posted
Apparently Bush doesn't get that, no matter how the Dred Scott case turned out, someone would have called it a "matter of opinion". They found against Scott, so it's because the judges' "opinion" was that slavery was good. Of course, if they had found for Scott, people at the time would have said the justices were abolitionists who were using the case to promote their own feelings. "Activist judges", if today's terminology had existed then.
As for the abortion thing...
"The question that was asked did not refer to any exceptions for the life or health of the mother. Some room has to be given for common sense exceptions on most issues in a debate, but on an issue that has become so technical at its margins, like abortion, I think the better policy is to take a question like that at face value. Kerry�s yes or no answer to that question was he thought you should be able to have one. But he was being a smart debater by not playing into the questioner�s hands by saying yes or no because people would not have listened to his qualifications afterwards."
I'm not quite sure I see what you're getting at. Kerry said that he favors a partial-birth abortion ban, but he couldn't vote for the one presented in Congress because of the specifics of it. Bush then retaliated by saying, essentially, that a vote against any PBA ban is a vote against all PBA bans. The issue I was addressing was not the original question, nor Kerry's answer. The issue is Bush's response to that answer, and his apparent inability to understand that someone can vote against a specific bill while still supporting some portion of it.
[ October 10, 2004, 12:10 AM: Message edited by: TSN ]
Registered: Mar 1999
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posted
Honestly, TSN, I don't get your first sentence. What I think he was trying to say was not necessarily that slavery was bad, but that the Court went too far in its decision. They could have stopped at Scott having/not having standing and letting the political branches tackle the problem of which political value has priority, property rights or human equality. Activism can go both ways, of course. Bush wants judges to exercise a little bit more restraint in taking issues like that.
As for abortion, I see what you are getting at now. (That paragraph I wrote really wasn't well written on second sight. It needed another edit.) Perhaps what he was getting at (and I know I'm on a limb on this one; I don't have time to research the legislative history this moment) is that, in order to keep the Supreme Court from knocking down another partial birth abortion ban, Congress tried to do some fact-finding on whether there is ever really needed such an abortion for the life or health of the mother. If I recall correctly, they found that there really weren't any such circumstances that medicine had identified as demanding such a procedure. Therefore, if Kerry was voting against the ban for only that reason, then what Bush was trying to do was move past an excuse like "life and health of the mother" since no real exception was needed. If Kerry knew that, then what he was really doing was just voting no to the ban, which is what Bush was saying.
This is why I hate these debates. With only an hour and a half to talk, you can't go from A to B to C to D to E to F. You have to go from A to L to T to Z and hope your surrogates can take on the more wonkish points. But, then again, that's expecting a lot out of any candidate, and for reasons of sheer human economy, we can't reasonably expect any president to be able to talk on the level of a specialist who can afford years of study on minute, if important, issues.
-------------------- "Warfare is the greatest affair of state, the basis of life and death, the Tao to survivial or extinction. It must be thoroughly pondered and analyzed."
"...attaining one hundred victories in one hundred battles is not the pinnacle of excellence. Subjugating the enemy's army without fighting is the true pinnacle of excellence."
-Sun Tzu, The Art of War, 6th century B.C.E.
Registered: May 1999
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quote:Originally posted by David Sands: Well, I would imagine some of them, if not picked, might vote for the other side! Especially the more libertarian ones who don�t like to see new and expanded spending programs.
Another mid-packing post.
If it�s not abundantly clear, let me help make it so.
Mr. Bush, in making a joke about wanting the members of the Supreme Court vote for him, considering the 2000 Florida election fiasco, showed extremely poor taste and bad judgement.
[ October 09, 2004, 03:41 PM: Message edited by: Jay the Obscure ]
-------------------- Great is the guilt of an unnecessary war. ~ohn Adams
Once again the Bush Administration is worse than I had imagined, even though I thought I had already taken account of the fact that the Bush administration is invariably worse than I can imagine. ~Brad DeLong
You're just babbling incoherently. ~C. Montgomery Burns
Registered: Mar 1999
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posted
Oh, I see what you were thinking now. The reason I didn't see that is that he was referring to his potential nominees voting for him as president (and most of those people know who they are since the President's counsel has been interviewing them throughout this term). Since he's not going to get to choose anyone before the election, short of three or more of the justices dying before the end of December, I just didn't think of that as a realistic possibility and worthy of outrage.
Do I feed this board "mid-packing post[s]"? I know I've gained some weight over the past three years. I didn't realize I was making everyone else fat too!
-------------------- "Warfare is the greatest affair of state, the basis of life and death, the Tao to survivial or extinction. It must be thoroughly pondered and analyzed."
"...attaining one hundred victories in one hundred battles is not the pinnacle of excellence. Subjugating the enemy's army without fighting is the true pinnacle of excellence."
-Sun Tzu, The Art of War, 6th century B.C.E.
Registered: May 1999
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posted
Making a joke about the Court voting after Florida is just bad taste.
At any rate, I'm turning off the computer to pack it away for moving.
Have a good weekend.
-------------------- Great is the guilt of an unnecessary war. ~ohn Adams
Once again the Bush Administration is worse than I had imagined, even though I thought I had already taken account of the fact that the Bush administration is invariably worse than I can imagine. ~Brad DeLong
You're just babbling incoherently. ~C. Montgomery Burns
Registered: Mar 1999
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Jay's post is the "mid-packing" one. Because he posted it while in the middle of packing.
"Perhaps what he was getting at (and I know I'm on a limb on this one; I don't have time to research the legislative history this moment) is that, in order to keep the Supreme Court from knocking down another partial birth abortion ban, Congress tried to do some fact-finding on whether there is ever really needed such an abortion for the life or health of the mother. If I recall correctly, they found that there really weren't any such circumstances that medicine had identified as demanding such a procedure."
The sponsors of the bill say there's no need for a "health" clause. The majority of the Supreme Court say there is. I have neither the time nor the resources to do the research myself, but I would tend to believe the SC in this case. Especially since there's another difference of opinion there: the SC says PBA is safer than the alternatives; the bill's sponsors say it's more dangerous. Judging from the descriptions of the procedures in the SC's majority opinion on the Nebraska PBA case, I have a hard time understanding where the Congresspeople in question could get such an idea.
Registered: Mar 1999
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posted
As long as I'm mentioning the Nebraska case (Stenberg v. Carhart), I'd like to suggest that anyone interested in the partial-birth abortion issue read the Supreme Court's decision on it. I suppose I should give warning, though: it goes into quite a bit of detail about the actual abortion procedures, and, well... it's not exactly the sort of thing you'll probably want to print out and read over breakfast, is all.
Registered: Mar 1999
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posted
I�ll leave whether there is ever a need for a partial birth abortion to people more familiar with the issue than I. But just to give the other side for anyone who is interested, try National Abortion Federation v. Ashcroft for an opinion where the judge thinks the Supreme Court was wrong on whether this form of abortion is ever really that necessary and reciting quite a number of facts he found in trial to that conclusion.
I think your faith in the Supreme Court�s factfinding ability is a little much. This is actually one of the few areas of constitutional law I did any intensive work, and I can tell you that neither a court nor Congress is necessarily a better finder of fact than the other. I�m actually of the opinion that on certain issues, it�s better to house factfinding in the Court, but on other issues, the conflicts of interests each branch has are not of such different quanta and the propriety of one side gathering facts over another is not that clear.
There are advantages in factfinding the Supreme Court has over a legislative body. Congress is highly susceptible to (1) politicians� interest in reelection, (2) their desire to pack committees with like-minded individuals, (3) a tendency to pack legislative history with information supporting their favored view, (4) minority constraints (e.g., cloture requirements), and (5) a lack of follow-up attention after enactments, and inertia. In the litigation process, (6) the adversarial context can result in a more complete set of data than an inquisitorial context (though I would not say that Congress is without adversarial components of its own).
However, there are advantages in factfinding Congress has over courts too. (1) Members have contact with informed members of interest groups (judges are ethically obligated not to have ex parte contact with interested parties). (2) Congress also has the resources of the legislative research services at its beck and call. Courts can appoint impartial referees, but the Supreme Court seldom uses them except in cases of its original jurisdiction (e.g., land and water disputes between states). And besides, the district court in theory should have done the factual heavy lifting anyway. There are a lot of other advantages Congress has: (3) sizeable staffs attached to each representative and funds for research, (4) lack of constraints to decide controversies immediately, (5) subpoena power to marshal facts from witnesses and documents just like a court, (6) more members with backgrounds relevant to the controversy, and (7) no constraining doctrines like stare decisis. Congress (7) can also engage in complicated cost/benefit analysis that is inappropriate for a court to do. Congress (8) can reverse itself if it gets something really wrong instead of waiting for another test case.
I would also say that not all levels of courts are equal to the task either. I would much rather trust a district court judge�s findings of fact than a justice�s. The lower courts are much better equipped for that kind of factual investigation.
So while I think you have a point, TSN, that the Supreme Court might find facts better than a legislative body, I don�t think it�s a simple as putting one�s faith in that court because the justices are insulated from democratic pressures.
-------------------- "Warfare is the greatest affair of state, the basis of life and death, the Tao to survivial or extinction. It must be thoroughly pondered and analyzed."
"...attaining one hundred victories in one hundred battles is not the pinnacle of excellence. Subjugating the enemy's army without fighting is the true pinnacle of excellence."
-Sun Tzu, The Art of War, 6th century B.C.E.
Registered: May 1999
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posted
Well, regardless of who has the better fact-finding resources, it seems to come down to this: every time they get a bunch of doctors together to testify about it, half of them say it's safe (or safer than the alternatives) and sometimes necessary. The other half say it's unsafe (or less safe than the alternatives) and never necessary. So, if these are the experts, and even they can't agree, what are you going to do?
If the doctors can't agree, and the judges can't agree, and the legislators can't agree, we're all pretty much left to make our own opinions. And, personally, reading the descriptions of the procedures in Stenberg, the "alternatives" don't sound like they could possibly be safer or less "barbaric" as some people have brought up.
Now, the way I see it, the reason people keep proposing these bans is not because they're trying to protect the women's safety or be gentler to the babies being aborted; it's that they're opposed to abortion in general, and they're trying to find excuses to limit it where they can. Thus, the reason I think the courts are right to strike down such laws.
Registered: Mar 1999
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posted
Regardless of the "facts", neither candidate is looking to take apro-choice stand during an election year: the pro-choicers have far too much political sway for that to be a wise move.
Why is it that common sense choices (like upholding personal freedoms) are taken for granted, while those special intrest groups that would remove personal freedoms for whatever supposedly "moral" or ethical reasons become political forces to be reckoned with?
(sigh)
-------------------- Justice inclines her scales so that wisdom comes at the price of suffering. -Aeschylus, Agamemnon
Registered: Aug 2002
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Cartman
just made by the Presbyterian Church
Member # 256
posted
Because most people either don't recognize or don't care about the value of something until they've lost it.
Registered: Nov 1999
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For TSN and Jay: an article on what Bush meant in the debate when mentioned Dred Scott. I've heard most of these arguments hanging around law professors. I would disagree with the article not on target (abortion) but on scope (I think Bush meant a lot of Warren Court precedents). But Roe v. Wade is viewed by many (not just conservative law professors) as a deeply problematic case, in that it was the logical outcome of the legal realist movement. Some in the legal realist movement argued that all law, including litigation, especially at the the applleate level, is an exercise in policy-making (i.e., politics), and that it was not improper for judges to write their decisions with an eye to what the proper outcome was, not merely what the existing law was. This is a highly disputed area of what exactly are the proper bounds of judge's authority under the doctrine of judicial review (e.g., Ruth Bader Ginsburg and Abner Mikva have both said the issue probably would have been better left to legal reformers in the state legislatures). Consequently, you get opinions like that Blackmun wrote that have an uncomfortably "legislative" feel to them. Bush's mention is a stand against that.
That said, I think the article pulls its punches. What Bush really wants is a retrenchment of a lot of precedents that have increasingly come under fire in the past 20 years as unsustainable rulings of the Warren Era (e.g., criminal procedure, religious liberties, the Takings Clause, federalism). So while Dred Scott is a great example of how morality can get lost in positivism, I think Bush might have had deeper constitutional principles in mind than just the law of abortion.
[ October 11, 2004, 07:45 PM: Message edited by: David Sands ]
-------------------- "Warfare is the greatest affair of state, the basis of life and death, the Tao to survivial or extinction. It must be thoroughly pondered and analyzed."
"...attaining one hundred victories in one hundred battles is not the pinnacle of excellence. Subjugating the enemy's army without fighting is the true pinnacle of excellence."
-Sun Tzu, The Art of War, 6th century B.C.E.
Registered: May 1999
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However, I've still not set up my computer for reasons that I don't need to go into here. I am using the computer at the in-laws presently. No real time to get into things.
At any rate, when I do get it set up, I might have a thing or two to say.
-------------------- Great is the guilt of an unnecessary war. ~ohn Adams
Once again the Bush Administration is worse than I had imagined, even though I thought I had already taken account of the fact that the Bush administration is invariably worse than I can imagine. ~Brad DeLong
You're just babbling incoherently. ~C. Montgomery Burns
Registered: Mar 1999
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posted
C'Mon, Jay! If you're gonna tease us about future posts, at least add some drama to it like this:
quote:Originally posted by Jay the Obscure: We've moved!!
HA!!
However, I've still not set up my computer for reasons that I don't need to go into here. I am using the computer at the in-laws presently. No real time to get into things....
But rest assured, once I do get it set up, I'll show you! Show you ALL!!
Sure you sound rabid, but at least we'll read your posts next time.
-------------------- Justice inclines her scales so that wisdom comes at the price of suffering. -Aeschylus, Agamemnon
Registered: Aug 2002
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