McCain, Obama and judicial wars

Don't worry what the law says, openly use it to serve politically favored classes.

That's a tough indictment of the Roberts court. Favoring business over the consumer and employees and the environment, favoring the Bush administration over civil liberties. The Warren court, in contrast, used the law to protect oppressed minorities and civil liberties, people far from the favored classes.

So what Warren Court judgments do you specifically object to, Rod? Brown v. Board of Education?

It's not the comments about Earl Warren that worry me, it's Obama's belief that Supreme Court justices are supposed to have some sort of empathy for particular groups of people. Judges are supposed to make rulings without passion, prejudice or empathy. They are supposed to put away their empathy and baises in favor of deciding law. Sometimes judges have a hard time doing this on both the right and the left, but that is what the standard should be.

As much as we might not like it, sometimes the law and the Constitution are on the side of the powerful, the wealthy, the nasty. Sometimes they're on the side of the poor, the meek, and the sympathetic. Ideally, judges shouldn't be prejudiced towards one person or another. Obama doesn't appear to believe this.

How many of the current conservative judges making up the majority on the Supreme Court are likely to retire in the next 4-8 years? Aren't most of those relatively young and healthy?

Daniel
That's a tough indictment of the Roberts court. Favoring business over the consumer and employees and the environment, favoring the Bush administration over civil liberties. The Warren court, in contrast, used the law to protect oppressed minorities and civil liberties, people far from the favored classes.

You know, in reality, that's all that changing the court does. It doesn't do a darn thing about abortion and homosexuality. The court's position on that doesn't appear to move at all.

But it sure as hell moves with regard to the 'rights' of businesses. Like this recent insane Ledbetter v. Goodyear ruling that existing law required that, under the law, women have sue over gender discrimination in pay within the first 180 days of being hired. Which is just flatly absurd...she sued because she was issued a paycheck, for the same amount of work, that was less than men's paychecks. That happened within the 180 days of her lawsuit...it doesn't matter that paychecks from before that time were also that low.

It's worth pointing out this isn't even a flipping constitutional issue. This was a 'the law was phrased vaguely enough that we could state it didn't work like that just because we don't like it'. It randomly and arbitrarily says that there's some magical difference between discriminatory practices that were started more than 180 days ago, and new ones, with the presumption you can keep repeating ones that were started in the past with no penalties.

The law was worded in a way to keep people from suing over events that happened in the far past, not new events that are repeats of past ones. If anything, continued and repeated discrimination going back years should be easier to sue over then a single event possible caused by some bigot operating outside company policy, not harder.

The real fun side effect of this is that any business can now openly discriminate all it wants against employees. All they have to do is make each policy change at least 180 days before it goes into effect, and keep it secret. 'In 181 days, we will reduce the pay of all women hired before today by 1/3rd.'. They could actually openly state this as a policy after the 181 days, when they reduce the pay, and no women could sue, because the decision was made more than 180 days ago and they had to object within 180 days. Now the company is just 'continuing' the decision.

It's total nonsense. It's mind-bogglingly stupid decision, which exists only because the court, as it stands, hates anti-discrimination laws.

Well, of course they would bring back slavery! After all, the Enlightment ended slavery which makes ending slavery a bad thing.

Just ask MacIntyre.

Well, 17 years and four GOP-appointed justices later. Only two of the justices had been appointed by Democrats.

Bowers was a 5-4 decision. When Justice White retired, and Bill Clinton was able to fill two slots, it erased the Bowers majority and removed one of the four votes for outright overturning of Roe v. Wade.

Anyone who thinks judicial nominations don't make a difference on issues like abortion and homosexuality doesn't have a clue avout how either the judiciary or American politics works.

That category emphatically doesn't include the legion of heavily funded left wing "nonprofit" advocacy groups, who focus like a laser on the courts for precisely these reasons.

Yeah, I was feeling, thinking, saying and blogging this well over a year ago. Obama is bad news re: judges, if you're a conservative, and judges have a disproportionate role in ordering our public affairs.

It's the judges and also the veto power. Obama has proved with his legislative history and has indicated by his statements that he will take the most pro-abortion position possible. Even infanticide is part of his agenda, if a child is lucky enough to survive an abortion. The FOCA law that he says he will sign first thing upon taking office would federalize all abortion laws and wipe out all the conditions that states have imposed. Most Americans in most places support by large margins such conditions as having parental consent for their teenage daughters' abortions, having informed consent requirements to make sure a woman knows she is carrying something besides a "blob of tissue," and compliance with surgical center and other health-related regulations. The FOCA law would displace all such state laws. It is fair to predict that John McCain will veto such a bill and that Barack Obama will sign it.

As for judges, we need judges who are willing to consider fairly evidence concerning abortion, such as that many women suffer long-term effects from abortion and many men who are fathers of the aborted babies do too. Abortion, when all the consequences are considered, may not be safer than childbirth after all. Barack Obama has promised to appoint to the courts ideologues, and they will not even listen to the evidence. John McCain may just appoint judges who will.

The pro-life movement will continue to focus on saving lives, no matter who is elected. Ultimately we are not about saving "Western culture" or even saving the United States, but about saving the lives of fellow human beings whom God has loved enough to create. The law is just one component of doing that, but it is a large component, both behaviorally (i.e., what the law allows or restrains) and culturally (i.e., what the law blesses). We will save a lot more lives under a President McCain than under a President Obama.

Obama appears to think that whenever what he thinks is right and desirable loses out in the democratic process, that outcome must have been the result of the democratic process not functioning correctly. Logically enough, you need powerful judges to correct democracy's failings. Sounds great; what could possibly go wrong?

And now the "poor, or African-American, or gay, or disabled, or old" are "politically favored classes"?

That's rich.

Where to start?

First off, Rod, the comments and your interpretation of the comments are not the same. He didn't say ignore the law. He said know what it's like. Like it or not, the courts have a policy role in several situations; first, when it comes to the courts (you know the judicial branch), secondly when the legislature writes unclear laws and they have to reconcile and interpret them on the basis of shoddy legislative history. In those cases, yeah, we want someone who knows what it's like to feel empathy. I would think a Christian would too.

Secondly, I will repeat Connie's challenge. Which specific opinions written by Warren do you disagree with, and why? Warren might be a favorite right-wing boogeyman, but you're a respected intellectual and can and should go further than Rush and O'Reilly do.

Third, DavidTC, I suggest you read the opinion. Though I agree with you on the merits, Scalia's (Or was it Roberts?) opinion in the Goodyear case was not as out there as you seem to imply. Once again, this brings us back to the legislature writing shoddy laws. If they would get their act together, it wouldn't leave folks on the court (liberal or conservative) as much wiggle room. Oh, and we have a Democratic majority in both houses...why can't we get this fixed legislatively?

Fourth, Kimberley. The reason there was so much social science in Brown was because the law that you think was so clear had a 50+ year history of being interpreted differently. Remember Plessy v. Ferguson and separate but equal? He had to show why separate but equal was still not equal.

Hattio,

That's a nice justification, but I don't think it stands up. Plessy was a wrong decision as a matter of constitutional law. That's all the Court had to say - it didn't need to rely on social science. Separate educational facilities are inherently unequal, as the Court itself said. Justice Thomas has pointed this out as well: "Brown I itself did not need to rely upon any psychological or social science research in order to announce the simple, yet fundamental truth that the Government cannot discriminate among its citizens on the basis of race." It was a pretty clear principle and pretty clear that Plessy was wrong. Again, the lasting damage to jurisprudence from creating constitutional law on the basis of social science evidence and policy considerations is considerable. See the whole line of cases I cited above.

I think Robert's umpire analogy is on target. The umpire is aware that he's not the game, but exists only to facilitate the playing of the game.

The people and their political desires and convictions are the game, and the Courts exist only to be an arbiter of inevitable conflicts. The constitution is the basic list of the rules of the game. Do you want an umpire to call a runner safe simply because he's such an earnest player and could use a break (I almost said barack)? No, you want the most accurate call based on the rules of the game. Let the chips fall where they may.

Roberts is right: The Court's just a glorified umpire, unless some looney justice sees himself as the center of the game.

Don't forget Warren's wonderfully progressive plan to give Japanese-Americans free vacations.

Excuse me, Gerry, Hugo Black's court decided Korematsu before Earl Warren had a chance to work his magic.

hattio
Third, DavidTC, I suggest you read the opinion. Though I agree with you on the merits, Scalia's (Or was it Roberts?) opinion in the Goodyear case was not as out there as you seem to imply. Once again, this brings us back to the legislature writing shoddy laws. If they would get their act together, it wouldn't leave folks on the court (liberal or conservative) as much wiggle room. Oh, and we have a Democratic majority in both houses...why can't we get this fixed legislatively?

The law was written just fine. And I've read the opinion, went 'huh', and went and read the law itself. Their opinion only works if you parse 'employment practices' as 'decisions made by employers', instead of 'actions by employers'.

Which is incidentally very stupid as, under the law, victims can demonstrate a pattern that doesn't require breaking out each decision, but merely that the entire setup is has a discriminatory effect as a whole. Of course, this would completely fall apart if you had to demonstrate that each decision that was part of this setup (The ones you don't have to individually identify) happened within 180 days.

The real funny joke here is, if the law had been interpreted this way in the past, it couldn't accomplish entire purpose of the law, which was to desegregate existing businesses. You can't tell me there wasn't some discussion on the discussion on the floor of Congress about how current employment practices would have to change, which the Supreme Court completely ignored in determining the intent of this law and what 'employment practices' meant.