Supreme Court Web Site Endorses the "Living Constitution"

By AndrewHyman Posted in Comments (19) / Email this page » / Leave a comment »

The SCOTUS web site declares (without dissent) the following:

This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations.

This is an unwise move. These words may (or may not) have been approved at one time by a unanimous Court, but nowadays (at least) the term "Living Constitution" is considered a theory of constitutional interpretation that is at odds with originalism. It's time for the Court to rewrite that essay at their web site, IMHO.

While they're at it, they might clarify that upholding equal justice under law is not the Court's "ultimate responsibility"; their ultimate responsibility is to uphold the Constitution and laws, regardless of whether they think they're just. The Court does not have carte blanche to completely substitute their view of justice for the American people's view of justice, as expressed through our elected representatives.

I can't imagine Scalia and Thomas would want that stuff on the SCOTUS website.

Reply To ThisUser Info#1 — Wed, 2007-05-02 22:00

Why is there not a place on the internet where one could view the SJC Executive Business meeting tomorrow? In this age, where anything can be placed on the internet, it does not make any sense to me.

Reply To ThisUser Info#2 — Wed, 2007-05-02 22:21

whether one of the items on the agenda is televising SC arguments.

Seriously though, as much as this bunch of Democratic hams enjoys preening in front of cameras, there must be some good reason for it.

Reply To ThisUser Info#3 — Thu, 2007-05-03 09:12

I found this link at C-SPAN. Maybe it will work:

http://www.capitolhearings.org/

Go down to Judiciary Committee and see if it works.

Reply To ThisUser Info#4 — Thu, 2007-05-03 09:37

http://judiciary.senate.gov/member_statement.cfm?id=2744&wit_id=2629

"The judicial nominations we consider today are Debra Ann Livingston to the United States Court of Appeals for the Second Circuit, Richard Joseph Sullivan to the District Court for the Southern District of New York, and Joseph S. Van Bokkelen to the District Court for the Northern District of Indiana. All of these nominees had hearings and have the support of both home state Senators. I thank Senators Clinton, Lugar, and Bayh for their consideration and approval of these nominees. I especially thank Senator Schumer for his support and for chairing last month’s hearing on these nominations."

This comment sounds like Leahy has allowed Livingston a committee vote today without the usual week's delay. Can anyone verify this? If true, then it looks like McConnell could start pressing Keisler as soon as Livingston is confirmed (probably next week).

Reply To ThisUser Info#5 — Thu, 2007-05-03 12:39
SJC meeting by AC1

It is very frustrating that a website exists to broadcast these hearings, but they do not use it. It seems to me that all they would have to do is flip a switch so we could listen. Many other committee meetings were available today, but not the one I was interested in. Would it do any good to email or call the committee or C-SPAN?

Reply To ThisUser Info#6 — Thu, 2007-05-03 12:55

http://mediamatters.org/items/200704300002

Here is a liberal perspective on the "fast" pace of the SJC in processing Bush's judicial nominees. It conveniently neglects to mention that the Dems promised to process at least one COA nominee a month and are already behind on that schedule.

Unfortunately, though, a lot of this problem was brought on by the Republican-controlled SJC's refusal last year to quickly process Kent Jordan, Debra Livingston, Raymond Kethledge, Stephen Murphy, Peter Keisler and Thomas Hardiman before the end of the 109th Congress. If they had, it would've been much easier now to showcase the Dems' delaying tactics.

Reply To ThisUser Info#7 — Thu, 2007-05-03 12:59

This comment sounds like Leahy has allowed Livingston a committee vote today without the usual week's delay.

Either that or she doesn't get delayed the automatic week until they get past all the delays that took place prior to her officially reaching the point of "consideration". As soon as she actually gets "considered", some Dem bozo gets an additional week delay.

Reply To ThisUser Info#8 — Thu, 2007-05-03 13:14

The third to last paragraph of Leahy's Statement starts out: "With the THREE nominations we report today ..." (my emphasis) Since there are four noninees (Livingston and 3 DJ nominees) on today's agenda, that clearly indicates that three of them are being voted on and reported and one is being held back.

Which one? Does anyone have an update on this? I have the usual bad feeling about this ...

Reply To ThisUser Info#9 — Thu, 2007-05-03 13:28

Reading over Leahy's Statement again, I see that Leahy says in paragraph 2 that only three nominations are being considered today: Livingston, Sullivan and Van Bokkelen. This is at variance with the Agenda, which also lists DJ nominee Roslynn Mauskopf. If Leahy's Statement is accurate, it looks like Mauskopf was dropped for some reason and only 3 nominees were considered today.

In that case, Paragraph 5 clearly indicates that Livingston was voted on and reported to the Senate Floor today. Let's hope this is so (condolences to Mauskopf).

Reply To ThisUser Info#10 — Thu, 2007-05-03 13:45
Outsider by jtp7

Read the first two paragraphs of Leahy's statement

"The Committee continues to make significant progress today with three more nominations for lifetime appointments to the federal bench on our agenda, including a nomination to a federal Circuit Court.

The judicial nominations we consider today are Debra Ann Livingston to the United States Court of Appeals for the Second Circuit, Richard Joseph Sullivan to the District Court for the Southern District of New York, and Joseph S. Van Bokkelen to the District Court for the Northern District of Indiana. "

From that it looks like the other NY DJ got left out not Livingstion.

Plus can someone explain why Van Bokkelen has moved so quick. He is going to get a vote before his seat is even empty. What gives. Why would they move on that and not some of the other DJ judicial vacancies which are CURRENTLY vacant and have been for sometime and that have a higher caseload. I can't imagine Indiana DJs being overworked as compared to say some of the California DJs swamped with immigration caseloads. His is not even a judicial emergency according to uscourts.gov. I just dont get it sometimes.

Reply To ThisUser Info#11 — Thu, 2007-05-03 13:49
jtp7 by BoBo

The name of the game is subterfuge. The Democrats say that that their priority is filling all open judicial emergency seats first, but that is just some cover-up to allow them to go at a slower pace. Van Bokkelen is a prime example. Lugar of Indiana probably has an "in" with some prominent Dem senators.

Reply To ThisUser Info#12 — Thu, 2007-05-03 14:07

As you can see from my post #10, I did go back and read those two paragraphs, and came to the same conclusion as you did. Leahy's a tricky devil, no? I wonder what the problem was with Mauskopf.

Great news that Debra Livingston is finally out of Committee. If the pattern of a one-week interval with Smith and Hardiman continues, she could be confirmed at the end of next week, opening the window for consideration of the next CCA nominee, presumably Keisler or Southwick. That's a big "if", though.

I too thought the choice of Van Bokkelen was a curious one. I think the expanation is that Dems are doing anything possible to avoid consideration of the five 1/9/07 4th Circuit DJ nominees, including processing nominees for future vacancies. If they start doing the March nominees before the "4th Circuit 5", it should be clear to everyone what's up.

The Democrat blockade of the 4th Circuit appears to have expanded from Circuit judges (which they've been obstructing for years) to District judges as well. I realize that Dole and Burr are relatively junior, but are they such totally impotent ciphers on judicial nominations that they can't even get their District judge nominees considered?

Reply To ThisUser Info#13 — Thu, 2007-05-03 14:22
Leahy is a slob by Matthew Friendly

"With Judge Thomas Hardiman’s confirmation to the Court of Appeals for the Third Circuit last month...."

Uh, excuse me Mr. Genius Senator, Judge Hardiman was confirmed in March, not April. You have to stop recycling the same Statement each time a Business Meeting comes up. It's embarrassing for you.

Reply To ThisUser Info#14 — Thu, 2007-05-03 14:28
Outsider by jtp7

Yeah you got your post 10 up right before I got my post up. I did not see it by the time I clicked post. Sorry. I think those WD-MI nominees will be next to go. So those NC DJs will just have to get to the back of the line again. When is Liberman going to switch parties? Sigh.

Reply To ThisUser Info#15 — Thu, 2007-05-03 14:31
Mauskopf by Matthew Friendly

It appears Mauskopf's nomination (Eastern District of NY) is now being undermined, just as Judge Donohue's was for the Northern District of NY. Someone (perhaps Chuckie Cheese or Gov Spitzhead?) in NY is going after these female District Court nominees.

Reply To ThisUser Info#16 — Thu, 2007-05-03 14:31

Debra Ann Livingston, Richard Sullivan and Joseph Van Bokkelen are officially out of committee. All three are listed now on the Senate's Executive Calendar:

http://www.senate.gov/legislative/LIS/

Reply To ThisUser Info#17 — Thu, 2007-05-03 19:49

Here is the correct link to the Executive Calendar

http://www.senate.gov/legislative/LIS/executive_calendar/xcalv.pdf

Hopefully, Livingston will be voted on next week. Presently, there are four district court nominees on the Calendar - Kapala, Settle, Sullivan and Van Bokkelen.

Reply To ThisUser Info#18 — Thu, 2007-05-03 19:53

It's not clear to me whether the author/s of the essay intended to endorse the living Constitution theory that is at odds with originalism. Originalists would agree that the "broad provisions are continually applied to complicated new situations." Originalists object when the Court changes the very meaning of those "broad provisions," not when the Court applies those provisions to situations that have not arisen before (e.g. police use of thermal images to catch marijuana growers in Kyllo). But the phrase "living Constitution" by itself connotes the former idea, and I agree with Andrew that this essay needs tweaking.

Reply To ThisUser Info#19 — Fri, 2007-05-04 13:06




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