MYTH-FACT: JUDICIAL FILIBUSTERS

[adios]

Comments ?

Myth: Senate Republicans Are Attempting To Abolish All Filibusters.

Fact: Republicans Are Seeking To Restore The Advice And Consent Constitutional Obligations Of The Senate For Judicial Nominees – Not Eliminate The Legislative Filibuster – Even Though Democrats Have Supported In The Past Abolishing All Forms Of Filibusters.

In 1995, Democrats (Bingaman, Boxer, Feingold, Harkin, Kennedy, Kerry, Lautenberg, Lieberman, And Sarbanes) Wanted To End The Legislative Filibuster. In 1995, the only Senators on record supporting the end of the legislative filibuster were all Democrats, nine of whom are still serving in the Senate. (Karen Hosler, “Senators Vote 76-19 To Maintain Filibuster,” The [Baltimore] Sun, 1/6/95; S.Res. 14, CQ Vote #1: Motion Agreed To 76-19: R 53-0; D 23-19, 1/5/95, Bingaman, Boxer, Feingold, Harkin, Kennedy, Kerry, Lautenberg, Lieberman, and Sarbanes Voted Nay on a motion to table the rules change; Frist Voted Yea)

· The Harkin-Lieberman Proposal Would Have Amended The Senate Rules To Allow A Simple Majority To Overcome “Any” Filibuster, Legislative Or Executive. (Karen Hosler, “Senators Vote 76-19 To Maintain Filibuster,” The [Baltimore] Sun, 1/6/95; S.Amdt. 1, Motion To Table Agreed To, 1/5/95)

Sen. Bill Frist (R-TN) Is Proposing To Change The Rule On Filibusters Of Judicial Nominations Only. “Majority Leader Frist is threatening to use an obscure parliamentary maneuver – dubbed by some ‘the nuclear option’ – to change Senate rules and forbid filibusters against judicial nominees.” (John Yang, Op-Ed, “Fili-bluster,” The Washington Post, 1/16/05)

In fact, Senator Frist’s first Senate vote, on January 5, 1995, was to preserve legislative filibusters.

As Majority Leader, Sen. Robert Byrd (D-WV) Initiated Four Precedents That Allowed A Simple Majority To Change Senate Procedures Without Altering The Standing Rules, Thereby undermining minority rights to filibuster and use related tactics.. (Sen. Robert Byrd, Congressional Record, 1977, pp. S31916-27; Sen. Robert Byrd, Congressional Record, 1980, pp. S4729-32; Sen. Robert Byrd, Congressional Record, 1979, pp. S31892-94; Sen. Robert Byrd, Congressional Record, 1987, pp. S12252-60)

Myth: Democrats Treatment Of Bush’s Nominees Is Analogous To Republicans Treatment Of Clinton’s Nominees.

Fact: President Clinton’s Judicial Nominees Were Not Filibustered And Never Before Has A Judicial Nominee With Clear Majority Support Been Denied An Up Or Down Vote In The Senate By A Filibuster.

“[Harry] Reid And Company Have Used The Senate Filibuster Rule To Permanently Deny Votes To Nominees With Clear Majority Support. That’s Never Been Done Before.” (David Reinhard, Op-Ed, "Judge Not Lest Ye Be … Filibustered," The Oregonian, 3/17/05)

President Bush’s Confirmation Rate For Appellate Judges Is The “Lowest” Of Any Modern President. “A better figure would compare Bush’s four-year appellate confirmation rate to recent presidents. According to the American Enterprise Institute’s John Lott Jr., Bush’s four-year rate was 69 percent, the lowest of any modern president. Bill Clinton’s rate was 74 percent.” (David Reinhard, Op-Ed, “Judge Not Lest Ye Be … Filibuster,” The Oregonian, 3/17/05)

· In 1994, When The Democrats Controlled Both The Senate And The Executive Branch, President Clinton Confirmed A Record Number Of Federal Judges – 54 Of These Nominees Were Pushed Through In The 3 Months Immediately Prior To The 1994 Elections. “President Clinton has gotten 129 federal judges confirmed by the Senate, more than any previous president during the first two years in office… 101 of his 129 judges were confirmed in 1994. That was the highest one-year total since Jimmy Carter won approval of 135 in 1979.” (Michael J. Sniffen, “Clinton Outdoes Predecessors In Filing Judicial Vacancies,” The Associated Press, 10/12/94)

· While Democrats Claim They Have Confirmed More Than 200 Of President Bush’s Judicial Nominees, 10 of The 52 Nominees To The Circuit Court Of Appeals Were Filibustered. (Jesse J. Holland, “Senate Confirms First Judge Of Bush’s Second Term,” The Associated Press, 4/11/05)

During The 108th Congress (2003-2004), The Senate Voted On 20 Motions To Invoke Cloture, or End Debate, On 10 Different Judicial Nominees. The Average Vote To End Debate Was 53-43 – Enough Support To Confirm Each Nominee But Fewer Than The 60 Votes Required To End Debate. (CQ Vote #40: Motion Rejected 55-44: R 51-0; D 4-43; I 0-1, 3/6/03; CQ Vote #53: Motion Rejected 55-42: R 51-0; D 4-41; I 0-1, 3/13/03; CQ Vote #56: Motion Rejected 55-45: R 51-0; D 4-44; I 0-1, 3/18/03; CQ Vote #114: Motion Rejected 55-44: R 51-0; D 4-43; I 0-1, 4/2/03; CQ Vote #137: Motion Rejected 52-44: R 50-0; D 2-43; I 0-1, 5/1/03; CQ Vote #140: Motion Rejected 52-39: R 49-0; D 3-38; I 0-1, 5/5/03; CQ Vote #143: Motion Rejected 54-43: R 50-0; D 4-42; I 0-1, 5/8/03; CQ Vote #144: Motion Rejected 52-45: R 50-0; D 2-44; I 0-1, 5/8/03; CQ Vote #308: Motion Rejected 53-43: R 51-0; D 2-42; I 0-1, 7/29/03; CQ Vote #312: Motion Rejected 55-43: R 51-0; D 4-42; I 0-1, 7/30/03; CQ Vote #316: Motion Rejected 53-44: R 51-0; D 2-44; I 0-0, 7/31/03; CQ Vote #419: Motion Rejected 54-43: R 51-0; D 2-43; I 1-0, 10/30/03; CQ Vote #441: Motion Rejected 51-43: R 49-0; D 2-42; I 0-1, 11/6/03; CQ Vote #450: Motion Rejected 53-42: R 51-0; D 2-41; I 0-1, 11/14/03; CQ Vote #451: Motion Rejected 53-43: R 51-0; D 2-42; I 0-1, 11/14/03; CQ Vote #452: Motion Rejected 53-43: R 51-0; D 2-42; I 0-1, 11/14/03; CQ Vote #158: Motion Rejected 53-44: R 51-0; D 2-43; I 0-1, 7/20/04; CQ Vote #160: Motion Rejected 52-46: R 51-0; D 1-45; I 0-1, 7/22/04; CQ Vote #161: Motion Rejected 54-44: R 51-0; D 3-43; I 0-1, 7/22/04; CQ Vote #162: Motion Rejected 53-44: R 50-0; D 3-43; I 0-1, 7/22/04)

· Numerous Clinton Nominees That Were Confirmed Received Less Than 60 Votes, and none of these were kept off the bench by partisan filibusters (E.G., Judge Richard Paez, With 59-Vote Support; Judge William Fletcher, With 57-Vote Support; And Judge Susan Mollway, With 56-Vote Support). (Sen. John Cornyn, “President’s Nominees Deserve Up-Or-Down Vote, Sen. Cornyn Says,” Press Release, 2/14/05; CQ Vote #40, Confirmed 59-39; R 14-39; D 45-0, 3/9/00; CQ Vote #309, Confirmed 57-41; R 14-41; D 43-0, 10/8/98; CQ Vote #166, Confirmed 56-34; R 14-34; D 42-0, 6/22/98)

Myth: Filibusters Of Judicial Nominations Are Part Of Senate Tradition.

Fact: Having to Overcome A Filibuster (Or Obtaining 60 Votes) on Judicial Nominees Is Unprecedented And Has Never Been The Confirmation Test For A Nominee – And In The Past, Even Democrats Have Called For Up Or Down Votes.

Congressional Quarterly: “Indeed, As Daschle’s Whip, Reid Helped Orchestrate An Unprecedented Filibuster Of Some Of President Bush’s More Conservative Judicial Nominees.” (Allison Stevens, “Senate Democrats Set A Daschle-Like Tone For 2005,” Congressional Quarterly, 11/16/04)

National Review’s Mark Levin: “Each Of These Candidates Reportedly Has Enough Votes For Confirmation, But For The Unprecedented Use Or Threat Of Filibusters. The Majority Has Every Right And Reason To Change The Rule.” (Mark R. Levin, Op-Ed, “Will On Filibusters,” National Review Online, 3/21/05)

In 1999, Sen. Patrick Leahy (D-VT) Declared: “Vote Them Up, Vote Them Down.” “But I think they have given the President of the United States the benefit of the doubt, and if the person is otherwise qualified, he or she gets the vote. … That is what the Constitution speaks of in our advise and consent capacity. That is what these good and decent people have a right to expect. That is what our oath of office should compel Members to do – to vote for or against. … Vote them up, vote them down.” (Sen. Patrick Leahy, Congressional Record, 9/21/99, p. S11102)

· In 1998, Leahy Called Filibustering Judicial Nominations “Improper.” “[E]arlier this year … I noted how improper it would be to filibuster a judicial nomination.” (Sen. Patrick Leahy, Congressional Record, 10/14/98)

In 1998, Sen. Ted Kennedy (D-MA) Said That Voting On Judicial Nominees Was Something That The Senate Owed To All Americans. “We owe it to Americans across the country to give these nominees a vote. If our Republican colleagues don’t like them, vote against them. But give them a vote.” (Sen. Edward Kennedy, Congressional Record, 2/3/98, p. S295)

Myth: Filibusters Of Judicial Nominations Are Based on the Constitution

· Fact: Senate debate is governed by Senate rules, not by the Constitution. The Senate’s Constitutional role to advise and consent is in fact being impaired by the unprecedented use of partisan filibusters to block confirmation votes.
In 1998, Sen. Leahy Said Promptly Confirming Judges Was Senate’s “Constitutional Responsibility.” “We must redouble our efforts to work with the President to end the longstanding vacancies that plague the federal courts and disadvantage all Americans. That is our constitutional responsibility.” (Sen. Patrick Leahy, Congressional Record, 9/8/99, p. S10544)

· Leahy In 1998: “Acting To Fill Judicial Vacancies Is A Constitutional Duty That The Senate – And All Of Its Members – Are Obligated To Fulfill. In Its Unprecedented Slowdown In The Handling Of Nominees In The 104th And 105th Congresses, The Senate Is Shirking Its Duty. This Is Wrong And Should End.” (Sen. Patrick Leahy, Congressional Record, 7/17/98, p. S8477)

Sen. Charles Schumer (D-NY) Said Government Does Not Fulfill Its “Constitutional Mandate” When Judicial Nominees Do Not Receive A Vote. “The basic issue of holding up judgeships is the issue before us, not the qualifications of judges, which we can always debate. The problem is it takes so long for us to debate those qualifications. It is an example of Government not fulfilling its constitutional mandate because the President nominates, and we are charged with voting on the nominees.” (Sen. Charles Schumer, Congressional Record, 3/7/00, p. S1211)

· Schumer In 2000: “[W]e Are Charged With Voting On The Nominees. The Constitution Does Not Say If The Congress Is Controlled By A Different Party Than The President There Shall Be No Judges Chosen.” (Sen. Charles Schumer, Congressional Record, 3/7/00, p. S1211)

Myth: The Nomination Of Abe Fortas Was Filibustered By Senate Republicans.

Fact: Abe Fortas’s Nomination Was Opposed By A Bipartisan Effort In The U.S. Senate, There Was No Evidence He Would Have Received A Majority Vote And Some Say Fortas’s Nomination Was Not Filibustered.

Twenty-Four Republicans And Nineteen Democrats Voted Against Cloture. (CQ Vote #255: Motion Rejected 45-43: R 10-24; D 35-19; 10/1/68)

The Fortas case was an isolated incident in 1968 that cannot be compared to Leadership-driven, wholly partisan filibusters that have been used as an instrument of party policy to block Bush nominees.

The Washington Times: “There Is No Evidence That Fortas Would Have Received Majority Support In The Senate On An Up-Or-Down Vote.” “Only Associate Supreme Court Justice Abe Fortas, whose 1968 nomination to be chief justice was briefly subjected to a bipartisan filibuster before it was withdrawn after a single cloture vote, failed to be confirmed. And with 19 Democratic senators voting against cloture, there is no evidence that Fortas would have received majority support in the Senate on an up-or-down vote.” (Editorial, “A Senatorial Bottleneck,” The Washington Times, 2/20/05)

Former Senator Robert Griffin (R-MI), Who Was A Leading Republican Opponent of the Fortas Nomination Asserted the Day After the Cloture Vote That Cloture Was Opposed because of clearly insufficient time for debate, that more Senators were on the record against Fortas than were for him, and that the nomination would not have commanded majority support. Congressional Record, October 2, 1968, page 29150

· Sen. Larry Craig (R-ID) Quoted A Letter From Former Sen. Griffin Which Stated That, “Four Days Of Debate On A Nomination For Chief Justice Is Hardly A Filibuster.” “Having been on the scene in 1968, and having participated in that debate, I see a number of very important differences between what happened then and the situation that confronts the Senate today.” (Sen. Larry Craig, Congressional Record, 11/12/03, p. S14560)

Myth: The Constitutional Option Is Unprecedented.

Fact: Senate Democrats Have Used The Constitutional Option In The Past.

· As Majority Leader in 1979, Senator Byrd expressly threatened to use the Constitutional option in order to leverage successfully a time agreement on a rules change resolution : “Let The Senate Vote On Amendments, And Then Vote Up Or Down On The Resolution. … If I Have To Be Forced Into A Corner To Try For A Majority Vote, I Will [Change The Rules] Because I Am Going To Do My Duty As I See My Duty, Whether I Win Or Lose.” (Sen. Robert Byrd, Congressional Record, 1979, pp. S144-45)

· Byrd Led The Creation Of Precedents In 1977, 1979, 1980 And 1987 To Stop Filibusters And Other Delaying Tactics Previously Allowed Under Senate Rules Or Precedents. “Mr. Byrd led the charge to change the rules in 1977, 1979, 1980 and 1987, and, in some cases, to do precisely what Republicans are now proposing.” (Editorial, “Sen. Byrd On Filibuster-Busting,” The Washington Times, 3/7/05)

MYTH: Democrats Merely Want To Express Their Opinions On The Judicial Nominations.

FACT: Democrats Are Filibustering Nominees In Order To Block Them Permanently – Not To Preserve Free Speech.

When Asked How Many Hours Were Necessary To Debate The Nomination Of Priscilla Owen, Sen. Harry Reid (D-NV) Answered, “There Is Not A Number In The Universe That Would Be Sufficient.” (Sen. Harry Reid, Congressional Record, 4/8/03, p. S4949)

By September 2004, The Senate Had Spent More Than 150 Hours Debating Judicial Nominations – More Than Any Previous Congress. (U.S. Senate Republican Policy Committee, “The Assault On Judicial Nominations In The 108th Congress,” 9/28/04)

The Senate Had 28 Months To Debate The Nomination Of Miguel Estrada Before It Was Withdrawn. “After remaining in limbo for 28 months while Democrats filibustered to block his approval, Estrada … withdrew his name in September 2003.” (Tim O’Brien, “Hispanic Lawyers Line Up Behind Nominee For AG,” The Legal Intelligencer, 11/16/04)

Myth: Democrats Want To Continue Debating These Nominations So They Can Reach A Compromise With The Republican Majority.

Fact: The Democrats Have Threatened To “Shutdown The Senate” Rather Than Carry Out Their Constitutional Obligation To Provide An Up Or Down Vote On Judicial Nominees.

Sen. Harry Reid (D-NV): “[N]o Senate Right Is More Fundamental Than The Right To Debate. Should The Majority Choose To Break The Rules That Give Us That Right, The Majority Should Not Expect To Receive Cooperation From The Minority In The Conduct Of Senate Business.” (Sen. Harry Reid, Letter To Sen. Bill Frist, 3/15/05)

“This Month, Democrats May Use Procedural Tricks To Stop All Senate Business And Block A Republican Effort To Eliminate Minority Filibuster Rights ...” (Joe Klein, Op-Ed, "A New Idea For Democrats: Democracy," Time, 4/11/05)

[mosta]

you can't fault republicans for attempting to force judicial confirmations by majority vote. they've got the majority. they're expressing popular will. (you might argue that they are more extreme than the electorate in actuality--well then the electorate shouldn't have voted for them.) you really can't deny the constitutional legitimacy of their position.

but then you also (or at least I can't) blame democrats for trying to keep more troglodytes off the bench--the kind who wouldn't have voted for the decisions that allowed married couples to use contraceptives in their bedroom, that allowed consenting adult men and women to be free in their personal intimacy in their bedroom, that allowed national legislation limiting the work week and child labor, that allow a citizen to put a peace symbol on the american flag, that allow the teaching of foreign languages in school, etc, etc, etc.

no one is really in the wrong. just pick your side. it's very hard to deny that the activist court is well outside the bounds of the original intent and text of the consitution. the country was founded essentially as a commercial union. that's it. scalia and thomas are right. but there has also been the push from the beginning to develop universal egalitarian moral principles. and many of us think that's just about the best thing that ever happened to this country. and whatever can be done to stop losers like scalia is for the good. some things can't be settled by votes.

[mosta]

a few of us are also really happy about the getting out of religion from government. unfortunately the process is far from complete, and right now is going backwards. the poles are far apart, and the struggle will likely be to the death. there are those in favor of local, traditional (backwards) morality with fascistic undertones of conformity and obedience. and there are the godless egalitarians. it's funny, for the first time I think since grade school someone asked me the other day if I believed in "god" (in invisible magic heroes?). just asking gave me grave doubts about hte person (even though the person was an avowed atheist--the mere need to say so was highly suspect). I've always instinctively found a person's religiosness to be a measure of a defectiveness of either intelligence or character. there's really no room for deals. and that's a circle I've travelled in widely all my life.

[vulturesrow]

[ QUOTE ]
a few of us are also really happy about the getting out of religion from government. unfortunately the process is far from complete, and right now is going backwards.

[/ QUOTE ]

Id be interested in seeing some examples of "religion in government" that greatly concern you.

[ QUOTE ]
I've always instinctively found a person's religiosness to be a measure of a defectiveness of either intelligence or character

[/ QUOTE ]

And you are calling people troglodytes. Very funny indeed. Tell you what. Let me know if you want to have a discussion on the use of reason to establish evidence for the existence of God. There is no way this forum to stand up for my character but I can stand up for my intelligence.

[mosta]

religion in goverment? on sixty minutes this sunday there was a segment on the new sex education disseminating from washington. by law prophylactics can only be mentioned as prone to failure. no instruction can be given on their proper use. no discussion of their possible success is allowed. abstinence is the only allowable policy. and abstinence is tied with promises and marriage and...guess what...religion. (religion can be in the program explicitly as long as there is an alternative section that omits the more explicit references.) that disturbs me. that makes me wish ill for a certain type of person.


"belief in God" is not a simple factual proposition. there are many aspects to the position, most of which are non-empirical, non-factual. on the factual level, I don't see how one can take modern science seriously, and get science, and then posit invisible magic super-men. but I understand that some people including scientists will add in "beliefs" in some extra romantic ideas like life-force or something. note that I agree that science is an (alternative) system of religious postulates too. what I specifically mean is scientsts or unitarians or whatever talking about non-empirical supernatural being. but still that's not quite what I mean by religion. I do find it suspect. but these flowery notions are so attenuated in content that they have little meaning beyond a generalized positive attitude or romanticism. I don't mean to dismiss such beliefs or debate about whether they count as relgion or not--rather I just mean that's not what I'm talking about.

what I'm talking about is this, from today's news on drudge:

http://www.thedigitalcourier.com/art...ews/news01.txt

A sign in front of Danieltown Baptist Church, located at 2361 U.S. 221 south reads "The Koran needs to be flushed," and the Rev. Creighton Lovelace, pastor of the church, is not apologizing for the display.

"I believe that it is a statement supporting the word of God and that it (the Bible) is above all and that any other religious book that does not teach Christ as savior and lord as the 66 books of the Bible teaches it, is wrong," said Lovelace.

--------------------------------------------------

I personally would flush them both. people will say this guy is an extremist and does not represent modern religion. but those people are lying to themselves. you can not believe in a particular omnipotent omniscient omnipresent supreme being (note: "omni" ALL EVERY, no exceptions) and then say that other people have their own god too (without attentuating your religion into nothing but an abstract niceness or positiveness). that's just being polite, just agreeing not to speak your mind, and letting them alone in their godless heathen unsaved existence. you can't have a prayer in congress to the god of jesus and not thereby/therein exclude every non-christian. and guess what, people are still allowed to hold prayers in congress without being put in jail, shocking as that may be. for the most part religion has little to no empirical content on a practical level. what happened six thousand and one years ago is not something that will have any practical meaning or import to most of the world, and most of them will never be able to discern any difference directly, empirically. and if your beliefs are more abstract and only posit that after all the physics and biology there is "god" behind it, then by definition it has no empirical meaning. the main significance of these "beliefs" is in their public declaration and affirmation as a sign of inclusion conformity and submission, to this particular church of htis particular "god". all of which basically are values that disgust me, and which I think will necessarily lead to evil in the context of the modern age.

I could say that I don't mean for anyone to take it personally when I allege some defectiveness on someone's part--I mean, I don't know you and I'd probably think you were a fine person if I met you--but that would be disingenuous. the fact is on some level it's unavoidable that you will be a troglogdyte to me and I will be a troglodyte to you. here's how it would come out. a group of people talking about drug use. persons A,B,C etc. A: I use LSD all the time. I really enjoy it. B: I used to use lsd. but then I decided it's not that interesting and then it just wastes the next day or two of my life afterwards. C: I use lsd occasionally, but keep it from interfering with other tihngs. D: I don't think people should use lsd because children will get hold of it and they can't be careful or responsible with it. E: I don't want to try lsd because I tihnk it's dangerous or risky and I don't think anyone can use it responsibly. F: I don't want to use lsd because I don't ever want to be off my game. etc etc etc pro and con. then person G comes out with: I don't use lsd because it's against my religion, becaues it dishonors our lord and saviour jesus christ, because some commandment says not to, because lsd users will go to hell, etc, etc. at this point persons A to F nod politely while walkng backwards to the door, and make a mental note that person G is not someone you can have an intelligent conversation with. that's how I see it. to put it one other way, I don't think I could ever seriously respect someone who prays. reflection, concentration, aspiration, etc, sure. but to pray, to a particular invisible hero? please. and note again, prayer is not essentially an empirical position. every religious person agrees that you can be the most virtuous person the world and never miss a prayer and god may still rain tragedy and misfortune down upon you. they would never purport to prove that prayer works by a study. rather, prayer is a declaration of loyalty obedience and conformity to your sect. even in a nice form, that's proto-fascism. and I'll have none of it.

[vulturesrow]

[ QUOTE ]
religion in goverment? on sixty minutes this sunday there was a segment on the new sex education disseminating from washington. by law prophylactics can only be mentioned as prone to failure. no instruction can be given on their proper use. no discussion of their possible success is allowed. abstinence is the only allowable policy. and abstinence is tied with promises and marriage and...guess what...religion. (religion can be in the program explicitly as long as there is an alternative section that omits the more explicit references.) that disturbs me. that makes me wish ill for a certain type of person.

[/ QUOTE ]

Either CBS misconstrued this or you misunderstood, Im more inclined to think its CBS thats at fault. There is grant money available for states that wish to teach abstinence only programs. There is a list of items that show what qualifies as an abstinence only program. They are an educational or motivational program which:

<ul type="square">[*]Has as its exclusive purpose, teaching the social, psychological, and health gains to be realized by abstaining from sexual activity[*]teaches abstinence from sexual activity outside marriage as the expected standard for all school age children[*]teaches that abstinence from sexual activity is the only certain way to avoid out-of-wedlock pregnancy, sexually transmitted diseases, and other associated health problems[*]teaches that a mutually faithful monogamous relationship in context of marriage is the expected standard of human sexual activity[*]teaches that sexual activity outside of the context of marriage is likely to have harmful psychological and physical effects[*]teaches that bearing children out of wedlock is likely to have harmful consequences for the child, the child's parents, and society[*]teaches young people how to reject sexual advances and how alcohol and drug use increases vulnerability to sexual advances[*] and drug use increases vulnerability to sexual advances; and (h) teaches the importance of attaining self-sufficiency before engaging in sexual activity.[/list]
Note that it doesnt even have to be used for a school program. I hardly think it is an example of religion in government. I think it may be a case of traditional moral values in government. I'll be worried when the government tries to mandate a state religion.

Your depiction of religion is childish caricature of what religion is so it is easy to turn your nose up at it. Some of the greatest thinkers in history, both in science and philosophy, have been very religious and strongly believed in the existence of God.

[MMMMMM]

That's a pretty good overall summation, mosta.

Where I disagree is regarding judge activists: it's just not their job, or their call. If changes should be made to constitutional laws, let it be through the proper constitutional process, which is the process of Amendments.

Jusges just aren't supposed to inject their own opinions about what is best for society into their decisions. There are proper processes for modifying the law--and it's not via fudging judicial analysis or slanting decisions.

Many people, such as yourself, feel very strongly about certain issues, and feel so strongly that they welcome judicial activism since it benefits their views. HOWEVER, that knife can easily cut both ways. That's why it is bad. For if judges can deliberately muddy the waters to support their social or political views, it can just as easily happen IN REVERSE at a later date. In other words the side getting the judicial favoritism now may be the side getting judicial disfavor later when the judges and the political climate eventually change (as they will). So in my view it is an entirely unacceptable thing for the judges to be doing what you describe.

Again, there are proper channels (legislative, and constitutional) for modifying various laws. What has been happening is very dangerous for the future. Again, just reverse the current favoritism in your mind and you will see what I mean.

Imagine a majority of judges, not just strict interpreters like Scalia and Thomas (who, I agree, do seem to be correct)--but imagine a majority of very conservative judges who are not even correct, but rather who warp the law to support conservative causes. Yes, they would garner the approval of some people like Jerry Falwell or Pat Robertson, but would that excuse what they would be doing? Jerry and Pat might think so, but you wouldn't think so. Therefore it is imperative that both liberal and consefvative judges keep their personal political views out of their decisions (to the best of their ability). If they don't intend to try to do that to the best of their ability they shouldn't even be judges in the first place. Gay marriage or whatever (just using that as a random general example) is not important enough to subvert the Constitutional process for addressing change. And perhaps more ominously, the potential seeds of future tyranny are being sown every time judges rule in an activist manner.

[ACPlayer]

Are activist judges and judgements the norm or even moderately prevalent these days?

I hear a lot of talk about activist judges (mostly from social conservatives for some reason) -- do you have a link that shows a list of "activist" decisions and why that links' author thinks they are activist?

[MMMMMM]

We've discussed it briefly before, ACPlayer, but I'd rather not take further tangent from this thread.

Just how common it may be is actually a worthy question, but I would ratrher not see this thread further diverted at present. adios posted some material and I would like to see that discussed. I actually took a bit of a tangent responding to mosta; probably I should have waited 'til the points raised initially had been discussed in more depth, but I didn't think of it at the time;-)

[mosta]

this government is a work in progress. it was from the first step a product of experiment and compromise. lots of things we do weren't planned or anticipated, and couldn't have been, and therefore aren't in the constitution. judicial review is not in teh constitution. but I think it's pretty much necessary unavoidable. should it be in an amendment? maybe. certainly couldn't be a bad idea. fundamental rights theory undertaken under the rubric of the 14th amd ("substantive") due process isn't in the constitution either. that doesn't mean that the government wasn't supposed to be in the business of rights. one of the major positions in the drafting debates was that no rights should be specified in the constitution because to specify could be interpreted as restricting. the court's jurisprudence is entirely in keeping with that natural rights position. textually, the entire doctrine of substantive due process is a bit of a stretch, granted, but I didn't ever get why they didn't want to avail themselves of the 9th amd. whatever. even if they're not using it, the 9th amd clears my conscience with regard to this usurpation. the main question to me is whether the judiciary is an appropriate vehicle for the articulation and protection of generalized libertarian rights. I think it is. I think the limits of morality, the framework, can't come from the political process. politics is always interest driven and parochial. note that the clash between the court's rights intiatives (or usurpation) and parochial traditionalism is not merely a clash of one particularism versus another (one mere bias versus another) like sunni--shiite, jew--muslim, anti-[censored]--anti-hetero, vanilla--chocolate. it's not just a matter of one person's bias or another's, not just a swing of the pendulum, maybe. the clash is much more profound, and revolutionary in scope. and it's not arbitrary. the court has defined a universalistic egalitarian value framework wiht presumptions of individual liberty and equal treatment (and strict scrutiny analysis). in a way it's both less and more of an imposition than one other particularistic morality. it's less because it's only negative--only telling government when not to impose on individuals. it's more because it can wipe out any particularism. I don't think there is any middle ground. there's no "impartial" position. the project continues or it does not. and I'm not sure anyone else could do it than the court.