In an Associated Press article May, 15, 2010 Justice Anthony Kennedy said " the Senate should not try to determine how Supreme Court nominee Elena Kagan would rule on specific issues but should focus broadly on whether she has the qualities of a good judge." by Bentree
(libertarian)
Thursday, May 20, 2010
In an Associated Press article May, 15, 2010 Justice Anthony Kennedy was quoted as saying " the Senate should not try to determine how Supreme Court nominee Elena Kagan would rule on specific issues but should focus broadly on whether she has the qualities of a good judge."
Why hamstring the process? After all, is it not their sworn duty to protect and defend the Constitution? Is it not the duty of the Senate to dwell into and determine the psychological and ideological make up of the nominee. A nominee's belief in "Constitutional Principals" is certainly material to a decision of whether or not to confirm.
The nominee's history should help define whether or not their Judicial temperament conforms with established Constitutional principals . Discovery and questions, questions and discovery. Does the Senate need the assistance of a sitting Supreme Court Justice to determine the suitability of a Supreme Court nominee?
In that same article the point was made by the writer that "the Republicans didn't like Obama saying that Sotomayor would bring empathy to the bench. They described this empathy as "personal whims" and "prejudices"". What is empathy if not "whimsically arbitrary", you may have empathy for one person or belief and not another based on arbitrary personal beliefs, not necessarily good nor bad, proper or improper, just arbitrary by nature and conferred subjectively, again according to arbitrary personal principals. Empathy has its place in the jury box, responsibility belongs on the bench, Supreme or otherwise.
Again Justice Kennedy said, "You certainly can't formulate principals without being aware of where those principals will take you, what those consequences will be". Will somebody please explain to me why a Supreme Court justice has to formulate new Constitutional principals? Are they not judges as opposed to legislators? They struggle enough with the existing Constitutional Principles. The duty of the Court is too conform to established principals, elucidated intent, and the laws as constructed by the Founders and Framers and affirmed by the Citizens. The Supreme Court must take care that Laws conform to Constitutional principals not the other way around.
Is it not important that Supreme Court Justices at the very least agree that a responsible law abiding citizen has the right to due process? The right to keep and bear arms? The right of free speech, free association, religion, the right to private property? Do they believe that in totality our enumerated right's are non-negotiable? Without equivocation are these individual birth rights, forfeited only by way of Constitutional governmental due process or as the consequence of unlawful actions on the part of the individual, as long as the laws in question are by definition Constitutionally sound? Do they believe Americans have the right to succeed or the right to success? Do they believe that empathy has a place in deciding legal principals? In they're view does social justice equate to equal justice under the Constitution ? Would it be fair to say that we move from equal justice to social justice with the inclusion of empathy and ideology when weighing Constitutional Principals. Do you believe that the Constitution and the Bill of Right are subject to nullification and or alteration to fit events or the political whims of the majority? Wouldn't the answer to these questions be illustrative of Constitutional judicial temperament?
Justice Kennedy also stated that "Law is a human exorcise and if it ceases to be that it does not deserve the name law" ,Humanistic "Prattle". Of course it is a human exorcise, it is an agreement ,a covenant, a contract, it binds parties defining responsibilities one to and between one another. It is enumerated and codified, the stated purpose of our Constitution and Bill of Rights is to mitigate tyranny and protect us individually from capricious acts by tyrants. It is a set of principals that bind us together, individuals into a mutually beneficial relationship with a foundation in law. What individuals must bring to this Citizen contract is responsibility and respect for the rights of others and the Constitution. The mere act of introducing a new set of extra-constitutional arbitrarily arrived upon principals undermines the Fundamentals of our Union, unless of course they are constructed and agreed too by the citizens according to the Constitution. In other words don't do us any favors, we should be allowed to screw it up or not as "We" choose. Not be dictated to by so called intellectuals or groups "who know whats best for us".
Justice Kennedy also said; "An activist court is a court that makes a decision you don't like" So by implication if you disagree with a courts decision you are apparently petty and disingenuous, unable to cope with reality. This is a tough one to comment on, it seems to me he feels about the same as I do about people who are in disagreement with me. Seriously, what decision based on sound fundamental constitutional principals could be construed as activist except by the wrong headed disingenuous amongst us?
Is this search for new fundamental principals, I added the word "fundamental "because that is what principals are, the reason Justice Kennedy is considered a swing vote as opposed to and activist liberal or Constitutional conservative? Just maybe, fundamental principals elude him.
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Unfortunately, if strict neutrality with no ideology was possible we wouldn't have all these fights about conservatives vs liberals on the Court. The constitution does leave a little room for interpretation such as in the Second Amendment. Is it really clear whether the right to bear arms applies only to militias or to the individual? I think the case could be argued either way. But interpretation of the constitution is very different than legislating. If you ask a Supreme Court Candidate which way they would rule on certain issues, if the constitution were that cut and dried, all candidates would have to answer the same way.
Also, as fair and impartial as most judges want to be, I think that some of their own belief systems must factor in as they are human after all.
Posted By: sarasile
Date: May 21, 2010 08:55:43 AM
The 2nd Amendment clearly confers an idividual right, as has been recently affirmed by the US Sopreme Court in the Heller decision. The opening, or prefatory clause, the one that mentions the necessity of militias to the security of a free state, is only explanatory and justification for the operative clause "... the right of the people to keep and bear arms shall not be infringed." This is simply the proper application of the rules of the english language. Also, please note that it does not say, as do several other amendments, that "Congress shall make no law" but plainly states that this individual right "... shall not be infringed." What part of "shall not be infringed." don't you understand?
Where would we be but for one itsi bitsi comma? It's the little things and yes we are a special, unique country. A comma has protected the liberty of not only our nation but many. Believe it or not.
