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October 31, 2005



Nothing unifies like a war - and that is what we gonna get.


You heard "DeVito" on the radio and now you need your glasses checked?

You hear through your eyeballs?

cathy :-)


Hey TM,

My take is that Harriet Miers was never the pick, but only the "decoy" until after Fitzmas.

Note that after she withdrew her 'nomination' last week, and after Fitz's findings, she went to work this weekend with the President on the Alito pick.

This will be forever referred to as the Miers Pick Play".

Bush Misunderestimated again!

Pure Genius!


It isn't so far-fetched to appoint an actor to the Supreme Court. Actors are trained to read lines exactly as written by others. And the leaders of the Religious Right now write the script for the Supreme Court.


And the leaders of the Religious Right now write the script for the Supreme Court.

Yeah. You can tell because they keep issuing those religious decisions like Lawrence.


Leaders of the Religious Right now write the script for the Supreme Court.

Well whoever wrote the script for the Lawrence v. Texas decision mangled the plot.

Not to mention Kelo, and about a dozen other issues involving pornography and the First Amendment and the Establishment Clause.

I voted for a theocracy and I'm not satisifed. Another damned broken Bush promise.

Praise the Lord and pass the keyboard.



macranger: "My take is that Harriet Miers was never the pick, but only the "decoy" until after Fitzmas."

It sure looks like it. Must be that "evil" Karl Rove again. If so, it was a brilliant move.

Cynical Nation

I like Judge Alito, but I was about disappointed at his handling of that whole "O.J. Simpson" trial a few years back.


Good luck for your modern country
Cheers from happily old Europe


Where your religious struggles are now class struggles.

Harry Arthur

And the leaders of the Religious Right now write the script for the Supreme Court. As a member of the "RR" I can confirm that this is in fact true. For instance, remember that James Dobson was one of the first to support Ms Miers, and now that she is on the court, I'm sure she'll rule exactly as he and Jerry Falwell direct.

Trelaney, you should have read your drivel and thought about it for a minute or two before you hit the "Post" key. If it is your contention that those of us who consider ourselves conservatives and who also profess a religious faith are mindless robots who are easily led, then you really need to get out more and meet a few of us. We're not really bad people, don't have any inclination to impose our religious beliefs on you or anyone else, and we predominantly believe the constitution should mean what it says. We do, however, believe that we enjoy the right as American citizens to freely express our beliefs and ideas in the public forum, just as you do.

If any of that makes me or any of my family and friends a danger to the republic, sorry.

Harry Arthur

Om, heh?

Harry Arthur

Om, enjoy it while it lasts. As Europe rapidly becomes Muslim, I'll look forward to your commentary on religious freedom and tolerance.


Sorry Mac, Meyers was definitely the real pick. She was an old line Dallas business lawyer from an established establishment firm, and got picked on by folks who intentionally or unintentionally misrepresented common courtesy as legal writing.

Alito and she will probably vote the same way 80 to 90 percent of the time. If Casey is any indication, Alito will just be more "in yo' face" about it. So, party on.

Husband notification? Next thing you know, it will be a papal permission slip. That will not go down well with most folks.

Inspector Callahan

Husband notification? Next thing you know, it will be a papal permission slip. That will not go down well with most folks.


I don't know what color the sky is on your planet, but I don't buy this for a minute. How ANYONE can possibly defend a married woman getting an abortion without INFORMING (not asking permission) the husband, when the child is the husband's, and there is no abuse in the relationship, and the husband is present, is completely beyond me. These exceptions DID exist in the original Pennsylvania statute.

Notwithstanding the differing opinions on abortion's legality, here's what the American people really think:

Seventy-two percent would require spousal notification.

TV (Harry)



I really don't see any married woman not informing her husband without a very good reason. What I don't see is why we would need a statutory requirement for same. The Penn law overturned in Casey was an attempt to create red tape impediments - nothing more. A woman would be forced to overcome a presumption that the baby was not her husband's - before she could avoid telling him that she suspected so.

"Honey, I'm pregnant, and its not yours. See ya."

Not many married women would elect that option - which is precisely why it was part of the statute.

Harry Arthur

TT, I believe judge Alito's point would be that whether or not he agreed with the provisions of the statute, his job was to determine whether, under the provisions of the US consitution, the duly elected legislators of the state of Pennsylvania, representing the people of Pennsylvania, had it within their authority to enact such.

Futher, one could argue that the right to an abortion, construed by prior courts under the privacy provisions of the constitution is not absolute, nor is it without limitations. I take it that your disagreement, and admittedly that of the sitting SC judging Casey, is/was with the limitations imposed and whether they were reasonably and legally enacted by representatives of the people of Pennsylvania.

I would argue that concern about a potential for overturning Roe is essentially misplaced. If the rights construed under the Roe decision are in fact supported by the preponderance of the American public, as the "pro choice" side asserts, then the result of overturning Roe is that the elected representatives of those people will simply leave in place existing laws recognizing the right to access to an abortion.


As Harry above noted, you and I may think the spousal notification requirement is a dumb law. Or stupid law. Or ugly law. Or unfair law. Or silly law. Or insensitive law.

But the question for Judge Alito was whether the law was unconstitutional.

If it doesn't violate the constitution, then Alito cannot strike it down.

Unless you want to let the judiciary run the country?

Well, maybe not this judiciary after Bush gets done with it.



Yer right SMG. Is it unconstitutional?

Yep - its an undue burden - designed to impose a world view not shared by at least half the population.

The constitution is not dead, thank God.


Impose a world view not shared by at least half the population.


I understand the "undue burden" standard as posited by O'Connor in Casey (well, I'm not sure about the specifics of that standard, but I understand the argument you're using).

But when you get to the "world view not shared by at least half the population" you confused me.

What does that have to do with the constitutionality of a law? Doesn't matter whether 1% of the population or 99.9% of the population supports or opposes the legislation or the world view it promotes.

If the Constitution doesn't forbid it or allow it, then it must stand or fall.

George Gallup isn't supposed to clerk for any of the Justices.

Although he probably did for O'Connor.



Lots of things are burdens; which are due, and how so are they?



As I am sure you are aware, the constitution strikes a balance between the rights of the individual and the rights of the "majority" as expressed through the legislature. The Casey court found the "husband notification" portion of the Pennsylvania law an undue burden on the rights of the individual woman seeking an abortion. The only majority I am addressing is the majority in favor of choice. There are many constitutional doctrines that have been reinterpreted over time - separate but equal, one man one vote, right to counsel. Our society is not static, and neither is our constitution.

Consider the law as analogous to a tectonic fault line. The plates move along the fault line over time as the continents drift . Sometimes, however, something gets stuck and the plates cannot move gradually. The pressure builds, and builds, and builds until one day the plates shift violently along the fault in an earthquake. Alito's voting record is not merely a check on change - it is a force trying to reverse the direction of the tectonic plate of society. Impediments to gradual change are much more “activist”’ than adjustments required by changes in society. Societies that are resistant to change eventually explode into Revolution. So far we have only had one truly revolutionary period in our history –a revolution fueled by the acts of conservatives who seceded from the union. This revolution resulted in the abolition of slavery and the 14th Amendment but at the cost of a war that more Americans died in than all others combined. An “activist” conservative decision in the Dred Scot case helped fuel that earthquake

I myself would rather see gradual change in the law in step with society than a violent earthquake. That’s what the court has done since the days of the “Four Hoursemen” allowed the law to stay aligned with society Much of the opposition to the “activist” Court is really opposition to change. Its like trying to hold back the continent.

Harry Arthur

Seems to me that the founders envisioned the amending process to be the vehicle by which the majority deals with societal change. That's the "living" aspect to the constitution, otherwise we have judicial anarchy if the constitution says whatever nine judges say it says.

I seem to see in your argument an assertion that one type of judicial activism is OK - that which produces results with which you agree - and the opposite side of judicial "activism" is not OK - that which produces results with which you disagree.

See my comments above on Roe and the alleged majority opinion on the subject.

We simply disagree on the job of the judiciary. IMHO it is not their job to affect or reflect societal change, that is for the legislatures and the amending process, it is as Justice Roberts opined, to be umpires.



Using your baseball analogy (those seem to be popular these days), the Casey court called the Pennsylvania law a ball instead of the strike that you would have liked to have seen. Now, the people by amendment can change the rules that define the strike zone, but only umpires can call balls and strikes (as Tony LaRussa was recently reminded).

If, however, the umpires call the balls and strikes in a way that is perceived by the fans as unfair or inconsistent, either they wont be umpires for long or the fans that support the game will seek other forms of entertainment and baseball will die. Ultimately, it’s the fans that decide the “rules” by their votes in the voting booth or the turnstiles. Without the fans (people), who cares about the call?

Abortion is probably the most difficult moral dilemma of our era – but a 7-2 majority appointed mainly by Republicans before it became a litmus test for appointment gives us a clue about how most of society calls this pitch. Sorry, it ain’t a strike.


I loved the war of the Roses movie. I think who ever Bush picks for the position will suck and be apart of this Gangster Capitlist regime.

Harry Arthur

Tex, sorry, I don't particularly like analogies (they often confuse me and are never perfect) but for some strange reason went with Roberts' umpire analogy. In all honesty, I believe Roe would have been better left in the legislatures for reasons other than my opposition to judicial activism. At least in the legislatures we would have had the opportunity to democratically decide the abortion issue rather than having it imposed by nine "wise 'men'."

My firm belief is that had we been able to have had a political fight, discourse, argument, or whatever, we would have come to some mutually reasonable political compromise that would have at least largely resolved the issue, and moved on. As it is, it is as if we are stuck in the Groundhog Day movie (oops, sorry for the analogy).

I also think the decision was bad law, but we know that reasonable people reasonably disagree on that as you and I pretty obviously do. I would, I hope reasonably, disagree with your assessment that the majority of society feels any particular way about abortion.

The whole issue is full of, for lack of a better term, nuance. It is arguably how one phrases the question one is asking about abortion that determines the answer. For example every poll I've ever seen indicates that the majority do not want the government to impose a "governmental" solution on these questions. On the other hand, the same majority always polls as opposing unlimited abortion for any reason. I'd suggest that the consensus is that the majority of society (and the majority is always fairly thin) when they support abortion also support limitations of some sort on its use. In short, I would argue that illustrates my point that the answer lies somewhere in the middle. Maybe "safe, legal and rare" is the answer after all - I don't know. I'd just like to see the solution decided democratically.

Harry Arthur

Tex, here is an interesting take on the subject of the "living constitution" from Justice Scalia via Patterico:

The American people have been converted to belief in The Living Constitution, a "morphing" document that means, from age to age, what it ought to mean. And with that conversion has inevitably come the new phenomenon of selecting and confirming federal judges, at all levels, on the basis of their views regarding a whole series of proposals for constitutional evolution. If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.

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