Should Anthony Kennedy be impeached or just killed?

Tim Cavanaugh | April 11, 2005

At the Confronting The Judicial War On Faith conference, Phyllis Schlafly says Supreme Court Justice Anthony M. Kennedy has not met the "good behavior" requirement for office and his opinion against capital punishment for minors "is a good ground of impeachment." But another speaker, "Dr." Edwin Vieira, an "eminent and premiere expert," knows better than to depend on supine lawmakers and calls for the kind of final solution only a Man of Steel can provide. The "bottom line," says Vieira, is that Uncle Joe knew best: "He had a slogan, and it worked very well for him, whenever he ran into difficulty: 'No man, no problem.'"

This person jumps in to claim Vieira's words were "taken out of context." However, Salon has a fuller version of the comment, and it's even worse than originally reported:

Vieira said, "Here again I draw on the wisdom of Stalin. We're talking about the greatest political figure of the 20th century... He had a slogan, and it worked very well for him whenever he ran into difficulty. 'No man, no problem.'"

The audience laughed, and Vieira repeated it. "'No man, no problem.' This is not a structural problem we have. This is a problem of personnel."

Is this incitment to murder of a federal official? Here's somebody who wants Vieira investigated. The Post and Salon both stop short of that characterization, but it's hard to imagine anybody who reads the papers these days not understanding what a comment like this means with reference to a judge.

Vieira on the difference between his two books PIECES of EIGHT and CRA$HMAKER: "PIECES of EIGHT is the blueprint of a Ferrari, CRA$HMAKER a high-speed ride in one."

Comments

|4.11.05 @ 12:46PM|#

Kennedy should be impeached.

|4.11.05 @ 12:52PM|#

I want to emphasize that this bit of extremism should in no way diminish our deep respect for Tom DeLay.

And it is purely coincidence that he's calling for a jihad against the third coequal branch at the same time that he's facing charges of unethical conduct.

Nothing to see here, move along.

|4.11.05 @ 12:54PM|#

Oh, and my respect for DeLay hasn't diminished in the slightest. It started off at zero, and it remains at zero.

|4.11.05 @ 1:00PM|#

"(Vieira deplores what he sees as the "Marxism, Leninism, and satanism" in Kennedy's opinions.)"

it's always a little sad to know that the insane stereotype of an american religious fanatic is occassionally true, as with all stereotypes.

like when you meet a math major with a pocket protector and a calculator just hanging out at the food court.

|4.11.05 @ 1:03PM|#

Sorry, but the courts have long ceased being a coequal branch of government. Now they're super legislatures I grown to respect Delay for taking on these tyrants in black robes.

|4.11.05 @ 1:05PM|#

Tim, outstanding headline. I chuckled at my desk.

I would guess that Dr. Veira means removing Judges from their position by any means necessary when their views don't agree with his. The definition of judicial activism has apparently grown to include following the law on the books, rather than ignoring the law in facor of ideology.

I have to ask, what exactly do the faithful lose by allowing the non-faithful to live their lives? Every item promoted on their agenda replaces the values of the individual with their collective values. Any of the points they seek to impose constitutionally could be better if applied as conditions of faith to their own congregations.

They also seem to miss the point that in area such as school prayer, most complaints cases are initiated on behalf of "faith minorities" who feel ostracized by a dominant group. Unlike me, these people believe in something, just something slightly different and fear the bullying that comes with not being part of the group. Better to just leave the piety at home where you'll have 16 hours per day to pray as you see fit, or not at all. This isn't a theocracy just yet.

|4.11.05 @ 1:07PM|#

Billy Ray: Over half of those "tyrants" were appointed by Republican presidents. Kennedy himself is a Reagan appointee.

|4.11.05 @ 1:07PM|#

Sorry, but the courts have long ceased being a coequal branch of government. Now they're super legislators. I've grown to respect Delay for taking on these tyrants in black robes.

|4.11.05 @ 1:08PM|#

Billy, well, the usual rejoinder here is that the Congress has essentially punted its responsibility to write constitutional laws and act within their prescribed bounaries.

They do things that are unconstitutional as hell, just to throw a few fish to the flipper-clapping seals they represent, and while the seals catch their fish and squeal "urp! urp! urp!" and vow to re-elect these pols, the courts are left to clean up the fishy odor of their brainless pandering.

We do have an uber-judiciary all right; but its only because the Congress has willingly ceded the role of playing by the rules in favor of bread and circuses.

And the coup-de-grace is the pols then turn around and CRITICIZE the courts for performing the very tasks they've foisted on them!

|4.11.05 @ 1:12PM|#

I've often thought that it would be entertaining if there were a fine associated with unconstitutional laws.

If a member of Congress votes 'yes' on a law that is later ruled in part or in whole as unconstitutional, that member is fined some significant amount. Say, $10,000.

It would certainly discourage the mindless party-line voting-without-reading that currently characterizes our Congress.

BillyRay: ahahahaha look, everyone, it's BillyRay!

|4.11.05 @ 1:16PM|#

I know. One of Reagan's biggest failures. Got Scalia, but Sandra Day and Kennedy have both been disasters. Sandra Day signing off on government discrimination against whites and asians. Reagan was warned about Sandra Day, but an obviously diminished Barry Goldwater went to bat for her.

|4.11.05 @ 1:18PM|#

independent worm: That is an insightful way of putting it.

Off the top of my head, I wonder if this is happening because most Congressmen are more beholden to moneyed special interests than their constituents, especially in the House. Remember the redistricting in Texas a couple years ago that gave Republicans five more seats in the House? The gerrymandering has gotten so bad that House seats rarely change hands. Every once in a while they'll throw their constituents a fish...

In the absence of an unresponsive Legislature, people turn to the courts.

|4.11.05 @ 1:19PM|#

I love how everyone believes Kennedy should be impeached for his ruling on the death penalty for minors case, but no one says anything about the other 4. I guess Kennedy has super Supreme Court voting powers that his vote is sufficient to overturn every other justice.

|4.11.05 @ 1:19PM|#

Argh. I meant "In the absence of a responsive legislature".

|4.11.05 @ 1:25PM|#

independent worm,
My personal "favorite" was how angry conservatives became when the SCOTUS didn't overturn McCain-Feingold that Republicans passed and Bush signed.

|4.11.05 @ 1:27PM|#

Kennedy along with Ruth Bader should be impeached because they're both on record as saying they no longer only look at the USA constitution when ruling on cases. They consult international law and opinion. In other words, they go to cocktail parties in NY city, DC, Europe and rub elbows with other cultural elites. Death penalty for minors. How barbaric. How culturally backwards .

|4.11.05 @ 1:34PM|#

The irony about the attack on "activist judges" is that it seems to be fired up by the refusal of federal judges to second-guess those of Florida in the Schiavo case. In other words, the problem with the federal judges is that they weren't activist *enough*!

In general, the idea of impeaching judges because you disagree with their opinions pretty much died with Jefferson's attempt to oust Justice Chase. The reason it is so futile--even assuming it is legitimate--is that conviction requires a two-thirds majority in the Senate. Obviously, if the far right had that (and they wouldn't, even if they won every disputed Seante seat in 2006) they wouldn't *need* impeachment--with a supermajority like that they could just pack the courts to their heart's content. Short of that, a series of impeachments without convictions will just discredit the whole process.

|4.11.05 @ 1:47PM|#

When did allowing the government to kill minors become a "faith" issue, anyway?

|4.11.05 @ 1:48PM|#

...uless Schlafy worships Ba'al. Then it makes perfect sense.

Carthago ressurecto est.

|4.11.05 @ 1:49PM|#

What I think has become increasingly obvious over the past few months is that the Republican Party leadership is running out of red meat and losing control of the populist movement they thought they controlled. Much of the "cultural conservative" agenda now will require constitutional amendments and/or microscopically examining the politics of every federal judicial nominee to make sure only those who have the "correct view" of specific issues get appointed (since even Scalia, Rhenquist, and Thomas make decisions in favor of the "godless Liberal" position part of the time). That's not likely to happen. The interesting question is whether the "cultural conservatives" sit on their hands in 2006 or tear the party apart in congressional primary races.

|4.11.05 @ 1:52PM|#

I suppose "no man, no problem" makes some sense on a theoretical level. But the same can be said of "no system, no problem". Kind of disheartening to keep hearing people placing a higher value on systems than persons.

|4.11.05 @ 1:52PM|#

"Here again I draw on the wisdom of Stalin..."

When I say Republicans are Communist, people laugh at me...

|4.11.05 @ 1:59PM|#

SR-

I agree. The cultural right got some bones tossed their way in Bush's first term, but they hardly got more than a tiny portion of what they were promised, or at least what they thought they were promised.

Now they're demanding it all, and the GOP is in a corner. If they don't deliver enough, they'll be challenged in primary elections in 2006. Some incumbents will lose the primaries. Others will be maneuvered into positions so far to the right that they'll lose the general elections. Others will emerge from primary elections still positioned in an electable portion of the ideological spectrum, but completely drained of campaign cash and lacking the volunteers that the base can provide (not to mention the base of votes that provides a cushion from which to campaign).

Or at least that's what I hope. I won't exactly be overjoyed at seeing the Democrats pick up seats, but breaking hegemony is always a good thing.

One way out of this dilemma is to campaign against the third branch of government, but I don't know how well it will work. They kept the base satisfied at first by insisting that nothing could change until they controlled Congress. Then they said that nothing could change until they had the Presidency. Then they lost the Senate and said that they need to regain it. Then they got it, but said that nothing could happen until Bush had the security of a second term.

They're running out of excuses, and all they have left to blame things on is the third branch of government. But meddling with the third branch of government is dangerous to the health of representative government, and the American people know that (or so I hope). The GOP may learn some bitter lessons from this one.

|4.11.05 @ 2:06PM|#

It's useful to remember, contra the press's spin, there really wasn't a mass movement of angry white men turning out at the polls that explained the Republican pickups in 1994. That year's elections stand out for their low turnout. What happened was, liberals were disappointed in Clinton's first two years (especially his inability to get a universal health care bill through with the Dems controlling the White House and both chambers of Congress), and they stayed home in droves. Republican turnout stayed about the same as it usually was in midterm elections.

|4.11.05 @ 2:20PM|#

If I was running the Democratic party I'd give someone like Judge Roy Moore $50 million and tell him to run for president under the God Party or something. Peel off a few percentage points of fundy voters and the Republican party is a minority party again.

|4.11.05 @ 2:30PM|#

thoreau writes:They're running out of excuses, and all they have left to blame things on is the third branch of government. But meddling with the third branch of government is dangerous to the health of representative government, and the American people know that (or so I hope). The GOP may learn some bitter lessons from this one.

You sorta sound like a neo-con there thoreau. Stormin Norman Podhoretz

|4.11.05 @ 2:31PM|#

Good to see that BillyRay, Schlafly, and crew got that whole "Culture of Life" memo. How exactly does capital punishment reconcile with that?

I gotta give old JP II his props. He was the most consistently pro-life person on the public stage. Anti-abortion. Anti-capital punishment. Anti-war. Anti-euthanasia. Anti-suicide. All the American "pro-life" people are eager to slaughter when it suits them. Fucking hypocrites.

|4.11.05 @ 2:34PM|#

You sorta sound like a neo-con there thoreau. Stormin Norman Podhoretz

I don't know much about neocon thinking on domestic issues. Care to explain?

|4.11.05 @ 2:41PM|#

Or at least that's what I hope. I won't exactly be overjoyed at seeing the Democrats pick up seats, but breaking hegemony is always a good thing.

Lets see, add one, Thoreau, to the no fly list. Check.

|4.11.05 @ 2:41PM|#

Back in 96, First Things held a symposium on the courts. Norman and the neocons stormed out.

|4.11.05 @ 2:44PM|#

The End of Democracy? The Judicial Usurpation of Politics

|4.11.05 @ 2:45PM|#

So, BillyRay, because I don't share the theocon view of the courts I must be a neocon?

|4.11.05 @ 2:47PM|#

Actually, thoreau, neoconservatism started as a movement dedicated to domestic issues - welfare reform a la Moynihan, the abandonment of race baiting, market-based anti-poverty measures - wonky stuff like that.

Like the Global Liberation Crusade, domestic neocons brought strategies that were traditionally favored by the Right to the pursuit of the uplifting goals that have always defined the Left.

|4.11.05 @ 2:47PM|#

"So, BillyRay, because I don't share the theocon view of the courts I must be a neocon?"

You heard the Preznit - if you're not with us, you're agin' us.

|4.11.05 @ 2:57PM|#

The always interesting Raimondo put in his 2 cents back in 2000. Scroll down to NORMAN AND HIS ENEMIES

thoreau, the courts are running the country. In some states now, courts are ordering elected officials to raise taxes in order to increase public education funding. It's getting out of control

|4.11.05 @ 3:04PM|#

BillyRay-

I do agree that, based on what I've heard, some of the court decrees concerning the operation of public schools go too far. And if a movement emerged to deal with those abuses, I would probably support it.

But the yammering I'm hearing out of the far right at the moment mostly has to do with matters of religion. Substituting one abuse of power for another isn't my idea of a movement towards greater freedom.

And of course, I'm sure it's purely coincidental that all of this is happening when DeLay is facing ethical questions.

|4.11.05 @ 3:13PM|#

thoreau, it just isn't issues like raising taxes for public education. Prop 187 in California is a perfect example of the courts coming in and overturning the popular will of the people. The elites on the left recognize the only way they can ever get their agenda passed is via the courts.

|4.11.05 @ 3:32PM|#

Joe--that's Carthago resurecta est. Unless you want to maintain parallelism and stay with "Carthage should be risen again," which would be Carthago resurgenda est.

|4.11.05 @ 3:32PM|#

"In some states now, courts are ordering elected officials to raise taxes in order to increase public education funding."

Only in states in which the legislatures themselves have passed laws (or amended their constitutions) requiring that education be funded to that level.

|4.11.05 @ 3:58PM|#

"The elites on the left recognize the only way they can ever get their agenda passed is via the courts."

The "elites" on the right recognize the only way *they* can get *their* agenda passed is by amending the constitution.

Also, didn't the republican controlled congress just pass a special bill of attainder just so Terri Schiavo's family could file yet another frivolous lawsuit in federal court?

Did Congress not just expand the jurisdiction of the federal courts just to appease a noisy right-wing minority of the population (where said minority also happens to be coextensive with the people who vote for said congressmen?)

R C Dean|4.11.05 @ 3:58PM|#

Only in states in which the legislatures themselves have passed laws (or amended their constitutions) requiring that education be funded to that level.

Even if this is true, the job of bossing the legislators around on purely political issues like taxes and spending belongs to the voters, not the judges.

|4.11.05 @ 4:06PM|#

Can someone point to a specific case where the courts raised taxes to fund education rather than finding that the current method of education funding is unconstitutional or in violation of existing state laws, and then directing the legislature to take action?

|4.11.05 @ 4:06PM|#

That's a perfectly legitimate political point, RC.

But if the constitution says the legislature must do X, and the legislature doesn't do X, the courts can't just pretend that amendement doesn't exist.

|4.11.05 @ 4:10PM|#

I'd like to see which states and which laws are being referred to. If it's just a matter of judges making municipalities comply with laws on the books, I don't equate that to making the law itself.

A lot of the judiciary bashing seems rather childish, done by people who blame judges for weaknesses in their cases, or ignorance or the law.

I wonder if we'll see "conscience clauses" for judges next. That way, a judge can go against the law for reasons of his own choosing, then prevent you from having your case appealed.

|4.11.05 @ 4:18PM|#

You know, it just occured to me that this outrage might work in Kennedy's favor.

This summer Rehnquist will presumably either retire or die. (Then again, he might die, but come back to life shortly after and announce "There can be only one!" before cutting off Robert Byrd's head... ;-)

When he does, there will be 2 decisions to make:

1) Who will be the new guy on the court?
2) Who will the new Chief be?

Question #2 matters, of course, but question #1 matters much more. The title of "Chief" doesn't matter if he's on the losing side of a 5-4 decision. The easiest way to get a staunch conservative Justice (aw, hell, who am I kidding, just cut to the chase and say "anti-abortion", since that's the only issue that will be on the table) confirmed is to balance it out with a more moderate choice for Chief.

Kennedy has been viewed, at least in the media, as being more conservative than O'Connor but less conservative than Rehnquist, Scalia, and Thomas. Now, those assessments may or may not be accurate, but the important point is that he's perceived that way, and perception is what will drive the politically charged confirmation process.

If Kennedy were still viewed that way his elevation to Chief might not be seen as enough of a compromise to balance out a conservative Associate Justice. But now that he's on the conservative hit list, suddenly he starts to look like a decent compromise for the role of Chief Justice.

I don't think any of this was orchestrated for these reasons, but I do think it helps his chances of becoming Chief.

|4.11.05 @ 4:24PM|#

Judges need lessons about power to raise taxes

|4.11.05 @ 4:29PM|#

thoreau, before this Schiavo mess, I thought it was a pretty good bet that Bush was going to name a libertarian-friendly judge. Not somebody who meets this tough crowd's standard, but somebody who opposes federal environmental, worker safety, and consumer safety regulations, but who supports Roe vs. Wade. Once a nominee expresses support for privacy rights and distances himself from the wacko religious right, all the Dems vote yea. Meanwhile, Bush gives a big thank you to the people who put him there (that is, the people who stand to make a few bucks doing things that are currently banned by federal environmental, worker safety, and consumer safety regs).

Now, though, I don't think Bush could stiff arm the lifers without having a riot on his hands.

|4.11.05 @ 4:31PM|#

The elites on the left recognize the only way they can ever get their agenda passed is via the courts.

Interesting, the right seems to want to do the same when it comes to medical marijuana and the Oregon Death with Dignity Act. All this "usin' da courts" to over turn the will of the people is making my head spin!

|4.11.05 @ 4:35PM|#

joe-

I always figured Bush would replace Rehnquist with a pro-lifer because he can get away with it. I know, I know, pro-choicers will still be upset, but replacing a pro-lifer with a pro-lifer changes nothing. Roe vs. Wade still stands.

Now, if O'Connor or Stevens were to resign, well, then it would matter quite a bit if the new Justice will vote to overturn Roe vs. Wade.

Anyway, I think Kennedy has a decent shot at Chief Justice thanks to this hoopla. Bush nominates a pro-lifer to replace Rehnquist, then appeases Democrats by elevating the "moderate" Kennedy to Chief. Prior to this they might have demanded Souter as Chief. Now they'll be content with Kennedy.

|4.11.05 @ 4:38PM|#

BillyRay

Do you ever read the articles you link to?

|4.11.05 @ 4:44PM|#

yep. shore do.

|4.11.05 @ 4:44PM|#

thoreau writes: "...now that he's on the conservative hit list..."

Geez, and all Kennedy did was "err on the side of life."

|4.11.05 @ 4:45PM|#

thoreau, your comments indicate that you think Bush is genuinely motivated to have an anti-aboirtion majority. I don't buy it.

I don't think he's pro-choice, but he hasn't exactly been knocking himself out to outlaw abortion. I don't think he's very interesed in the subject.

|4.11.05 @ 4:49PM|#

If I were Kennedy, I'd be keeping a Bren Ten handy.

But I'm not sure he believes in that kind of stuff.

|4.11.05 @ 4:53PM|#

A "real" Libertarian wouldn't have supported Roe v. Wade. It was a violation of basic federalist principles made possible through perjured testimony.

|4.11.05 @ 4:59PM|#

I agree with thoreau in that Bush will replace Rehnquist with a pro-lifer but might not push as hard if he's replacing a liberal or more moderate. I think Dems have to be relatively happy if they get out of Bush's 2nd term with the Roe v. Wade tilt on SCOTUS the same as it is today.

joe - I think Bush is very pro-life but is letting others play the vocal front men for now. He's been quoted as saying this country isn't ready for Roe v. Wade to be overturned, but I'll bet he tries to tilt SCOTUS in that direction any chance he gets.

|4.11.05 @ 5:04PM|#

"A "real" Libertarian wouldn't have supported Roe v. Wade. It was a violation of basic federalist principles made possible through perjured testimony."

I'm not convinced that we should set abortion policy at the federal level, but I don't see a "real" libertarian position on that issue.

|4.11.05 @ 5:10PM|#

"I don't think he's pro-choice, but he hasn't exactly been knocking himself out to outlaw abortion. I don't think he's very interesed in the subject"

Good point. Let's not forget: Bush isn't a real Christian -- in the sense of being a "true believer" anyway. He had the classic "jailhouse conversion" that inmates often undergo before parole hearings; or in his case, the kind that privileged fuck-ups undergo before their daddies send them out to run for office.

But it's not like he *believes* any of this crap. He just says it.

Since his only purpose for being in office is to serve the oil barons and the defense contractors, he'll do as much as he needs to do to keep the fundies pushing GOP voting buttons, but his lackluster efforts toward promoting the evangelical agenda pretty much tells you where his bread is buttered.

I just wonder if they'll ever realize they were had -- after all, feminists and homosexuals never figured out that Clinton was all talk and didn't do anything for 'em. They're STILL building monuments to the guy; I suspect Bush will get the same treatment, and the fundies will never even realize how bad he picked their pockets.

|4.11.05 @ 5:11PM|#

I read Ms Schlafly's article as linked by Billy Ray. The main thrust is about how the Spokane School district has joined with several other Washington districts to sue the state for not meeting public school funding requirement in regard to special ed. It seems that the state statutes promise that all public ed will be covered by the state, and special ed costs have created a huge deficit. The state won't pay the difference and the districts have sued.

For all her blathering on about "activist" judges, nothing in the case can demonstrate that a judge has used it to raise taxes . In fact, as near as I can tell, it hasn't been inside of a courtroom yet.

|4.11.05 @ 5:14PM|#

A "real" Libertarian wouldn't have supported Roe v. Wade.

I can see finding "a right to privacy" in the shadows of the Constitution and I can see finding that said right is binding on the States. But I think that if you do that you also have to find the rights that are spelled out in plain language in the glaring light of the 1st, 2nd, 4th and 5th Amendments.

|4.11.05 @ 5:16PM|#

But I think that if you do that you also have to find the rights that are spelled out in plain language in the glaring light of the 1st, 2nd, 4th and 5th Amendments.

Aren't those more like guidelines these days?

|4.11.05 @ 5:24PM|#

David at April 11, 2005 05:11 PM

And to put the icing on the cake at the end of the article she reports that one of those "evil" judges (Chief Justice of the Idaho Supreme Court Linda Copple Trout) bitch-slapped the legislature for passing a law that was "an innovative device to enable the legislators to avoid the political consequences of voting to raise taxes."

Neat, of course, that without naming names she identifies the responsible legislators as "liberals". Right I'm sure the "liberals" in Idaho can railroad legislation thru any time they want.

Who's abusing who's authority.

A lot of the judiciary bashing seems rather childish, done by people who blame judges for weaknesses in their cases, or ignorance or the law.

You nailed it right there.

|4.11.05 @ 5:27PM|#

David, it did go to court in Texas, where the appeals court eventually ruled:

>Although we have ruled the school financing system to be unconstitutional, we do not now instruct the legislature as to the specifics of the legislation it should enact; nor do we order it to raise taxes. The legislature has primary responsibility to decide how best to achieve an efficient system. We decide only the nature of the constitutional mandate and whether that mandate has been met.

That's why I was asking for specific cases such as some here have described where the courts raised taxes. I haven't found any. Just pundits claiming they had.

|4.11.05 @ 5:28PM|#

Aren't those more like guidelines these days?

:)

|4.11.05 @ 5:30PM|#

state statutes promise that all public ed will be covered by the state, and special ed costs have created a huge deficit. The state won't pay the difference and the districts have sued.

still doesn't give judges the right to raise taxes. It's up to local or state elected officials.

Who makes education policy�the legislature or the courts?

|4.11.05 @ 5:38PM|#

The judges aren't raising taxes in these cases, merely ordering the state to comply with it's own laws. As these laws are enacted by legislatures(hypothetically at the behest of voters) it's hardly the sign of an out of control judiciary.

If you want to prove facts,link to something beside supposition or opinion.

|4.11.05 @ 5:50PM|#

David, Washington DC pushes all sorts of unfunded mandates on the states whether they can afford it or not. Judges then don't come in and demand revenue be raised in order to comply with those mandates. Come on now.

|4.11.05 @ 6:00PM|#

I remember early in the Clinton era, when Jesse Helms made that comment about how Clinton would have to "watch his back," or some such thing, if he ever went to a North Carolina military base. What IS it about Republicans and their threats against government people they don't like? Kind of gives an ominous cast to the statement "party of smaller government."

|4.11.05 @ 6:08PM|#

Look, the real problem is that legislatures are allowed to pass laws that create "entitlements". What we need is an amendment that outlaws entitlements. No govt. program should be automatic. All should be reviewed each and every legislative session.

I think that real activist judges--those that violate, ignore, or "re-interpret" the law according to the their political beliefs--deserve to be executed for treason, but the fundies can't keep the Constitution and the Bible separate. Thus, their claims of judicial activism usually ring hollow to any rational person.

Geez, BillyRay! Sometimes you have some valid points, but your rightward knee-jerks lead you astray. I've followed Schlafly for years, and she's nothing but a psycho-f**king-nutcase! Don't listen to her! If you want some decent right-wing reading, TechCentralStation.com is much, much more rational. (Hell, they even link to Reason.com, which is something right-wing loons like Schlafly would never do.)

|4.11.05 @ 6:13PM|#

Jennifer,

Kind of gives an ominous cast to the statement "party of smaller government."

LOL!

|4.11.05 @ 6:38PM|#

joe-

I don't think Bush is strongly motivated to ban abortion, but replacing a pro-life Justice with another pro-life Justice isn't exactly rocking any boats yet it still keeps the base happy.

Now, I honestly have no clue what he'd do if O'Connor or Stevens resigns. Sure, Bush himself wouldn't make the decision, his advisors would (and that's not a knock on Bush, since I really doubt many Presidents make these decisions by themselves). Still, it would be a tough decision. They either alienate a key member of their coalition or or alienate swing voters. Either way it's dangerous.

And yes, I know, the proper libertarian position on Roe vs. Wade doesn't fit neatly into either side's categories. I'm not talking about what a pure libertarian would do in an ideal world, I'm speculating on how a real politician might walk a tightrope in the real world.

|4.11.05 @ 6:55PM|#

Contemporary society has this bizare idea of balance of powers they picked up in their high school civics class. The fact is that there really is no balance of power. All of the power resides in and eminates from the legislative branch. Congress has the power to impeach and remove the entire judicial and executive branchs at anytime it so wishes for any reason. If people don't like it, they can take up at the ballot box at the next election. Its a political struggle plain and simple. If the Republicans and their voters are tired of winning elections only see their policies circumvented by judges, they are free to impeach every judge they wish if they can get the votes. People may not like it, but its within their power. To call for the impeachment of judges is not an irresponsible act usurping the power of the judiciary, but the precisely the kind of political debate the founders intended by givng the Congress the impeachment power. Judges are not a pretorian guard immune from the political will of the people. They serve at the pleasure of the people through their representatives in Congress and may be removed by such at any time.

|4.11.05 @ 6:56PM|#

Either way it's dangerous.

...in light that both parties want to be the party in power when that decision time comes!

|4.11.05 @ 7:51PM|#

Hey, kids,

Anyone else notice that Viera wants you to pay $44.95 to buy his vanity-published novel?

I wonder how many of those he has left to unload, and how much the vanity press soaked him for.

|4.11.05 @ 7:54PM|#

"Kennedy along with Ruth Bader should be impeached because they're both on record as saying they no longer only look at the USA constitution when ruling on cases. They consult international law and opinion."

As opposed to the fundies, who want judges to base their rulings on the superstitious scribblings of primitive desert nomads.

|4.11.05 @ 8:55PM|#

More nonsense from the Randroids. Perhaps you'd like to point to one justice on the highest court that bases their decisions on the bible.

|4.11.05 @ 9:14PM|#

BillyRay says: " Perhaps you'd like to point to one justice on the highest court that bases their decisions on the bible."

Thank god, they don't.

But the wingnuts like Schlafly want such people on the bench.

Someone needs to point out that if judges can't consider the laws and opinions and customs of other countries, then they can't consider the Bible, which is the law, opinion, and custom of another country.

|4.11.05 @ 9:39PM|#

David, Washington DC pushes all sorts of unfunded mandates on the states whether they can afford it or not. Judges then don't come in and demand revenue be raised in order to comply with those mandates. Come on now.

Billy Ray,

What does that have to do with your point? I'd agree that D.C. and the need to have a federal program for everything creates more problems, but you were talking about judges independently imposing taxes on the citizenry. It hasn't happened, or at the very least, didn't happen in the links you provided.

In all of those cases, it was the state legislatures who passed laws knowing the courts would have to force them into compliance and could be scapegoated for the result.

|4.11.05 @ 10:06PM|#

What does that have to do with your point?

I think I see the connection. In a way, Billy Ray's reaction to the courts raising taxes is like an unfunded mandate.

|4.11.05 @ 10:37PM|#

Didn't know whether I should expend the energy to respond to this or just let it go. What the hell:

Good to see that BillyRay, Schlafly, and crew got that whole "Culture of Life" memo. How exactly does capital punishment reconcile with that?

It's the whole "innocent" versus "guilty" thing -- a distinction held to be of some significance, by all but the most mush-headed.

|4.11.05 @ 10:40PM|#

"Aug. 6, 1986: "KC rejects school levy increase again".

Nov. 4, 1986: School levy tax increase fails third time.

Nov. 12, 1986: Judge Clark orders most district schools converted to magnet schools.

Jul. 6, 1987: "Judge to order KC desegregation tax"; raised questions of legality in courts? imposition of taxes.

Sept. 16, 1987: "KC school levy nearly doubled". Judge Clark also sets tax surcharge. Reactions to ruling range from "an outrage" to "wonderful".

http://www.umkc.edu/whmckc/Collections/IKC250C.HTM

Granted, these are only headlines, but they do suggest that the judge was ordering the tax increases.

|4.12.05 @ 12:05AM|#

Madison, Jefferson, and Adams would vote to impeach all the current justices except Thomas and perhaps Scalia. Hamilton would probably be happy with the statist Rehnquist. Patrick Henry would be gathering the militia for the second American Revolution.

And many libertarians here, who claim to be the ideological heirs of the founders, only mock the idea of a judiciary constrained to its intended role. It is particularly absurd for libertarians to defend a judiciary that claims for itself the sole role of interpreting the Constitution and that does so in such a unlibertarian manner.
If libertarians favor an imperial judiciary, what hope is there for libertarianism or the Constitution.

What most conservatives want is a Court that will butt out and leave issues the Constitution doesn't address to be left to the democratic process. Principled libertarians would agree.

I think Reason needs more Jefferson and lest Dworkin. Here you go:

It is not enough that honest men are appointed Judges. All know the influence of interest on the mind of man, and how unconsciously his judgment is warped by that influence. To this bias add that of the espirit de corps, of their peculiar maxim and creed, that "it is the office of a good Judge to enlarge his jurisdiction," and the absence of responsibility; and how can we expect impartial decision between the General government, of which they are themselves so eminent a part, and an individual State, from which they have nothing to hope or fear? We have seen, too, that contrary to all correct example, they are in the habit of going out of the question before them, to throw an anchor ahead, and grapple further hold for future advances of power. They are then, in fact, the corps of sappers and miners, steadily working to undermine the independent rights of the States, and to consolidate all power in the hands of that government in which they have so important a freehold estate. But it is not by the consolidation, or concentration of powers, but by their distribution, that good government is effected.... Were we directed from Washington when to sow, and when to reap, we should soonwant bread.
Thomas Jefferson, Autobiography

|4.12.05 @ 12:16AM|#

Stevo writes: "It's the whole "innocent" versus "guilty" thing -- a distinction held to be of some significance, by all but the most mush-headed."

Ah, but the verdict could be in error. It often has been. Best to err on the side of life, right?

That's GOP policy now, is it not?

|4.12.05 @ 12:23AM|#

It's the whole "innocent" versus "guilty" thing -- a distinction held to be of some significance, by all but the most mush-headed.

Good reply... Now pull the hook out of your mouth, and be careful of the barb.

|4.12.05 @ 1:14AM|#

I think I'd rather err on the side of caution in regards to Bush the Younger getting jiggy with the lever of justice.

...I think I'm like Serafina in that I've heard more about what god-awful judges we have than I've seen evidence to show that the judiciary is as bad as its detractors say it is. Maybe I haven't looked hard enough--feel free to enlighten me. But I'd rather see further examples of judicial abuse than have Jefferson wagged in my face like a finger.

I have seen a lot of evidence on one side of this argument; I've seen a lot more about what the Bush administration thinks of the Constitution than I ever wanted to see. I saw the Bush administration take the advice of council and authorize the physical abuse of prisoners; indeed, even after this foolish advice disgraced us all, I saw the very person that gave the President this advice elevated to the office of Attorney General. I saw the Bush administration fight to enact legislation that directly violates the 4th Amendment and enact a law that gives the government the power to forbid people from speaking about the effects of the same law. I saw the Justice Department under the Bush administration force the ACLU--an organization I'm not exactly fond of--take an explanation of their case against the Patriot Act off of their website. I saw the Bush administration hold people without charge, deny people legal council and deny them a trial.

...I don't need the Bush administration to right what's wrong with the judiciary; to my taste, the Bush administration's done enough already. I hope the Democrats, and whomever else jumps on board, fights the Bush administration every step of the way. I'd rather leave the cleaning of the temple to someone with less blood on his hands.

|4.12.05 @ 1:38AM|#

serafina:

MJ pointed out the KC, MO case before I could post, but here's an anti-judge article on it from 1995.

The whole magilla made it to the SCOTUS as MISSOURI v. JENKINS, 495 U.S. 33 way back in 1990.

Kevin

|4.12.05 @ 1:43AM|#

2 things:

1) If DeLay and his friends focused their rhetoric on stuff like judges running school districts then I'd probably have a different reaction. But all they're doing is whining about "Oh, poor us, we can't impose theocracy on the rest of the population!"

Are there aspects of our legal system that need to be changed? Absofrickinlutely. Are there areas in which judges wield too much power? Absofrickinlutely. Are DeLay and his buddies directing their wrath in the wrong directions? Absofuckinlutely!

2) Thomas Jefferson had a dim view of judicial review, but the same cannot be said for all of the Founders. Federalist No. 78 has a discussion of judicial review. It's an excellent read (the same cannot be said for ALL of the Federalist Papers, sadly), but here's a snippet:

A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Now, admittedly, the Federalist Papers are not a legally binding document, nor do they reflect the unanimous views of the Founders. However, the same caveats hold for Jefferson's writings. We can cherry-pick the founding generation to defend almost any viewpoint that we like. The important thing is to recognize that these arguments over the role of judiciary are nothing new, and the Republic has endured despite two centuries of commentators lamenting "activist judges."

Looking at the rest of the world, I'll always err on the side of an independent and vigorous judiciary. It isn't perfect, but it's better than what DeLay and friends are calling for right now. There are indeed problems that need fixing, but I think we should hold off on the Extreme Makeover treatment.

|4.12.05 @ 1:46AM|#

Stevo writes: "It's the whole "innocent" versus "guilty" thing -- a distinction held to be of some significance, by all but the most mush-headed."

Ah, but the verdict could be in error. It often has been. Best to err on the side of life, right?

Are you arguing that because the verdict is sometimes doubtful, there are never instances where it is certain?

I value freedom very highly, and I'm a "better 10 guility men escape than one innocent be punished" kind of guy. But I would not argue "better to err on the side of freedom," and never throw anyone in prison, because "the verdict might be wrong -- it has been in the past."

Admittedly, in recent years, my faith in gov't courts' ability to judge guilt accurately enough to impose the death penalty has been greatly shaken. But I'm not opposed to capital punishment in principle.

I believe it's best rendered by the armed, would-be victim. If you come at me with a knife, and I have a gun, I believe I have a right to kill you if I can. You're guilty of attempted murder.

If I fail, and you succeed in murdering me, and there are multiple eye-witnesses who can testify to that effect beyond a shadow of a doubt, that would probaby be OK too.

That's GOP policy now, is it not?

I think GOP policy nowadays is too often whatever's expedient. I'm not a GOPer.

|4.12.05 @ 1:49AM|#

"that would probaby be OK too" should be "in that case it would probably be OK for the court to sentence you to death." I'm not too cool with my own murder.

|4.12.05 @ 1:59AM|#

The important thing is to recognize that these arguments over the role of judiciary are nothing new, and the Republic has endured despite two centuries of commentators lamenting "activist judges."

I don't want anybody to think that I'm trying to excuse judicial activism. Far from it. The only remedy for judicial activism is constant vigilance by the public, the press, and the other branches of government.

But it's one thing to be vigilant and adhere to the best solutions: Avoid giving judges any excuse to substitute their own judgement for that of the legislature by keeping the laws clearly in compliance with the state or federal Constitution (as appropriate).

It's quite another thing to suggest that we've reached such a state of emergency that the third branch of government must be taken to the woodshed for serious punishment. Anybody who suggests that should, at the very least, be regarded with historically informed skepticism. (After all, such claims are nothing new.)

|4.12.05 @ 8:42AM|#

The conspiracy theorist in me says that the best way to strip the constitution of all its meaning is to destroy those charged with its defense. Without an equal judiciary to strike them, it would be quite easy for all sorts of inane laws to be passed. Is this a pre-emptive strike?

One thing that I think we can all agree on regarding the founding fathers is that they deliberately made our system of government difficult to change. That's why one party can't really do much damage when it has a simple majority. Government works best when it can't get anything done except that which the whole nation regards as necessary .

"in that case it would probably be OK for the court to sentence you to death." I'm not too cool with my own murder.


Stevo,

We need Thunderdome to replace the courts! Two men enter. One man leaves!

|4.12.05 @ 10:30AM|#

Kevin, thanks for the links. I'll check them out.

|4.12.05 @ 11:47AM|#

Above Criticism

NickM|4.12.05 @ 5:25PM|#

I thought I had heard of Edwin Vieira before, but I couldn't remember where. Then I clicked on the link and realized that the story quoting him as an "eminent and premiere expert" was precisely where I had heard of him - it's a column written by Devvy Kidd, who is one of the true moonbats on the right.
And it's very unfair to blame the GOP for him.
http://www.constitutionparty.com/convention/speakers2004.php

Nick