I heard a little bit of the “hearings” yesterday (Tuesday) and it seemed to me that those doing the questioning are “out of their league.” I do not know very much about Roberts but he sure does seem like one bright human.

http://www.bloomberg.com/apps/news?pid=10000103&sid=aest917SNONM&refer=us

"This is your chance, Mr. Roberts, to explain what you meant by what you have said and what you have written," Biden said in his 10-minute opening statement.

If you missed it, Senator Kennedy read a question/statement that seemed to last FOREVER. :)

I don't know much about Roberts, but, isn't it strange that someone not even on the Supreme Court is being nominated for Chief Justice?
I admit, I'm not an expert on the Supreme Court, but I just assumed that the Chief Justice position would go to somebody who has already had experience with the court.
It reeks of political favoritism to me.

It reeks of political favoritism to me.

I had not thought about that. I was wondering what the other justices think about it. I know little about it, but are they not being “hopped over”? Perhaps being THE PERSON is not so enviable.

Truth or fiction, I do not know, but I have read the following: Those people work a tremendous amount of hours. If they are in session, they still must read mucho case law. When they are not in session, they read mucho case law.

This is not the first time in history a sitting SCOTUS judge was not nominated for the CJ position. Favoritism has nothing to do with it. You want someone who will be there for a long time to come, for stability. At 50 years old, Roberts has that capacity, the rest to not.

I don't know much about Roberts, but, isn't it strange that someone not even on the Supreme Court is being nominated for Chief Justice?
I admit, I'm not an expert on the Supreme Court, but I just assumed that the Chief Justice position would go to somebody who has already had experience with the court.
It reeks of political favoritism to me.
There's no constitutional requirement for a chief justice OR that a chief justice be selected from the bench.

It's certainly happened before: take Earl Warren, for example.

As far as Roberts goes - he rejects strict constructionism, supports privacy rights, and admits that the "framers chose to use broad language, and we should take them at their word." :nice:

There's no constitutional requirement for a chief justice OR that a chief justice be selected from the bench.

It's certainly happened before: take Earl Warren, for example.

As far as Roberts goes - he rejects strict constructionism, supports privacy rights, and admits that the "framers chose to use broad language, and we should take them at their word." :nice:

I have no doubt about there being no Constitutional requirement that sitting Supreme Court justices get appointed to the Chief Justic position. It just seems that promoting one of them would be more considerate of the institution.
I went and read a little on Earl Warren based on your comments. Interesting article I found here: http://www.findagrave.com/cgi-bin/fg.cgi?page=gr&GRid=1072&pt=Earl%20Warren
Anyway, it looks like he is responsible for ending segregation in our schools.
I found it really interesting that the conservatives were mad at him for "judicial activism". Nixon especially didn't like him.

I have no doubt about there being no Constitutional requirement that sitting Supreme Court justices get appointed to the Chief Justic position. It just seems that promoting one of them would be more considerate of the institution.
I went and read a little on Earl Warren based on your comments. Interesting article I found here: http://www.findagrave.com/cgi-bin/fg.cgi?page=gr&GRid=1072&pt=Earl%20Warren
Anyway, it looks like he is responsible for ending segregation in our schools.
I found it really interesting that the conservatives were mad at him for "judicial activism". Nixon especially didn't like him.

That's because judicial activism is not a good thing, even when the judge happens to do something you like.

"Activist" is just right wing Newspeak for any ruling they don't like on partisan grounds. Nothing wrong with the court enforcing the 14th Amendment.

Activist court is the term associated with a court that goes beyond its Constitutional constraints and ends up legislating from the bench. The democratic process of course means that only elected officals legislate.

The "activist" courts are very creative in reinterpreting Constitutional amendments which are designed to restrict the federal government. For example, in Miranda vs. Arizona, the black roped activists morphed the 5th Amendment into something that overrides state and local laws in regards to law enforcement.

Only problem: there ARE no "constitutional constraints" on the Supreme Court, and, of course, ALL of their decisions are "laws."

The idea that the Supreme Court's powers of judicial review are somehow limited under the Constitution is a myth.

Only problem: there ARE no "constitutional constraints" on the Supreme Court, and, of course, ALL of their decisions are "laws."

The idea that the Supreme Court's powers of judicial review are somehow limited under the Constitution is a myth.

A constructionist judge looks at a case and asks, "Does the law in question violate the Constitution"? His personal desires are not even considered. An activist judge looks at the same case and asks, "Where can I find justification to vote the way I want"? There may not be constitutional restraints on the court, but Congress CAN prevent it from hearing cases on certain issues.

I have to agree that "activist judge" is basically a judge that makes decisions unpopular with a particular group. Because, everything the Supreme Court does is basically judicial activism.
If an "activist judge" makes a ruling, and the legislature is really unhappy about it, they can always rewrite the necessary laws to narrow the interpretataion a judge can make, provided the law doesn't violate the Constitution of course.

A constructionist judge looks at a case and asks, "Does the law in question violate the Constitution"? His personal desires are not even considered. An activist judge looks at the same case and asks, "Where can I find justification to vote the way I want"?
- The question is really just about whether or not the justification is a good one, and not why the justice wished to vote that way.

There may not be constitutional restraints on the court, but Congress CAN prevent it from hearing cases on certain issues.
- Only to a limited degree, because the court has original jurisdiction over any case brought against the states.

I have to agree that "activist judge" is basically a judge that makes decisions unpopular with a particular group. Because, everything the Supreme Court does is basically judicial activism.
If an "activist judge" makes a ruling, and the legislature is really unhappy about it, they can always rewrite the necessary laws to narrow the interpretataion a judge can make, provided the law doesn't violate the Constitution of course.
- It's not clear at all the legislature has the power to do that, and, in fact, the real recourse the legislature has is the power of amendment.

The guy is clearly perfect for the job.

After watching off and on for the last two days, he seems on the ball. CP pointed out some of his more crucial beliefs. Still want to know more.

I do not know very much about Roberts but he sure does seem like one bright human.

Well, you don't make it through Harvard a YEAR early at the top of your class by being dumb. =P

Other various things:

Cowpunk is wrong, as usual. Neither the supreme court nor the judicial branch can "make" laws.

I disagree about judicial activism not being a valid term. It can be abused in a partisan manner, but when you have Justices basing their decisions off the laws of other countries, you are looking at some pretty extreme activism.

- The question is really just about whether or not the justification is a good one, and not why the justice wished to vote that way.


No. A constructionist does not bring his bias into the picture. He does not have to seek justification for his vote, as he only decides whether a law violates the constitution or not. An activist has to seek justification because his vote is determined first by his own bias and then maybe the constitution.


- Only to a limited degree, because the court has original jurisdiction over any case brought against the states.

Not quite.

Article III gives the Supreme Court two types of jurisdiction. The Court’s most important jurisdiction is appellate, the power to hear appeals of cases decided in lower federal courts and state supreme courts. Under Article III, the Court’s appellate jurisdiction extends to seven classes of cases: (1) cases arising under the Constitution, federal law, or treaty; (2) those involving admiralty and maritime matters; (3) those in which the United States itself is a party; (4) cases between two or more states; (5) cases between citizens of different states or foreign countries; (6) cases between a state and individuals or foreign countries; and (7) cases between citizens of the same state if they are disputing ownership of land given by different states. The first category is the most important. In these cases, part of the federal question jurisdiction, the Court issues its most far-reaching constitutional decisions and other major rulings involving federal law.

The Supreme Court has a far less important authority known as its original jurisdiction, which includes cases that have not been previously heard in other courts. This gives the Court the power to sit as a trial court to hear cases affecting ambassadors and other foreign officials, and in cases in which a state is a party. The Court rarely exercises its original jurisdiction, since Congress has granted concurrent jurisdiction over most of these cases to the lower courts. Only disputes between two or more states must be heard initially in the Supreme Court. In 1997 and 1998, for example, it heard a dispute between New York and New Jersey over the ownership of Ellis Island.

Congress cannot alter the Supreme Court’s original jurisdiction, but Article III of the Constitution gives it power to control the Court’s appellate jurisdiction. The Court may not exercise any of its appellate jurisdiction without congressional authorization, and Congress may limit the appellate jurisdiction however it chooses. Congress has authorized the Court to use its full appellate jurisdiction, except on rare occasions.


http://encarta.msn.com/encyclopedia_761574302/Supreme_Court_of_the_United_States.html

Perhaps you disagree with encarta. I see them as fairly authoritative.

Cowpunk is wrong, as usual. Neither the supreme court nor the judicial branch can "make" laws.
- False: as usual, Ernham is totally ignorant of information schoolchildren are required to understand.

Judges make CASE LAW, as the United States is a common law nation that operates under the doctrine of stare decisis.

Every one of the Supreme Court's decisions is the law of the land.

No. A constructionist does not bring his bias into the picture. He does not have to seek justification for his vote, as he only decides whether a law violates the constitution or not. An activist has to seek justification because his vote is determined first by his own bias and then maybe the constitution.
- And all of that is irrelevant to my statement: what matters is NOT a justice's motivation in making a ruling, but simply whether that ruling has a valid legal justification.

Not quite.
- Quite.

The Supreme Court has a far less important authority known as its original jurisdiction, which includes cases that have not been previously heard in other courts. This gives the Court the power to sit as a trial court to hear cases affecting ambassadors and other foreign officials, and in cases in which a state is a party. The Court rarely exercises its original jurisdiction, since Congress has granted concurrent jurisdiction over most of these cases to the lower courts. Only disputes between two or more states must be heard initially in the Supreme Court. In 1997 and 1998, for example, it heard a dispute between New York and New Jersey over the ownership of Ellis Island.

Congress cannot alter the Supreme Court’s original jurisdiction, but Article III of the Constitution gives it power to control the Court’s appellate jurisdiction. The Court may not exercise any of its appellate jurisdiction without congressional authorization, and Congress may limit the appellate jurisdiction however it chooses. Congress has authorized the Court to use its full appellate jurisdiction, except on rare occasions.

Note the parts I've emboldened above.

- False: as usual, Ernham is totally ignorant of information schoolchildren are required to understand.

Judges make CASE LAW, as the United States is a common law nation that operates under the doctrine of stare decisis.

Every one of the Supreme Court's decisions is the law of the land.


Eh, wrong. They set precedents, sometimes called "case law"; it's not law. Thus, lower courts will immediately use precedents set by higher courts to determine a course of judicial action. Every ruling is merely an interpretation of the law of the land, not THE law of the land. If this were not the case, we would not be seeing cases involving the same things being ruled entirely differently, assuming the court is composed of the same persons, because the argument of the attorney(s) managed to change their minds.

- And all of that is irrelevant to my statement: what matters is NOT a justice's motivation in making a ruling, but simply whether that ruling has a valid legal justification.


I think you're arguing past me. I'm defining an activist vs. a constructionist judge.


- Quite.


Note the parts I've emboldened above.

In which of today's hot button issues would Congress NOT have standing to remove the Court's jurisdiction?

Eh, wrong. They set precedents, sometimes called "case law"; it's not law.
- Eh, as usual, ignorant bull****: the common law, which is composed of judicial precedent IS "law." The fact that it isn't statutory law doesn't mean it isn't law: (from the Electric Law Library)

COMMON LAW - That which derives its force and authority from the universal consent and immemorial practice of the people. The system of jurisprudence that originated in England and which was latter adopted in the U.S. that is based on precedent instead of statutory laws.

Traditional law of an area or region; also known as case law. The law created by judges when deciding individual disputes or cases. The body of law which includes both the unwritten law of England and the statutes passed before the settlement of the United States.

In Old England there were two types of Courts - law and equity. In the law court the Judge applied statutes. As time went on situations that were not covered by statutes were uncovered and Judges 'created' law, usually in equity. This is 'common law.'

The U.S. is a common law country. In all states except Louisiana (which is based on the French civil code), the common law of England was adopted as the general law of the state, EXCEPT when a statute provides otherwise. Common law has no statutory basis; judges establish common law through written opinions that are binding on future decisions of lower courts in the same jurisdiction.

www.lectlaw.com/def/c070.htm

In other words, your claim that only statutory law is "law" is laughable horse****.

Thus, lower courts will immediately use precedents set by higher courts to determine a course of judicial action. Every ruling is merely an interpretation of the law of the land, not THE law of the land.
- No, the SCOTUS's rulings ARE the law of the land via their interpretation. Because they possess judicial sovereignty over the Constitution, the latter says what they interpret it to, thus making their interpretations the law of the land under the Supremacy Clause.

That's why, for example, Roberts himself, when being cross-examined in 2003 in the hearings for his nomination to the federal bench said, "Roe v. Wade is the settled law of the land...there is nothing in my personal views that would prevent me from fully and faithfully applying that precedent."

If this were not the case, we would not be seeing cases involving the same things being ruled entirely differently, assuming the court is composed of the same persons, because the argument of the attorney(s) managed to change their minds.
- No, because the court isn't bound to its own precendents. It's free to change its mind any time it wishes to. That doesn't make its precedents any less binding.

I think you're arguing past me. I'm defining an activist vs. a constructionist judge.
- And I'm pointing out that it's a meaningless distinction.

In which of today's hot button issues would Congress NOT have standing to remove the Court's jurisdiction?
- Any issue which arises in a lawsuit against a state falls under the court's orginal jurisdiction.

- And I'm pointing out that it's a meaningless distinction.


The difference has a huge impact, as a constructionist uses only the Constitution and prior Court rulings to decide how he will vote. An activist decides the case not on its own merits, but by his own biases, then seeks justification from any source, even foreign law, which doesn't even apply here.


- Any issue which arises in a lawsuit against a state falls under the court's orginal jurisdiction.

I must respectfully disagree and say that your opinion is faulty.

http://usgovinfo.about.com/blctjurisdiction.htm

As you can plainly see from this quote, the court's original jurisdiction is not over any case against a state.


The Justices must exercise considerable discretion in deciding which cases to hear, since more than 7,000 civil and criminal cases are filed in the Supreme Court each year from the various state and federal courts. The Supreme Court also has “original jurisdiction” in a very small number of cases arising out of disputes between States or between a State and the Federal Government.


Note what I have put in bold.

The difference has a huge impact, as a constructionist uses only the Constitution and prior Court rulings to decide how he will vote. An activist decides the case not on its own merits, but by his own biases, then seeks justification from any source, even foreign law, which doesn't even apply here.
- Answer: Constructionists aren't the only ones that use the Constitution and prior decisions to make their decisions - constructionists simply argue that, for some reason, whatever meaning the broad language the framers chose to use had at the time of signing is forever fixed.

Furthermore, since there is no constitutional standard of jurisprudence, there's no basis for claiming that extra-legal considerations are impermissible for use in interpretation. In no way does the Constitution forbid it.

Any claims made about standards of jurisprudence are ex cathedra opinions without any authoritative foundation.

As you can plainly see from this quote, the court's original jurisdiction is not over any case against a state.
- While it might be that the court has chosen to exercise original jurisdiction only in cases arising between states, or between the states and the federal gov't, that's not what the Constitution says: (from Article III)

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction.

In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
www.law.cornell.edu/constitution/constitution.articleiii.html#section1

If Congress decides to try to impede the court, the full potential of original jurisdiction can be expected to be called upon.

"Activist" is just right wing Newspeak for any ruling they don't like on partisan grounds. Nothing wrong with the court enforcing the 14th Amendment.

Bull****.

Activist judges are what we get with liberals.
Most activists are liberals.

By definition, if a conservative judge became an activist judge he would cease being a conservative.

These hearings have clearly shown the distinction between how the right views the role of the courts and how the left views their role.

Roberts Umpire analogy was perfect. He views his role as an umpire and calls them based on the rules. (Rules based upon the law) His personal feelings are irrelivent.

Liberals want the umpires to make the rules when it doesn't suit them. Liberals, by definition, believe they should use all the power of government, in this instance the courts, to further promote equality, correct inequities and deficiencies in society, with no relevence to law, hence the term "activist judge."

This is precisely how liberals have been able to enact their agenda. They cannot win at the ballot box so they must impose their agenda/views upon society by way of undemocratic judicial rulings.

There is a clear distinction between conservatives and liberals in their view of the role of the courts. These hearings have helped highlight it.

Bull****.

Activist judges are what we get with liberals.
Most activists are liberals.
- Bunk - decisions like Dred Scott and Korematsu are the most "activist" rulings in history.

By definition, if a conservative judge became an activist judge he would cease being a conservative.
- Never stopped right wing judges from ruling based on their ideology, as opposed to the law.

Liberals want the umpires to make the rules when it doesn't suit them. Liberals, by definition, believe they should use all the power of government, in this instance the courts, to further promote equality, correct inequities and deficiencies in society, with no relevence to law, hence the term "activist judge."
- Since the law regards inequities in society through means like Equal Protection, they're correct in doing so.


This is precisely how liberals have been able to enact their agenda. They cannot win at the ballot box so they must impose their agenda/views upon society by way of undemocratic judicial rulings.
- And since those ruling were correct, like the right of privacy and ending segregation, they were correct in doing so.


There is a clear distinction between conservatives and liberals in their view of the role of the courts. These hearings have helped highlight it.
- And, once again, you prove that "activist" simply means any ruling you don't like, based on right wing ideology. The role of courts is never mandated in the Constitution, so you're hardly justified in saying it has to be the way you want it.

- Bunk - decisions like Dred Scott and Korematsu are the most "activist" rulings in history.


How is that? These rulings were based on legislation that was in existence no matter whether the legislation was morally right or not.

Never stopped right wing judges from ruling based on their ideology, as opposed to the law.


By definition, if such conservative begins ruling based on ideology rather than the law he ceases to be a conservative and becomes an activist.

We are a nation of laws, not men.

Since the law regards inequities in society through means like Equal Protection, they're correct in doing so.


You just proven that my assertion is 100% accurate on how liberals view the courts. Sorry friend, that's not their role.

Legislation through elected legislators is how we correct inequities in society.

And since those ruling were correct, like the right of privacy and ending segregation, they were correct in doing so.

You prove it again. You are making this easy sir.

That isn't the role of the courts, that's the role of legislation, created by legislatures, who represent the will of the citizenry.
That way, it can be changed, corrected, altered, or amended much easier and reflects the current moral values of the society.

And, once again, you prove that "activist" simply means any ruling you don't like, based on right wing ideology.

I've proven no such thing. You, on the otherhand, have clearly proven that you believe the role of the court is to take a direct role in enacting a particular agenda and shaping America.

Yours is a leftist/liberal view and your view politicises the court, something that is harmful and should be avoided.

The role of courts is never mandated in the Constitution, so you're hardly justified in saying it has to be the way you want it.

It's pretty clear what the role of the courts are. Adjudicate law, determine constitutionality.

This all boils down to whether or not Americans want unelected judges to make important determinations for them or whether they want to do it the American way, the Democratic way, through the ballot box.

Your position is un-democratic which makes your position un-American.

^ patently ignorant post

read up on "common law" before you post more idiocy like that ... you look foolish

^ patently ignorant post

read up on "common law" before you post more idiocy like that ... you look foolish

Common law and case law are not "the law." The law is only created by the legislature, regardless of what hoi poi like you and cowpunk think. They are not the same thing. Disagree? Then what happens when the legislature passes a law that directly contradicts a common law? *Jeopardy music*

this is what happens ...

"A statute should be construed in harmony with the Common Law unless there is a clear legislative intent to abrogate the Common Law." --United Bank vs. Mesa
Nelson Co., 121 Ariz 438, 590 P2d 1384, 25 U.C.C.RS 1113

If you think America is a "Civil Law" country you are mistaken ... Lousiana is the lone exception

Perhaps you would be more comfortable living in Europe which is largely codified

Ultimately the law is the constitution, but it is interpreted under the common law

Common Law is derived from the Magna Carta which limited the powers of the King and guaranteed the liberties of the people (as opposed to the Roman Civil - Statutory law that keeps the power and control with the government )

this is what happens ...


Yes, and the net result is:

Law > Common Law
Law > Case Law
Law =/= case law =/= common law.

^ patently ignorant post

read up on "common law" before you post more idiocy like that ... you look foolish

ROFL.

That's pretty funny Java Man. That must explain why are unable to rebut, refute or demonstrate why my statements are wrong.

Thats the best you can do? Childish insults? I suppose when you run out of arguments and talking points childish insults are all you have left.

You argue like Truth Teller. Welcome to ignore!

Debate the posts, not the posters.

And a tip to all of you: If you feel like you're being baited, don't rise to the bait.

Childishly insulting someone who childishly insulted you still means that you insulted them. :|

ROFL.

That's pretty funny Java Man. That must explain why are unable to rebut, refute or demonstrate why my statements are wrong.

Thats the best you can do? Childish insults? I suppose when you run out of arguments and talking points childish insults are all you have left.

You argue like Truth Teller. Welcome to ignore!

Have it your way then :D you wont have to see the carnage

How is that? These rulings were based on legislation that was in existence no matter whether the legislation was morally right or not.
By definition, if such conservative begins ruling based on ideology rather than the law he ceases to be a conservative and becomes an activist.
We are a nation of laws, not men.

And based on the constitution and legal precedents (that is the common law part that you and your ilk ignore)

You just proven that my assertion is 100% accurate on how liberals view the courts. Sorry friend, that's not their role.
Legislation through elected legislators is how we correct inequities in society

No ... you are wrong which seems to be a habit

one of the MAIN roles of the courts (and law) is correcting inequities

You prove it again. You are making this easy sir.
That isn't the role of the courts, that's the role of legislation, created by legislatures, who represent the will of the citizenry.
That way, it can be changed, corrected, altered, or amended much easier and reflects the current moral values of the society.

oh GAWD that’s funny ... do you actually believe this ??? I hope not


I've proven no such thing. You, on the otherhand, have clearly proven that you believe the role of the court is to take a direct role in enacting a particular agenda and shaping America.
Yours is a leftist/liberal view and your view politicises the court, something that is harmful and should be avoided.

your ill-informed opinion based on complete ignorance of the American legal system and common law ... your AM talk radio world view is at odds with the constitution and the framers intent ... you obviously did not complete your reading assignment, I'm trying to edumacate you to prevent further embarassment.

It's pretty clear what the role of the courts are. Adjudicate law, determine constitutionality.

In a civil legal system e.g. France, Germany, Italy etc etc not limited to those under the English common law "American" system ... but please don’t let facts get in the way of your gibberish

This all boils down to whether or not Americans want unelected judges to make important determinations for them or whether they want to do it the American way, the Democratic way, through the ballot box.

When your next door neighbor cuts your trees down for firewood ... you going to pass a ballot around to make it right ? ... your friggin hilarious

Your position is un-democratic which makes your position un-American

:blahblah: :blahblah:

Thats damned ironic considering you think our system is European civil law

Debate the posts, not the posters.

And a tip to all of you: If you feel like you're being baited, don't rise to the bait.

What do you mean "feel"?

Are you kidding?

That post was a post laced with insults.
How did it not violate the rules?

:bs:

Stage monster posted that at 1:05 ... then you edited your post at 1:30 which means you read it then and removed your TOS violation ... please take your whining somewhere else

Perhaps you would be more comfortable living in Europe which is largely codified
Although it should be pointed out that the most serious crime in Britain, murder, is handled entirely under the common law. There is no statute making murder a crime there.

Yes, and the net result is:

Law > Common Law
Law > Case Law
Law =/= case law =/= common law.
Irrelavant - the common law can also be used to strike down statutory law, as whenever the SCOTUS rules that a legislative act is unconstitutional under judicial review.

And, of course, unless a statute mandates otherwise, the common law reigns.

The idea that that the common law isn't "the law" is nonsense. Statute is one basis of the law in the US, and the common law is the other.