What is the Federalist Society?
Continue Reading "What is the Federalist Society?" . . .
Does anyone believe we need the Federal government's help to stop those darned states (especially the red ones) from approving of child labor? Let's grant that some states would not adopt the position of the EPA if somehow we were to return to a federal government of limited powers (by, say, adopting something like that wildly moderate Justice O'Connor's position in Raich); they might even differ from the approach of OSHA. But CHILD LABOR? Were these people never read the story of the boy who cried wolf?T. More titles his post "Or, if he says he's against child labor, will you support him?"
The media seems to be having trouble figuring out whether John Roberts was a member of the Federalist Society. Maybe they should just read the transcripts from Federalist Society events. Here's a quote by Elliot Mincberg of PFAW at a Federalist Society event on 9/9/03:So is being a Fed Soc member enough to hang one, or does one have to have those "points of view" and "other things" as well? I'm having troubling visions of an improbable future in which I am nominated for some high post, and being queried as to whether I am now or have ever been a member of the Federalist Society. Maybe some of the Hollywood Ten were just Communists for the good events and hot guys.Anybody who honestly believes that people like Miguel Estrada and John Roberts were selected solely because of merit without any view whatsoever about their points of view, their membership in the Federalist Society, other things, I have a bridge I would love to sell them.No one else on the panel objected to Mincberg's description of Roberts, including Leonard Leo, the Federalist Society’s executive director.
Supreme Court nominee John G. Roberts Jr. has repeatedly said that he has no memory of belonging to the Federalist Society, but his name appears in the influential, conservative legal organization's 1997-1998 leadership directory.
Finally, my colleagues’ insistence that police should haveThe Tarry opinion thus stands as a good example of the substantive conservatism of Judge Roberts, but, perhaps even more, of the measured and restrained approach to judging. He recognizes the deeply important value of being free from unreasonable searches, but he also is keenly aware of the difficulties law enforcement officers face on the ground. His approach would provide greater deference to these law enforcement personnel, in part because he thinks judges cannot post hoc adequately understand the situation in which the officers found themselves. Furthermore, Judge Roberts also expresses a view that judges are not all-powerful, and are limited in their abilities and understandings. Perhaps this suggests an ultimate unwillingness in some cases to bring the full weight of his opinion to bear (see Roper v. Simmons) when all that stands behind it is his own opinion. As Judge Roberts eloquently puts it: "I wholeheartedly subscribe to the sentiments expressed in the concurring opinion about the Fourth Amendment's place among our most prized freedoms. But sentiments do not decide cases; facts and the law do."
further questioned Jackson amounts to prescribing preferred
investigative procedures for law enforcement. We have neither
the authority nor the expertise for such an enterprise. See United
States v. Montoya de Hernandez, 473 U.S. 531, 542 (1985)
(“creative judges engaged in post hoc evaluations of police
conduct can almost always imagine some alternative means by
which the objectives of the police might have been accomplished”
(internal quotation marks omitted)). In the end, I would
leave the judgment as to what lines of inquiry ought to be
pursued to the officer himself, and judge probable cause on the
facts as they are, rather than on what they might have been had
the officer pursued a different course.
If extremists take control of the Supreme Court, we will end up with an America in which the federal government is powerless to protect against air pollution, unsafe working conditions and child labor.Now, who was it that let the word out? Was it you Phocion, or you Helvidius, that gave away the secret notes from the Federalist Society meetings where we all dreamt of a future of employing kids to make socks even more cheaply than Chinese prison labor? It's really hard to imagine how even the editors at the New York Times thought that line was appropriate for a "real" newspaper, rather than, say, Mad Magazine. Does anyone believe we need the Federal government's help to stop those darned states (especially the red ones) from approving of child labor? Let's grant that some states would not adopt the position of the EPA if somehow we were to return to a federal government of limited powers (by, say, adopting something like that wildly moderate Justice O'Connor's position in Raich); they might even differ from the approach of OSHA. But CHILD LABOR? Were these people never read the story of the boy who cried wolf?
There are reasons to be concerned about Judge Roberts on this score. He dissented in an Endangered Species Act case in a way that suggested he might hold an array of environmental laws, and other important federal protections, to be unconstitutional.Truly unbelievable. Judge Roberts's dissent was from a denial for en banc rehearing of a case in which he was worried about whether a particular application of the Endangered Species Act was being upheld on grounds inconsistent with the Supreme Court's commerce clause jurisprudence. He in no way raises concerns about the act itself, and indeed suggests merely that better grounds for upholding its Constitutionality might be found if the whole Circuit were to rehear the case:
The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating "Commerce ... among the several States." U.S. Const. art. I, § 8, cl. 3. To be fair, the panel faithfully applied National Association of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997). En banc review is appropriate because the approach of the panel in this case and NAHB now conflicts with the opinion of a sister circuit - a fact confirmed by that circuit's quotation from the NAHB dissent. See GDF Realty, 326 F.3d at 636 (quoting NAHB, 130 F.3d at 1067 (Sentelle, J., dissenting)). Such review would also afford the opportunity to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent. See Rancho Viejo, LLC v. Norton, 323 F.3d at 1067-68 n.2.That the Times would so shamelessly distort such a brief dissent from a refusal to rehear en banc tells us all we need to know (not that we didn't already know it) about the sincerity of their "withholding judgment" at this early stage.
"Because a coherent rationale for the intermittent invocation of stare decisis has not been forthcoming, the impression is created that the doctrine is invoked only as a mask hiding other considerations. As a result, stare decisis seemingly operates as a lightning bolt: on occasion it may strike, but when and where can be known only after the fact. A satisfactory theory of constitutional adjudication requires more than that."His justification for Stare Decisis:
"[S]tare decisis operates to promote system-wide stability and continuity by ensuring survival of governmental norms that have achieved unsurpassed importance in American society.
Bork is, in my mind, absolutely correct. "Activist" and "Moderate" are the same thing, although I guess a moderate may be somewhat less of an activist. It's probably too late in the game to save the word "activist," but if it is to mean anything (since Balkin, et al.'s method is useless) it must mean what Bork takes it to mean--a judge who departs from what the actual Constitution tells them to do.
BORK: I think that referring to a moderate philosophy and a conservative philosophy and so forth is quite wrong. The question is, those judges who depart from the actual Constitution, and those who try to stick to the actual Constitution. She departed from it frequently. So I wouldn't call that moderate. I would call it unfortunate. But she is -- she is -- as a result, she often determined the outcome by swinging from one side to the other.
KAGAN: OK. Instead of looking back on Judge O'Connor, let's look forward. Whatever nominee, whoever is picked, whoever President Bush picks, they use your nomination process as an example of what they don't want to happen. A lot of people -- a lot of conservatives do wish that you had been confirmed and serving on the high court. Instead, it's been Justice Kennedy, who has been more moderate than a lot of people think.
BORK: I wish you would stop using the word "moderate." But go ahead.
KAGAN: Well, no. What would you use? How would you compare what Justice Kennedy has done instead of perhaps what you have done if you had been on the court.
BORK: I would call it activist.