On this day in 1973, the U.S. Supreme Court issued the decision in Roe V Wade making abortion a "fundamental right". One day this decision will be viewed with even more disgust and disbelief than we now view the Dredd Scott case. In Roe, the Burger Court simply created an entirely new "fundamental right" by relying on the "emanations of a penumbra*". Even prominent Leftist Constitutional scholars will admit that Roe is bad law. I personally believe that abortion is murder, and I also believe that our descendants will see it that way also, and will view the last forty years as a holocaust.
* I was disappointed to see that Merriam-Webster actually lists: a body of rights held to be guaranteed by implication in a civil constitution as a definition of penumbra. Can anyone cite me any other example in the history of mankind in which this excuse was used besides the Burger Court?
Showing posts with label Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts
Saturday, January 22, 2011
Tuesday, March 23, 2010
Is Obamacare Constitutional?
Here is a site that makes the argument that Obamacare is constitutional.
Here is my counter argument that I first posted at a blog called The Living Room Times.
My take on the Balkin article:
I) He spends a lot of time discussing the House bill. This is off topic and I will ignore it.
II) His argument that this is not an individual mandate:
A) Listing a set of people who are exempt from the mandate does not invalidate the fact that for most people it remains a mandate. Instead it reinforces the fact that it is a mandate for those not exempted.
B) At least four of the exemptions Balkin describes are temporary states, and when that person’s status changes the mandate will cover them.
C) He argues that it is a tax, and not a mandate.
1) He first argues that it is an excise tax, in his words a “tax on transactions or events”. However this is not a tax on a transaction or event, it is a tax on the absence of a transaction or event. The person is not being taxed on something he did, but rather because he didn’t do something. This is not an excise tax.
2) He then argues that it is a penalty tax, a tax for not doing something you are mandated by the government to do. Logically this defeats the whole basis of his argument that it is not a mandate. You can’t be penalized for not doing something you are not mandated to do.
D) If his argument is that the term individual mandate is misleading, why does he then proceed to use the term in the rest of his article?
III) His General Welfare argument
A) The term general welfare had a much different meaning when the Constitution was written than it does today. The general welfare clause originally was a justification for passing laws, not a justification for entitlements.
B) Balkin states:The individual mandate is a tax. Does it serve the general welfare? The constitutional test is whether Congress could reasonably conclude that its taxing and spending programs promote the general welfare of the country
The individual mandate is not a tax. The individual mandate is a requirement to purchase health insurance. The tax is a penalty for not complying with the mandate. The argument is not that the government cannot impose taxes or penalties, it is that the government cannot require you to purchase health insurance. If this bill simply taxed the people to pay for health care this constitutional argument would not exist.
C) As Sully says above his polluter analogy is flawed. To be correct he must instead argue that everyone, polluters and non- polluters alike are forced to pay for pollution control equipment or pay a fine. Indeed it would be more accurate to say that everyone is forced to pay for yearly pollution offsets every year or pay a fine, whether they produce pollution or not. (in any case the analogy would still be flawed)
D) I strongly disagree with his proposition that “the textual argument for Congress’s authority under the General Welfare Clause is obvious and powerful” in this case. He assumes that proposition. His only arguments are the flawed pollution analogy and a flawed definition of the individual mandate.
IV) His Commerce Clause argument:
A) Both of the cases he cites, Wickard v. Filburn and Gonzales v. Raich (both of which I disagree with), are cases where the government prohibited people from taking an action that might affect interstate commerce. This is a case where the government is forcing people to take an action by arguing that their inaction affects commerce. Prohibiting an action is not the same thing as mandating an action.
B) Where is the logical end of this argument? Using this argument the government has a basis to mandate that individuals purchase anything they want because it could affect commerce. Why can’t the government mandate the purchase of a new GM or Chrysler car every four years? Not buying GM or Chrysler products has a huge impact on interstate commerce, especially on other buying their products.
“Because Congress believes that the GM and Chrysler bailouts won’t succeed unless these people are forced to buy GM or Chrysler products, it can regulate their activities in order to make its bailout of GM and Chrysler effective.”
V) In my opinion, the argument is not properly “Will the Supreme Court over turn this law.” sadly, I agree that it is unlikely that there are enough votes to overturn this law. However the argument properly should be “Should the Supreme Court overturn this law?” In that case I think the only answer is yes.
Update 10/27/10 9:45AM: Great minds think alike.
Here is my counter argument that I first posted at a blog called The Living Room Times.
My take on the Balkin article:
I) He spends a lot of time discussing the House bill. This is off topic and I will ignore it.
II) His argument that this is not an individual mandate:
A) Listing a set of people who are exempt from the mandate does not invalidate the fact that for most people it remains a mandate. Instead it reinforces the fact that it is a mandate for those not exempted.
B) At least four of the exemptions Balkin describes are temporary states, and when that person’s status changes the mandate will cover them.
C) He argues that it is a tax, and not a mandate.
1) He first argues that it is an excise tax, in his words a “tax on transactions or events”. However this is not a tax on a transaction or event, it is a tax on the absence of a transaction or event. The person is not being taxed on something he did, but rather because he didn’t do something. This is not an excise tax.
2) He then argues that it is a penalty tax, a tax for not doing something you are mandated by the government to do. Logically this defeats the whole basis of his argument that it is not a mandate. You can’t be penalized for not doing something you are not mandated to do.
D) If his argument is that the term individual mandate is misleading, why does he then proceed to use the term in the rest of his article?
III) His General Welfare argument
A) The term general welfare had a much different meaning when the Constitution was written than it does today. The general welfare clause originally was a justification for passing laws, not a justification for entitlements.
B) Balkin states:The individual mandate is a tax. Does it serve the general welfare? The constitutional test is whether Congress could reasonably conclude that its taxing and spending programs promote the general welfare of the country
The individual mandate is not a tax. The individual mandate is a requirement to purchase health insurance. The tax is a penalty for not complying with the mandate. The argument is not that the government cannot impose taxes or penalties, it is that the government cannot require you to purchase health insurance. If this bill simply taxed the people to pay for health care this constitutional argument would not exist.
C) As Sully says above his polluter analogy is flawed. To be correct he must instead argue that everyone, polluters and non- polluters alike are forced to pay for pollution control equipment or pay a fine. Indeed it would be more accurate to say that everyone is forced to pay for yearly pollution offsets every year or pay a fine, whether they produce pollution or not. (in any case the analogy would still be flawed)
D) I strongly disagree with his proposition that “the textual argument for Congress’s authority under the General Welfare Clause is obvious and powerful” in this case. He assumes that proposition. His only arguments are the flawed pollution analogy and a flawed definition of the individual mandate.
IV) His Commerce Clause argument:
A) Both of the cases he cites, Wickard v. Filburn and Gonzales v. Raich (both of which I disagree with), are cases where the government prohibited people from taking an action that might affect interstate commerce. This is a case where the government is forcing people to take an action by arguing that their inaction affects commerce. Prohibiting an action is not the same thing as mandating an action.
B) Where is the logical end of this argument? Using this argument the government has a basis to mandate that individuals purchase anything they want because it could affect commerce. Why can’t the government mandate the purchase of a new GM or Chrysler car every four years? Not buying GM or Chrysler products has a huge impact on interstate commerce, especially on other buying their products.
“Because Congress believes that the GM and Chrysler bailouts won’t succeed unless these people are forced to buy GM or Chrysler products, it can regulate their activities in order to make its bailout of GM and Chrysler effective.”
V) In my opinion, the argument is not properly “Will the Supreme Court over turn this law.” sadly, I agree that it is unlikely that there are enough votes to overturn this law. However the argument properly should be “Should the Supreme Court overturn this law?” In that case I think the only answer is yes.
Update 10/27/10 9:45AM: Great minds think alike.
Saturday, July 07, 2007
The US Supreme Court Today
I have just finished Jan Crawford Greenburg's recent book Supreme Conflict. It was a pretty interesting book, dealing mainly with the transformation from the Rhenquist Court to the Roberts Court. It talked a lot about the nomination and confirmation process post Roe V Wade.
I was struck by one passage in particular however:
"Jones's experience shows that abortion, for such a controversial and divisive issue, can produce a remarkably lopsided debate during the confirmation process. Republican nominees walk a minefield, knowing vocal opposition to Roe or even criticism of it, could doom their chances. But democratic nominees are assumed to support the abortion right and have been easily confirmed" (pg. 225)
What struck me about the quote was the matter of fact way it was presented, with no further discussion or analysis. The quote is undeniably true, but surely some discussion of why it is true was warranted?
There have been eleven rejected nominations to the Supreme Court. Three of these have been Democrats, five of them Republican.
Two of the three rejected Democratic nominees were nominated by President Cleveland in his second (non-consecutive) administration. William Hornblower was defeated 24-30, and Wheeler Hazard Peckham was defeated 32-41 in a 1894 Senate in which there were 44 Democrats, 40 Republicans, and 4 others. The opposition to these nominees was lead by Democratic Senator David Hill who had opposed Cleveland for the Democratic presidential nomination in 1892. The third was George Washington Woodward in 1845, who was rejected (20-29) by a Democratic majority Senate (34-22) after a failed Senate run in 1844.
So the last Democratic Supreme Court nominee to be rejected was in 1894, and all three were done in by fellow Democrats.
The first of the five rejected Republican nominees was Ebenezer R. Hoar by President Grant in 1870, by a vote of 24-33. The senate was dominated by the Republicans 62-12. The second was John J. Parker, nominated by President Hoover. He was rejected 39-41 (by one vote) in a Senate with 56 Republicans, 39 Democrats, and an independent. His nomination was strongly opposed by the labor unions and the NAACP. Next was Clement Haynsworth, nominated by President Nixon in 1969. He was rejected 45-55 in a Senate dominated by Democrats 64-36. He too was opposed by the NAACP, but he was also attacked by liberal Republicans. 38 Democrats and 17 Republicans voted against him. The fourth was Harold Carswell, nominated by President Nixon in 1970. He lost 45-51, in a Senate divided 57-43 in favor of the Democrats. He was attacked as a segregationist, and his competency was challenged. 38 Democrats and 13 Republicans voted against him. The last nominee rejected was Robert Bork. He was nominated by President Reagan in 1987. He lost 42-58 in a Senate divided 55-45 in favor of the Democrats. He was heavily opposed by liberal special interest groups.
So the last four rejected nominees (and all the nominees rejected in the 20th Century) were all Republicans.
The only Democratic Supreme Court nomination to fail in the 20th century was when LBJ tried to elevate Associate Justice Fortas to the Chief Justice. Fortas was accused of being too political (he was a close confidant of LBJ) and was under suspicion of financial impropriety. (In fact he was later forced to resign as an Associate Justice for financial improprieties) His nomination was withdrawn.
The last Democratic Nominees were:
Ruth Bader Ginsburg - confirmed 96-3, even though she had been a prominent lawyer for the ACLU (The ACLU has formally opposed the nominations of three justices in their 85 year career: Alito, Bork and Rehnquist. All conservative, all post Roe.)
Stephen Bryer - confirmed 87-9
The last two Republican nominees were:
John Roberts 78-22
Sam Alito 58-42
Republican senators are much more willing to vote in favor of Democratic nominees than Democratic senators are willing to vote for Republican nominees.
Special note also has to be made about the treatment Judge Robert Bork and Justice Clarence Thomas have received. Both men were savaged by liberal special interest groups and Democratic senators. No comparable actions have ever been taken against Democratic nominees. Instead, they are treated with deference and respect. Sam Alito also faced a concerted opposition from liberal special interest groups, and a hostile Democratic Senate.
There has also been a curious phenomena of Republican Justices drifting (in some cases racing) to the left and becoming liberals once on the Supreme Court. It begins with Chief Justice Burger in 1969, then Blackmun(1970), Stevens (1975 and still on the Court), O'Connor (1981), Kennedy (1988), and Souter (1990). All six of these Justices were expected to be judicial conservatives, but instead all have been instrumental in some way in preserving the liberal nature of the Court. One explanation for this effect is that Republican presidents tend to nominate candidates that are "confirm-able", meaning that they can garner some Democratic support, and thus have some liberal tendencies. Democratic presidents however feel free to nominate solidly liberal Justices, knowing that Republican senators are much more likely to defer to a Democratic president's wishes. (no Democratic nominee has had even 20 votes against him since Brandeis with 22 no votes in 1916, and then we have to go back to Cleveland's nominees for significant opposition..and it was mainly Democratic opposition) The other common explanation is that conservative justices are "corrupted" by the eastern liberal establishment, and a desire to please the liberal media.
Surely at least some of the points I have outlined above are worth at least a mention when the confirmation process is being discussed?
I was struck by one passage in particular however:
"Jones's experience shows that abortion, for such a controversial and divisive issue, can produce a remarkably lopsided debate during the confirmation process. Republican nominees walk a minefield, knowing vocal opposition to Roe or even criticism of it, could doom their chances. But democratic nominees are assumed to support the abortion right and have been easily confirmed" (pg. 225)
What struck me about the quote was the matter of fact way it was presented, with no further discussion or analysis. The quote is undeniably true, but surely some discussion of why it is true was warranted?
There have been eleven rejected nominations to the Supreme Court. Three of these have been Democrats, five of them Republican.
Two of the three rejected Democratic nominees were nominated by President Cleveland in his second (non-consecutive) administration. William Hornblower was defeated 24-30, and Wheeler Hazard Peckham was defeated 32-41 in a 1894 Senate in which there were 44 Democrats, 40 Republicans, and 4 others. The opposition to these nominees was lead by Democratic Senator David Hill who had opposed Cleveland for the Democratic presidential nomination in 1892. The third was George Washington Woodward in 1845, who was rejected (20-29) by a Democratic majority Senate (34-22) after a failed Senate run in 1844.
So the last Democratic Supreme Court nominee to be rejected was in 1894, and all three were done in by fellow Democrats.
The first of the five rejected Republican nominees was Ebenezer R. Hoar by President Grant in 1870, by a vote of 24-33. The senate was dominated by the Republicans 62-12. The second was John J. Parker, nominated by President Hoover. He was rejected 39-41 (by one vote) in a Senate with 56 Republicans, 39 Democrats, and an independent. His nomination was strongly opposed by the labor unions and the NAACP. Next was Clement Haynsworth, nominated by President Nixon in 1969. He was rejected 45-55 in a Senate dominated by Democrats 64-36. He too was opposed by the NAACP, but he was also attacked by liberal Republicans. 38 Democrats and 17 Republicans voted against him. The fourth was Harold Carswell, nominated by President Nixon in 1970. He lost 45-51, in a Senate divided 57-43 in favor of the Democrats. He was attacked as a segregationist, and his competency was challenged. 38 Democrats and 13 Republicans voted against him. The last nominee rejected was Robert Bork. He was nominated by President Reagan in 1987. He lost 42-58 in a Senate divided 55-45 in favor of the Democrats. He was heavily opposed by liberal special interest groups.
So the last four rejected nominees (and all the nominees rejected in the 20th Century) were all Republicans.
The only Democratic Supreme Court nomination to fail in the 20th century was when LBJ tried to elevate Associate Justice Fortas to the Chief Justice. Fortas was accused of being too political (he was a close confidant of LBJ) and was under suspicion of financial impropriety. (In fact he was later forced to resign as an Associate Justice for financial improprieties) His nomination was withdrawn.
The last Democratic Nominees were:
Ruth Bader Ginsburg - confirmed 96-3, even though she had been a prominent lawyer for the ACLU (The ACLU has formally opposed the nominations of three justices in their 85 year career: Alito, Bork and Rehnquist. All conservative, all post Roe.)
Stephen Bryer - confirmed 87-9
The last two Republican nominees were:
John Roberts 78-22
Sam Alito 58-42
Republican senators are much more willing to vote in favor of Democratic nominees than Democratic senators are willing to vote for Republican nominees.
Special note also has to be made about the treatment Judge Robert Bork and Justice Clarence Thomas have received. Both men were savaged by liberal special interest groups and Democratic senators. No comparable actions have ever been taken against Democratic nominees. Instead, they are treated with deference and respect. Sam Alito also faced a concerted opposition from liberal special interest groups, and a hostile Democratic Senate.
There has also been a curious phenomena of Republican Justices drifting (in some cases racing) to the left and becoming liberals once on the Supreme Court. It begins with Chief Justice Burger in 1969, then Blackmun(1970), Stevens (1975 and still on the Court), O'Connor (1981), Kennedy (1988), and Souter (1990). All six of these Justices were expected to be judicial conservatives, but instead all have been instrumental in some way in preserving the liberal nature of the Court. One explanation for this effect is that Republican presidents tend to nominate candidates that are "confirm-able", meaning that they can garner some Democratic support, and thus have some liberal tendencies. Democratic presidents however feel free to nominate solidly liberal Justices, knowing that Republican senators are much more likely to defer to a Democratic president's wishes. (no Democratic nominee has had even 20 votes against him since Brandeis with 22 no votes in 1916, and then we have to go back to Cleveland's nominees for significant opposition..and it was mainly Democratic opposition) The other common explanation is that conservative justices are "corrupted" by the eastern liberal establishment, and a desire to please the liberal media.
Surely at least some of the points I have outlined above are worth at least a mention when the confirmation process is being discussed?
Friday, July 06, 2007
Failed US Supreme Court Nominations
1) Robert Harrison, nominated (and confirmed by voice vote) as an Associate Justice to the original Court by President Washington in September, 1789. He declined to serve.
2) William Paterson, nominated as an Associate Justice by President Washington in February 1793. His nomination was withdrawn one day after it was initially made. He was then re-nominated the next month and confirmed two days later by voice vote.
3) John Rutledge (formerly an Associate Justice), was nominated in a recess appointment as Chief Justice by President Washington in July 1795. His confirmation was rejected in December 1795 by a vote of 10-14 and he resigned. Opposition was centered on his denunciation of the Jay Treaty, and questions regarding his sanity. He served one term as Chief Justice.
4) William Cushing (a sitting Associate Justice), was nominated as Chief Justice by President Washington in January 1796. He was confirmed by the Senate, and sat for two days as the Chief Justice. He then resigned citing reasons of health, and returned to his seat as an Associate Justice. He is officially listed as declining the nomination.
5) John Jay (formerly Chief Justice), was nominated as Chief Justice by President John Adam in December 1800. He declined the nomination.
6) Levi Lincoln, Sr., was nominated as an Associate Justice by President Madison in January 1811. He declined.
7) Alexander Wolcott, was nominated as an Associate Justice by President Madison in February 1811. He was rejected 9-24, largely due to his earlier actions as a customs inspector.
8) John Quincy Adams, was nominated as an Associate Justice by President Madison in February 1811. He declined, and later went on to serve as President and a member of the House of Representatives. (nearly becoming the first person to serve in all three branches of the federal government)
9) John J. Crittenden, was nominated as an Associate Justice by President John Quincy Adams in Dec. 1828. His was the first nomination to last more than a couple of weeks before the Senate either confirmed or rejected. His nomination was postponed by a vote of 23-17 in February 1829, probably due to the fact that President Jackson (a political foe) was due to assume office the next month. It should also be noted that Crittenden served in the Senate both before and after his nomination, which might explain why his nomination was not rejected outright.
10) Roger B. Taney, was nominated as an Associate Justice by President Jackson in January 1835. His nomination was postponed by a vote of 24-21 in March of 1835. He was then nominated as Chief Justice in December 1835, and confirmed 29-15 in March of 1836.
11) William Smith, was nominated as an Associate Justice by President Jackson in March 1837, and confirmed 23-18. He declined the seat.
12) John Canfield Spencer, was first nominated as an Associate Justice by President Tyler in January 1844. He was rejected 21-26.
13) Reuben Walworth, was first nominated as an Associate Justice by President Tyler in March of 1844. His nomination was tabled by the Senate on a vote of 27-20 in June 1844, and then withdrawn.
14) Edward King, was first nominated as an Associate Justice by President Tyler in June of 1884. The Senate almost immediately postponed consideration on a vote of 29-18.
15) John Canfield Spencer, was again nominated as an Associate Justice by President Tyler on June 17, 1844, but the nomination was withdrawn on the same day.
16) Reuben Walworth, was nominated as an Associate Justice for the second time by President Tyler on June 17, 1844, but the Senate took no action on it.
17) Edward King, was again nominated as an Associate Justice by President Tyler in December 1844. His nomination was withdrawn in February 1845.
18) Reuben Walworth, was nominated as an Associate Justice for the third time by President Tyler in December 0f 1844. His nomination was withdrawn in February of 1845.
19) John M. Read, was nominated as an Associate Justice by President Tyler in February 1845. The senate took no action it. (Probably because a new administration was due to begin the next month)
In a period lasting a little over a year from January 1844 to February 1845, President Tyler nominated five men a total of nine times, and only one, Samuel Nelson, was confirmed.
20) George Woodward, was nominated as an Associate Justice by President Polk in December 1845. He was rejected by the Senate on a vote of 20-29 in January 1846.
21) Edward Bradford, was nominated as an Associate Justice by President Fillmore in August of 1852. The Senate never acted on the nomination.
22) George Edmund Badger, was nominated as an Associate Justice by President Fillmore in January 1853. The nomination was withdrawn in February 1853. He was serving in the Senate during the period of his nomination.
23) William Micou, was nominated as an Associate Justice by President Fillmore in February 1853. The nomination was not acted on, probably because a new administration would take office a month later.
24) Jeremiah S. Black, was nominated as an Associate Justice by President Buchanan in February 1861. The Senate refused to act on his nomination on a vote of 25-26. A new administration would enter office a month later.
25) Henry Stanberry, was nominated as an Associate Justice by President Andrew Johnson in April 1866. The Senate never officially acted on the nomination. However they did eliminate the seat on the Supreme Court he was nominated for.
26) Ebenezer R. Hoar, was nominated as an Associate Justice by President Grant in December 1869. He was rejected by the senate on a vote of 24-33 in February 1870.
27) George Henry Williams, was nominated as Chief Justice by President Grant in December 1873. The nomination was withdrawn in January of 1874.
28) Caleb Cushing, was nominated as Chief Justice by President Grant in January 1874. His nomination was withdrawn a week later.
29) Thomas Stanley Matthews, was nominated as an Associate Justice by President Hayes in January 1881. The Senate took no action. He was renominated later that year by President Garfield and confirmed.
30) Roscoe Conkling, was nominated as an Associate Justice by President Arthur in February 1882. He declined.
31) William Hornblower, was first nominated as an Associate Justice by President Cleveland in Sept. 1893. The Senate took no action.
32) William Hornblower was again nominated as an Associate Justice by President Cleveland in December 1893. He was rejected 24-30 in January 1894.
33) Wheeler Hazard Peckham, was nominated as an Associate Justice by President Cleveland in January 1894. The Senate rejected him 32-41 in February 1894.
Hornblower and Peckham were victims of a Democratic party political rivalry between Pres. Cleveland and Sen. David Hill. Peckham's brother would be later nominated and serve.
34) Pierce Butler, was nominated as an Associate Justice by President Harding in November 1922. The Senate took no action. He was renominated a month later and confirmed.
35) John J. Parker, was nominated as an Associate Justice by President Hoover in March 1930. He was rejected by the Senate 39-41, in May, 1930. He was opposed by labor unions and the NAACP.
36) John Marshall Harlan II, was nominated as an Associate Justice by President Eisenhower in November 1954. The Senate failed to act. He was renominated by President Eisenhower in January 1955 and confirmed.
37) Abe Fortas (a sitting Associate Justice), was nominated as Chief Justice by President Lyndon Johnson in June 1968. The nomination was withdrawn in October 1968.
38) Homer Thornberry, was nominated as an Associate Justice by President Lyndon Johnson in June 1968. The senate never acted, because the seat he was nominated for was not vacated by Associate Justice Fortas.
39) Clement Haynsworth, was nominated as an Associate Justice by President Nixon in August 1969. He was rejected by the Senate 45-55, in November of 1969. He was opposed by liberals and the NAACP.
40) Harold Carswell, was nominated as an Associate Justice by President Nixon in January 1970. He was rejected by the Senate 45-51, in April 1970. He faced charges of promoting segregation.
41) Robert Bork, was nominated as an Associate Justice by President Ronald Reagan in July 1987. He was rejected by the Senate 42-58 in October 1987. He was opposed by the ACLU and abortion rights organizations.
42) John Roberts, was nominated as an Associate Justice by President G.W. Bush in July 2005. His nomination was withdrawn in September 2005. He was immediately renominated as Chief Justice and confirmed.
43) Harriet Miers, was nominated as an Associate Justice by President G.W. Bush in Oct. 2005. Her nomination was withdrawn later that month. She was opposed mainly by conservatives within her own party who were worried she would turn liberal as other Republican nominees have done.
So, of the 43 failed nominations:
7 nominees declined. (one of them continued to serve as an Associate Justice, one had formerly served as chief Justice) The last time a nominee declined was in 1882.
11 nominees were withdrawn. ( two were later renominated and served, one was later renominated and didn't serve, one withdrew from Chief Justice, but continued to serve as an Associate Justice)
11 nominees were rejected by the Senate. (one served a single term as a recess appointment, one was later renominated)
3 nominees were postponed. (one was later renominated and served, one was later renominated and didn't serve)
The Senate took no action on 11 nominees. (two were later renominated and didn't serve, three were later renominated and served)
2) William Paterson, nominated as an Associate Justice by President Washington in February 1793. His nomination was withdrawn one day after it was initially made. He was then re-nominated the next month and confirmed two days later by voice vote.
3) John Rutledge (formerly an Associate Justice), was nominated in a recess appointment as Chief Justice by President Washington in July 1795. His confirmation was rejected in December 1795 by a vote of 10-14 and he resigned. Opposition was centered on his denunciation of the Jay Treaty, and questions regarding his sanity. He served one term as Chief Justice.
4) William Cushing (a sitting Associate Justice), was nominated as Chief Justice by President Washington in January 1796. He was confirmed by the Senate, and sat for two days as the Chief Justice. He then resigned citing reasons of health, and returned to his seat as an Associate Justice. He is officially listed as declining the nomination.
5) John Jay (formerly Chief Justice), was nominated as Chief Justice by President John Adam in December 1800. He declined the nomination.
6) Levi Lincoln, Sr., was nominated as an Associate Justice by President Madison in January 1811. He declined.
7) Alexander Wolcott, was nominated as an Associate Justice by President Madison in February 1811. He was rejected 9-24, largely due to his earlier actions as a customs inspector.
8) John Quincy Adams, was nominated as an Associate Justice by President Madison in February 1811. He declined, and later went on to serve as President and a member of the House of Representatives. (nearly becoming the first person to serve in all three branches of the federal government)
9) John J. Crittenden, was nominated as an Associate Justice by President John Quincy Adams in Dec. 1828. His was the first nomination to last more than a couple of weeks before the Senate either confirmed or rejected. His nomination was postponed by a vote of 23-17 in February 1829, probably due to the fact that President Jackson (a political foe) was due to assume office the next month. It should also be noted that Crittenden served in the Senate both before and after his nomination, which might explain why his nomination was not rejected outright.
10) Roger B. Taney, was nominated as an Associate Justice by President Jackson in January 1835. His nomination was postponed by a vote of 24-21 in March of 1835. He was then nominated as Chief Justice in December 1835, and confirmed 29-15 in March of 1836.
11) William Smith, was nominated as an Associate Justice by President Jackson in March 1837, and confirmed 23-18. He declined the seat.
12) John Canfield Spencer, was first nominated as an Associate Justice by President Tyler in January 1844. He was rejected 21-26.
13) Reuben Walworth, was first nominated as an Associate Justice by President Tyler in March of 1844. His nomination was tabled by the Senate on a vote of 27-20 in June 1844, and then withdrawn.
14) Edward King, was first nominated as an Associate Justice by President Tyler in June of 1884. The Senate almost immediately postponed consideration on a vote of 29-18.
15) John Canfield Spencer, was again nominated as an Associate Justice by President Tyler on June 17, 1844, but the nomination was withdrawn on the same day.
16) Reuben Walworth, was nominated as an Associate Justice for the second time by President Tyler on June 17, 1844, but the Senate took no action on it.
17) Edward King, was again nominated as an Associate Justice by President Tyler in December 1844. His nomination was withdrawn in February 1845.
18) Reuben Walworth, was nominated as an Associate Justice for the third time by President Tyler in December 0f 1844. His nomination was withdrawn in February of 1845.
19) John M. Read, was nominated as an Associate Justice by President Tyler in February 1845. The senate took no action it. (Probably because a new administration was due to begin the next month)
In a period lasting a little over a year from January 1844 to February 1845, President Tyler nominated five men a total of nine times, and only one, Samuel Nelson, was confirmed.
20) George Woodward, was nominated as an Associate Justice by President Polk in December 1845. He was rejected by the Senate on a vote of 20-29 in January 1846.
21) Edward Bradford, was nominated as an Associate Justice by President Fillmore in August of 1852. The Senate never acted on the nomination.
22) George Edmund Badger, was nominated as an Associate Justice by President Fillmore in January 1853. The nomination was withdrawn in February 1853. He was serving in the Senate during the period of his nomination.
23) William Micou, was nominated as an Associate Justice by President Fillmore in February 1853. The nomination was not acted on, probably because a new administration would take office a month later.
24) Jeremiah S. Black, was nominated as an Associate Justice by President Buchanan in February 1861. The Senate refused to act on his nomination on a vote of 25-26. A new administration would enter office a month later.
25) Henry Stanberry, was nominated as an Associate Justice by President Andrew Johnson in April 1866. The Senate never officially acted on the nomination. However they did eliminate the seat on the Supreme Court he was nominated for.
26) Ebenezer R. Hoar, was nominated as an Associate Justice by President Grant in December 1869. He was rejected by the senate on a vote of 24-33 in February 1870.
27) George Henry Williams, was nominated as Chief Justice by President Grant in December 1873. The nomination was withdrawn in January of 1874.
28) Caleb Cushing, was nominated as Chief Justice by President Grant in January 1874. His nomination was withdrawn a week later.
29) Thomas Stanley Matthews, was nominated as an Associate Justice by President Hayes in January 1881. The Senate took no action. He was renominated later that year by President Garfield and confirmed.
30) Roscoe Conkling, was nominated as an Associate Justice by President Arthur in February 1882. He declined.
31) William Hornblower, was first nominated as an Associate Justice by President Cleveland in Sept. 1893. The Senate took no action.
32) William Hornblower was again nominated as an Associate Justice by President Cleveland in December 1893. He was rejected 24-30 in January 1894.
33) Wheeler Hazard Peckham, was nominated as an Associate Justice by President Cleveland in January 1894. The Senate rejected him 32-41 in February 1894.
Hornblower and Peckham were victims of a Democratic party political rivalry between Pres. Cleveland and Sen. David Hill. Peckham's brother would be later nominated and serve.
34) Pierce Butler, was nominated as an Associate Justice by President Harding in November 1922. The Senate took no action. He was renominated a month later and confirmed.
35) John J. Parker, was nominated as an Associate Justice by President Hoover in March 1930. He was rejected by the Senate 39-41, in May, 1930. He was opposed by labor unions and the NAACP.
36) John Marshall Harlan II, was nominated as an Associate Justice by President Eisenhower in November 1954. The Senate failed to act. He was renominated by President Eisenhower in January 1955 and confirmed.
37) Abe Fortas (a sitting Associate Justice), was nominated as Chief Justice by President Lyndon Johnson in June 1968. The nomination was withdrawn in October 1968.
38) Homer Thornberry, was nominated as an Associate Justice by President Lyndon Johnson in June 1968. The senate never acted, because the seat he was nominated for was not vacated by Associate Justice Fortas.
39) Clement Haynsworth, was nominated as an Associate Justice by President Nixon in August 1969. He was rejected by the Senate 45-55, in November of 1969. He was opposed by liberals and the NAACP.
40) Harold Carswell, was nominated as an Associate Justice by President Nixon in January 1970. He was rejected by the Senate 45-51, in April 1970. He faced charges of promoting segregation.
41) Robert Bork, was nominated as an Associate Justice by President Ronald Reagan in July 1987. He was rejected by the Senate 42-58 in October 1987. He was opposed by the ACLU and abortion rights organizations.
42) John Roberts, was nominated as an Associate Justice by President G.W. Bush in July 2005. His nomination was withdrawn in September 2005. He was immediately renominated as Chief Justice and confirmed.
43) Harriet Miers, was nominated as an Associate Justice by President G.W. Bush in Oct. 2005. Her nomination was withdrawn later that month. She was opposed mainly by conservatives within her own party who were worried she would turn liberal as other Republican nominees have done.
So, of the 43 failed nominations:
7 nominees declined. (one of them continued to serve as an Associate Justice, one had formerly served as chief Justice) The last time a nominee declined was in 1882.
11 nominees were withdrawn. ( two were later renominated and served, one was later renominated and didn't serve, one withdrew from Chief Justice, but continued to serve as an Associate Justice)
11 nominees were rejected by the Senate. (one served a single term as a recess appointment, one was later renominated)
3 nominees were postponed. (one was later renominated and served, one was later renominated and didn't serve)
The Senate took no action on 11 nominees. (two were later renominated and didn't serve, three were later renominated and served)
Thursday, April 19, 2007
Gonzales v. Carhart
I agree with the outcome of yesterday's decision. I think partial birth abortion should be outlawed. I think under current law, and current understanding of the Constitution, it was the right decision.
However, if like me, you believe that abortion is ultimately a political issue, that should be decided by the individual states, then you have to align yourself with Justice Thomas's opinion rather than Justice Kennedy's.
Justice Thomas all but said: "Come up with a case challenging this law based on the Commerce clause, and I'll vote to strike it."
As has been noted elsewhere, this particular case places the parties in an unusual position. Pro choicers are usually people who believe in an expansive understanding of the Commerce Clause, and pro lifers are usually people who support a restrictive understanding of the Commerce Clause. However an expansive understanding of the Commerce Clause supports this case, and a restrictive understanding undermines this case.
However, if like me, you believe that abortion is ultimately a political issue, that should be decided by the individual states, then you have to align yourself with Justice Thomas's opinion rather than Justice Kennedy's.
Justice Thomas all but said: "Come up with a case challenging this law based on the Commerce clause, and I'll vote to strike it."
As has been noted elsewhere, this particular case places the parties in an unusual position. Pro choicers are usually people who believe in an expansive understanding of the Commerce Clause, and pro lifers are usually people who support a restrictive understanding of the Commerce Clause. However an expansive understanding of the Commerce Clause supports this case, and a restrictive understanding undermines this case.
Tuesday, March 06, 2007
Dred Scott
Today is the 150th anniversary of one of the US Supreme Court's worst decisions, Scott V Sanford.
Tell me again how important stare decisis is.
Tell me again how important stare decisis is.
Saturday, August 05, 2006
What's Good for the Goose....
...evidently isn't good for the gander.
Remember when Sen. Torricelli of New Jersey was finally shamed into withdrawing from his 2002 Senate re-election race? According to New Jersey law, it was too late to replace his name on the ballot, but the Democratically controlled government of New Jersey did it anyway with Frank Lautenberg, a former Senator who won the election. The Democratic argument was:
The issue before the court is a simple one: what is in the best interests of the citizens of New Jersey," said Bonnie Watson Coleman, chairperson of the N.J. Democratic State Committee. "Our voters deserve a meaningful choice, and the law provides for that choice."
The New Jersey Supreme Court sided with the Democrats, and the U.S. Supreme Court refused to hear the case.
Now fast forward to 2006. Rep. Delay of Texas won the Republican primary for his Congressional district, but resigned from Congress in June and moved to Virginia. The Republicans tried to replace his name on the ballot, (a full 4 1/2 months before the election unlike Torricelli's 51 days) but the Democrats challenged them. The courts have ruled that Delay's name must remain on the ballot. The Republicans are appealing to the U.S. Supreme Court. The issue is:
If DeLay is ineligible, under state law, he can be replaced on the ballot. If he withdraws, however, it is too late to replace him, according to state law.
So currently, the issue is whether Delay is eligible, even though he has moved to Virginia. Interestingly, Lautenberg was allowed to replace Torricelli on the ballot, even though it was a clear violation of New Jersey law to allow him to do so. Here it appears that Texas State laws will have to be followed.
Now the Democratic position is:
Republicans "want to say, 'You're thwarting people's right to choose their candidate.' Baloney. He's the one who decided to cut and run," said Boyd Richie, spokesman for the Texas Democratic Party.
Can you say hypocrite? I knew you could.
Remember when Sen. Torricelli of New Jersey was finally shamed into withdrawing from his 2002 Senate re-election race? According to New Jersey law, it was too late to replace his name on the ballot, but the Democratically controlled government of New Jersey did it anyway with Frank Lautenberg, a former Senator who won the election. The Democratic argument was:
The issue before the court is a simple one: what is in the best interests of the citizens of New Jersey," said Bonnie Watson Coleman, chairperson of the N.J. Democratic State Committee. "Our voters deserve a meaningful choice, and the law provides for that choice."
The New Jersey Supreme Court sided with the Democrats, and the U.S. Supreme Court refused to hear the case.
Now fast forward to 2006. Rep. Delay of Texas won the Republican primary for his Congressional district, but resigned from Congress in June and moved to Virginia. The Republicans tried to replace his name on the ballot, (a full 4 1/2 months before the election unlike Torricelli's 51 days) but the Democrats challenged them. The courts have ruled that Delay's name must remain on the ballot. The Republicans are appealing to the U.S. Supreme Court. The issue is:
If DeLay is ineligible, under state law, he can be replaced on the ballot. If he withdraws, however, it is too late to replace him, according to state law.
So currently, the issue is whether Delay is eligible, even though he has moved to Virginia. Interestingly, Lautenberg was allowed to replace Torricelli on the ballot, even though it was a clear violation of New Jersey law to allow him to do so. Here it appears that Texas State laws will have to be followed.
Now the Democratic position is:
Republicans "want to say, 'You're thwarting people's right to choose their candidate.' Baloney. He's the one who decided to cut and run," said Boyd Richie, spokesman for the Texas Democratic Party.
Can you say hypocrite? I knew you could.
Tuesday, January 31, 2006
Justice Alito
I was pleased that Justice Alito was confirmed today, and that he was able to be present in his robes at the State of the Union address. It was kind of cool to see him standing there with Justice Thomas and Chief Justice Roberts.
Monday, January 30, 2006
As Ye Sow, So Shall Ye Reap......
I hope everyone on the left remembers this confirmation fight. Because I guarantee that those of us on the right will.
We provided a recent example to the Democratic Party on how confirmations were supposed to take place. During President Clinton's (a man the right despised at least as much as the left despises Pres. Bush) term of office he appointed two Justices, and both confirmations were handled respectfully by the Republicans. (Even though it would have been easy to filibuster both of them.) Remember this is after the disgraceful actions of the Democratic Party in regards to Judge Bork and Justice Thomas. We had every reason to extract a measure of revenge, but instead did the mature thing.
Justice Ruth Bader-Ginsberg was a lawyer for the ACLU, and clearly a far-left Liberal. However she was confirmed with a 97-3 vote.
Justice Breyer was confirmed with a 87-9 vote.
Even though the Republican Party opposes the liberal and activist philosophies of these two Justices, Republicans recognized that President Clinton had won the election (and it must be noted won with less than 50% of the vote) and had the right to appoint the Justices he wanted. It would have been extremely easy to justify a filibuster on Justice Bader-Ginsberg by using her work for the ACLU, or even on the grounds that President Clinton had not won a majority, and thus should appoint someone more mainstream. (Remember at the beginning of the hearings when the left was telling evetyone that President Bush should appoint someone more mainstream, even though he had won election by a majority?) However, the Republicans acted maturely and responsibly, and confirmed President Clinton's appointees.
Now we have this infantile and emotional display from the left. It will not be forgotten. One day by some miracle the left might win the presidency again. And that president might have the opportunity to appoint a Supreme Court Justice.
Tell me truly, how do you expect the Republican Party to act then? You can treat us with disrespect and contempt for only so long before we will respond in kind.
We provided a recent example to the Democratic Party on how confirmations were supposed to take place. During President Clinton's (a man the right despised at least as much as the left despises Pres. Bush) term of office he appointed two Justices, and both confirmations were handled respectfully by the Republicans. (Even though it would have been easy to filibuster both of them.) Remember this is after the disgraceful actions of the Democratic Party in regards to Judge Bork and Justice Thomas. We had every reason to extract a measure of revenge, but instead did the mature thing.
Justice Ruth Bader-Ginsberg was a lawyer for the ACLU, and clearly a far-left Liberal. However she was confirmed with a 97-3 vote.
Justice Breyer was confirmed with a 87-9 vote.
Even though the Republican Party opposes the liberal and activist philosophies of these two Justices, Republicans recognized that President Clinton had won the election (and it must be noted won with less than 50% of the vote) and had the right to appoint the Justices he wanted. It would have been extremely easy to justify a filibuster on Justice Bader-Ginsberg by using her work for the ACLU, or even on the grounds that President Clinton had not won a majority, and thus should appoint someone more mainstream. (Remember at the beginning of the hearings when the left was telling evetyone that President Bush should appoint someone more mainstream, even though he had won election by a majority?) However, the Republicans acted maturely and responsibly, and confirmed President Clinton's appointees.
Now we have this infantile and emotional display from the left. It will not be forgotten. One day by some miracle the left might win the presidency again. And that president might have the opportunity to appoint a Supreme Court Justice.
Tell me truly, how do you expect the Republican Party to act then? You can treat us with disrespect and contempt for only so long before we will respond in kind.
Thursday, January 19, 2006
Gonzales V Oregon
This was the Supreme Court decision that dealt with the right to commit suicide. The Court ruled that the Attorney General of the United States could not use the federal Controlled Substances Act to prevent Oregon from passing a law that allows doctors to prescribe a fatal dose of drugs. It was ruled 6-3. Dissenting was Chief Justice Roberts, and Justices Scalia and Thomas.
It is important to understand that the case never dealt with a "right" to die. Rather it dealt with the issue of federalism, and when it is OK for the federal government to trump State law.
What is most interesting about this case is contained in Justice Thomas' dissent. He notes that in the previous decision dealing with the same federal statute trumping State's rights (California medical marijuana) the Court ruled the opposite way. What happened to Stare Decisis?
Why is it OK for the federal government to tell California that its doctors may not prescribe marijuana, but not OK for the federal government to tell Oregon that its doctors may not prescribe a fatal dose of barbituates? As far as Constitutional issues go, the cases are identical.
For the record I believe the Court ruled correctly in the Oregon case, and incorrectly in the California case.
It is important to understand that the case never dealt with a "right" to die. Rather it dealt with the issue of federalism, and when it is OK for the federal government to trump State law.
What is most interesting about this case is contained in Justice Thomas' dissent. He notes that in the previous decision dealing with the same federal statute trumping State's rights (California medical marijuana) the Court ruled the opposite way. What happened to Stare Decisis?
Why is it OK for the federal government to tell California that its doctors may not prescribe marijuana, but not OK for the federal government to tell Oregon that its doctors may not prescribe a fatal dose of barbituates? As far as Constitutional issues go, the cases are identical.
For the record I believe the Court ruled correctly in the Oregon case, and incorrectly in the California case.
Tuesday, January 10, 2006
Alito Hearings Pt 3
I'm tired of conservatives having to pussyfoot around. I watched Alito parse his words again today. I want a nominee who is going to say:
"No I don't believe Roe V Wade is good precedent, I think it is an awful case and would overturn it if possible.
No I don't think there is a right to privacy in the Constitution. The word doesn't even appear there. There are some privacy rights, but they do not produce either a penumbra or an emanation.
Yes I do think the commerce clause has been over used and abused.
No I do not support Affirmative Action, it is racial discrimination pure and simple.
Yes I do support the right to own a gun. There is a reason the Founders made that our second Amendment immediately behind free speech."
It is time to stop these silly games we play with the Democratic Senators every time, especially when their nominees sail through without being grilled.
"No I don't believe Roe V Wade is good precedent, I think it is an awful case and would overturn it if possible.
No I don't think there is a right to privacy in the Constitution. The word doesn't even appear there. There are some privacy rights, but they do not produce either a penumbra or an emanation.
Yes I do think the commerce clause has been over used and abused.
No I do not support Affirmative Action, it is racial discrimination pure and simple.
Yes I do support the right to own a gun. There is a reason the Founders made that our second Amendment immediately behind free speech."
It is time to stop these silly games we play with the Democratic Senators every time, especially when their nominees sail through without being grilled.
Alito Hearings Pt 2
Well according to all written reports, yesterday went about the way I thought it would.
Look for the Dems to go into full attack mode today.
Look for the Dems to go into full attack mode today.
Monday, January 09, 2006
Alito Hearings
The hearings begin today on the confirmation of Samuel Alito to the Supreme Court. I expect most of the time today to be spent by the Senators giving stump speeches. NSA wiretapping, Roe V Wade and Affirmative Action should all be featured prominently.
The hypocrisy of Sen. Kennedy and Sen. Schumer should be particularly notable. (comparing their actions today to their actions in the hearings on Justice Bader-Ginsburg)
The hypocrisy of Sen. Kennedy and Sen. Schumer should be particularly notable. (comparing their actions today to their actions in the hearings on Justice Bader-Ginsburg)
Monday, October 31, 2005
Here Comes Da Judge Pt. 7
So it's Alito. I don't know much aboput him yet, but Sen. Kennedy and the leftwingers seem to hate him, so he can't be too bad. His nickname is Scalito (little Scalia) which also bodes well. Looks like we might get the fight we've all been waiting for.
Thursday, October 27, 2005
Here Comes Da Judge Pt 6
Harriet Miers has just withdrawn her nomination to the Supreme Court! Finally.
But now wait for the Democratic Underground moonbats to start saying this was the plan all along to distract attention from the CIA leak special prosecutor.
Now we await a qualified nominee. Probably another woman.
But now wait for the Democratic Underground moonbats to start saying this was the plan all along to distract attention from the CIA leak special prosecutor.
Now we await a qualified nominee. Probably another woman.
Monday, October 10, 2005
Here Comes da Judge Pt 5
Here is a great post. Writers all over the blogsphere are gnashing their teeth because we didn't write this first. There is an increasing groundswell against Miers, and the GOP elite would be wise to heed it.
Monday, October 03, 2005
Here Comes da Judge Pt 4
Harriet Miers? Harriet F'ing Miers? It's now official. The only good thing I can say about President Bush's second term is that a Kerry presidency would have been a complete clusterf**k.
Saturday, October 01, 2005
Here Comes da Judge PT 3
Well, chief Justice Roberts was confirmed, 78-22. Those are not quite Ginsburg numbers, but Republicans have always been more accomodating than Democrats have been. Another interesting thing is that Justice Ginsburg has publically stated that Chief Justice Roberts did the right thing by refusing to answer all of the Judiciary committee's questions during his hearing. I really wish the White House had announced their candidate to fill Justice O'Connor's seat on Friday so it would soak up airtime this weekend, but it will probably come early next week. Here's hoping it's either Judge Luttig or Judge Rogers Brown.
Monday, September 05, 2005
Here comes da judge...pt2
FoxNews has just announced that Pres. Bush is going to elevate the nomination of Judge Roberts to a nomination as Chief Justice. The good side of this is that it means that there will be a Chief Justice in place when the court convenes in October. It also means that apparently Justice O'Connor's backdoor in her resigniation may take effect, and she may remain on the Court until a different replacement is confirmed. I don't think that that is a good idea. Watch the left now insist that her spot be filled with a female "moderate" (read liberal) to preserve the Court's "balance". I would have preferred that Judge Roberts' nomination go forth, Justice Thomas elevated to Chief Justice, and a conservative named to replace Justice Thomas. President Bush's decision is going to make things harder for him, not easier.
Sunday, September 04, 2005
Have you no Decency?
Chief Justice Rehnquist has not yet been buried, and the corpses of the people of New Orleans even recovered yet, and already the leftwing loonies are exploiting Hurricane Katrina in their efforts to attack President Bush and his judicial nominees. Lanny Davis was just on Fox News saying that President Bush should recognize that in this time of crisis after the hurricane that he should nominate someone who will "pull America together". Just who does Lanny and the loonie left suggest? How about: ex-President Clinton, Prof. Tribe, Jesse Jackson, Sen. Kennedy, Ralph Neas, Eleanor Smeal or Dan Rather? How about the Democrats and the loonie left recognizing the need to "pull America together" and ending their baseless, lying, and ceaseless attacks on President Bush's judicial nominees? Sen Dodd has already said he thinks Justice O'Connor should stay on the Court, so that President Bush won't have to replace Chief Justice Rehnquist right away. He is either too stupid to realize, or too partisan to admit, that Judge Roberts has been nominated to replace Justice O'Connor, not Chief Justice Rehnquist, so if she stays, he doesn't get seated. There will have to be hearings anyway to replace Rehnquist as Chief Justice, even if we don't fill his seat on the Court immediately.
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