Bork calls Miers Nomination a "Disaster"

[scott]

http://www.msnbc.msn.com/id/9623345/




Bork calls Miers nomination a 'disaster'
Former Supreme Court nominee gives take on newest pick for the bench

TRANSCRIPT
MSNBC
Updated: 7:04 p.m. ET Oct. 7, 2005

A conservative uproar erupted over President George Bush's recent appointee to the Supreme Court. Bush nominated Harriet Miers to replace Justice Sandra Day O'Connor. But several key Republican senators say she not the best candidate.

MSNBC-TV's Tucker Carlson talks to former judge and Supreme Court nominee Robert Bork about the Harriet Miers' nomination. He says it's, "a disaster on every level" because she has "no experience with constitutional law whatever". The nomination is a "slap in the face" to conservatives.

TUCKER CARLSON, MSNBC HOST: Are you impressed by the president’s choice of Harriet Miers?

JUDGE ROBERT BORK, FORMER SUPREME COURT NOMINEE: Not a bit. I think it’s a disaster on every level.

CARLSON: Why? Explain the levels on which it’s a disaster.

BORK: Well, the first one is, that this is a woman who’s undoubtedly as wonderful a person as they say she is, but so far as anyone can tell she has no experience with constitutional law whatever. Now it’s a little late to develop a constitutional philosophy or begin to work it out when you’re on the court already. So that—I’m afraid she’s likely to be influenced by factors, such as personal sympathies and so forth, that she shouldn’t be influenced by. I don’t expect that she can be, as the president says, a great justice.

But the other level is more worrisome, in a way: it’s kind of a slap in the face to the conservatives who’ve been building up a conservative legal movement for the last 20 years. There’s all kinds of people, now, on the federal bench and some in the law schools who have worked out consistent philosophies of sticking with the original principles of the Constitution. And all of those people have been overlooked. And I think one of the messages here is, don’t write, don’t say anything controversial before you’re nominated.

It’s odd that Justice Roberts, who is now the chief justice, and who will probably be an excellent choice in many ways, also had no track record that was easy to follow.

CARLSON: Yes.

BORK: Now this woman, who has even less of a track record.

CARLSON: None at all, it seems like. But her defenders — flaks from the White House, some of whom we’ve had on the show —

BORK: Flaks, eh?

CARLSON: Flaks, you know, professional spinners.

BORK: I know the word, I just was interested in this. Go ahead.

CARLSON: Yeah, that’s essentially what they are some decent people, but repeating a line that’s been devised by the PR office of the White House — claim that she is a great pick because she brings diversity of experience. Not only is she a woman, and that supposedly — for reasons I don’t quite understand — is very important, but beyond that, she has followed a different path than most Supreme Court nominees. She hasn’t been a judge, et cetera.

Is there any truth that that’s an important qualification?

BORK: No, I think not having been a judge is all right. A lot of justices hadn’t been judges before. But I think this idea that it’s important to have a woman’s perspective, or something of that sort, begins to treat the Supreme Court like a legislature, in which everybody has to be—all groups have to be represented in some way. And that’s exactly the wrong message to send.

The court is not supposed to be a legislature. It’s been a legislature for too much of our history.

CARLSON: Right. I was fascinated to see the president, at his news conference the other day, tell a reporter that in his many conversations with Harriet Miers, going back more than a decade, he’d never discussed the question of abortion.

When you were nominated for the Supreme Court, did you discuss with President Reagan, or anybody in his administration, your specific views on Roe v. Wade, or other issues that might come before the court?

BORK: No, I didn’t have to because I had them all in writing, which was my mistake. The Book of Job says, “Oh, that my adversary had written a book!” Well, if you write a book or articles as I had, you give hostages to fortune. So they didn’t have to ask me; they knew where I was.

CARLSON: But do you think they should — I mean, as a non-lawyer, it seems to me obvious that the president would want to sit her down and say, you know, here are the important questions that might be raised on the Supreme Court — what do you think of them? Everyone pretends, or says, that that’s somehow verboten; you’re not supposed to do that. What do you think of it?

BORK: I think it’s ridiculous, because the president is not supposed to ask the nominee, but the senators all drill the nominee endlessly about his or her positions on various issues. Why the senators should be allowed to do that and the president shouldn’t be, I don’t know. But I wish the president wouldn’t ask her, how will you vote on this case, but try to ask her what materials do you consider relevant to deciding this case?

CARLSON: Yes. A fascinating point, brought up this morning by Charles Krauthammer in his column in the Washington Post. He said that, for four years, Meirs has been immersed in the war and peace decisions while working at the White House — questions of prisoner detention, prisoner treatment, war powers et cetera — and he makes the point, if she does reach the Supreme Court, she’ll have to recuse herself from judging the constitutionality of these decisions because she will have been party to making those decisions. She won’t be able to weigh in on these vital questions of American life. Is that true, do you think?

BORK: I’m not sure that it is true. Justice Robert Jackson advised President Truman and President Roosevelt on issues like that, and then changed his mind when he got on the Supreme Court in the Steel Seizure case, which held illegal President Truman’s seizure of the steel mills during the Korean War. So I’m not sure that having participated in the decision at the executive branch level disqualifies you from deciding the issue as a judge.

CARLSON: Right. I don’t think it should either.

Now what do you think her chances of being confirmed are?

BORK: I think they’re probably pretty high because — and this should give the president some pause — they’re pretty high because the Democrats seem to like her.

CARLSON: Yeah.

BORK: I think that ought to give him reason to think that maybe he made a mistake.

CARLSON: What about conservatives in Washington. I no longer live there, so I don’t have quite my finger on the pulse of it. But what’s your sense of how Bush’s supporters feel about Harriet Miers?

BORK: Well, those who are involved in the process have some reason to stick with the White House — not because they believe what the White House has done is wise, but they can’t jump overboard with this decision. But everybody else I’ve talked to ranges between disapproval and outrage.

CARLSON: Interesting. Well, I hope those voicing disapproval and outrage carry the day. I agree with you completely.


Certainly Robert Bork's opinion isn't the ultimate standard... but Bork calling someone's nomination a disaster is kind of like Teddy Kennedy telling you that you might have a drinking problem...

[xrayzebra]

It is like someone posted in another thread, some folks are really getting worked up before they know anything about this Lady. I saw a clip on TV the other day about a reporter, I think it was, asking Eisenhauer what the worst mistake he made and he said appoint Earl Warren to the court. Heck, I don't think anyone knows what a person will do on the bench until they have been seated. I was impressed with Roberts and his answers, but God only knows how he is going to rule on certain things. Being a conservative I like what Clarence Thomas has done and if anyone remembers his hearings you would think all he did was watch dirty videos and make passes at the wormen in his office. I just think it is anyone's guess how one will be after being appointed. One thing I do believe, when you have a Justice rule, like whathisface did on minors being put to death, that foreign law comes into play then Congress should impeach him. He is not there to base his rulings on foreign law, but on our own laws and constitution.

[scott]

It is like someone posted in another thread, some folks are really getting worked up before they know anything about this Lady.

I think that's really what bothers some of the conservative base... they obviously feel they've been "burned" in the past by some of the justices nominated by Republican presidents who haven't turned out to rule they way they'd like.

[JoeChalupa]

Strategic move since she has no paper trail to question.
And if Bush thinks anybody believes that he and she didn't discuss abortion he must really in the dark.

[FromWayDowntown]

I'm no conservative, but I agree with Bork on this one. Miers has shown no particular belief in any constitutional philosophy. To many, that isn't a problem, but I think it is as do guys like Bork and others. The problem with a justice who lacks a clear philosophy is that you end up with sloppy law; you get decisions that don't create clear rules that people can live by. You have a judge who isn't concerned with process, and solely focused on results. That's not a good thing.


One thing I do believe, when you have a Justice rule, like whathisface did on minors being put to death, that foreign law comes into play then Congress should impeach him. He is not there to base his rulings on foreign law, but on our own laws and constitution.

Have you bothered to read Justice Kennedy's opinion in that case? Or is your opinion informed solely by what you hear from the political spin-doctors? I'm honestly curious, though I'm fairly certain that I already know the answer.

If you haven't read the opinion in Roper v. Simmons, you might bother to do so before commenting on what it's author, Justice Kennedy, did or did not do in that opinion. For your convenience, here is a link taken directly from the Supreme Court's website:Roper v. Simmons, 543 U.S. --- (2005) (http://a257.g.akamaitech.net/7/257/2422/01mar20051300/www.supremecourtus.gov/opinions/04pdf/03-633.pdf)

If you actually read the opinion, you'll see that Justice Kennedy's decision does not rely upon international law at all. The opinion reflects that the Court made its decision based upon existing American Constitutional law and the prevailing view among the states concerning the execution of minors -- deciding that those entirely American sources do not support the execution of those who were minors when they committed their crimes. Only after reaching that conclusion did Justice Kennedy discuss international law, and only then to note that the majority of the world agrees that minors should not be executed. Thus, far from relying on international law to make a decision, Justice Kennedy simply pointed to international law as proof that the Court's decision was correct. Of course, if you had read the opinion, you would have known that; if you just listened to how the politicians try to make political hay from the decision, you wouldn't know that.

[boutons]

poor dubya, doesn't even have a clue how fucked up his administration is, and how fucked up and negativehis legacy will. One of the worst presidencies, ever. He's got 3 years left to keep on digging his own grave.

========================

The New York Times
October 9, 2005

Bush Addresses G.O.P. Unease Over Nominee
By SHERYL GAY STOLBERG

WASHINGTON, Oct. 8 - After a blistering week, the White House is scrambling to control a conservative uprising over the nomination of Harriet E. Miers to the Supreme Court, with President Bush pitching his choice directly to the public on Saturday as his Republican allies plotted strategy to shore up support.

"Harriet Miers will be the type of judge I said I would nominate: a good conservative judge," Mr. Bush said in his weekly radio address. He added, "When she goes before the Senate, I am confident that all Americans will see what I see every day: Harriet Miers is a woman of intelligence, strength and conviction."

It was the third time since he picked Ms. Miers on Monday that the president has come to her defense. His remarks came as Senator Arlen Specter, the chairman of the Senate Judiciary Committee, who presides over confirmation hearings, offered a blunt assessment that was yet another sign that the nominee faced an uphill battle on Capitol Hill. Though Mr. Specter called Ms. Miers "intellectually able," he said she had a "fair-sized job to do" to become fluent in the language of constitutional law, which will be essential for senators who want to examine her judicial philosophy in deciding whether to confirm her.

"She needs more than murder boards," Mr. Specter, Republican of Pennsylvania, said in an interview, referring to the mock question-and-answer sessions most nominees use to prepare for their confirmation hearings. "She needs a crash course in constitutional law."

The conservative uproar over Ms. Miers underscores how difficult it has been for Mr. Bush to pull his own party together as he faces a variety of problems on other fronts: his administration's response to Hurricane Katrina; a leak investigation involving his chief political adviser, Karl Rove; the indictment of Representative Tom DeLay of Texas, who was the House majority leader; and, most recently, the decision by a top Justice Department nominee to withdraw amid questions over his ties to a Republican lobbyist accused of fraud.

Only a week ago, Republicans were saying they looked forward to a new Supreme Court nominee because it would give them something to rally around, providing a welcome distraction from the Bush administration's problems. But the nomination of Ms. Miers served only to roil a party that is already divided over domestic matters like Social Security and how to pay to rebuild the Gulf Coast.

Now, having alienated his conservative backers, Mr. Bush must go forward on the Miers nomination alone, without the help of many of the advocates who led the charge for the last nominee, Chief Justice John G. Roberts Jr.

Behind the scenes, Republican allies of the White House said they were trying to put together a public relations strategy to combat the mounting criticism over the Miers nomination. The effort, they said, would include administration officials, the Republican National Committee and conservative advocates who will carry onto television, talk radio and other forums the message that Ms. Miers, the White House counsel and a close confidante of the president, is a strong choice and that Mr. Bush will stand firmly behind her.

They said the White House was working to assemble a dossier that would back up its case about Ms. Miers's record of accomplishment, her legal qualifications and her conservative credentials. The administration was trying to assemble and review as much documentation as it could find about Ms. Miers's public record before she came to the White House, including details of her service on the Dallas City Council and her role as president of the State Bar of Texas.

Jim Dyke, a former spokesman for the Republican National Committee who has joined the White House to help confirm Ms. Miers, said in an interview that she was being seriously underestimated.

"President of the Texas bar association, president of the Dallas Bar Association, head of a major law firm, those are impressive credentials and they are being summarily dismissed," Mr. Dyke said. Asked about Mr. Specter's remark, Mr. Dyke said that as White House counsel, Ms. Miers already had "a mastery of the Constitution and constitutional law," and said she needed to do nothing more than any other nominee to prepare. He added, "There seem to be some unfair assumptions being made."

After Mr. Bush campaigned on a promise that he would choose justices in the mold of Clarence Thomas and Antonin Scalia, two of the court's most reliable conservatives, the selection of Ms. Miers, the White House counsel, has infuriated conservatives, who have assailed her as a crony who lacks the proper credentials, as well as a clear record on some of the most important social issues of the day, including abortion, gay marriage and religion in public life.

One prominent conservative, the columnist Charles Krauthammer, ridiculed the nomination as "a joke." Mr. Krauthammer wrote: "The issue is not the venue of Miers's constitutional scholarship, experience and engagement. The issue is their nonexistence."

One conservative advocate, Sean Rushton, executive director of the Committee for Justice, said generating enthusiasm for Ms. Miers was proving difficult because "anytime we put out something positive about her it gets shot to pieces by all our allies and the blogs."

Already, the Senate's most ardent opponent of abortion, Senator Sam Brownback, Republican of Kansas, has said he is prepared to vote against Ms. Miers, even if he receives a personal plea from Mr. Bush to support her. And while Ms. Miers does appear to be assuaging the concerns of some Republican senators as she meets with them, Republicans are hardly as effusive in their praise as they were early on for Chief Justice Roberts, whose résumé - he argued 39 cases before the Supreme Court as an appellate lawyer - and ability to discuss intricate matters of constitutional law impressed them greatly.

"She obviously faces a challenge following John Roberts," Mr. Specter said. "But nobody expects her to be a second John Roberts."

Yet before the Miers nomination, some of Mr. Bush's closest allies on Capitol Hill said they did want a second John Roberts. Senator Jeff Sessions, Republican of Alabama, said at one point that he would "be pleased if you could clone John Roberts." After seeing Ms. Miers this week, Mr. Sessions said he was "a little bit troubled" by the conservative criticism, but was taking a wait-and-see attitude.

"I think it's a valid concern of those who support President Bush that we get the kind of nominee that he promised and that he thinks she is," Mr. Sessions said. Of Ms. Miers, he said, "I don't really feel like I know her. I'd like to know more about her record."

With the Senate in recess until Oct. 17, Ms. Miers headed to Dallas, the White House said, to review files from the cases she had handled while in private practice so that she could respond to the Senate Judiciary Committee questionnaire. Mr. Specter said Republicans and Democrats were still negotiating the questions, but that he had given Ms. Miers the form used in the Roberts confirmation to get her started.

As Ms. Miers made the rounds on Capitol Hill, at least one Democrat, Senator Barbara Mikulski of Maryland, said the nominee had become a victim of sexism. "They're saying a woman who was one of the first to head up a major law firm with over 400 lawyers doesn't have intellectual heft," Ms. Mikulski said.

Others, like Senator Lindsey Graham, Republican of South Carolina, said the criticism was elitist.

"I think people have a view of a Supreme Court justice, it's a healthy view, that you should be the best and the brightest," Mr. Graham said. "But to be the best and the brightest, in my opinion, is bigger than your SAT score and where you got your degree."

Several Republicans, including Mr. Specter, said they steered clear of asking Ms. Miers questions about constitutional law. Mr. Specter, who said the timing of the confirmation hearings would depend in part on when Ms. Miers felt ready, said he initiated a discussion of the shifting standards the Supreme Court has applied in interpreting the Commerce Clause of the Constitution, but only to illustrate to Ms. Miers the kinds of questions she would face during her hearings.

"I did not ask her about it because I don't think she's ready to face it at the moment," he said. "Look, the lady was White House counsel dealing with totally other subjects until Sunday night when the president offered her the job. And Monday she's sitting with me. I'm not going to ask her questions which she hasn't had a chance to study or reflect on."

But Mr. Specter said that did not mean he would go easy on Ms. Miers at the hearings. "Absolutely not. It would be a disservice to the selection process and to her," he said. "She's got to win her wings."

Richard W. Stevenson contributed reporting for this article.

* Copyright 2005 The New York Times Company

[jochhejaam]

Strategic move since she has no paper trail to question.
And if Bush thinks anybody believes that he and she didn't discuss abortion he must really in the dark.

I would think the President has conversed with those who are aware of Miers position on abortion (verbal, as opposed to paper trail) and therefore didn't need to have a face to face discussion with her. As Bork said, they didn't need to ask him about his specific views on Roe v Wade, he had them all in writing.

I have sisters and brothers and other relatives that I know have strong feelings about abortion but it isn't an issue I have discussed with very many of them. I think men may be less likely to discuss abortion with other women than they are with other men.
There's a distinct line drawn between being against an issue and being an activist on an issue. One has opinions that may not be voiced very often because they are not solicited, the other has opinions that are voiced incessantly, solicited or not.

[xrayzebra]

I'm no conservative, but I agree with Bork on this one. Miers has shown no particular belief in any constitutional philosophy. To many, that isn't a problem, but I think it is as do guys like Bork and others. The problem with a justice who lacks a clear philosophy is that you end up with sloppy law; you get decisions that don't create clear rules that people can live by. You have a judge who isn't concerned with process, and solely focused on results. That's not a good thing.



Have you bothered to read Justice Kennedy's opinion in that case? Or is your opinion informed solely by what you hear from the political spin-doctors? I'm honestly curious, though I'm fairly certain that I already know the answer.

If you haven't read the opinion in Roper v. Simmons, you might bother to do so before commenting on what it's author, Justice Kennedy, did or did not do in that opinion. For your convenience, here is a link taken directly from the Supreme Court's website:Roper v. Simmons, 543 U.S. --- (2005) (http://a257.g.akamaitech.net/7/257/2422/01mar20051300/www.supremecourtus.gov/opinions/04pdf/03-633.pdf)

If you actually read the opinion, you'll see that Justice Kennedy's decision does not rely upon international law at all. The opinion reflects that the Court made its decision based upon existing American Constitutional law and the prevailing view among the states concerning the execution of minors -- deciding that those entirely American sources do not support the execution of those who were minors when they committed their crimes. Only after reaching that conclusion did Justice Kennedy discuss international law, and only then to note that the majority of the world agrees that minors should not be executed. Thus, far from relying on international law to make a decision, Justice Kennedy simply pointed to international law as proof that the Court's decision was correct. Of course, if you had read the opinion, you would have known that; if you just listened to how the politicians try to make political hay from the decision, you wouldn't know that.

I have now, you were right I hadn't before, a considerable amount of the opinion of the court. And regardless of what you said, and they themselves say, it is quite obvious they looked outside the United States to form their opion. They do cite the 8th and 14th admendment to the constitution, but then use five pages of their opinion to cite other countries. I have yet to determine how the 14th admendment comes into play on a death penalty, the 8th, I noted by Stevens must be re-interperted.

Stevens comment (along with Ginsburg)

JUSTICE STEVENS, with whom JUSTICE GINSBURG joins,concurring.
Perhaps even more important than our specific holding today is our reaffirmation of the basic principle that informs
the Court’s interpretation of the Eighth Amendment.
If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment
to the execution of 7-year-old children today. See Stanford v. Kentucky, 492 U. S. 361, 368 (1989) (describing
the common law at the time of the Amendment’s adoption). The evolving standards of decency that have driven our construction of this critically important part of the Bill of Rights foreclose any such reading of the Amendment. In the best tradition of the common law, the pace of that evolution is a matter for continuing debate; but that our understanding of the Constitution doeschange from time to time has been settled since John Marshall breathed life into its text. If great lawyers of his day—Alexander Hamilton, for example—were sitting with us today, I would expect them to join JUSTICE KENNEDY’s opinion for the Court. In all events, I do so without hesitation.

They obviously say the supreme court doesn't have to follow the constitution as written. The way I read it, their opinion, they say: Yes the constitution says you can execution children, BUT, The evolving standards of decency that have driven our contruction of this critically important part of the Bill of Rights foreclose any reading of the Admendment. So we as
a new standard look outside the United States for guidance.

Anyhow, that is the way I see it. The constitution is the constituion and shouldn't be changed on the whims of others.

Thanks for the link, I didn't know such a site existed. I have put it in my bookmarks.

Sorry for such a long reply, I was going to include the five pages the Justices wrote, but it would have been too long, for those interested click on the link give above in the original posting and read, it is long, 86 pages if I remember correctly. Damn I am a blabber mouth....... :lol

[FromWayDowntown]

I have now, you were right I hadn't before, a considerable amount of the opinion of the court. And regardless of what you said, and they themselves say, it is quite obvious they looked outside the United States to form their opion. They do cite the 8th and 14th admendment to the constitution, but then use five pages of their opinion to cite other countries. I have yet to determine how the 14th admendment comes into play on a death penalty, the 8th, I noted by Stevens must be re-interperted.

They didn't form their opinion based on international law; they corroborated their opinion by looking to what's going on in the world.

As for the application of the 14th Amendment's application to the death penalty, you should perhaps take the time to learn Constitutional Law before playing on-line critic. The Bill of Rights (Amendments I-X) do not apply to the States; they apply only to restrict what the federal government can do. The Fourteenth Amendment extends the Bill of Rights to the States: "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." The Fourteenth Amendment, then, says that matters like the Eighth Amendment restrict what individual states can do. Without the Fourteenth Amendment, the states could do whatever the hell they wanted. That's how the Fourteenth Amendment applies in a death penalty case.

[FromWayDowntown]

They obviously say the supreme court doesn't have to follow the constitution as written. The way I read it, their opinion, they say: Yes the constitution says you can execution children, BUT, The evolving standards of decency that have driven our contruction of this critically important part of the Bill of Rights foreclose any reading of the Admendment. So we as a new standard look outside the United States for guidance.

That's an extremely simplified view of what Justice Stevens is saying. What Justice Stevens is saying is that when the Amendment was drafted, courts of the time understood the Amendment to allow the execution of minors. But Justice Stevens' point is that such a view is simply the opinion of those courts at those time, reflecting the societal values at that time. He's saying that Justice Kennedy's opinion and it's reasoning is indistinguishable from those opinions. He's simply saying that the interpretation of the Constitution has changed.

In terms of the Constitution being the Constitution, you cannot read the Eighth Amendment ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.") and tell me that there is textual support there for the execution of minors. At best, you can tell me that execution of minors is not a "cruel and unusual punishment," but that would be your interpretation, not a strict construction of the Amendment, right?

In other words, your "strict constructionist" viewpoint on this issue isn't really anything more than the very sort of interpretation that you say you dislike.

[xrayzebra]

That's an extremely simplified view of what Justice Stevens is saying. What Justice Stevens is saying is that when the Amendment was drafted, courts of the time understood the Amendment to allow the execution of minors. But Justice Stevens' point is that such a view is simply the opinion of those courts at those time, reflecting the societal values at that time. He's saying that Justice Kennedy's opinion and it's reasoning is indistinguishable from those opinions. He's simply saying that the interpretation of the Constitution has changed.

In terms of the Constitution being the Constitution, you cannot read the Eighth Amendment ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.") and tell me that there is textual support there for the execution of minors. At best, you can tell me that execution of minors is not a "cruel and unusual punishment," but that would be your interpretation, not a strict construction of the Amendment, right?

In other words, your "strict constructionist" viewpoint on this issue isn't really anything more than the very sort of interpretation that you say you dislike.

No I am saying that "my" extremely simplified view is not extreme or simplified. I am saying that one of the things that got my attention was his statement: If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment
to the execution of 7-year-old children today." He himself says without a new "interperatation" it would be legal to execute a minor. He then goes on to say: "The evolving standards of decency that have driven our construction of this critically important part of the Bill of Rights foreclose any such reading of the Amendment. In the best tradition of the common law, the pace of that evolution is a matter for continuing debate; but that our understanding of the Constitution doeschange from time to time has been settled since John Marshall breathed life into its text. If great lawyers of his day—Alexander Hamilton, for example—were sitting with us today, I would expect them to join JUSTICE KENNEDY’s opinion for the Court. In all events, I do so without hesitation." Funny he should also point out that
there is a "continuing debate". Then he presumes to know what the great lawyers of that day, they would side with the opinion rendered. Does he also talk to the animals? One other simplistic view I hold is that the constinution should be viewed in the context that it written, not modified at the whim of every justice or group of Justices as they think it has evolved.

About Constitutional Law. No I am not a learned lawyer, as maybe you are, but somehow, I don't think the Constitution was written for lawyers only. That again is just my old man opinion. And Yes I don't think putting someone to death for killing another without just cause is cruel or unusual punishment. As stated in the 14th amendment. Again thanks for the link you furnished. I will attempt to funble my way thru the website and may have further question for you, since you are obviously a very learned person about Constitutional Law.

Long game today wasn't it, but one hell of a finish for Houston. :lol
Missed most of the Cowboys game too, dead burn John Daly lost it on the second hole of the playoff. I like that guy.

[FromWayDowntown]

No I am saying that "my" extremely simplified view is not extreme or simplified. I am saying that one of the things that got my attention was his statement: If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment
to the execution of 7-year-old children today." He himself says without a new "interperatation" it would be legal to execute a minor. He then goes on to say: "The evolving standards of decency that have driven our construction of this critically important part of the Bill of Rights foreclose any such reading of the Amendment. In the best tradition of the common law, the pace of that evolution is a matter for continuing debate; but that our understanding of the Constitution doeschange from time to time has been settled since John Marshall breathed life into its text. If great lawyers of his day—Alexander Hamilton, for example—were sitting with us today, I would expect them to join JUSTICE KENNEDY’s opinion for the Court. In all events, I do so without hesitation." Funny he should also point out that
there is a "continuing debate". Then he presumes to know what the great lawyers of that day, they would side with the opinion rendered. Does he also talk to the animals? One other simplistic view I hold is that the constinution should be viewed in the context that it written, not modified at the whim of every justice or group of Justices as they think it has evolved.

But don't you see that Justice Stevens is pointing not to what the Eighth Amendment says textually -- indeed, it says nothing about capital punishment -- but to how courts interpreted the Eighth Amendment at some point in the past? If the meaning of the Eighth Amendment prohibition against cruel and unusual punishment is a matter of interpretation (since the document doesn't define those terms) who is to say that an interpretation made in light of societal standards that existed 100 years ago should govern a society whose standards have changed?

You've decided that you like the old interpretation, but that doesn't mean it's not an interpretation. If Constitutional subjects are matters that require interpretation, Justice Stevens' point is that it makes little sense to interpret the document in light of standards that existed in 1791 or 1891, if we even know what those standards were, because we don't live in those times.

[scott]

I'm just wondering why xrayzebra is so anxious to kill kids... is that the right to life movement?

[boutons]

"anxious to kill kids"

cheaper than prison, which costs $2000+ / prisoner-month.

[scott]

The usual reason given is that the death penalty is a deterrant (meanwhile, there is no statistcal backing for that argument) - but most kids don't have the mental capacity to be detered by the death penalty, nor do they watch the news or know they can even recieve the death penalty... so executing kids sounds nothing more than an act of vengence.

My $0.02.

[xrayzebra]

I'm just wondering why xrayzebra is so anxious to kill kids... is that the right to life movement?

I am not anxious to kill kids. I just don't like the idea that someone can come up with a new interperatation of the constitution based on today's society as they see it. And also cite international law and standards as justification for their findings. (Can we do the same about how we question prisioners, it is condoned and legal in other lands) I also do not consider it as so much a deterrant as much as I do a punishment. I know you say that "most" kids don't have the mental capacity to be detered by the death penalty. But, I wonder, if the punks who do most of killing, kill someone, why? Don't you think they know they are taking someone's life?

As for saving a life, the newborn, an unborn child, in my opinion, is a living human being. Completely innocent of any crime. The only thing they are guilty of, if you can call it guilt, is being concevied. For which they had no choice in the matter. There are countless families in this country who will be more than happy to provide a home, loving home to them. But no, that is too much of an inconvience to some. And unfortunately we have those who will gladly "kill" that innocent baby, who I might add had no trial, and the same Justices that want to save the children gladly say it is a woman's right to kill the child. Makes no sense to me. Anyhow, I am fighting windmills, so with this posting I leave this thread, but do look forward to any replies you may have for me.

[Marcus Bryant]

You have a Miers nomination because of what Bork through. Any grand conservative jurist with a body of work is ripe for a contentious confirmation battle with an uncertain outcome.

[FromWayDowntown]

You have a Miers nomination because of what Bork through. Any grand conservative jurist with a body of work is ripe for a contentious confirmation battle with an uncertain outcome.

I disagree, to an extent. I think the battle over Bork set some precedent about the willingness of the Senate to reject a nominee it deemed unfit; it is the modern precedent for the idea that the Judiciary Committee should not be a rubber stamp for Supreme Court appointees -- a principle that I can't imagine too many would disagree with. Certainly, you can quarrel with the mid-80's assessments of Judge Bork's qualifications, but I don't see how you can argue with the idea that the Senate shouldn't be a pass through for nominees.

But this is much, much different than Bork's hearings. In the Bork hearings, the issues had to do with what Bork had written and the threat he posed to precedent for reasons that were seen as unconstitutional standing alone. Miers is the anti-Bork; she is tabla rasa. But she's that without an impressive resume. Being State Bar President is not any comment on your skills or acuity as an attorney or thinker; it's like being prom king or queen. Being the head of a large firm is, likewise, more a comment on how popular one is and what kind of business sense one has than a comment on the intellectual heft that one brings to the practice of law.

More to the point, I agree with Bork on this one: Miers' is a troubling candidate because she has no discernable constitutional philosophy; no real anchors in the various principles that are integral to the development of coherent constitutional law. As xrayzebra and I have been discussing above, there are many, many issues that are inherently matters of interpretation because there is no textual basis upon which to make a decision. The death penalty is one, but things like the scope of the Commerce Clause, the degree to which the Constitution espouses or rejects federalism, the extent to which federal law preempts state law in certain areas, and the construction of penumbral rights (like the right to privacy) are others. Those are the more basic issues. The development of law that will provide meaningful guidelines to the lawmakers and citizens of this country depends on the development of law along consistent philosophical (not ideological) lines. It depends on principled, structural reasons for disregarding precedent, not just a personal political belief that the law should be different. I'm with Bork in wondering if Miers has developed any sort of constitutional grounding that would allow her to deal with the nuances of the issues before the Court; her record gives me no reason whatsoever to think that she does; and the recent statements of the President and James Dobson make me believe that Miers' appointment is wholly a political action intended to impose political/personal decision-making concerning a narrow range of hot-button issues without regard to the long-term consequences, in a structural sense, of this country's constitutional jurisprudence.

[FromWayDowntown]

I am not anxious to kill kids. I just don't like the idea that someone can come up with a new interperatation of the constitution based on today's society as they see it. And also cite international law and standards as justification for their findings. (Can we do the same about how we question prisioners, it is condoned and legal in other lands)

Why is the old interpretation better than this one, though? If things have changed -- and Justice Kennedy goes to some length to prove that society has changed by citing to a slew of state laws that view minors very differently than adults, including the overwhelming majority of states that prohibit the execution of minors -- why shouldn't the law change?

Here's another way to get to the same answer, I think: If the existing interpretation had forbidden the execution of minors and Justice Kennedy had concluded that the Constitution allows the execution of minors, would you have been troubled by that decision? If, in doing so, Justice Kennedy had cited to the many countries around the world that permit execution of minors, would that have been a problem?