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Chief justice urges progress naming judges

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

Well, not quite.

What I'm saying is that the 9th was designed to allow courts to protect unenumerated rights, which was the intent just from the language of the 9th.
 
Well, not quite.

What I'm saying is that the 9th was designed to allow courts to protect unenumerated rights, which was the intent just from the language of the 9th.

so judicial review was what you claim the founders had in mind when that amendment was adopted?
 
Well, not quite.

What I'm saying is that the 9th was designed to allow courts to protect unenumerated rights, which was the intent just from the language of the 9th.


Well, that's not quite what you said either....You said -

That's why we have the Ninth Amendment - so the Supreme Court can rule on which side has the unenumerated right.

That suggests that the SC has the power to grant, or not grant rights....This would fundementally be wrong.


j-mac
 
"Legislating from the bench" is simply a code phrase for "ruling I don't like". It has pretty much zero meaning.

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?

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

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

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

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

You are playing semantics here while coming full circle and contradicting yourself. You say there is no such thing as “legislating from the bench”, then you say the constitution is supposed to “evolve” through judicial interpretation???
:failpail:


I really don’t care what you call it and I really don’t care if SCOTUS has done it in the past. If the SCOTUS makes de facto changes to the constitution, that is “legislating from the bench” and it is subversion of the constitution. Maybe we can agree on some basic principles though.

Would you agree that all power not delegated to the federal government was, and still is, reserved to the states and the people?

Do you agree that the framers of the constitution intended to have the judicial branch of government remain as non-political as possible?
 
Well, that's not quite what you said either....You said -



That suggests that the SC has the power to grant, or not grant rights....This would fundementally be wrong.

No. SCOTUS doesn't have the power to grant or not grant rights. Rather, they have the power to clarify rights since the Constitution admits it does not exhaustively list all rights people have.
 
You are playing semantics here while coming full circle and contradicting yourself. You say there is no such thing as “legislating from the bench”, then you say the constitution is supposed to “evolve” through judicial interpretation???
:failpail:


I really don’t care what you call it and I really don’t care if SCOTUS has done it in the past. If the SCOTUS makes de facto changes to the constitution, that is “legislating from the bench” and it is subversion of the constitution. Maybe we can agree on some basic principles though.

Would you agree that all power not delegated to the federal government was, and still is, reserved to the states and the people?

Do you agree that the framers of the constitution intended to have the judicial branch of government remain as non-political as possible?

SCOTUS is not making defacto changes to the constitution. They are interpreting the constitution. This is a large, unsubtle difference. The only people who cry and whine about legislating from the bench and activist judges are those who disagree with how the judges interpreted the constitution.
 
No. SCOTUS doesn't have the power to grant or not grant rights. Rather, they have the power to clarify rights since the Constitution admits it does not exhaustively list all rights people have.

I agree completely. There is no such thing as a constitutional right. They are God given rights. The only rights that the constitution grants are the powers granted to the federal government by the people.
 
I agree completely. There is no such thing as a constitutional right. They are God given rights. The only rights that the constitution grants are the powers granted to the federal government by the people.

Or, rather than God-given rights, natural rights.

However, sometimes natural rights interfere with each other, such as freedom of speech vs. freedom for public safety (yelling "fire" in a theater). For this, we have the Supreme Court to balance those rights through the rulings they make.
 
SCOTUS is not making defacto changes to the constitution. They are interpreting the constitution. This is a large, unsubtle difference. The only people who cry and whine about legislating from the bench and activist judges are those who disagree with how the judges interpreted the constitution.

You are talking in circles again. Please provide a link to your earlier referenced rulings by SCOTUS that show how the constitution evolves in ways other than the amendment process. Maybe then I’ll get a better idea of where you are actually coming from.

As for “the only people who whine and cry”…: To interpret is to tell the meaning of something. If we ask the courts to interpret the word “dog” into Spanish and the court, being dominated by cat loving dog haters, tells us that it means “el gato” (the Spanish word for cat), they have clearly, and intentionally, not interpreted the word “dog”. Now, if this court is the final arbiter on the Spanish and English languages, they have superseded the previous meaning of the word and created a new definition.

This would be de facto legislation because only congress has the power to create new words or redefine old ones. It would be a different story if there were numerous Spanish words for dog and the courts didn’t choose the one I preferred.

So, in summary, when a judge knowingly misinterprets, redefines or creates something new where there was nothing, in an effort to affect an outcome that is contrary to what the constitution clearly says, that is an act of legislating from the bench and, as our friend danareah has so eloquently pointed out already, those judges should hang up their robes and go run for political office.
 
Or, rather than God-given rights, natural rights.

However, sometimes natural rights interfere with each other, such as freedom of speech vs. freedom for public safety (yelling "fire" in a theater). For this, we have the Supreme Court to balance those rights through the rulings they make.

I don't have a problem with that. God given or Natural given, either one works for me.
 
Chief justice urges progress naming judges - Yahoo! News



I don't agree with Roberts often, but when he is right, he is right. This is not a republican or democrat issue. Both do it. It is also a fairly important issue. We need to get enough judges out there as people do have a right to timely justice. We have to stop playing petty politics with every god damned thing and start working to do what is right. This is true for republicans and democrats alike.

I know a lot of republicans want to block pretty much everything Obama does... but I seriously doubt the people in their districts are keeping track of all their votes and will look up their votes on stuff like this. I really don't understand why they think this crap going to help or benefit them... it's just politics like you said.
 
No actually it is a Republican vs. Democrat issue. During the pre-9/11 period of the Bush Presidency, the Democrat minority did nothing but stonewall all of Bush's judicial picks.
 
It’s pretty simple actually. You said:

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?

ahhh... you said "results from Amendments", yeah, that was pretty clear, my bad.

I take it that you think that freedom of speech applies only to speech then, and not expression? That one could yell "bomb under my seat" in a darkened movie theatre too? It says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech".

So, making a law against hate speech is unConstitutional, right?
 
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

I believe you two are wrong for focusing on the 9th and 10th amendments. For example, the "right to privacy" was found to be a form of substantive due process. It is part of the 14th amendment. This is also true when applying any form of the bill of rights to states.
 
Those Republicans who vote to confirm any Obama judicial nominations must figuratively die a political death. Cooperation means death.

It's that kind of backwards thinking that is ruining this country.
 
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.

But the political reality is that even if the Senate makes the appointments themselves, they will do so in a partisan fashion. If we require a supermajority in an attempt to combat this, they will (in keeping with their partisan nature) simply not reach consensus, and it will go to the President, who will appoint partisan judges according to his ideology. The system you are proposing, at best, perpetuates a continuing polarization of the judiciary. The more likely outcome would be even further polarization, and even fewer people trusting that Judges are simply doing their best to interpret the law. People haven't lost faith in the judiciary because judges aren't getting appointed, but rather because when they are being appointed it is in a partisan fashion. Your proposal doesn't do anything at all to address that partisanship.

You mention that there will always be critics. I am under no illusion that we will achieve universal consensus. I do believe, however, that we can ignore the fringes on both sides, and achieve consensus of the reasonable people. Right now, it is the reasonable people who believe that the judiciary is getting worse, and I side with them on this.

To add to what I originally proposed, a panel of experts, if you will, is more qualified to nominate Judges than either the President or Congress. The President and Congress both are political, partisan animals by nature, and are not distanced enough from the fray to make objective choices. Unlike the other branches, members of the judiciary are legitimized by their expertise and their known ability to interpret the law.
 
Interesting, I give a couple of good suggestions to this problem and not one single peep about them..instead the partisan arguement continues as if my suggestions didn't even register. :p
 
So the problem is that activist judges are ones that you disagree with. Thank you for proving my point.

Activist judges, are ones that legislate from the bench. The reason that most of the judicial legislating we see is in support of the Liberal agenda, is because it's typically the only means that the left has at it's disposal to forward it's agenda, because of the rejection of that agenda, by the American people.
 
Interesting, I give a couple of good suggestions to this problem and not one single peep about them..instead the partisan arguement continues as if my suggestions didn't even register. :p

Which page are your suggestions on? I missed them...
 
I would just like to interject at this time that, as I have thought further about the problem, I have realized that the root of the issue is not really even partisanship. It is the very existence of divergent interpretive philosophies that people think lend greater power to their own political ideology. It is probably impossible to determine which philosophy the founders intended. Indeed, I can imagine that even they had different ideas about which philosophy was appropriate.

This is unfortunate, because it sets up a vague system where no one really knows what is correct, which in turn is the cause of the descent into our current politicization of any attempt to interpret. If we could know the appropriate philosophical approach, people of all political stripes would know their proper role in trying to change or preserve things.

For example, if the Constitution is meant as a set of principles who's spirit is to be interpreted according to the times and context in which the occasion for interpretation arises, then people who object to the interpretations of Judges would know that the only proper way to change things is through amendments which set specific limits or boundaries to that interpretive power.

On the other hand, if the Constitution is meant as a sort of higher set of specific laws, written in a precise manner and meant to refer to a more static context, then the proper way to change things would be through amendments which change the Constitution according to the unforeseen changes in sensibilities and circumstances.

If it was written into the Constitution itself which approach was proper, it would clarify the powers of the judiciary. I think this is really what is needed, much more fundamentally than anything else.
 
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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.

That's a terrible idea. None of those people are answerable to the American people, which means that the will of the people wouldn't be served.

The partisan manner in which judges are appointed is essential. It helps to prevent nutjob judges--right or left--from taking the bench. It's a part of the whole checks and balances thing.
 
That's a terrible idea. None of those people are answerable to the American people, which means that the will of the people wouldn't be served.

And if the will of the people is unconstitutional?
 
And if the will of the people is unconstitutional?

The point is, we can't have a group of people who answer to no one, appointing Federal judges. The, "will of the people", is what our government is responsible to.

That's why the Constitution starts out, in big bold letters, "WE THE PEOPLE".
 
That's a terrible idea. None of those people are answerable to the American people, which means that the will of the people wouldn't be served.

The partisan manner in which judges are appointed is essential. It helps to prevent nutjob judges--right or left--from taking the bench. It's a part of the whole checks and balances thing.

SCOTUS Judges are not answerable to the American people either. When they are put into their position they are there for life except on two conditions. They retire. They are "impeached", and when was the last time a judge was impeached?
 
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