tag:blogger.com,1999:blog-16821859.post112835423296095261..comments2024-02-28T14:41:47.313-07:00Comments on Flares into Darkness: Harriet Miersambisinistralhttp://www.blogger.com/profile/03836786826294202405noreply@blogger.comBlogger52125tag:blogger.com,1999:blog-16821859.post-1128402551949821212005-10-03T23:09:00.000-06:002005-10-03T23:09:00.000-06:00Flenser:Re Scalia's outcome determinative jurispru...Flenser:<BR/><BR/>Re Scalia's outcome determinative jurisprudence:<BR/><BR/>All of his opinions in the area of ERISA preemption have favored the managed care industry. Some of his reading of the common law background, legislative intent, statutory interpretation and legislative history of ERISA is simply wrong. That is not strict constructionism in my book.<BR/><BR/>While I like and respect him, Nino is not always right. <BR/><BR/>I am not as familiar with Thomas' juridprudence, but I am reasonably sure I could come up with a similar example.vnjagvethttps://www.blogger.com/profile/15904498408683884983noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128400759100070112005-10-03T22:39:00.000-06:002005-10-03T22:39:00.000-06:00terryeI really don't know what you mean. The behav...terrye<BR/><BR/>I really don't know what you mean. The behavior I have seen by Republicans on this was vastly better than you see from Democrats on anything. On anything. <BR/><BR/>Send your friend to DU or atrios or some of the left wing sites if she thinks what she saw today was hysterical ranting. She needs to get out more.flenserhttps://www.blogger.com/profile/05864178703173384289noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128400545481733722005-10-03T22:35:00.000-06:002005-10-03T22:35:00.000-06:00chuckI don't know. I'm sure you have read all the ...chuck<BR/><BR/>I don't know. I'm sure you have read all the stuff I have and if you take something different away from it, so be it.<BR/><BR/>CQ has a post up which sums up my feelings, My Grudging Support, Such As It Is.<BR/><BR/>I'm done with the topic for a day or two anyway.flenserhttps://www.blogger.com/profile/05864178703173384289noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128399302395488162005-10-03T22:15:00.000-06:002005-10-03T22:15:00.000-06:00flenser:I just got an email today from a lady who ...flenser:<BR/><BR/>I just got an email today from a lady who had never voted for a Republican before Bush.<BR/><BR/>She told me that after seeing the hysterical way some people in the self anointed base were behaving she was wondering whether she would vote for a Republican again.<BR/><BR/>That is what I mean by ranting.<BR/><BR/>I prefer to wait until I know more before I condemn Bush or Miers. I am saddened by the fact so many other people could not do the same.<BR/><BR/>Who knows in a few days it might look different. I remember a lot of people reacting badly to Roberts too.terryehttps://www.blogger.com/profile/16609746018265953069noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128398808676758192005-10-03T22:06:00.000-06:002005-10-03T22:06:00.000-06:00flenser:I'm not going to support someone I conside...flenser:<BR/><BR/><I>I'm not going to support someone I consider a poor candidate.</I><BR/><BR/>Neither will I. I just don't see how folks can be so sure so early that Miers *is* a poor candidate. I am going to wait before passing judgement.chuckhttps://www.blogger.com/profile/15164145672293455823noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128398316852779222005-10-03T21:58:00.000-06:002005-10-03T21:58:00.000-06:00terrye, I guess ranting is in the eye of the behol...terrye, I guess ranting is in the eye of the beholder, like so many other things in life. One persons "disagreement" is anothers "ranting". I'm sure some people might use one or the other of those words to describe you.<BR/><BR/>I'm not sure how anyone can abandon Bush, since he will not be up for election again. I'm not going to support someone I consider a poor candidate. If that makes me a traitor to the cause, then I guess I can deal with it.flenserhttps://www.blogger.com/profile/05864178703173384289noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128395668515277062005-10-03T21:14:00.000-06:002005-10-03T21:14:00.000-06:00flenser, if you want to know the truth I think the...flenser, if you want to know the truth I think the reaction of a lot of people has inflected some damage on the people doing the ranting..terryehttps://www.blogger.com/profile/16609746018265953069noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128395523085088892005-10-03T21:12:00.000-06:002005-10-03T21:12:00.000-06:00flenser:Oh for heavens sake.I am not telling anyon...flenser:<BR/><BR/>Oh for heavens sake.<BR/><BR/>I am not telling anyone they don't have a right to their opinion.<BR/><BR/>I am just saying that I find this piling on to be hysterical.<BR/><BR/>And as for my comments about right wingers, I guess it comes from all the conservatives I have seen threatening to abandon Bush for not picking the "right" candidate.<BR/><BR/><BR/><BR/>Sorry if that offends you but I do.terryehttps://www.blogger.com/profile/16609746018265953069noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128394817372093492005-10-03T21:00:00.000-06:002005-10-03T21:00:00.000-06:00terryeThe difference here is that I am not telling...terrye<BR/><BR/>The difference here is that I am not telling you that you are not entitled to your opinion. You certainly seem to be telling all those crazy "right-wingers" that they are not entitled to theirs. For reasons which you cannot spell out.<BR/><BR/>I don't see where you get that power.<BR/><BR/>The process will of course begin. And Bush and the Republican party have of course inflicted a good deal of damage on themselves in the public mind, for no very clear reason. I don't see how anyone who supports the President can consider that a good thing.flenserhttps://www.blogger.com/profile/05864178703173384289noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128393809464322482005-10-03T20:43:00.000-06:002005-10-03T20:43:00.000-06:00Flenser:I voted for him too.But that does not matt...Flenser:<BR/><BR/>I voted for him too.<BR/><BR/>But that does not matter does it?<BR/><BR/>I tell you what, lets change the Constitution.<BR/><BR/>We will take the right to nominate the Supreme Court Justice away from the president and will give it to a special group of elite bloggers. <BR/><BR/>That way we can be sure we satisfy the spectrum.<BR/><BR/>Bush was elected to be the president, he was not elected to pick certain judges from a list compiled by certain conservatives who are bound and determined to attack anyone not on the list.<BR/><BR/>It seems to me that she is a qualified conservative. Now let the process begin.terryehttps://www.blogger.com/profile/16609746018265953069noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128393270329291732005-10-03T20:34:00.000-06:002005-10-03T20:34:00.000-06:00terrye I have a great deal of respect for anyone w...terrye <BR/><BR/>I have a great deal of respect for anyone who disagrees with me, who is able to present solid arguments for their disagreement.<BR/><BR/>Bush does in fact "owe" the people who elected him some things. He has an obligation to attempt to do the things he said he would do if elected.<BR/><BR/>If he had pulled completely out of Iraq and Afghanistan in Janurary 2005, would you still say that he had no obligation to follow through on his promises to his supporters? <BR/><BR/>He, and the Republican majority in the Senate, were elected on the basis that they would reform our screwed up judicial system. They have taken some good steps in that direction. But at the biggest step of all, the nomination of new Supreme Court justices, there appears to have been a loss of nerve. Understandably, people are upset.<BR/><BR/>If you have a basis for disagreement, lay it out and we can discuss it. But to suggest that people from across the spectrum, from libertarians to social conservatives to centerists, are all some kind of "right wing ideologues", is name calling rather than disagreement.<BR/><BR/>None of which is to deny that there are some very ill-mannered people at ConfirmThem and other sites. But being jerks does not make them wrong all the time.<BR/><BR/><BR/><BR/><BR/>vnjagvet<BR/><BR/>That seems to be avoiding the question. Can you offer any evidence that the positions taken by Scalia and Thomas really "favor the establishment", moreso than those taken by Bryer and Ginsberg? I don't think you can. I think I could make a good case that the reverse is true.<BR/><BR/>In any case, that sounds like outcome based jurisprudence. I don't want a judge who seeks to favor either the individual or the establishment. I want ones who make rulings based on the written law. Thats all. Let sombody else write the law.<BR/><BR/>You must know of and have opinions on the question of how the constitution and other laws should be read - the "textualsts", "constructionists", and so on. Whats your take on this?flenserhttps://www.blogger.com/profile/05864178703173384289noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128386851874866352005-10-03T18:47:00.000-06:002005-10-03T18:47:00.000-06:00flenser:I listened to the lady this morning when s...flenser:<BR/><BR/>I listened to the lady this morning when she accepted the nomintion.<BR/><BR/>She made a point of saying she would uphold the laws set forth by the founding fathers in the Constitution. Now maybe that does not mean anything to the right, but I am willing to take her at her word.<BR/><BR/>I think the convservative blogosphere has over reacted. Just like they did when Roberts was nominated, only more extreme.<BR/><BR/>There may well be more nominations for Bush to make but I find this notion on the right that he "owes" them a particular nominee to be very disquieting.<BR/><BR/>I think Bush is mindful of his legacy and many times he has shown political courage when it costs him. The willingness of the right to jump on this without good cause makes me wonder how much respect they have for anyone who disagrees with them.terryehttps://www.blogger.com/profile/16609746018265953069noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128386115276760062005-10-03T18:35:00.000-06:002005-10-03T18:35:00.000-06:00Flenser:To me an ideologue is someone who tends to...Flenser:<BR/><BR/>To me an ideologue is someone who tends to give the benefit of the doubt to the side they generally favor in society.<BR/><BR/>The ideologue from the left generally favors the "underdog" or the "oppressed". The ideologue from the right generally favors the "establishment" or the "government".<BR/><BR/>Dick Durbin's questioning of Chief Justice Roberts regarding his representation of an HMO and asserting a position which might have resulted in a large number of people lacking medical coverage were his position to prevail. Durbin implied he should have turned the case down beause it would have hurt the little guy. Durbin took the leftist ideological position on that issue. Roberts took the non-ideological position that every party deserves excellent legal representation.<BR/><BR/>I hope that helps.vnjagvethttps://www.blogger.com/profile/15904498408683884983noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128381255133010722005-10-03T17:14:00.000-06:002005-10-03T17:14:00.000-06:00I hadn't seen Beldar's views until a few minutes a...I hadn't seen <A HREF="http://beldar.blogs.com/beldarblog/2005/10/the_miers_nomin.html" REL="nofollow">Beldar's</A> views until a few minutes ago. I am glad I peeked. We normally have had similar views on these matters in the past. We still do.vnjagvethttps://www.blogger.com/profile/15904498408683884983noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128378662975514852005-10-03T16:31:00.000-06:002005-10-03T16:31:00.000-06:00The notion that the founders were deeply suspiciou...<I>The notion that the founders were deeply suspicious of the people just does not hold up to historical examination.</I><BR/><BR/>Ah, but they were deeply suspicious of human nature, nor did they assume that the people en masse were somehow exempt. It it one of the reasons I hold them in far higher esteem than I do the various utopian designers whose creations failed in the most predictable fashion. But as an example of their attention to the natural inclination to corruption, we have:<BR/><BR/><I>No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.</I><BR/><BR/>But I think that my impression of a suspicion of unchecked popular democracy comes more from the Federalist Papers than from the Constitution itself. The Federalist Papers make the argument as to *why* the Constitution is what it is.chuckhttps://www.blogger.com/profile/15164145672293455823noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128377320515043762005-10-03T16:08:00.000-06:002005-10-03T16:08:00.000-06:00vnjagvetWhat is your definition of an "ideologue",...vnjagvet<BR/><BR/>What is your definition of an "ideologue", specifically as it applies to SC justices?<BR/><BR/>What is your definition of a "moderate"? What was the "moderate" position on Kelo, to pick just one example, and by what reasoning is that position arrived at?<BR/><BR/>What makes Bryer an ideologue? What makes Thomas one?flenserhttps://www.blogger.com/profile/05864178703173384289noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128376899738364102005-10-03T16:01:00.000-06:002005-10-03T16:01:00.000-06:00chuckSince i have nowhere argued for a pure democr...chuck<BR/><BR/>Since i have nowhere argued for a pure democracy, I don't see what you are responding to.<BR/><BR/>The point I made, which still stands, was that the Constitution was not handed down on stone tablets from a cloud. It was written by the elected representatives of the American people. In a democratic fashion, in fact.<BR/><BR/>Those same founders provided a mechanism for changing the constitution. Again, that mechanism involves the people, acting in a democratic fashion. Rather notably, they did not chose to give that power to some council of elders, either in the form of the Senate or in the form of Supreme Court justices.<BR/><BR/>The first three words of the constitution are "We the people..". The Bill of Rights is peppered with references to the people. The notion that the founders were deeply suspicious of the people just does not hold up to historical examination. They were far more concerned that the government itself would slip free of its leash.<BR/><BR/><BR/>Charlie<BR/><BR/>Dana Milbank? The WaPo reporter? <BR/><BR/><BR/>Lastly - am I sure Miers is not a Thomas? No, I'm not 100% sure. You can ask the same question and get the same answer for any nominee. But the probability is that she is, at best, another O'Connor.<BR/><BR/>The proper question is, why are we guessing. Bush could have selected somebody more like Roberts, meaning a Luttig or Alito.flenserhttps://www.blogger.com/profile/05864178703173384289noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128376613796358142005-10-03T15:56:00.000-06:002005-10-03T15:56:00.000-06:00I think the political ramifications have been very...I think the political ramifications have been very carefully weighed by some pretty sharp folks in the White House. No one has ever said, e.g. Karl Rove is a fool or a closet liberal.<BR/><BR/>Bush has shown in the past that he listens to many sides, but always goes his own way. That is one thing that simply drives his opponents wild.<BR/><BR/>He is no ideologue, and never has been. But he is religious. He doesn't hide it, but doesn't flaunt it as his immediate predecessor did. He also lives it as his immediate predecessor did not. That drives most all secularists, humanists and some scientists and scholars wild.<BR/><BR/>He is pragmatic. He is ambitious. He is mindful of his legacy. He is loyal to his friends. He does what he says he is going to do.<BR/><BR/>He listens to and respects his wife. She does not make decisions for him, but he trusts her reading of people close to them.<BR/><BR/>These character traits persuade me he will not knowingly populate the Supreme Court with a weak person who is malleable to the fashions of the day, and who does not have a firm grasp of a reasonably coherent conservative judicial philosophy.<BR/><BR/>I personally do not want another ideologue on the court. We have at least four. Ginsburg and Breyer on the left and Thomas and Scalia on the right.<BR/><BR/>What I want is the folks in the middle to be smart, pragmatic, and possessed of an internal sense of the real meaning of the Constitution, its history and its impact on how this nation is governed to meet the goals the Constitution and its antecedent the Declaration of Independence anticipated. If Harriet Miers is that type of person, I will be satisfied.vnjagvethttps://www.blogger.com/profile/15904498408683884983noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128376066934589822005-10-03T15:47:00.000-06:002005-10-03T15:47:00.000-06:00How would the people be better served by state leg...<I>How would the people be better served by state legislative appointments of senators?</I><BR/><BR/>Well, truth to tell, I use it as a conversation starter. But my argument goes that states have lost representation in the Federal Government. Thus the sorry spectacle of governors having their yearly meetings and yapping for attention. It is like a whole level of government cut off at the knees. Having the Senators appointed by the state legislatures would make them far more attentive to state concerns per se.chuckhttps://www.blogger.com/profile/15164145672293455823noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128375638937562632005-10-03T15:40:00.000-06:002005-10-03T15:40:00.000-06:00"Having "frank discussions" of the "laws we live u..."Having "frank discussions" of the "laws we live under" each time one of nine SC justices is nominated seems, well, unworkable."<BR/><BR/>Well then, lets not do that. Which I did not suggest in any case.<BR/><BR/>It does seem like it might be a worthwhile exercise if there was some discussion of what the proper role of the courts is, for example, since it is blindingly obvious that people have lots of different views on that topic. The proper role of what is arguably the most influnetial branch of governemnt is, I like to think, a worthy topic of debate in what is still supposedly a government by, for, and of the people.<BR/><BR/>That hardly requires a discussion for each justice nominated. It does require at least one though.<BR/><BR/>Or, we can just say, fuck it. Let those judges and senators figure it out. They are a lot smarter than we are anyway. It's up to them to create the laws - we just do what they tell us.flenserhttps://www.blogger.com/profile/05864178703173384289noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128375337105046572005-10-03T15:35:00.000-06:002005-10-03T15:35:00.000-06:00Bush ran in two presidential elections on the basi...<I>Bush ran in two presidential elections on the basis that his SC picks would be in the mold of Thomas and Scalia.<BR/><BR/>It certainly appears that that is not what he has delivered.<BR/></I> <BR/><BR/>On what basis? According to Dana Milbank, Roberts sounded like a strict constructionist in his first day of arguments.Charlie Martinhttps://www.blogger.com/profile/14586506407851173416noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128375053134521832005-10-03T15:30:00.000-06:002005-10-03T15:30:00.000-06:00Bush ran in two presidential elections on the basi...<I>Bush ran in two presidential elections on the basis that his SC picks would be in the mold of Thomas and Scalia.</I><BR/><BR/>And you are all so sure Miers isn't? No Scalia, for sure, but I don't think Thomas was better qualified.chuckhttps://www.blogger.com/profile/15164145672293455823noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128374888622556552005-10-03T15:28:00.000-06:002005-10-03T15:28:00.000-06:00flenser,We don't *have* a pure democracy. Never ha...flenser,<BR/><BR/>We don't *have* a pure democracy. Never have had. We have a republic, which is a totally different animal. The founders had several reasons to avoid a pure democracy, not least of which was that it is completely unwieldy when the enfranchised population reaches several tens of thousands. I have seen this in town meetings in Massachusetts. The best reason, however, was that historical experience showed that pure democracy was short in duration and often led to tyranny and injustice. Thus, checks and balances. Thus a House of Representatives with two year terms balanced by the (formerly) undemocratic Senate with six year terms. Thus a separate executive. So I think we got something better.<BR/><BR/>Have I ever mentioned that I think the 17'th amendment should be repealed?chuckhttps://www.blogger.com/profile/15164145672293455823noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128374764313592872005-10-03T15:26:00.000-06:002005-10-03T15:26:00.000-06:00Chuck, I cannot see why you say the reaction is al...Chuck, I cannot see why you say the reaction is all out of proportion.<BR/><BR/>Bush ran in two presidential elections on the basis that his SC picks would be in the mold of Thomas and Scalia.<BR/><BR/>It certainly appears that that is not what he has delivered. <BR/><BR/>He could easily have nominated someone else, who would have been much more in that mold. For whatever reason, he did not do so.<BR/><BR/>How is this any different to his fathers pledge that he would never raise taxes? When you break a pledge which was central to your election, people tend to notice it.flenserhttps://www.blogger.com/profile/05864178703173384289noreply@blogger.comtag:blogger.com,1999:blog-16821859.post-1128374360943364162005-10-03T15:19:00.000-06:002005-10-03T15:19:00.000-06:00As a matter of fact I have seen reports that she d...<I>As a matter of fact I have seen reports that she did recommend the establishment of an International Criminal Court.</I><BR/><BR/>Which is why I mentioned it. But it is not clear that she was actually in favor, she merely submitted a list of items that the ABA might consider. <A HREF="http://www.abanet.org/leadership/sneak2.html" REL="nofollow">Link</A>. Sound to me that she was merely filling her role as an official, not setting the agenda.<BR/><BR/>As I say, I am reserving judgement. But the reaction in the Republican blogosphere looks all out of proportion at this point.chuckhttps://www.blogger.com/profile/15164145672293455823noreply@blogger.com