I thought it was the test that was impossible to fail. The “rational basis” doesn’t even have to pass the laugh test, so long as it’s not insane. Right? Or so you have argued in the past.
:shrug: Not a big deal, just that your comment struck me as odd. I suggest that we not continue on this hijack, as it is largely irrelevant. I would second BrainGlutton’s question and ask for more details about this Garza’s jurisprudential (is that a word?) history.
Biography? Opinions? What are you looking for?
He’s in his late fifties, a graduate of University of Texas and a former Marine officer. He’s been in private practice, served as a Texas state judge, and a federal judge for Western District of Texas before being appointed to the Fifth Circuit.
He’s expressed reservations over the death penalty in Texas, although he’s affirmed most of the cases he’s had to review.
He wrote the circuit opinion in Atwater v. Lago Vista, dismissing the civil claims of a woman who was arrested and booked for driving without a seatbelt - a view upheld by the Supremes - even though the conduct of the police was abysmal, the Constitution does not protect us from rude, foolish, boorish police behavior.
On abortion, he has upheld Supreme Court precedent, but often taken the opportunity to write separate concurrences noting how unwise he feels the Supreme Court’s approach to abortion is.
Fair enough. But I don’t see much indication from Bush II that he really gives a hoot about such things, except where it can help strengthen his party’s election chances. So I’d say an Hispanic would have a better chance, although I suppose a female Hispanic might be the trump card. If she were the only woman then there might be some credence to that line of reasoning.
Not just abortion, but all of substantive due process law. On the negative side, he appears to be an originalist who is not afraid to further the faulty logic of Dred Scott being a substantive due process case. On the positive side, he followed the Supreme Court’s precedent in Belotti (regarding parental notification for abortions), even though he vehemently disagrees with it. I still don’t know enough about his judicial opinions, but at least he’s not an Owen or a Brown, so that’s something too.
At what point would that violate stare decisis? Like it or not, and of course many don’t, after over 30 years it’s become settled law. The legislative branch has had many opportunities to act to overturn it in those intervening decades, but has not. Does that imply anything to you?
Your premise is not granted.
And that is precisely the mechanism which the anti-choice movement wishes the courts to use, their efforts in the legislative side having failed.
Do you see the difference?
Don’t think that this is a brand new phenomenon resulting from thd 1960’s and political correctness. The idea goes back of long way. This site has a brief mention of the reserved seats for various religions in the past.
“When a vacancy occurred on the Supreme Court in 1932, [bold added] other justices, legal scholars, and Senators urged President Herbert Hoover to choose Benjamin Cardozo of New York. But there was a problem. Cardozo was Jewish, and the so-called ‘Jewish seat’ on the court was already filled. Over the years a tradition had developed that one seat on the Supreme Court went to a Roman Catholic and one to a Jewish justice. When justices holding those seats died or retired, Presidents usually named someone of the same religion.”
Politics in the US didn’t always follow the model of that Shining City on the Hill even well before the day of the ‘limousine liberals.’
That’s a good question, about stare decisis, and I’ve wondered about it myself. As for the legislative branch not “acting”, it only implies that there isn’t a super-majority in favor of overturning Roe. If you want to impose an amendment sized super-majority on ALL legislation, I’m with you on that. Just be sure you know what that’ll do to tax increases…
By you. So what?
I’ve freely admited that many (probably most) conservatives would like to see an activist court, albeit in the conservative direction. So what? Both sides are equally wrong. However, if YOU want a liberal activist court, you really have no basis to disaprove, on principle, of a conservative activist court.
If the court were to find thru its esteemed viewing of a living, breathing constitution that a fetus had a right to life, on what principle would you argue agaisnt that ruling?
And obviously dismissed it, or you wouldn’t take such an absolutist view that it’s still “judicial activism”.
And hasn’t been, in over 30 years, and no serious attempt to create one, either. I repeat, what does that imply?
Please. Not just me. Your premise is that Roe is not just not settled law, but judicial activism, and improper at that. Whose view would the facts suggest is in a minority?
There you go again, stating your own assumptions as fact. I do not claim that Roe is judicial activism, nor that it’s necessarily a bad thing, nor that JA is really anything more than the eye of the beholder. I’ve made that clear enough in a number of posts which you have apparently not digested. You have no basis for stating otherwise, as you have just done.
That would depend on their basis for making that ruling, of course. What would that be?
Personally, I don’t think Bush gives a hoot about abortion. He found that professing opposition to abortion is the way to get some easy votes with no real action. Now, for the first time, he finds that the pro-life crowd is demanding payment for their loyal support. Which puts him in a quandry.
He could nominate someone on record as behing vehemently opposed to Roe. Yet he knows that if it led to overturning Roe, it would awaken the long-slumbering pro-choice voter. He could nominate someone with no position of record on Roe and risk losing support from the right. Given the choice, he should nominate someone with no position on abortion. He might draw some heat from the right, but realistically where would disaffected righties go? To John Kerry or Hilary? My bet is that he nominates a relative moderate now, then saves the tighty righty pick for the Rehnquist seat. Gonzalez is the perfect choice. He would draw fire for advocating torture, but in the end the left will see him as much more palatable than others. Sure, the righties will be sore, but in the end a centrist is a much better political move. I’m betting on Gonzalez.
Concur, for the moment. Of course, he still has that problem to deal with, about how he isn’t nice enough to terrorists, and loves America too much.
No, I haven’t. Stare decisis is not a blanket excuse to never overturn a previous ruling. Otherwise, we’d still have separate but equal schools. I think Roe was an especially bad decision (as do many, many pro-choice legal thinkers, btw), but if it were overturned, I wouldn’t want the court to just swat it away in an instance. A goodly amount of time would be needed for it to take effect so that the states could adjust their laws accordingly. I don’t know exactly what that time would be-- the courts can judge that better than I can.
I don’t know. Why don’t you tell me instead of speaking in riddles.
So, being in the minority makes a peson wrong?
So, If Roe isn’t judicial activism, then getting rid of Roe would not be judicial activism either, right?
It could be any number of reasons. It might even be a decision that allowed some early term abortions, but nothing late term. Suppose we used the same critieria to determine “life” that we used to determine death-- brain activity. Suppose the court decided that a fetus, after it exhibited brain function, could not be aborted.
All that does is shift the problem. There is nervous activity, like a heartbeat, before there is what could be reasonably called brain activity. And I don’t think that mere electrical brain activity in automatic functions, like a heartbeat, necessarily equals a conscious human being. If there was hysteria of the extent of Teri Schiavo’s level of consciousness think about that occuring as to the the instant when a fetus becomes conscious.
Who said it is? I was commenting on your flat assertion that Roe is nothing more than judicial activism and should be dispensed with, no other considerations applying. It’s good to see you backing away from that, I must admit.
You could try answering the question instead of raising the shields. The lack of legislative action is solid evidence that Roe is, in fact, settled law, and for the most part settled politically as well. See the above comment about your unwaranted absolutism to the contrary.
That was in response to your suggestion that *only * I hold the view I stated, implying that you need not consider it. Not only am I not the only person who thinks so, I’m not even in a minority.
Are you now just arguing for the fun of it? If it’s settled law, then yes, getting rid of it judicially would meet even an ideologue’s definition of JA. Is that not obvious?
“Why don’t you tell me instead of speaking in riddles?” If you want an answer, pose an answerable question.
I persist in thinking you’re better than this, but it’s not always easy.
A laudable attempt to bring rationality to bear on the issue, but doomed for that very reason. The anti-choice crowd insist on conception as the criteria for metaphysical reasons, their mind is made up, don’t try to confuse them with facts.
Well, not really, **e ** - I don’t think *that * question is susceptible to rationality at all. IMHO there is no objective, non-faith-based way to determine when life begins, and therefore when a legal right to it begins. The legal-only issue, one we can and must agree to live by whatever our moral feelings, can be settled only politically. That forces an understanding that one’s own moral judgments are not necessarily superior or inferior to others’ despite their differences, and that we all have to live together anyway, and that’s just how a democratic society operates. That much we can apply reason to, and of course must.
Politically it’s long been generally settled in most Western countries that life begins at birth, not before or after. Overturning that definition would most certainly be judicial activism even in the definition used by those who believe it’s real.
I’m not backing away from anything. I never said “no other considerations apply”-- you invented that and claimed it was my view.
Depends on how you look at it. At the federal level, there would be no point in trying to pass a constitutional amendment. It doesn’t have the votes. At the state level, if Roe didn’t exist, there would probably be some states that would outlaw abortion (or that would try to).
There have been many attempts at the federal level to legislate restrictions on abortion. So, I suppose Roe can be considered “settled law” if you are predisposed to think of it that way, but not everyone is so inclined.
Fine. I recognize my view to be the minority view.
That makes no sense. The “activism” part of “judicial activism” happened at the time of the decision. Surely you’re not going to claim it was “settled law” right after the decision was handed down. Again, stare decisis is not a blank check. We had “separate but equal” for the better part of a century, and that was overturned. Why wasn’t *Plessy *“settled law” after 50+ years? I’ll answer for you:
Are you fucking kidding me? Why did you only quote that one sentence when immediately afterwards, in the same paragraph, I outlined a scenario that might come to pass in which abortion is strictly limited. Why you chose to ignore the rest of that paragraph, I have no idea.
Think what you will.
Of course, that presupposes that Roe is “judicial activism” to begin with.
Let’s assum for the sake of argument that Roe was not judicial activism. If the court got rid of it in the future, would you consider that to be “judicial activism”? Let’s say the court found, in the living breathing consitution, a right to life for an unborn child?
Or, what if the court decided to further restrict Roe to be applicable only to a fetus that did not show brain wave activity. I’m not sure what week of pregnancy that would be, but just for the sake of argument, let’s say it’s 11 weeks (ie, just shy of 3 months). Would that be “judicial activism”?
What was that “Alice in Wonderland” crack you made about, then?
Precisely. Why d’ya s’pose that is? At the state level, if Roe didn’t exist, there would probably be some states that would outlaw abortion (or that would try to).
It remains the law of the land, after 32 years now. That isn’t the result of anyone’s predisposition to think so, it’s the result of general acceptance and lack of successful political challenge to it.
No, nor did I. But after all these years and general (though not universal) gaining of public acceptance it has *become * settled law.
Didn’t say that, either. But you do have to consider it, and with a fair amount of respect. On this topic you so far have not done so.
Because it was simple rephrasing of the decision you suppose an agenda-driven Court might make. I asked for the reasoning you suppose they’d use before answering your demand for my analysis of it, and so far I have seen none.
But I’ve already let you off the hook, in a later post, by acknowledging that the topic isn’t susceptible to reasoning anyway; the beginning point of life is a statement of faith and nothing more. Yet we do have a working definition we’ve generally agreed to live by, like it or not, using the political mechanisms we’ve also agreed to use. Do you agree or not that for a court to change that definition on its own would be an example of that despised creature, judicial activism?
Elvis: You are consistently ignoring the points about Plessy. Why did stare decisis not apply to Plessy? How is that situtation different than Roe? If Roe were overturned, or signficant new restrictions placed on abortion by the court, it would most likely be due to a judgement about life and death. If life and death issues aren’t a “strong reason” to rethink a court decision, what in your opinion is?