Shrub Poised to Pick Court Nominee Tomorrow

[strandinthewind]

For those who do not know about Marbury v. Madison:

Marbury v. Madison (1803)
Just as George Washington helped shape the actual form that the executive branch would take, so the third chief justice, John Marshall, shaped the role that the courts would play.

Under the administrations of Washington and his successor, John Adams, only members of the ruling Federalist Party were appointed to the bench, and under the terms of the Constitution, they held office for life during "good behavior." Thus, when the opposing Republicans won the election of 1800, the Jeffersonians found that while they controlled the presidency and Congress, the Federalists still dominated the judiciary. One of the first acts of the new administration was to repeal the Judiciary Act of 1800, which had created a number of new judgeships. Although President Adams had attempted to fill the vacancies prior to the end of his term, a number of commissions had not been delivered, and one of the appointees, William Marbury, sued Secretary of State James Madison to force him to deliver his commission as a justice of the peace.

The new chief justice, John Marshall, understood that if the Court awarded Marbury a writ of mandamus (an order to force Madison to deliver the commission) the Jefferson administration would ignore it, and thus significantly weaken the authority of the courts. On the other hand, if the Court denied the writ, it might well appear that the justices had acted out of fear. Either case would be a denial of the basic principle of the supremacy of the law.

Marshall's decision in this case has been hailed as a judicial tour de force. In essence, he declared that Madison should have delivered the commission to Marbury, but then held that the section of the Judiciary Act of 1789 that gave the Supreme Court the power to issue writs of mandamus exceeded the authority allotted the Court under Article III of the Constitution, and was therefore null and void. Thus he was able to chastise the Jeffersonians and yet not create a situation in which a court order would be flouted.

The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since.

The Court would not declare another act of Congress unconstitutional until 1857, and it has used that power sparingly. But through its role as arbiter of the Constitution, it has, especially in the twentieth century, been the chief agency for the expansion of individual rights. (See Part V.)

For further reading: George L. Haskins and Herbert A. Johnson, Foundations of Power: John Marshall, 1801-1815 (1981); Donald O. Dewey, Marshall v. Jefferson: The Political Background of Marbury v. Madison (1970).

http://usinfo.state.gov/usa/infousa/...democrac/9.htm

[strandinthewind]

Also -

Bush nominates Alito to Supreme Court
Choice named after a week of political difficulty over Harriet Miers

WASHINGTON (CNN) -- Moving quickly to pick a Supreme Court nominee after his last selection withdrew her name, President Bush on Monday nominated Circuit Court Judge Samuel Alito -- a favorite of conservatives -- to replace Justice Sandra Day O'Connor.

"Judge Alito's reputation has only grown over the span of his service," Bush said from the White House, with Alito by his side. "He has participated in thousands of appeals and authored hundreds of opinions. This record reveals a thoughtful judge who considers the legal merits carefully and applies the law in a principled fashion."

Alito, a former U.S. attorney who has been a judge for 15 years, said while on the bench he has kept in mind what he called a "solemn responsibility." (Watch Bush call Alito 'fair-minded and principled' -- 4:15)

"Federal judges have the duty to interpret the Constitution and the laws faithfully and fairly, to protect the constitutional rights of all Americans, and to do these things with care and with restraint, always keeping in mind the limited role that the courts play in our constitutional system," he said.

"And I pledge that, if confirmed, I will do everything within my power to fulfill that responsibility." (Samuel Alito accepts with reverence and thanks -- 4:15)

Sen. Charles Schumer, a member of the Senate Judiciary Committee that will hold a hearing on the nomination, panned Bush's choice.

"It is sad that the president felt he had to pick a nominee likely to divide America instead of choosing a nominee in the mold of Sandra Day O'Connor, who would unify us," the New York Democrat said.

Bush called for Alito to be confirmed as associate justice by the end of the year. His first pick to replace O'Connor was Judge John Roberts. After Chief Justice William Rehnquist died in September, however, Roberts was re-nominated and confirmed to fill that position.

His second nominee, White House counsel Harriet Miers, withdrew from the process Thursday after weeks of opposition from liberals and conservatives, who questioned her qualifications and record.

Senate Minority Leader Harry Reid said an Alito appointment would narrow the high court's view, making it less diverse.

"This appointment ignores the value of diverse backgrounds and perspectives on the Supreme Court," the Nevada Democrat said. "The president has chosen a man to replace Sandra Day O'Connor, one of only two women on the court. For the third time, he has declined to make history by nominating the first Hispanic to the court."

'Scalito'
Legal experts consider the 55-year-old Alito so ideologically similar to Justice Antonin Scalia that he has earned the nickname "Scalito." (Profile of his legal resume)

In 1991, in one of his more well-known decisions, he was the only dissenting voice in a 3rd Circuit ruling striking down a Pennsylvania law that required women to notify their husbands if they planned to get an abortion.

He also wrote the opinion in 1999 in a case that said a Christmas display on city property did not violate separation of church and state doctrines because it included a large plastic Santa Claus as well as religious symbols.

Alito was put on the circuit court bench by President George H.W. Bush in 1990 after his service as U.S. attorney for the District of New Jersey. (Biography)

He also served as assistant to Solicitor General Rex E. Lee from 1981 to 1985, where he argued 12 cases before the Supreme Court.

He was deputy assistant to Attorney General Edwin Meese from 1985 to 1987.

A Trenton, New Jersey, native, Alito graduated from Princeton in 1972 and earned his law degree from Yale in 1975.

Monday's announcement returns focus to the Supreme Court after a week of political difficulty for the White House and Republicans, with Miers' withdrawal coming a day before a grand jury indicted Vice President Dick Cheney's former chief of staff on charges including perjury and obstruction of justice. (Full story)

Confirmation could be tough battle
Reid said the Senate would give Alito "an especially long hard look by the Senate because of what happened last week to Harriet Miers."

"Conservative activists forced Miers to withdraw from consideration for this same Supreme Court seat because she was not radical enough for them," he said. "Now the Senate needs to find out if the man replacing Miers is too radical for the American people."

Sen. Arlen Specter, a Pennsylvania Republican who chairs the Judiciary Committee, said Sunday he is "very worried" that Democrats could filibuster a candidate they perceive as an extreme right-wing jurist.

The topic that "dominates the discussion," Specter said, is abortion.

Both sides of the debate want to know in advance how a nominee will vote on the issue, but that is an answer that "no one is entitled to," he said.

Bush nominated Miers on October 3 to replace O'Connor, often a moderate swing vote, on the high court.

O'Connor, who has announced her retirement, will stay on the court until the Senate confirms her replacement.

CNN's Dana Bash contributed to this story.

Find this article at:

http://www.cnn.com/2005/POLITICS/10/...ush/index.html

________________________________________________________

The D's will ikely prey on W's continued failing strength and growing weakness and oppose this Scalia clone who is merely a cipher for those wanting to extinguish the right to privacy and establish a fundamintalist Christian nation, which is their goal.

[Jyqm]

Originally Posted by strandinthewind

As opposed to how the R's gave Miers the same courtesy In the end, the R's are far more hypocritical than the highly hypocritical D's as far as I am concerned.

At the moment, though, I really couldn't care less how hypocritical the Republicans are. They're a bunch of assholes, great. They've amply proved that many times over in recent months. But that doesn't mean anything if the Democrats and others don't rise above that level of politics and start treating the political process with respect - in addition to actually coming up with a solid platform and a plan of how to raise the US out of the muck and mire that has been created in the past five years.

We've got Fitzgerald to take care of the finger-pointing now. Everybody should start focusing on doing something positive rather than complaining. This administration has been brought to its knees in the past week - it's time to start preparing the final blows.

[strandinthewind]

Originally Posted by Jyqm

At the moment, though, I really couldn't care less how hypocritical the Republicans are. They're a bunch of assholes, great. They've amply proved that many times over in recent months. But that doesn't mean anything if the Democrats and others don't rise above that level of politics and start treating the political process with respect - in addition to actually coming up with a solid platform and a plan of how to raise the US out of the muck and mire that has been created in the past five years.

We've got Fitzgerald to take care of the finger-pointing now. Everybody should start focusing on doing something positive rather than complaining. This administration has been brought to its knees in the past week - it's time to start preparing the final blows.

I agree with you. I was pointing out that none of them treat the process with respect. Personally, I think politics is all about the five second soundbyte than can be run over and over on the 24 hour news channel.

But, yes, the D's need to get a plan and not be scared to bite back hard when Rove unleashes the attack dogs. For instance, I think if Kerry had come back with "at least I was there you coward" to the whole Vietnam schpeel the R's masterfully played - people would have had newfound respect for him. But, he just could never seem to do that with any success.

Also, Kerry and D's just bitch and complain, but never seem to have a plan they can sell to the American people - thus, your point, which I agree with - though I really despise both parites and think there are few relevant differences between them.

[irishgrl]

Originally Posted by strandinthewind

LOL - I love how the words liberal, activist judge fits only the opposition when bioth sides take advantage of the effects of that and the effects have been only positive regarding human rights when the D's use it. For example, the right to privacy is how the D's use it. The R's use it to put care free gun ownership in the Const. when none is there (and mind you I have guns) - override countless state court decisions in the Terri Schiavo case, and get W elected in 2000. So, who has the fairer and more human track record of using so called acitivist judges, which I submit is a BS buzz word anyway - or at least since like 200 years ago in Marbury v. Madison.

Jason, I wonder if you wouldnt mind elaborating? Im not sure what your point is, maybe my cold medicine is fogging my brain........(yeah, thats it!)

[irishgrl]

Originally Posted by strandinthewind

I agree with you. I was pointing out that none of them treat the process with respect. Personally, I think politics is all about the five second soundbyte than can be run over and over on the 24 hour news channel.

But, yes, the D's need to get a plan and not be scared to bite back hard when Rove unleashes the attack dogs. For instance, I think if Kerry had come back with "at least I was there you coward" to the whole Vietnam schpeel the R's masterfully played - people would have had newfound respect for him. But, he just could never seem to do that with any success.

Also, Kerry and D's just bitch and complain, but never seem to have a plan they can sell to the American people - thus, your point, which I agree with - though I really despise both parites and think there are few relevant differences between them.

with all due respect, I dont see how the Dems can sell any "plan" if the numbers are against them? I know what I stand for but I hear plenty of people interviewed that have completely different views, and tho I wonder how they got to that point, I know that I cant change their minds...

[strandinthewind]

In the 1803 decision of Marbury v. Madison, the Ct. formed its status in our three rings of govt. Essentially, the Court is the watchdog of Congress and the Pres., which is why we have three rings of govt. People from all sides may not like that position, but they will use it to their advantage. The more open minded people realize the legis. makes cr*ppy laws like segregation. So, they sue under the Const. to rid us of that problem. Similarly, the close minded people use the Court to advance their religious extremism such as Terri Schaivo, no right to privacy, etc. In sum, both sides like the Court's so called activism when it suits them.

On edit - the right to privacy is not in the Const. It is a judicially created event. Thus, judge;'s are called activists for using it. I am unsure though that you do not get that point. I think you think the right to privacy is in the Const. the same as the actual text, which is factually incorrect no matter how good the effects of the right to privacy are.

[strandinthewind]

Originally Posted by irishgrl

with all due respect, I dont see how the Dems can sell any "plan" if the numbers are against them? I know what I stand for but I hear plenty of people interviewed that have completely different views, and tho I wonder how they got to that point, I know that I cant change their minds...

Well, they better learn how because they will not win without one. I mean what was one significant thing Kerry would have done significantly different than W. What was one thing Kerry offered as a solution to Iraq - which he voted for. Thus, people saw that and saw no clear distinction between the two. Clinton won essentially because Bush I raised taxes and Clonton liad out a plan to get us out of the hole - that is about the only reason along with his natural charisma, which he has plenty of.

[dissention]

He nominated a nutbag. No surprise.

[strandinthewind]

Originally Posted by dissention

He nominated a nutbag. No surprise.

The D's have the power to block it. I wonder if they will. I think W and Rove are betting on the tired horse of calling D's obstructionists for blocking nominations. They are hoping that such an act by the D's, which traditionally has made the D's look bad in this admin. - will bring W into better standing. I think that strategy will fail because the religious conservatives used the exact same tactic to block Miers

[irishgrl]

Originally Posted by strandinthewind

On edit - the right to privacy is not in the Const. It is a judicially created event. Thus, judge;'s are called activists for using it. I am unsure though that you do not get that point. I think you think the right to privacy is in the Const. the same as the actual text, which is factually incorrect no matter how good the effects of the right to privacy are.

I always thot the right to privacy was implied in the right of a person to be secure in their persons papers and effects?
or how about this:
Article XIV.
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
I believe this is the rule of law relied on in Roe. To wit:

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization).


We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.


We note that those federal and state courts that have recently considered abortion law challenges have reached the same conclusion. A majority, in addition to the District Court in the present case, have held state laws unconstitutional, at least in part, because of vagueness or because of overbreadth and abridgment of rights. Abele v. Markle, 342 F.Supp. 800 (Conn. 1972), appeal docketed, No. 72-56; Abele v. Markle, 351 F.Supp. 224 (Conn. 1972), appeal docketed, No. 72-730; Doe v. Bolton, 319 F.Supp. 1048 (ND Ga. 1970), appeal decided today, post, p. 179; Doe v. Scott, 321 F.Supp. 1385 (ND Ill. 1971), appeal docketed, No. 70-105; Poe v. Menghini, 339 F.Supp. 986 (Kan. 1972); YWCA v. Kugler, 342 F.Supp. 1048 (NJ 1972); Babbitz v. McCann, 310 F.Supp. 293 (ED Wis. 1970), appeal dismissed, 400 U.S. 1 (1970); People v. Belous, 71 Cal. 2d 954, 458 P. 2d 194 (1969), cert. denied, 397 U.S. 915 (1970); State v. Barquet, 262 So. 2d 431 (Fla. 1972).

[dissention]

Originally Posted by Jyqm

I hope that the Democrats take the high road and give this guy a thorough but fair examination, as opposed to just trying to tear him apart because he's a conservative nominee.

Wait until the issue of "partial-birth abortions" is brought up. The fundies will be in an uproar over his nomination.

[strandinthewind]

Originally Posted by irishgrl

I always thot the right to privacy was implied in the right to a person to be secure in their persons papers and effects?

It very well may be, but it is not written in the Const. and certainly the thought of abortion and gay sex or heterosexual non-missionary postion sex was not contemplated as being protected by those terms. Thus, the judges created the right to privacy, albeit out of necessity.

[dissention]

Originally Posted by strandinthewind

The D's have the power to block it. I wonder if they will.

I'll bet my car that they'll block him.

Originally Posted by strandinthewind

I think W and Rove are betting on the tired horse of calling D's obstructionists for blocking nominations. They are hoping that such an act by the D's, which traditionally has made the D's look bad in this admin. - will bring W into better standing. I think that strategy will fail because the religious conservatives used the exact same tactic to block Miers

It'll fail because he concurred that laws banning "partial-birth abortions" were unconstitutional in New Jersey. No way in hell will they be able to spin it and the fundies will go absolutely nuts.

[Jyqm]

Originally Posted by irishgrl

with all due respect, I dont see how the Dems can sell any "plan" if the numbers are against them?

Bush's approval ratings continue to hover around the 40% range, with the actively disapproving still well over 50%. A good sized majority of the US does not think that Bush is performing his job adequately. If you don't see those numbers as a huge opportunity for the Democrats and everybody who opposes this administration to get out there and affect some change, well, then you're part of the problem. Check the defeatism at the door, 'cause it ain't helping nobody.

People disapprove of Bush in his handling of almost everything: the war, immigration, education, not to mention his rampant cronyism. The Democrats need to create solutions to all this bungling, and they need to get out there and convince the public that their solutions will work. People are more than ready for a big change - they just need an alternative offered to them.