What kind of Justices will Bush appoint to the Supreme Court?

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.

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?

That guy who’s quitting?

Asssoft? Arschloch??

How’d you like cops parked outside your house with thermal imaging equipment? :smiley:

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.

They don’t mind restricting their own rights, as long as they get to restrict yours.

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.

Neoconservativism is primarily a foreign policy philosophy, not a judicial philosophy.

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.

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.

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.

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.

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).

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.