Delay opposes Internet - Relocated

[dwinterfield]

I had mistakenly posted this article in the whistle thread. My mistake. I knew better and simply wasn't paying attention.

Emphasis added!!!!!!!!!!!??????????!!!!!!!!!!!

April 20, 2005, 1:38AM
DeLay amplifies knocks on judges
By GEBE MARTINEZ
Copyright 2005 Houston Chronicle Washington Bureau

WASHINGTON - House Majority Leader Tom DeLay ratcheted up his criticism of judges and singled out U.S. Supreme Court Justice Anthony Kennedy on Tuesday, faulting him for using the Internet to conduct research and for writing court decisions "based on international law."
DeLay, R-Sugar Land, who was critical of federal judges who refused to order the reinsertion of Terri Schiavo's feeding tube before her death, also noted his disappointment that Republican-appointed judges are "judicial activists."
DeLay and other conservatives were angered last month when the U.S. Supreme Court, in a 5-4 ruling, found the Constitution forbids executing convicts who committed crimes before turning 18. The court majority opinion noted that the views of international courts had been taken into account.
Won't step down as leader
"We've got Justice Kennedy writing decisions based upon international law, not the Constitution of the United States? That's just outrageous. And not only that, but he said in session that he does his own research on the Internet? That is just incredibly outrageous," DeLay said during an interview on Fox News Radio's The Tony Snow Show.
The interview was part of DeLay's public relations campaign with Republican-friendly news organizations to rebut criticism about his ethical behavior that has escalated in recent weeks.
Asked how the controversy has affected him personally, DeLay answered with a laugh: "Well, it certainly has gotten me closer to God."
DeLay said he would not step down from his leadership post unless he is indicted by a grand jury investigating one of his political action committees. House GOP rules require leaders to step aside following indictment.
DeLay has been the most critical congressional leader regarding judicial behavior.
Following Schiavo's death earlier this month — the Florida woman was in a vegetative state when judges declined to stop removal of her feeding tube — DeLay warned: "The time will come for the men responsible for this to answer for their behavior."
That and other comments by DeLay caused some Republicans who agree with his criticism of judicial activism, such as Vice President Dick Cheney and Senate Majority Leader Bill Frist, R-Tenn., to distance themselves from his remarks.

Last week, DeLay apologized for his "inartful" rhetoric but did not back away from his vow to have Congress review recent court decisions.
Defining 'good behavior'
On the radio program, DeLay offered more detail on what he is seeking.
He wants the House Judiciary Committee to probe the constitutional provision that says 'judges can serve as long as they serve with good behavior,' " he said. "We want to define what 'good behavior' means. And that's where you have to start."
DeLay said he opposes judges "that don't follow the Constitution and write their own laws. And of course, the leftists hate it when we attack the left's last legislative body."
Democrats have said Republicans such as DeLay are going after the judiciary, even threatening impeachment, because they disagree with their decisions.
During a routine House Appropriations Committee hearing last week to consider the Supreme Court's budget, Kennedy answered Republicans' criticism against judges by calling it "very healthy." He added that democratic dialogue makes democracy work.

[GaryKelly]

I think you should re-title your thread to "Whistlers on Internet Oppose Delay"

[jbarter]

I knew I wouldn't understand this post even with the aid of a few cyber pints.
Can anybody recommend an unbiased site that gives a general guide/introduction to American politics?

[Walden]

I knew I wouldn't understand this post even with the aid of a few cyber pints.
Can anybody recommend an unbiased site that gives a general guide/introduction to American politics?

Yes, but the people on the other side would think it biased.

[jim stone]

The article doesn't suggest that Delay opposes the
Internet, in fairness. By the way, Delay probably
had something specific in mind about Kennedy's
behaviour vis a vis the internet, which the reporter
isn't reporting or the interviewer didn't follow up
on.

Also while I disbelieve the
federal courts misbehaved in the T. Schiavo case,
having little legal choice but to rule as they did at that
level of review,
I do think that our system of checks and balances
is flawed in this regard: there are insufficient
checks and balances on the judiciary. It is widely
said that we owe the Civil War significantly to
that flaw, for instance. In my own lifetime
I believe the Court, hijacked by people with a social
agenda and without warrant
in law and precedent, has done unspeakable
harm in the name of a Consitution silent on
the issues on which it ruled.

I beleive
that the majority on the Court now agree
with the legal substance of what I've just
said, at least as it comes down to particular cases
--as do political scientists I've talked to about
the structural difficulty,
the rub being finding checks and balances
that aren't worse that the status quo.

[Wormdiet]

I knew I wouldn't understand this post even with the aid of a few cyber pints.
Can anybody recommend an unbiased site that gives a general guide/introduction to American politics?

the basic issue is that lifetime-appointment judges on the supreme court get the last word on the interpretation of the COnstitution. When one political group doesn;t like a court ruling, they scream "judicial activism!" which is a technical term for imposing one's (the judge's) political viewpoint in a ruling rather than a "correct" or "faithful" interpretation of the law.

the "judicial activism" complaint is usually a fancy political smokescreen that is a handy way to address other issues though the back door.

[jim stone]

I knew I wouldn't understand this post even with the aid of a few cyber pints.
Can anybody recommend an unbiased site that gives a general guide/introduction to American politics?

the basic issue is that lifetime-appointment judges on the supreme court get the last word on the interpretation of the COnstitution. When one political group doesn;t like a court ruling, they scream "judicial activism!" which is a technical term for imposing one's (the judge's) political viewpoint in a ruling rather than a "correct" or "faithful" interpretation of the law.

the "judicial activism" complaint is usually a fancy political smokescreen that is a handy way to address other issues though the back door.

I honestly think there can be substance to these complaints,
as a matter of law. There is a real danger that that virtually
ultimate power can tempt activists with an agenda to
'settle the slavery question once and for all' say. Some rulings really do
not appear to have a basis in the Constitution, no matter
how deep you take them.
The Court has no real checks in place against legislation
pure and simple as opposed to the interpretation of law. There is
too much power there to expect it never to be abused.

[Wormdiet]

I knew I wouldn't understand this post even with the aid of a few cyber pints.
Can anybody recommend an unbiased site that gives a general guide/introduction to American politics?

the basic issue is that lifetime-appointment judges on the supreme court get the last word on the interpretation of the COnstitution. When one political group doesn;t like a court ruling, they scream "judicial activism!" which is a technical term for imposing one's (the judge's) political viewpoint in a ruling rather than a "correct" or "faithful" interpretation of the law.

the "judicial activism" complaint is usually a fancy political smokescreen that is a handy way to address other issues though the back door.

I honestly think there can be substance to these complaints,
as a matter of law. There is a real danger that that virtually
ultimate power can tempt activists with an agenda to
'settle the slavery question once and for all' say. Some rulings really do
not appear to have a basis in the Constitution, no matter
how deep you take them.
The Court has no real checks in place against legislation
pure and simple, as opposed to the interpretation of law. There is
too much power there to expect it never to be abused.

I don't entirely disagree.

The issue becomes - do we want to give effectively all judicial power back to Congress? There's a phrase for that. "tyranny of the Majority."

The other issue is, judical activism cuts both ways. The court decision *appointing* W. as president has a lot of anomalies that many would consider "activist."

[Flyingcursor]

I knew I wouldn't understand this post even with the aid of a few cyber pints.
Can anybody recommend an unbiased site that gives a general guide/introduction to American politics?

There's probably a US Government 100 textbook out there. At least it will tell you how it's "supposed" to work.

[jim stone]

the basic issue is that lifetime-appointment judges on the supreme court get the last word on the interpretation of the COnstitution. When one political group doesn;t like a court ruling, they scream "judicial activism!" which is a technical term for imposing one's (the judge's) political viewpoint in a ruling rather than a "correct" or "faithful" interpretation of the law.

the "judicial activism" complaint is usually a fancy political smokescreen that is a handy way to address other issues though the back door.

I honestly think there can be substance to these complaints,
as a matter of law. There is a real danger that that virtually
ultimate power can tempt activists with an agenda to
'settle the slavery question once and for all' say. Some rulings really do
not appear to have a basis in the Constitution, no matter
how deep you take them.
The Court has no real checks in place against legislation
pure and simple, as opposed to the interpretation of law. There is
too much power there to expect it never to be abused.

I don't entirely disagree.

The issue becomes - do we want to give effectively all judicial power back to Congress? There's a phrase for that. "tyranny of the Majority."

The other issue is, judical activism cuts both ways. The court decision *appointing* W. as president has a lot of anomalies that many would consider "activist."

Here I agree with you too. It's an interesting question, isn't it,
how one might put more checks on the judiciary?
I mean, quite literally, how would we do it?
Where would the check reside? The Senate seems
a likely place. How would it work? I mean, I'm unwilling
to write off this option without exploring it, but
I'm willing to count seriously that the solution would
be worse than the problem.

The charge of judicial activism most certainly cuts both
ways! I believe it originated on the left, from labor movements
and anti-segregationists in the late 19th and early
20th centuries, when the Court found, on dubious
legal grounds, laws protecting workers unconstitutional
and Jim Crow laws constitutional. The substance
of the activism charge must be, and I believe still is,
that the Court isn't respecting the Constitution
in such rulings. Matters that belong to the people
to decide legislatively, because the Constitution
is silent on them, are taken from the people
by an abuse of the Court's power. To this extent
we become an oligarchy and cease to be
a democracy.

I'm opposed to the DP, I've been active in opposing it,
but I believe that the recent Court ruling declaring unconstitutional
executions of juveniles was legally flawed--without adequate
basis in the Constitution and precedent. The Court
reached the right policy, IMO, but the policy was ours
to set, not that of nine lawyers in Washington.

I'm against 'results oriented' legal rulings, even
when I like the result. I believe in the rule of law.

In Robert Bolt's play "A Man for All Seasons," (Sir) Thomas More argues with his ambitious underling, Roper, who wishes More to
arrest an evil man who hasn't plainly violated any law:

More: There is no law against that.

Roper: There is! God's law!

More: Then God can arrest him.

Roper: Sophistication upon sophistication.

More: No, sheer simplicity. The law, Roper, the law. I know what's legal, not what's right. And I'll stick to what's legal.

Roper: Then you set man's law above God's!

More: No, far below; but let me draw your attention to a fact - I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of the law, oh, there I'm a forrester. I doubt if there's a man alive who could follow me there, thank God....

Alice: While you talk, he's gone!

More: And go he should, if he was the Devil himself, until he broke the law!

Roper: So now you'd give the devil the benefit of law?

More: Yes. What would you do? Cut a great road through the law to get after the devil?

Roper: I'd cut down every law in England to do that.

More: Oh, and when the last law was down, and the devil turned on you, where would you hide, Roper, all the laws being flat? This country is planted thick with laws from coast to coast, man's laws not God's, and if you cut them down -- and you're just the man to do it -- do you really think that you could stand upright in the winds that would blow then?

Yes, I'd give the devil the benefit of the law, for my own safety's sake.

Robert Bolt, A Man for All Seasons

[Bloomfield]

Here I agree with you too. It's an interesting question, isn't it,
how one might put more checks on the judiciary?
I mean, quite literally, how would we do it?
Where would the check reside? The Senate seems
a likely place. How would it work? I mean, I'm unwilling
to write off this option without exploring it, but
I'm willing to count seriously that the solution would
be worse than the problem.

The check on the judiciary is Congress' ability to pass legislation and to limit court jurisdiction. That check is checked in itself in that Congress cannot (normally) legislate retroactively and that special legislation is disfavored. There are plenty of instances where Congress has disagreed with the courts interpretation of legislation and has clarified the statute or "overruled" court decisions, if you will.

The charge of judicial activism most certainly cuts both
ways! I believe it originated on the left, from labor movements
and anti-segregationists in the late 19th and early
20th centuries, when the Court found, on dubious
legal grounds, laws protecting workers unconstitutional
and Jim Crow laws constitutional.

I think you mean it originated on the right. During the whole Lochner era the Courts made themselves the activist henchmen of the conservative forces in society to supress the budding labor movement. (please note that I am not spinning this: what I am saying generally accepted). The court had to be threatened politically before it reversed it's position, leading up to the New Deal.

My hunch is that judicial "activism" is much much older, of course.

The substance
of the activism charge must be, and I believe still is,
that the Court isn't respecting the Constitution
in such rulings. Matters that belong to the people
to decide legislatively, because the Constitution
is silent on them, are taken from the people
by an abuse of the Court's power. To this extent
we become an oligarchy and cease to be
a democracy.

Here I disagree. When you mean that the Court "isn't respecting the Consitution," do you mean that they know what the Consitution demands (what the "right" constitutional decision would be) and they choose to ignore it? I doubt that such a subjective disrespect can be attributed in all but the most extreme cases (and I am not aware of any in recent history). On the contrary, I believe judges are very concientious and take their responsibililty very seriously, and believe they are deciding what the Constitution demands.

The question "what belongs to the people to decide because the Constitution is silent on them" is a very difficult one, and there are good arguments for more or less judicial restraint. The constitution itself tries to solve the problem by restricting the courts' jurisdiction to "cases and controversies," that is to specific instances. You seem to have the view that the content of the Constitution is somehow fixed and knowable; it is not: there is no content to the constitution pre-interpretation and saying "your interpretation" violates the Constitution is a hard and difficult argument to make.

I'm against 'results oriented' legal rulings, even
when I like the result. I believe in the rule of law.

Your argument is "results oriented" because you ignore the practical impossibility of making the distinction you are trying to draw. If you tried ruling, actually deciding a case based on the Constitution (or other law), you would find that even your restraint "I can't decide this because the Constitution is silent on it" would be viewed as being result-oriented by opponents. Your efforts not to be results-oriented but to adhere to the rule of law would leave you open to judicial dishonesty: to being blind to the social consequences of your rulings, and worse, to hide your social agenda against a smoke screen of legal formalism.

The issue is that "activism" is inescapable. Are you aware of any hot-button social issue on which the Supreme Court has ruled in which the charge of activism or political adjudication etc. was not raised? You say, that it is unlikely that so much power would not sometimes be abused. But shouldn't we first determine whether there are instances that are not considered abuse by someone?

And finally: Why do you think Supreme Court Justices are appointed through the political system, vetted by the Senate? Isn't that the implicit recognitition that you cannot have constitutional adjudication without the rhetoric and charges of politics?

[brewerpaul]

I knew I wouldn't understand this post even with the aid of a few cyber pints.
Can anybody recommend an unbiased site that gives a general guide/introduction to American politics?

There are none. We're, alas, all too partisan.

[jim stone]

Here I agree with you too. It's an interesting question, isn't it,
how one might put more checks on the judiciary?
I mean, quite literally, how would we do it?
Where would the check reside? The Senate seems
a likely place. How would it work? I mean, I'm unwilling
to write off this option without exploring it, but
I'm willing to count seriously that the solution would
be worse than the problem.

The check on the judiciary is Congress' ability to pass legislation and to limit court jurisdiction. That check is checked in itself in that Congress cannot (normally) legislate retroactively and that special legislation is disfavored. There are plenty of instances where Congress has disagreed with the courts interpretation of legislation and has clarified the statute or "overruled" court decisions, if you will.

The charge of judicial activism most certainly cuts both
ways! I believe it originated on the left, from labor movements
and anti-segregationists in the late 19th and early
20th centuries, when the Court found, on dubious
legal grounds, laws protecting workers unconstitutional
and Jim Crow laws constitutional.

I think you mean it originated on the right. During the whole Lochner era the Courts made themselves the activist henchmen of the conservative forces in society to supress the budding labor movement. (please note that I am not spinning this: what I am saying generally accepted). The court had to be threatened politically before it reversed it's position, leading up to the New Deal.

My hunch is that judicial "activism" is much much older, of course.

The substance
of the activism charge must be, and I believe still is,
that the Court isn't respecting the Constitution
in such rulings. Matters that belong to the people
to decide legislatively, because the Constitution
is silent on them, are taken from the people
by an abuse of the Court's power. To this extent
we become an oligarchy and cease to be
a democracy.

Here I disagree. When you mean that the Court "isn't respecting the Consitution," do you mean that they know what the Consitution demands (what the "right" constitutional decision would be) and they choose to ignore it? I doubt that such a subjective disrespect can be attributed in all but the most extreme cases (and I am not aware of any in recent history). On the contrary, I believe judges are very concientious and take their responsibililty very seriously, and believe they are deciding what the Constitution demands.

The question "what belongs to the people to decide because the Constitution is silent on them" is a very difficult one, and there are good arguments for more or less judicial restraint. The constitution itself tries to solve the problem by restricting the courts' jurisdiction to "cases and controversies," that is to specific instances. You seem to have the view that the content of the Constitution is somehow fixed and knowable; it is not: there is no content to the constitution pre-interpretation and saying "your interpretation" violates the Constitution is a hard and difficult argument to make.

I'm against 'results oriented' legal rulings, even
when I like the result. I believe in the rule of law.

Your argument is "results oriented" because you ignore the practical impossibility of making the distinction you are trying to draw. If you tried ruling, actually deciding a case based on the Constitution (or other law), you would find that even your restraint "I can't decide this because the Constitution is silent on it" would be viewed as being result-oriented by opponents. Your efforts not to be results-oriented but to adhere to the rule of law would leave you open to judicial dishonesty: to being blind to the social consequences of your rulings, and worse, to hide your social agenda against a smoke screen of legal formalism.

The issue is that "activism" is inescapable. Are you aware of any hot-button social issue on which the Supreme Court has ruled in which the charge of activism or political adjudication etc. was not raised? You say, that it is unlikely that so much power would not sometimes be abused. But shouldn't we first determine whether there are instances that are not considered abuse by someone?

And finally: Why do you think Supreme Court Justices are appointed through the political system, vetted by the Senate? Isn't that the implicit recognitition that you cannot have constitutional adjudication without the rhetoric and charges of politics?

We're going past each other somewhat, I think. Considering your
first point, the substance of the 'insufficient checks' claim
isn't that there are no checks on the judiciary, but that they are insufficient. If a Court wishes to hijack the Constitution
to this or that purpose, as it is widely believed (including
a good number of jurists who like Roe's result) happened in Roe,
the existing checks are insufficient
to prevent it.

No, I meant that the activism charge originated on the LEFT,
from labor movements and anti-segregationists.
The judicial activists were on the RIGHT, protecting
big business. Sometimes they cared for that more
than they cared for the law. I think
we're agreeing.

On my claim that the substance of the charge is that
the Court isn't respecting the Constitution, I don't understand
your disagreement. That IS the substance of the charge.
You may think the charge is unfounded, still that's the
charge.

As to whether the 'activism' charge is ever warranted, I think it is.
I can't speak to the psychological states of the justices,
one looks at the rulings themselves. Also one reads
accounts coming from neutral sources that the justices
themselves had serious doubts about the Constituionality
of the ruling, but felt that the issue needed to be
addressed; so they cobbled it together as best they could.
When the ruling doesn't add up, when there is a
widespread response from jurists that it 'isn't
recognizable as a Constittuional ruling,' when
dissenters on the Court object that it simply has no basis
in law or precedent, and when, upon investigation
that charge looks correct, the 'activism' charge
is warranted, IMO.

As you say, the Court during the
Lochner era made itself 'the activist henchmen
of the anti-labor forces.' Absolutely right.
On the face of things, given what you yourself
are saying, the 'judicial activism'
charge is sometimes warranted.

[jim stone]

I just want to add this, as to how egregious these things
get, as a matter of law, and the mind set of
the justices who make these rulings.

Roe issues in a trimester framework.

The state cannot require an abortion to be performed in a clinic
or hospital, as opposed to a physician's office, on the
ground that this protects the woman's health,
until the end of the first trimester--because that is
the point at which abortion becomes as dangerous
as live birth, the Court says.

The state cannot legislate to protect the fetus until
the point of viability (the end of the second trimester)--because that is the point at
which the fetus can have an independent life
as a member of the community.

First, the trimester framework looks like an abortion statute, on its face,
not a legal ruling.

Second, the Court doesn't even pretend to provide
CONSTITUTIONAL grounds for the trimester
framework. If you look at the justifications the
Court gives for the trimesters, whatever you
might think of them, good or bad, THERE IS NO
EFFORT WHATSOEVER to maintain (or even pretend)
that these justifications flow from the Constitution.

This is legislation, not the interpretation
of law. Yet the force of it is
that any state that, say, tries to lower maternal
mortality from first-trimester abortions by requiring them
to take place in clinics or hospitals is
VIOLATING the Constitution.

[Jerry Freeman]

Reading the actual text of Roe v Wade left me with the clear impression that the Court had ruled directly based on the wording of the constitution regarding what was considered a person and the fact that abortion was legal at the time the constitution was framed.

Although there's nothing in the constitution defining a fetus as a person with rights, there is wording in the constitution describing rights for those the constitution does clearly define as persons. The problem is, a mother clearly does have constitutional rights; on the rights of a fetus, however, the constitution is silent. Your quote from A Man for All Seasons seems perfectly matched to the legal circumstances surrounding the Roe decision.

Nothing in the constitution defines personhood as existing before the time the fetus could survive outside the womb. This is extremely inconvenient for those who oppose abortion, but it is simply not within the law's scope to outlaw it simply because there are many people who consider it to be wrong. The law is the law. It only goes so far and no further, no matter how frustrating that might be to some.

Additionally, Roe leaves plenty of room for legislatures to make laws pertaining to abortion. Especially considering the advances in neonatal care, it would be possible, based on the Supreme Court's ruling, for legislatures to completely outlaw abortions after a certain number of weeks. However, I would say there's a profound lack of legislative will here, and politicians are trying to get the courts to legislate this matter for them even at the same time they're screaming "judicial activism."

Best wishes,
Jerry