I thought yesterday's verbal arguments on New Hampshire's parental notification requirement in the Supreme Court were interesting, and I really have no problems with the way any of the justices handled the issue.

In fact, I'm finding this business of forcing the Legislature to very specifically set out their intent to be a good idea. That's why the whole law should be thrown out. As Justice Souter said, they very specifically set out NOT to have a health exception in the bill. That intent is unconstitutional.

The Court can tell them what would bring the law in line with the Constitution. As Justice Ginsburg said, the did't do enough...and if the Solicitor General arguing the case for Bush is to be believed, the Court can legally issue orders correcting the problem...but the real problem is a Legislature intent on hiding its hands after throwing the stone.

I like the fact that a partial audio recording...about an hour...of the Supreme Court deliberations on New Hampshire's abortion restriction laws was made available. I think it's worth a general listen... one finds constitutional law isn't that difficult to follow.

The argument presented by Solicitor General Paul D. Clement for the Bush administration had real, obvious problems. I isolated it and broke it into three exchanges that are rather interesting when examined through an originalist's lens, largely because the justices all put the lie to the "legislating from the bench" accusation. Here they are, in order, in context and complete.

The legislature makes the law, and the executive branch implements the law. The judiciary insures the other two branches operate within existing law. The operation of all three branches is directed and proscribed by the Constitution.

The Constitution opens by explaining the purpose of government, and by now we’re all grown up enough to stipulate they only meant to include white male landowners in that purpose. If we are to understand what the words of the Constitution meant to the men that wrote them, we must ignore that for the moment. What does it mean to perfect the union? How does one promote the general welfare? What is the most effective common defense?

To me, the critical question, the one on which a progressive textualist reading of the Constitution hangs, is, what are the blessings of liberty?

I've decided to have some discussions about interpreting the Constitution. I wouldn't be so presumptuous normally, but we've recently established you don't need judicial, or even legal, experience to do so.

Okay, I make a living being presumptuous. Whatever.

Anyway, I'll be deep in "People of the Word" territory. Knowing this, I thought I'd anchor the discussion with definitions from an impartial (because they got no clue I exist) source.

Originalist? Constructionist? A Confirmation-Hearing Glossary
Darlene Superville
The Associated Press
08-26-2005

When Supreme Court nominee John Roberts takes a seat for his Senate confirmation hearings, viewers in the hearing room and watching on television may find themselves confounded by some unfamiliar legal terms and phrases.

Not an originalist, a strict constructionist or a practitioner of stare decisis? Here are some explanations that may ease the confusion.

Let me know if the definitions aren't acceptable.

Quote of note:

Strong argument -- if only it had happened that way. Either those peddling this conveniently muddled version of events don't remember it correctly or they are betting that others won't. Listeners beware: Those who don't remember history are condemned to be spun by it.

The Ginsburg Fallacy
By Ruth Marcus
Tuesday, November 15, 2005; A21

To hear some Republicans tell it, letting Ruth Bader Ginsburg onto the Supreme Court was a tough pill to swallow. She was an ACLU-loving, bra-burning feminazi, but they supported her anyway, dutifully respecting the president's right to put his own stamp on the high court. Therefore, Democrats now owe President Bush the same deference when weighing his choice of Samuel Alito.

This isn't the real America
By Jimmy Carter
JIMMY CARTER was the 39th president of the United States. His newest book is "Our Endangered Values: America's Moral Crisis," published this month by Simon & Schuster.
November 14, 2005

IN RECENT YEARS, I have become increasingly concerned by a host of radical government policies that now threaten many basic principles espoused by all previous administrations, Democratic and Republican.

These include the rudimentary American commitment to peace, economic and social justice, civil liberties, our environment and human rights.

Also endangered are our historic commitments to providing citizens with truthful information, treating dissenting voices and beliefs with respect, state and local autonomy and fiscal responsibility.

The Democrats and Judge Alito

...Judge Alito has tried to reassure Democratic senators by talking about his respect for Supreme Court precedents, including Roe v. Wade. It would be unwise to put too much stock in such reassurances. Even justices who value precedent, as most do, sometimes overturn existing case law with which they disagree. It should give Democrats pause that after Judge Alito's meetings with senators, both sworn opponents of Roe and fervent supporters have emerged reassured.

Even if Judge Alito does stand by important precedents, there is still reason for concern. Under Chief Justice William Rehnquist, the Supreme Court perfected the art of reaffirming precedents in areas like criminal procedure while poking enough holes in them to render them almost unrecognizable. Judge Alito showed as a federal appeals court judge - when he voted to uphold a Pennsylvania law requiring women to inform their husbands before getting an abortion - that abortion rights can be severely diminished even within the framework of Roe. The same thing could be true in other areas.

One group that clearly does not believe that Judge Alito will be a slave to existing Supreme Court precedents is the far right. Many of the same groups and individuals who waged a fierce campaign against Ms. Miers, President Bush's previous nominee for this seat, appear to be lining up in support of Judge Alito. Senator Sam Brownback, a Kansas Republican who strongly opposes abortion, and other rights the court has recognized over the years, declared after meeting with Judge Alito, "This is the type of nominee I've been asking for."

Business Pushes Its Own Brand Of Justice
Tough Lobbying For Court Seat
By Jeffrey H. Birnbaum and Thomas B. Edsall
Washington Post Staff Writers
Saturday, July 9, 2005; Page A01

Business likely to back Roberts
Supreme Court nominee argued antitrust case against Microsoft, but record generally pro-business.
July 20, 2005: 7:07 PM EDT

Court Nominee Has Paper Trail Businesses Like
By STEPHEN LABATON
WASHINGTON, Nov. 4 - Judge Samuel A. Alito Jr. has reliably favored big-business litigants as he has pushed the federal appeals court in Philadelphia in a conservative direction.

Colbert I. King: 

It wasn't Bork's conservatism or his challenge to prevailing legal orthodoxy that did him in. Nor was he an ogre or Neanderthal, as some of his opponents mischaracterized him. But Bork, as with other controversial judicial picks of President Bush, seemed to come to the bar with, as The Post put it, "an almost frightening detachment from, not to say indifference toward, the real-world consequences of his views; he plays with ideas, seeks tidiness, and in the process does not seem to care who is crushed."

Mr. Krauthammer makes a comparison which can only be considered valid if you equate adult women with inexperienced children.

Pop quiz: Which of the following abortion regulations is more restrictive, more burdensome, more likely to lead more women to forgo abortion?

(a) Requiring a minor to get the informed consent of her parents, or to get a judge to approve the abortion.

(b) Requiring a married woman to sign a form saying that she notified her husband.

...Remember: The question is not whether (a) or (b) is the wiser restriction. The only relevant question is which is more likely to discourage the woman from getting an abortion.

The answer is obvious.

Pop quiz: Whose decisions do you have any right to override? A child's or an adult's?

The answer is obvious.

If he gets that Associate Justice seat it will become easier to get the machine gun I'll probably need.

You have to remember the American S.S. is quite comfortable disciplining their own. Half the Slave Laws targeted white people (who else would a law forbidding theaching slaves to read be directed at?).

The Miers noimination wasn't directed at Progressives or America at large.

It doesn't have to be a woman
It's time to ignore gender (and race) in choosing Supreme Court nominees.
By Heather Mac Donald
HEATHER MAC DONALD is a fellow at the Manhattan Institute and a writer for City Journal.
October 28, 2005

THE COUNTRY can breathe a sigh of relief that President Bush, not usually one to admit mistakes, had the humility and wisdom to withdraw his nomination of Harriet E. Miers.

Now, to avoid a similar debacle in the future, the president should remove from his decision-making process the misguided principle that helped drive the Miers fiasco: the idea that gender (or, in other cases, race) should play a role in Supreme Court nominations. In retrospect, it's absolutely clear that, given her lack of judicial experience, her apparently unsophisticated constitutional philosophy and her abysmal writing skills, Miers never would have been nominated if she had been a man. But having just appointed a white male to be chief justice, and faced with the resignation of Justice Sandra Day O'Connor (one of only two women on the court), Bush and his advisors clearly felt that the next pick had to be a woman.

This is completely unacceptable. Although there undoubtedly are many plausible female contenders for the court, they should be selected only if they are found, after close examination, to be the best possible candidate. To do any less — to grab the nearest woman and nominate her to the highest court in the land — is an insult to women and a dangerous assault on the rule of law.

At Slate: 

Left Out: Perhaps the most revealing aspect of today's statement was what Bush didn't say. On both previous occasions, when he nominated John Roberts and Harriet Miers, Bush stressed his trademark promise that they wouldn't legislate from the bench.

"He will strictly apply the Constitution in laws, not legislate from the bench," Bush said of Roberts. "A Justice must strictly apply the Constitution and laws of the United States, and not legislate from the bench," he said the next time. "Harriet Miers will strictly interpret our Constitution and laws. She will not legislate from the bench."

Today, in nominating Alito, the President offered a much more limited view of the limits of judicial activism: "He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people." No mention of the Constitution or strict constructionism. No false judicial modesty that the new guy will sit quietly and behave himself on that bench.

Everyone was actually surprised by the Miers nomination. Talking heads wondered aloud just why Bush chose her.

Painful as it was, I just watched the speech in which Bush nominated her because I noticed at the end of the Alito nomination speech Bush said

And I urge the Senate to act promptly on this important nomination so that an up or down vote is held before the end of this year.

"Up or down vote" is the signal for Republicans to fall in line behind this one. He didn't say that when he nominated Miers.

I don't believe Miers was a serious nomination at all. I believe it was, "You wanted a woman, here ya go..." In fact, I'm going to go out on a limb and suggest what Rove told Dobson was "She's not going to be confirmed and I guarantee you the next guy we nominate will vote to reverse Roe."

Only Bush was stupid enough to believe it could be otherwise.

Quote of note:

White House spokesman Dana Perino said the matter was not relevant to Miers's nomination because she was not involved.

"Harriet Miers had nothing to do with the tax shelter transactions at issue, nor did she work with the clients involved. The majority of the relevant transactions took place after Ms. Miers had left the firm," Perino said.

In fact, just over half of the transactions involving Locke Liddell were done while Miers was with the firm, according to John H. McElhaney, a lawyer at the firm.

Senators Question Tax Shelter Letters
Miers's Law Firm Sold Documents Backing Arrangement the IRS Criticized
By Jonathan Weisman
Washington Post Staff Writer
Thursday, October 27, 2005; Page A08

Quote of note:

"In their meeting this afternoon Sen. Specter thought Ms. Harriet Miers said she agreed with Griswold v. Connecticut and there was a right to privacy in the Constitution," Specter spokesman William Reynolds wrote in an e-mail to reporters. "After Sen. Specter commented on that to the news media, Ms. Miers called him to say that he misunderstood her and that she had not taken a position on Griswold or the privacy issue. Sen. Specter accepts Ms. Miers' statement that he misunderstood what she said."

Interpretations Differ After Talks With Miers
Specter reports that the high court nominee believes in the right to privacy. But later the White House says he misunderstood her.
By Maura Reynolds and Edwin Chen
Times Staff Writers
October 18, 2005

Forget Roe and the Framers. Let's Talk Business
By Lorraine Woellert
Sunday, October 16, 2005; B01

Conservative howling over Supreme Court nominee Harriet Miers echoes unabated since President Bush introduced his friend and confidant to the public on Oct. 3. If anything, the clamor has intensified, with some in the conservative chattering class now hounding Miers to withdraw. But while Bush dodges the brickbats, another critical element of the Republican political base is applauding from the wings.

That would be big business. For the first time in more than three decades, corporate America could find itself with not one, but two, Supreme Court allies with in-the-trenches industry experience -- Miers and newly minted Chief Justice John Roberts Jr. Don't be fooled by the low-key personas they have projected thus far; both are legal wonks who have packed a powerful punch in the corporate world. Together, they could be a CEO's dream team.

When your political opponents are concerned about an issue, yuou may blow them off until the issue works in your own favor.

Cool. This is going to make debates REAL easy...

Role of Religion Emerges as Issue
By Peter Baker and Charles BabingtonWashington Post Staff Writers
Thursday, October 13, 2005; Page A08

President Bush said yesterday that it was appropriate for the White House to invoke Supreme Court nominee Harriet Miers's religion in making the case for her to skeptical conservatives, triggering a debate over what role, if any, her evangelical faith should play in the confirmation battle.

Bush said religion is part of Miers's overall background much like her work as a corporate lawyer in Texas, and that "our outreach program has been just to explain the facts to people." At the same time, his attorney general went on television and described Miers as "pro-life." But the White House said her religious and personal views would not affect her ability to serve as a neutral justice.

You have GOT to check the site to see the kind of questions these very Conservative folks want to ask Ms. Miers. 

Public Advocate's Questions That Need Answers For Harriet Miers
October 6, 2005

[Falls Church, Virginia. October 5, 2005.] Not since 1957 - when President Dwight D. Eisenhower nominated Charles Evans Whittaker - has anyone been nominated to the United States Supreme Court to fill a vacancy left by a justice whose vote was so crucial in so many constitutional cases. Hoping to shift the power on the court in a conservative direction, Eisenhower plucked Whittaker, a little-known lawyer and inexperienced judge to fill the bill.

Five years and six days later, Whittaker - at age 61 - resigned from the court, suffering from exhaustion, having been made the target for members of the Court battling and lobbying to create a majority. Overwhelmed by his responsibilities on the Court, and without having ever written a noteworthy opinion during his tenure on the Court, Justice Whittaker failed to fulfill President Eisenhower's hope to restore a conservative majority to the Court.

Quote of note:

"Miers' case is special, not because she is White House counsel, but because there is no other basis on which anyone can make a judgment about her," he added. "If we want to know how she thinks about various things the government deals with from time to time, we have to examine what she has expressed on issues that are privileged.

"So, there's going to be a real tug of war."

Miers Nomination Creates Looming Battle Over Privilege
Marcia Coyle
The National Law Journal
10-11-2005

Nearly everything produced by the White House counsel's office could be subject to a claim of executive privilege, but that claim should not be an impenetrable wall when its chief officeholder has been nominated to the U.S. Supreme Court, said presidential scholars and others.

Laura Bush says sexism possible in Miers criticism
Tue Oct 11, 2005 08:47 AM ET

By Tabassum Zakaria

COVINGTON, Louisiana (Reuters) - First lady Laura Bush joined her husband in defending his nominee to the U.S. Supreme Court on Tuesday and said it was possible some critics were being sexist in their opposition to Harriet Miers.

"That's possible, I think that's possible," Mrs. Bush said when asked on NBC's "Today Show" whether criticism that Miers lacked intellectual heft were sexist in nature. She said Miers' accomplishments as a lawyer were a role model to young women.