“Originalism”

Robert Bork, Controversial And Rejected Supreme Court Nominee, Dead: Brings Back Memories And Reflections On Effect On Supreme Court

Twenty five years ago, President Ronald Reagan nominated Robert Bork, former Solicitor General and Acting Attorney General under President Richard Nixon, as an Associate Justice of the Supreme Court. His death was announced today by his son.

Bork had become controversial for firing Special Prosecutor Archibald Cox during the Watergate Scandal, as ordered by President Nixon. But he also became controversial for the judicial viewpoint known as “originalism”, which contended that judges and Justices should always interpret the Constitution solely on the basis of what the Founding Fathers enunciated in the 18th century, and not consider changing times in their decisions.

This alarmed progressives, liberals, labor supporters, African Americans, women, environmentalists, and others who saw him as a threat to progress on race and gender, and also on privacy rights, including abortion and contraceptives, of which he vehemently was on record as an opponent of such rights not contained in the original Constitution. Ted Kennedy and Joe Biden became major critics, and his nomination became a massive controversy, and made it that future Supreme Court nominees would be examined with a “fine tooth comb”, making them less willing to be as forthcoming as Bork was in the Senate Judiciary Committee hearings.

Bork also believed in no limitation on police rights, and thought evolution should not be taught in public schools as fact, therefore promoting fundamentalist religion as part of the curriculum of schools. He was confrontational in his approach, giving as good as he received in the pursuing debate. He displayed no problem with the growth of monopolies, and had no interest in the rights of gay men and women.

After a bitter battle, he was rejected, and this affected the future Court, as Anthony Kennedy became the new appointee the following year, and now after almost 25 years on the Court, has become in recent years the “swing” vote on many cases, therefore having a major impact on constitutional law.

Do not forget that Kennedy’s vote on Gay Privacy rights, in Lawrence V. Texas in 2003, transformed the gay rights movement, and it is thought likely that his vote will call for the allowance of gay marriage when the cases presently before the Court come up for consideration in March, and decision in June!

There is no way that Robert Bork would have been a “swing” vote on the Court, and might very well have been MORE conservative and right wing than either Antonin Scalia or Clarence Thomas have turned out to be, so it was a great moment when Bork, with his radical right agenda, wishing to turn back the decisions of the Earl Warren and Warren Burger Courts that expanded individual rights from the 1950s through the 1980s, was soundly rejected!

Associate Justice Antonin Scalia Compares Gay Marriage To Murder! Totally Reprehensible!

Supreme Court Associate Justice Antonin Scalia has never hidden his ideological agenda on the Court, any more than Associate Justice Clarence Thomas.

Both men, the most ideologically right wing of the past century, are clear in their prejudices and biases, and desire to bring America back to the 18th century, the time of the Founding Fathers, and the much promoted concept of both Justices known as “originalism”

The fact that the Founding Fathers included slave owners, treated women as second class citizens, and did not trust the masses of citizens so as to give them the vote for President or the US Senate, and limited the right to vote for white males to those who owned property in that time period, does not have any effect on either Scalia or Thomas.

If it was up to them, nothing would have changed, despite the fact that Italian Americans, such as Scalia, and African Americans, such as Thomas, were not considered human beings by most of the WASPS who dominated American government, and mistreated both ethnic groups well into the 20th century! The fact that Scalia is the first ever Italian American Justice, and that Thomas is the second ever African American Justice, seems not to have made them pause and realize the nature of progress and change!

So we know the narrow mindedness of both men, but to have Justice Scalia, who claims to be a great intellectual, and loves himself publicly, to compare gay marriage and gay rights to the horrors of murder, makes one think he is losing it completely, and needs to announce his retirement from the Court this coming June, after being in the hateful minority with Thomas on discrimination against a group, gay Americans, which has suffered more hate and prejudice than any other group in the history of the world, simply because of their sexuality, when that is none of anyone’s business!

If it is alright to have interracial marriage, or marriage between Catholics and Protestants, or Christians and Jews, all groups which have had to fight for their rights to marry, then it is alright to have two men or two women who love each other and wish to commit their lives to each other, to marry and have the benefits and security of marriage, and no prejudice, bias or hate should be allowed to get in the way of their commitment!

Scalia looked like a fool when answering the question of gay Princeton University freshman Duncan Hosie, who demonstrated great courage and dignity in his approach to Scalia, in front of a large audience.

No one is claiming that any person is free of prejudice and personal opinions, but it is totally inappropriate for a member of the Supreme Court to be so openly hostile and antagonistic as Scalia is on gay rights and gay marriage, and his behavior gives license to religious freaks and other hate mongers to continue to encourage actions and violence against gay Americans, and their and his behavior is therefore, morally reprehensible!

Trying To Fathom The Supreme Court On Health Care: The Court Under The Microscope

Yesterday’s oral arguments before the Supreme Court led many observers to think that the Court is about to declare the Obama Health Care law unconstitutional this coming June.

Not so fast, ladies and gentlemen! This is hysteria and panic before the fact, with plenty of opportunity after the Court decision, if it is, indeed, negative!

Emphasis was put on Justice Antonin Scalia’s sarcastic comments about mandating broccoli, a totally ridiculous statement! But one must remember that Scalia is a showboat, a maniacal egotist who loves to hear the sound of his own voice, and get everyone’s attention, and one must remember that the Court was issuing an audio of the oral arguments immediately after the event, a very rare circumstance, and that had to be on Scalia’s mind!

Scalia was thought to be a possible vote, but if it is not, so what, as Scalia is, arguably, a hypocrite who is constantly contradictory, utilizing a broad interpretation of the Constitution, when he wishes to, and other times, pontificating on “originalism”, the idea that we must literally follow the Founding Fathers as they saw things in 1787 at the Constitutional Convention.

More importantly, the view of Justice Anthony Kennedy and Chief Justice John Roberts will be the crucial votes, and although Kennedy and Roberts both expressed some reservations about the Obama Health Care bill and the mandate contained within it, there were also key comments by both that indicated a mind open to consideration of the constitutionality of the law.

Kennedy is usually the swing vote, and seemed conflicted, which can be seen as a good sign, and Roberts seemed very evenhanded, and is known to want to be in the majority, and probably write this most important decision of the past decade, and aware that the Supreme Court does not look very good in the eyes of many people based on recent cases, particularly the Citizens United Case of 2010, on top of the Bush V. Gore case of 2000.

The argument is that if Kennedy goes to the majority, then Roberts will join, and the vote would be 6-3.

And one must point out that the four defenders of the legislation were excellent in their arguments supporting the legislation, with Justice Stephen Breyer, a true intellectual, particularly outstanding in his arguments, but joined by Ruth Bader Ginsberg, Sonia Sotomayor, and Elena Kagan.

So, with one more day of oral arguments, it is not time to give up on support of the legislation, and also realize that one cannot always judge how members of the Court will vote, based on oral argument alone, as often, what is being done is to test both sides in the case, and sometimes, purposely mislead on intentions, in the process of asking the lawyers in the case to defend their side.

This decision is far from certain, but progressives should feel optimistic about it at this point, and simply wait patiently to see the result, knowing that the cause is just and compassionate, and that those of us who support it are on the right side of history with Franklin D. Roosevelt’s New Deal and Lyndon B. Johnson’s Great Society!

A Generation Of Justice Clarence Thomas: Its Negative Impact!

Supreme Court Associate Justice Clarence Thomas has now been on the Court for a generation, and his impact is clear.

This is a man who was enmeshed in controversy when he was appointed by President George H. W. Bush to replace Associate Justice Thurgood Marshall as the second African American in the history of the Supreme Court. He was clearly the “anti Marshall”, and has remained in controversy ever since 1991.

Thomas was accused by African American law professor Anita Hill of sexual harassment, and accused liberals of a “lynching”, and only was approved by a vote of 52-48 in the Senate, the closest of the 20th century. He has, in a memoir in 2007 and before and since, continued to have bitterness and resentment toward liberals and his other critics, and said when he was confirmed that he would confound the “damn liberals” by staying on the Court for 43 years, the age he was when appointed, which would surpass Justice William O. Douglas’s 36 years on the Court, the longest in Supreme Court history. His wife strangely contacted Anita Hill last year to ask for an “apology”, which was not forthcoming, but continues to simmer in his wife’s mind after a generation.

Thomas’s wife has been involved in ethical problems as the head of a conservative organization working against the Obama Health Care law, and in other ways, working with the Tea Party Movement, while her husband is involved in decisions where his wife’s activities create ethical problems for him, although he is unwilling to react to any criticism by recusing himself from cases, as creating a conflict of interest. He does not care what his critics say!

On the Court, he is seen in many ways as the MOST conservative member, even more than Antonin Scalia in some ways. He is well liked by his colleagues, but almost never asks any questions in oral arguments before the Court. He gives lectures around the country, but avoids the news media. He comes across as bitter and odd in many ways, but also arrogant and hard to fathom.

Thomas has shown willingness to strike down case law going back decades, and sometimes even a century. He is the only one to argue for consistent return to the “original” meaning of the Constitution when it was adopted in 1789, even more than Antonin Scalia. He sees the Court as having gone the wrong way in many areas of the law, and wanting reversal of past rulings.

Thomas alone believes that states should be able to establish an official religion; believes teenagers have no free speech rights at all; believes business should not be regulated and their commercial speech and campaign activities should not be regulated; wants to strike down a key provision of the Voting Rights Act; and backs the President’s ability to hold an American citizen in prison indefinitely without charges or review by the courts.

Thomas refuses to see prisoner rights as legitimate and is against affirmative action to the extreme, even though he benefited from it himself! He spends his time only with people who agree with his hard line views, which many think is a shame, as it indicates he has a closed mind.

So Clarence Thomas continues to have a long range, in many ways deleterious effect on the Supreme Court, and probably will for close to another generation, as he predicted!

Sarah Palin And Michele Bachmann: The Advancement Of Ignorance, Stupidity And The Destruction Of The Republican Party! :(

The Republican Party has a major problem that will destroy all chances of its success in the future, and will be a “gift that keeps on giving” to the opposition Democratic Party: former Alaska Governor Sarah Palin and Minnesota Congresswoman Michele Bachmann, both potential candidates for the Presidential nomination in 2012!

Both ladies, admittedly attractive in appearance, are a true nightmare for the party, and both are a major blow to the promotion of women in politics!

They are a true embarrassment to womanhood itself, as they personify total ignorance and stupidity, not only about science but also about history, and really, it seems, about ANY area of human knowledge!

It is not an issue of conservatism being attacked, as indeed the concept of women as conservatives can be legitimate. It is simply the reality that every time either of these women open up their mouth and speak, they make the eyes roll into the back of the head of any intelligent person who observes and listens.

Does either lady have the ability to EVER express anything that makes sense or shows knowledge, or is seen as rational, sane thinking? Apparently, the answer is NO! 🙁

Michele Bachmann had just asserted that the Founding Fathers ended slavery, failing to realize that the Civil War 75 years later ended slavery. She had just come from a lecture about the Constitution from Associate Justice Antonin Scalia, who had “lectured” a group of Tea Party members of Congress about that sacred document, which he has totally distorted with his ridiculous “originalist” interpretation, including supposedly, his recent statement that the Constitution did not protect women, because they are not mentioned in the Constitution! That statement by Scalia also makes one roll his eyes to the back of the head! Can Scalia really believe that, and if so, why is he on the Supreme Court?

But, for now, getting away from the loss of status and prestige of the Supreme Court by the behavior of some of its members, a subject that will be addressed again in the near future, before we can recover from Michele Bachmann and her inane, ludicrous statements for the “umpteenth time”, before we can fully calm down, along comes Sarah Palin, again attempting to “hog” the spotlight with her moronic statements and tweets! 🙁

In reaction to President Obama’s State of the Union address, Palin reacted to the “winning the future” line of the President, by employing WTF as an obscene statement that everyone knows what it is, but which I will not explain here! LOL

Is that appropriate for a potential Presidential candidate to use in political discourse out loud with the media? Is this dignified and acceptable for someone who wants to be taken seriously as a legitimate voice? Is there a need to answer this? 🙁

Adding insult to injury, Palin proceeded to state that the “Sputnik” reference of Obama was not appropriately used, as the Soviet Union of old had “won” the space race, but that it had led to their downfall!

Such an assertion makes one want to gag and throw up! Oh really, the Russians won the space race? It was the Soviets who landed on the moon in 1969? And their being involved in competition in space is what caused their downfall, rather than their involvement in Afghanistan, and their reckless military spending, a policy that is the major cause of our national debt and deficit today, and which Palin fails to see and understand?

The responsible leaders of the Republican party have to be dismayed by these two women, both endorsed by the Tea Party Movement, who are separately and together destroying the credibility of the Republican Party for the long haul!

One would wish, somehow, that we could put a muzzle on their mouths, and send them the message, shut up and be gone! 🙁

But, of course, there is freedom of speech, and neither lady will shut up, and so the Democratic Party sits by observing events, having a lot of good laughs, and enjoying “the gift that keeps on giving!”

But we must also mourn the destruction of both science and history that these women, and those who believe in them, represent, and in fact the destruction of KNOWLEDGE!

As Bill Maher, the comedian, expressed a few weeks ago, if the Founding Fathers were to come back today and witness the mediocrity of today’s Republican leadership, and the role of these two women, and a few members of the Supreme Court, they would be stunned, and certainly comment that women should never have been given the right to vote, let alone to run for public office!

And that would be indeed sad, as many women have contributed a great deal to our political discourse, and they stand by and mourn the embarrassment to their gender represented by the two morons, Bachmann and Palin! 🙁

The Evolving Supreme Court: The Dynamics Of Nine Human Beings Working Together!

The Supreme Court has undergone a lot of change in the past five years, with four appointments to the Court.

George W. Bush appointed John Roberts as Chief Justice and Samuel Alito as an Associate Justice, while Barack Obama chose Sonia Sotomayor and Elena Kagan as Associate Justices.

Roberts has certainly made his impact as Chief Justice, and has become controversial because of his activism, which contradicts his testimony that he believed in “stare decisis”, the role of precedent in deciding whether to accept past Court decisions. Instead, Roberts has become a confrontational Chief Justice, including criticizing President Obama for attacking the revolutionary Citizens United Case of January, 2010.

Alito seemed to be quieter, but this year, he openly objected to Obama’s criticism of the Citizens United Case, and is now regarded as an outspoken conservative firebrand in the same vein as Roberts, meaning that the four conservatives on the Court are very aggressive in their advocacy. No one would ever accuse Antonin Scalia or Clarence Thomas as being “wallflowers” in their activist views, even though Scalia claims to be an advocate of “originalism”, interpreting the Constitution based on the actions of the Constitutional Convention of 1787.

But the liberal side of the Court has also been much more outspoken. Associate Justice Ruth Bader Ginsberg, now the oldest member of the Court, is certainly willing to express her views, and Justice Stephen Breyer is seen as the intellectual leader of the liberal wing of the Court.

But even the newest Justices are making clear their liberal tendencies. Justice Sotomayor is seen by the New York Times as “guiding” the liberal wing. Sotomayor spoke up for prisoner rights, with a challenge by Justice Alito.

And Justice Elena Kagan has joined Sotomayor in what is described as a subtle shift of the Court, with Sotomayor more passionate and Kagan as a “bridge builder”, but yet seen as strengthening the liberal wing. Kagan is seen as having the ability to draw Anthony Kennedy, the truly independent member of the Court, to consider her side of the issue, much like John Paul Stevens used to be able to do that in his latter years on the Court.

What this all means is that the Supreme Court is in constant readjustment of nine human beings, with evolution of the dynamics fascinating to watch and to evaluate on a regular basis! 🙂

Another Progressive And Liberal Victory: The Struggle For Civil Rights For Gays In The Military Finally Accomplished! :)

Another major victory for civil rights was celebrated this morning at the Interior Department before an overflow crowd, as President Barack Obama signed into law the ending of the policy in the military of “don’t ask, don’t tell”.

It was an emotional moment for many, and shows what the constant battle has been throughout American history: to overcome discrimination, prejudice, favoritism, elitism, based on race, ethnicity, gender, disability, and now sexual orientation.

There is absolutely no justification to deny any American the same rights and liberties that every other American has, but in the past, only white men of property had any rights.

If we were to go by the Constitutional Convention of 1787 and the concept of “originalism”, we would still have denial of equality for African Americans, other ethnic minorities based on religion and nationality, gender, disability and sexual orientation.

Instead, we have had the expansion of equality over many generations of struggle, whether those who were privileged at the time liked it or not.

There is no negotiation on basic human rights in this nation, and we must all remember that when one looks at history, whether in the 19th, 20th, or 21st century, who was it, broadly based, who fought “tooth and nail” against civil rights and civil liberties for all Americans?–the conservatives of each time frame, not always identified by political party, but by an attitude of privilege and entitlement! 🙁

And who was it that fought for human rights in each time frame, not always identified by political party, but committed to justice and equality?–progressives and liberals who were committed to principles that come from the Constitutional Convention, but developed beyond the “originalism” view so vehemently espoused by conservatives!

And sooner than we think is possible, gay marriage will be accepted, as interracial marriage was adjusted to in the 1960s, and it will not be a question whether everyone approves it, as basic human rights, including marriage, are not to be seen as negotiable due to one’s personal or religious beliefs. After all, no one demands that a person like what is going on in society, but simply that he or she accept the fact that it is none of their business to interfere in a basic human right!

Personal freedom is an inviolable right that is not subject to the whim of public opinion polls!

Justice Antonin Scalia And Separation Of Powers Seminar To Congressional Conservatives Headed By Michele Bachmann: An Egregious Conflict Of Interest! :(

Minnesota Congresswoman Michele Bachmann, one of the most controversial members of the House of Representatives, one of the leaders of the Tea Party Caucus in the House, and infamous for outrageous statements and actions and for promoting political confrontations, has now gone beyond the pale.

She has decided that members of Congress should take “courses” on the Constitution, the Declaration of Independence, and the Bill of Rights, all designed to promote the “conservative” interpretation of these sacred documents.

Anyone serving in Congress should be expected to KNOW these documents by heart, and should NOT be promoting a distorted view of these documents, as Michele Bachmann and her ilk have been doing for years already! And to allow the Tea Party Movement, with its distortion of history and reality, to be the so called “cosponsor” of this series of seminars is even more outrageous!

But it gets worse, as Associate Justice Antonin Scalia, the most conservative member of the Court in the past hundred years, and a promoter of “originalism”–the concept that every legal decision should be based only on 1787 and the Constitutional Convention, with no consideration of modern times or changes in the 223 years since 1787–has agreed to give the first seminar on “separation of powers”!

Does not Justice Scalia realize that “separation of powers” means just that, and that therefore, it is inappropriate for him to be trying to influence or in any other way involve himself with actions of the legislative branch? 🙁

The Supreme Court is supposed to be non-political in nature, but apparently if a conservative such as Scalia wishes to be political, that is alright. And if Justice Clarence Thomas’s wife wishes to become involved in a pressure group that could theoretically have an influence on future cases before the Court, that apparently is fine! 🙁

But imagine if Justices Stephen Breyer, Ruth Bader Ginsberg, Sonia Sotomayor, or Elena Kagan were to lecture to a liberal Democratic group or advocate a modernist view to people on Capitol Hill, you can be assured there would be moves to impeach them as having violated “separation of powers”!

This is the double standard, the hypocrisy, of conservatives, Republicans, and the Tea Party Movement, who all claim to be “holier than thou”, when they are engaged in clearcut violations of the Constitution by what they are doing, and what Justice Scalia has agreed to do!

But then, Justice Scalia, as brilliant as he is recognized to be, is also an extremely arrogant man! That sums it up! 🙁

Tenth Anniversary Of Bush V. Gore Supreme Court Decision: Its Effect On America! :(

This weekend marks the tenth anniversary of the Supreme Court intervention in the 2000 Presidential Election, the infamous case of Bush V. Gore.

The Republican majority Supreme Court took an unconstitutional action, unprecedented in American history, when it interfered in the vote recount in Florida to declare George W. Bush the winner over Al Gore by the measly margin of 537 votes despite a substantial popular vote lead of Gore, throwing the 25 electoral votes of Florida into the Bush camp, and making him the closest winner of the Electoral College since the 1876 Presidential Election, when Rutherford B. Hayes was declared the winner of the electoral college by one vote, despite a popular vote lead by Samuel Tilden.

There was nothing in the Constitution that provided for such a Supreme Court intervention, and for a Court with Antonin Scalia preaching “originalism”, it was a shocking abuse of power, but with no recourse by Gore or anyone else, as the old adage of Chief Justice Charles Evans Hughes reverberated: “The Constitution is what the Supreme Court says it is!”

The effects of eight years of the George W. Bush Presidency have been massive, most of it bad, and one has to wonder how the nation would have been under eight years of Al Gore.

Of course, conservatives and Republicans will be praising the fact that Al Gore never made it to the White House, but it is clear that in many ways, life would have been different in America had Gore taken the oath of office.

Among the differences:

1. The war in Afghanistan would have been on the front burner, not on the back burner, and Osama Bin Laden would likely have been captured or killed, instead of being allowed to escape.
2. The Iraq War would likely have not been waged, and instead the problem of Iran likely would have been addressed in a way whereby Iran would not be the major menace it is today in international affairs, as the Iraq War only strengthened Iran in the Middle East.
3. The reaction to Hurricane Katrina would have been far different, and New Orleans would be further along toward recovery with far less loss of life at the time of the tragedy.
4. The national debt would not have been doubled, as it was from 5 to 10 trillion under Bush, as the massive Bush tax cuts would not have occurred, and the massive spending on two wars at the same time would not have been done.
5. The Medicare Part D legislation would not have occurred, but if it developed in any form, would have been paid for, not adding massively to the national debt.
6. Torture would not have been endorsed by President Gore as it has been by President George W. Bush.
7.We would not have witnessed the abuse of power by Vice President Dick Cheney, who scarred the Vice Presidency’s reputation.
8. There never would have been a second time in the Defense Department for Donald Rumsfeld, who served earlier under President Gerald Ford, and that would have been good for the military who go into our combat operations.
9. Movement on the environment, particularly on global warming and climate change, would have been further accomplished than it has been.
10. The issue of poverty, which was being pursued as a future subject for consideration by Bill Clinton in his last year as
President, would have been a major agenda item by a President Gore.
11.The Gore Presidency would have been, generally, another age of progressive reform, more the true successor to the Great Society of Lyndon B. Johnson, than the comparatively disappointing Presidencies of Jimmy Carter and Bill Clinton in the eras of domestic reform.
12. Health care reform would likely have been passed years earlier than it has been under President Barack Obama.

It is clear that America today would be a very different country had only the Supreme Court stayed out of the Presidential Election of 2000, and the nation today suffers from the tragedy of eight years of George W. Bush! 🙁

Senator Al Franken’s Judgment Of The Supreme Court: NOT “Equal Justice Under Law”!

Senator Al Franken, Democrat of Minnesota, gave a very important speech last week on the Supreme Court’s right wing turn before a progressive legal organization, the American Constitution Society.

He condemned the Roberts Court for favoring corporations over every day Americans, and blamed conservative legal scholars, and the Federalist Society, for promoting the concept of “originalism”, regularly advocated by Associate Justice Antonin Scalia!

The lives of ordinary people matter, but the conservative legal advocates have made the American Civil Liberties Union seem “unAmerican” for backing the rights of the less fortunate and the less powerful in society, Franken declared!

The senator pointed out that Justice John Paul Stevens has said that every Justice appointed after him thirty five years ago, with the exception of Justice Ruth Bader Ginsberg, has been more to the right than his predecessor in the position. The Supreme Court has NOT exercised judicial restraint in its decisions, and instead has been radical in ignoring one hundred years of judicial decisions that limited corporate rights in campaigns and election in its Citizens United case in January!

The Court has decided, Franken declared, that no individual’s rights come above the rights of a corporation to profit and influence! 🙁

A whole century of decisions that gave meaning to the Constitution for labor, women, minorities, immigrants, the poor, and others seen as not having wealth and power, is now under attack!

Progressives, Franken concluded, must fight to create a level playing field, which many may have thought was settled law, but is now under attack by an activist, conservative Court!

In many ways, constitutionally, we are moving backwards a century, and progressives must not sit on the sidelines as the rich and powerful regain their former dominance! Franken is absolutely correct in his assessment, and this is a speech which needs to gain widespread notice!