Friday, July 22, 2005
David Souter was a Supreme Court judge in New Hampshire for 13 years, had 217 written opinions, and was recommended to George H.W. Bush by his chief of staff, John Sununu.
George 41 was a moderate. And he knew exactly what he was doing.
Thursday, July 21, 2005
The two Democratic appointees were really chosen be Sen Orrin Hatch of Utah.
It is interesting to note that Ruth Bader Ginsberg voted with Judge Robet Bork 85% of the time when they served together on the D.C. court. Some lefty.
From what I've read about John Roberts, he seems ok. President Bush ran as a moderate in 2000. Now that he can't run again, he doesn't need to pander to the radical right. Had this occured last year his choice would have been very different.
The hated Ann Coulter hates the choice; it must be a good thing.
Time will tell, but I am cautiously optimistic.
Friday, July 15, 2005
I think everyone will agree on the top three: Lincoln, FDR, Washington (my order).
It is interesting to note that when John Wilkes Booth killed Lincoln on 14 April 1865 he jumped onto the stage and said "Sic Semper Tyrranis" (Thus to all tyrants). When Timothy McVeigh was arrested he had on a t-shirt with a portrait of Lincoln and that saying underneath.
After that photo was publish, Southern Partisan magazine quickly sold out of those shirts. A couple years later Sen John Ashcroft (MO) had an exclussive interview with Southern Partisan talking about how Lee, Davis, and Jackson were all "Southern Patriots." Then, our current president made him the most powerful law enforcement offical in the land.
I digress. Who's your favorite president?
Thursday, July 14, 2005
I have been fortunate enough to have had an occasional ongoing email discussion with them since. They are currently (7/05) in Africa. Check out their website.
I figured that in order to encourage him I would make him fried chicken for dinner. It was quite tasty and looked a lot like brother Dan's fried chicken here.
The jury is still out as to whether or not Dan can come.
I got an email today from a friend who said, "I don't like France, the French, or Bastille Day." I really can't understand that sentiment, as ubiquitous as it is.
Before we went to war in Iraq (a situation which has curious parallels to the McKinley administration and America's first war of intervention) most countries, including France, Germany, and Russia believed that Sadaam Hussein had weapons of mass destruction. Colin Powell went before the UN to argue our case.
The difference between the U.S. and those who opposed invasion was that they did not think the case was adequate and that we should give the U.N. inspectors, who were doing a good job, more time to find said WMDs.
Yes, Sadaam is a terrible person. Yes, he killed more nearly a million of his people and a million Iranians in the war in the '80s (we supported him and gave him the chemical weapons he subsequently used on the Iraqi Kurds). Yes, he invaded Kuwait and we sent 600,000 troops (how many did we send this time?) to kick him out. Yes, he even said that he didn't have WMDs and then was so evil that he actually didn't!
One thing he didn't do was support Al Qaeda. In fact, no Arab nation did, which is why Osama Bin Laden was holed up in Afghanistan.
Somehow we hate the French (for full disclosure, I am of French ancestory) because they didn't do what we told them they should do. There isn't the same sentiment against the Germans. There isn't the same sentiment against the Turks. But the big problem is that the French were RIGHT! There are no WMDs. Yet now we've created a hotbed of terrorism.
The current president has no plan to solve the problem and no plan to get out. With nearly 2,000 dead Americans and 100,000 dead Iraqis, shouldn't GW at least admit he was wrong about the reasons that he took us to war?
107 years after McKinley "liberated" the Cubans in 1898, they are still not free. God told McKinley to invade the Philippines; George W's 2004 state of the Union address is eerily similar.
The French were right, but now all we hear is racist remarks against them. "Freedom Fries." Give me a break. We Americans are big boys. We can handle other people being right.
So Who Are the Activists?
WHEN Democrats or Republicans seek to criticize judges or judicial nominees, they often resort to the same language. They say that the judge is "activist." But the word "activist" is rarely defined. Often it simply means that the judge makes decisions with which the critic disagrees.
In order to move beyond this labeling game, we've identified one reasonably objective and quantifiable measure of a judge's activism, and we've used it to assess the records of the justices on the current Supreme Court.
Here is the question we asked: How often has each justice voted to strike down a law passed by Congress?
Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act "of great delicacy, and only to be performed where the repugnancy is clear." Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred.
Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like one reasonable definition of judicial activism.
Since the Supreme Court assumed its current composition in 1994, by our count it has upheld or struck down 64 Congressional provisions. That legislation has concerned Social Security, church and state, and campaign finance, among many other issues. We examined the court's decisions in these cases and looked at how each justice voted, regardless of whether he or she concurred with the majority or dissented.
We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.
Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %
One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.
To say that a justice is activist under this definition is not itself negative. Because striking down Congressional legislation is sometimes justified, some activism is necessary and proper. We can decide whether a particular degree of activism is appropriate only by assessing the merits of a judge's particular decisions and the judge's underlying constitutional views, which may inspire more or fewer invalidations.
Our data no doubt reflects such differences among the justices' constitutional views. But it even more clearly illustrates the varying degrees to which justices would actually intervene in the democratic work of Congress. And in so doing, the data probably demonstrates differences in temperament regarding intervention or restraint.
These differences in the degree of intervention and in temperament tell us far more about "judicial activism" than we commonly understand from the term's use as a mere epithet. As the discussion of Justice Sandra Day O'Connor's replacement begins, we hope that debates about "activist judges" will include indicators like these.
Because of an editing error, this article misstated the date the court started. Its first official business began in 1790, not 1791.
Paul Gewirtz is a professor at Yale Law School. Chad Golder graduated from Yale Law School in May.