Two Supreme Court rulings signal the impact of President Bush’s two new justices. First this:
New Supreme Court Justice Samuel Alito broke a tie Monday to rule that Kansas' death penalty law is constitutional.
By a 5-to-4 vote, the justices said the Kansas Supreme Court incorrectly interpreted the Eighth Amendment's protection against cruel and unusual punishment to strike down the state's death penalty statute.
The dissenters, the four liberal members of the high court, bitterly complained about the decision.
The Supreme Court ruled Monday that Vermont's limits on contributions and spending in political campaigns are too restrictive and improperly hinder the ability of candidates to raise money and speak to voters.
In a fractured set of opinions, justices said they were not sweeping aside 30 years of election finance precedent but rather finding only that Vermont's law - the strictest in the nation - sets limits that unconstitutionally hamstring candidates.
The majority took issue with Vermont legislators for "constraining speech" by telling candidates and voters how much campaigning was enough.
President Bush's two appointees to the court - Chief Justice John Roberts and Justice Samuel Alito - sided with the majority in overturning Vermont's law.
Based on this report, it is Jeffords and the 24 Democrats who voted to filibuster Alito that are outside the mainstream, and not Alito:
Supreme Court Justice Samuel Alito split with the court's conservatives in a death penalty case on his first day on the court.
Handling his first case, Alito sided with five other justices Wednesday evening in refusing to allow Missouri to execute inmate Michael Taylor.
Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas supported lifting an execution stay issued by an appeals court, but Alito sided with the majority in turning down Missouri's last-minute request to allow a midnight execution.
The Democrat’s filibuster attempt on Samuel Alito vote failed:
Senate Democrats led by the party's former presidential nominee John Kerry failed as expected Monday to block Judge Samuel Alito's nomination to the Supreme Court, exposing deep divisions within their party and prompting warnings from Republicans that the maneuver would come back to haunt a Democratic president.
Perhaps it was the Daschle factor:
Three Senate Democrats on the ballot this year, Kent Conrad of North Dakota, Robert Byrd of West Virginia and Ben Nelson of Nebraska, voted to cut off debate and have announced their support for Alito. Democratic Sen Tim Johnson of South Dakota, who does not face re-election but hails from a state where Republican John Thune campaigned on judicial nominations to unseat former Democratic leader Tom Daschle, also voted to cut off debate and announced his backing of Alito.
Angered by a U.S. Supreme Court ruling that sided with a Connecticut city that wanted to seize homes for economic development, a group of activists is trying to get one of the justices who voted for the decision evicted from his own home.
The group, led by a California man, wants Justice David Souter's home seized for the purpose of building an inn called "Lost Liberty Hotel."
They submitted enough petition signatures — only 25 were needed — to bring the matter before voters in March. This weekend, they're descending on Souter's hometown, the central New Hampshire town of Weare, population 8,500, to rally for support.
"This is in the tradition of the Boston Tea Party and the Pine Tree Riot," organizer Logan Darrow Clements said, referring to the riot that took place during the winter of 1771-1772, when colonists in Weare beat up officials appointed by King George III who fined them for logging white pines without approval.
"All we're trying to do is put an end to eminent domain abuse," Clements said, by having those who advocate or facilitate it "live under it, so they understand why it needs to end."
A bill introduced by Rep. Ron Paul, R-Texas, promises to return to the states those issues federal courts, by their decisions, "have wrested from state and local governments."
H.R. 4379, the We the People Act, would remove from federal courts' jurisdiction any case involving religious liberty; sexual practices, orientation or reproduction; and same-sex marriage.
Paul's bill, most recently introduced Nov. 17, notes:
"Article I, section 8 and article 3, section 1 of the Constitution of the United States give Congress the power to establish and limit the jurisdiction of the lower Federal courts," and "Article III, section 2 of the Constitution of the United States gives Congress the power to make 'such exceptions, and under such regulations' as Congress finds necessary to Supreme Court jurisdiction."
To clarify jurisdictional issues, the bill states federal courts, including the U.S. Supreme Court, are not prevented from "determining the constitutionality of any Federal statute or administrative rule or procedure in considering any case arising under the Constitution of the United States."
To add to the impact of the legislation, Paul included a provision saying no past federal ruling dealing with the three prohibited areas should be considered as "binding precedent" on any state court. Also, the congressman's bill stipulates that any judge violating the law shall be impeached by Congress or removed by the president.
I found this Henry Marc Holzer column that is not all that long, but packed full of interesting analysis of the Supreme Court. Holzer first pointed out that Justice Kennedy could take over as the swing vote:
Judge, now Chief Justice, Roberts dazzled the Senate Judiciary Committee and was easily confirmed.
Judge Alito will similarly impress the Committee, albeit in a more understated manner, and he too will be confirmed.
Their addition to the Court now makes for a solid four-justice conservative bloc: Scalia, Thomas, Roberts, and Alito.
The solid liberal bloc consists of Justices Stevens, Souter, Ginsburg, and Breyer.
That leaves Justice Anthony Kennedy—sometimes a fellow traveler of the conservatives, and sometimes of the liberals—as the swing vote.
Holzer then explains how the left implemented their judicial tyranny:
The problem for the Supreme Court’s new conservative bloc is that from at least the beginning of the New Deal in the 1930s, liberal justices in decision after decision—creating precedent after precedent—judicialized their personal policy preferences, ignoring the Founders’ intent and subverting the Constitution.
Primarily, there have been two vehicles that made the subversion possible: the Interstate Commerce Clause, found in the Constitution’s Article I, Section 8, and the Fourteenth Amendment’s "Incorporation Doctrine," found nowhere in the Constitution.
The Commerce Clause cases shifted the center of political gravity from each of the states to the federal government—essentially to Congress and its bastard offspring, the administrative agencies—exalting federal power at the expense of the intended beneficiaries of the Tenth Amendment, the states and their citizens. It also widened the chasm of accountability of government. This was a betrayal of the federalism principle, which bespeaks of shared power between the federal government and the states and their citizens.
The Incorporation Doctrine—making applicable to state action via the Due Process Clause of the Fourteenth Amendment virtually every provision of the federal Bill of Rights—shifted power from state legislatures to federal courts (especially to the Supreme Court of the United States).
Holzer then explains what the conservative judges must do to return the Constitution to the people:
Relying on its power to regulate "interstate" "commerce," the Supreme Court has upheld Congress when it controlled the price of wheat grown at home for personal consumption. Similarly, the Court has upheld many other exercises of Congressional power when its statutes neither affected interstate activity nor in any way involved commerce. In doing so, Supreme Court liberals "grew" the federal government, while simultaneously shrinking the role of the states, despite the clear dictate of the Tenth Amendment that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The Fourteenth Amendment provides, in part, that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law . . . ." In time, the Court defined "due process" to be synonymous with virtually every provision of the Bill of Rights. In other words, just as "Congress shall make no law respecting an establishment of religion" because of the First Amendment, California, according to the Supreme Court, can make "no law respecting an establishment of religion" because of the Due Process Clause of the Fourteenth Amendment.
This "incorporation" of the Bill of Rights against the states via the Fourteenth Amendment’s Due Process (and Equal Protection) Clause is responsible for the creation of scores of ersatz "rights" and the subversion of the Constitution as originally conceived and written.
If the new Supreme Court’s near-conservative majority is to rescue the Constitution, they must begin with proper interpretations of the Commerce Clause and they must scale back the freewheeling Fourteenth Amendment decisions that have virtually rewritten our Fundamental Charter.
SHUMER: It's sad that the president felt he had to pick a nominee likely to divide America instead of choosing a nominee in the mold of Sandra Day O'Connor, who would unify us.
RUSH: Stop the tape a second. Senator, let me tell you what's going to happen. He is going to unify America, and you're going to be on the losing end of it. This is not going to divide America whatsoever, and you know it, and it's something you're deathly afraid of. You want to simply continue to define yourself and your far leftist fringe buddies as the mainstream, but you couldn't be more out of the mainstream if you had charted a course to be out of the mainstream. This is all posturing. It is Schumer who is genuinely sad that he wasn't able to roll the president, because what's happened here, folks, the president has chosen to pick a fight with his real enemies this time. He has chosen to pick a fight with the left. And he's really not even choosing to pick a fight. He's just choosing who he thinks would be an excellent nominee for the court. Here's the rest of Senator Schumer.
SHUMER: -- needs unity now. America needs reaching out to one another more than ever.
SHUMER: But the president seems to want to hunker down in his bunker and is more concerned about smoothing the ruffled feathers of the extreme wing of his party than about governing all of America and changing history for the better.
RUSH: Extreme wing of his party? How about Ruth Buzzy Ginsburg? Extreme wing of his party. The president didn't want an O'Connor. It's you people on the left who live in this mirage that there is somehow some swing vote on the court to make sure you don't lose every time that wants an O'Connor. It's not the president. If there was supposed to be another O'Connor, Clinton should have nominated another O'Connor, if O'Connor is the baseline, is the benchmark, then let Clinton have nominated -- he didn't, he nominated an ACLU member, Ruth Buzzy Ginsburg. And here you have Schumer dumping all over Alito, but then says that he will scrutinize. He says he can't be a fair judge. He's been a federal judge for 15 years. He's been on the federal circuit for 15 years, 100 to nothing unanimous votes twice. You know, and Chuck's want even the ranking member of the judiciary committee. That would be Leaky Leahy, Patrick the Senator Depends. And he's had some things to say, too, but he's being outflanked here by Chuck Schumer. Like I'm saying, folks, we need to be happy that Schumer is saying what he is saying. We want people like Schumer out front every day just as we want this.
Mount Blogmore has a post regarding the South Dakota blogosphere's reaction to the Alito pick. Here is a great excerpt from Jon Schaff at SDP:
Here is Ed Whelan on Alito. Whelan convincingly argues that Alito is even more qualified for the Court than was Chief Justice Roberts. But we all know qualifications don't matter to the Democrats. What matter to them is that a Justice decide based on left-wing policy preferences. Alito is more qualified than Ruth Bader Ginsberg was and he is no more conservative than she is liberal. She was confirmed 96-3. I'll be surprised if Alito gets any Democratic votes in committee and he'll get no more than five on the floor. Indeed, the Democrats seem likely to filibuster his confirmation vote. Alito will expose how dishonest the Democratic Party is when it talks about the courts. They just want another vehicle to impose their left-wing social agenda, since they rarely get that agenda endorsed by the public.
Here is Justice Breyer once again talking about foreign law, and this goes right to the point that I was trying to make to Trudy and I have for several weeks, months, if you will, on this program about what's wrong with certain kind of judges and why we need others. Listen to Breyer, the first of a few bites here.
BREYER: Nations all over the world have followed our lead or the lead of other places, adopted constitutions that basically assure democracy, that are protective of human rights, and that try to do so in part by relying upon independent judiciaries. Well, if that is the world, we can learning something perhaps by looking at how they, in a few cases anyway, that raise comparable problems, interpret comparable documents, comparable provisions, protective let's say of human liberty. I'm not saying we follow them. We might learn what not to do. But let's read them. After all, they're written by judges.
RUSH: So what! That's the point. So they're written by judges and that makes them infallible? Look, you can read all you want, Justice Breyer. You can read and inform yourself all you want about what other nations are doing, but unless it's in our Constitution it is irrelevant when you are deciding constitutional law that comes before you in the form of cases at the Supreme Court. It's just that simple, but if you're going to have a personal view -- like Justice Breyer obviously does, a personal view -- that what they're doing around the world is something that we can learn from, that may be, independently speaking, but if it's not in our Constitution, it ought not be in anybody's reasoning or anybody's decision-making when it comes to deciding law in cases that come before the Supreme Court. What Justice Breyer is essentially saying here is that there are certain things going on in this country that he disagrees with, and he may find a better way of handling them in foreign countries, and since he's a judge, and since other judges where writing these things in other countries, why, it would be silly not to incorporate them! That is 180 degrees out of phase, and it is precisely why I have this profound concern of the direction the court's heading, and there are people, ladies and gentlemen, who have written and who are on benches, on courts deciding cases now who have undergone the scrutiny and the attempts to have their minds changed (a-hem) by public pressure, political pressure, and they have stood fast, they have remained solid in their beliefs on the Constitution.
So those people can be identified, and there's no guesswork about it -- and I guarantee you, if you find this kind of judge, you're going to get the right thing on Roe vs. Wade, but you're also going to get the right thing on all kinds of other cases that come before it, too. This business... Do you know that foreign law was used to overturn 19 state laws on sodomy? It was foreign law. Justice Kennedy cited it. Well, what good is any law in any state if nine lawyers at the Supreme Court can find what they're doing elsewhere around the world and say, "You states are so far behind the curve. You don't know what you're doing. They're way ahead of us, say, in Belgium. So we're going to going to incorporate Belgium into our decision on this case." Sorry. If it's not in the Constitution, you can't do that, and this started with Roe vs. Wade -- and this is the big argument that people have. Once you start finding things that aren't there, and pretending that they are, or inserting them yourself as a judge, the Constitution becomes meaningless, folks.
All this rigmarole and hoity-toity talk about human rights and civil rights and democracy? All of it would be meaningless. The only way it would have meaning is if a majority of judges agreed on some civil right or human right or what have you, or if they want to create a new one that's not in the Constitution. That's not how these things happen. The laws are not written by judges. They're not supposed to be. The laws are written by elected representatives in Congress and the state legislatures. If they want to go scrutinize foreign law, if they want to make a bill out of it and they can convince enough members of Congress as elected officials that we send there to do so, and then get the president to sign it, well, then fine. But this is not how this is supposed to happen, and Breyer knows, I think, he's under the gun. He won't stop talking this. He's got a book out about it, now. This is an argument going on within the court itself. You've got Scalia and Thomas, and you had Rehnquist, who are dead-set against all of this. We don't know where Harriet Miers comes down on this. We might find out in the hearings, but we don't know now. But there are plenty of other people out there whose opinion on this we do know.
You go back to '81 when Reagan appointed Sandra Day O'Connor. When she was appointed, there was a lot of opposition to Sandra Day O'Connor, and over the course of her terms as a Supreme Court justice, there were a lot of people that took shots at her, but if you listen to the left now, why, she was a model! "A pragmatist. Centrist! We need to get someone like her." That's because she was an activist. They like her. She was an activist and they want activist judges. You've gotta get rid of this new terminology of "conservative" and "liberal" to describe judges. It's activist versus originalist, and that's what it's come down to, and the libs don't want an originalist because they don't want the original intent of the Constitution "interpreted." They want it to be bent and shaped and flaked and formed; they want it to be able to grow to accommodate whatever depravity they want to define as "normalcy" and whatever increasing government power they can articulate and bring about. They want the court backing all that up and of course the original intent of the Founders was to limit the power of the federal government; so they had no interest in originalists, and originalists is going to be called a right-wing conservative. They love O'Connor. They hated her but now they love her -- and Gonzales? If you watched any of the Sunday shows isn't it amazing, folks, to see how the liberals in the Democratic Party and the media have come together to embrace Alberto Gonzales?