It was pointed out during the first presidential debate that as many as four Supreme Court Justices could be appointed during the next presidential term. (Note -- I don't believe it, considering the fact that SCJs tend to take their lifetime appointments very seriously -- but perhaps one or two.) The candidates, when questioned, waffled a bit, both saying that they don't have a litmus test for potential justices, then each giving their own. (Achebe, thanks for the thread. ) I've heard many arguments for qualities in Supreme Court Justices, but it seems to me that the qualities given are often the wrong ones. Should it matter how a justice feels about gun control? Drug use? Flag Burning? Abortion? The Constitution sets down specific guidelines for each of the branches of government, and includes in those guidelines checks and balances. The legislative branch makes the laws, the executive branch enforces the laws, and the judicial branch applies the laws to specific cases. As a part of it's duties, the Supreme Court has the additional responsibility of deciding if a law brought before it conflicts with the Constitution. It's that responsibility -- applying the law to the Constitution -- that has often been the cause of debate. The Supreme Court has many times been accused of making policy and laws, by applying this principal. One sticky point with this is that there is no "check" on the Supreme Court when their power is used that way. When they interpret a law in constitutional terms, it's basically written in stone. This has had positive results -- for instance, the sexual harassment laws were invented by the judicial system, through a series of court cases, on the basis that an individual should not be discriminated against because of their sex. Congress later cleaned this up and codified it into law by amending the Civil Rights Act. But, the courts 'invented' this law. The issue of abortion has also festered since the decision Roe vs. Wade, where the courts put limits on the rights of the state legislatures to regulate abortions. Rather than letting the states decide, the Supreme Court made the decision, putting into place social policy. So here's the question. Should the Supreme Court Justices be judged on their personal beliefs, or in their ability to apply court cases to the law, and the law to the constitution? Should they engage in making social policy, or should they stick to their original mandate? ------------------ Stay Cool...
You have an interesting point. I think that law is a tricky subject. It must be interprated to fit particular cases that may not fit the law. My belief is that the highest court must have a balance of liberal, conservative and moderate justices. It should have some that are flexible in their judgements and others who are strict constitutionalists. Balance is even more necessary in the high courts than it is anywhere else because of the comlex nature of the system. I think their record on how they judge law is more important than their political or ideological leanings. Maybe of even greater importance is how they have ruled in the past. Is he a liberal judge that tends to follow the rule of law? Is she a conservative judge that rules more compassionately? Is he a "tough on crime" judge? Those things make more of a differece than their individual beliefs. I guess the question should be, "How often does the judge's beliefs influence their legal decisions and to what end?" ------------------ Save Our Rockets and Comets SaveOurRockets.com
I know very little about the law, but it seems to me that decisions in the lower courts wouldn't accurately reflect your decisions in the Supreme Court. All you've got to do is look at the first case of Marbury versus Madison. At the first opportunity judges took it upon themselves to increase their power. They wanted to make an impact. So I do believe, beginning as far back as that date, that judges are not only aware of their social power, but are very much in tune with it. At the S.C level it is their duty to not only decide the rights and wrongs of a case, but to decide if the public is ready for that decision. You get that power at the Supreme Court. Not at the lower courts, and thusly, I believe that the Supreme Court impacts a judge's decision. You have a new role at that level. You are the third branch of government. So your decisions are impacted by that. How could they not be. So, I say that personal beliefs do not cloud a judgement. I believe that Social Value may cloud it, but that's the way it should be. ------------------ humble, but hungry. [This message has been edited by PhiSlammaJamma (edited October 10, 2000).] [This message has been edited by PhiSlammaJamma (edited October 10, 2000).]
PSJ is right: as far back as the early 1800s, with Marbury v Madison and McCullough v Maryland the Supreme Court asserted and expanded its power. Its like the states' rights debate before the civil war - it has been decided. Judges, particularly Justices at the Supreme Court level, get to make very important decisions on issues that on their face don't seem to be covered by the Constitution that was written in 1789. Because these people have a great deal of power to create social change (Rowe, Brown v Board of Education) it makes sense for a president to carefully choose a candidate whose political/social leanings mirror those of the president, and who will decide cases in a manner consistant with the party platform. This is the "check" that the executive branch has on the judicial one - it nominates candidates for the Supreme Court and other lower courts. So my answer is yes, the president can and should evaluate the way judges have ruled on certain issues in the past, and predict how they are likely to rule on issues that will be presented to them as a Supreme Court Justice, before deciding on who to nominate. This is simply accepting political reality. But certainly, the individual qualifications and experience as a judge should be part of the equation as well. ------------------
You can be liberal, conservative or neither...but, in my view, you must be a constitutionalist to be appointed to the Supreme Court. Judges are called to set personal bias or political thought aside and make decisions on the law. This is especially true of appellate judges who do not hear the testimony of witnesses but merely make decisions based on the court record to that point. Having entire categories of law stem from our courts is absurd and completely opposite of what the Constitution provides for. The Legislature is to make the laws...the Judiciary is to interpret those laws...and the Executive is to carry out those laws. Over the last 50 or so years we have seen these lines blurred beyond distinction. Now we have executive agencies making laws with overwhelming burdens on the individual to show how they're not entitled to do so. And, as this thread points out, we have courts making laws. This blurring is dangerous. The separations that exist work as barriers to tyranny. Or at least that's how it was intended. Marbury v. Madison simply gave the power to the courts to overrule other state courts when there was a federal Constitutional question involved. If a state can show an independent ground upon which they are basing a law, they are in the clear from federal review. I'm not sure where you get that McCulloch somehow grants the courts more power than that. That case simply stated that a state government may not tax a federal govt entity that resides in that state. It declares that to be unconstitutional because that action would impede federal government from doing its job. It also acknowledges that it could destroy that part of the federal government because "the power to tax is the power to destroy." It essentially says the Constitution is the ultimate guide. (note..not that it's a living, breathing document that changes with the wind that in trying to mean everything, means absolutely nothing). It's one thing to interpret the law...quite another to make new law. I don't know why anyone would be comfortable with allowing people who are appointed to life-time terms and who are not voted in by the people to make the laws for our nation...even if they are appointed by those we did vote in. If that's the case, then why have a legislature at all. Just bring all disputes before the judges and let them tell us how every solution should play out. That's common law at its grandest...but it's not a constitutional democracy. In case you can't tell...Constitutional interpretation is my "pet" issue. This is probably the issue that is most important to me because it goes to the very structure of our government. Process, procedure and clearly-defined roles have worked as barriers to the kind of problems with government that the Founders feared. Now those barriers are being slowly erased and most of America is to dumb to either notice or care because social studies simply aren't taught anymore in our public schools. If I were in power and had the intent to subvert those I governed the first thing I would do is tell them that the document which limits government power and secures individual rights is a living document capable of changing at any time without going through the included amendment procedures. Next, I would provide for a public education system across state lines that faile to hold children accountable for learning the political philosophies of those that created this document. Then I'd tell them about all the great federal programs they ca benefit from to increase their dependance upon me as their grand federal ruler. Then I'd begin eating away at those liberties that document secures by convincing folks it's better to be safe than free. Then maybe I could follow the great example of Lincoln and suspend habeas corpus (hell, no knows what is anymore anyway) or I could follow FDR's example and put an entire race of people in a detention camp and seize their personal property...because those are the kinds of things leaders with power do with a "living" document. ------------------
The Constitution, and judicial branch of government in particular, are in place to protect the minority from a potentially tyrannical majority. Some times this works against some things I think we as a society would benefit from (gun control), some times it work for things I more strongly believe (free speech). Even though the former isn’t entirely in synch with my preferences, I accept it in law (and would defend it on constitutional grounds) because you can selectively apply constitutional theory if you want any protections for those things that you yourself may value--but that may be unpopular in a given moment in time. The constitution to me should be viewed as a living document where the constitutional theories/themes are applied to new technologies and societal changes. To me this is what a “Constitionalist” is (versus a “Literalist”). If all we did was interpret what the founding fathers wrote word for word, over half the population wouldn't have a vote and another 20% would have their representation be reduced by 40%. Further, if you took a literalist’s perspective you might say individuals should have the right to have their own arsenol of nuclear weapons, after all, the right to “bear arms” (i.e., nuclear arms) shall not be infringed. So you do have to understand a little bit of the context when the constitution was written and apply constitutional theories or themes to contemporary society to be a good potential justice in my book-- not be a literalist with views solely from the 1700’s. Just a side not, but the funny (well not too funny) thing of the Bill of Rights is that in effect empowered government to infringe on rights not spelled out in the Constitution. The original spirit of the Constitution was to only give the government power over things specifically proscribed to it, not give the government power over everything protected from it simply through the BoR.
Well, sure Max, the examples you made are interesting, but the same has happened in the opposite direction: Slavery Prohibition Child Labor Women's Rights All of these were defended using the constitution. Even assault weapons are defended with the right to bear arms. Even the constitution, as great a document as it is, MUST be a living document because we as a people change. Our ideas about what is acceptable change and cannot be dependant on what others believed 200 years ago. ------------------ Save Our Rockets and Comets SaveOurRockets.com
I agree. The Constitution is a living document. Didn't the articles of Confederation and meetings in Philadephia address this very issue? It seems to me that the Founders were very clear about the significance of having a consitution that could change with the times. I may be mistaken on this, but wasn't that a whole point of debate when writing it? ------------------ humble, but hungry.
