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Alito, what *should* be asked

Im missing the point of this entire farce.

Im sure it should *have* a point, Im just not sure the democrats or the republicans have any idea what it is.

Clearly expecting a judge to assert exactly how they would vote on any given topic is utterly impossible since everything is going to depend on the circumstances of the case.

Clearly therefore trying to get a judge to make that assertion, and asking how they would vote is an entire waste of time.

so....what *should* be asked? how can we decide ahead of time whether a person would make a good judge or not?

If you had the opportunity, what would you ask Alito? under what circumstances would you reject him?
Permalink Jesus H Christ 
January 11th, 2006
So far, he's made most of the "right" answers. (I put that in quotes to indicated there may or may not be any "right" answers, in fact, only politically expedient ones).

He upholds Starri Decisis (sp?) -- anyway, the idea that things that have been settled shouldn't be ripped up again for no good reason. He's against Roe V. Wade, but not in a doctrinaire way. He affirmed a right to privacy -- another Roe V. Wade topic.

His big warts all seem to stem from his 1985 job application, where he was proud to belong to Concerned Alumni of Princeton -- concerned too many women and blacks were getting in. And he declared he would recuse himself from any cases concerning the Vanguard mutual fund, which he owned stock in, and 12 whole years later forgot to recuse himself. That one gets Ted Kennedy every time.

Out of several questions that can't be asked, or wouldn't be answered in a useful way if there were, is "are you now lying to us?" I sure hope he isn't. Having Roberts and Alito both appointed so close together, and answering things so similarly -- they could wield a lot of authority on the bench if they "change their minds" once approved.
Permalink AllanL5 
January 11th, 2006
I actually have an idea that *any* judge who has served x years as judge should on the whole be appropriate material.

So that means somehow they are trying to find the exception to that rule.
Permalink Jesus H Christ 
January 11th, 2006
OK, I googled it, and it's "Stare Decisis" (pronounced "Starry").
Permalink AllanL5 
January 11th, 2006
In addition, some more warts come from his earlier applications for judgeship, and his responses are on the lines of "well, I said those things back then to get the job." And a reasonable reply is "ok, so you either lied back then, or you are lieing right now. How can we believe that you aren't lieing right now?"
Permalink Peter 
January 11th, 2006
I find it hard to believe Bush would nominate anyone who won't jump at the chance to tear Roe v. Wade asunder as soon as it gets near the bench.

But better questions would be about executive power and separation of powers. I heard a little bit about that early on, but that's probably where I'd spend all my time.

Philo
Permalink Philo 
January 11th, 2006
They should ask him if he thinks hitler was a great leader, that'll tell you a lot about his character and judgement.
Permalink ActivelyDisengaged 
January 11th, 2006
"if he thinks hitler was a great leader"

?? hitler was a coward you nazi loving socialist. He cannot *possibly* have been a great leader.
Permalink Jesus H Christ 
January 11th, 2006
"I find it hard to believe Bush would nominate anyone who won't jump at the chance to tear Roe v. Wade asunder as soon as it gets near the bench. "

right, thats the kind of thinking the democrats are encouraging.
Ultimately though the man is a judge, and no one understands the importance of precedent more than a judge.

He has years of experience in interpreting the law and has presumably done so honestly for the most part.
Permalink Jesus H Christ 
January 11th, 2006
Arnie thought he was a great leader.
Permalink Colm O'Connor 
January 11th, 2006
"under what circumstances would you reject him?"
Any and all.
Permalink Star Wars Kid 
January 11th, 2006
yeah, thats really added to the conversation SWK. prat.
Permalink Jesus H Christ 
January 11th, 2006
Whassamatta, JHC? Someone hawkaloogie in your marmite? [g,d,r]
Now, to the purpose: You asked a question, I answered it. Don't like the answer? Fine, feel free to cram it up your gerbil-ridden arse. [g,d,r]
Jeeze. Try to do someone a favor...[g,d,r]
Permalink Star Wars Kid 
January 11th, 2006
yeah SWK [c,w,a,d]*

you [i,t,f,r]^ really [c,w,a,d] found [i,t,f,r] an [s,a,y]$ interesting [i,t,f,r] answer [c,w,a,d]

prat. [s,a,y]





*[christ, what, a, dumbass]

^[is, this, fucker, retarded?]

$[spitting, at, you]
Permalink Jesus H Christ 
January 11th, 2006
"Ultimately though the man is a judge, and no one understands the importance of precedent more than a judge."

So how come every Supreme Court decision isn't 9-0?

Philo
Permalink Philo 
January 12th, 2006
sorry, philo, Im not even sure i understand your question?

Clearly every judge has to come to their own conclusion, thats what we have them for.
Personally I find the whole business of whinging on about their 'biases' entirely pointless, we *want* a range of views and we *want* judges capable of thinking through the issues clearly and carefully.
Permalink Jesus H Christ 
January 12th, 2006
I think Philo's point was, if all Judges understand the value of precedent so much, wouldn't you think they'd all agree?

And sure, they might agree about precedent -- but that still leaves them lattitude to interpret the Constitution and the law differently.

And probably they DON'T all agree about precedent. Judge Bork was pretty adamant there was no right to privacy in the Constitution. I'm not a Constitutional scholar, so I wouldn't know -- but I do know the right to privacy has been 'found' in the Constitution -- implied in several ways (preventing unreasonable search and seizure IS in the Constitution)

So, the Senate is trying to determine if an unprincipled ideologue is trying to be confirmed, or if Alito is a principled Judge who'll examine each issue with an open mind. Unfortunately the answers of both personalities would be pretty similar.

And even if he IS principled and a good guy and all that, would he overturn Roe V. Wade?
Permalink AllanL5 
January 12th, 2006
The thing I don't understand is how the right to privacy is in any way a factor with Roe vs Wade.  If the point is that a womans right to choose is a private personal thing and the government shouldn't interfere, then isn't a womans right to snort coke under the same precident?
Permalink Phil 
January 12th, 2006
In terms of Abortion being a Right, I think there are two questions:

A) Does a person have the Right to do anything they want with their own body?
B) Does a person have the Right to claim services of another human being against their will?


If the answer to A) is "yes", then most drug laws, the limitations of selling your own organs, etc all go out the windows. If the answer is "no", then the abortion question is irrelevant.

If the answer to B) is "yes", then slavery must be legal also. If the answer is "no", then the abortion question can still be asked and is therefore wholely dependent on A) and the implications of that.
Permalink KC 
January 12th, 2006
Griswold v CT is pretty much the basis for almost all privacy decisions (as well as Roe v Wade). The premise in Griswold is that several of elements of the bill of rights are based upon a concept of privacy (the language used refers to shadows or penumbras, and is based on Plato's cave+shadow story).

Privacy in Roe v Wade:
The law recognizes that there is a doctor-patient privacy, and this priviledge/right was abridged by laws prohibiting abortion (supposedly, they violate amendments 9 & 14). The state's restriction of abortion didn't pass a "strict scrutiny" test (compelling state interest).

If you bother to read Roe v Wade, you'll find out that laws prohibiting abortion are a late 19th Century phenomenon (most cultures held/hold that life began at birth). Very few laws prohibiting abortion were passed before that time. And the anti-abortion laws were passed at the same time as the anti-contraception laws.

Probably the passage that pisses off the pro-lifers is "On the other hand, the appellee (state of texas) conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.
....
All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn."

That's why all the pro-life laws (and proposed constitutional amendments) all try to declare that life begins at conception.

Ultimately, religion boils down to controlling women and ownership of children. Most try to reduce women to the Aristotelean notion that "women are flowerpots in which man's seed grows." Prohibiting abortion and contraceptives are part of that control.

http://www.tourolaw.edu/patch/Roe/
http://en.wikipedia.org/wiki/Comstock_Law
Permalink Peter 
January 12th, 2006
Great Peter, but then why do we have the hypocracy KC mentioned above of not allowing one to use drugs or sell organs?
Permalink Phil 
January 12th, 2006
When it comes to drugs, or "terrorism" rational thought goes out the window. On other posts, I use a phrase "stops people thinking." When certain trigger phrases/words are used in discourse/propaganda, the ability to rationally think about the subject under discussion ceases. That is why the bush-rove regime appears to be popular: they excel at picking out trigger phrases to stop rational discourse on subjects, and to hijack discourse they can't stop.

It looks like Gonzales v O Centra Vegetal hasn't been decided by the supreme court yet, but so far (as has been held by the courts so far), the Religious Freedom Restoration Act (which requires *by law* strict scrutiny) is going to make narcotics as part of your church legal.

http://volokh.com/posts/chain_1130786996.shtml
http://blogs.salon.com/0002762/stories/2005/01/29/governmentGetsSupremeFreeR.html
http://www.u.arizona.edu/~gillm/Paying%20for%20Kidneys.pdf

So, to answer part of the question above: drug laws won't pass strict scrutiny. The hypocracy appears because drug laws are never subjected to strict scrutiny except in very few cases, such as Gonzales v OGV.

As for sales of body parts, ummmm, that's icky.
Permalink Peter 
January 12th, 2006
"As for sales of body parts, ummmm, that's icky."

If I truly own my own body and have exclusive Rights over it:

Why shouldn't I be able to sell my hair?
Why shouldn't I be able to sell my kidney?
Why shouldn't I be able to take the drugs I choose to*?


* And before you ask... Yes, I'm a Libertarian and believe that the government shouldn't make those sorts of rules. As a Christian, I simply wouldn't choose to use drugs.
Permalink KC 
January 12th, 2006
1. I think you are allowed to sell your hair.

2. I think you are allowed to give away your kidney.

3. There are certain drugs, on a certain list, that it is illegal to take.

Two out of three ain't bad.
Permalink AllanL5 
January 12th, 2006

This topic was orginally posted to the off-topic forum of the
Joel on Software discussion board.

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