not to open side debates), where I do think he’s been unyielding in the face of the policies’ real unpopularity and possibly indefensibility, Bush and his handlers do seem to be concerned with trying to sell him as a “uniter.” I know, I know, you don’t agree, it’s all fake, etc. But whether you agree that all his outreach to women and Hispanics and blacks, or selling himself as some type of education President, is phony and baseless, the fact remains he thinks he can sell himself as a uniter not divider, etc. Put it this way: I don’t think he’ll nominate Bork, which would be the obvious thing to do if you wanted an in-your-face endorsement of strict constructionism or wanted to send a shot across the liberals’ bow. I think someone like Gonzales is his perfect candidate; he’s already shown he thinks he can steal marches on the Dems. by appointing minorities, not that it has won him many votes from minorities or much respect from the Dems. And Gonzales is, in Republican speak, about as squishy on the controversial social issues as, well, the entire Bush family and most GOP nominees in recent memory. Politically, what’s his reason not to? Unless he’s planning for Jeb to run, which I hope he isn’t, he’s got little downside to disappointing his conservative base once again (remember, this is the Administration that told the S.C. that “diversity” was a compelling state interest, but that you could have other types of diversity programs than the current affirmative action – which pretty much conceded the game before the coin flip). GWB isn’t a lawyer or a legal activist, and I doubt he spends much time, when he’s thinking about his legacy, thinking about future jurisprudence – I’m not criticizing his intellect, just saying that is not one of his obsesssions, and if it’s one of his base’s obsesssions, so what? Just my handicapping (and, by the way, that of several pessimists I’ve talked to on the right – they’re handicapping it something like this: Gonzales (no real danger to the libs here); “some woman” (W is for women, and his tokenism streak won’t allow him to replace SDO’C with a man, if she’s among the first retirees; and while I could imagine a female judge voting against _Roe_, it’s simply less likely); and maybe a third, who could be a Souter type (like father, like son), could be another “diversity” pick (hey, I could have my legacy be to pick the first Asian Justice!), but if the other two picks went “squishy,” wouldn’t be much threat to the liberals in any case. So if you’re worried that the Right is uniformly triumphalist and already planning the victory dance – don’t be. Precedent is on your side as far as Republican Presidents not really trying, or trying but failing, in appointing allegedly-right-wing Justices to undo the very effective Warren and post-Warren activism. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [November 14, 2004, 6:21pm UTC](https://boards.straightdope.com/t/what-kind-of-justices-will-bush-appoint-to-the-supreme-court/274532/22 "2004-11-14T18:21:46Z")
> [@Bricker](#): > > 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. While being satirical in this instance (parsing “cruel” and “unusual” in such a way), I believe I correctly captured the heartlessness inherent in the Scalia-Thomas school of judicial philosophy. There was a specific case I had in mind where a prisoner was beaten up by prison guards and sustained bruises and a cracked jaw. The prisoner sued, alleging an 8th amendment violation. It went to the Supreme Court, and the Court found that it was Cruel and Unusual. Thomas and Scalia dissented, calling what happened “minor injuries” and bemoaning that the Court was turning the 8th Amendment into a code of prison regulation. What next, suing over unappetizing food? ---
**Author:** ![ouryL](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ouryl/32/6067_2.png) [@ouryL](https://boards.straightdope.com/u/ouryL)\ **Post date:** [November 15, 2004, 6:04am UTC](https://boards.straightdope.com/t/what-kind-of-justices-will-bush-appoint-to-the-supreme-court/274532/23 "2004-11-15T06:04:48Z")
That guy who’s quitting? Asssoft? Arschloch?? ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [November 15, 2004, 7:28am UTC](https://boards.straightdope.com/t/what-kind-of-justices-will-bush-appoint-to-the-supreme-court/274532/24 "2004-11-15T07:28:50Z")
> [@Bricker](#): > > That’s not so. > > _Kyllo v. US_. I don’t agree with the interpretation; I think a search using thermal imaging equipment is reasonable without a warrant.? How’d you like cops parked outside your house with thermal imaging equipment? 😃 ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [November 15, 2004, 1:11pm UTC](https://boards.straightdope.com/t/what-kind-of-justices-will-bush-appoint-to-the-supreme-court/274532/25 "2004-11-15T13:11:29Z")
> [@Blalron](#): > > How’d you like cops parked outside your house with thermal imaging equipment? 😃 Hey, according to Rick you have only such rights as are explicitly spelled out in the text of the Constitution (minus the 9th Amendment, which Strict Constructionism interprets as having a figurative and near-tautological meaning), and what rights the beneficient and puissant government chooses to extend to you by statute. And Rick’s **mild** compared to Bushian Neocon Judicial Activism. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [November 15, 2004, 1:20pm UTC](https://boards.straightdope.com/t/what-kind-of-justices-will-bush-appoint-to-the-supreme-court/274532/26 "2004-11-15T13:20:53Z")
> [@Malodorous](#): > > 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. They don’t mind restricting their own rights, as long as they get to restrict yours. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 15, 2004, 2:12pm UTC](https://boards.straightdope.com/t/what-kind-of-justices-will-bush-appoint-to-the-supreme-court/274532/27 "2004-11-15T14:12:51Z")
> [@Blalron](#): > > How’d you like cops parked outside your house with thermal imaging equipment? 😃 I’d not be thrilled, but I wouldn’t believe it constituted a search within the meaning of the Fourth Amendment. Obviously, the Court disagreed… and I don’t call that “judicial activism” because it’s not. If the Court had said, “We find this search in _Kyllo_ illegal because new technology is, _presumptively_, a Fourth Amendment violation. The Due Process Clause requires that electronic countermeasures must be avaliable on the market for citizens to purchase and install if they so choose before the government may use such technology against them…” **THEN** I’d decry their ruling as activist. You see? It’s not the result. It’s how you _arrive_ at the result. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [November 15, 2004, 2:37pm UTC](https://boards.straightdope.com/t/what-kind-of-justices-will-bush-appoint-to-the-supreme-court/274532/28 "2004-11-15T14:37:51Z")
> [@Polycarp](#): > > And Rick’s **mild** compared to Bushian Neocon Judicial Activism. Neoconservativism is primarily a foreign policy philosophy, not a judicial philosophy. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [November 15, 2004, 2:56pm UTC](https://boards.straightdope.com/t/what-kind-of-justices-will-bush-appoint-to-the-supreme-court/274532/29 "2004-11-15T14:56:17Z")
> [@Huerta88](#): > > Put it this way: I don’t think he’ll nominate Bork, which would be the obvious thing to do if you wanted an in-your-face endorsement of strict constructionism or wanted to send a shot across the liberals’ bow. Actually, it would send a shot into his own base, now that it’s gotten out that Bork rejects the notion that the Second Amendment guarantees an individual right to keep and bear arms. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 15, 2004, 4:15pm UTC](https://boards.straightdope.com/t/what-kind-of-justices-will-bush-appoint-to-the-supreme-court/274532/30 "2004-11-15T16:15:30Z")
> [@Polycarp](#): > > 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. Actually, this is not so. The First Amendment does explicitly guarantee “…the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” If it said, “…or the right of the people peaceably to assemble for the sole purpose of petitioning the Government for a redress of grievances…” then you’d have a point. But it’s not a huge inferential leap to read “…the right of the people peaceably to assemble, and to petition the Government for a redress of grievances…” and conclude that BOTH peaceable assembly AND petitioning the Government are protected. The forms and protections enjoyed by this right of assembly are legitimately interpreted by the courts. Now, there have been cases that push the freedom of association doctrine beyond strict constructionist boundries: _NAACP v. Alabama_ was a “penumbra” ruling that guaranteed privacy of membership lists because of the likelihood of a substantial restraint upon the right to freedom of association. I don’t agree with that ruling. I have no problem with _NAACP v. Button_, in contrast, because the inference it draws – that the “assembly” does not have to be a political one to be protected – is simply interpreting the plain words of the First Amendment, not drawing new words. _Griswold_ found a right to privacy that was inferred from much vaguer Constitutional underpinnings and language. And _Roe_ took that vague inference from _Griswold_ and made a FURTHER vague inference. - Rick ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [November 15, 2004, 5:28pm UTC](https://boards.straightdope.com/t/what-kind-of-justices-will-bush-appoint-to-the-supreme-court/274532/31 "2004-11-15T17:28:08Z")
> [@Bricker](#): > > Actually, this is not so. The First Amendment does explicitly guarantee “…the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” > > If it said, “…or the right of the people peaceably to assemble for the sole purpose of petitioning the Government for a redress of grievances…” then you’d have a point. But it’s not a huge inferential leap to read “…the right of the people peaceably to assemble, and to petition the Government for a redress of grievances…” and conclude that BOTH peaceable assembly AND petitioning the Government are protected. The forms and protections enjoyed by this right of assembly are legitimately interpreted by the courts. > > Now, there have been cases that push the freedom of association doctrine beyond strict constructionist boundries: _NAACP v. Alabama_ was a “penumbra” ruling that guaranteed privacy of membership lists because of the likelihood of a substantial restraint upon the right to freedom of association. I don’t agree with that ruling. I have no problem with _NAACP v. Button_, in contrast, because the inference it draws – that the “assembly” does not have to be a political one to be protected – is simply interpreting the plain words of the First Amendment, not drawing new words. > > _Griswold_ found a right to privacy that was inferred from much vaguer Constitutional underpinnings and language. And _Roe_ took that vague inference from _Griswold_ and made a FURTHER vague inference. > > - Rick I would add only this to **Bricker** ’s sound analysis: Look (as constructionists are perfectly fine in doing) at the problems the Framers thought they were solving. Were they concerned that a crowd of colonists protesting the actions of Brit soldiers would be fired upon or otherwise punished for their assembly? Sure. Would they have been okay, though, with the Brits making it illegal for the Sons of Liberty or other colonial groups with “unacceptable” agendas or beliefs to organize or associate at a time when they weren’t specifically “assembling” in public protest or “petitioning?” No, I doubt they’d have been okay with that at all, and can readily infer that the right to “associate-even-while-not-petitioning” was also among those they sought to protect; the whole reason these organizations, who fomented the Revolution that led to the Constitution, had had to meet in secret was precisely because they were considered seditious and illegal. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [November 15, 2004, 5:32pm UTC](https://boards.straightdope.com/t/what-kind-of-justices-will-bush-appoint-to-the-supreme-court/274532/32 "2004-11-15T17:32:42Z")
> [@Bricker](#): > > Now, there have been cases that push the freedom of association doctrine beyond strict constructionist boundries: _NAACP v. Alabama_ was a “penumbra” ruling that guaranteed privacy of membership lists because of the likelihood of a substantial restraint upon the right to freedom of association. I don’t agree with that ruling. How so? The law that was thrown out was a fairly clear-cut example of the government claiming the power to withhold permission (i.e. you can’t assemble unless you give us your membership list) for an activity that is an explicitly recited Constitutional right. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 15, 2004, 5:52pm UTC](https://boards.straightdope.com/t/what-kind-of-justices-will-bush-appoint-to-the-supreme-court/274532/33 "2004-11-15T17:52:21Z")
> [@Steve MB](#): > > How so? The law that was thrown out was a fairly clear-cut example of the government claiming the power to withhold permission (i.e. you can’t assemble unless you give us your membership list) for an activity that is an explicitly recited Constitutional right. No, the requirement for the NAACP to produce its membership lists came before the Court as a lower court’s order, for which the NAACP had been found in contempt. To be more clear: I agree that the NAACP had every constitutional right to assemble and conduct business in Alabama, and I agree that the _ex parte_ order preventing them from so doing was an abuse of discretion. Where do I disagree with the ruling? The state of Alabama had every right to require that, as a condition of doing business, the disclosure of membership lists, unless the association can show on the merits that this disclosure has an actual, substantial effect that prevents them from exercising their right to assemble. If you’ll examine the procedural posture of the case, you’ll see that there was never any such finding of fact. The penalty imposed upon the NAACP - ouster from Alabama - was wholly unsupported under Alabama law. But the court’s order to supply its lists was valid, and there is – all in my view, of course – no federal constitutional right to keep your organization’s membership lists secret. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [November 15, 2004, 7:05pm UTC](https://boards.straightdope.com/t/what-kind-of-justices-will-bush-appoint-to-the-supreme-court/274532/34 "2004-11-15T19:05:48Z")
I promise that **Bricker** and I are not the same person, hard as it is to believe sometimes. ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [November 15, 2004, 7:58pm UTC](https://boards.straightdope.com/t/what-kind-of-justices-will-bush-appoint-to-the-supreme-court/274532/35 "2004-11-15T19:58:45Z")
> [@Dewey Cheatem Undhow](#): > > I promise that **Bricker** and I are not the same person, hard as it is to believe sometimes. See, I had the same worry, but I decided to distinguish myself by the odd intemperate attack and hastily-posted poorly-formatted replies. You’ve gotta carve out a niche in this world. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [November 16, 2004, 7:24pm UTC](https://boards.straightdope.com/t/what-kind-of-justices-will-bush-appoint-to-the-supreme-court/274532/36 "2004-11-16T19:24:43Z")
> [@Bricker](#): > > The penalty imposed upon the NAACP - ouster from Alabama - was wholly unsupported under Alabama law. That leads directly back to the basic problem – to impose **any** penalty for non-compliance with the demand to hand over the membership list is to convert an explicitly guaranteed right (freedom of assembly) into a privilege (the penalty for assembling without state approval, which is contingent upon handing over your membership list, is…). The only possible way around it would be to punish someone who was not actually a member of the organization (and who would therefore not have any right of assembly to be made into a privilege contingent upon obedience to the requrement). ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [November 16, 2004, 11:23pm UTC](https://boards.straightdope.com/t/what-kind-of-justices-will-bush-appoint-to-the-supreme-court/274532/37 "2004-11-16T23:23:12Z")
> [@Steve MB](#): > > Actually, it would send a shot into his own base, now that it’s gotten out that Bork rejects the notion that the Second Amendment guarantees an individual right to keep and bear arms. You’d be hard pressed to find many judges that actually follow the NRAs vision of the second amendment. If push came to shove and the Supreme Court actually accepted a new second amendment case, I bet they’d rule 9-0 that there’s no federally enforceable individual right to own a firearm. [Previous page](https://boards.straightdope.com/t/what-kind-of-justices-will-bush-appoint-to-the-supreme-court/274532.md?page=1)