Democrats Prevail in Blocking Senate Vote on Bush Nominee

[LunarRay]

Originally posted by: DaiShan

Originally posted by: LunarRay
We need folks who are and have displayed a professional history of moderate decision making in the Court. Not right or left leaning or falling judges. We can vote out the Congress and the Executive but for a lifetime we have to deal with Federal Judges. They for the most part get appointed to state judgeships by partisan politicians and the same in the Federal Court. Maybe we need electing them to life positions and have the recall potential to rid the nation of staunch defenders of yesterday or judicial movement of society to their ideology.

The judiciary cannot be bound to uphold the will of the public, they must be bound to follow the intent of the law. Holding judges accountable to the electorate would corrupt the system immeasurably imo.

If that were the case we'd be having 9/0 or 0/9 decisions all the time. Cases reasonably on point would never get to court as the litigants would know there case outcome from settled law. The courts do follow the will of the people in time as they now are doing. This, of course, drives Scalia mad. Take the '54 landmark case argued by Thurgood Marshall that Warren got full court agreement on on.. "Brown v Board of Education of Topeka. This shows the social changes over time and the law as it pertains to it.
Perhaps nomination and advise and consent but with a recall provision other than impeachment... something to rid the system of wacko judges.

 

[Witling]

LunarRay. When you say we should get 9-0 or 0-9 decisions, you tell me that you're not a lawyer. One of my biggest disappoints with the law is the unpredictability. If things were as you think they are, lawyers for each side woud just look up the law and one of them would say, "Whoops, we're dead meat. No sense taking this to trial." By the time things get to the U.S. Supreme Court, the court is making basic policy decisions. Either side can find the law to support the decision they want. Incidentally, writeups of the Supreme Court process for the Brown v Board case indicate that the justices wanted the decision to be unanimous because they knew it would shake the nation.

 

[LunarRay]

Originally posted by: Whitling
LunarRay. When you say we should get 9-0 or 0-9 decisions, you tell me that you're not a lawyer. One of my biggest disappoints with the law is the unpredictability. If things were as you think they are, lawyers for each side woud just look up the law and one of them would say, "Whoops, we're dead meat. No sense taking this to trial." By the time things get to the U.S. Supreme Court, the court is making basic policy decisions. Either side can find the law to support the decision they want. Incidentally, writeups of the Supreme Court process for the Brown v Board case indicate that the justices wanted the decision to be unanimous because they knew it would shake the nation.

I would suggest you reread the context of my remarks.. let me paraphrase...Daishan said, in part: "The judiciary cannot be bound to uphold the will of the public, they must be bound to follow the intent of the law" That statement fixes for all time the intent when the law was enacted. All relevant circumstances are fixed based on the utterances of the law makers... their intentions. Given that most judges go to law school and with the advent of lexus/nexus one can easily see that no issue that does not meet the exact 'On Point' conditions of the law would be advised by it. 9/0 one way or if the adverse is true 0/9 the other way.

Regarding your ascertion in the Brown v BofE, Warren wanted to have a unified court. He started with Five and persuaded the balance. They all finally agreed as the result of his efforts to get them to break with settled law and move with the times. It took him quite some time and effort.

Regarding what you infer from my writings; who cares! it is irrelevant to the point. Perhaps you are implying that you are an attorney and therefore, what you opine is gospel according to Whitling. I am an advocate and disagree with your disagreement. In any event, things are as I think they are. There are nine members and they tend to vote 4/4/1 on many of the social issues of the day. I would prefer a 9/0 or 0/9 court. And that is what I think and think that is what I said in this forum at least a few dozen times.

 

[Witling]

LunarRay, I thought "you're not a lawyer" was conversational. Apparently you didn't. My point was, just the way you think about the whole subject is not realistic. So now let's try your first paragraph sentence by sentence.

"The judiciary cannot be bound to uphold the will of the public, they must be bound to follow the intent of the law" Wrong verb when you say "must be bound to follow." Maybe in an ideal world but not in ours. The very first thing they do (usually) is look at the plain meaning of the text. If it's clear, the intent of the law can be damned. Then, they get to the intent. This isn't as easy as you seem to think. On a federal level most laws have a fairly clear legislative history. This is the exception with state laws. It is usually extremely hard to determine what the intent of a state law was.

"That statement fixes for all time the intent when the law was enacted. "That statement"? We're missing an antecedant for "that statement." What statement? Most law, federal included, does not have a statement of intent. It has legislative history. State law seldom has an intent. Legislators are very mindful of how slippery the concept of "intent can be." There's a saying in English. The road to hell is paved with good intentions.

"All relevant circumstances are fixed based on the utterances of the law makers... their intentions." This is incredibly naive. Let me give you two examples from the U.S. Constitution. First, what do you think Jefferson and they boys were thinking about when it comes to wiretapping? Second, there's a ton of debate about what the makers' intention was in saying the right to bear arms shall not be infringed. YOu might think this is simple, but most other people don't.

"Given that most judges go to law school and with the advent of lexus/nexus one can easily see that no issue that does not meet the exact 'On Point' conditions of the law would be advised by it." My apolgies, but I really can't figure out what you're trying to say here. If you mean that the case shouldn't be judge by a particular law if you can't find a case on point, that's horse pucky. Let me give you an example. When the martial arts instrument that consists of two sticks connected by a chain came to be used in America, what do you do when some guy conks another citizen with one. Is that a dangerous weapon for purposes of assualt with a dangerous weapon. The first time it happened, no law or case spoke to the issue. The court had to analogize the situation. If you mean that by searching Lexis/Nexis you'll always be able to find a case that matches your facts, that's worse than naive. What about the first guy to use a computer program to collect all fractions of a cent the bank had left over when the program computed interest? Was there a case that met those facts? Nothing even close.

"9/0 one way or if the adverse is true 0/9 the other way. " Evian, which is "naive" spelled backwards.

 

[LunarRay]

Whitling,
I didn't say that Daishan did as I said he did in quotes and all like that.. the underlying premise is wrong for the para...

""The judiciary cannot be bound to uphold the will of the public, they must be bound to follow the intent of the law" Wrong verb when you say "must be bound to follow." Maybe in an ideal world but not in ours. The very first thing they do (usually) is look at the plain meaning of the text. If it's clear, the intent of the law can be damned. Then, they get to the intent. This isn't as easy as you seem to think. On a federal level most laws have a fairly clear legislative history. This is the exception with state laws. It is usually extremely hard to determine what the intent of a state law was."

I'll read the balance later.. but, we do need getting to agree what I said and what I quoted.. ok..

Your statement speaks for itself. Think of statements as contracts... no parole evidence allowed unless it is ambigious... seemed pretty clear to me that you implied that what I said indicated to you that I was not an attorney. That what I said was wrong or at best ill thought out.
I think it would have been easier if you had reread what I did say.

 

[Witling]

Ah, I see. Sorry for the error.

 

[LunarRay]

Whitling,
Let me try it this way.
My preference would be to have all decisions out of the Supreme Court be 9/0 or 0/9. I know that is not realistic. It don't take nine to grant cert. Nor should it. We have a very divided court at the moment. I'd feel better with a court of Moderates which may produce 9/0 decisions on social and other important issues. I am comforted by the 9/0 decisions whether they go my way or not. It more or less defines the direction our nation is headed. With all the 5/4 decisions rendered the last ten or fifteen years being rights orientated means the next appointment to the USSC could turn things around and this bothers me. I like to build upon a foundation not build a foundation and then chisel it apart and paste some mortar and on and on. We need better direction out of the court. If Bush nominates two right leaning judges and they pass the Senate then all the decisions that O'Connor helped decide could be up for review. Scalia, I'd venture eats lots of Tums whenever his four brethren on the left argue the merits of the 14th Amendment. I'm sure he and Thomas can't wait for a clear majority.
My first response in this thread was to suggest the people may enjoy a means of eliminating Justices and Judges who are out of step with the society's direction the Constitution not withstanding. Or if they feel otherwise then rid the courts of folks who don't follow the plain reading of the Constitution. The people should rule. Not nine robed political agendized jurists. The Constitution ought to be dynamic and it is through the amendment process. Lawrence et. al. v Texas seems a move toward the current social movement even though the 4th and 14th don't explicitly say what they have been held to say. The Court is "making law" not holding it up against the Constitution. I mean by the last sentence that "making law" is; the court first determines what ought to be and then they go about finding a means to provide it. Then on a 5/4 majority we have what we have. I'd prefer to Amend with specificity and enumerate the rights.
Bush v Gore leaves a bitter taste for me. They held under the 14ths 'equal' clause but, again 5/4 is not convincing. It is what it is but, like Warren with Brown they should have come out 9/0 somehow.

edit I think I misspelled a word..

 

[LunarRay]

Whitling,
I forgot about this part.
**********************************************************************
"." My apolgies, but I really can't figure out what you're trying to say here. If you mean that the case shouldn't be judge by a particular law if you can't find a case on point, that's horse pucky. Let me give you an example. When the martial arts instrument that consists of two sticks connected by a chain came to be used in America, what do you do when some guy conks another citizen with one. Is that a dangerous weapon for purposes of assualt with a dangerous weapon. The first time it happened, no law or case spoke to the issue."
**********************************************************************
If the police deemed it a weapon with lethal potential and malice was present it might be attempted murder. Assault would be an unlawful threat or attempt to do bodily injury to another. I might lower it to battery because even though it included a weapon you used the word 'conk' and I don't think that raises the issue to attempted murder.

Cases become cases because the folks charged with implementing them read into or out of the law what they do. If you use the US Code you'll find various crimes. Some are assult and some like above are attempted murder. An indictment may have charged attempted murder because someone determined that nunchucks are lethal if used even by a non martial expert and the other evidence indicated it was an attempt to murder. The police calculated the force imparted by the striking etc. etc. So the trial court allowed the charge and the person was found guilty. The only issue the appellant has is the interpertation by the US Attorney (assume federal) that this fellow wielding this device intended to murder. The finders of fact determined this to be true but, is this device lethal? The USSC if they grant cert would look to what is a lethal device from prior case history. The same place the police would have looked. They presumably would agree with the cops.. 9/0. I would call a device lethal if a reasonable and prudent person under the same or similar circumstances could cause the death of another with this device. The circumstance changes if the person has two broken arms but if it was a gun the broken arms would not change the circumstance much.
IMO anyhow.

 

[LunarRay]

Whitling,
BTW, I consider it a compliment to not be thought of as an attorney. And of course, all my opinions are just that, my opinion.

 

[Moonbeam]

The Supreme Coup overthrew the elected Pres of the US and gave the election to Bush.

 

[LunarRay]

Originally posted by: Moonbeam
The Supreme Coup overthrew the elected Pres of the US and gave the election to Bush.

Cuz it was populated by chickens.

 

[CADsortaGUY]

Originally posted by: Moonbeam
The Supreme Coup overthrew the elected Pres of the US and gave the election to Bush.

Are you ever going to be "on-topic" with this? Is it fun or funny to you when you post this? You repeatedly balk at having a real discussion/debate about it yet you continue to toss out these little turds.
The Election of 2000 is over. It was won by G.W.Bush. YOU need to get over the fact that Gore lost.


CkG

 

[Moonbeam]

Well of course you would call them turds, Caddy, they make you smell yourself.

 

[XZeroII]

Originally posted by: Moonbeam
The Supreme Coup overthrew the elected Pres of the US and gave the election to Bush.

I wasn't aware of this. You mean the Electoral College elected Gore and the Supreme Court stepped in and put Bush in instead???? What a crock! This is so outragous!

 

[XZeroII]

Originally posted by: XZeroII

Originally posted by: Moonbeam
The Supreme Coup overthrew the elected Pres of the US and gave the election to Bush.

I wasn't aware of this. You mean the Electoral College elected Gore and the Supreme Court stepped in and put Bush in instead???? What a crock! This is so outragous!

No, actually the Electoral College elected BUSH. Moonbeam is just a pathelogical liar.

 

[Moonbeam]

Originally posted by: XZeroII

Originally posted by: XZeroII

Originally posted by: Moonbeam
The Supreme Coup overthrew the elected Pres of the US and gave the election to Bush.

I wasn't aware of this. You mean the Electoral College elected Gore and the Supreme Court stepped in and put Bush in instead???? What a crock! This is so outragous!

No, actually the Electoral College elected BUSH. Moonbeam is just a pathelogical liar.

You should have stopped at 'I wasn't aware of this'. That continues to be the fact. You could add that you want also to stay ignorant of the facts. You could easily avail yourself of the real facts. Try Google, 'Gore won'. I'll give you a tip. You win state elections by getting the most legal votes and you determine that by counting them.