quote:

Originally posted by Shakka So, Joe Biden thinks we have a tri-cameral legislature in this country. Maybe somebody should send him a copy of the Constitution so he can figure out how all of this crazy law making stuff works. Transcript from Face The Nation last Sunday... http://www.cbsnews.com/htdocs/pdf/face_070305.pdf What what what?!?! Did he just say that Supreme Court Justices get to make NEW LAW??? Take off shoe, insert foot.

You can bash Biden all you want as far as I'm concerned. I'm sick of this slickster tryin' be the media darlin' for the Dems. when he does nothin' but give credit card companies a free pass on the corrupt bankruptcy bill that passed a few months back (most of their PO boxes are in his neck of the woods).

I do think, however, you get the gyst of what he was saying - that the ultimate say on the law is indeed the SC, not the circuit courts. And it is the SC justices that have overruling powers to change the law, or at the very least overturn a standing law (which by logical default creates new law).

It it interesting in examining who exactly does this the most - who tends to overturn existing law the most. It does seem that this very essence of re-writing laws or overturning existing laws is the very definition of "activist" judges, as the Far Right wingers decry, is it not? It also tends to be a favorite label of Right Wingers upon the so-called "liberal" judges - or at least those judges who tend not to rule in favor of wingnutters' beliefs. Indeed, the success of the wingers to label "activist" judges to liberalism is quite evident.

So whom would you expect in our current SC justices that would fit this bill of overturning existing law the most? Whom would best fit the label of "activist" judges on our current SC?:

quote:

July 6, 2005 So Who Are the Activists? By PAUL GEWIRTZ and CHAD GOLDER Correction Appended New Haven WHEN Democrats or Republicans seek to criticize judges or judicial nominees, they often resort to the same language. They say that the judge is "activist." But the word "activist" is rarely defined. Often it simply means that the judge makes decisions with which the critic disagrees. In order to move beyond this labeling game, we've identified one reasonably objective and quantifiable measure of a judge's activism, and we've used it to assess the records of the justices on the current Supreme Court. Here is the question we asked: How often has each justice voted to strike down a law passed by Congress? Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act "of great delicacy, and only to be performed where the repugnancy is clear." Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred. Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like one reasonable definition of judicial activism. Since the Supreme Court assumed its current composition in 1994, by our count it has upheld or struck down 64 Congressional provisions. That legislation has concerned Social Security, church and state, and campaign finance, among many other issues. We examined the court's decisions in these cases and looked at how each justice voted, regardless of whether he or she concurred with the majority or dissented. We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below. Thomas 65.63 % Kennedy 64.06 % Scalia 56.25 % Rehnquist 46.88 % O’Connor 46.77 % Souter 42.19 % Stevens 39.34 % Ginsburg 39.06 % Breyer 28.13 % One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist. To say that a justice is activist under this definition is not itself negative. Because striking down Congressional legislation is sometimes justified, some activism is necessary and proper. We can decide whether a particular degree of activism is appropriate only by assessing the merits of a judge's particular decisions and the judge's underlying constitutional views, which may inspire more or fewer invalidations. Our data no doubt reflects such differences among the justices' constitutional views. But it even more clearly illustrates the varying degrees to which justices would actually intervene in the democratic work of Congress. And in so doing, the data probably demonstrates differences in temperament regarding intervention or restraint. These differences in the degree of intervention and in temperament tell us far more about "judicial activism" than we commonly understand from the term's use as a mere epithet. As the discussion of Justice Sandra Day O'Connor's replacement begins, we hope that debates about "activist judges" will include indicators like these. Correction Because of an editing error, this article misstated the date the court started. Its first official business began in 1790, not 1791. Paul Gewirtz is a professor at Yale Law School. Chad Golder graduated from Yale Law School in May. http://www.nytimes.com/2005/07/06/o.../06gewirtz.html

Hmmmm.....

___________________
Whence September dusk grows crisper still,
with leaves all crimson conquered,
I yearn to shout,
and dance about,
and stick pickles in my honker...

quote:

Originally posted by Shakka What what what?!?! Did he just say that Supreme Court Justices get to make NEW LAW??? Take off shoe, insert foot.

oh, yeah. sometimes you're true intentions slip out when you try too hard to hide them. it happens to me with the ladies all the time...me being a desperate piece of shit asian trying to get a nut in a world full of hot caucasian tourist chicks. it happens.

quote:

Originally posted by MisterOpus1 You can bash Biden all you want as far as I'm concerned. I'm sick of this slickster tryin' be the media darlin' for the Dems. when he does nothin' but give credit card companies a free pass on the corrupt bankruptcy bill that passed a few months back (most of their PO boxes are in his neck of the woods). I do think, however, you get the gyst of what he was saying - that the ultimate say on the law is indeed the SC, not the circuit courts. And it is the SC justices that have overruling powers to change the law, or at the very least overturn a standing law (which by logical default creates new law). It it interesting in examining who exactly does this the most - who tends to overturn existing law the most. It does seem that this very essence of re-writing laws or overturning existing laws is the very definition of "activist" judges, as the Far Right wingers decry, is it not? It also tends to be a favorite label of Right Wingers upon the so-called "liberal" judges - or at least those judges who tend not to rule in favor of wingnutters' beliefs. Indeed, the success of the wingers to label "activist" judges to liberalism is quite evident. So whom would you expect in our current SC justices that would fit this bill of overturning existing law the most? Whom would best fit the label of "activist" judges on our current SC?: Hmmmm.....

I saw that Times article yesterday. It doesn't change what Biden said, or what he is implying about how he thinks. I think most of us would agree that the SC is the ultimate arbiter in interpreting a law, but their charge is certainly not to write/create new legislation from the bench, which is what Biden explicitly implies (regardless of the individual justices' track records).

quote:

Originally posted by Shakka I saw that Times article yesterday. It doesn't change what Biden said, or what he is implying about how he thinks. I think most of us would agree that the SC is the ultimate arbiter in interpreting a law, but their charge is certainly not to write/create new legislation from the bench, which is what Biden explicitly implies (regardless of the individual justices' track records).

I'll admit that I haven't read the full interview, just the part that you cut out. So with that said, I still think it's a bit of a reach to say that Biden was implying anything about writing or creating new legislation, simply with your bold text statement:

quote:

They don't get to make new law

Like I said earlier, and I'm really not trying to play partisan games because I'm more of a critic of Biden than a fan of him, I think this can be just as easily interpreted to state that SC justices can by logical default re-write or create new law by having the power to overturn any previous legislative law that they feel is unconstitutional. I know you probably don't need an example but I'm in a typin' mood - so here's one: Let's say they overturn Roe v Wade. Right now we have federal law that allows a woman's right to terminate a pregnancy if she so chooses (with some restrictions here and there I believe - haven't kept up too much on this issue). If the SC overturns this decision and leaves it up to the states, then BY DEFAULT a new law is created that implicitly allows states to decide and NOT the federal gov't.

So I won't put words in Biden's mouth - that ******'s got enough in there already. But I'm merely saying that given what he said, it can be easily interpreted in another manner.

___________________
Whence September dusk grows crisper still,
with leaves all crimson conquered,
I yearn to shout,
and dance about,
and stick pickles in my honker...

You just want the last word! He said what he said and we all know it was the wrong thing to say. I encourage you to read the full transcript--I don't think I took anything out of context, rather I think the Bide let a big one slip. Notice that the interview wrapped up almost immedately after he said that so he didn't have to defend the bullshit that had just come out of his mouth.


EDIT: Opus, upon further consideration, I have to call bullshit. An appellate court also has the power to overturn a decision, and thus "create new law" as you say. Where I'm from, we were taught that the Supreme Court is the final appellate court. Not that they necessarily have any additional powers than an appellate court, rather they are simply the ultimate arbiter if a case should make it to that level. In reading Biden's statement, he draws a clear line between a regular appellate court and the Supreme Court, and that division is marked by his claim that the Supreme Court "has the power to make new law" by his beliefs. Sorry, I don't buy it.

Regardless, I don't mean to harp on about what the guy said, I just think it's worth pointing out as we know both sides say and do things that none of us can stand or believe, and this is simply another example.

Last edited by Shakka on Jul-08-2005 at 01:49

You're jumping on Biden for mis-speaking once on a talk show?

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quote:

Originally posted by Lebezniatnikov You're jumping on Biden for mis-speaking once on a talk show?

Considering what he said, yeah. Who said he "mis-spoke"? I think he meant what he said.

quote:

Originally posted by Shakka You just want the last word! He said what he said and we all know it was the wrong thing to say. I encourage you to read the full transcript--I don't think I took anything out of context, rather I think the Bide let a big one slip. Notice that the interview wrapped up almost immedately after he said that so he didn't have to defend the bullshit that had just come out of his mouth. EDIT: Opus, upon further consideration, I have to call bullshit. An appellate court also has the power to overturn a decision, and thus "create new law" as you say. Where I'm from, we were taught that the Supreme Court is the final appellate court. Not that they necessarily have any additional powers than an appellate court, rather they are simply the ultimate arbiter if a case should make it to that level. In reading Biden's statement, he draws a clear line between a regular appellate court and the Supreme Court, and that division is marked by his claim that the Supreme Court "has the power to make new law" by his beliefs. Sorry, I don't buy it. Regardless, I don't mean to harp on about what the guy said, I just think it's worth pointing out as we know both sides say and do things that none of us can stand or believe, and this is simply another example.

I can't believe I'm still gonna defend Biden here (argh!), but I'm still feelin' that this is a pretty darn minor point of contention you're bringin up here, if there really is a point at all. Biden said:

quote:

They don't get to make new law

Which really isn't what you're stating he said anyway - rather you're stating that by the flip-side he's directly implying that the SC does get to make new law. Well my first point stands:

1. SC justices can and do make new law by having the ability to overturn Legislative laws they deem unconstitutional. I really don't know why this is an argumentative point here - it seems pretty obvious to me.

So next you counter that appellate courts can also make new law. Well yes, they can, but they can in turn be overturned (and often do) by the SC. Therefore the ultimate power lies in the SC to overturn existing laws and thus create new laws. So what Biden is stating is exactly right - SC has the ultimate say on what is and isn't a law.

And this brings me to my second point:

2. Is this really that big of a deal? I guess I'm not gettin' why this has got you so riled up. What exactly in his statement aside of what I'm quoting has gotten you worked up here? Are you maybe trying to work the angle that I've heard from a number of other conservatives in that there's supposedly a number of judges out there that cannot differentiate the separation of powers - the difference between the Legislative vs. Judicial branches and that some folks in the judiciary are supposedly trying to infringe on the Legislative powers here?

I guess I'm not quite following your point here, so I'm sorry if I'm fishing a little bit.

___________________
Whence September dusk grows crisper still,
with leaves all crimson conquered,
I yearn to shout,
and dance about,
and stick pickles in my honker...

quote:

Originally posted by MisterOpus1 I can't believe I'm still gonna defend Biden here (argh!), but I'm still feelin' that this is a pretty darn minor point of contention you're bringin up here, if there really is a point at all. Biden said: Which really isn't what you're stating he said anyway - rather you're stating that by the flip-side he's directly implying that the SC does get to make new law. Well my first point stands: 1. SC justices can and do make new law by having the ability to overturn Legislative laws they deem unconstitutional. I really don't know why this is an argumentative point here - it seems pretty obvious to me. So next you counter that appellate courts can also make new law. Well yes, they can, but they can in turn be overturned (and often do) by the SC. Therefore the ultimate power lies in the SC to overturn existing laws and thus create new laws. So what Biden is stating is exactly right - SC has the ultimate say on what is and isn't a law. And this brings me to my second point: 2. Is this really that big of a deal? I guess I'm not gettin' why this has got you so riled up. What exactly in his statement aside of what I'm quoting has gotten you worked up here? Are you maybe trying to work the angle that I've heard from a number of other conservatives in that there's supposedly a number of judges out there that cannot differentiate the separation of powers - the difference between the Legislative vs. Judicial branches and that some folks in the judiciary are supposedly trying to infringe on the Legislative powers here? I guess I'm not quite following your point here, so I'm sorry if I'm fishing a little bit.

Maybe not that big a deal, but at the same time I think it is indicative of the dirty battle we all know is going to take place when Dubya gets to make a couple of SC nominations (assuming Renquist is on his last leg). Doesn't it strike you as just a bit odd that he would say a person is qualified to be a judge on an appeals court, but absolutely not for the SC? Then the "new law" portion implies that the SC is somehow a 3rd branch of the legislature? I dunno, maybe it screams more to me than you.

quote:

Originally posted by Shakka Maybe not that big a deal, but at the same time I think it is indicative of the dirty battle we all know is going to take place when Dubya gets to make a couple of SC nominations (assuming Renquist is on his last leg). Doesn't it strike you as just a bit odd that he would say a person is qualified to be a judge on an appeals court, but absolutely not for the SC? Then the "new law" portion implies that the SC is somehow a 3rd branch of the legislature? I dunno, maybe it screams more to me than you.

Well you're definitely right about the oncoming bloodbath over this nominee, and both sides are sharpening their swords from what I gather. Does it strike me odd about an assertion of an appeals court judge not being qualified for the SC? Well I would reply that it depends entirely on the nominee, their past judgements, and how well they apply constitutional AND the most logical standards in their decisions. And again I'm gonna have to disagree just slightly about interpreting Biden and whether or not he's mixing up the Legislature vs. Judiciary. But I'm not gonna sweat this one too much more - it's Friday and I need some serious beer after class today!

___________________
Whence September dusk grows crisper still,
with leaves all crimson conquered,
I yearn to shout,
and dance about,
and stick pickles in my honker...

quote:

Originally posted by MisterOpus1 rather you're stating that by the flip-side he's directly implying that the SC does get to make new law.

That's what I think Shakka is doing too... I don't understand how you can criticize him for what you *think* he meant based on a non-sequitor.

But your reaction is interesting in this political day and age.

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