You said in "One A Day" that one post a day should be enough. Well, Charlie has already beaten me to it today (and it's my Birthday, to boot; I should've gone first![g]), but this is something I've been pondering for a while.

After reading the pro-/anti-Ashcroft, and earlier, the pro-/anti-Supreme court posts (and before THAT, the pro-/anti- Gore/Bush stuff, and on back into the misty past), I think most of are missing something here.

Sure, we'll always have to elect and appoint people who represent the majority view. If Adolph Hitler were alive today, I doubt seriously if he'd be suitable for the job of Secretary of HEW ... :)

But I'll repeat something that I said during the Florida circus.

Hasn't it occurred to ya'll yet that we shouldn't, in general, even have to WORRY about whether a judge will vote "liberal or conservative?" Whether Ashcroft will be "liberal or conservative," or whether Bush will appoint "liberal or conservative" justices to the Supreme Court?

We are supposed to be a nation of laws. The Founding Fathers didn't want direct Democracy; they thought that would be chaos. But they did want a representative Republic -- a government in which the people, in the final analysis, would make their own laws.

The legislature was supposed to create the law, the President was supposed to execute it and the judiciary was supposed to interpret it. That's how it was originally set up. Sure, it had its flaws ... but it worked reasonably well for some years.

(Snapshot: look at Hayes v. Tilden, the last time we had a disputed Presidential election. No one even THOUGHT about taking that one to court. It went to the House of Representatives, where it belonged.)

But way back in pre-VCR -PC times (back in the 50's and 60's!), some impatient liberals got tired of trying to convince the legislature to vote their vision of the future into reality; instead, they moved into the courts, where a compliant judge could, at the stroke of a pen, create law to suit their interests.

What was once a nation of persuaders (ie, if you wanted change, you had to persuade the public to your point of view, and it took a LOT of time and patience) has now become a nation of litigants.

(New snapshot: instead of going to the legislature on the question of reparations for slavery, J. "Glove Don't Fit" Cochran and Co. are headed to court. And I've already mentioned Gore and Bush in Florida elsewhere; no need to rehash THAT dead horthie.)

In other words, our attitudes have changed. We've lost the ability to compromise. We've lost the ability to persuade, to lead, to convince and cajole. Instead, we'd rather fight.

Shoot, we fight HERE. In this little forum way off in some corner of the Net, we argue and fight, rather than try to persuade. I think it's in the blood nowdays.

But how 'bout we get back to the original idea (and maybe even improve it; after all, John Adams and Co. *did* turn a blind eye to their black "not-quite equal" fellow men when they set the franchise up ...[g])?

If we would, if we'd go back to the original model, you wouldn't even have to WORRY about Ashcroft's personal views. You wouldn't think, "either we stop him now, or we're out of luck!" Ashcroft would be reviewed by the Senate, not just now, but for his entire term in office. He would either obey and enforce the law as enacted by Congress, or he would be impeached. Why wouldn't that work?

The same would go for judges. The confirmation process would basically screen out the morons, the obvious ideologues and Hitlers. From that point on, periodic Congressional oversight would KEEP them in line.

The Founders put that impeachment thingie into the Constitution for a reason ... it gave the LEGISLATIVE oversight of even the executive and judicial branches. Congress had the final say-so, that Extreme Sanction that was to be exercised sparingly, but used nonetheless, to remove misbehaving public officials -- up to and including Supreme Court justices.

In my view, the Founders intended for the legislative not just to be a co-equal branch with the rest of the government; they actually wanted it to be SUPREME, because it most directly reflected the will of the people.

Maybe it's high time that we returned to that.

And on the personal level, maybe it's high time that we learned how to persuade and lobby and cajole and wink and grin again, rather than simply be arguefiers and litigants of the first order.

Simply put: DON'T take it to court, take it to Congress.

That's my take on this, my 45th Birthday. :)

-- Anonymous, January 25, 2001

Answers

Further thoughts. Compromise is inherent to the Founder's original concept.

For example, suppose you're a radical environmentalist; you think should there should be absolutely no drilling, logging or mining on public lands, period, go away, hush-to-ME. You're dickering with a radical capitalista who thinks that money solves all evils; that we should mine, gouge, scratch, dig and transport whatever we can from whereever we can to keep the "engines of commerce running."

(Hey, if the air gets dirty, that'll just create a market for air cleaners; right ... ?[g])

At present, the two sides holler at each other. Even worse, once every 4 years, the two sides hire incredibly expensive airheads (called Presidential Candidates to mislead the public) to do their hollering for them; one moron will get elected and at least one side will be royally pissed for 4 solid years.

Do you see anything wrong with this picture?

Under the original system Envirowhacko and Capitalista would have to hammer out a compromise. Neither side would get everything he/she wanted, but we'd protect the environment reasonably while reasonably obtaining minerals vital for the national economy and defense.

Make up your own examples. You're bright people.

-- Anonymous, January 25, 2001

How many oppose Ashcrap? Millions? Well why is he even still in the running? Like the scumballs in power give a crap what YOU or a million of others think? What kind of a system presents an Ashcrap in the first place? or a Clinton, or a Dubya? are these yo-yos on ANYBODYS list as approaching qualified? I would submit MOST cannot even tell qualified if it sat next to them. Your proof is on "the mews" every minute of every bloody day.

Ain't about armtwisting/persuading. It is about doing the will of the people. Sadly these clowns owe allegiance to "other" people which only by accident sometimes mirror THE actual People.

Ashcrap in no way ought be anything. He is soundly rejected and should be shown the door,,,next candidate out of a pool of MILLIONS please. What? is this joker it? is there nobody else? Hell EVERYONE on this forum is better qualified to be AG than Ashcrap, well excluding Flint anyway.

Why even debate this? Bring on the next candidate. Murderers have more options building a jury than we do as a country. Is this stuff that hard people?

Is there nobody else? Course, does anyone care? Course not as TPTB are about building dualistic meme controlled sheep and thus division, which keeps the sheep busy and distracted. Makes their job of stealing all the more easy. Simple really, any hood knows the drill. The one thing these scumsicles do not want is independent freethinking people. Oh no, never that plague of humankind. Schools don't work you say? SURE they do,,, right to plan, hello anyone home?

Had a good chuckle on the other thread Poole when you defended the growth which spawned Michal Hyatt(Dobson), good one! Freaking windbag who thinks he knows better than the man himself. Kinda like the RevMoon in the fact these phonies all think God so damn impotent without "their" crusades. Poor Poor Lord why you be so helpless, so imperfect, so not around? Like if the world would be perfect tomorrow these freaks would be satisfied? Hillarious...Must be nice to be so damn perfect you feel you know best how I should behave.

You know why protesters like in DC last weekend never accomplish anything? Cause them placards they carry ought be mirrors instead. Then maybe these bloodsuckers would pay attention. Might also want to consider some garlic as well folks, just a suggestion.

and you defend the CC? or "sometimes" is it on the other thread around here? Well I guess you have to get some of your taxpayer subsidy back somehow from these fax-churning 501c Bible-flagwrapper profiteers. Unfortunately I must be stupid cause I reject all their baloney on principle. Their message is available elsewhere without all the lunchmeat attached.

BTW, Happy Birthday ya old fart. And PS..OJ did it ;;)

-- Anonymous, January 25, 2001

Great post Stephen, how true. Lots of thing end up in court that shouldn't be there in the first place. But the court has the descretion to not hear cases. They don't seem to exercise this option very often.

You're right, I think the founders would find our "beefing" up of the courts preposterous.

-- Anonymous, January 25, 2001

I absolutely agree with what Doc said. Well... at least the part about calling you an old fart and wishing you a happy birthday. Happy 45th Stephen!

-- Anonymous, January 25, 2001

Excellent Twister Stephen.

What we have now is what you get when carping replaces debate. Just look at the Ashcroft hearings. It's all bullshit. Maxine Waters is my favorite. She was my favorite when she couldn't find a single senator to back her hoped for blockade of the electoral college. Don't mean to pick on Maxine but it's tough to find a better example of what can go wrong when politics and media and democracy clash with agenda.

It's neat that we can watch Steve sniff an exotic snake in Australia or a woman win the Dakar rally. It's less than neat when that window pretends to tell newsy truth in the households full of children who can't and won't be able to read a newspaper.

Gonna pass on answering your Twister. Fraid I'm too old to come up with answers and will probably just sit back and bitch.

ps: my grandkids are doing great in school because I taught their mom to expect it. If Dubya can teach that it'll answer your twister in a generation or so.

-- Anonymous, January 25, 2001

Doc,

Just for fun, the Latest Zogby Figures.

42% approve of Ashcroft, 34% disapprove, 24% are not sure. Sure, that works out to "millions" -- but on EITHER side. Millions support his confirmation, too.

After his first week in office, G W Bush enjoys a 54%-42% favorable rating, so it obviously hasn't spilled onto him, either.

The Portrait of America poll has slightly higher numbers in favor of Ashcroft's nomination. The most interesting thing there is that Laura Bush's approval rating is higher than her husband's! :)

-- Anonymous, January 26, 2001

Carlos,

Maxine Waters is a maniac. She's the Left's answer to Jesse Helms. :)

-- Anonymous, January 26, 2001

You trot out the "polls"? You don't still have these agenda driven dribblers in your favs do you? What's it been? all of 2 months since their election "predictions" tanked? What is their margin of Spin? +- 10, 20 percent? lol.

Fact is Bush knew what Ashcrap would produce and like he cared one damn bit? This Uniter? How asleep are you Poole? Ashcrap was In from the day Junior said so. They have the USSC, like a few million whining 'Liberal' Americans(is that an oxymoron?) could possibly matter? or a few Democrats lacking their radar since Billy moved out of the WH? Whole thing is a joke.

-- Anonymous, January 26, 2001

Just figured out that swishing sound. It was the wisdom behind the Ashcroft nomination going right over Doc's head. "Uniter" doesn't mean just the inclusion of wingers from the side sinestra. This nomination mollifies the right wing but does so with a person who is utterly wrapped up in obeying the laws that exist. Can't see it can you Doc? Gun laws? Betcha Ashcroft enforces the ones we have with vigor. Civil rights, hate crimes, crimes in office? Betcha the same. Excepting yourself, I'd bet that more strict enforcement of all laws is what really scares liberals to death. As for the reliegous angle I think it's overblown...way bigtime.

-- Anonymous, January 27, 2001

Doc,

I'm the one who wrote the ditty on polls, remember? :)

Zogby's election prediction didn't "tank." He's the only one who got it right: too close to call, and that's how it went. That's why I quoted Zogby, but regarded the POA poll with a bit more amusement.

Surely you aren't trying to claim that a majority of Americans oppose Ashcroft? Because if that were so, I assure you, he wouldn't be confirmed. If nothing else, Senators hate it when they lose elections. :)

-- Anonymous, January 27, 2001

Poole:

Look for the numbers on the John thing. If it is more than 40 against, it is a signal. It means that any court appointments will be stopped. Just my view.

Best Wishes,,,,,

Z

-- Anonymous, January 27, 2001

Z,

No, I think you're right. I'll watch the numbers, you bet. :)

-- Anonymous, January 28, 2001

"I'd bet that more strict enforcement of all laws is what really scares liberals to death."

Carlos, any reasons why you think this, or did the neighbor's dog tell you, like Son of Sam?

-- Anonymous, January 28, 2001

I agree with Barry W. Lynn, executive director of Americans United for Separation of Church and State " regards Ashcan.

Getting tired of many on these boards simply ignoring the obvious. WHY is the Ashcrap appointment THAT damn important? Like I said before to deaf ears, is he IT? is there nobody else amongst the 280 million or so in America qualified to be AG?

Like my advice to Decker to simply post at Unk's board on his own time, the responses here do not even respond at all to the oquestion raised. What the responses are is pure memetic babble designed to avoid the very basic issues and fill the waters with baloney. To protect one's "belief structure" against anything which may upset it.

Ashcrap is key because of reasons I think some here support. I think some here want Roe v Wade done away with. I think some here welcome a blurring of the Church and State lines. Fine, your right, and we agree to disagree.

Feel free to address the questions again....why is Ashcroft so important? is there nobody else more moderate available?

-- Anonymous, January 28, 2001

Doc,

WHY is the Ashcrap appointment THAT damn important? Like I said before to deaf ears, is he IT?

Because a president should have the right to choose his cabinet. The Senate should only refuse confirmation where there is clear, unequivocal evidence that the person is *unqualified*.

Here's the same question, the other way: why is it so all-fired important that he be defeated? For the position of ATTORNEY GENERAL?!? The Attorney General of the United States doesn't appoint judges. He doesn't make law. At most, he can decide which laws he will enforce the most strenuously and exert influence that way.

I submit to you that, if he was THAT dangerous, he was far more of a "threat" as a US Senator. So, I could see your concern for a President (most assuredly). I could even see it for a US Representative, a Senator, or even a governor of a state.

But the Attorney General?!? Who's the one with the "meme" here, Doc? You oppose somebody on an ideological basis, when he has been appointed for a position for which the ONLY questions should be, "are you qualified, and WILL you enforce the law fairly?"

He IS qualified, and I believe he will enforce the law. (And the truth is, that's the REAL reason liberals fear him -- because he won't be selective in his enforcement.)

(One also gets the feeling that this is just sour grapes on the part of those who didn't vote for Bush. They couldn't stop Bush, so now, SOMEONE must PAY. There's no way that Bush can come out of the cabinet-selection process "clean." Ashcroft makes a great target for liberals because he's a hyper-conservative.)

I think some here want Roe v Wade done away with.

Tell me: HOW is the Attorney General going to do away with Roe V Wade? Give me his plan. Tell me, step by step, HOW an AG can do this and I might listen to you.

You wail and moan that Ashcroft is going to destroy Separation of Church and State, but you can't tell me HOW he will do that.

Ashcroft has promised to support all the laws currently on the books and the respect the opinions of the American people. Until he actually does otherwise, I'm willing to give him a chance.

What you also don't see is that this isn't a hot-button issue for most Americans. I tried to show this to you, and you refused to believe it. You apparently REALLY believe that most Americans even care about Ashcroft and REALLY want him to be defeated. They DO NOT.

The reason? Because most of them realize that the Attorney General is actually a second- or even third-tier appointment. Condie Rice will have FAR more influence on policy, as will the Secs of HEW and Interior, the Sec of State, etc., etc. NOT the Attorney General.

-- Anonymous, January 28, 2001

Stephen:

What you say here is only nominally true. Challenging Doc Droolie to specify exactly HOW the AG will do terrible things is like asking an engineer to specify exactly WHICH unexpected problems will come up in development and how long it will take to handle them.

I ask you to reflect on the roles played by Haldeman and Erlichman for Nixon. These guys had NO nominal power, they never were considered by the Senate, yet they were the most powerful people in the entire government, controlling all access to Nixon -- of both people and information. And remember that Kissinger was NOT the Secretary of State, yet ran foreign policy out of the White House, while the real SOS had no influence. It's the reality and not the formalities that count in Washington.

So the REAL power Ashcroft might have is really a function of how much influence Bush allows him to have. And this is NOT explicity specified anywhere.

For example, the AG recommends people to be federal judges, which the president formally appoints. The president hardly has time to evaluate the nature or qualifications of each of these thousands of candidates, much less suggest others not on the list. You have written recently about how liberals have given up trying to legislate their agenda, and have been short-circuiting the process through the courts. Now, why do you suppose this has worked? At least one factor is that the liberals have had more opportunity to pack the court system with activists, and have made more effort to do so. This matters. And this is one of the real powers the AG has.

For better or worse, Bush is someone who lets others do the homework, and operates on political instinct, which translates into deciding who he's comfortable listening to. How comfortable he might be with Ashcroft's positions, I can't say. But I'd expect Ashcroft to have some influence over policy directions nonetheless.

-- Anonymous, January 28, 2001

I have to explain to you how Ashcrap is going to work to dismantle the Seperation? This tax dollars for charity ex Senator. You don't actually believe your dribble worthy of response in this context, do you?

Look, it is clear to me you are not worthy of any further response, you are far too uninformed. This ain't even difficult, it is a no brainer.

Do me one favor, do not call me a Liberal again. Do not lecture me about Juniors freaking RIGHT to do anything. You are consistent however, you are wrong.

-- Anonymous, January 28, 2001

No, Flint, the questions were perfectly appropriate.

If you look over the posts here from the anti-Ashcroft crowd, one key reason why they oppose him is because of his stance against abortion. (Believe me, I have even had this YELLED at me in some of the posts.[g])

So, it's perfectly fair for me to ask: HOW can the Attorney General infringe that right? HOW will he (or she) overturn Roe V. Wade, as Doc implied?

Flint, as a Libertarian, you of all people should understand the right of a person to freedom of conscience and belief. Ashcroft's personal beliefs are not at issue here (and under our Constitution, CANNOT be the issue -- "no religious test," remember?). What *IS* at issue is how he will perform the job.

And your argument works both ways at that point: we DON'T KNOW yet. Unless something is found to directly disqualify him for the position, all we can do is give him a chance, watch him like a hawk (if you so choose), and immediately call for his replacement if he gets out of line.

What's wrong with that?

And that's why I said

-- Anonymous, January 28, 2001

Doc,

In other words, you CAN'T answer me. Just as I suspected.

You cannot tell me HOW Ashcroft is going to destroy the "wall of separation" as Attorney General -- what inherent power in the office would permit him to do that?

And you didn't even blow off my question about Roe V. Wade; you ignored it entirely, because you KNOW you can't answer that one. :)

IF you could demonstrate to me HOW an AG could compromise Roe V. Wade or the "wall of separation," then you would have an argument -- and believe it or not, I would oppose his nomination as well in that case.

-- Anonymous, January 28, 2001

Stephen:

Let's start by accepting that the AG cannot do anything directly to overrule the supreme court, and cannot prosecute laws not on the books. Let's also stipulate that we give Ashcroft a chance, and ding him only if he screws up. These are the formalities, on which I'm sure we agree.

Now, on to the political realities. Janet Reno could not directly overrule the 2nd Amendment, but gun rights are rapidly eroding by political means nonetheless. This happens on multiple fronts:

1) The Federal government has been nibbling away around the edges, with things like waiting periods, registrations, trigger locks, proposed built-in "child-proofing" of various kinds, etc. These efforts make guns more expensive to buy, more difficult to use, more inconvenient to carry, etc. Nibble nibble nibble.

2) The Federal government has been providing support to states and municipalities to make gun manufacturers defendents in cases where guns were used in crimes. The goal isn't to find the manufacturers guilty (which they are not), but to drain their resources defending themselves in multiple lawsuits. The effort is making gun manufacture unprofitable. NOT illegal, mind you, just not practical.

3) The Federal government has been providing financial and publicity support to anti-gun organizations and activities. This is similar to the government not being able to outlaw cigarettes, but they could tax the hell out of them, fund the American Heart Association, prohibit advertising, support lawsuits against them, force warnings to be printed on packs, etc. etc. etc.

Now, one would expect Bush and Ashcroft to reverse all of these gun policies, and this can make a huge difference, even if no law is changed.

Abortion policy permits similar nibbling. Abortion is still subject to regulation. It's possible to restrict how and when, possible to make abortions more difficult to get, reduce the number of providers, make waiting lists impractically long, increase prices, require a mountain of red tape. More significantly, it's easy to let state legislatures know that IF they should pass such laws, the AG will gleefully prosecute in support of them.

The AG can't break or overrule the law. But he CAN decide which laws to emphasize, and which new laws to encourage, and which judges to recommend, and which parties to burden as defendants. In reality, he does not meet your image of an automaton, mechanically and blindly enforcing existing law willy nilly. He has a vast number of laws and finite resources. He can allocate these resources as he considers best. It's not right to pretend that he can't or that it doesn't make a difference. He can, and it does.

-- Anonymous, January 28, 2001

Flint,

Now THAT was a good answer. Thank you. That's a bit more thoughtful than the usual, "he's a fundie/he has ties to the right/he's a secret member of the Universal Order of Yo-HAH!" stuff.

But in the specific example you used (and no argument on what you said, by the way; gun rights ARE under attack) gun regulations are passed by Congress, not the Executive Branch. Bush and Ashcroft have the right to attempt to influence the passage of those laws, same as anyone else, but they can't make 'em.

Yes, it IS possible that Ashcroft will selectively enforce the laws. He has said that he won't do that, and we have his track record in Montana to consider at that point. He seemed to play pretty straight (if conservative[g]) there.

Yeah, I guess there is some idealism in what I believe. You're right. My attitude is, give the guy a chance. Is there any question that he'll be better than Reno?

And one of the Bush administration's first acts, doubtless done with Ashcroft's input, was to ask Louis Freeh, the current FBI head, to stay on the job. Louis isn't exactly a flaming fundie.

I'm not opposed to watching Ahscroft like a hawk; everyone has that right. What I am opposed to is disqualifying someone for a specific position due to personal beliefs held by that person, unless there is clear evidence that said beliefs will seriously affect his/her job.

Kennedy was a Catholic; he told the American People it wouldn't affect his job, and it didn't. Lieberman was a Jew; same thing. There are dozens of examples.

My complaint is that Ashcroft is primarily under attack SOLELY because he's an ultra-conservative with Christian Right leanings. That CANNOT be the reason to deny him a chance, or we're in deep trouble in this country. Freedom of conscience will have taken another serious hit.

And remember, today it's the fundies. It would be VERY easy, once the precedent is set, to one day turn the same tactic on gays, liberals, moderates, whatever -- anyone who didn't fit the Belief System Du Jour of the intellectual elite.

-- Anonymous, January 28, 2001

Flint,

Here's a good example -- the other way.

A Democratic president might propose Jesse Jackson for the office of Commissioner of Social Security. While I disagree with the man politically (almost across the board[g]), in this case, I would have no objection. He would be well-suited for that job.

-- Anonymous, January 28, 2001

Stephen:

You use many of the same techniques I do. But since I do it consciously, I can see what's happening. Your answer is fine, and I am largely in agreement with you. But I'm going to point out some of these techniques nonetheless...

First, selective enforcement of the law isn't either an option or a lightswitch, he does or he doesn't. In practice, he *must* enforce the law selectively. Too many laws, too many cases, too many violations, not nearly enough resources even to be *aware* of all these cases, much less actively participate. The AG has no option but to select his enforcement. These selections have never even pretended to be "objective" (whatever that might mean in this context). Instead, the AG goes after what the administration (and the AG) consider the "worst" offenders, or in support of the "best" policies. Was Robert Kennedy engaging in "selective enforcement" by emphasizing civil rights cases? Of course he was. But that doesn't make it a bad thing. The unavoidable emphasis he brings is real and important.

Second, I doubt the goal is to disqualify Ashcroft, or to claim he lacks the proper qualifications. The goal isn't even to quash his nomination (except among the extremists who don't count votes). Instead, it's to (1) Get commitments from him publicly that he won't go after sacred cows; (2) Let Bush know he faces heavy slogging if he wanders too far from the middle ground. A good, loud shot across the bow.

Third, the AG is not the nation's chief lawyer. The justice department is full of excellent lawyers. He is a political appointee whose job is no more nor less than to provide *political direction* to the task of law enforcement. As I've said, political direction is meaningful; it makes a difference. For this reason, the political beliefs of the nominee make a difference as well, since he is primarily there to direct priorities and allocations.

You point out that he has GOT to be better than Reno. I agree, but I also regard your claim as an admission that WHO the AG is matters. It really does. I'm not particularly worried about Ashcroft's religious principles, so long as the law is enforced and religion stays out of the schools. I am concerned about the awful war on drugs. But still, I'll regard the prosecution of that war as Bush's decision, not Ashcrofts.

-- Anonymous, January 28, 2001

Flint,

We ARE in agreement, because I can't find fault in what you said.

I guess my attitude is, let's keep an eye on him. Give him a chance. If anyone here disagrees with that, that's certainly their right.

Now: let's go watch the game!!!!!!!!!!! :)

-- Anonymous, January 28, 2001

Flint: "...liberals have given up trying to legislate their agenda, and have been short-circuiting the process through the courts. Now, why do you suppose this has worked? At least one factor is that the liberals have had more opportunity to pack the court system with activists, and have made more effort to do so."

Let us see how well this assertion stands up to scrutiny. I say it is pure, unadulterated falsehood.

In the Reagan/Bush administrations, a concerted effort was made to appoint federal judges who were not only conservative, but also in their 40s. This was in sharp contrast to erarlier practise, of appointing nominees in their 60s, who had a long record of judicial work. IIRC, the Democratically-controlled congress complained, but did not block these nominations aside from Robert Bork. The Reagan track record was, Bork aside, 100% ofnominees appointed.

OTOH, the Clinton administration has faced organized hostility in the Senate against any appointment to either a judgeship or an ambassadorship that could be construed as "liberal".

Fact: a larger percentage of Clinton nominees were put "on hold" by Republican Senators in the past 8 years than has ever been blocked in any previous administration. Further, Clinton has been true to his "New Democrat" origins, and has not been nominating conspicuously liberal appointees.

This accounts for the past 20 years of USA judiciary appointments. So, where did all these liberal federal judges come from?

So, why do liberals have a good track record of success in the courts? Simple. When liberals succeed in court, most often the laws they appeal to are written so as to require the judge to rule in their favor. Many of these laws were written in the 1970s, before the Reagan revolution. They are on the books. Enforcement is often lax, until challenged in court. Once brought to court, the law prevails.

Sorry, Flint, but "liberal judicial activism" of the sort that characterized the Warren Court and the early Burger Court is as dead as a doornail, unless you count judicial activism on the conservative side of the ledger. The Rehnquist Court has been very conservative, as have most of the Federal Circuit and Appeals courts.

You are full of crap. I thought you should know.

-- Anonymous, January 29, 2001

In the Reagan/Bush administrations, a concerted effort was made to appoint federal judges who were not only conservative, but also in their 40s ... OTOH, the Clinton administration has faced organized hostility in the Senate against any appointment to either a judgeship or an ambassadorship that could be construed as "liberal".

And this is one of the glosses that looks correct on the surface, but doesn't tell the whole story. Plus, the issue isn't just liberal or conservative activism; ALL activism is wrong.

(The very reason why liberals are screaming now is because, having created the hydra that exists today, they *ARE* afraid that conservatives will co-opt it for THEIR purposes. That's just as wrong as what happened in the 70's.)

The key is how a judge rules once he's on the bench. The terms "liberal" and "conservative" are not only nebulous, trying to apply them rigidly doesn't tell the whole story. The issue is judicial activism -- the tendency of the courts to (a) legislate from the bench (simply put, create law where none existed prior to the ruling) and (b) water down or change the historic understanding of a law that IS on the books.

No President will appoint a judge who's a flaming leftist. But it's also a well-known fact that many Presidents have appointed judges whom they HOPED would be "conservative," only to have that judge swing left once he's on the bench.

It's not always the judge's fault, either. The most important court is the US Supreme, of course. Once they have established a precedent, lower courts MUST follow it -- whether that particular judge agrees with the precedent or not.

Your argument also completely ignores the REAL problem -- state judges, who are outside of the federal system. The Florida Supreme Court is a choice example here; even liberals acknowledge that they're both liberal and activist.

Finally, any lawyer worth his bar membership knows that part of the trick of winning a case is to try (if possible) select a judge, a jury and even (if possible) a time and court date(s) favorable to their side.

Unless the judge makes a decision that's egregiously bad, the appellate courts are likely to let the lower court ruling stand. The reason? They're overloaded. They can't possibly give thoughtful review to every single case everywhere.

So, this statement ...

So, why do liberals have a good track record of success in the courts? Simple. When liberals succeed in court, most often the laws they appeal to are written so as to require the judge to rule in their favor.

Is the "crap." Lower courts are bound by precedent. But I do agree with the first half of this statement ...

The Rehnquist Court has been very conservative, as have most of the Federal Circuit and Appeals courts.

Judicial activism, whether conservative *OR* liberal, is the problem, which is why I made my modest proposal. I don't want it EITHER way. When the current supreme court loosens the restrictions on search and siezure, for example, that's seen as a "conservative" victory, but it's not. It's a loss for freedom across the board.

My argument is that judges should interpret the law according to original intent. Perhaps we even need a constitutional amendment that would require the courts to petition Congress (or the state legislature, whichever is appropriate) for clarification and amendment if they are forced into an area where there is no clear precedent.

Again, the Florida Supreme Court's behavior in this election is the best example. They NEVER should've gotten involved to start with; the Constitution clearly states that the legislative, and NOT the judicial, are to decide close elections.

Flint can defend himself; he's a big boy. But I had to comment here. Re-read what I said in the start of this thread.

Judicial activism -- liberal *OR* conservative -- is destructive to democracy, and I'm opposed to ALL OF IT.

You are full of crap. I thought you should know.

-- Anonymous, January 29, 2001

Sorry for this long and rambling response...

There's definitely a semantic issue here, but still "think about it" is not thinking about it, he's too busy attacking. However, I think Stephen is missing the point as well, albeit by a smaller margin.

I agree that in a judicial sense, liberal and conservative take on different meanings. So here's a proposed definition. A liberal judge decides that the law covers, and requires, what the judge thinks ought to be done in this case, *regardless* of the original situation the law was passed to remedy. A conservative judge rules strictly on whether the defendant is in violation of this original intent, and does so as narrowly as required to decide the case.

This sets up a very real tension. Both the political parties want to see the courts making decisions according to those parties' agendas of the moment. That is, they both want "judicially liberal" judges who want to perform "judicial legislation" in support of their views. But this is a 2-edged sword. Judicial activists, by rewriting laws, undermine the intent of the legislatures regardless of which party happens to be in power at the moment.

An activist judge (what I've been calling a liberal judge) is a loose cannon, likely to decide that the law, whatever the actual wording or original intent, can be construed to support emotional or philosophical positions never considered by the legislature that passed it. The judicial tendency to stretch laws to cover trends or conditions never envisioned is the hallmark of a liberal (activist) judge. Laws are passed to address specific problems, conditions, behaviors or issues. Ideally, these delimit the scope to which a "properly" conservative judge applies them.

However, this conservative/activist description is a spectrum. The application of two different words falsely implies a binomial distribution of judges, so our language misleads us. Perhaps we should consider the extremes first, and work backwards. At one extreme, we have a court making law out of whole cloth -- deciding that when the law says seven days, it really *means* 19 days! Deciding that a law intended to help gather evidence against very specific types of crimes actually *means* the government can listen in on everyone whenever they want. Deciding that taxation within a state is unconstitutional until it meets the court's ad hoc definition of "fairness".

But at the other extreme, we have other problems. Court decisons are at least partially intended as guidance. After all, laws are often ambiguous, and often contradict other laws. Legislatures DO NOT do any kind of consistency check with the existing body of law before passing a new one, so it's a fairly common situation that one law damns you if you do, while another damns you if you don't.

If judges rule too narrowly, their decisions are unhelpful because they apply too specifically to one individual case and fact situation. Since no two fact situations are quite the same, we couldn't be entirely sure that the law prohibits *us* from doing what *he* was guilty of, since our circumstances are a little different.

At the reductio ad absurdum extreme, if the judge rules that Joe was speeding because he exceeded the speed limit in an unsafe jalopy, does this mean I can exceed the speed limit in a new sports car? If the judge cites Joe's inexperience, does this permit Jeff Gordon to drive faster? The law should not be interpreted so narrowly that it provides inadequate instruction to others in similar circumstances.

But as we work toward the middle, we start asking just how similar is similar enough for the ruling to apply? A conservative judge will try to limit his rulings to the set of circumstances the law was originally intended to apply to, the reason it was passed in the first place. He will not suddenly discover what the Supreme Court has called a "wide penumbra", because we have been moving to Wonderland, where when we cite a law, it means exactly what we say it means!

And yes, both political parties have made an effort to pack the courts with "mini-legislatures" that agree with their own political philosophy. After enough of this, is it any wonder we are experiencing a massive case of policy-by-judicial-decree? Activist judges of whatever political persuasion have made end-runs around legislative intent *practical*. What I'd like to see is a reduction in the scope of legal interpretations and decisions -- a reversal of the trend. But this seems unlikely where judges are appointed, because both political parties consider non-activist judges unhelpful to their cause.

-- Anonymous, January 29, 2001

Stephen:

You write:

[When the current supreme court loosens the restrictions on search and siezure, for example, that's seen as a "conservative" victory, but it's not. It's a loss for freedom across the board.]

But wait a minute. There is a constitutional prohibition against "unreasonable" search and seizure, but of course "reasonable" isn't specifically defined. So OK, here we have a case where the cops searched and seized. Were they "reasonable"?

Presumably, the constitution *does* permit reasonable search and seizure. Why is it activist to decide that "reasonable" permits looser restrictions, while it's conservative that "reasonable" has narrower scope? When I see the word "reasonable", I assume a tradeoff -- that NO search nor seizure would work against freedom, and that no restriction on it would as well. So there must be some middle ground permitting some, but not too much, that is most conducive to freedom.

A judge, looking at a case, must decide whether the search and seizure actually done falls within the notion of reasonable. But intelligent people can sincerely disagree as to where this ideal midpoint properly lies. Why is it more "activist" to select one midpoint rather than any other? All I can see is that you, personally, believe we have more freedom with less searching and seizing. But who can really tell just where the public interest is maximized?

Judicial activism may be bad, but it's not easy to define.

-- Anonymous, January 29, 2001

First, let me say quickly that the "you're full of crap" line was a mistake; I didn't mean to include that. When I pulled in the original post so that I could quote from it, I forgot to trim that line off the end! I won't bother to delete it now ... but I should have seen it when I did it. Sorry.

Flint,

Whether that's a good example or not (maybe you could pick a better one from the gun control arena), it still illustrates the point. When the Supreme Court is liberal, we get Miranda and all other sorts of restrictions on law enforcement. When the conservatives get control, it goes the other way. I disagree with *BOTH.*

Here's what I'm saying in a nutshell (I don't even need my usual 50 paragraphs[g]): if a law is vague, the courts should be required to petition the legislature for clarification, instead of "crafting" a solution (as the Florida court did during the election circus).

On the Constitution itself, if a clause needs to be expanded or amended to cover some new and unforseen circumstance, we should do it by properly-ratified amendment.

OK: that's the ideal; the reality will obviously have to be somewhat more of a compromise. But that at least gives you the intellectual base of where I'm coming from. I'd like to see us at least *swing* that way philosophically.

That's definitely where the Founding Fathers were, at least. And mind you, we're talking about a problem that began in the early 1800's; this is nothing new.

-- Anonymous, January 29, 2001

Stephen:

As a practical matter, I regard your idea as unworkable for many reasons.

1) Every law is vague in some regard, because it is intended to apply to a range of fact situations, because it uses terms like "reasonable" and "responsible" and "appropriate" and many others subject to interpretation. This is necessary and intentional.

2) Judges are unlikely to find vagueness when they have a clear idea of what they wish to accomplish in a case. In that case, the law clearly "means" what they clearly want to make happen. Can you picture the FSC saying "Gee, seven (7) days is too vague, we'd better ask the (heavily republican) legislature what seven means"? Of course not. Seven *obviously* means nineteen (19), no clarification is required!

And do you propose that we can take the court itself to court for failure to request clarification? Do you propose courts "vet" bills in advance? The founders wisely recognized that this is a bad idea (and they *did* discuss it) because we really don't know how the law will work without a real case or controversy to provide the context.

3) Where laws require judges to make hot potato decisions, they are all too likely to find vagueness (no matter how clear the law) and toss it back to the legislature to handle. And legislatures are not known for decisiveness either.

4) As a corollary, we are NOT going to see swift justice in these cases. The legislature may give birth to a useful clarification within a few years, or maybe not. Or maybe the makeup of the legislature has changed, and maybe the "clarification" makes things muddier than ever. How many times do you propose a law can be swatted back and forth while a political balance of power exists? Does the accused stay in jail, or the money remain in escrow, during this indeterminate period?

In general, I think the issue of judicial activism should not be handled by such formal means. Formalities quickly devolve into unwritten protocols, which often effect the opposite of their original intent. I don't even think the problem lies mostly with the courts -- they are doing what is being asked of them, but what is being asked is changing.

We have become a nation of formal specification, where more and more what is not mandatory is prohibited. Yes, some use the courts as a lottery, with big awards always possible. Others use the courts to create social policies the legislatures don't have the political majorities to implement. Others are looking for quick fixes to whatever ails them right now.

But the "activist" courts are, as much as anything, victims of our philosophy that government is the solution to everything. Got a problem, pass a law. Pass several. I'll vote for your law if you'll vote for mine. We have made the National Decision that all perceived inequities (and we are quite extraordinarily gifted at perceiving inequities) are someone else's fault, to be corrected by yet more legislation, whether by the legislatures, the courts, or the bureaucracy. We do all we can to socialize risks and costs, so that nobody gets hurt.

(Tongue in cheek here) how about a law that for the next 100 years, we must retire two old laws every time we pass a new one, and we must eliminate two old agencies or programs every time we create a single new one? How about a constitutional amendment that government revenues at all levels and from all sources (including borrowing) shall not exceed 10% of GDP? (Imagine the creative bookkeeping *that* would lead to!).

In practice, all I can do is vote for smaller government. If only it would shrink for the next 70 years at the same rate it grew during the prior 70, the problem of judicial activism would slowly waste away. This happens for two reasons -- because the government would lack the resources to do what activist courts (and legislatures) demanded, and because people would gradually learn from real-life experience that freedom is NOT something the government gives you, quite the contrary.

Sadly, this process is never gradual. Government grows until it bursts, taking the polity with it.

-- Anonymous, January 29, 2001