Friday, May 9, 2008

On Judicial Appointments

On May 7th, the New York Times published an editorial titled "It's About the White House." Ironically enough, the editorial was not about the White House, but about what's really at stake in trying to win the White House... judicial appointments. 

It's no secret that the NYT editorial board and I don't quite see eye to eye, but I (loving to argue even in my own head) had a field day with this particular piece. About the only thing I agree with them on in the entire article is that the presidential race is really all about who will be appointing the next Supreme Court justice. Four of the currently sitting justices are over the age of 70, making it quite likely that the next president of these United States will be appointing at least one judge to the highest court in the land. John Paul Stevens is 88. Antonin Scalia is 72. Anthony M. Kennedy is 72. Ruth Bader Ginsberg is 75. Steven G. Breyer is just 70. 

It is apparent that there are people who think the United States would be better served by having Hillary Clinton and/or Barack Obama choose the next Supreme Court nominees. The idea of that gives me the creeps... but I digress.

According to the editorial:

Mr. McCain predictably criticized liberal judges, vowed strict adherence to the Founders' views and promised to appoint more judges in the mold of Chief Justice John Roberts and Justice Samuel Alito. That is just what the country does not need.

I beg to differ. That is exactly what the country needs. A common sense understanding of the separation of powers is a breath of fresh air!

Since President Bush chose Justices Roberts and Alito, the Court has ordered Seattle and Louisville to scrap voluntary school integration, protected employers who illegally mistreat their workers, and constrained women's right to choose and voters' right to vote.

Only the New York Times could think of the programs in Seattle and Louisville as "voluntary." If I recall correctly, it was the parents who were suing because the program was anything but voluntary, and their children were being bussed far away from their homes in an attempt to "integrate." The word voluntary suggests that people are choosing something of their own volition... so calling that particular program voluntary is somewhat like suggesting taxes are voluntary because you're only required to pay them if you're earning money. If you choose to work, you're obviously making the choice to pay the tax.

The employers who were "protected" were not protected by the Supreme Court, but by the law. The law allowed the woman who was suing a certain amount of time in which to sue. She went past that time, and the court ended up saying no to her lawsuit on that technicality. You can hardly denounce the justices for following the law as it was written.

In 2007, the court held that the Partial Birth Abortion Ban that was passed by congress and signed into law by President Bush in 2003 does not violate a woman's constitutional right to an abortion. The law bans a particular procedure, not abortion in general. I've probably stated this before, but passing a law that will make people feel better without actually accomplishing anything but a procedural ban is pointless. I suppose the pro-lifers felt they were paving the way for further restrictions, but the law generally doesn't do anything to protect life. You can still kill the baby, you just can't kill it that way.

As for the voting rights accusation, it's too fuzzy for me to answer. How in the world has the Supreme Court "constrained" a voter's right to vote?

 There was a moment when we were briefly cheered. Mr. McCain declared that "all the powers of the American presidency must serve the Constitution and thereby protect the people and their liberties." We hoped that would be the start of a serious critique of how President Bush has violated cherished civil liberties: endorsing torture, ordering unlawful domestic spying and depriving detainees of the most basic right of habeas corpus. Mr. McCain himself has eloquently criticized Mr. Bush's policies on some of these issues, but he did not raise any of them on Tuesday.

I've got to admit I think it's a hoot that the NYT flat out says they were somewhat cheered up when they thought McCain was going to roundly criticize President Bush. Their glee was short lived, however, when they didn't get to hear him denounce the president -- and didn't get to hear the McCain opinion on torture yet again. Too funny.

The NYT then goes on to say that the metric used by the super-delegates at the Democrat's convention should be "the candidate best able to explain to voters in the coming days what is truly at stake in this election and why the country cannot, for example, afford another president committed to packing the courts with activist, right wing judges."

Hmmm... funny how the "progressives" are trying to steal the verbiage from the conservatives on judges. Nobody likes an "activist" judge!! Of course, depending on what view you hold you may think they're activist or not activist now. It's all about blurring the lines, right? 

McCain's comment on judicial appointments? "The duties and boundaries of the Constitution are  not just a set of helpful suggestions. they are not just guidelines to be observed when it's convenient and loosely interpreted when it isn't. In federal and state courts... there are still men and women who understand the proper role of our judiciary, and I intend to find them and promote them... My nominees will understand that there are clear limits to the scope of judicial power."

Barack Obama's comment on judicial appointments? "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old - and that's the criteria by which I'll be selecting my judges." Well, now. If you're searching for a benevolent dictator, you may be looking for somebody with those empathetic qualities... an "Aw, shucks" sort of guy who will smooth out the rough edges and make life smell pretty again. But a judge? I think you're better off sticking with somebody who will follow the law and leave the legislating up to those we elect to legislate. That's the point of separation of powers!

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