ConfirmThem

Castro, Chavez, and one of the leaders of Hamas.

Like Joe the Plumber I too have plans of starting my own business and move away from "working for the man". Obama will make sure these dreams/plans are taxed out of existence. I too am Joe... or in my case, Jose.

Fernando Caballero
Here's a Latino that might not vote for McCain... but I will vote for Sarah Palin and her running mate.

Courtesy of How Appealing,

http://www.chicagotribune.com/news/nationworld/chi-obama-stevensoct20,0,...

"If fellow South Sider Barack Obama is elected, some speculate John Paul Stevens may finally retire from the high court. But Stevens' work ethic could keep him on the bench for years."

"those who know Stevens say he is unlikely to let the political climate determine when to leave the bench. Supreme Court justices view their tenures through a different prism than most high officeholders and most leave at their own time, with little regard to external events.

Witness the late Chief Justice William Rehnquist. A conservative chosen by Nixon, Rehnquist, his health failing, showed no inclination to depart during the first term of the Bush administration even when assured his replacement would be another conservative. Instead, he died in 2005 while still the chief.

There's another counterweight to the notion that Stevens would simply step down if Obama becomes president. In four years, he would become the longest-serving justice in American history, at close to 37 years. Observers say the humble, bow-tied Stevens, who possesses little of the ego held by some other justices (he doesn't write books or go on international speaking tours), may not be interested in the mark as a sign of personal achievement, but instead as a testament to his approach to the job. The best analogy may be baseball's Cal Ripken Jr., who wanted to set the record for consecutive games played because he believed the mark represented how the sport should be approached. (Stevens might appreciate the comparison. He is a diehard Cubs fan.)"

If they don't leave in the Summer of 2009, they're in for the long haul.

http://blogs.jsonline.com/proofandhearsay/archive/2008/04/17/sykes-evans...

"On a different topic, Evans said he would not be surprised if Sykes is one day nominated to the U.S. Supreme Court. Sykes, who was appointed the appeals court by President Bush, was a law clerk for Evans, who was appointed by former President Clinton in 1995.

"I certainly think Diane deserves to be on the short list for the next president, assuming it is not the person I am going to vote for," said Evans, a Democrat."

One of the many things I've learned at this site is that SCOTUS types usually only retire one of their own a year (with the O'Connor-Rehnquist situation being rather unique). So, while I agree that if Stevens doesn't retire in the summer of 09, there won't be any other retirments the rest of that presidential term (barring death or other occurence), what if Souter or RBG retires in 09. Might Stevens or another person retire in 10 or 11?

Supreme Court retirements are impossible to predict. During four years of an Obama presidency, there may be no retirements. During four years of his presidency, there could easily be 3. There is no way to know. But the risk is too high to have him making those discisions.

October 21, 2008
Justices’ Ruling on Guns Faces Attacks, From the Right
By ADAM LIPTAK
WASHINGTON — Four months after the Supreme Court ruled that the Second Amendment protects an individual right to possess guns, its decision is under assault — from the right.

Two prominent federal appeals court judges say that Justice Antonin Scalia’s majority opinion in the case, District of Columbia v. Heller, is illegitimate, activist, poorly reasoned and fueled by politics rather than principle. The 5-to-4 decision in Heller struck down parts of a District of Columbia gun control law.

The judges used what in conservative legal circles are the ultimate fighting words: They said the gun ruling was a right-wing version of Roe v. Wade, the 1973 decision that identified a constitutional right to abortion. Justice Scalia has said that Roe had no basis in the Constitution and amounted to a judicial imposition of a value judgment that should have been left to state legislatures.

Comparisons of the two decisions, then, seemed calculated to sting.

“The Roe and Heller courts are guilty of the same sins,” one of the two appeals court judges, J. Harvie Wilkinson III, wrote in an article to be published in the spring in The Virginia Law Review.

Similarly, Judge Richard A. Posner, in an article in The New Republic in August, wrote that Heller’s failure to allow the political process to work out varying approaches to gun control that were suited to local conditions “was the mistake that the Supreme Court made when it nationalized abortion rights in Roe v. Wade.”

Sharp criticism of a recent Supreme Court decision by federal appeals court judges is quite unusual, though these two judges — both Reagan appointees — are more outspoken than most.

Judge Wilkinson, who sits on the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., was recently considered for a spot on the Supreme Court. Judge Posner, of the Seventh Circuit, in Chicago, is perhaps the most influential judge not on the Supreme Court.

Not all conservatives agree with the critics, of course. Robert A. Levy, a libertarian lawyer who was a principal architect of the victorious strategy in the Heller case, rejected the comparison to Roe.

The two sides in the Heller case claimed to rely on the original meaning of the Second Amendment, based on analysis of its text in light of historical materials. The amendment says, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

The more liberal justices said the amendment protected only a collective right tied to state militias, thus allowing most gun control laws. The more conservative justices found an individual right and struck down parts of a District of Columbia gun control law.

In Judge Wilkinson’s view, the upshot of the court’s extensive historical analysis was that “both sides fought into overtime to a draw.”

Others said the quality of the combat was low. “Neither of the two main opinions in Heller would pass muster as serious historical writing,” Jack Rakove, a historian at Stanford, wrote on the blog Balkinization soon after the decision was issued.

The strong reaction from the right after Heller was preceded, with a sort of symmetry, by liberal support for an individual-rights reading of the Second Amendment. For much of the 20th century, the conventional view of the amendment had been that it only protects a collective right. (Warren E. Burger, after retiring as chief justice in 1986, called the individual rights view “one of the greatest pieces of fraud — I repeat the word ‘fraud’ — on the American public by special interest groups that I have ever seen.”)

But some prominent liberal law professors, including Laurence H. Tribe of Harvard, Akhil Reed Amar of Yale and Sanford Levinson of the University of Texas, have concluded, sometimes reluctantly, that the amendment in fact protects an individual right. Professor Levinson’s seminal 1989 article in The Yale Law Journal captured the tone of the enterprise. It was called “The Embarrassing Second Amendment.”

In an interview, Professor Levinson said, “The result in Heller is eminently respectable.” But he added that he understood why some conservatives were upset. “People say the Roe court was too interventionist,” he said. “So is the Heller court from that perspective.”

Judge Wilkinson’s basic critique is that the majority, like that in Roe, used an ambiguous text to impose its policy preference on the nation, at great cost to the democratic process and to local values. He assumed, as most experts do, that the decision would apply to the states.

“In both Roe and Heller,” Judge Wilkinson wrote, “the court claimed to find in the Constitution the authority to overrule the wishes of the people’s representatives. In both cases, the constitutional text did not clearly mandate the result, and the court had discretion to decide the case either way.”

Judge Posner built on themes in his recent book “How Judges Think,” which argued that constitutional adjudication by the Supreme Court is largely and necessarily political. The Heller decision, he wrote in The New Republic, “is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.”

Indeed, Judge Wilkinson wrote, “Some observers may be tempted to view Heller as a revenge of sorts for Roe” or “a sort of judicial tit-for-tat.” As Judge Posner put it, “The idea behind the decision” in Heller “may simply be that turnabout is fair play.”

Mr. Levy, who helped win Heller, said some conservatives wanted almost all decisions to be made by the political branches rather than the courts.

“But these are constitutional rights,” Mr. Levy, now chairman of the Cato Institute, a libertarian research group, said of the rights protected by the Second Amendment. “They are not rights consigned to the legislature.”

The analogy to Roe, he went on, is misguided. There is no reference to abortion in the Constitution.

The Second Amendment, by contrast, indisputably protects a right to keep and bear arms, though there is sharp disagreement about the scope of the right. Mr. Levy said the natural reading of the amendment, one supported by historical materials, was that it protected an individual right.

In his article, Judge Wilkinson wrote that he “readily agreed” that Roe “involved the more brazen assertion of judicial authority.” But he added that the Roe and Heller cases shared a number of common flaws, including “a failure to respect legislative judgments,” “a rejection of the principles of federalism” and “a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation.”

Judge Wilkinson saved particular scorn for a brief passage in Justice Scalia’s opinion that seemed to endorse a variety of restrictions on gun ownership. “Nothing in our opinion,” Justice Scalia wrote, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Whatever else may be said about the Second Amendment, Judge Wilkinson wrote, those presumptions have no basis in the Constitution. “The Constitution’s text,” he wrote, “has as little to say about restrictions on firearm ownership by felons as it does about the trimesters of pregnancy.”

Mr. Levy, too, said he was not a fan of the passage. “I would have preferred that that not have been there,” he said. “It created more confusion than light.”

It is too soon to say much about the legacy of Heller. But Judge Wilkinson said that Heller, at a minimum, represented “the worst of missed opportunities — the chance to ground conservative jurisprudence in enduring and consistent principles of restraint.” At worst, he warned, “There is now a real risk that the Second Amendment will damage conservative judicial philosophy” as much as Roe “damaged its liberal counterpart.”

Well, in my opinion there's 3 competing rationales

A. You wait for the right political climate of your choosing, then leave as soon as that arrives in the summer(ie Byron White, 1993, who wanted to retire under a Democrat. He skipped the Carter years and had to wait 12 more for Reagan/Bush to leave office or Earn Warren, 1968, who hated Nixon)

B. You don't voluntarily retire when another justice voluntarily retires. Rehnquist wanted to leave in 2006. That didn't happen.

C. You wait until health, or death (Rehnquist), or your spouse's health/death (O'connor), or something similar, and leave when the time comes.

Presumably the Justices talk about this amongst themselves. There's 3 Justices to retire in 3 years of Obama's first term, which means somebody has to go in 2009 for it to work, especially since the 2011 Senate is likely to see more Republicans in it. Conservative justices don't seem to buy into the A theory, unfortunately, since nobody retired in W's first term.

For what its worth, I think Obama will only get 1 selection in his first term.

courtwatcher--very meaty. Thank you.

zendari--fine stuff as well. But I get the shivers (for two reasons) your phrase "Obama's first term"!

http://www.rollcall.com/news/29379-1.html

"Sen. Charles Schumer (D-N.Y.) hinted Monday that Democrats may have to extend the length of an upcoming lame-duck session to vet another round of economic stimulus."

This is an article from 1991:

http://community.seattletimes.nwsource.com/archive/?date=19910630&slug=1...

Marshall will be 83 years old Tuesday. He has glaucoma, hearing losses in both ears, and has had a heart attack, blood clots and pneumonia. He is tired and wants to rest. He has wanted to leave the bench for the better part of 10 years, but refused to step down.

He waited through Ronald Reagan's tenure in the White House and half of George Bush's first term in office. He waited because he saw the window sliding shut and precious freedoms being whittled away by newly appointed justices who do not share his concern for the rights of the individual and the need for equity and the redress of past inequities.

He was old and sick and tired, but he stayed. He stayed by the window, because it was his duty to do so. He and the aging, dwindling majority on the court struggled to keep that window open as the ideological balance shifted with each new appointment by Reagan and then Bush.

Finally, with the departure of his friend and ally Justice William Brennan, Marshall found himself almost always on the losing end of 5-4 decisions. He realized it would not make a substantive difference if he left and the vote became 6-3.

At the time, people thought Souter was a reliable 'conservative'.

Looks like Brennan had a stroke in the late 80s and powell nearly died of internal bleeding in 1985.

I'm curious as to Stevens though, and what might have happened had Souter actually quit after Bush v Gore and gotten replaced by Luttig or someone similar. Stevens was rather pissed after the 2006 term; a few years of that prior and he too might have thrown in the towel.

Guess we'll never know.

http://www.usatoday.com/news/politics/election2008/2008-10-23-candidates...

...not making SCOTUS a centerpiece of his campaign. Differences btwn he & Obama could not be more stark, and it's been pellucidly clear since Saddlebrook that Barry is terrified of any slip of his true feelings on judges. You don't even need to read between the lines of that article to get scared. Imagine Patrick or Koh replacing Scalia or Kennedy...

Just a terrible strategic blunder by McCain's campaign, which IMO is giving Gore a serious run for worst ever. I don't care how unimportant the polls SAY judges are this election. Judges have been a durefire winner for the GOP since '68. Can't understand it why McCain isn't hammering on it, but then, I'm not a **professional campaign manager** either.

At least that article's sidebar dispenses with the "moderate" nonsense. Four conservatives, four liberals, & one Lord alone knows what (speaking of terrible strategic blunders).

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

This is just sad:

http://www.usatoday.com/news/washington/judicial/2008-10-21-oconnor_N.ht...

"O'Connor wrote that a Supreme Court ruling should be overturned only when historical or social conditions surrounding an issue have changed — not simply because of a change in the court's makeup.

"There's no validity to overturning a precedent unless you have a good reason for doing it," she said Tuesday."

Sigh...

I honestly do feel bad for her and think she's a good person. I'm sure she misses her husband terribly, but I fear that she misses her power & celebrity almost as much. A tragic Exhibit A of the horrible corrupting power of DC & the MSM. I mean, she was a pure hard-headed ranch girl when she got there.

Please, Madame Justice, enjoy your grandchildren, and enjoy speaking to other people's grandchildren about the great history of this country and the West in particular. But, you're not a player anymore (which is why Scalia for one will be carried out).

Can you imagine her still on SCOTUS with this possible Obama & 58+ DemSens nightmare looming? God Bless The Chief for hanging in there. 50 years of friendship aside, he had to have seen this coming, at least in part.

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

Can someone ask Sandy about Atkins v Virginia and Lawrence v Texas. Not to mention the Eisentrager case.

Someday, perhaps former Justice O'Connor will admit that there are valid and good reasons for overturning a precedent other than when historical or social conditions surrounding an issue have changed. For example: the precedent flatly contradicts the words in the Constitution.

If she is actually implying that it's fine for the Supreme Court to respect its own precedents more than it respects the Constitution itself, then I am not surprised at all. Stare decisis uber alles.