ROSEN: Justice, Obama-style
By Mike Rosen, Rocky Mountain News (Contact)
Published October 24, 2008 at 12:05 a.m.
There was a telling moment in last week's John McCain-Barack Obama debate. When the question came up of what kind of judges the candidates would appoint, Obama brought up the case of Lilly Ledbetter. She is the Democrats' current poster girl on the issue of equal pay for equal work. You might recall, she was the woman who spoke at the Democratic National Convention in Denver about her lawsuit against the Goodyear Tire and Rubber Co. claiming sex discrimination.
In her suit, filed after she retired from Goodyear in 1998, Ledbetter said she was underpaid throughout a 19-year career as a result of poor evaluations by a succession of supervisors who judged her strictly on her sex. At trial, a sympathetic jury found in her favor, concluding that "more likely than not" she had been the victim of sex discrimination. (It's also possible that Ledbetter, ironically, might have been treated better because of her sex. If her poor evaluations were, in fact, fair and accurate, perhaps a man in her situation might have been fired. Who knows?) But my point isn't to second-guess the jury. It's to zero in on Obama's judicial philosophy.
For openers, he got the facts wrong during the debate. Obama said, "And when she brought suit, saying equal pay for equal work, the judges said, 'Well, you know, it's taken you too long to bring this lawsuit.' " No, the judges didn't say anything when she brought suit. They ruled only after she had won her lawsuit. At that point, on appeal, the 11th U.S. Circuit Court ruled that Title VII of the Civil Rights Act of 1964 strictly requires that such a suit be filed within 180 days after the alleged unlawful employment practice occurred. Ledbetter failed to meet that deadline, so the jury's finding was overturned. That's the law. Easy call. The facts of the case are moot. End of discussion. That decision was later upheld by the Supreme Court on exactly the same grounds.
Obama didn't like that outcome. During the debate, he argued that if a woman such as Ledbetter "is being treated unfairly, then the court has to stand up, if nobody else will. And that's the kind of judge that I want."
This may sound compassionate and seductive to some, but it's a very dangerous philosophy of judicial overreach. Perhaps Obama was out "community-organizing" on the day his Harvard law professor explained the reasoning of Justice Oliver Wendell Holmes Jr. when he instructed an idealistic young lawyer arguing before him that, "This is a court of law, young man, not a court of justice." The point is that the role of the judicial branch of our government is to rule on the Constitution as written and the law as passed by Congress and signed by the president. The courts are a co-equal branch of government, not a superior branch. Their job is not to rule on what they think the law ought to be. That's government by a presumptuous, unelected judiciary. If changing times render some part of the Constitution outmoded, the remedy is to formally amend the Constitution, as we've done some 27 times, not to have judges rewrite it themselves. If a law is regarded as unjust, changing that law is the job of legislators in Congress, not judges acting arbitrarily as legislators.
In the wake of the Ledbetter case, the Senate considered the question of eliminating the statute of limitations on Title VII discrimination cases. Obama supported a bill, a trial lawyers' dream, that would have allowed problematic, decades-old claims like Ledbetter's. Reasonable heads, including McCain's, prevailed, and the bill failed. That's the way the process is supposed to work.
Obama's notion of "change" as it applies to the courts is to return to the bad old days of left-wing judicial activism as practiced by the Warren court, and those are the kind of imperious judges he'd place on the federal bench and the Supreme Court.
Mike Rosen's radio show airs weekdays from 9 a.m. to noon on 850 KOA. He can be reached by e-mail at mikerosen@850koa.com.
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October 24, 2008
12:13 a.m.
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Derge writes:
Liberals want to incorporate the Judicial branch into their ideology. No more checks and balances. Judicial activism comes to mind. I am honestly believing that liberals, if they can't get voters or Congress to follow their lead, will do it in the courts. And they are too. A majority of Democrats are lawyers. Keep that in mind.
I still hear the mantra that the 'evil right-wingers' want to overturn Roe vs. Wade at any cost. This is the new attack against McCain. That was the same with Bush II. A fellow family member even stated that WAS the plan Bush II had but didn't have enough clout. Two Supreme Court appointments AND (at the time) the highest approval ratings yet Roe vs. Wade remained untouched.
How many are fooled into believing that the only thing Republicans care about, and their only agenda, is to overturn Roe vs. Wade? Ugh... who's using fear tactics now?
October 24, 2008
6:22 a.m.
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Michael writes:
"This is a court of law, young man, not a court of justice." - Justice Oliver Wendell Holmes Jr. 'The point is that the role of the judicial branch of our government is to rule on the Constitution as written and the law as passed by Congress and signed by the president.' - Mike Rosen
How succinct, how true, and how very illuminating are the quote from Justice Holmes and the statement from Mike Rosen to anyone that has any vague notions on how our constitution, our laws, and our courts are supposed to work - especially liberals. These words should be emblazoned over the entrance to every courthouse in America.
October 24, 2008
7 a.m.
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LetsThink writes:
Thanks Mr. Rosen. You are excatly right.
This is the Truth that Americans need to know, that Mr. Obama doesn't want us to find out.
Can you imagine the extreme liberal direction that America will go in, if Mr. Obama is elected president??!! Just look at Obama's voting record in regard to moral issues. It is frightening.
And we have seen nothing yet, if he becomes president.
October 24, 2008
7:02 a.m.
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eoj writes:
Speaking of law, I wonder why newspapers will not report this;
http://news.justia.com/cases/featured...
Who is Barry Soetoro, religion Islam?
Why would Obama fight this court cast for the last 2 months instead of PROVING his cirizenship?
Yes I know I must be crazy to think anyone would want to know if Barry Soetoro aka Barack Obama is a citizen of the US...
October 24, 2008
7:32 a.m.
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spencerr writes:
First Rosen column I have agreed with in awhile. Good work.
October 24, 2008
7:41 a.m.
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mmannino writes:
Unfortunately, Obama will appoint judges who think their role is a super legislature. These judges will substitute their notions of social justice in place of reasoning based on the law. I think that we should not elect legislatures anymore. Let's just let judges decide based on their ultimate wisdom.
October 24, 2008
8:15 a.m.
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fcatalina writes:
"At that point, on appeal, the 11th U.S. Circuit Court ruled that Title VII of the Civil Rights Act of 1964 strictly requires that such a suit be filed within 180 days after the alleged unlawful employment practice occurred. Ledbetter failed to meet that deadline, so the jury's finding was overturned. That's the law. Easy call."
Whoa there Mike. In no way was this the "easy call" you claim it to be. Your disingenuous column completely glosses over the fact that the statute does not describe when the statute of limitations starts tolling.
Let's try this situation. An employee begins stealing small amounts of money from his employer. He continues for ten years (stealing the whole time) before his employer discovers the theft. The employer sues to get the money back. The statute of limitations for such an action is two years. Is it an "easy call" that the employer gets none of the money back because it has been more than two years since the stealing began? Of course not. This is ridiculous.
What Rosen doesn't explain is that the sex discrimination against Ms. Ledbetter continued for years. The jury found that she was unfairly being paid less than her male counterparts because of her sex. Every time she received a paycheck, she was suffering what the jury found to be an act of discrimination.
The Supreme Court held that she would have 180 days from the first instance where her pay was deficient to file a suit, not 180 days from the last time she was discriminated against. This is an impossible standard as it often takes years to find out this type of activity is occurring. Unless every employee shares salary information with each other every day, pay discrimination suits will be nearly impossible to bring under this standard. John McCain and the Republicans in Congress ensured that pay discrimination suits will remain impossible to bring by defeating the bill in Congress that Rosen writes of.
There is nothing unreasonable about interpreting the 180 day limit to begin with the last and most recent act of discrimination, not the very first. Rather, it is because of the tortured interpretation by the conservative Supreme Court and the Republicans in Congress that women who actually have suffered discrimination IN THE LAST 180 DAYS cannot file suit. The weak reason given for this is that they also suffered discrimination more than 180 days ago.
It is an "easy call" after all. Rosen's interpretation makes the statute moot and unenforceable. Obama's allows victims who have been injured in the last 180 days to enforce the law, which is the purpose for which the law was enacted. Clearly, Rosen's interpretation, which would give no effect to the law, does not make sense. Therefore, Obama's is more reasonable.
October 24, 2008
8:28 a.m.
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spencerr writes:
fcatalina,
So, you advocate for the woman to get paid her due for the entire nineteen years? At that point, it kind of sounds like rotten apples. She doesn't work there, and perhaps they parted on bad terms, or perhaps she needed the money. So she sues...for nineteen years of discrimination. Why not sue at year three or year five? Why stay with the same POS company for nineteen years? Take some responsibility.
I feel like I am underpaid...maybe I will hang around for nineteen years and sue for sex/racial discrimination. (No, I won't. I will leave when I am tired of feeling like they are not paying me according to my ability).
Maybe they should have given her back pay for 180 days worth of discrimination.???
October 24, 2008
8:38 a.m.
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fcatalina writes:
Pay discrimination is the type of thing that is ongoing. She was not aware of it for a long time presumably because people do not discuss their salaries in the open.
The jury found she was put on a discriminatory pay track years ago and was kept on it. This interpretation of the statute of limitations allows a corporation to do that, and if it is not immediately discovered, to continue doing it forever. If it is immediately discovered, the cost to them will be minor as it has not gone on for a long time.
Spencerr, I think your comment also suggests that there may not be merit to the claim. Of course, that question was decided by the jury and has nothing to do with the operation of the statute of limitations.
She should receive the back pay because she sued (1) within 180 days of her discovering the discrimination, (2) within 180 days of the last occurrence of discrimination, and (3) because the discrimination was systematic, ongoing and hidden from her view for the years it was going on.
October 24, 2008
8:52 a.m.
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spencerr writes:
I agree that the jury decided the suit should be awarded to the plaintiff. I deleted a lot of lines out of my last post because that item had already been decided.
My question is this...when was she suddenly enlightened as to her plight? And how did this enlightenment come about? How was she more capable of deciding that she was treated unfairly during the six months of unemployment than she was during nineteen years of employment?
I think those questions are probably the reason for the statute of limitations. I can see waiting two or maybe three years. Nineteen years after the fact...someone didn't feel wronged. Someone was just looking to get something for nothing.
October 24, 2008
10:21 a.m.
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Ted_in_Vegas writes:
Unfortunately, fcatalina, all you've done is make a claim for why the law should be changed, not why the Supreme Court decision is wrong. I'll even go so far as to say that the law should be changed; but that is a job for LEGISLATORS not JUSTICES.
Which, by the way, is the point of Rosen's column. It seems the 4 libs on the bench want to legislate from the bench, but that is not their constitutional authority. Shall we continue to trash the constitution in order to get a result that you would like? Even if you're right - and you may well be - that kind of superiority of the bench leads to the courts assuming greater and greater control over our lives.
Assuming that you're a liberal, do you really want the conservative-majority bench to assume more and more power? If you're a conservative, knowing that future Supreme Courts may be a liberal-majority bench, do you want a bench that assumes more and more unconstitutional power?
For those of you who're going to point out the Bush administration's trampling of the constitution, I'll save you the effort; I admit you're right. However, every president since FDR has done that - both parties.
All of that said, that's why we need more constructionalists on the bench. A constructionalist holds themselves back and will pull back on an administration too.
October 24, 2008
12:27 p.m.
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jay writes:
thanks for the fact checking fcatalina. good post. this case came down to this company getting off based on a technicality after knowingly and repeatedly discriminating against this woman based on her gender.
at some point we need to deal in a common sense way with the problems obama was attempting to address in his congressional initiative on this matter. i'd like to see them take a bipartisan crack at it once the dust settles next year.
i think the underlying issue regarding judicial appointments is one of prideful deception. many conservatives aren't proud of why they actually vote the way they do. when you corner many of them on the fact that they can't base their votes on actual policy stances, they inevitably start spouting feelings about judicial appointments...which finally leads to discussions about their beliefs in the supernatural.
voting the way you to because of superstitions doesn't exactly scream credibility, so inevitably many of these folks hide their insecurities by throwing up smoke screen after smoke screen of rhetoric about "socialism", "judicial activism" and our moral plight.
kind of sad...but also kind of entertaining...because it truly is gratifying to corner a fundie in disguise long enough to yank off the mask.
like the end of Scooby Doo episodes.
my favorite thing is to have them explain how a court going against the majority of americans in regards to abortion isn't "judicial activism".
"Obama's notion of "change" as it applies to the courts is to return to the bad old days of left-wing judicial activism as practiced by the Warren court, and those are the kind of imperious judges he'd place on the federal bench and the Supreme Court."
Wouldn’t be a rosen article without the obligatory strawman argument.
at least his loyal footsoldiers are good at following orders...with this strawman right out of the gate by "derge".
"Liberals want to incorporate the Judicial branch into their ideology. No more checks and balances. Judicial activism "
lol...really? do they hate puppies too?
does that mean that when the republicans held all three branches of gov't for the majority of the last 8 years they supported "no more checks and balances" too, derge?
too easy.
"Can you imagine the extreme liberal direction that America will go in, if Mr. Obama is elected president??!!"
what "extreme" trends do you forsee, letsthink...according to obama's policy stances….and not feelings.
"My question is this...when was she suddenly enlightened as to her plight? And how did this enlightenment come about?"
she was unaware for YEARS that the sex discrimination was taking place due to the confidential nature of salary data, spencer jr. surely you can't blame her for filing suit once she became aware of the misdeeds done to her.
October 24, 2008
12:30 p.m.
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V_twinMan writes:
fcatalina,
Here is what Mr. Rosen said. "If changing times render some part of the Constitution outmoded, the remedy is to formally amend the Constitution, as we've done some 27 times, not to have judges rewrite it themselves. If a law is regarded as unjust, changing that law is the job of legislators in Congress, not judges acting arbitrarily as legislators."
I think that is completely clear. Do you not?
October 24, 2008
1:21 p.m.
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anderson writes:
Vtwinman, no it's not clear, because Rosen has inserted rhetorical claims (i.e., something that's disputed) in order to bolster his argument (as talk radio people frequently do). From what you quoted, his specific rhetorical nonsense is as follows: "not to have judges re-write it themselves" and "judges acting arbitrarily as legislators".
No judge on the Supreme Court or any other court would assert the ability to re-write the constitution or to make decisions "arbitrarily". Propangandists and people who know nothing about the law might make those claims, however. Clear?
October 24, 2008
1:23 p.m.
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anderson writes:
Sheep: "Baa!"
Mindless sheep: "The liberals..."
October 24, 2008
1:27 p.m.
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anderson writes:
spencerr, you recognize the reasons for having a statute of limits, but for some reason you want to place yourself on the jury of Ms. Ledbetter and infer some nefarious purpose on her part even though you don't have all the information before you. A jury has already heard the evidence and made a conclusion as to the facts.
October 24, 2008
1:36 p.m.
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jay writes:
actually, spencer jr, she WORKED for the company for 19 years...ending 98...and obviously didn't wait 19 years to file suit.
October 24, 2008
4 p.m.
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mmmark217 writes:
Derge Writes: A majority of Democrats are lawyers. Keep that in mind. Are you kidding me? The Democratic Party is bigger in terms of the shear number of people within the party. And you're saying we're all Attorneys? hmmmmm some flawed logic there.
October 24, 2008
4:12 p.m.
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mmmark217 writes:
I agree with Mike for the most part on this article. The very first time Ms Ledbetter found that she was being discriminated against is the time she should have filed suit. However, according to Mike, he stated that if her performance reviews were correct, that she should/would have been fired if male. My question to that fact, is this. If she worked at Goodyear for 19 years, How could she have been such a poor performer? 19 years and they carried her the whole time??? Sounds like a flimsy argument to me.
October 24, 2008
5:07 p.m.
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fcatalina writes:
spencerr - "Someone was just looking to get something for nothing." Clearly you still have a problem with the jury's determination. It seems that you feel the judges did a good job here by invalidating a jury verdict because you think the woman's claim wasn't valid to begin with. Sounds like judicial activism to me.
Ted_In_Vegas, I thought I explained why the decision is wrong. The statute is unclear. When interpreting an ambiguous statute, it is nonsensical to interpret it the way that would afford the entire law no meaning when there is an alternative that would give the law meaning. That is not legislating from the bench, that is interpreting statutes, which is what judges do.
Vtwinman, that statement is entirely clear. If this case involved a situation where the law was clear but unliked by judges, as Rosen deceptively makes it appear, perhaps this quote would add something to the conversation. This, however, is not the case, so it doesn't.
mmmark217, she did file it when she found out. As I pointed out earlier, pay discrimination typically continues for a long time before it is discovered since co-workers often do not share salary information with each other. Therefore, she was unable to file suit after the first instance because it was impossible for her to know about it.
October 24, 2008
5:19 p.m.
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Derge writes:
mmmark217 writes: "Derge Writes: A majority of Democrats are lawyers. Keep that in mind. Are you kidding me? The Democratic Party is bigger in terms of the shear number of people within the party. And you're saying we're all Attorneys? hmmmmm some flawed logic there."
The flawed logic is yours, as apparently you cannot comprehend that the post was referencing the Democratic politicians.
School failed you somewhere along the line.
October 25, 2008
8:50 a.m.
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ollie writes:
When a court ruling doesn't go the way conservatives want it to it is called 'judicial activism'.
October 25, 2008
9:41 a.m.
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Eli writes:
"my favorite thing is to have them explain how a court going against the majority of americans in regards to abortion isn't "judicial activism"."
Jay,
No court decision should ever be based on "the majority of Americans". Court rulings should be based on the law, period. If a decision is made based on law as it is written, and the majority of Americans don't like it, then the remedy is to change the law.
October 25, 2008
9:48 a.m.
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Eli writes:
"does that mean that when the republicans held all three branches of gov't for the majority of the last 8 years they supported "no more checks and balances" too, derge?"
This is absolutely idiotic. No, jay. When one party is elected into a majority position, to include a majority in all branches, it does not eliminate the checks and balances of those three distinct branches of government. The powers of those branches are still separate and distinct from one another. You might not be happy about who is in charge at the time, but that doesn't mean that checks and balances between the three branches have been eliminated. All it means is that you have a reason to pout.
October 25, 2008
10:41 a.m.
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anderson writes:
You should be addressing your criticism to Derge, Eli. He's the one who claimed there would be "no more checks and balances" if...well, he doesn't really say--presumably referring to an Obama election.
October 25, 2008
11:34 a.m.
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Charles__B writes:
Ollie,
clearly the republicans call it activism because the case didn't turn out the way they wanted it to.
-Oh, wait a minute. The case did turn out the way they wanted it to
October 25, 2008
11:58 a.m.
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spencerr writes:
fcatalina and anderson,
I was merely acting in support of the statute of limitations. It was my position that the statute of limitations was created to curb long-after-the-fact seemingly frivolous lawsuits. Maybe I don't have enough facts...it was just some hypothesizing. Not to jump on Ted's bandwagon, but I think he made some good points too about justice vs. laws.
I have no doubt that the jury justly found in her favor to begin with, but I think the statute of limitations has its purpose, and no system will ever be completely without its flaws, especially the litigious system in which we live.
October 25, 2008
12:08 p.m.
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Brain writes:
Worked for the company for 19 years and had how many reviews? I know when I'm doing my job well it shows in my reviews; if I had bad reviews when I knew otherwise I would've been doing something about it then, not waiting years to bring a lawsuit. She couldn’t tell that she was doing a good? I believe it is the responsibility of the individual to stick-up for themselves and use the law appropriately.
Apparently some people need mommy to make them stop instead of doing something about it themselves.
An appeals court and the US supreme court interpreted the LAW the same and overturned the ruling; that is what their responsibility is. Civil court’s threshold to determine a verdict is by a preponderance which is a weighted verdict; the jury’s OPINION was in favor of the plaintiff, that does not necessarily mean that it is a “fact” that she was discriminated against.
October 25, 2008
12:19 p.m.
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anderson writes:
Wrong, Brain. The jury's duty is to determine the *facts* of the case. Now, it's conceivable they could get them wrong, but in the eyes of the law, they are the facts, not an opinion.
Whew, the fact that a woman was discriminated against, and complained about it, just eats some of you up, doesn't it? It's *so* hard being a white man in today's world. I'm working so hard, but everyone else, who isn't like me, who doesn't look like me, is trying to get over somehow. Everyone's against me! I think I'm gonna cry.
October 25, 2008
12:35 p.m.
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anderson writes:
spencerr, I previously acknowledged the reason for the statute of limits, and your recognition of it. It's not clear what it is you find favor with in partisan Ted's exaggeration points. Almost everyone is for upholding the constitution. However, there are different ideas on how it should be interpreted. It's more complicated than merely saying my view is the *only* legitimate view and that "everyone else" doesn't want to follow the Constitution. Do you think the founding fathers were all in agreement as to what the Constitution meant?
If you are really interested in Constitutional interpretation I can recommended or link to a discussion of the different theories for you that is not too long. Warning label: it doesn't take sides!
October 25, 2008
2:23 p.m.
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Brunowolfe writes:
Aside from Rosen's usuall litany of annecdotal evidence pointing to why everyone should vote republican, the problem I have with his dissortation on this case is that his view of the law allows for no discretion. Even if common sense would dictate otherwise, in Rosen's world, the law is the law is the law and if there are adverse consequences then sorry, you were the unlucky one. And if you don't like it, you can change it after the fact. Sorry it s*&ked for you!
October 25, 2008
2:35 p.m.
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Eli writes:
I'd like to check out the link, anderson
Hey Charles, where have you been? Haven't seen you around for quite some time
October 25, 2008
3:31 p.m.
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tbizzy writes:
Interesting article that points out the myths that women earn significantly less than men:
http://money.cnn.com/2006/02/21/comme...
October 25, 2008
3:34 p.m.
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tbizzy writes:
Brunowolfe:
Yes, the law is the law. What is the problem with that? Our legislative branch constructs bills that the executive branch signs into law. Other initiatives can be voted into law by the public.
Justices are umpires in a game. They cannot change the rules because they don't like the outcome. They are to be unbiased observers who apply the rules in the books. Obama would want baseball umpires to be White Sox fans who can change the outcome of the games to make it more 'fair' if the team does not perform to his liking.
October 25, 2008
3:48 p.m.
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anderson writes:
Eli: http://law.fiu.edu/downloads/theory_i...
I see the format doesn't lend itself to reading on-line so I might suggest printing it out. The essay is an excerpt from the author's Contitutional Analysis In a Nutshell (West) and in its paperback version (I have a copy) is very readable.
October 26, 2008
11:35 a.m.
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BJG writes:
In the past 28 years we have had Republicans ruling the roost for 20 of them. We can now look back and see that life wasn't so good for women, minorities, and those who generally disagreed with the ruling white guys. It's time to make some significant changes in the judges we select, and the laws this nation passes. I look forward to at least 4 years of maybe "catching up" just a little to what the neo-cons have been able to amass these past 8 years. Oh...I forgot, we now have to pay their bills....cause they were too greedy for their own good and the good of the nation. Hindsights 20/20 isn't it fellas?
October 26, 2008
2:50 p.m.
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jay writes:
eli, i'm still waiting on you to explain to the class how a conservative supreme court going against the wishes of the majority of americans and overturning roe isn't "judicial activism".
furthermore, i'm not the one who claimed that the dems wanted to do away with the checks and balances...that was someone else.
sounds like you took the bait that he didn't....but thanks for proving my point regardless.
October 26, 2008
5:35 p.m.
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RodE writes:
This is judicial activism at its worst. Basically turns the statute of limitations interpretations of the past on its ear.
It has always been based based on when the discrimation, fraud etc. was discovered or when a reasonable person should have discovered it. That would generally not be the beginning, but usually some incident that lead to the discovery of the discrimination.
The Court was looking for a way to throw the case out, not based on law, but to protect business. So they actively found a reason. But it is bad law.
What should have happened is that they should have used precendent and found for the plaintiff, then let Congress limit damage awards in such cases as 19 years of back pay is too much for businesses to tolerate and there should be some "safe harbor" for businesses who want to correct equal pay issues and move on.
Very, very bad decision for women. Right wing activism, no doubt about it.
October 26, 2008
9:42 p.m.
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Eli writes:
"i'm still waiting on you to explain to the class how a conservative supreme court going against the wishes of the majority of americans and overturning roe isn't "judicial activism"."
Jay, Roe v. Wade was judicial activism to begin with (just a disclaimer for the record: I am not anti-abortion). Can you point to where in the 14th Amendment there is a constitutional right to privacy? Is it found in the words "due" or "process"? Have you ever bothered to read the ruling? Do you even know what the 14th Amendment says?
Now, whether or not you could call a ruling overturning Roe v. Wade judicial activism would of course depend on the specifics of the ruling. If it's overturned because the decision was based on a "right to privacy" in the Due Process clause of the 14th Amendment and the fact is that the wording simply isn't in the clause, would you call the ruling being overturned judicial activism? If so, why?
October 27, 2008
5:38 a.m.
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Eli writes:
"furthermore, i'm not the one who claimed that the dems wanted to do away with the checks and balances...that was someone else."
This is true, but Derge was referring to liberals using judicial activism to bypass the checks and balances of the three branches of government. Your comparison of this to one party being in a majority in the three branches is flat out idiotic and you know it.
October 27, 2008
9:39 a.m.
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jay writes:
"Derge was referring to liberals using judicial activism to bypass the checks and balances of the three branches of government."
no, he was spouting a right wing conspiracy theory about "liberals" "doing it in the courts" to achieve their goal of "no more checks and balances".
which is ridiculous of course. it's an indefensible position.
he gave no information whatsoever to support this "theory"...just as you haven't.
thus, the point.
now...as far as your "right to privacy" rationalization for the judicial activism necessary to achieve that most righteous of fundie goals...please do us the favor of expounding upon your "theory" that a "right to privacy" clause (or lack thereof) in the 14th would allow the court to overturn roe.
i'm all ears.
October 27, 2008
12:07 p.m.
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primafacie writes:
Chief Justice John Roberts, during his confirmation hearing, was asked by Illinois Democrat Richard Durbin if he's "for the big guy or the little guy." Roberts nailed it with this response:
"Somebody asked me, you know, 'Are you going to be on the side of the little guy?' And you obviously want to give an immediate answer. But as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win, because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that 'I'll look out for particular interests.' "
October 27, 2008
6:40 p.m.
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Brunowolfe writes:
tbizzy, 99.99% of the time I would agree with you. But the problem is "absolutes". If there was a case where you could obviously see that a strict interpretation of the law would actually be unjust, wouldn't it make sense to not punish the perpetrator AND fix the law to include the new inclusion at the same time?
October 27, 2008
7:48 p.m.
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Eli writes:
"no, he was spouting a right wing conspiracy theory about "liberals" "doing it in the courts" to achieve their goal of "no more checks and balances"."
For Christ's sake man, you just said essentially the same thing as me, just in different wording.
"he gave no information whatsoever to support this "theory"...just as you haven't."
No, of course I haven't. I'm not making that claim.
"now...as far as your "right to privacy" rationalization for the judicial activism necessary to achieve that most righteous of fundie goals...please do us the favor of expounding upon your "theory" that a "right to privacy" clause (or lack thereof) in the 14th would allow the court to overturn roe."
Let me know when you've read up on the ruling, jay. Obviously you have not and are just talking out your arse again on topics about which you know nothing. You have a bad habit of that. The Wikipedia article has some good info on it, you can start there. Roe v. Wade did not actually rule on abortion itself at all. The court somehow found a "right to privacy" in the Due Process clause of the 14th Amendment, and ruled that this right extends to abortions. Can you find a right to privacy anywhere in the Due Process clause of the 14th Amendment? Please tell me where it is if you can. I've read the amendment many times, and I can't find it.
October 27, 2008
8:03 p.m.
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jay writes:
is that it?
i've read about this theory on far religious right websites, but i just wanted to make sure that was the one you were supporting.
do i have that right, eli?
October 28, 2008
5:41 a.m.
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Eli writes:
Do you have what right, exactly, jay? I can't comment on religious websites as I am very much an atheist and as such don't visit them.
Now back to the topic at hand, do you or do you not see a right to privacy in the Due Process clause of the 14th Amendment? Or do you still not know what the 14th Amendment says?
October 28, 2008
5:54 a.m.
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Eli writes:
Here, jay, I'll help you a bit since you're too lazy to educate yourself on the issue. Here's what the Due Process clause says:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Where is the right to privacy in that clause? Do you have any idea why this clause is in the Amendment? Here's a hint: it's related to slavery. Why don't you go "take a college course" as you so often love to say, and try again when you are more educated on this topic.
October 28, 2008
8:59 a.m.
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jay writes:
i'm well aware of this "argument". it is well posted on many far religious right websites, eli.
shocker.
October 28, 2008
1:18 p.m.
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anderson writes:
Eli, here's a good discussion of the "right to privacy" within the U.S. constitution, and how the Supreme Ct arrived at the conclusion that it does--since 1923. You can assert that it does not, but then you should also acknowledge that a lot of SCt justices over decades have said otherwise.
http://www.law.umkc.edu/faculty/proje...
October 28, 2008
1:20 p.m.
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jay writes:
including scalia.
October 28, 2008
6:03 p.m.
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Eli writes:
I knew you couldn't come up with a coherent argument of any kind, jay. Thank you for demonstrating that, you can go away now since you have nothing interesting to say.
Thanks Anderson, I'll check out the link later tonight.
October 28, 2008
6:23 p.m.
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anderson writes:
I should have mentioned this before, but the direct answer to your question, where is the right of privacy in the 14th amendment, I believe, is in the clause: the state shall not deprive any person of life, liberty or property without due process of law...liberty being the operative word. And as the link will show you, this concept didn't arise out of an abortion issue and is the reason we can marry who we please among other things.
October 28, 2008
6:26 p.m.
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anderson writes:
Another recent letter her talks about population growth, and someone mentioned limiting the number of children, like they do in China. I believe it is our constitutional right to have children, thanks to the 14th amendment.
October 28, 2008
6:52 p.m.
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Eli writes:
I haven't read the article yet, Anderson, so I'll get back to you on it...I have to take off in a few minutes, but I wanted to quickly address the sentence you just quoted:
"nor shall any State deprive any person of life, liberty, or property, without due process of law"
From what I've read about this amendment, at the time it was created the intention was to guarantee newly freed slaves the right to due process.
With that in mind, look at the context of the sentence again, particularly "without due process of law". I would interpret this as stating that the State may not legally put to death (life), imprison (liberty), or fine and/or seize property from any citizen without due process. If you disagree, why?
October 28, 2008
7:22 p.m.
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jay writes:
i'd be happy to cut and paste all the normal rebuttals to this far religious right argument, eli...but what's the point...you're not going to change your mind when it's a matter of emotion.
October 29, 2008
5:46 a.m.
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Eli writes:
Jay, do us both a favor and just don't respond to my posts anymore unless you have a valid and coherent argument to make. And my arguments on this topic are not even slightly religious. For the second time now, I am an atheist. Pay attention, or don't bother posting.
October 29, 2008
11:01 a.m.
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anderson writes:
Eli, the reasoning of the courts is addressed in the link. Among other things, they took the concept of a right of privacy from the bill of rights, i.e., the concept is implicitly expressed in the bill of rights. I suspect the "14th amendment is about slavery" argument is someone's creative interpretation of the amendment in order to get a desired result. There's no substitute for reading and understanding the past arguments of the Supreme Ct. (or summaries thereof) in interpreting what the amendment means. That's what the current justices have to do if an issue comes before them. That does not mean the past decisions are set in stone, or that you can't have a new or valid argument about the meaning of the consitution, but the law--these decisions--their conclusions--cannot be simply ignored as if they don't exist, like some would have you do.
The question you raise: wasn't this about slavery? illustrates some of the problems with orginalism as a way of interpreting the constitution. How do we know the 14th amendment was designed only to address slavery? That may have been the clear intent of the framers, but then they may have also had a broader intent as well. How do we know? Oh, and who are the framers?
October 29, 2008
11:21 a.m.
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jay writes:
eli...i'm not sure i can believe you anymore.
once again we see you take a far right position and claim not to be of that group.
you've posted the same talking points that rush limbaugh spouts...and have posted the same talking points that can be seen leaking out of the far religious right american taliban.
just doesn't pass the smell test.
nice try.
like i said....i'd be happy to post the normal rebuttals to your weak rationalization for the judicial activism necessary to overturn roe...but what's the point? you can't argue with emotion and "feelings".
October 29, 2008
6:02 p.m.
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Eli writes:
"I suspect the "14th amendment is about slavery" argument is someone's creative interpretation of the amendment in order to get a desired result. There's no substitute for reading and understanding the past arguments of the Supreme Ct. (or summaries thereof) in interpreting what the amendment means"
This part of your post really stood out to me, Anderson. I don't mean this as an insult so please don't take offense, but this comment makes me question your knowledge of post-Civil War American history.
Have you ever heard the phrase "Reconstruction Amendments" before? Or are you familiar with the Reconstruction Era?
October 29, 2008
6:13 p.m.
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Eli writes:
"eli...i'm not sure i can believe you anymore."
Jay, I am not going to argue with you regarding my lack or religious belief. I told you I am an atheist. I do not believe in any good of any kind, therefore none of my arguments on this or any other topic are at all based on religion. If you choose not to believe me, fine. I'm not overly concerned with what you think about my stance on religion.
If you have a valid argument to make, by all means present it. Otherwise, I am done conversing with you on the topic.
October 29, 2008
6:14 p.m.
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Eli writes:
"In any God of any kind", rather...not "any good".
October 29, 2008
8:39 p.m.
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jay writes:
the fact remains, eli, that once again, you are spouting the same talking points as the far religious right.
as i've said before....it just doesn't pass the smell test...
October 29, 2008
10:41 p.m.
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Eli writes:
The fact remains, jay, that arguments presented by people basing their arguments are of absolutely no concern to me one way or the other. As far as I am concerned, there is no God and as such any arguments based on religion are completely irrelevant to me.
With that in mind, I'm not sure what point you're trying to make. I don't care what the religious right thinks, or the religious left (yes, jay, there are religious lefties too). My arguments on the 14th Amendment have absolutely nothing to do with religion. You're just repeating an irrelevant, moot point over and over by whining about the religious right. Is that all you have? Don't you have anything relevant at all to add to the thread?
October 29, 2008
10:42 p.m.
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Eli writes:
Meant to say "basing their arguments on religion" in that first sentence....
October 30, 2008
9:25 a.m.
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jay writes:
again...the fact that many of your arguments mirror those coming from the far right and religious fundamentalists leads me to believe that i can't really believe what you say, eli.
just doesn't pass the smell test.
as i said before, i'll be happy to post all the rebuttals to the position you and the far religious right have on abortion and the supreme court, eli, but again, i just don't see what the point is considering the intellectual foundation the folks who pose this position are regularly seen to have. in fact...many of the information about the common sense rebuttal of this fundie position is found on sites based on atheism.
seems kind of ironic, considering your self proclaimed thinking on this matter, no?
as you well know, eli, one of my pet peeves on this blog is those who pretend to something they're not in order to try to add credibility to their extremist positions.
i'm not accusing you of doing this, of course, but will say that it appears your rhetoric is at odds with the way you've described yourself here.
http://atheism.about.com/library/deci...
October 30, 2008
11:46 a.m.
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anderson writes:
Eli, you promoted the idea earlier that the 14th amendment was "about slavery", suggesting that the sum total of its meaning had to somehow relate back to the emancipation of slaves, and that the "right of privacy" therefore is a bogus concept. I suggested to you that the amendment is more than that, and I offered a law school website that discusses the legal history and analysis (btw, you may want to also look at the 5th amendment, note when it was enacted, and think about where it got its life, liberty and property clause). I have nothing else to offer. If you want to be persuaded by the literature of the propagandist, telling you the highest court in the land has got it all wrong for all these years, well, have at it. It's a free country.
October 30, 2008
3:30 p.m.
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me2 writes:
Rosen calls her a "poster girl". Sweet. I side with her and the jury and Obama on this.
October 30, 2008
6:22 p.m.
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Eli writes:
Anderson, that last post of yours was absolutely ludicrous. First of all, my exact words were as follows:
"Here's a hint: it's related to slavery"
That's when I was addressing jay and pointing out the fact that he knows virtually nothing about the 14th Amendment. I then went on to elaborate a bit, when I said this to you:
"From what I've read about this amendment, at the time it was created the intention was to guarantee newly freed slaves the right to due process."
This was done during the reconstruction era immediately following the civil war. The 13th, 14th, and 15th amendments are often referred to as The Reconstruction Amendments, passed between 1865 and 1870. You may also sometimes hear them referred to as the Civil War Amendments.
I take it from your last post that you have never heard of the reconstruction era and are completely unaware of what happened immediately following the civil war. Is that correct?
Here's a good place to start:
http://en.wikipedia.org/wiki/Reconstr...
Yes, I know it's Wikipedia, but there is some good information on there and it will give you a better idea of what was happening at the time that the 14th was passed.
I haven't addressed the 5th because it is not relevant to the Roe v. Wade decision, and I thought that's what this conversation was centered around. Roe v. Wade was based on a supposed right to privacy to be found in the Due Process clause of the 14th Amendment. Given the context of the sentence in question and the reason why the amendment was initially passed, I disagree with that ruling.
Now, setting aside for a second the question about whether you can infer a right to privacy in the word "liberty" in the due process clause, do you seriously think that the 14th was not created to guarantee freed slaves the right to due process? Because that is what I gathered from your 11:01 post.
October 30, 2008
6:26 p.m.
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Eli writes:
"in fact...many of the information about the common sense rebuttal of this fundie position is found on sites based on atheism.
seems kind of ironic, considering your self proclaimed thinking on this matter, no?"
No jay, it doesn't seem kind of ironic. I've never visited a website that is "based on atheism". I've never had a reason to. I will not argue my lack of religious belief with you any further. If you choose to tell yourself that I believe in some kind of God when I do not, that's your problem.
October 30, 2008
6:28 p.m.
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Eli writes:
Jay, what was the point of that link? I already know what the court's decision was, and that's all the link you provided really has on it.
October 31, 2008
12:37 p.m.
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anderson writes:
Eli asks, "do you seriously think..." No, I'm not serious about anything, much less thinking.
October 31, 2008
6:42 p.m.
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Eli writes:
Lol...nice.