July 1, 2005
From the desk of Jane Galt:Let the games begin!
Sandra Day O'Connor is retiring. The battle for control of the courts between Democrats who think they have a right to a pro-Roe judge, and Republicans who are salivating to get an originalist on the court, will now commence.
Some of my earlier thoughts on judicial battles can be found here , here, and here.
Posted by Jane Galt at July 1, 2005 11:18 AM | TrackBack | Technorati inbound linksIf I were the President and wanted to temper expectations I was nominating a strong or controversial conservative, I'd float the name of well-loved on the left John Ashcroft, let the news simmer in the press for a few days, then say such remors have no merit and nominate who I wanted.
Please let it be Posner, please let it be Posner.
Nope, it'll never happen. Which is too bad, so let's just clone Thomas instead.
He has to nominate a woman. Otherwise, there will be no women on the court. And before you ask, no, Bryer and Kennedy don't count.
Brad - do you think Ginsburg counts as a man?
Ignoring the jibes at the metrosexuals on the bench, what about, you know, the other woman? Ginsburg that is.
Besides identity politics is terrible for the right to engage in. Pick the best candidate and make him (or her) nice and conservative. Red meat for the base for a change and forces a judicial showdown that will end the filibusters once and for all. Then the candidates Bush nominates will get up-or-down votes and the judiciary will actually get populated with sane judges.
CAL
This is an unexpected situation, and likely the left isn't happy about it. I suspect many of us anticipated Rehnquist stepping down first; the left could then demand a "conservative" in the vein of Souter or Kennedy in anticipation of a real fight when Superlegislator O'Connor resigned. Now they have to consider whether to go to the mat opposing this nominee and risk looking even more obstructionist later, or giving the Bush administration something of a pass now.
There already has been a trial balloon floated; the current Attorney General. From reading The Corner at NRO and RedState.org, it seems the Republican base doesn't think much of that idea, both for reasons of ideology and practicality (he'd have to recuse himself from a number of cases). Shall we consider that balloon popped?
Rehnquist doesn't look at all well. Yet he seems determined to stay on. Am I the only one who remembers Justice Douglas, the "depends" Justice of the 1970's? And what of Superlegislator Ginsburg, it is claimed she's not well, either...
Someone told me in email that Bork is having a field day on TV. That's a good place for him...
LOL. Wow, I totally forgot about Ginsberg. OK then, I officially declare that there are enough women on the court! Ahh, just kidding... I was messing with y'all.
I honestly do not care whether we have a judge that presents the right temperment. That has become a codephrase for pro-life or pro-choice, which are pretty much irrelevant court issues in our day. I am most interested that the nominee is pro-property rights, both real and intellectual. This is the key issue of our time, and those of us who believe in the morality of property ought to insist that we get someone who will stand for our rights.
Looking at Kelo, it means we want a prototypical conservative. Looking at Grokster, it means we want someone like O'Connor or Rhenquist. On that one, Scalia and Thomas punted. I don't think the two of them are as big on IP as they need to be.
Since Nancy Pelosi just let the cat out of the bag that the Supreme Court is the Democrat's God, and Kevin Drum is already predicting a 'bloody' fight, I don't think there's any way the Democrats will act like grown-ups over this nomination.
Two words: Recess Appointment.
Two more: Ann Coulter.
Two more words: Byrd Option
Side Note: Jane, the second link appears to be broken.
O'Conner replaced by Luttig, Rhenquist replaced by Thomas as Chief Justice and for the trifecta,
McConnell takes seat as newest member of SC.
Its not also wholly implausible that Busg will get to name sucessors to Stevens and Ginsberg as well.
Ms. McC--
Your second link above does not work-- you put A HRE instead of A HREF. FWIW,
Gerry
He's gotta put in woman-for-woman, since there's only 2 of 9 now, so figure Rogers Brown, who, as an African American, defangs the "balance" argument (i.e. allows conversion from Moderate to Conservative). Next up is Rehnquist, he gets Luttig (go for broke since you're replacing a male WASP conservative). If there's a next it'll be Stevens, who gets Gonzales (there'll be hell to pay unless it's Moderate-for-liberal, plus the "first hispanic justice" routine gives moral grativas). Finally, if Ginsberg cashes in her chips she'll get Edith Jones, again woman-for-woman. Place your bets!
Mr. Harwood,
I like how you think, but your reasonable plan depends on the other side being reasonable. I suspect we might be in 'hung for a sheep as well as for a goat territory', so why not do what you really want since you can't get any more blasted than if you were generous?
Mr. Harwood,
I like how you think, but your reasonable plan depends on the other side being reasonable.
If Bush even gets three out of four of those, I'll take back all the bad things I ever said about him!
I agree with Timothy about Posner. It's too bad George the First didn't nominate him instead of Souter. Just goes to show how the actions of a President can reverberate long after he has left office.
I agree that Ponser would be great. While I don't always agree with him, he is completely qualified and I suspect the dems would have less of an arguement against him.
Rogers Brown would be interesting, but I suspect it won't happen yet. Too soon. And she does say some really "the CIA is spying on me so I wear a tinfoil hat" kind of things that can be used against her. I suspect if Renquist goes, she might be the replacement. On the other hand, with her recent appointment, the dems agreed not to fillibuster her. Does this mean that if she has a supreme court nomination, the dems can't say boo? I don't know.
Ginsberg, by the way, won't retire until she's either dead or there is a democrat in the whitehouse. She learned from Marshall's "mistake" Besides, rumor has it that her cancer was caught early and she's in remission.
Mukasey's the person the NY lawyer boards are betting on. Conservative cheif judge of the SDNY. Although he's not as young as probably Bush would like, he is an Othodox Jew who is stanchly pro-Israel. I don't know whether he would pass the abortion test.
Then there is the name the Dems keep suggesting, Ed Prado, who is a Fifth Circuit judge, a republican, a hispanic texan, nominated to the Federal bench by Reagan and nominated to his current possition by W. He's a moderate and would get through easily. But I suspect the administration doesn't have any interest in appointing someone easily, I think they're looking for a fight.
I'd like to see Bush appoint a moderate, Someone strong on property rights, and you never know, often the member of the court who leaves makes conditions on which they will leave. We don't know what O'Conner said to Bush as a condition of her retirement.
Regardless, it's going to be very interesting.
Kate wrote:
I'd like to see Bush appoint a moderate, Someone strong on property rights...
Is it even possible to find a judge that is strong on property rights and yet is considered a "moderate"?
The two qualities seem mutually exclusive in the modern judicial world...
I'm sure Bush has learned from his father's mistakes and we wont see another Souter. I've already decided that I am going to either black-out the news in my home 24/7 or wear my tooth-guard all the time to protect my teeth from the grinding they will do whenever any Democrate emotes about a appointee.
elipsis:
And thus is the hell that is my lot as a politically liberal IP lawyer ; P
I'm into person rights. I don't want the government (and I mean state or federal) to be able to determine whether
a) I can do something morally reprehensible with other consenting adults.
b) I can take pictures of the morally reprehensible activities with other consenting adults. (with the other consenting adult's permission and having obtained the appropriate releases)
c) I can display said pictures of me doing moral reprehensible things with other consenting adults (with the other consenting adult's permission and having obtained the appropriate releases); and
d) I can exclusively sell those pictures of me doing morally reprehensible things with other consenting adults that I have appropriate releases for.
It ain't none of anyone's business and if I can make a profit off of me, more power to me.
Kate fretted:
And thus is the hell that is my lot as a politically liberal IP lawyer ; P
As the great liberal humanitarian James Earl Carter once said, "Laife is not fayer". Ideas have consequences, and state power to coerce people for reasons we may like can also be used to coerce people for other reasons. Unhappily, those fond of coercion in the social sphere in manners deemed 'liberal' tend not to be fond of property rights. Similarly, those willing to defend property rights are often not all that keen on the kind of coercion demanded by 'liberal' persons. Unlike the apochryphal Chinese menu, we cannot pick one from column A and two from column B. This is annoying to a lot of people, it's not just you...
I'm into person rights. I don't want the government (and I mean state or federal) to be able to determine whether
a) I can do something morally reprehensible with other consenting adults.
Well, ok, it's a long weekend, so let's run with this for a while. How far does it go? Many people find murder to be morally reprehensible, and cannibalism even more so. Suppose that an adult consents to being killed and eaten, as apparently happened in Germany a year or two back. Would that fit into (a) above? If so, surely there's no objection to providing still and moving images of the event for others to peruse, in various venues. Presumably the Internet would be one logical outlet, via web site. But what about cable pay-per-view? Or is it the sort of thing that should be broadcast on commercial TV at 9 AM on Saturday morning?
Or are there some kind of limits? If so, why? Who gets to decide, and on what grounds?
If we can settle this by Monday before the fireworks start, think of all the great advice we can give to the politicians in DC on Tuesday...
What they heck, I’ll bite. Line by line now…
Kate fretted:
Well hey! I take issue with that. I believe my emoticon specifically rebuts that proposition.
As the great liberal humanitarian James Earl Carter once said, "Laife is not fayer". Ideas have consequences, and state power to coerce people for reasons we may like can also be used to coerce people for other reasons. Unhappily, those fond of coercion in the social sphere in manners deemed 'liberal' tend not to be fond of property rights.
I agree with you if you’re talking about welfare or food stamps. I disagree with you if you are talking about gay or women’s rights. I don’t want your society to “coerce” me to do anything I don’t want as long as it doesn’t affect you. If my religion requires me to slaughter goats in my basement, as long as I dispose of carcass properly and you can’t here the goat bleating, it’s none of your damn business. Similarly I don’t want you to be able to take my goat.
Similarly, those willing to defend property rights are often not all that keen on the kind of coercion demanded by 'liberal' persons. Unlike the apochryphal Chinese menu, we cannot pick one from column A and two from column B. This is annoying to a lot of people, it's not just you...
It’s not annoying to me. Please don’t ascribe me with emotions I don’t have regarding this issue. You seem “angry” and “condescending” but I’m not saying that you are. You want to engage in a rational discussion, fine, but don’t keep telling me I’m “fretting” or “annoyed”. Oh, and yes, sometimes you can make decisions that are not necessarily in line with your theoretical view points. Courts do it all the time. Sometimes if they make the decision based on their philosophy, they’ll find in favor of the wrongdoer, so they twist the philosophy around to make sure they come to the right decision. Holmes did it all the time. I like that sometimes people, especially jurists, are not held hostage by their philosophical view points.
Well, ok, it's a long weekend, so let's run with this for a while. How far does it go? Many people find murder to be morally reprehensible, and cannibalism even more so. Suppose that an adult consents to being killed and eaten, as apparently happened in Germany a year or two back. Would that fit into (a) above?
Yes. If someone wants to die and they are mentally stable sure. As long as the person doing the killing can prove no coercion, I have no problem with that.
If so, surely there's no objection to providing still and moving images of the event for others to peruse, in various venues.
No, if they aren’t owned by someone or if the owner has give their permission to display these images.
Presumably the Internet would be one logical outlet, via web site.
Okay. I presume.
But what about cable pay-per-view?
Okay, what about it?
Or is it the sort of thing that should be broadcast on commercial TV at 9 AM on Saturday morning?
Probably not. On the other hand, I assume that no corporate owned broadcast company would broadcast it if they thought it would alienate a significant portion of their audience. On top of that, I would hope that people don’t just let their kids sit in front of the TV at 9am on Saturday Mornings if, oh, let us say Caligula is being broadcast on network TV at 9AM on Saturday. See, I expect some personal responsibility instead of letting people blame TV for their kids seeing something bad.
Or are there some kind of limits?
Yes. Anything involving someone who is not a consenting adult.
If so, why?
Because they can’t legally consent or because they don’t consent.
Who gets to decide, and on what grounds?
Who gets to decide what? In general you do. You can decide that you only want to get PAX and ESPN on your TV. You get to decide who you can sleep with and who you can marry and where you are going to work.
Now, I know you are going to ask me how the government fits in at all. See, there are lots of things the government should run, and lots of laws that should be in place, because it is impractical for individuals to handle it. Armies for example. Basic traffic laws are another. They should run public schools and police. And I’m happy to pay for that.
Your turn.
Kate wrote:
What they heck, I’ll bite. Line by line now…
Great! Just like the good old pre-WWW days on newsgroups...
I rashly assumed:
Kate fretted:
And Kate objected:
Well hey! I take issue with that. I believe my emoticon specifically rebuts that proposition.
My apologies, it's been so long since I read any text with emoticons in it that I just assumed it was some sort of failed HTML tag.
I pontificated:
As the great liberal humanitarian James Earl Carter once said, "Laife is not fayer". Ideas have consequences, and state power to coerce people for reasons we may like can also be used to coerce people for other reasons. Unhappily, those fond of coercion in the social sphere in manners deemed 'liberal' tend not to be fond of property rights.
Kate replied:
I agree with you if you’re talking about welfare or food stamps.
Ok. Am I safe in assuming some degree of agreement on conversion of property for government use, as well (just to keep Kelo in the thread)?
Kate went on to write:
I disagree with you if you are talking about gay or women’s rights. I don’t want your society to “coerce” me to do anything I don’t want as long as it doesn’t affect you.
Well, hmm, so you'd reject giving a town the power to convert some private club into a parking lot without good reason, or into someone else's casino at all, but on the other hand you'd not object to the same town forcing the same private club to accept members it did not welcome?
Kate stated:
If my religion requires me to slaughter goats in my basement, as long as I dispose of carcass properly and you can’t here the goat bleating, it’s none of your damn business. Similarly I don’t want you to be able to take my goat.
But my friends in PETA would insist that you are oppressing the goat, and my neighbors in the Humane Society likely would argue that you are engaging in cruelty to animals. How can you deny their sincere and liberal requests to give up your goat(s)?
Suppose someone decided to slowly vivisect kittens in front of a grade school during recess; provided that they could show ownership of the animals, and cleaned up the mess, how could you object to this activity?
I also babbled:
Similarly, those willing to defend property rights are often not all that keen on the kind of coercion demanded by 'liberal' persons. Unlike the apochryphal Chinese menu, we cannot pick one from column A and two from column B. This is annoying to a lot of people, it's not just you...
Kate replied:
It’s not annoying to me.
Oh. Ok.
Kate also requested:
Please don’t ascribe me with emotions I don’t have regarding this issue.
I shall strive to avoid that in the future.
Kate observed:
You seem “angry” and “condescending” but I’m not saying that you are.
That's interesting, it seems to me I write in a bored and rather jaded fashion. Oh, well, this medium shears away most of the subtleties of communication...
Kate also requested:
You want to engage in a rational discussion, fine, but don’t keep telling me I’m “fretting” or “annoyed”.
I hope I'm doing better, now.
Kate then observed:
Oh, and yes, sometimes you can make decisions that are not necessarily in line with your theoretical view points. Courts do it all the time. Sometimes if they make the decision based on their philosophy, they’ll find in favor of the wrongdoer, so they twist the philosophy around to make sure they come to the right decision. Holmes did it all the time. I like that sometimes people, especially jurists, are not held hostage by their philosophical view points.
That's interesting, so fundamental premises are less important than achieving some desired goal?
I posited:
Well, ok, it's a long weekend, so let's run with this for a while. How far does it go? Many people find murder to be morally reprehensible, and cannibalism even more so. Suppose that an adult consents to being killed and eaten, as apparently happened in Germany a year or two back. Would that fit into (a) above?
Kate replied:
Yes. If someone wants to die and they are mentally stable sure. As long as the person doing the killing can prove no coercion, I have no problem with that.
What proof would suffice?
I further speculated:
If so, surely there's no objection to providing still and moving images of the event for others to peruse, in various venues.
Kate replied:
No, if they aren’t owned by someone or if the owner has give their permission to display these images.
What if some people don't want to look at them?
See below:
I babbled on:
Presumably the Internet would be one logical outlet, via web site.
Kate replied:
Okay. I presume.
So assuming no gratutious spamming or spoofing of URL's, only those who want to see these images would see them.
I asked:
But what about cable pay-per-view?
Kate replied:
Okay, what about it?
Now we are getting closer to displaying images to people who don't want to see them, aren't we? And charging money from them for something they don't want, to boot...
I continued:
Or is it the sort of thing that should be broadcast on commercial TV at 9 AM on Saturday morning?
Kate replied:
Probably not.
Why not? Wouldn't it be a bold, edgy statement challenging the established norms and thereby making an artistic statement? Isn't it important to expose children to as many alternatives as possible, in order to enrich their lives? These are, of course, rhetorical questions, because now we are well into an area where people who would not want to see such images find them on their television set. Furthermore, they are in some sense paying for these images to be shown against their will...
On the other hand, I assume that no corporate owned broadcast company would broadcast it if they thought it would alienate a significant portion of their audience.
Dear, me, should crass commercial considerations trump art and artistic statements? Isn't that just giving a veto power to the mere petty bourgeois?
On top of that, I would hope that people don’t just let their kids sit in front of the TV at 9am on Saturday Mornings if, oh, let us say Caligula is being broadcast on network TV at 9AM on Saturday.
Why? They aren't your kids, so why would you care?
See, I expect some personal responsibility instead of letting people blame TV for their kids seeing something bad.
Well, there you go! So you'd not object in principal to showing this video at 9 AM on network TV of a Saturday morning?
I asked rhetorically:
Or are there some kind of limits?
Kate replied:
Yes. Anything involving someone who is not a consenting adult.
How do you define "adult"?
I further asked:
If so, why?
Kate replied:
Because they can’t legally consent or because they don’t consent.
How do you define "consent"? For example, how much information should someone have in order to give consent?
And then I asked:
Who gets to decide, and on what grounds?
Kate replied:
Who gets to decide what?
A fair question. In this context, who would get to decide if video of a real murder by a cannibal should be shown on broadcast TV at 9 AM on Saturday morning? Should the program director have that sole authority, the network executives alone, or should the opinions of others be considered as well?
Kate replied:
In general you do. You can decide that you only want to get PAX and ESPN on your TV. You get to decide who you can sleep with and who you can marry and where you are going to work.
Really? Great! I'm going to marry K-Lo and be really, really rich, and work for a big wall street firm and be even more rich. That's my decision, and nobody has any right to stop me, correct?
Kate then summed up:
Now, I know you are going to ask me how the government fits in at all. See, there are lots of things the government should run, and lots of laws that should be in place, because it is impractical for individuals to handle it. Armies for example. Basic traffic laws are another. They should run public schools and police. And I’m happy to pay for that.
This appears to me to be some degree of minarchy, am I correct?
Kate concluded:
Your turn.
Back over the net...
Dear ellipsis,
I don't want to waste Jane's Bandwidth on this. My email address is k.dominus@gmail.com. If you email me your last answer I will respond. Suffice it to say, Yes you can evercerate Kittens, PETA can kiss my a$$, Age of consent is 18, as it has been (yeay lower the damn drinking age) for decades, that is adult and yes it is bright line.
As for exclusive organizations, that is an interesting issue. Let us start with are they using public funds or buildings. If yes, they have to let everyone in. If they don't, generally not.
also
That's interesting, so fundamental premises are less important than achieving some desired goal
yes.
I look forward to hearing from you and elaborating. By the way, you better not be the same guy that contacted me last year from Jane's site addres who wrote me these long ditribes and then posted selected portions of my responses to them on the internet out of context on Jane's site. He was just creepy
Well, perhaps we can get back to Ms. O'Connor now. One issue is how "moderate" and "activist" have become conflated, as in this eulogy (to which I take exception elsewhere).
i am an idiot and i am lead by richard simmons
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