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May 04, 2009

Supreme Court vacancy: Open thread

Souter Supreme Court Justice David Souter has announced that he will retire in June. Speculation is running rampant about President Obama's pick for a replacement, with various observers expecting everything from a "careful pragmatist with a limited view of the role of courts" to a "social engineer."

What are your expectations, hopes, and/or fears regarding potential nominees?

(Image © Jim Cole for the AP)

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Comments

Joe Dalfonzo

We pray that God will guide the President in this most critical decision and that He will provide a jurist that will uphold the law rather than attempt to legislate from the bench.

Andy

"Legislate from the bench" is such a bogus phrase. What it really means is "a judge who makes decisions the right-wing disagrees with." I think what Joe wants is Obama to apoint another Alito or Scalia. Not gonna happen, thankfully.

Gina Dalfonzo

As one who knows Joe very well, I can tell you with certainty that he has too much sense to expect any such thing. Wants it, yes -- expects it, no.

Ben W

Isn't it one of the jobs of the Supreme Court to legislate from the bench? To uphold or overturn laws based on their constitutionality?

Gina Dalfonzo

But to legislate means to make laws, not to uphold or overturn them.

Charles Krauthammer has a good explanation here, if our left-wing friends can overlook his being an evil right-winger. ;-)

http://corner.nationalreview.com/post/?q=NTRmMWUxOWQyMGZjYmQ3NjljZDM2Yjg5OTFhMzFhOTQ=

John

What would Andy do if the Court over turned Roe V. Wade? Would he not call that legislating from the bench? What we want are strict constructionist of the Constitution, not ones who massage things out of it never intended.

Rick Arand

In 1965, Supreme Court Justice William O. Douglas declared in the majority opinion of Griswold v. Connecticut that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." One day while rummaging through the U.S. Constitution, Douglas was no doubt elated when he stumbled upon a "right" to privacy amongst those mysterious emanations lurking in the document's uncharted penumbras. Voila! A heretofore unknown right materialized.

In 1973, using a similar bit of legerdemain, the judges deciding Roe v. Wade explored Douglas' method of constitutional interpretation further. With some extrapolation they were able to uncover another implied right -- the "right" to an abortion. Wow, there must of been a whole lotta emanating goin' on while that case was argued!

Until one is sworn in as a member of the Supreme Court of the United States, all those emanating penumbras remain hidden from human consciousness. However, once anointed with Penumbra Magic, a peculiar and noxious type of pixie dust found primarily in liberal judges' chambers, the scales covering the eyes of formerly blind jurists fall off and these previously unseen apparitions instantly become visible.

The Obama administration appears poised to appoint liberal SCOTUS judges imbued with a super strength formulation of this judicial potion. This reconstituted judicial swill is said to have the power to identify emanations emanating from previous emanations!

Barack Obama has enumerated the qualifications he will apply to evaluate potential SCOTUS candidates. He said he wants someone who has "the empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old."

This set of credentials would seem to narrow the field of prospective Supreme Court nominees considerably. After all, how many elderly, impoverished, black, physically-challenged homosexuals are out there waiting to snap up all those pending Supreme Court vacancies? And, how does anyone know whether they have the requisite amount of empathy to sit on such an august panel?

Eventually we won't even need real judges. Future Presidents will merely appoint people with the appropriate amount of liberal sensitivity and equip them with a special pair of 3-D emanation detection glasses along with a big bottle of Penumbra Magic. Soon they will discover more rights in the Constitution than you can shake a stick at!

Whatever happened to legal competence and pledged allegiance to the Constitution as criteria for selecting judges?

Andy

Gina: Krauthammer is more than an evil right-winger, he is a neo-con and a proponent of torture. I ignore him at every opportunity.

LeeQuod

Andy wrote: "I think what Joe wants is Obama to apoint another Alito or Scalia."

Another Italian on the bench would be a case of continuous improvement.

Diane Singer

I suspect we'll get the nominee we on the right have been dreading, and the liberals have been hoping for, all along: ultra-liberal on social issues such as abortion and gay marriage, against freedom of speech when that speech is biblically based (they'll call it "hate speech" when it's simply God's Truth), and against gun ownership of any kind.

Andy

Diane, just curious: Why is unlimited gun ownership so important to Christians? To us unchurched, the stance seems to be opposed to Christ's message. Didn't he tell one of his followers to put down the sword? Anyway, it's a moot point. The NRA won that battle years ago. (BTW, no anti-2nd amendment guy me, or my liberal wife, who is a dead-eye with our Ruger handgun.)

What you'll get is a replacement on the order of Souter, and the balance of the court will not change. The real fight will come when Ginsberg retires.

TimC

Hi Andy,

As a non-gun-owning churchgoer, I'll take a stab at your question. I see two reasons (there are probably more) that many Christians take an active interest in preserving 2nd Amendment rights.

First, there is the perception that in other countries restrictions on gun ownership often precede restrictions on other liberties. In a sense, then, fighting for gun ownership is not for guns _per se_, but is really fighting against an encroaching social system. Gun ownership is seen as the canary in the mine of human liberties.

Second, and more philosophically, prohibitions on gun ownership weaken the principle of subsidiarity, which many Christians believe is fundamental to human flourishing. Subsidiarity is undermined by transferring one's capability of (and thus, responsibility for) protecting one's self and one's family and giving it to the state (i.e. the police force.) Now clearly there is wide room for prudential judgment when applying the principles of subsidiarity (I happily delegate the right to perform SWAT raids to the police). Yet a prohibition on gun ownership eliminates an important tool that I have for protecting my family. At the same time, it makes me more dependent on the state to provide those services that I could otherwise render myself.

You are correct that Christ ordered Peter to put down his sword. Yet earlier, before sending his disciples out to preach, he instructed each to take a sword for himself. How do we reconcile these statements? We are not to attempt to bring about his kingdom by the use of the sword. Nevertheless, there may be circumstances that require us to provide for (or protect) ourselves by the sword. Drawing the line between the two (when facing persecution, for example) requires prudence and wisdom, but for Christians (who rarely live with the black and white perspective that the rest of the world expects), this is nothing new. We commend ourselves in all things to God.

Andy

Thanks, Tim. Subsidiarity, new word for me, but I get the idea. As a non-church-going gun owner, I own my weapon for the same reason. Still, I would rather have a professionally trained police force do the job in every case possible.

I think that there is so much more going on about guns in our culture, though. It's a lot about macho psychology, how men see their place in the culture, and for many, it's an unconscious backlash against the more prominent role women have gained in society. And it's also generational. Far fewer young men (or women) are hunting or shooting these days, to the point that hunting groups are really worried about it. As the next few generations choose video games over the outdoors, our country's fascination with firearms may fade some.

As for the black and white perspective, you folks bring those expectations from the outside on yourselves, with your constant harping on "absolutes." If you're gonna preach it, I'm gonna hold you to it.

Gina

That's funny, Andy, I didn't feel terribly macho when I was taking the test for my concealed carry permit a few weeks ago. :-)

On a more serious note, if we give the impression that Christianity is nothing but a series of black and white expectations, then we're in the wrong, and I apologize on behalf of all of us. It's so much more than that.

However, the unfortunate truth is that when you try to appeal for standards in a society that doesn't have many, you run the risk of looking like you're trying to be a goody two-shoes. I'm not complaining or whining, just stating a fact, when I say that it's an exceedingly fine line, and with our sinful natures, we're not that good at walking it.

TimC

Oh, truth is certainly absolute! I did not mean to imply otherwise. And truth is knowable. And truth has a claim on every single person. What is even more mind-bending, even for those of us inside the Christian faith, is that Truth is in fact a Person. (c.f. the first chapter of John's gospel.)

But the simple fact that truth is absolute does not mean that the moral rightness of every action that we take on earth can be immediately discerned (though many can). We do indeed see through a glass darkly. And this is an apt metaphor. Objects through a clouded glass need to be defined more distinctly in order for us to see them. But as the glass becomes clearer, we are able to distinguish objects with more subtle gradations. Just so, the more clouded our "moral glasses" are, the more starkly the contrast between good and evil need to be made. And as Christians, we believe that this is how the world lives: with clouded glasses. Indeed this is how many Christians live.

Yet the promise of growing in our knowledge of the person who is Truth is also the promise of seeing more clearly. The darkened glass begins to fade, and we need less black/white to delineate our actions. Not because right and wrong are any less distinct or important! But because our eyesight has improved. This is the Christian's hope: that as we grow we expend less energy on "doing" right or wrong. Instead, our very lives will be conformed to the image of the One who is Truth.

Still, we must go on "harping" because the world is wearing those darkened glasses. As Flannery O'Connor explained about her writing, "To the hard of hearing you shout, and for the almost-blind you draw large and startling figures."

Even as I write this, I realize that this may not make any sense from outside the Christian experience. And I do not write as one who has achieved all that I describe here. Not at all! But this is the promise that is held out to everyone, and I eagerly await its fulfillment. "Then we shall see face to face!"

Andy

Gina, congrats on the CC permit, I guess. I have always wondered about the need, though. If you want to go about armed, why not strap on a holster and walk out in the world loud and proud? Why the need to be all sneaky? Won't the bad guys leave you alone if you see the pretty pearl-handled piece on your hip?

As for the black and white thing, that's me tweaking you fine folks again. One thing I have come to terms with in life is the contradictory nature of human beings. I appreciate you and Tim replying in such winsome fashion, though.

Gina

:-) It's so weird that you said that. One of the things they impressed on us in class was to go to a good gun shop, which was defined as NOT the kind that tries to sell ladies pretty pearl-handled pistols!

As for concealed carry, another thing they emphasized was that one's fellow citizens often do not take kindly to seeing one walking around packing heat. In fact, they tend to freak out about it. It seems to be the courteous, civilized, and altogether sensible thing to stow the gun out of sight until called for -- which, pray God, it won't be.

Andy

Hmmm, sounds like the CC folks need to do a PR campaign about citizens carrying heat. If you made pistols into a fashion accessory, perhaps, or shaped like an Ipod or something, maybe you would not have to be so closeted. But I wonder why your fellow citizens look askance on open carry firearms? Could it be that we feel a little intimidated by the guy next to us on the subway with a Glock on his belt? Or perhaps that civil society would just feel a lot less civil and a lot more like Deadwood if we all carried our peacekeepers? I think there's a lot of wannabe Dirty Harry psychology to the concealed carry thing, myself.

Gina Dalfonzo

I don't know much about gun-related psychology, I'm afraid. But also, I'm realizing that I've allowed this thread to get off-topic -- cooperated in getting it off-topic, in fact, so shame on me. We need to get back to the subject of the Supreme Court, and I need to follow my own rules!

Andy

OK. Back on topic: How big a fight will the GOP put up on this one? Or will they wait until next time for Ginsburg? And will they be hypocrites on filibustering judicial nominees? Remember all the nuc-ular option stuff from the last time?

vikingmother

I dimly remember learning about EISEGESIS in school. Isn't that where you pour the meaning you want to see into the Bible text...?

I suspect a judge who takes the Constitution as a "living" document will take "living" to mean "a Constitution I can shape to whatever I want it to be".

The test will be - Will this new judge's rulings mainly conform to current thought fashions? (Or---the thought fashions of his/her college days?)
LONG TERM QUALITY TEST:
If the judge gains long - term admirerers from the opposite side of the aisle---in years to come, that judge was probably good and attempted to be fair.

Hope I am wrong.

vikingmother

PS when I think of judges, I think of the ARCH in St. Louis, MO. The beautiful ARCH is positioned to highlight the old courthouse. I toured that old courthouse. I was where Dred Scott was NOT vindicated...a great past lapse of justice!

vikingmother

My last comment. Watch where judges failed MISERABLY - and yet other judges did the right thing...
Judgment at Nuremburg 1961. A great film.

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