Sandra Day O'connor

John Roberts sounds like he is very qualified. It will be interesting to see how the nomination goes.

I'm sure he didn't have much notice to get the White House and all, but I hope that someone reminds him to get a haircut before the nomination hearings!

Well, if Pres. Bush is saying it, then it must be true!

:gossip:

I am also seriously distressed about W appointing anyone --- let alone possibly 2 SCJ's.

While it sounds like Roberts has an impressive CV - doesn't it seem a little scary that he's only been on the bench for 2 years? That doesn't give much of a record to go on. Plus, if Bush isn't appointing based on the abortion issue, isn't it a coinky-dink that Robert's wife once served on the board of a Pro-Life group???

Anything Bush does just frightens me.

That doesn't give much of a record to go on.

I think that is part of the appeal from Bush's perspective. He has a lot of legal experience though -- I think he has argued upward of 30 cases (maybe more?) before the Supreme Court and clerked for Rehnquist.

[DCJenn]

Whooo Boy was it exciting times on the Hill today. We had a demonstration at the Supreme Court and a demonstration at HHS. OF course it was the demonstration at HHS that pissed me off the most because it was all about mercury in shots and how it causes autism. I seriously needed to brace myself and keep on walking through the throngs. (I wanted ask which innoculations their kids had recieved that had mercury in them...)

But, nonetheless, the suits were all out in force today too. and it was 90+.

It's going to be interesting at Stroller Strides the next few months! (we walk a circuit around the Capitol.)

Jenn

Angie -- Are you thinking of the commerce clause? I think that is usually what is used in regard to federal gov't regulating the environment and business. As you said, everyone is interested in Robert's opinions on abortion but this might be just as interesting a question!

[DCJenn]

Apparently, he has been on both sides of the environment issue- so it'll be interesting to see how he answers those questions. and of course, I'm curious about his take on the ADA and other disability issues.

Jenn

[Sheherezade]

Here is a tidbit from the web that starts to get in to the problem I'm considering. I don't honestly know the legal nitty-gritty; I just remember being stunned that there were these big issues looming that *weren't* abortion/fetal tissue/right to die stuff. The news tends to focus on the technology and medicine vs. ethics and religion angle when discussing the court. Here's my excerpt from something on the AAPD site. It is regarding a nominee for the court of appeals. I went to the site because I knew the ADA was one of many regulatory acts that have been discussed as "threatened".

What makes Sutton's nomination so frightening is the profound shift it reflects in the Supreme Court about the relative powers between the federal government and state governments and between the Supreme Court and Congress -- a shift embraced by the Bush Administration. For over half a century, since the New Deal era ushered in a period of expanded federal responsibility for the welfare of ordinary Americans, the Supreme Court has generally deferred to Congress's judgment about what type of legislation was necessary to regulate commerce and ensure equal protection of the laws. But since the mid-1990s, adopting arguments that Sutton and others have been advancing before the Supreme Court, the Court has gradually undermined Congress's power.

Congress passed the ADA because it recognized a major problem and carefully considered the best ways to fix that problem. Instead of viewing Congress as a legislature entitled to deference, however, the Supreme Court has adopted Sutton's argument that Congress should be held to the Supreme Court's standard for reviewing legislative action and finding laws unconstitutional. What this means, basically, is that Congress cannot act to enforce the Constitution's guarantee of equal protection (as it did with the ADA) unless the Supreme Court would itself be able to determine that the problem in question is a constitutional violation. In other words, Congress has to meet the standard of a court that defers to legislatures rather than be entitled to the deference legislatures expect from courts. This marks a dramatic shift in Supreme Court interpretation and one that reduces the power of Congress relative both to the states (the Supreme Court is still largely deferential to state legislatures) and to the Supreme Court.

If you're comfortable with your state's policies and the interpretations of the current Supreme Court, this "federalism revolution" may not alarm you. But if you see problems around you that could benefit from federal congressional initiative, take note that Congress's power to act on your behalf is being whittled away.

That's the best I can do with quick web research. I did hear today that the decision in 1992 on R v W expressed in the majority opinion that the R v W decision had been around so long that it couldn't be reversed without damaging public consequences. That made me wonder if the court does take into consideration public ramifications of reversing earlier decisions. If so, I can't see them sweeping out ALL regulatory law. It is something like 60% of all law! That would be chaos.

I'll look for some more sources on this topic. Maybe libertarian websites? I feel as though economic and corporate interests are more in play these days than we see in the press. All this argument about abortion blots out other issues.

[Rapunzel]

Ahhh, now with a bit more sleep I can start grasping what you were saying. Although, I'm still going to mull it over more after a good nap :@

There are two books on my shelf that I just pulled and intend to reread:

Contemporary American Federalism: The Growth of National Power by Joseph Zimmerman and The State of the States a collection of essays edited by Carl Van Horn. Both are excellent in their analysis of the many relationships that come into play in the Federal/State power struggle.

Now, touching on the commerce clause and regulation by the U.S. Supreme Court/Congress vs. state legislatures: What comes to mind for me is the No Child Left Behind policies implemented recently by Bush (and, which I have a personal dislike of due to the federal government waaaay overstepping boundaries of the states' authority on the issue). I started thinking of the creation of the EPA and environmental rulings/legislation on a federal level and I see some big parallels between that and NCLB. If one opposes NCLB due to it's clumsy beauracratic encroachment on state's authority one must seriously step back and consider the same effects that have resulted from the creation of the EPA and current federal environmental statues doing the same. Ultimately both cost the states money and result in a lot of useless beauracratic oversight in addition to the much larger Constitutional issue of chipping away at state sovereignty.

Anyway, when confronted in court things like environemental legislation are argued as necessary under the commerce clause by the US federal courts and unConstitutional according to the 10th ammendment by the states.

There's actually an interesting case I'll need to look up again that involved this encroachment of federal powers upon state powers involving Reagan using the state national guards to train in Nicaragua during the whole Contra thing in the 80's. I'll look it up for the specifics....

Alright - that's enough thinking for a few hours. I'm kind of annoyed with myself because I can usually think about something and go off in several linear directions simultaneously - like following a road in several different directions at once. But, right now I can only go down one road in my mind, and, unfortunately, it's full of potholes and I keep getting distracted and running off into the ditch on the side of the road....

Jennifer

[Rapunzel]

I did hear today that the decision in 1992 on R v W expressed in the majority opinion that the R v W decision had been around so long that it couldn't be reversed without damaging public consequences. That made me wonder if the court does take into consideration public ramifications of reversing earlier decisions.

Well, that may be the case. But, it doesn't make it ethical or correct. Afterall, with that reasoning (whoever's reasoning it was) we'd still have slavery as legal according to prior Supreme Court decisions. Supreme Courts really shouldn't be involved in major cultural change - they are to strictly interpret the federal government's role according to the Constitution. It's up to the individual states to decide abortion regulation. This particular mess began with the Medicare reimbursements btw. Another good reason to get rid of federal welfare and leave that up to the states (another infringement on state's sovereignity).

If so, I can't see them sweeping out ALL regulatory law. It is something like 60% of all law! That would be chaos.

By chaos do you mean that the states would have to work fast to implement their own legislation to regulate these various things? That's not necessarily a bad thing. I would argue that many things the federal government attempts to regulate are outside of its Constitutional right or obligation and it SHOULD be left up to the individual states to maintain and enforce their own regulations. As it is we have federal mandating and state enforcement which means the states PAY for these regulations with little recourse for influencing and changing these regulations beyond using the FEDERAL courts which almost always side with the federal government (big surprise).


I agree that abortion is just a side issue.

Jennifer

I think that is part of the appeal from Bush's perspective. He has a lot of legal experience though -- I think he has argued upward of 30 cases (maybe more?) before the Supreme Court and clerked for Rehnquist.

Yeah, I knew he had volumes (no pun intended) of legal experience (he was also something like Asst. Solicitor General during George H.W.'s term), but had always assumed that SCJ's were long-time judges who had records to review, stand behind, etc.

Again - W. just scares me, and with evil Karl pulling the strings I trust nothing.

[Rapunzel]

"W" doesn't scare me because I see him as just another cog in the system. What scares me are the changes made to that system (primarily by the judiciary) that propel us towards oligarchy. That is a true threat to democracy. Our government is set up to absorb the short-term effects that presidents make (although we're still reeling in a big way from all of FDR's insane mistakes - and, in many ways, from Wilson's) so I worry less about a sitting president that I can't stand (last one was Clinton - well, really the ONLY one was Clinton) and more about how our Constitution is being altered.

Jennifer

[Sheherezade]

"W" doesn't scare me because I see him as just another cog in the system.

I agree. That's what scares me!! (Not about W., about *everyone* in politics.) I don't feel like I know who's in charge, who's pulling the strings, and I certainly don't get to vote for them. For me, this makes everyone in politics suspect. I don't like being this cynical, but I certainly don't trust that what I see and hear is the *truth* on any side.

I was also surprised by the 1992 abortion decision information. I didn't realize that it was partially based on cultural standards. (At least, that was mentioned in the brief.) I agree that the role of the court has gone far afield. I wonder if it isn't partially because the legislature seems so lost these days; perhaps we turn to the courts to make "real" decisions, even if that isn't their place.

I can see how state power would be workable, but a sudden transition would be chaotic. It would have to be phased in gradually. The entire tax system would have to change as well to provide the funds to the states. Correct? It is hard for me to envision a world without federal regulation. My gut feeling is that in our capitalist culture, corporations would run amuck. I don't have much faith in people to stop buying from X company because they are spilling toxins into the groundwater, racially discriminate or don't provide access to the handicapped - particularly now that corporations are these giant interconnected masses.l It is hard to tell who you are "supporting" with the dollars you spend. I also think it might effect global relations. Clearly, we aren't negotiating Kyoto if we don't have the federal power to regulate our own corporations.

I don't have a new baby to blame for my muddled thoughts. I take full responsibility!!