Chief justice urges progress naming judges

X Factor said:

I think what he meant was the way to adapt the Constitution is through properly amending it, not through activist interpretation.

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I know what he meant, he just needs to learn a lesson, that's all...

X Factor said:

We haven't been able to take it back in 30 years. This is why we want people on the bench who interpret what the Constitution actually says, not what they think the founding fathers meant to "imply".

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Agreed, judical activism is a big cluster****, IMO

GPS_Flex said:

I couldn't disagree more. “Legislating from the bench” occurs when a court overreaches its Article III constitutional authority and creates law. Do you deny this occurs?

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Rarely at most. It is still a code phrase for an interpretation you disagree with. It is used most by those who understand the rulings least as well.

Dezaad said:

I still like my system better, but considering your system: I believe there ought to be consensus of the people about nominees. The presidency alone is not an office best representative of the consensus. I would prefer a system which requires a consensus which does not default to the power devolving to a partisan, namely the president. That is really the root of the problem being addressed here. Your solution, while solving the problem of facilitating appointment for it's own sake, at the same time increases the partisanship. Can you think of a way to avoid this, in the context of your suggestion?

As it stands, I don't see your suggestion as doing anything at all to restore confidence in the Judiciary.

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It's not meant to restore confidence in the judiciary. Rather, it's meant to force Congress to man the **** up and do their jobs. And if they don't because of partisan bickering, then it'll go to the President to do their jobs for them. And if the President does becomes the one to appoint certain seats, then it's not his fault - it's Congress' fault for not doing their jobs.

GPS_Flex said:

No and no. The constitution isn’t vague, it just isn’t being amended and updated as often as it should be. Do you have a credible source for these “founding father intentions”?

It isn’t an evolving document either, except for the evolutions resulting from amendments.

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Of course it is evolving, and has evolved since it was written.

jamesrage said:

I want judges who will not reinterpret the laws and constitution based on their political beliefs.They should only literally interpret the laws and the constitution based on the views of those who wrote the laws and constitution. So that clearly means nobody who thinks the constitution is a living document that can be "reinterpreted" instead of going through the amendment process to add,remove or restrict rights.So that clearly means no liberal judges.

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What reinterpretations are you referring to? Be specific please.

samsmart said:

It's not meant to restore confidence in the judiciary. Rather, it's meant to force Congress to man the **** up and do their jobs. And if they don't because of partisan bickering, then it'll go to the President to do their jobs for them. And if the President does becomes the one to appoint certain seats, then it's not his fault - it's Congress' fault for not doing their jobs.

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I guess I think it is more important to restore confidence than to see appointments simply accomplished... No matter who we can blame. I'd like to see a self regulating system that increases more people's confidence that judges are interpreting the law with less partisanship. The founders envisioned a weaker, non-partisan executive and failed in both aims. We should adjust the system according to the reality, while not exacerbating the current problems.

Bodhisattva said:

the BOR evolves... yeah, got it. And why did you say no to me then, eh? How does what I say merit your no when you go on to say what I said almost word for word, top that off with your near contradiction and we aren't gettin' very far, are we.

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It’s pretty simple actually. You said:

It was intended to be an evolving document that is why there is so much room for interpretation... the BOR especially

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Your definition of “evolve”, as it relates to the constitution, is wrong if you think it was left intentionally vague to allow for liberal interpretations thereof. Why would the founders provide for amendments to the constitution if they intended to give judges the power to amend it?

Redress said:

Of course it is evolving, and has evolved since it was written.

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Only through amendments. The only legal evolution of the constitution that has occured has been through the amendment process.

Redress said:

What reinterpretations are you referring to? Be specific please.

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Roe v wade comes to mind

GPS_Flex said:

Only through amendments. The only legal evolution of the constitution that has occured has been through the amendment process.

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This would be false, as any number of rulings by SCOTUS and lower courts show.

GPS_Flex said:

Roe v wade comes to mind

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So the problem is that activist judges are ones that you disagree with. Thank you for proving my point.

Redress said:

So the problem is that activist judges are ones that you disagree with. Thank you for proving my point.

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Redress, what if a conservative judge ruled that legislation permitting same sex marriages was unconstitutional and used some contorted logic to justify it? The reason you don't understand the objection is that virtually all judicial activism benefits your political lean.

X Factor said:

Redress, what if a conservative judge ruled that legislation permitting same sex marriages was unconstitutional and used some contorted logic to justify it? The reason you don't understand the objection is that virtually all judicial activism benefits your political lean.

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The problem still is that people only use activist judge and legislating from the bench claims for rulings that don't fit their personal ideology. The problem is not with the judges but with the people making the claim. That is the reality of the situation, not some made up thing.

Dezaad said:

I guess I think it is more important to restore confidence than to see appointments simply accomplished... No matter who we can blame. I'd like to see a self regulating system that increases more people's confidence that judges are interpreting the law with less partisanship. The founders envisioned a weaker, non-partisan executive and failed in both aims. We should adjust the system according to the reality, while not exacerbating the current problems.

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Errr, no.

It's not that I want to see appointment simply accomplished - I, too, want worthwhile members to get appointed to the judiciary. However, the major reason why judgeships go unfilled is because there's no consequence to the Senate for not filling appointments. This means that the judiciary itself suffers, and Congress doesn't care because it doesn't affect them, and they profit to their partisan base by being hard-liners on every judicial appointment.

So we give the Senate the chance to make appointments. If they perpetuate their partisan hackery for their own benefit and refuse to compromise on a position then it goes to the President to fill.

It gives the Senate full control over appointments, and only over to the President if they cannot come up with a consensus. That's not outside the line of political thinking, as the reason why the President is both head-of-government and head-of-state is so that the President can take charge during issues in which Congress is at loggerheads. It's also within the realms of checks and balances.

This also takes into account practical realities. For one, no matter which judges get appointed, somebody will object to them. So there's no real way to build up the people's confidence in the judiciary as, no matter what position they hold, their rulings will piss somebody off.

Therefore, I say we just give the Senate a chance to make those appointments, and if they become unable to then it goes to the President.

X Factor said:

Redress, what if a conservative judge ruled that legislation permitting same sex marriages was unconstitutional and used some contorted logic to justify it? The reason you don't understand the objection is that virtually all judicial activism benefits your political lean.

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No. All judges are activists to the other side, whether they like it or not, whether the people like it or not.

And if a conservative judge ruled against legislation permitting same sex marriages, then leftists would do the same thing rightists would do - campaign on it.

That's the way it's always been, that's the way it is, and that's the way it will always be.

samsmart said:

Well, I'm not going to get into which acts of who violated it - I'm just stating that the Supreme Court, and other courts, has the power of judicial review to ensure that Congress does not violate the Ninth Amendment as they interpret it.

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You argue the ninth amendment by taking it out of context. The ninth amendment was about limiting the power of the Federal government. The intent of the ninth amendment was NOT to have the Federal government gain power by inserting itself into arguments regarding powers that are not specifially enumerated by the Constitution.

James Madison said:

It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

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In actuality, the ninth and tenth amendments go together, in limiting the power of the Federal government, which was the intent of the framers of the Constitution. Madison himself was directly responsible for the inclusion of the ninth amendment into the Constitution, and again, it was based on limiting the power of the Federal government, not expanding it, as you claim.

In practice, SCOTUS has the power to strike down any law that violates the constitution (judicial review), but does not have the power to strike down ANY law which does not explicitly violate the Constitution. Thus, other non-enumerated rights are reserved for the states and the people, and the Federal government has no power to regulate them.

Also, judical review has absolutely nothing to do with the ninth amendment, but everything to do with the Marbury v. Madison decision in 1803, in which the Supreme Court struck down part of the Judiciary Act of 1789 as unconstitutional, thus providing a judicial foundation for the practice. The decision was so controversial at the time that SCOTUS did not engage in judicial review again until the Dred Scott decision in 1856.

The problem is simple. One side, the left sees the Constitution as a living breathing document that can change with the times through the courts, and appoints judges that tend to view it this way. The right sees the Constitution as alterable only through amendments and should be read as written and chooses judges that tend that way.

The two views are NOT compatible. There has ALWAYS been clashing over this.

I think the first, and most well known case of these two views clashing in a nasty, public way was the nomination and subsequent "Borking" or Robert Bork. It's gone down hill really, since then.

I have a solution to the tit for tat mentality that our legislators have when appointing judges. Take that ability away from them.

In our justice system every defendent can be judged by their peers. aka Jury. If this is good enough to convict someone for rape and murder where they can get the death penalty then it should be good enough to nominate judges to the Supreme Courts. And with today's technology it would be a simple matter to make it a jury pooled nationally so as to attempt to avoid partisanship.

1: Randomly select jury pool. (to make sure they have at least some intelligence we could make the selection process based off of high school diplomas instead of drivers license like most places) 1 jury panel per judge.

2: Those that were selected must report to a specific local to deliberate with the rest of the selected Jury members. All of their expenses will be paid for while they are deliberating, transportation shall be provided via private government jet/car. They will be paid based on their current salary at their current job so as to not lose anything so that their bills can be paid. Just like a regular jury the place that they work for cannot fire them.

3: During deliberations the prospective judge will be made available to answer questions posed by the jurors.

4: All of the Judges education history and case files must be made available to the Jurors. Any and all opinions that the Judge wrote or said in public on specific case files must also be made available.

5: Jurors will be allowed to contact family members during this time but no one else.

6: No one except emergency personel and assigned security detail may get within 100 feet or call a jury member from the moment that said jury member is selected.

7: Jurors have a maximum of 6 months to decide if the judge they were reviewing is acceptable or not. If no decision can be made then judge is automatically rejected and the jurors must pay back all that was paid out due to any and all expenses incurred by jurors. This is to prevent people from taking advantage of the system. The amount jurors must pay back can be adjusted or nulled based on unavoidable circumstances, a regular court can decide this on a case by case basis.

8: When judging whether a judge should be allowed or not the decision must come from a unanimous decision, less one.

9: Each jury panel will be assigned a security detail (at least 2 security people per juror). The panel will also be assigned a lawyer from the highest rated university and law firm in the country. IE the lawyer must be from both. If that is not possible then the lawyer must be from the highest rated university and second highest rated law firm in the country or visa versa. On down the line if needed.

Please note that this is just a SUGESTION. I won't care if it gets clipped or improved on or totally thrown out. But if it is thrown out then perhaps you could also take the time to present your own idea instead of just being negative to an idea that was put out? I also thought up a couple more possible ideas while I was writing this one. So its not like there are not possibilites out there.

Another suggestion...and probably simpler...maybe even better?

A panel made up of contitutional historians and lawyers decide. Set up rules that they must follow at all times. Make sure there are punishments for taking any bribes and or gifts from lobbiests and politicians. They get audited every 6-12 months to make sure that they are not taking bribes/gifts.

danarhea said:

You argue the ninth amendment by taking it out of context. The ninth amendment was about limiting the power of the Federal government. The intent of the ninth amendment was NOT to have the Federal government gain power by inserting itself into arguments regarding powers that are not specifially enumerated by the Constitution.

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But then we get into things such as the right for gays to marry vs. the right for marriage to be defined by religious organizations. The Constitution doesn't explicitly give gays the right to get married, but then again neither does it explicity give religious organizations the right to define marriage. That's why we have the Ninth Amendment - so the Supreme Court can rule on which side has the unenumerated right.

samsmart said:

But then we get into things such as the right for gays to marry vs. the right for marriage to be defined by religious organizations. The Constitution doesn't explicitly give gays the right to get married, but then again neither does it explicity give religious organizations the right to define marriage. That's why we have the Ninth Amendment - so the Supreme Court can rule on which side has the unenumerated right.

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wrong wrong wrong: when the BOR was penned, the concept of judicial review was not even a certainty. The reason for the 9th was due to the dispute between "Federalists and anti-Federalists" Some founders did not think a BOR was needed because in their view the Federal government only had the powers SPECIFICALLY delegated to it by the Constitution and it was thus OBVIOUS that the people and the several states retained all powers and rights not specifically given the federal government. Others wanted something like the BOR but obviously all of those inalienable rights could not be listed.

MrVicchio said:

I think the first, and most well known case of these two views clashing in a nasty, public way was the nomination and subsequent "Borking" or Robert Bork. It's gone down hill really, since then.

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Well, the Senate has alwas had the power to confirm judges. It's just it wasn't until Robert Bork that the Senate really asserted that authority. Before then, the Senate was just basically a rubber stamp for the President's nominees. It was only after Bork that federal judicial appointments became so politicized.

Now, on one hand I like that the Senate started exerting it's authority in scrutinizing federal judicial appointments. They have that power in the Constitution, and the Founding Fathers did it as a check on the powers of both the President and the Supreme Court.

However, it should not be overly politicized as it is. This is the probably when the Senate suffers no ill consequences for dragging their feet. Provide such ill consequences (don't pay them until all appointments are made, or give them the power to make appointments but if they don't do it under the deadline give the power to the President) and it'll light a fire under their asses to get the job done.

TurtleDude said:

wrong wrong wrong: when the BOR was penned, the concept of judicial review was not even a certainty. The reason for the 9th was due to the dispute between "Federalists and anti-Federalists" Some founders did not think a BOR was needed because in their view the Federal government only had the powers SPECIFICALLY delegated to it by the Constitution and it was thus OBVIOUS that the people and the several states retained all powers and rights not specifically given the federal government. Others wanted something like the BOR but obviously all of those inalienable rights could not be listed.

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...which is exactly what I've been saying, and why we have both the Ninth and Tenth Amendments...

samsmart said:

...which is exactly what I've been saying, and why we have both the Ninth and Tenth Amendments...

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your error was suggesting that the 9th and 10th amendments were designed to allow courts to "create rights" while that has happened that certainly was not the intent