You're in danger of forming your own circular firing squad. I'd stop you, except that it's so darn entertaining to watch.

david:

It just cracks me up how easy it is to do to a paragon of conservative jurisprudence what they did to Ms Miers. It shows how frivolous their objections were.

As an appeals court judge he is bound by the precedent set by Roe v Wade, but as a Supreme Court justice he is not. This is the same question that came up with Roberts.

No he isn't.

Robert: But the claim during October was that Miers must go because she didn't have a clean and ambiguous record showing that she would overturn Roe v. Wade. So now we have Alito...who has no clean and ambiguous record showing that he will overturn Roe v. Wade.

Robert & oj - He's bound by his oath of office to support the Constitution, which leaves abortion law to the states, but he's bound by juridical custom to support Supreme Court precedents. I guess custom won. If the Constitution had won, he'd be unconfirmable.

pj:

Yes, if he thinks custom is more important than judicially sanctioned murder then he doesn't deserve the support of folks who opposed Miers.

I meant UNambiguous, of course...

PJ: To be fair, the Constitution does establish a Supreme Court and allows the Congress to set up inferior courts. For the inferior courts set up by Congress, the law to be applied is what the Supreme Court says it is. As Scalia has said, if you can't live with that, you have no business being a federal judge.

OJ: I have that amusing buzz everytime Schumer, et al., revere Justice O'Connor on their way to slamming Roberts/Miers/Alito. Sandy O'Connor wouldn't have a chance of getting confirmed these days.

Of course Alito was bound by Sup. Ct. precedent re: the partial birth abortion decision and the others. His ruling in Casey was possible only because of the (O'Connor trademark) opacity of the "undue burden" test.

You're a good blogger, but you'd be the world's worst judge.

You can't both uphold the Constitution, as you're sworn to, and defer to evil just because it's precedented.

Sure you can. "Constitutional" does not mean good, nor does "unconstitutional" mean evil. If a judge can't square his conscience with the constitution, he needs to resign.

OJs point may be valid - the skepticism on Miers over abortion isn't being leveled at Alito due to Alito being on the NRO etc. chosen list.

You can't both uphold the Constitution, as you're sworn to, and defer to evil just because it's precedented.

That's only if your personal religious views trump established legal precedent. If you can't enforce the law of the land because it conflicts with your personal religious and moral views than don't be a judge.

For example, Dred Scott was an evil and immoral racist ruling. Anyone whose moral and religious views were in opposition to the evil of slavery and racism could only do one thing - resign from the bench in protest. They could not legally change the ruling of a superior court, nor could they in good conscience enforce such a ruling.

No wait, you like slavery....

I must really have lost the thread in the whole Miers debate, as I don't remember anyone objecting to her because she wasn't a firm anti-Roe vs. Wade vote. I remember it being because she demonstrated no obvious talent for law and understanding the Constitution. May be I just read things in the wrong places.

AOG:

Yes, you read the elite white male geeky sites. She was yanked because the Religious Right thought she was an uncertain vote against Roe. Brownback was the only Senator who mattered.

David:

Of course Constitutional means good. If it doesn't protect our God given rights we're duty bound to get rid of it.

OJ: just give it a rest. Harriet Souter was in over her pretty little head and even she knew it. Alito is a bright guy who is conservative in a very profound way. The opinions he wrote were correct and in accordance with his duties. There can be no complaint about any of them. The Miers you are romanticizing is a figment of your imagination. She is no longer an issue, so you can drop it.

AWW --

Meirs revived all of those unpleasant memories about Souter. She was an unknown quantity; Alito isn't. The last crap shoot got us Souter. Live and learn.

Some days it seems like half the people around here think that Meirs was just another clever Rovian feint, the other half think that she was the Next Coming taken down by the Evil Neocon establishment. This might as well Kos or Moveon for all of the conspiracy theories on this subject. Why is it so hard to accept that GWB simply put forth a weak candidate, got called on it, and did better the next time around?

curt:

He did make a mistake the first time in underestimating the depth of the secular Right's hatred of Evangelicals, like himself. Now he's giving us Souter.

oj --

You're certainly on a roll.

OJ, please, your histrionics are surpassing Sen. Reid's. You are endlessly better than this dead end into which you insist on crashing.

OK, so in OJ land "constitutional" means good and every judge is required to enforce is own idea of what is constitutional without regard to what the Supreme Court says. So every day the laws to be enforced in court vary depending on what judge you get and his conception of Good that day? If the family court judge just joined Opus Dei, there won't be any divorces in front of him that day? Prosecutors should just keep pulling pornographers into court day after day until a judge is assigned willing to put them in jail and the pornographers should just file appeal after appeal until they get a panel willing to let them out?

Marriage isn't a right.

How can a judge who believes that divorce is evil grant divorces if he has sworn to uphold the constitution and constitutional means good?

David Cohen:

"Constitutional" does not mean good, nor does "unconstitutional" mean evil.

I was about to applaud your comments and express my wish that more liberals would understand that elusive concept before I ascertained the gigantic trap I had just set for myself and was about to wander into.

He's sworn to uphold the Constitution, and marriage isn't a right. Life is.

"marriage isn't a right. Life is."

What is that supposed to mean?

OJ: Cher Ami; SCOTUS can stop the enforcement of a law, but they cannot make a law. Roe stopped the enforcement of laws against abortions. Reversing it will not enact any laws.

If Roe were reversed, abortion would be illegal in those states where there were still laws on the books laws against it, but not in those states where there were no such laws.

At Common Law, the death of a fetus was not homicide. It is only statute that makes abortions illegal.

So there's something more to judging than each judge applying their own sense of good and evil. Does that mean that, in some circumstances, a judge is required to enforce a law even if he deems the effects of that law evil?

For example, I think that our nation was well-served by Southern segregationist judges who nonetheless enforced the Supreme Court's anti-segregationist precedents, as well as Congress' Civil Rights laws. You would apparently have advised them that, as they quite sincerely believed that those precedents and statutes were both unconstitutional and contrary to the natural order, in their courts they should not have been enforced.

Maybe "stare decisis" should be consigned to the same ash heap of history where "I was just following orders" can be found.

David:

No. Everyone has the rights to life and liberty. They are the goods that precede the Constitution.

Slavery and segregation were enforceable only if blacks weren't human.

And yet they were constitutional.

He did make a mistake the first time in underestimating the depth of the secular Right's hatred of Evangelicals, like himself.

My, aren't we paranoid. This is starting to sound like whiny victimhood. Do we need affirmative action for evangelicals, to protect them from those mean secular people?

Robert:

Yes, Evangelicals should certainly have at least a couple seats on the Court.

Why? Are they entitled? You really are a multiculturalist.

The Court ought to reflect the country if it is to be legitimate. In a nation that is so heavily tilted towards evangelical Christianity it's absurd that they aren't represented on the Court.

Evangelicals are just 9% of the population. Non-religious are 15%, we should get a representative too, no? No taxation without representation.

This is exactly what multiculturalism is all about, treating people as members of a collective rather than as individuals. How do you know an evangelical wants someone to represent his religion on the court, rather than his political views? We're not Yugoslavia or Iraq, we're America. We don't need no stinkin' quotas!

Evangelicals were 23% of the vote in '04. Those who don't believe in God are 5% of the American population.

See the facts:

* 85% of Americans self-identify as Christians. (2002)
* 7% of US adults classify as evangelicals (2005) (see Evangelical category for more information)
* 33% of US adults classify as born again, but not evangelical. (2005)
* 37% are self-described Christians but are neither evangelical nor born again (2002)
* Atheists and agnostics comprise 9% of adults nationwide. (2005)
* 11% of the US population identify with a faith other than Christianity (2004)

* 69% believe in God when described as the all-powerful, all-knowing, perfect creator of the universe who rules the world today. (2005)
* 7% believe that God is the total realization of personal human potential. (2005)
* 15% say God is no longer involved in their life. (1997)
* Almost nine out of ten people (87%) say the universe was originally created by God. (2000)

Yes, 95% of Americans believe in God

Born Agains are Evangelicals--23% self-identified in exit polling after the '04 election.

How do you square 95% believing in God with 9% who are atheists? And the other 6% of the non-religious who say that God is not involved in their lives are functional atheists, they have nothing in common with the 85% who are real believers.

Born agains are not all evangelicals, but all evangelicals are born again. Barna has a good definition of the distinctions somewhere on his site.

Polling shows a consistent 95% belief in God, of whatever variety. That's all the republic requires.

You can add evangelical and born again if you want--seems easier just to use the one term.