Balkinization  

Thursday, June 06, 2013

Constitutional Moments

Gerard N. Magliocca

Without getting into the allegations now being made against Judge Edith Jones (of the Fifth Circuit), a pretty good argument can be made that George H.W. Bush's decision to nominate David Souter instead of her in 1990 was the most important constitutional action of the last two decades.  According to media accounts, Souter and Jones were the two finalists, and the President made a list of "pros and cons" on a pad for each candidate before going with Souter.  Imagine how different the Supreme Court's doctrine would look now if Justice Jones had been nominated and confirmed.

Comments:

I'm more interested in whether George H. W. had a "pros and cons" list for filling the Court's vacancy of Justice Thurgood Marshall's "seat" in 1991. Perhaps George H. W.'s "pros and cons" list for 1991 took into consideration his selection of Justice Souter year earlier.
 

As Souter and Kennedy demonstrated, it is hard to predict where a "conservative" justice will "evolve" with the absolute power of the modern Supreme Court.
 

Love to see that list.

Souter to me seems a good B41 model judge, especially before he became a Reaganite. Jones seems like a model B43 judge. They each -- no judgment on good/bad here -- seem a good fit on that level.

There has been other accounts that another option was not picked because of disagreement w/i on a somewhat obscure policy point.

Note too that Jones is younger than Souter. She is about Thomas' age. She still could probably be on the Court for years. I'm to be honest glad it is just a matter of imagining.
 

I miss the good old days here at Balkinization during the Bush administration when the profs would voice almost daily outrage over the new national surveillance state the evil Republicans were imposing on the nation.

Mr. Obama has now extended data mining intelligence collection from telecommunications to the internet in a new program code named Prism, but all I hear now at Balkinization is the deafening sound of silence.

Telling.
 

Our SALADISTA (FKA our yodeler) shows signs of needing a "hearing" aid or that his cries of "socialist," "caesarist," and other Obama negatives he has spewed going back to 1/20/09 crowd out the anti-national surveillance voices here and elsewhere. The "illegacies" of Bush/Cheney continue, alas, as very few presidents are prepared to surrender executive powers they have inherited.
 

Shag:

Blame Bush is a particularly weak retort here. Instead of using his CiC powers to end all data mining intelligence gathering with a phone call, Obama is expanding the gathering to the internet.

Because you voted for Obama, however, you give him a pass.

Apart from a handful of exceptions, the left generally only applies constitutional limits against the right.
 

After many years of reading Fifth Circuit opinions, all I can say is thank God Bush picked Souter for the Supremes.
 

Obama gets no pass from me on this issue, just because I voted for him. Our SALADISTA (FKA our yodeler) served literally as a tail-gunner for whatever Bush/Cheney did for their eight years of infamy ending with their Great Recession of 2008. [Note: Near the very end of those eight years, our SALADISTA like the proverbial rats left that ship of unstate.] Many liberals are like Will Rogers, who said he was not a member of an organized political party, that he was a Democrat. Our SALADISTA'a Tea Party dominated GOP base (truly base!) is organized to the point that it may implode due to the changing demographics.

What President has "surrendered" executive powers in place before taking office? Perhaps it will take a female President to take such a step. Also, consider Congress' reactions to what appears on the Verizon. While Democrats are included, the neocon hawks on the GOP side seem to have no problem as they had been the ones who had accommodated Bush/Cheney with such broad powers. Perhaps Mary Dudziak will soon provide a post on executive powers to discuss these recent events. And read Andrew Bacevich's latest contribution at Tom Englehardt's website.
 

Shag:

Obama gets no pass from me on this issue, just because I voted for him.

I eagerly await your calling Obama all the names you called Bush for the same or worse policies.

In contrast, I have no problem with data mining intelligence gathering under Bush or Obama, so long as it is aimed at foreign enemies and not domestic political opponents like my Tea Party movement.

Our SALADISTA'a Tea Party dominated GOP base (truly base!) is organized to the point that it may implode due to the changing demographics..

Tell it to all the new Indian, African American and Hispanic Tea Party politicians we keep electing. Contrary to your racist POV, everyone regardless of race can appreciate freedom.
 

For our SALADISTA's (FKA our yodeler):

" ... all the new Indian, African American and Hispanic Tea Party politicians we keep electing."

four teacups and teabags will suffice. Not even a minion.
 

"I have no problem with data mining intelligence gathering under Bush or Obama, so long as it is aimed at foreign enemies and not domestic political opponents"

But if the Executive has sole authority under Article II as CiC in wartime to direct intelligence gathering how, short of impeachment, can this be policed?

"Tea Party dominated GOP base (truly base!) is organized to the point that it may implode due to the changing demographics..

Tell it to all the new Indian, African American and Hispanic Tea Party politicians we keep electing"

The number you've elected is impressive unless you consider it is higher than the number of votes you seem to get from those groups ;)
 

I don't recall names that I called George W. I certainly did not refer to him as a fascist. But I do recall calling Cheney a Dick; but so did Mrs. Cheney.
 

BD: "I have no problem with data mining intelligence gathering under Bush or Obama, so long as it is aimed at foreign enemies and not domestic political opponents"

Mr. W: But if the Executive has sole authority under Article II as CiC in wartime to direct intelligence gathering how, short of impeachment, can this be policed?


Impeachment is proper. Also elections and revolutions.
 

shag: Tea Party dominated GOP base (truly base!) is organized to the point that it may implode due to the changing demographics..

BD: Tell it to all the new Indian, African American and Hispanic Tea Party politicians we keep electing"

Mr. W: The number you've elected is impressive unless you consider it is higher than the number of votes you seem to get from those groups ;)


Hispanics are up for grabs unless they become government dependents.

I sometimes despair of ever getting African Americans. Even when they agree with the idea of individual liberty, they still vote for the Party of Government or in the case of Obama for race.

 

Perhaps our SALADISTA (FKA our yodeler) doesn't get that African-Americans did get enslaved against their will and that they get the individual liberty provided by the 13th Amendment and that they get the liberties and benefits of the 14th and 15th Amendments and that they get the benefits of Brown v. Board of Education and that they get the benefits of the 1960s Civil Rights Acts, all individual liberties and benefits that whites had all along. What our SALADISTA doesn't get is changes taking place. Perhaps our SALADISTA's true "despair" is the fact that African-Americans exist and that one of them became President.
 

"Hispanics are up for grabs unless they become government dependents."

Not recently.

"I sometimes despair of ever getting African Americans. Even when they agree with the idea of individual liberty, they still vote for the Party of Government or in the case of Obama for race."

Maybe they think individual liberty is not necessarily threatened, and perhaps can be furthered, by Government? As to race it is likely more than that going on since when the GOP runs black candidates they often don't get much black support (see Lynn Swann's run for PA gov where he got 13% of the black vote), so it's likely what the person says not what the color of their skin is.

"Impeachment is proper. Also elections and revolutions."

I'd like to think our Founders left us with more options than that for dealing with a Ceasar.


 

I wonder how many judges - including "progressive" judges - will continue to participate in American Constitution Society conferences once word spreads more widely about how ASC, through its website, jumped so enthusiastically on the bandwagon to libel Judge Edith Jones.
 

This is my first time i visit here. I found so many entertaining stuff in your blog, especially its discussion. From the tons of comments on your articles, I guess I am not the only one having all the leisure here! Keep up the good work. I have been meaning to write something like this on my website and you have given me an idea. Sbobet Casino
 

especially before he became a Reaganite. Jones seems like a model B43 judge. fifa 14 ps3 coins
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They each -- no judgment on good/bad here -- seem a good fit on that level.

 

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