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Thread: Justice Edith Clement

  1. #1
    sub specie aeternitatis Pete Hanlin's Avatar
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    Justice Edith Clement

    Judge Clement is apparently one of the top contenders for a Bush nomination. This quote comes from a previous interview with Clement:
    The thought of Clement on the bench also has eased fears among abortion-rights advocates. She has stated that the Supreme Court, "has clearly held that the right to privacy guaranteed by the Constitution includes the right to have an abortion" and that "the law is settled in that regard."
    Now, you might think the pro-abortionist lobby would be pleased with this- it certainly seems as clear an indicator that a potential SCJ would not overturn the status quo. Ah, but this is assuming a certain level of reasonableness and a capability for rational thought. Following is a quote from NARAL...
    Still, Nancy Keenan, president of NARAL Pro-Choice America, said that Clement's record raises "seriously troubling" questions about her commitment to protecting personal freedom. "Unless she was able to put those concerns to rest in Senate hearings, pro-choice Americans would oppose her nomination," Keenan said.
    I further note that Sen. Kennedy- when asked about the President's consulting with Senators (which is what they have been crying, begging, and whining for)- says something to the effect of "consulting is a two way street- we would expect him to heed our advice." Um, I believe consulting is limited to giving input. If your party had actually WON the last election of the executive branch, you might have a bit more authority in suggesting. As it is, be happy you were asked and go back to your bottle of Bacardi! Geesh!

    Anyway, based on her other decisions- which indicate she tends to refrain from legislating from the bench- I would be happy with this nominee (I suspect many from the right would not be). Let's see if the Dems can manage to leave well enough alone (after all, they confirmed her 99-0 during her last nomination- it would be hard to understand what might have changed since then).
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    Pomposity! Spexvet's Avatar
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    Pete,

    My take is that Nancy Keenan feels that Judge Clemens "record" is not consistent with her "words". I don't know whether she's right or wrong about it, but I DO know that it can happen.
    ...Just ask me...

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    sub specie aeternitatis Pete Hanlin's Avatar
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    Who gives a flying leap what Nancy thinks? The judge is on record as stating that she feels there is an established right for a woman to elect to have an abortion. This nonsense about "clearing a nomination on the abortion issue" is so much garbage. The nominee is either fit to be a SCJ or not- whether s/he feels that abortion should be a right or not is not at issue to determine the competency of the nomination. That goes for activists on BOTH sides of the issue.

    My question remains... if the President nominates Judge Clemens- which he may do this evening- why should the American public expect anything other than a relatively smooth confirmation to follow? If this does not occur, I would ask the Democrats who take issue what has changed since their earlier unanimous confirmation.

    If I were Nancy Keenan, I would consider anyone other than a decidedly pro-life nomination to be "as good as I'm going to get-" especially since the President has substantial majorities in both sides of Congress and a base on the right that will be expecting a conservative nomination.
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    Pete:

    The reason the public should expect other than a smooth confirmation can be answered in a single word: Democrats!

    If Bush were to nominate the most liberal judge from the 9th circuit, he would still be opposed because Bush nominated him. And you can bet the nominee will not be from the 9th circuit.

    Chip :D

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    Master OptiBoarder OptiBoard Gold Supporter Judy Canty's Avatar
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    Quote Originally Posted by chip anderson

    The reason the public should expect other than a smooth confirmation can be answered in a single word: Democrats!
    Oh please, spare me...any thing, and I mean anything to take the spotlight off Karl Rove.

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    sub specie aeternitatis Pete Hanlin's Avatar
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    Well, the President went with Judge Roberts. Let the BS begin...

    Senate Minority Leader Harry Reid, D-Nev., said he would not prejudge Roberts' nomination. "The president has chosen someone with suitable legal credentials, but that is not the end of our inquiry," Reid said. "The Senate must review Judge Roberts' record to determine if he has a demonstrated commitment to the core American values of freedom, equality and fairness."

    Um, Senator- are you saying no one has looked into the judge's committment to the "core American values of freedom, equality, and fairness" in his past appearances before the judicial committee or the Senate during confirmation hearings? If not, I think someone is guilty of gross negligence. Get over it, even members of your own party are stating this guy is one of the more "moderate" choices the President could have made. Now, do your job, confirm the guy, and end all the ballyhoo. Once you said he has suitable legal credentials, you said he should be confirmed- period.
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    Objection! OptiBoard Gold Supporter shanbaum's Avatar
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    Quote Originally Posted by Pete Hanlin

    Once you said he has suitable legal credentials, you said he should be confirmed- period.
    I don't know where you get that idea, Pete. The Constitution unambiguously gives the Senate an equal say in the appointment of justices ("he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... Judges of the supreme Court").

    What makes you think that the prerogative has shifted to the president? Perhaps there is some line of cases I've missed, which augments the Constitution in a way of which I'm not aware?

  8. #8
    Objection! OptiBoard Gold Supporter shanbaum's Avatar
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    Damned Obstructionists

    Quote Originally Posted by chip anderson

    The reason the public should expect other than a smooth confirmation can be answered in a single word: Democrats!
    There's no question about it, Chip, the mere existence of an opposition party creates complications for the majority party that just otherwise wouldn't be there.

  9. #9
    Master OptiBoarder chm2023's Avatar
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    Quote Originally Posted by Pete Hanlin
    Well, the President went with Judge Roberts. Let the BS begin...

    Senate Minority Leader Harry Reid, D-Nev., said he would not prejudge Roberts' nomination. "The president has chosen someone with suitable legal credentials, but that is not the end of our inquiry," Reid said. "The Senate must review Judge Roberts' record to determine if he has a demonstrated commitment to the core American values of freedom, equality and fairness."

    Um, Senator- are you saying no one has looked into the judge's committment to the "core American values of freedom, equality, and fairness" in his past appearances before the judicial committee or the Senate during confirmation hearings? If not, I think someone is guilty of gross negligence. Get over it, even members of your own party are stating this guy is one of the more "moderate" choices the President could have made. Now, do your job, confirm the guy, and end all the ballyhoo. Once you said he has suitable legal credentials, you said he should be confirmed- period.

    I think this looks like a solid choice--excellent credentials, a man of significant intellectual gravitas--and happily a mainstream conservative, not a right wing loony. Having said that, the bar is higher for a SCJ than an appeals court judge. The Senate has a responsibility to evaluate the guy in the traditional fashion, meaning public hearings.

    Looking at this from a purely partisan POV, the Dems would be wise to confirm this man quickly (assuming nothing draconian is uncovered, cannibalism, stuff like that;) ); that way, should another judge retire while W is President, and his next nominee is a right wing loony, the "Democrats as obstructionists" line won't stick.

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    What's up? drk's Avatar
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    True or false: We're really all talking about abortion, here?

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    Objection! OptiBoard Gold Supporter shanbaum's Avatar
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    Quote Originally Posted by drk
    True or false: We're really all talking about abortion, here?
    False.

  12. #12
    What's up? drk's Avatar
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    Are we arguing over what the Constitution's essence is: a fixed reference point or a guideline that should be consulted?

  13. #13
    Objection! OptiBoard Gold Supporter shanbaum's Avatar
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    Quote Originally Posted by drk
    Are we arguing over what the Constitution's essence is: a fixed reference point or a guideline that should be consulted?
    I don't think that's the question, either. There are lots of opinions about what the Constitution constitutes.

    There is the Scalia-Thomas position, which holds that the Constitution's meaning is fixed at the time of its ratification, and at the times of the ratifications of each amendment. "Cruel and unusual punishments" are those that the people who ratified the Constitution would have found "cruel and unusual". The "blessings of Liberty" are precisely those blessings - that is to say, those "privileges and immunities" - that were believed to be enjoyed in 1789. The implications of "equal protection of the laws" are those that the writers of the 14th Amendment would have foreseen in 1868.

    Then there's the basically-everyone-else position (at least in terms of recent justices, which is to say, the "mainstream" view), which is that the Constitution's imperatives and limitations must be constantly reconsidered. For example, there is no question that the writers of the 14th did not see segregation as violative of equal protection - just as there's no question that from a modern perspective, it was, and is. And what was seen as "cruel and unusual" in one century may not be so viewed in another. Under this view, it can be said that the Constitution comprises priniciples which require reinterpretation, and not simple statutes that can be "observed". If reinterpreation is not possible, the Constitution will simply become disconnected from the society it's intended to govern. (Scalia would respond that at such points, the Constitution should simply be amended).

    There are other positions, as well, like the "Constitution-in-exile" folks, who believe that certain fundamentally wrong decisions set in motion a chain of decisions that has brought the law to a flawed state; the only solution is to go back to where the law was somewhere around 1900 and rethink all of it.

    Obviously, abortion rights matter in this context, but largely because it is an outcome that has provoked two antipodal groups who try to work back from the outcome to a legal theory that either validates or invalidates the ruling.

    As I've written many times, I don't see the issue as being one of abortion per se, but of liberty - a woman's right to control her own body. That's not really the basis of the holding in Roe, at least, not exactly, which is one reason that I think there's as much discord over the "right". People who think that life begins at conception may not be moved much by the distinction, but I can understand how they would see a balance between "life" on the one hand, and the "right to choose" or "right to privacy" on the other, as a little preposterous. The balance between "life" and "liberty" may not be so obvious.

    Well, not to me, anyway.

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    Why All the controversy?

    Why do we (and the media) even care or have all this discussion on appointments to the Supreme Court or the cabinet. Our opinion doesn't matter at all. It doesn't matter if we think the nominees are the second coming of Christ or Atilla the Hun. It is always up to the president and the Senate only.
    We are insignificant in these matters.

    Chip

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    What's up? drk's Avatar
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    Good thinking, Robert.

    I think you present "a compelling argument" for how the Constitution should be evaluated.

    As to abortion, I got my threads mixed, and posted on the WAR thread.

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    Objection! OptiBoard Gold Supporter shanbaum's Avatar
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    Quote Originally Posted by chip anderson
    Why do we (and the media) even care or have all this discussion on appointments to the Supreme Court or the cabinet. Our opinion doesn't matter at all. It doesn't matter if we think the nominees are the second coming of Christ or Atilla the Hun. It is always up to the president and the Senate only.
    We are insignificant in these matters.

    Chip
    C'mon, Chip - you elect your Senators, and you can be sure that, at the very least, they see an analysis of incoming comments from their constituents.

    One individual may not be signify much, but everyone counts in the aggregate.

    That's just part of living with 295,000,000 of your best buds.

    Of course, there are probably things that can and should be done to the plumbing of our government to make it more responsive to people (and maybe less responsive to money), and more representative of people. Proportional representation, for instance.

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    Objection! OptiBoard Gold Supporter shanbaum's Avatar
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    Here are a couple of interesting pieces on Constitutional interpretation:

    http://www.nytimes.com/2005/07/19/opinion/19fish.html

    http://lsolum.blogspot.com/2004_05_0...12638761570351

    You have to register for the NYT, but it's free, and worth every penny.

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    sub specie aeternitatis Pete Hanlin's Avatar
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    I don't know where you get that idea, Pete. The Constitution unambiguously gives the Senate an equal say in the appointment of justices ("he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... Judges of the supreme Court").
    Views on the Senate's role on confirming appointments range from rejection only when the nominee is incompetent, to rejection for any reason. Until 1968, recent history gave precedence to SC nominations progressing through the Senate with little, if any opposition. In '68, the GOP- sensing that they might regain the White House- decided to filibuster the nomination of Abe Fortas to Chief Justice. Their objection was ostensibly based upon questionable financial dealings (and Fortas did eventually resign over deepening questions of his finances). The Democrats pulled the same trick (minus the filibuster) during the conclusion of President Reagan's term by voting down the nomination of Judge Bork.

    Personally, my view- based on the rationale for the Executive/Legislative approval process compromise adopted during the formation of our government- would be that the Senate is "supposed" to routinely confirm the nominations of the President (unless reason can be shown to indicate the President choose an unqualified/incompetent nominee). The original fear was that the President would be incapable of having knowledge of the most capable candidates for positions (there was also fear regarding the establishment of a tyranny if the executive branch could totally control positions of power with no check whatsoever- don't even start, however, because the nomination of Justice Roberts is clearly not such a case).

    Further, nominees to the SC have historically been able to defer on questions regarding possible rulings on a specific issue (Justice Ginsburg and Justice Breyer both failed to answer questions on their potential rulings on abortion related issues).

    Justice Roberts is clearly competent, should probably be confirmed without too much fuss (well, Sen Schumer has a personal axe to grind- since the judge made him look like an idiot the last time he went through the committee). Robert is correct, this is truly not about abortion- the Dems have other (more legitimate) reasons to dislike this nomination. However, they know that abortion is the easiest button to push with their consistuency, so they will employ this as a tool.

    I think chm's logic is extremely sound. The Senate should pick its battles carefully. This will not be the only nominee this President will make- be careful going after what is basically a conservative/moderate, because you may regret it later if the President follows up with an extremely conservative nominee.

    In any case, there is no "extreme circumstance" that would justify any unseemly activity on the minority's part (although it is clever politicing by the Dems to even get this term into the process- silly, but clever).
    Last edited by Pete Hanlin; 07-21-2005 at 11:15 PM.
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    Pomposity! Spexvet's Avatar
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    Quote Originally Posted by Pete Hanlin
    In '68, the GOP- sensing that they might regain the White House- decided to filibuster the nomination of Abe Fortas to Chief Justice.
    ...
    In any case, there is no "extreme circumstance" that would justify any unseemly activity on the minority's part (although it is clever politicing by the Dems to even get this term into the process- silly, but clever).
    Is it only "unseemly" when Democrats do it?
    ...Just ask me...

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    Master OptiBoarder rbaker's Avatar
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    I haven’t heard any comment from the Wizard of Uhhhs (Teddy "Ill drink to that" Kennedy) on the nomination. Perhaps he is still in seclusion on this anniversary date (July 18th.)

    Mea Culpa, Mea Culpa, Mea Maxima Culpa

  21. #21
    sub specie aeternitatis Pete Hanlin's Avatar
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    Is it only "unseemly" when Democrats do it?

    I would have thought my employment of the word "ostensibly" would have been sufficient to indicate that I find this sort of behavior unseemly when EITHER side engages in it. Earlier, I indicated that a nominee should not have to answer questions on how s/he might rule on an issue- regardless of which "side" is asking the questions. Justice Ginsburg declined to answer something like 36 direct quesitons regarding Roe v. Wade during her hearings. I would imagine Judge Roberts will- justifiably- also refuse to answer. Perhaps the worst of both worlds is a statement like that made by Justice Thomas when asked about Roe v. Wade (he said something like "I've never actually thought or spoken to anyone on the subject" - puhleeeze!).

    For a Senator to indicate that s/he would consider refusal to answer such a question as a reason to vote against the nomination is ludicrous- based upon the modern history of the nomination process. Although, it is almost comical to note that the very first failed nomination occurred when Washington tried to appoint an official who had somehow managed to cheese off someone in the Senate (I think it was Aaron Burr who was the cheesed off party).
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