Bush would do well to nominate someone like Judge Ed Prado, a moderate and thoughtful judge rather than a theocratic Scalia clone. Scalia btw, claims to be a "strict constructionist" but doesn't seem to get that the founding fathers purposely left God out of the constitution - focusing rather on "we the people" being where government gets its legitimacy.

Clarence Thomas is a legimate limited government conservative. Scalia is a theocrat who believes in masturbation laws (don't believe me, read his Lawrence v Texas disent).

More on Prado at:

http://www.draftprado.org

Oh God...not Eva. Anyway, thanks Mitch for a great post. I read somewhere today (Lucianne?)that the Left believes in "human sacrifice"...abortion...little humans sacrificed on the altar of our "selves".

Re: Eva Young at July 1, 2005 06:33 PM

> Scalia is a theocrat who
> believes in masturbation
> laws (don't believe me,
> read his Lawrence v Texas disent).

Not even close. Scalia believes in no such thing. He believes the US Constitution is silent on homosexual acts, and all other sexual acts, and therefore such things are the complete purview of the States, and he's absolutely right. He also warned that any new mystical legal thread, used by overly-creative Supreme Court majorities, will have legs, that take these new theories where you never thought they would end up at the time you dreamt up this new and very very flimsy foundation of law.

Eva, I'm sorry, but that's untrue. Scalia believes the Tenth Amendment was put there for a reason.

Allowing states their tenth-amendment right to pass and uphold their own laws (even if they're "theocrats") is constructionist.

Scalia said in "Lawrence": "It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed." The SCOTUS MUST be neutral and interpret THE LAW (as passed by LEGISLATURES), not determine moral norms.

As to your claim that Scalia is a "theocrat" who "believes in masturbation laws", Scalia goes on to say: " Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change."

Which is PURELY constructionist, if inconvenient, I suspect, to your personal worldview, Eva. You've clearly misrepresented Scalia, I'd say; are you sure you read it? Or did you let your emotions do the reading? (Or did I miss something)?

THe last thing the SCOTUS needs is another "moderate" who will be eventually stampeded into activism.

I wish to stamp out the remaining cinders of what Mitch left of Eva's ill-informed, and frankly insipid comment. Fortunately she cut-and pasted her own comment from here into my blog, so I will treat her with no more of a dignity, by doing the same:

Gee, didn't Thomas join that dissent?

checking...

http://caselaw.lp.findlaw.com/sc...00&invol=02-102

Why yes, yes he did.

And Scalia's dissent was based on the doctrine of Stare decisis, not some religious desire for a theocracy. Try reading the opinion.

If you want to play lawyer, then drop the $100 grand and endure the medieval initiation ritual known as the bar exam.

Until then, shut the fuck up about things of which you have no clue what you are talking about.

LF

I know how much Mitch enjoys my anecdotes so here's another.

My mom was a nurse anesthetist and in the 70's she worked at a small Catholic hospital in Chilton Wisconsin. The Catholic Church obviously forbid any form of birth control including tubal ligation but physicians did perform a procedure called a uterine isolation.

In a tubal ligation, the fallopian tube is tied or cut so the ovum can't travel to the uterus and consequently can't be fertilized.

In a Uterine Isolation, the uterus is isolated from the ovary. This is done by either tying or cutting the fallopian tube.

The tubal ligation is done as a method of birth control

The uterine isolation was performed on women who had or might experience damage to the uterus - usually but not always as the result of multiple Caesarian section.

See the difference?

In addition, the hospital performed a procedure called a DNC or uterine scraping. This was frequently done on young single women who were experiencing an unusual menstrual period. Unusual as in missed... With me so far? Good.

In many cases, these scared little good Catholic girls were brought in by their parents.

The hospital, by the way, was funded in large part through the generous donations of the members of the local Catholic Church.

After leaving this Hospital, we moved to Sheboygan Wisconsin where she worked at another Catholic Hospital.

They did the same procedures.

The last job he had was at St. Mary's Hospital in Green Bay where they ALSO performed the same procedures.

So what's my point you might ask...

My point is that is you or your family have enough money and the right affiliations, you can always have your problems taken care of.

According to Nina Totenberg (on the Charlie Rose Show) this will also be a tremendous fund-raising opportunity for all the various legal interest groups, and that alone guarantees a knock-down drag-out fight over the nominee, no matter who the President chooses to replace O'Connor. That's an aspect of this that I hadn't thought of. This is like giving a big State Fair booth to "People for the American Way"--a chance for them to get out and sell the wares--sell the outrage.

Colleen, you got us pegged. Every time there's an abortion, another liberal gets his or her wings.

Liberals don't love abortion any more than conservatives love war. Yeah, there are some nuts on the fringe, but for most liberals, abortion is viewed as a unfortunate option. Yes, liberals have fought to keep that option available, but that's not the same as saying that they love it.

I think that Democrats have paid too great a price for abortion. And I don't think they've really "kept it safe."
From my armchair, I think Roe v. Wade deprived the nation of a democratic process that might have led to a compromise that would work for most of us. Instead we have a judicial decree that we are constantly revisiting.

I think that Senate Democrats would be well advised to sit this one out. Let the President pick his nominee, ask a few tough questions in the hearings, and let it come to a vote as soon as possible. Figure out how to win the Presidency and the Senate leadership, and then you can have your pick for the Supreme Court.

If the President or the Republicans overreach, there will be an opportunity for the Democrats to rebound, but not if they are the party of whiners.

"From my armchair, I think Roe v. Wade deprived the nation of a democratic process that might have led to a compromise that would work for most of us. Instead we have a judicial decree that we are constantly revisiting."

It's nice to know a woman's uterus is open to be decided by the voters of this country, and what she can or cannot do with it.

Sean,

The voters of this country decide lots of things. It's called "Representative Government".

You'd prefer nine high priests of knowledge decide everything?

Peter-for the most part a thoughful post-it's appreciated.

Sean S: what a load of crap. When is "what a woman can and can not do" ever going to start with either using birth control or keeping the legs shut? (It really is humanly possible).

Oh, as to the anecdotes from Dan on Catholics and the medical procedures thinly disguised as abortion...so what? Twas always thus, but that didn't mean the state (and society) had to approve and give it our blessing. Go ahead people-revel in your sexuality and then when there are consequences, kill it....Everyone realizes that in some of these situations (teenage girl, malformed or malfunctioning baby) it would be harder than hell and the temptation to abort would be great. I had a teenage girl, but how on earth killing my grandchild would have helped the situation is beyond me...shame for a bit (nowadays?..nevermind the shame part) but in the long run a better choice is life. Possibly handicapped baby? Again, killing it to save myself grief-who knows for sure what a life can hold? (BTW, my daughter has lost two children to stillbirth and miscarriage-I can't imagine doing such a thing ON PURPOSE). Other than those two instances, there are abortions done for little more than birth control-irresponsible women and/or men taking advantage of a horror to save themselves any inconvenience. I'm not a big fan of all these single women (mostly young) being on the public dole and having kids right and left, but before there was all this "sex education" the ignoramuses managed to do pretty well not multiplying like rabbits. I graduated in 1973. I knew two girls in my class that got pregnant and got married when we were seniors. I knew one that had an abortion...out of 165 graduates. There might have been one or two that I din't know about since they dropped out or something, so let's say there were a total of 5 that pregnancy touched. Now we take my daughter-in-law's class of 2001. Out of about 140 grads there are 25 girls who have had babies out of wedlock (quaint term I know, but..) and 6 have had abortions (some more than one...or two!). No marriages in that whole crowd. We're supporting all the little bimbos while they party and leave the little one with sitters and that makes me angry. However, there is a chance that they will get a job or get married and support themselves but if the baby had been killed that's that for the baby. It's a vicous, ugly cycle but "sex ed" and the sexualization of our society has done nothing but exacerbate the problem. Why doesn't anybody use birth-control? They have the easiest access anyone has had in history and yet they refuse to make the effort. Because they don't have to...

From Scalia's disent:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.

EY: Yup, he talked about masturbation laws. I didn't know there were any such laws.... I'm curious how Scalia would suggest enforcing such laws.

Note Thomas's separate disent:

Justice Thomas, dissenting.

I join Justice Scalia's dissenting opinion. I write separately to note that the law before the Court today "is ... uncommonly silly." Griswold v. Connecticut, 381 U. S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases 'agreeably to the Constitution and laws of the United States.' " Id., at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy," ibid., or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante, at 1.

EY: Thomas's disent - unlike Scalia's long winded, unhinged rant - gets at the nub of this - and shows no anti-gay animus - which is that the laws might be stupid, but they aren't unconstitutional. I've always pushed for legislative repeal of the sodomy laws (and you should know this Mitch). Way too many legislators - and Mike Hatch - wanted this to be decided by the courts - it's a way to avoid doing their job.

Oh Learned Paw Lawyer type, wouldn't Stare Decisis also keep Roe v Wade intact?

Scalia is an activist judge - the most activist of them all - and his claim to Strict Constructionism is so much nonsense.

From God's Justice and Ours - Antonin Scalia:
http://www.firstthings.com/ftissues/ft0205/articles/scalia.html

It is a matter of great consequence to me, therefore, whether the death penalty is morally acceptable. As a Roman Catholic—and being unable to jump out of my skin—I cannot discuss that issue without reference to Christian tradition and the Church’s Magisterium.

The death penalty is undoubtedly wrong unless one accords to the state a scope of moral action that goes beyond what is permitted to the individual. In my view, the major impetus behind modern aversion to the death penalty is the equation of private morality with governmental morality. This is a predictable (though I believe erroneous and regrettable) reaction to modern, democratic self–government.

Few doubted the morality of the death penalty in the age that believed in the divine right of kings. Or even in earlier times. St. Paul had this to say (I am quoting, as you might expect, the King James version):

Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? Do that which is good, and thou shalt have praise of the same: for he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil. Wherefore ye must needs be subject, not only for wrath, but also for conscience sake. (Romans 13:1–5)

This is not the Old Testament, I emphasize, but St. Paul. One can understand his words as referring only to lawfully constituted authority, or even only to lawfully constituted authority that rules justly. But the core of his message is that government—however you want to limit that concept—derives its moral authority from God. It is the “minister of God” with powers to “revenge,” to “execute wrath,” including even wrath by the sword (which is unmistakably a reference to the death penalty). Paul of course did not believe that the individual possessed any such powers. Only a few lines before this passage, he wrote, “Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord.” And in this world the Lord repaid—did justice—through His minister, the state.

EY: This doesn't come from the US Constitution. It's Scalia's theocratic vision of government.

Re: Eva Young at July 2, 2005 10:36 AM

The local dry cleaner might have some interest in the community's sex habits. Scalia has no interest. His only point is that the Supremes don't have any authority to take those decisions away from the STATE. Do you have some kind of learning disability? This is not difficult stuff.

-------------

From:
Scalia Question and Answers
by Jeffrey D. King, March 16th, 2005
http://www.threebadfingers.com/?p=22

excerpt:

Kent Hughes:

Mr. Justice Scalia, what do you think has caused the emergence
of the Living Constitution doctrine? What were the forces in
society, were there pressures that were not responded to by the
legislature? What caused the emergence of this new doctrine?

Justice Scalia:

I don't know. Perhaps the question should be: how did we get
away without having it develop much sooner. I mean it's
enormously seductive to a judge. The Living Constitution judge
is a happy fellow. He comes home at night and his wife says,
"Dear, did you have a good day on the bench?" "Oh, yes. We had a
constitutional case today. And you know what? The Constitution
meant exactly what I thought it ought to mean!" Well of course
it does, because that's your only criterion. That's a very
seductive philosophy. So it's no surprise that it should take
the society by storm. And it is the same thing for the man or
woman in the street: to know that everything you care
passionately about, whether it's abortion or suicide, or
whatever you care passionately about, it's there in the
Constitution. What a happy feeling. That's what causes it. And
that's what makes it hard to call the society back from it. It's
tough medicine.

"Oh Learned Paw Lawyer type, wouldn't Stare Decisis also keep Roe v Wade intact?"

Not necessarily.

And actually, Roe v. Wade is NOT intact.

But then again, what would I know?

And you are in no position to be ripping on others for making "unhinged rants"

LF

Scalia is a hypocrite when he makes this statement:

I don't know. Perhaps the question should be: how did we get away without having it develop much sooner. I mean it's enormously seductive to a judge. The Living Constitution judge is a happy fellow. He comes home at night and his wife says,
"Dear, did you have a good day on the bench?" "Oh, yes. We had a constitutional case today. And you know what? The Constitution meant exactly what I thought it ought to mean!" Well of course it does, because that's your only criterion. That's a very seductive philosophy. So it's no surprise that it should take the society by storm. And it is the same thing for the man or woman in the street: to know that everything you care passionately about, whether it's abortion or suicide, or whatever you care passionately about, it's there in the Constitution. What a happy feeling. That's what causes it. And that's what makes it hard to call the society back from it. It's tough medicine.

EY: Scalia didn't find the legitimacy of the US Government coming from God in the US Constitution. He finds that in the bible. The founding fathers debated whether to put God in - or leave God out of the constitution during the constitutional convention. Those wanting to leave God out won the debates (ironically enough the southern states) while the delegates from Massachusetts - now known as a more secular state - were pushing for a theocratic constitution.

Make no mistake about it, Scalia is the most Activist Judge of all. He's no strict constructionist.

Mitch:

Sandra Day OConnor's concurring opinion in Lawrence used a 14th amendment "equal protection" argument. She held that Texas's sodomy law was unconstitutional because it only applied to gays, and didn't also apply to straights. If the court had all ruled with OConnor, the Texas and Arkinsas laws would have been overturned, while the Minnesota law would stay on the books - being an equal opportunity sodomy law.

If Scalia's opinion had been short and to the point, as Thomas's was, I'd have no problem with it. Scalia's disclaimer that he has nothing against gays that you quote, is disputed by the rest of his opinion, where he makes it evident that he clearly does have something against gays.

What's totally ironic is that after the Lawrence Ruling, the constitutional remedy for those upset with the decision would have been a Federal No-Sodomy Amendment (FNA). It's revealing that noone wanted to go there, and instead changed the subject to gay marriage (explicitly excluded from the majority ruling in this case).

Also rather ironic: Clinton when Governor of Arkinsas supported the same sex sodomy ban there, and Bush as Governor in Texas campaigned on the issue of maintaining the Texas same sex sodomy ban when he ran against Ann Richards.

Eva, perhaps nobody pushed for a federal anti-sodomy amendment to the Constitution because not a lot of people think it should be illegal. They just think that it's up the states to decide, as the Constitution simply does not address the issue. That's all there is to it; I'd appreciate it if you would please explain why, in your view, the Constitution DOES prohibit anti-sodomy laws.

Nick, I've always pushed for legislative repeal of the sodomy law. This was even when other gay organizations were using the strategy of having the MCLU file suit, and having the courts deal with it.

In the Lawrence case, I tend to agree with O'Connor's concurring opinion that the Texas law was unconstitutional on equal protection grounds - rather than the broader privacy argument. I have no problem with Thomas's more sensible disent in Lawrence.

Theocrats such as Dobson, Falwell, Bachmann et al ARE upset with making sodomy legal by the overturning of the sodomy laws either through legislative repeal OR by court ruling. The local anti-gay state organization the Minnesota Family Council (then the Berean League) got started to prevent legislative repeal of the sodomy laws. The MFC has been successful in that - the Minnesota Sodomy Law is overturned by the courts, but still sits on the books.

Again Nick - if the SCOTUS Lawrence decision was so outrageous and activist, the proper remedy is a constitutional amendment (akin to the flag burning amendment to address SCOTUS decisions on flag burning). But that's not what is being pushed.

I'm curious what those who want to overturn all privacy precidents in the SCOTUS think about the Griswold decision - which was a decision that overturned Connecticut's ban on the sale of contraceptives to married couples.

Eva, I see your point about a constitutional amendment regarding sodomy. In some sense, you are correct. That said, constitutional amendments need more than legal propriety to be enacted. There needs to be a political will. For sodomy bans, there just isn't a political will anymore. Thus, no amendment.

As for Griswold, I think it was a terrible decision. I strongly disagree with laws that ban birth control, but that does not make them unconstitutional. I might well be in favor of a constitutional amendment that would guarantee some aspects of privacy other than those arguably found in the Fourth Amendment, but only if that right was limited (i.e. does not extend to abortion, which to me does not necessarily follow).

Thus, my opinion on Griswold is that it was a terrible decision, striking down a law because of a right that does not exist, though it properly could via amendment.

Cut through all of Eva's crap, and it all means the same thing: "We can't get the people to support us at the polls, so we Gayofascists will find imperial justices to do the hard work for us". And of course "we'll tell you 2-2=4". Scalia is constructionist, except where constructionist does not equal "supports the gay agenda at any cost", I guess.

Martin Luther King won his court victories, but he also led a movement that convinced Congress and a lot of state governments to create a legal framework the legitimate way. By writing bills and winning votes and passing laws.

The gayofascists can't win at the polls. They're going to do whatever they can to make sure they get their way in court.

First there was Islam-o-fascist.

Now Gay-o-fascist?

Orwell was right.

Mitch: "Watch for the left and the mainstream media to pull out all the stops to portray any sign of religious faith, judicial restraint or constructionism as "extreme":"

Eva: "Also, my argument was not for or against strict constructionism - but rather that Antonin Scalia, despite his claims - is no strict constructionist. His arguments that government derives it's legitimacy from God (citing the bible and the divine right of kings) rather than "we the people" citing the US constitution, clearly point out that he does not follow the constitution on that one. I posted Scalia's own words earlier in the thread."

Mitch, you're prescient as always.

Any ask who the original abortive mother from Roe v Wade wants on the bench in relation to Roe v Wade? Perhaps rather than shanghaiing the issue, those most interested in preserving a supposedly pro Roe v Wade ruling ought to let the woman speak her own mind on the matter so closely tied to her?

Further, what, if any, effect do people think there would be if a judge hostile to Roe v Wade on legal or moral grounds was elevated, and subsequently managed to overturn the decision?

In side nine weeks there would be relatively similar laws legislated on the books of two-thirds of the states of the union. Abortion in the first trimester, probably the second too, would be protected by law in most states.

The other might take longer.

If you don't like it in your state, feel free to move to another. It's called the American Experiment.

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