The Musings of

Something full of magic, religion, bullsh*t.

Wednesday, September 21, 2005

Madness in great ones must not unwatched go.

I meant to write about this the other day, but was just too busy. Hey, what do you want? I'm not the New York Times.

I didn't hear much of the Roberts confirmation hearings, mostly because I kept yelling at the radio when I was listening and realized I was going to have a wreck if I heard Ted Kennedy or Arlen Specter say one more inane thing. I did, however, spot a couple of things in the few minutes I did listen that made me want to slap Arlen Specter even more than usual.

  1. Sen. Specter stated that the Morrison case dealt with three VMI (Virginia Military Institute) students raping a girl. Although I'm sure Sen. Specter would like to believe those allegedly responsible came from that one-time all-male bastion, they were actually Virginia Tech students. Everyone knows that VMI students prefer to rape Duke's mascot.

  2. Specter made the following statement concerning a case where the Supreme Court held that state public entities could not be sued for money damages under Title II of the ADA:
And in the Garrett case, the Supreme Court of the United States used a doctrine which had been in vogue only since 1997 in the Boerne case. You and I discussed this in my office. They came up with the standard of what is congruent and proportionate; congruence and proportionality.

I was interested in your statement, when we talked informally, that you didn't find those in the Fourteenth Amendment. I didn't either.

Now they plucked congruence and proportionately right out of thin air. And when Scalia dissented, he said that the congruence and proportionality test was a, quote, flabby test, which is a, quote, invitation to judicial arbitrariness by policy-driven decision- making.

Now, you said yesterday that you did not think that there was judicial activism when the court overruled an act of Congress. Isn't this congruence and proportionality test, which comes out of thin air, a classic example of judicial activism where the view of congruence -- hard to find a definition for congruence; proportionality, hard to find a definition for proportionality -- I've searched and can't find any. Isn't that the very essence of what is in the eye of the beholder, where the court take carte blanche to declare acts of Congress unconstitutional?
Compare this bold statement on judicial activism and words not in the Constitution to one made last year by Andrew C. McCarthy in National Review:
The Constitution says not a word about abortion. Though the practice has existed for centuries, we had somehow lived through 186 years of constitutional governance without its being noticed that the document guaranteed a right to terminate pregnancies. This latent discovery in 1973 was preeminently about lawyers and words. In this instance, it was about the fecund potential of the Fourteenth Amendment's promise of liberty, glossed by a developing line of cases incubating a parallel right to privacy -- a similarly malleable concept, different from liberty in that lawyers had had to derive it from Constitution's glowing penumbra, the term being absent from the actual document.

Practically speaking, in the adroit hands of the nation's best lawyers, terms such as "liberty" and "privacy" are boundless -- and, lest we forget, the Constitution, to say nothing of its many penumbras, ellipses and lacunae, contains many such words. The upshot is this: The more those words can be stretched, the more forbidding a fortress they become around life's disputes, and the less remains for the American people to determine for themselves. Instead of the masters of our fate, we become the subjects of those empowered to say what the words mean: the judges.
In case you didn't see this coming, the second quote was taken from an article about Sen. Specter's support of abortion. This is the two-faced joker the GOP's allowed to lead the charge in confirming our judges. Great.

When Specter got done with his little spiel about the danger of vague and unfounded standards, I was just holding my breath waiting for Roberts to go, "You know, Senator, that is a persuasive argument for repealing Roe v. Wade" and watch Specter choke on his wattle. I guess I have to settle for Roberts little crack that Specter's worship of stare decisis would mean that Dred Scott would still be the law of land.

P.S. - Note that Scalia is consistent in his logic on both the above issues.
Centinel 9:17 AM #


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