Had Senate Democrats not "borked" Robert Bork in 1988, or Clement Haynesworth and Harold Carswell in 1970, we would live in a very different country. Anthony Kennedy replaced the defeated Bork, and as of late has looked to international law for guidance in interpreting the U.S. Constitution. After Nixon's nominees Haynesworth and Carswell failed to gain Senate approval, the 37th president nominated Harry Blackmun, who subsequently authored the majority opinion in Roe v. Wade.

The stakes are so high in the current battle over the president's judicial nominees because the Supreme Court has set itself up as a shadow legislature. By whim, five judges have (usurped) the power to repeal the laws of all fifty states, overturn traditions dating back thousands of years, and make null and void Constitutional laws passed by Congress and signed by the President. Placing judges on the court who reject this activism for the interpretation of law is of great importance for the republic to function as a republic.

The current battle over appeals court nominees is merely the dress rehearsal for the larger fight that will begin this fall over nominees to the Supreme Court. This is why Rush Limbaugh went ballistic on senators seeking to compromise with their obstructionist colleagues. This explains the popularity of Mark Levin's Men in Black: How the Supreme Court Is Destroying America (buy it here). This is also why nearly every Senate Republican stands committed--through the 'nuclear option' if necessary--to combatting the rule-or-ruin conduct of the Senate Democrats who block conservative judges by filibuster. Conservatives, and mainline Republicans, have begun to wake up regarding the importance of the judiciary. It's too bad the alarm went off several decades after liberals recognized this. But better late than never. After caving on No Child Left Behind, the prescription-drug giveaway, and a host of other big-government schemes, conservatives have finally decided to make a stand--and a stand on the right issue too.

Has our government gone mad???........

http://seattlepi.nwsource.com/health/223556_immig10.html?source=rss

I've been bored with politics ever since the election. And if nothing else, the 'nucular' option is going to make for damn fine entertainment. Nothing like all out war in the Senate to liven things up.

I just read Kennedy's Roper v. Simmons opinion in its entirety. This is the opinion that conservatives are making all the to-do about. After reading the opinion, I can only conclude that Kennedy's critics (a) haven't bothered to read the opinion, but attack it anyway; (b) are not able to understand the opinion, either because of educational deficiencies or low intelligence; or (c) understand the opinion, but misrepresent what it says in order to rile up people who are either too lazy or too stupid to make sense of the opinion themselves.

I had expected the opinion to look to international law as the primary means for holding that the death penalty is unconstitutional as applied to minors. This, after all, is what conservatives claim the opinion does. But the claims are inaccurate.

In concluding that executing minors is unconstitutional, Justice Kennedy first reviews the history of the Eighth Amendment, outlining how the Amendment has been interpreted by the Court in prior cases and reviewing the Court's death penalty jurisprudence. He gives three reasons to treat juvenile offenders differently from other offenders for death penalty purposes. Then he delineates the traditional theories of punishment and explains why those goals are not advanced by executing offenders. This is the heart of the opinion.

The big fuss seems to be about the concluding paragraphs of the opinion. There Kennedy does mention some international law. But he does so only to support the arguments he has already made--it is not like he is saying "they do X, so we should do X." In other words, his opinion is not based on international law; rather, he mentions international law at the very end of his opinion as a way of bolstering the arguments he made earlier in the opinion. He uses this same technique in the immediately preceding paragraphs--pointing out that a majority of the state courts also agree with his reasoning and also have concluded that executing minors is cruel and unusual for the same reasons he has already given.

It amazes me that this has drawn so much fire from conservatives. The articles attacking the opinion completely distort what Kennedy says and how he says it. They make it seem like he is looking to other countries for help in interpreting the US Constitution--when in fact Kennedy interprets United States precedent quite ably in the opinion and then only looks to other countries to point out that their courts have reached the same conclusions he has.

Because the criticisms of the opinion are so inaccurate, I can only conclude that most of the opinion's critics either haven't read it, they don't understand it or they are trying to misrepresent what it says for political advantage. Pretty low if you ask me.

Anyone wanting to read the opinion can find it here: http://supct.law.cornell.edu/supct/html/03-633.ZO.html

Then again, why bother reading the opinion yourself when you can have non-partisan systematic thinkers like Mark Levin, Tom DeLay and Rush Limbaugh interpret the opinion for you?

Reader: Anthony Kennedy doesn't interpret any precedent; he makes one up. In 1988, Kennedy ruled in Stanford v. Kentucky that juvenile executions were Constitutional. In 2005, Kennedy ruled in Roper v. Simmons that juvenile executions weren't Constitutional. Did precedent change, or did international opinion, which Kennedy assures readers was not "controlling" on his decision?

Reader: I think you are missing a big element of why it is dangerous for Kennedy to use international law in interpreting domestic constitutional issues -- even if he doesn't use it as his primary argument, even if it is only mentioned in a few paragraphs to bolster his veiw.

It's called PRECEDENT. Every bad opinion, every bad reason gets enshrined later in more bad opinions. So those paragraphs can later be used by another justice etc etc. This has happened many times. Grizwald v. Conn. turns into PP v. Penn.

Dan Flynn: precedent changed. One change in precedent was the Atkins case (a 2002 opinion--between Stanford, 1995, and 2005's Roper opinion). In Atkins, the Court held that it is unconstitutional to execute mentally retarded convicts. The Court reached its conclusion in that case partly based on their being a virtual consensus among the states that it is cruel and unusual to execute retarded people. The Atkins opinion reversed a prior opinion, which had reached the opposite result.

In Roper, Kennedy followed the reasoning used in the Atkins decision. He reversed a prior decision based on evolving standards of what constitutes "cruel and unusual" in the United States and among the states. In the opinion, he pointed out that in the ten years since the Stanford decision five States that formerly allowed the juvenile death penalty abandoned it either through legislative enactment or judicial decision. In addition, many of the states (all except three) that allowed for capital punishment for juveniles did not enforce this punishment in the ten years between the decisions. In other words, there had been a shift as to what constitutes "cruel and unusual" from the time of Stanford to Roper.

You can read this for yourself in the opinion. http://supct.law.cornell.edu/supct/html/03-633.ZO.html
It's in paragraph III. A. It's also discussed in the first part of the opinion.

Short: that's definitely true in some cases. But here the mention of international law reads like an afterthought--as dicta, to use lawyer-speak. It is hard to predict exactly what future courts will do--just as it is hard to predict how computers will be used in fifty years--but I can't imagine that this opinion will lead to any court abandoning United States law and the Constitution and instead just following, say, Icelandic precedents.

My bigger point with my post is that I'm disgusted with how Kennedy's opinion has been mispresented. It's fine to disagree with Kennedy--I don't necessarily agree with the opinion's reasoning--but at least present his position fairly. I've read at least a dozen articles written by conservative columnists who completely distort what Kennedy says in the opinion. If those columnists want to disagree with him, fine, I have no problem with that. I only have a problem when columnists turn Kennedy into some kind of a straw man and then kick him around. Kennedy is a smart man--let's give him some credit. If you want to disagree with Kennedy, then disagree with his actual arguments and his reasoning. Don't construct a false position for him and then try to argue with that.

Reader: "If you want to disagree with Kennedy, then disagree with his actual arguments and his reasoning." Kennedy disagrees with Kennedy, as his 2005 reversal of his 1988 opinion proves--so you can forgive the rest of us for disagreeing with him too. If foreign laws were really an "afterthought" in this opinion, why were they mentioned at all? The decision has but seven paragraphs, one of which is completely consumed by laws outside of the United States.

First, Kennedy is not disagreeing with himself. He did not write the Stanford opinion--Scalia did. You can see for yourself here: http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0492_0361_ZS.html

Second, foreign laws are mentioned to bolster his arguments. In other words: not only does the Supreme Court consider executing juveniles to be cruel and unusual, but so do nearly all the States and foreign governments as well. Kennedy puts it this way: "the opinion of the world community, while not controlling our outcome, does provide significant confirmation for our own conclusions."

Third, now I KNOW you didn't read the opinion. The SYLLABUS contains seven paragraphs. The OPINION contains over fifty paragraphs. Whoops!

Read Kennedy's actual opinion. Then let me know what you think...

Kennedy did indeed contradict himself, as he signed onto the majority opinion in Stanford v. Kentucky, which contended that sentencing 16 or 17 year olds to death did not constitute "cruel and unsual" punishment. In 2005, he wrote the decision that reversed the position he earlier held. So your statement that "Kennedy is not disagreeing with himself" does not hold. Mea culpa on confusing the synopsis of the 2005 opinion with the real deal. I'll read the opinion in its entirety and get back with you, but as a preliminary thought: if the section on foreign laws was such an afterthought why did it constitute an entire paragraph in the synopsis? Wouldn't an "afterthought" never have made it into the synopsis, which, because of its brevity, reserves space for main points and not "afterthoughts"?

Open Thread Tuesday?

I am drinking Labatt Blue right now.

Kennedy only signed onto parts of the majority opinion in Stanford. I don't have time right now to read Scalia's Stanford opinion, and then try to figure out why Kennedy signed on to some parts of it but not others. But I bet that if I put a few hours into this I would find that the parts Kennedy signed onto in Stanford in no way contradict his opinion in Roper. And if there are any direct contradictions, I bet that those contradictions are somehow explained in Roper.

Why do I think this? The justices are very smart--nay, brilliant. They are aware of every decision they have written and every decision they have signed onto. Occasionally they are sloppy and they make mistakes--they are human after all--but they rarely reverse course without at least explaining themselves. If you have the time, I'd like to encourage you to read Stanford--the opinion, not the syllabus--and then to read Roper. Note which parts of Stanford Justice Kennedy did and did not sign onto, and then see if he really contradicts himself in Roper.

I haven't performed this exercise myself, but I'm willing to bet that Justice Kennedy either (a) is completely consistent; or (b) if he is not consistent he at least explains himself. This might be a good project for you. You obviously have contempt for Justice Kennedy--calling him a "post-modern jurist" and the like--but I think if you examined his work carefully you'd find that he is actually quite a clever and logical thinker and is exceptional at applying (American) law to facts. He has one of the most intellectually demanding jobs in the world, and he is darn good at what he does. It's ridiculous when Rush Limbaugh, Tom DeLay, Mark Levin and others mock him and the other justices. It's like a 12-year-old making fun of James Joyce because the 12-year-old can't make sense of Ulysses and spots (or thinks he spots) a sentence or two in the book that he doesn't like.

With regards to syllabi, the justices don't write them. Syllabi are like a table of contents--they give you some idea of what is to come, but not much. I wouldn't take them too seriously--no one else does.

I just don't understand how the label, "obstructionist", is affiliated with Senate Democrats when threatening to use the filibuster while Senate Republicans are just as guilty of abusing the filibuster during the Clinton presidency. This is pure fact. Republicans are once again trying use their power to shove the "nuclear option" down the throats of the so-called "obstructionist" Democrats. The only obstruction I see is where the battle over judges is turning our attention away from "real issues" that concern "real people". Those people being American citizens are being ingored by Republicans waging ideological battles to appease to a radical faction of their party. Sure... maybe some candidates for the judiciary deserve and "up and down vote" yet the filibuster serves as an vital mechanism to uphold the checks and balances of the federal government. This is just another case of legislative terrorism being brought forth by the Republicans.

Conservatives woke up? They sure did because they know that a Supreme Court Justice will be stepping down soon and they want to make sure they hold the balance of power. To make sure this happens they want no barriers to getting their nominees passed. The "nuclear option" wipes out the checks and balances that are vital to the federal government. Had Democrats tried this when they were in power, its a sure bet that Republicans easily would have obstructed and threatened to use "rule-or-ruin conduct" as Dan Flynn muses. The fact of the matter is that Conservatives are wake up whenever their ideology is threatened, hence, the passing of so-called big government initiatives like No Child Left Behind, when children are being left behind in droves.... The Conservatives slept through that alarm BUT woke up when federal judges became the issue. What a shame that Conservatives continue to "con" Americans into buying their shameless tactics.

Wow, Freedom Fighter, quite amusing...

(1) I love hearing liberals praise checks and balances, and the traditional controls on power, because they don't mean it at all. Liberals have destroyed any notion of separation of powers and of federalism, they even eviscerated the filibuster in the 70s, and then they cry and moan and get self-righteous when Republicans want to further weaken the filibuster. Disingenuous. In fact the only reason these judges are a big deal is that liberals destroyed the separation of powers by making the courts another legislature. If you really cared about traditional checks and balances, you would immediately morph into a conservative.

(2) How many times did Republicans in the 90s use the filibuster against appeals court or SC nominees?

Conservatives have gotten the short end the of battle for the courts for 30 freaking years, and its because you all have been playing hardball while sissy Republicans still followed the old softball rules. Your people made the SC the real Congress, so don't blame us for going nuclear to appoint judges.

Reader,

Phyllis Schlafly did correctly characterize this opinion from what I just read of it. She talked about how the whole thing is about "consensus". How that collides with sense of Kennedy's closer seems to elude Kennedy. (Hardly "brilliant".)

"Over time, from one generation to the next, the Constitution has come to earn the high respect and even, as Madison dared to hope, the veneration of the American people."

So, over time, when the words of the Constitution have been interpreted with the current "evolving consensus" we will achieve a veneration of reinterpreting what the founders meant by current standards. Brilliant.

Point two: your invocation of the Specialist's Privilege ill fits this topic. Why? Because Kennedy is expertly interpreting the people. But who is a better authority on the people? Judges from their expert perch, or the people from their empirical (and perhaps not fully expressed) understanding of what they mean?

Kennedy sides with the Missouri and tolls decisions in the states as "votes" for or against. However, he then goes on to say that the current case, where Missouri might vote yes for this issue, they can't, because enough states have said no. Also because the governor of Kentucky decided that he didn't think that juvenile execution was a good thing, and so acted as governor. So, Kennedy is interpreting the Governor in his interpretation of what is "cruel and unusual". And although, I doubt you would take the thoughts of a Governor of Kentucky as authoritative on the eight amendment, Kennedy is granting him a role in just that.

Thus to decide what is cruel and unusual, we use the precedent of where other judges have decided to let the people (but only some of them, now) speak. It uses Missouri's flawed ana-lysis by including those that states that think execution is a bad idea in total. Thus because within their state, they use "cruel and unusual" to describe all executions (which is their right as States) it forms part of the "evolving consensus" on what is "cruel and unusual". Are those states right or wrong? Is capital punishment "cruel and unusual" itself? Why could only part of their "vote"?!?! Why misrepresent it, their argument is that all capital punnishment violates the sense of the 8th. Are they right? If they aren't, why consider their opinion at all? (Again, if that the judges are the best to decide based on law matters on this, why consider the collective opinion of people who do supply their own meaning to the 8th amendment?).

We have lost any remote meaning of the word veneration in this process of interpreting the political trends of states to decide how the Constitution is to be interpreted. So what is going on in that brilliant mind of Kennedy, to cite veneration of the Cons., as a related principle, here? Perhaps he is too brilliant for my feeble mind to know! Yeah that is not for me to decide, all I need to is trust and obey (for there is no other way...).

I have more points. I will be back. I have to do some work.

Note: Internationalism takes up 18% of the actual opinion. The opinion is 7507 words of actual discussion. 431 words comprise the fact of the case. 484 words comprise the fact of the trial (absent of any discussion of opinion). Leaving 6592 (minus the conclusion) of actual opinion text. Of which 1186 words are in section iv, which is all about world opinon.

Short:

Do you know whats quite amusing? The fact that liberals do believe in checks and balances. For you to tell me that they eviscerated the filibuster is a joke. Republicans are just as guilty of thumbing their noses at judicial nominees by using the filibuster. If you tell me that Republicans are weakening the filibuster even further when it should be preserved is exactly the hypocrisy the Republicans are great at. You tell me about crying and moaning and how Dems are self-righteous and then you go on to say that Republicans want to erode the filibuster even further because of some religious right wing agenda. Give me a break short... That is self-righteous alone being exhibited by the Cons plus the admittance of weakening an important checks and balance mechanism. You're too funny!!!

Talk about evisceration buddy. You're equally if not more amusing. Liberals never destroyed the separation of powers rather thats an ideological myth of the "con"servatives who BTW are still very bitter over the Terri Schiavo case. Talk about self-righteous pandering and the judge who presided over that case was a Republican.. Go Figure!!! This is where that stems from shorty SO keep on pandering. The self-righteous right keeps blurring the separation of religion and state and its sad.

"Conservatives have gotten the short end the of battle for the courts for 30 freaking years, and its because you all have been playing hardball while sissy Republicans still followed the old softball rules. Your people made the SC the real Congress, so don't blame us for going nuclear to appoint judges."

Conservatives have never gotten the short end. Cons have a slight majority on a SC that you call the real congress and then you say Republicans were sissy for not fighting back. Well, at least you spoke some truth and better yet... The Dems aren't sissy and will fight back against the abuse and hypocrisy that the Republicans represent.

God Bless America!!!

Actually, Freedom Fighter, I don't approve of what the Republicans are doing to the filibuster; but I do think the liberals are to blame for it because they gave the SC legislative powers. You are confusing Republicans and conservatives: while 7 of 9 on the SC are Republicans, 3 of 9 are conservatives. You offer no facts to rebut my claim that Dems eviscerated the filibuster in the 70s, and you offer no facts about how many times Reps used the filibuster against Clinton appeals and SC nominees. You also don't seem to know how to use a comma.

Thanks!!! It was fun see you explode in incoherent indignant rambling!!!

HAHA... I don't care for the grammar lesson right now Short or is it short??? Whatever shortie???

Anyhow, I think, Oh wow a comma, that my rambling was actually quite useful, in fact, you responded... Right??? Point made PAL.

" In fact, while Democratic senators used the filibuster to block 10 of Bush's 229 first-term judicial nominees, the Republican-controlled Senate prevented approximately 60 Clinton nominees from even receiving a hearing before the Senate Judiciary Committee, much less a vote on the Senate floor. And while Senate Republicans under Clinton strictly enforced a "blue slip" rule -- which allows one home-state senator to prevent a nomination from moving forward -- they greatly relaxed this rule under Bush to circumvent Democrats' objections to several nominees.

As The Washington Post noted in a December 13 article detailing Republican opposition to Democrats' filibusters of Bush nominees: "Republicans say that Democrats have abused the filibuster by blocking 10 of the president's 229 judicial nominees in his first term -- although confirmation of Bush nominees exceeds in most cases the first-term experience of presidents dating to Ronald Reagan."

While MSNBC noted on January 14 that the Democratic senators' use of the filibuster to block nominees has been "the most aggressive use of that tactic in Senate history," the Republican-controlled Senate blocked up-or-down votes on far more Clinton nominees than the number of Bush nominees the Democrats filibustered, and, in most cases, even denied them hearings and committee votes. As The Christian Science Monitor noted on May 12, 2003, "some 60 Clinton nominees never had a hearing before the Senate Judiciary Committee," which served "as effective a block to confirmation as a filibuster," according to Democrats. Similarly, as The Washington Post reported on September 5, 2003, "Senate Republicans enraged Democrats by bottling up about 60 of President Bill Clinton's nominees."

Further, the Republicans used the "blue slip" policy to deny Clinton appointments but then altered the policy after Bush took office. As The Christian Science Monitor has noted, the "blue slip" process is one "in which a home-state senator may indefinitely delay a nominee by failing to return a blue slip to the judiciary committee" confirming their approval of the nominee. But while Senate Republicans, led by Judiciary Chairman Senator Orrin Hatch (R-UT) and Senator Jesse Helms (R-NC), used the "blue slip" to block Clinton nominees, Hatch relaxed and, in several cases, simply ignored the policy after Bush became president.

As CNN noted on August 14, 2001, even Attorney General and then-White House counsel Alberto Gonzales has said that Republican senators' "partisanship over judicial nominations" during the Clinton era was "improper" and "wrong." " -- mediamatters.org February 18, 2005

I gave you facts now digest them for they're worth... The truth. I don't have to explain myself anymore than you do for your lack of intelligence. I figure that since my intelligence was already attacked by you why not shove it down your tiny little throat shortie???

Let Freedom Reign... GOD BLESS AMERICA!!!

Wow, Freedom Fighter... If you were in my class I'd fail you for plagiarism. I don't think all those words (or commas) were your own.

In any case, you completely avoided the question:
How many times did Republicans in the 90s use the FILIBUSTER against APPEALS COURT OR SUPREME COURT nominees?

None of the quotes you dropped in your pouting fit answered this question. But thanks for the encore... Can we have another? (I'm putting on my flack jacket right now, preparing for another verbal explosion of incoherent liberal anger.)

Actually... I did quote and just about most those words weren't my own. I got all of them from mediamatters.org, Since you failed to notice and ass-umed without paying close attention,

"...during the Clinton era was "improper" and "wrong." " -- mediamatters.org February 18, 2005

Go look at my post and you will see I accurately documented my facts. If you're professor then great although you do sound like an elitist who is above all. All of it came from mediamatters.org
So maybe you should open the blinders in your offices and let some light shine on your elitist mind.

BTW... The Republicans prevented 60 Clinton nominess ,as stated above, from even getting an up or down vote. "As The Christian Science Monitor noted on May 12, 2003, "some 60 Clinton nominees never had a hearing before the Senate Judiciary Committee," which served "as effective a block to confirmation as a filibuster," according to Democrats." --Christian Science Monitor.

Shortie... I believe I have answered your questions rather effectively. Now, you can maintain that you're independent yet its quite clear that you're a righty equipped with a shortie. I am also dismayed that you think I'm spewing liberal anger considering I've been using facts and you've been using use retorts to my effective arguments. I'm sure you will ask me to use commas and maybe quote accurately when all you have to do is face the facts my friend that Republicans are just as guilty of obstructionism.

I'll be waiting to be lectured by my self-righteous professor.

GOD BLESS AMERICA!!!

I'm not above it all, but I am definitely above you. (I have just added 'quotation marks' to 'commas' on the list, 'Grammatical tools Freedom Fighter doesn't know how to use'.)

You have still not answered my question, because you are not distinguishing between appeals and SC seats and seats on lower courts. Do you care? I would actually like an answer, because I don't know it.

"In any case, you completely avoided the question:
How many times did Republicans in the 90s use the FILIBUSTER against APPEALS COURT OR SUPREME COURT nominees?"

I'm not distinguishing because this is about federal judges at all levels. Of course, I care and I answered the question as you asked above. I answered the question accurately and if I may ask, How do you think you're above me? Status? Money? Please enlighten me with your elitist wisdom and flatter me some more.

Freedom Fighter: you just admitted that you aren't distinguishing lower level from appeals court seats; thus you admit implicitly that you haven't answer the question that I asked you from the beginning (comment 15 above).

Then you say you did answer the question I asked. Hmmm.

I wonder how it is that I am superior to you. It's probably not money or status. Perhaps it's because rarely do I contradict myself within a mere two sentences. Also, I know how to use commas and quotation marks.

Yeah dude, Freedom Fighter, Short is definitely above your level. You are playing in the pee-wee leagues while she is starting in the majors in this argument.

Why do you keep ending your posts "GOD BLESS AMERICA!!!" Are you actually Sean Hannity or something? Or really religious and/or patriotic? Or just being a jackass through irony?

Those statistics you site aren't terribly illuminating by the way.

Hi Sea King:

I hope you will get this response, but I worry that you might miss it because there are so many posts between your last post and this one.

Anyway, I don't understand what you are getting at. In particular, I don't understand the first few paragraphs of your post. If you could rephrase your point(s), I'd appreciate it. As it stands, I see that you are mocking Kennedy--a Supreme Court Justice--but I don't understand why. Where do you think his reasoning in Roper goes wrong? What precedents do you think he fails to consider? Why are the precedents he cites unsatisfactory? Do you disagree with his reasons for holding that adult and juvenile offenders should be treated differently? What is your understanding of those reasons?

I should add that your post seems to be typical of what I see coming from the right these days--lots of noise and cheap shots at Supreme Court Justices, conveniently devoid of any sort of legal understanding or evidence of having read an opinion you vehemently criticize. It must be easy never having to think on your own or honestly consider the views of those you instinctively disagree with. Why would you bother making the effort to read Kennedy's opinion anyway? First of all, you might not understand it. Secondly, Phyllis Schlafly, the undisputed heir to Immanual Kant, can just explain the opinion for you.

LMAO at short and Brian....

I don't think you're getting my answer. I answered the question with facts that apparently are not very illuminating to Brian. You asked this:

"How many times did Republicans in the 90s use the FILIBUSTER against APPEALS COURT OR SUPREME COURT nominees?" Correct?

Ok, I believe I answered the question from comment 15 as best as I could. You never mention the word distinguish until comment 21 or 22 , I believe, which says, "You have still not answered my question, because you are not distinguishing between appeals and SC seats and seats on lower courts. Do you care? I would actually like an answer, because I don't know it." You cannot ask me how many times the Republicans filibustered Clinton nominees while flipping the question as distinguishing between the appeals, SC seats, and seats on the lower court. It seems to a game of bait and switch is being played here. Tell me why I should distinguish when the facts have been produced. They bottled up 60 nominees in sub-committees, hence, acting as filibusters without actually making a motion to filibuster.

Please fill me in some more...

AND... I say "GOD BLESS AMERICA" because I mean it and I dislike Hannity. I am patriotic, very patriotic, so please do not question my beliefs like that. I am no jackass through irony although I am a patriot and this is our country. Does it irritate you that I say "GOD BLESS AMERICA"?

GOD BLESS AMERICA!!!

Freedom Fighter: From the very start I asked about apeals court and Supreme Court nominees. From the very start you have answered in terms of ALL judicial nominees -- including sub-appeals court nominees. This isn't bait and switch on my part; it is a reading problem on yours.

Since you requested more guidance from me, your superior, this is what you should do when you read: carefully focus on the meaning of each word and on how they all combine together into a sentence.

Comment 15... "How many times did Republicans in the 90s use the filibuster against appeals court or SC nominees?" --short

Comment 17... "Republicans are just as guilty of thumbing their noses at judicial nominees by using the filibuster." --Freedom Fighter

Comments 18 and 19... no use by either person of the term, "all judicial nominees"

I believe its Comment 20... shorts says, "In any case, you completely avoided the question:
How many times did Republicans in the 90s use the FILIBUSTER against APPEALS COURT OR SUPREME COURT nominees?"

Comment 21... No use of the term, "all judicial nominees", as you stated I've used from the start.

Comment 22... short asks me again, "You have still not answered my question, because you are not distinguishing between appeals and SC seats and seats on lower courts. Do you care? I would actually like an answer, because I don't know it."

Ok.. fair enough...

Comment 23... Freedom Fighter says, "I'm not distinguishing because this is about federal judges at all levels".

That is where I made reference to it and you have twisted my words severely. I should have explained myself better, therefore, I admit my oversight of this matter yet you've made a mistake by assuming I used the term, "all judicial nominees", from the beginning.

Comment 24... shorts says, "Freedom Fighter: you just admitted that you aren't distinguishing lower level from appeals court seats; thus you admit implicitly that you haven't answer the question that I asked you from the beginning (comment 15 above)."

Now, explain how I did not answer the question from comment 15? I did answer it and I can dig up more in answering this question. I may have used the words yet when I said, "...this is about federal judges at all levels." I meant to say I am distuinguishing between SC nominees and appeal court nominees. This isn't a contradiction, its a bad choice of words.

Comment 27... short says again, "Freedom Fighter: From the very start I asked about apeals court and Supreme Court nominees. From the very start you have answered in terms of ALL judicial nominees -- including sub-appeals court nominees."

Hmmm??? Until the end, I never used or answered in terms of ALL judicial nominees as you've stated. I maybe guilty of using the term later in the thread yet not throughout the whole thread.

Freedom Fighter: at first I was just in a bad mood and using your liberal pouting fit as an excuse to take it out on someone; I actually felt guilty about this and was going to apologize, but you have proven abundantly since then that you deserved it.

Have you answered my question? No. The quotes you lifted from that liberal site didn't distinguish between lower level judges, on the one hand, and appeals and SC judges, on the other. I haven't twisted your words at all. Perhaps you might read better if you just openned your eyes and stared at the words... I don't know. But you have simply not _understood_ the original question if you think you have answered it.

Fill in the blank: "In the 90s Republicans used the filibuster ___ times to block appeals court and SC nominees." This is such a simple thing; why are you being so stubborn about it?

I don't how many times I am going to say this but I did answer and you asked me about the number of times in the 90's that Republicans blocked Clinton nominees? Those qoutes weren't about distuinguishing because you asked that after the fact Ms. Shortie.

I am far from pouting rather I am laughing at you because I understand the question despite the fact you insist I don't.

"Of the 214 Bush nominees sent to the Senate for a vote during his first term, Democrats blocked only ten, using the filibuster. As such, 95 percent of Bush's nominees have been approved. By contrast, from 1995 to 2000, while Republican Senator Orrin Hatch was chairman of the Judiciary Committee, the Senate blocked 35% of Clinton's circuit court nominees." --www.dissidentvoice.org

Some of Clinton's nominees never even got a fair hearing. The actions of Senate Republicans in the 90's of delaying nominees or keeping them stuck in committee is alone a silent filibuster.

"As The Christian Science Monitor noted on May 12, 2003, "some 60 Clinton nominees never had a hearing before the Senate Judiciary Committee," which served "as effective a block to confirmation as a filibuster," according to Democrats." --Christian Science Monitor.

The Republicans were just as obstructionist, if not worse and to prove how unobstructionist the Dems have been, "In President Bush's first term, the Senate confirmed 219 of his judicial nominations, and Democrats blocked 10 judicial nominees by filibustering. While Republicans are unhappy with this, it is among the highest success rates for a president's judicial nominations—more than 90%—in American history." --www.legalaffairs.org

The Republicans have blocked or used more delay tactics than the regular citizen would believe to be true. They upheld and blocked many Clinton nominees. Give me a break, I have answered your question to the best of my knowledge.

I hope maybe you can open your eyes and see whats going on...

and BTW, you lied about me referring to "all judicial nominees" in the beginning.

Don't put words in my mouth.

Take it easy shortstuff ; )

You are seriously dense.

"Those qoutes weren't about distuinguishing because you asked that after the fact Ms. Shortie." Actually, look at comment #15 ("(2) How many times did Republicans in the 90s use the filibuster against appeals court or SC nominees? "), my first comment to you. The question I ask is about appeals and Supreme court nominees. So you are either a liar or a moron.

Once again, all the quotations you drop refer to all judicial nominees, not to appeals and SC nominees. Seriously, do you have some kind of mental block going on? How can you operate a car if you are this obtuse?

Why don't you just fill in the blank? "In the 90s Republicans used the filibuster ___ times to block appeals court and SC nominees." This is such a simple thing; why are you being so stubborn about it?

WOW!!!

I answered the question and now, I am not going to come down to your level of personal attacks. I am neither dense, dumb, or a liar. I won't stoop to your level of unintelligence and insensitivity. I believe I made myself quite clear.

During the 90's, the Republicans blocked 60 Clinton nominees, a good majority of them appeals court nominees. They blocked them by not "allowing" them a proper hearing. If they were allowed a hearing, the Senate's way of advise and consent, then maybe they would get a "up and down" vote w/ the option of filibuster. The filibuster gives rights to the minority of the Senate. It has always been this way for both parties yet the Republicans wouldn't allow hearings for 60 Clinton nominees, both appeals court and SC, yet we allow hearings for Bush nominees and now they want an up and down vote without the choice of a filibuster.

Basically this strips the rights of the minority party... A visible violation against the checks and balances of our government. Now, you want to know how many times the Republicans filibustered appeals court and SC nominees? 60 times is my answer, They never got a hearing opposed to the hearings Bush nominees are getting. By the simple fact of not getting a hearing is the same thing as a filibuster except it comes well before it even reaches the floor of the Senate. It's the same thing as holding up or blocking a confirmation.

Such a shame you had to get mad and act you're in elementary school. What a shame!

Remember my earlier point about how you contradict yourself? Unless "a good majority" means "100%", and unless "block" means "filibuster", you're contradicting yourself.

Freedom (from logic) Fighter says, "During the 90's, the Republicans blocked 60 Clinton nominees, a good majority of them appeals court nominees. ... Now, you want to know how many times the Republicans filibustered appeals court and SC nominees? 60 times is my answer."

It took more than two sentences this time; you did it in eight. That's an improvement. Try for 36 next time. It'll be your personal record.

In addition, clearly the answer to my question is zero. Now I don't know whether that matters. I'm still against the nuclear option. But I also think Democratic whining about it is BS.

"Senate Republicans are just as guilty of abusing the filibuster during the Clinton presidency. This is pure fact."

-- Freedom Fighter (May 11, 10:17 am)

Next time... It will take me 72 sentences.

I am not contradicting myself at all. I am making the observation that those nominees not allowed a "fair hearing" in committee is the same as a filibuster but without a vote. I have been saying that from the get go and you can say zero is the answer but the real tragedy is fact that Clinton nominees don't even get a committee hearing and Bush nominees do get fair hearings. with the Republicans in control. If they don't make it out of committee and on to the Senate floor, then I am pretty sure that is the same as a filibuster without a vote, its basically obstructionism.

Keep telling me I am contradicting(as I keep laughing at you) but the rules are being changed to favor one party.. the majority party, while stripping the rights of the minority party. Call me a whiner and pass me the cheese yet don't go into a little hissy fit and personally attack me. Even worse is the fact at how bitter you sound.

I must say this has been spirited and passionate. I have enjoyed this immensely.

Take Care.

Actually, I'm not bitter against you at all, Freedom Fighter.

Rather, I'm bitter against the ungrammatical and illogical computer chip that Michael Moore from his NY penthouse is using to control your (and many other people's) political positions. It's quite obvious that no person who thinks for himself would have gone on that factually incorrect and historically ignorant tirade you started with.

Go forth, proud Freedom Fighter.

Peace!!! God Bless America!!!

(P.S. How did you know I was in elementary school? Wow, that must be so embarassing for you.)

1) I don't like Michael Moore nor have I ever read any of his books or seen his movies PERIOD. Personally, I think he is a pompous ass.

2) I think for myself and no one else.

3) I am far from ignorant since I made a pretty good historical connection comparing the 90's to the present day. Don't ignore the fact that 60 Clinton nominees NEVER got a fair hearing or a hearing at all, basically blocking or unofficially filibustering before it could reach the Senate floor. That is a fact, which is far from ignorant and completely true.

4) Who said you were in elementary school? I said you're acting like you're in elementary school... You miscontrued my words again Shortie.

5) You should be proud of yourself... A lady with a biting flair for the dramatic. You go girl!!!

and 6) GOD BLESS YOU shortstuff AND AMERICA!!!

; )

Good times good times, Freedom Fighter. All in good fun. Perhaps I was a little harsh at times. Sometimes I just get in this terribly b!tchy mood. Sorry for that. Here was may favorite moment: "I don't have to explain myself anymore than you do for your lack of intelligence. I figure that since my intelligence was already attacked by you why not shove it down your tiny little throat shortie???" What's yours?

Peace!!!

I am in complete agreement, good times indeed, shortie. This was extremely entertaining and thought-provoking. I thoroughly enjoyed the exchange of sorts with you. I, most definitely, was passionately pissed when I wrote that in reply to what you said. It was all in good fun.

My fave was, "It took more than two sentences this time; you did it in eight. That's an improvement. Try for 36 next time. It'll be your personal record." and this one, "Rather, I'm bitter against the ungrammatical and illogical computer chip that Michael Moore from his NY penthouse is using to control your (and many other people's) political positions."

I was laughing hysterically when I read those.

Take it easy and have a great weekend!

Happy Friday the 13th!!!

Lets see if i can get a word in edge-wise.

Reader,

I'm going to try to keep this short (if I can). Both dictionary.com and American Heritage associate the word "deference" with venerate. The most popular meaning of "venerable" associates age with the concept.

What Kennedy and even O'Connor, in her dissenting opinion, say is that the interpretation of "cruel and unusual" needs to change with the times. O'Connor adds that were this not so, we would allow the hanging of 7 year olds.

(First of all, I see nothing to gain in hanging 7-year olds, whether or not the Consistution would allow it.) But to argue that we can update it to fit our purposes or to reform what it once scandalously stood for, is not the same thing as veneration.

Kennedy speaks as if this is an isolated case, that the decision to take a life is singular, but it is not. Because the role of the judge has also changed from the responsibility to argue the law, judges have now gotten into ana-lyzing political trends in this case.

O'Connor argues that Kennedy does not make his case about the trend. The trends is the sole argument in Kennedy's opinion. If one of his colleagues can make the argument that the trend argument does not hold, reverence for the Constitituion might invite some humility. Otherwise, he would be making a Constitutional decision based on a trends which may or may not be significant.

Kennedy thinks his ana-lysis of a trend is sufficient, therefore he declares that the Constitutional standard of "cruel and unusual" is updated. Based on what he thinks is happening and what that entails.

But the problem with the trend is that the trend is said to indicate consensus. But we already have a process by which consensus is translated into law, it's called a vote. Kennedy, by trying to divine the mood of the times, cites consensus (as he finds it) but only to subvert the established expression of consensus.

There's no need for the people to vote. Our judges will now derive a theory (as long as they are convinced) about what the people are thinking and make that law. It's like having a remote control that reads your mind. And what's more, it will keep the people from making bad decisions that the Constitution used to allow.

That is 180-degrees from any form of veneration for the Constitution. Yet, Kennedy sums it all up to a venerating the Constitution for containing words vague enough that we can not only choose what they say now, we can use any process that convinces us to make them say that.

This is the argument of the "Living, breathing" Constitution. The Constitution is not great because of what it is. It is great because of what "brilliant" people (who apparently think they can change what is "veneration") can make it mean to to guide the people of our time. In that, we are venerating the mirror.

Meanwhile, the main thing this non-voter-voting does is lock trends into place. Thus with an emerging right, if they are too moderate to immediately change things to their liking, there is some danger of their resistance to revert things being an evidence of a "trend", and as long as nobody has taken action on something in the last 5 years, a good indication that the states have "evolved" into this understanding.

Now, I do not think that executing teens is something that the GOP should have "preserved" as soon as they got into office. That would have looked horrible and been just as much. What I'm saying is that all we need is for some other Constitutional standard to acquire a "evolving standard" by some opinion down the road, and we could have a similar ruling on some other law that hasn't been touched in years.

It's worth noting that the popularity of capital punnishment has changed drastically within my lifetime. Once, it was rejected by a majority of the states. Were Kennedy's decision made in that day, the states would have no recourse to shift policy back. The Kennedy of that time could have ruled that capital punishment is unconstituional by its unpopularity, meanwhile we today find it as least still constitutional because---well, my guess is that not enough states have banned it. Once it crosses the 50% mark, suddenly Kennedy's precendent could be applied. Especially if no state finds it their most pressing need to jump back over the line.

It's a strange argument that would make capital punishment in the 70s unconstitutional, now constitutional (Only because Kennedy was not a justice or did not have similar precedents, arguably) and in the future almost definitely unconstitutional. Just based on trends, administrative decisions or in the case of Kentucky, the personal conscience of a Governor.

Very, briefly I will make a couple more quick observations: Murderous teenagers do show an amazing lack of judgment. That lack of judgement is a very similar lack of judgement that a 40-year old murderer shows. And it is that lack of judgment from which the citizens need to be protected.

We are constrasting killers with killers. Is the SC really saying that we aren't killing others for bad judgment. Yes, a teenager's lack of judgment is often poor in comparison to a normal adult. But there is plenty of scale here as well. Very few teenagers go around thinking that they are missing out on life by not killing someone. We don't execute normal adults.

These teenagers who do this are in such a nadir of the lower end of the curve, that there is little reason to think that they are not going to be in the lower end of judgment in their adult life (i.e. criminals).

This is not an absolute, but the likelihood of this happening should mitigate any definite idea of what the relative lack of judgment between teenagers and adults means for law and self-governance.

Kennedy's informal arguments on this opinion are flawed in many ways, to a generalist like me. Add to that that a specialist like O'Connor dissents that he hasn't sufficiently represented a "consensus" as she knows it under law. In fact, I see little deference in anything that Kennedy says that there is any consequence of arguing wrong. He gets 1-out-of-9 votes and he'll cast it to change the constitutional standard as he sees fit.

That may not bother you. It does me. Especially, in an opinion that needs to rely on the public mood to establish what the legal context should now be. Why? Because the argument is that people know what cruelty is. Thus, the Constitution should compare with the popular meaning of the word "cruelty". Thus when a New Yorker reads "cruel and unusual" in the Constitution and sees reproachable Republicans hanging teenagers, he knows that this is wrong because the constitution forbids "cruelty". To then put the gloss and say that the Constitution can only be interpreted by its specialist terms, has less ground to stand on.

You tend to invoke the insufficiency of non-legal minds to interpret the Constitution. This totally flies in the face of that. The judges in this case have decided that they need a popular context to attribute "cruelty" by "evolving standards".

You can comment on this if you want. But I don't think I will write again on this topic. I read all 50 paragraphs of Kennedy's opinion. I find the most universal definition that Roper upholds is the U.N.'s technical definition of a child. So, despite what Kennedy says about how international law has not affected his decision, I would argue that it has. I read a deal of the dissenting opinions on it.

I think I have done a fairly good job of ana-lyzing what the decision means from a generalist perspective. But, if you still find generalism to be such an offense to "understanding" the Court, I can only cite this case. And I also might wonder what sociologists and other population and political ana-lysts might have to say about judges becomming de facto trend ana-lysts. It's pretty clear that the judges are taking the roles of generalist on themselves. They also feel that they can discuss the impact of neurology as well.

(Okay, it is not at all short.)

Wait, I have one more thing to add. This is the type of wisdom that we were treated to back when Clinton was in office:

When somebody says it's not about International law, it's about international law.

(See how reasonable that is?)

Reader,

On Schlafly, I included her based on your blanket statement that "Kennedy's critics (a) haven't bothered to read the opinion, but attack it anyway; (b) are not able to understand the opinion, either because of educational deficiencies or low intelligence; or (c) understand the opinion, but misrepresent what it says in order to rile up people who are either too lazy or too stupid to make sense of the opinion themselves."

I said that where she places the main argument seems to be the main argument.

"I had expected the opinion to look to international law as the primary means for holding that the death penalty is unconstitutional as applied to minors. This, after all, is what conservatives claim the opinion does. But the claims are inaccurate."

Not if you had read Schlafly's comments, which is what I did. I would like to note that I didn't put faith in her comments as much as her characterization that this was more court revisionism, corresponds to my idea that there was a trend in revisionism.

But let's look at this: "too lazy or too stupid to make sense of the opinion themselves."

So the suggestion is that if you were not too lazy to read the text, and were not too stupid to make sense of it (by this, I would guess see connections between words and concepts) that it would impart some amount of insight into the opinion that would not allow one to be riled up by its politicizers.

Thus there is a generalist appeal to this sort of logic. Just don't be lazy or too stupid to make sense out of it, and you'll easily see that it is a good decision. But when I try to approach it on a generalist level--and I clearly stipulate that it is nothing more than that--I tend to get an authoritarian and "leave it to the specialists" type of answer.

What I wanted to get across is that there are a number of levels to attack this from a generalist perspective, so your idea that it is only not understandable by the stupid or people with no deficit of education other than the lack of a law degree.

But yours is only a slight variation on the "it's as plain as day" strain of argument. This is the idea that what one is stating is obvious and that only those who are on some statistical tail could miss apprehending this. This you include in the language of "stupid" or "lazy" or "educational deficits (not including a lack of law classes)". All you need to do is "make sense" of the opinion and it should be obvious.

It's interesting to note that your version is only slightly more sophisticated than I find with guys on sports boards. Many people have had the thought that they need do no more than slur their opponents' judgment, to establish the truth of the matter.

What you relied on is a shame of violating the "Think for Yourself" ethic that is in vogue right now. But in the end, your generalist argument ends up in an appeal to authority, in fact all you really want is for people not to try to "make sense" out of the decision themselves, but to switch their subscriptions.

But you are just as subject to the "Think for Yourself" ethic as I am, so you invoke it. You can't avoid it, it is what generalist arguments consist of. But in the end, your appeal to authority, indicates that all you really wanted was subscription to a different authority. I see this on sports boards a lot too.

A characteristic of the TfY ethic is that it is hardly ever used consistantly. Here, I'm hardly stating your argument as the exception (thus there is no implied tail here); it is quite typical.

Sea King:

I find it disturbing that conservative critics attack things that they haven't read. That is the height of ignorance.

I also note that you still have not rebutted my post on the intent of the Eighth Amendment. Does that mean that you are in agreement with me?

Reader:

I also note that you still have not rebutted my post on the intent of the Eighth Amendment. Does that mean that you are in agreement with me?

I note that that does nothing to counter what I said about your blanket statements, does that mean that you agree with me that your argument consist mostly of an appeal to authority and ad hominem, and cannot properly reconcile where exactly laymen are supposed to fall in comment or dissent?

I have recently rethought the way that Kennedy used the word "veneration" and how it applies to Federalist 49, which he cites. It now occurs to me that Kennedy doesn't invoke veneration, as much as he states that the Consititution has been venerated as "Madison" had hoped. The rest of the last paragraph goes into how observing world opinion shouldn't lessen the Constitution by agreeing with it.

I agree with that. If the US and the world hold a common standard, we have no reason to go out of our way not to hold it. This is not fashion; ethics don't go out of style when the "unfashionable" hoard adopt them. We have no reason to be a trendsetter.

But we also cannot use it to argue that it is what the Constitutution says. Thus, stating that the world agrees with the Constititution is totally effectless, if it does, and it's rather begging the question if it doesn't.

Here Kennedy tries to make two arguments at once: 1) the Constitution has agreed with the world standard and 2) that the Constitution should be construed according to the up-to-date standard which includes the world's opinion. Simply observing that we and the world already hold something in common (like that we should not launch nukes at the mantle of the earth), should not bother us. Arguing that their opinion should factor into our interpretation is something else entirely.

His argument has three main parts, and contextual definitions. I regard the first, the statistical argument as flawed. They say you can prove anything you want by statistics, thus we should take more caution with this. Apart from my first reaction to Kennedy's polling methodology, O'Connor adds mitigating factors to challenge even the numbers the majority employs as significant.

Moving on, I regard the physiological argument as obviously flawed, and does not fully argue what Kennedy wants it to. I've read about these studies, the actual line is drawn somewhere around 20, not 18. Also gradualism and distribution being a prevalent theme in science, I doubt that there is any surge in judgment capabilities at the 18th, where we could start executing them. Or that youths 4 months shy of 18 have any marked difference from 18-year-olds in this capacity

Thus the one clear definition which Kennedy upholds is the UN's definition of "child". There is little doubt whether this one applies. Thus he views the physiological argument as simply sufficient. If youth younger than 20 suffer from a lack of judgment, then definitely so do youth under 18. Thus the boundary set by the studies does not mattter as much as the clear definition under the UN.

As I said before O'Connor agrees with Kennedy about the sliding scale but doubts that anything has occured to indicate a change of definition. She also disputes the majority's numbers.

All I noted is that O'Connor is that she is somewhat sensationalistic in arguing that this clause must be reinterpreted. Why? Because if it weren't we could hang 7-year-olds.

Now, she says that Kennedy doesn't make his case that anything has significantly changed since Stanford. She believes in a sliding definition, but she says, "Without a clearer showing that a genuine national consensus forbids the execution of such offenders this Court should not substitute its own “inevitably subjective judgment” on how best to resolve this difficult moral question for the judgments of the Nation’s democratically elected legislatures."

So O'Connor is arguing that this is usurpation based on a fuzzy and trumped up "consensus" argument.

Nothing relies on whether or not the "cruel and unusual" definition should never be updated. So although you get closer to my opinion than O'Connor's by degrees, no part of my argument relied on the eighth amendment never being advancing.

The third definition, we've discussed. And you and Kennedy argue that it is no part of the argument proper. Regardless, the UNs definition clearly applies to the case. It's the application of this that is lacking.

Now, here is something odd. Assuming that all the justices are brilliant, a 5-4 decision that the Constitution reads a certain way, is a quite good indicator that the matter at hand itself is vague. That and there was a split decision just 15 years ago that decided different. So are we substituting anything less vague?

If vagueness is an invitation to being updated, it is to make it just as vague or vaguer? I should think if vagueness is intended to make us reinterpret it, we should get a clearer definition out of it rather than one clearly indicating a impasse where we can only take a vote and let the majority opinion rule.

It's quite interesting when you tell me that vagueness has such a well-defined purpose in law. That the founders "intended" anything by it, by virtue of it's being vague.

I still haven't gotten to veneration, but I shall.