The reference to "Con't" in the title of this post is to an earlier reference to the Specter controversy a few days ago.
On the "Past Isn't Dead, It Isn't Even Past" front:
The news article below is on the burning at the heresy-stake of Sen. Arlen Specter, R-PA, next in line as Chair of the Senate Judiciary Committee.
The SJC passes or blocks the President's nominees to the federal bench and Supreme Court for a full up-or-down vote in the Senate to "advise and consent" to the nomination.
Specter comes up for a vote as Chairman himself but the issue is in doubt because of something he said after the election that hit Bush's Religious Right supporters like they'd been gob-smacked, slapped in the face.
Now that Pres. Bush has won re-election, his Religious Right supporters want the victor's spoils, the appointment to the Court of arch-conservatives in the mold of Rehnquist, Scalia, Thomas, and the man who never made it, because he got Borked, Robert Bork, in 1987.
Specter is that rare breed, a moderate Republican, as Republicans go.
There used to be a moderate wing of the GOP, known as the Rockefeller wing. It died in 1964 with the nomination at the Cow Palace in San Francisco of extremist Barry Goldwater of Arizona,
N.Y. Gov. Nelson Rockefeller was the moderate after which this wing of the GOP was named.
Sen. Specter, to his eternal credit, led the fight against the nomination of Robert Bork to the Supreme Court.
Specter saw Bork as being an extremist, far out of the mainstream of U.S. political-legal thought, which he surely was, hence intolerable to most Americans.
GOP Right-Wingers have never forgiven Specter.
1987 is only a half-hour ago to them.
Time, in Constitutional Law, as in Politics, is compressed.
History is the story as told by us, here, today, not what some long-dead historian has written in a book sitting on a shelf in a university library somewhere.
The story on Specter is that he cannot be trusted, not by the Republican Religious Right, anyway.
Specter favors a woman's right to control the decision-making concerning her own reproductive system. If she wants to exercise it, her reproductive system, or not, to fruition, that's up to her.
The RR doesn't see it that way. The RR feels that it has the right to control her, and your, reproductive functioning. It may be your body, but they control it.
That's fair, right?
After all, we live in a democratic society, the majority is supposed to rule, and if the neighbors believe that you should leave your reproductive system at home when you go out on the weekend, they have the final say on that, right?
Oh, you don't think so?
You want to have the final say over your own reproductive-like activities?
Then meet the Religious Right, for this is your adversary. They're under the covers with you, watching what you do and controlling the consequences.
If you've made a baby, it belongs to them. They'll let you know that you must keep this baby, and raise it. Don't even think about an abortion, or the RR will get you, as they're going to get Specter.
Sen. Specter wails at the unfairness of it all.
"I led the fight to seat Clarence Thomas," he cries. "I gave you Justice Clarence Thomas."
Speaking of people who can or cannot be trusted, at his hearing before the SJC in 1987 or 1988, nominee Thomas denied having a position on Roe v. Wade, 1973 or even knowing much about it. Just haven't given it much thought, he testified, so it would be wrong to ask him how he'd vote if the issue ever came up before him if confirmed. He'd been well-briefed and got away with that whopper. His briefers had to have told him, even if he'd somehow managed to ignore like the crazy aunt in the basement, to pretend it, or she, wasn't there. It worked, of course, and Justice Thomas voted against Roe, as expected. Thomas has been called the Black Bork. Keep your eye peeled for his new autobiography and a biography coming out soon.
If the Repubs couldn't get Robert Bork confirmed, they could get Clarence Thomas confirmed, which was just as good, if not better because he could replace Thurgood Marshall as the lone black on the Court, and a conservative, not a liberal, to boot.
Blacks were split, wanting to see another black on the Court, overlooking the politics that they'd reject in a heartbeat were the nominee white.
To this day blacks are bitterly divided over Thomas. Invitations to speak at historically black universities, such as Howard in Washington, D.C., provoke hostility and demonstrations.
At the Clarence Thomas confirmation hearing, the one that Thomas said was nothing but "a high-tech lynching," Sen. Specter just tore into Anita Hill.
Law Prof. Hill was Thomas's chief accuser. She accused him of harassing her sexually while they worked together in Washington on the Equal Employment Opportunity Commission, which Thomas headed.
The EEOC polices against sexual harassment in the workplace.
The Supreme Court polices cases for and against EEOC enforcement action.
It would never do to confirm the appointment of a sexual harasser to the U.S. Supreme Court where he could vote on sexual harassment cases, would it?
Did not, Thomas said.
Did too, Hill said.
On national television, Sen. Specter aggressively cross-examined Anita Hill as only a former prosecuting attorney can.
Many women of the country, sympathizing with Hill, felt the way that Specter went after Hill was intolerable. It was rough, and memorable.
Spector apparently feels that he earned his spurs among conservatives by rescuing Clarence Thomas when the issues was in doubt. They owe him, therefore, support for the chairmanship for the SJC.
The arch-Conservatives don't quite see the matter quite that way.
Unfortunately, in their view, Sen. Spector believes that a woman has the right to control her own birth process, meaning she has the right to choose whether to abort her fetus.
He believes in Roe v. Wade.
They don't.
Sen. Specter had the temerity to tell the newly re-elected President, in the week after the 2004 election, that the constitutional right of a woman to choose recognized by Roe was "inviolate."
Don't mess with Roe, Specter was telling the President.
This is exactly what the Right did not want to hear.
Messing with Roe is exactly what the President, catering to his conservative political base, needs to do. He doesn't just WANT to eliminate Roe, he NEEDS to cause Roe to be overruled.
How?
By filling vacancies on the Court with justices like Clarence Thomas who will vote to either gut or kill Roe. Either way, it amounts to the same thing.
Conservative jurists such as Thomas and Scalia hold to the view that if a right is not expressly written down in the text of the Constitution, it doesn't exist and please do not ask them to make it up and insert it. Amend the Constitution if you want new rights, is their view.
This is known as the Originalist, or Textualist school of constitutional interpretation. If we start making up rights that aren't really there, we're just legislating, or worse, amending the constitution according to the way we feel, and this, of course, is purely subjective, personal belief. We were nominated to FOLLOW the law, not to MAKE it, is their position.
This has the unfortunate tendency to freeze the Constitution as of 1787. No progress. No development. No evolving standards of decency. No learning from past mistakes. Just stuck on yesteryear. Looking back, not forward. Constitutional Vision throught the Rear-View Mirror only. Not which way we want to go into the future, but BACK to the future. It'll make a great movie, someday, with Scalia at the controls and Thomas yelling "Faster!"
The Constitution is not an evolutionary document, says Justice Scalia. If you want to change it, go through the nearly impossible amendment process.
Sure, Nino, and we'll forget that the Doctrine of Judicial Review exists. We'll go back to pre-Marshall, John Marshall days. We'll still be driving steamboats. We won't even have canals, much less jet planes. Dirt roads will be just fine for our horses.
One may not like the direction in which the Judicial Review Power is exercised, toward striking legislation that costs capitalists money, for example, or in the direction of individual liberty, as in Griswold and progeny, below, but it is a power capable of producing a great deal of good.
Properly used (I'm now going in a politcial direction, not for the first time, but I have declared in other posts that Constitutional Law is crystallized political attitude.), it serves as a safety valve to promote the liberty of individuals to live as they see fit in a manner that, while it might destroy your notions of religion, promotes the development of society.
But what kind of a society?
That is always up for grabs, isn't it?
Not to the conservatives, it isn't, and this is where the fight breaks out.
By contrast to Felix Frankfurter and the school of Judicial Restraint, Judicial Activist Justice William O. Douglas, in Griswold v. Connecticut, claimed to have found a right of privacy in the Constitution, even though the word privacy does not appear, in the shadows and radiations ("penumbras and emanations") of several of the textual provisions actually written down in the Bill of Rights of the Constitution.
This was not a NEW right, but an OLD right, already considerably protected in the text of the Constitution, but not entirely. Hence the need to fill in the spaces according to modern needs. They didn't have contraceptive pills and wiretaps in 1787.
Douglas, the former Yale law professor, felt that Amendments 1, 3, 5, and 9 all protected aspects of privacy, from the guaranty of free expression (1st), to the protection of homes against the quartering of troops (3rd), to the prohibition of self-incrimination (5th), to the protection of unenumerated rights held by the people (9th).
Conservatives felt that Douglas was nothing but an arch-Liberal, which he was, and was legislating out of whole cloth, just hanging his hat where he could.
Of course, out of Griswold (1965, on contraception) grew Roe (1973, on abortion) and Lawrence (2003, gay rights or human rights, take your pick).
If there are three things that drive conservatives and the religious right up the wall it is what they view as the rampant breakdown of traditional family, hence national values represented by contraception, abortion, and unnatural sex acts among same sex couples. Bowers v. Hardwick, 1986, certainly took that position, but Bowers was overruled last term in Lawrence v. Texas.
These activities are against the laws of God and Man, they believe.
Now we're in religious territory. We're about to commingle law, government, and religion. It's hard to keep the salty taste out of the soup once you drop a few grains in.
Whose God controls?
The Old Testament God of the Religious Right?
Or the Modern God of Anything Goes as long as it feels good and isn't done on the street where it might frighten the horses, as the Lady said.
The problem is that not everyone believes in Yahweh in America any more, if they ever did. Even the Puritans quarreled over what God really wanted. That's how Rhode Island got started by Roger Williams. That's how America got started by Puritans.
Now we're stuck with their doctrinal problems.
I thought the Reformation was over a long time ago.
It's just starting!
I wonder what god God believes in.
Every society has invented gods satisfactory to it, from the Sun to the Moon to the Rain to the Greek pantheon, to the Hebrew One-God, to the Christian Three-in-One, like the useful oil that unsticks all rusted joints.
Which God does God pray to?
Please don't tell me God is an atheist.
That's a bit too much iconoclasm to suit me.
I want a God who believe in God and talks to himself.
And me.
Not necessarily in that order.
I don't mind people talking to God.
I do mind God talking to them, however.
I suppose it depends on what they say he told them it was okay to do.
That's where I draw the line.
The Puritan rejection of Spectral Evidence after the Witchcraft Accusation Outbreak of 1692 holds good for me today. Neither the Puritans nor I find it reliable to hang people based on spectral evidence. Spectral evidence is testimony of what only the testifier seems to be able to see, whether what he (or she, as in Salem) sees is the Devil or the Lord.
So I would see it as a violation of the Constitutional Guarantee of Separation of Church and State, and the Non-Establishment of Religion, for religious people to impose their views on me simply because they had more political power than I do.
I wonder if the Religious Right is going to nail Arlen Specter on Spectral Evidence.
That would be poetic justice, literally, but not a wonderful idea.
I think that the Constitution protects me in this regard.
The Religious Right would tend to disagree.
This means a litmus test that nominees must pass on Roe.
Specter keeps saying, pathetically, I might add, because it unsuccessfully evades the question, that "I have no litmus test" meaning that he personally will not block a nominee from coming from the committee to the floor of the full Senate for an up or down vote on the nomination.
The President, by contrast, DOES have a litmus test, although he denies it of course. If Pres. Bush nominates a Roe-supporter to a Supreme Court you can call me a liar.
Sen. Charles F. Schumer, D-NY, a Harvard Law grad and owner of one of those sharp New York minds and tongues, with which native Noo Yawkers seem to be either blessed or cursed, take your pick, supports a woman's right to choose to control her own reproductive events and consequences.
If he sees an arch-Conservative appointee, he's going to lead a filibuster to block the nomination by talking it to death for as long as it takes.
The threat of shutting down committee, and Senate business, ad infinitum, which is what a filibuster does, is enough to block most Senate bills and consents to nominations.
Here's what Sen. Schumer says:
"Democrats have supported 201 of 211 [Bush] nominees," Schumer said, "Most of them have had much different views than we have had, and most of them are pro-life. The only ones we are knocking out are people of the extreme type.
If the president nominates an extremist who wants to roll back the clock to the 1890s or the 1930s, of course he will have a problem. If he nominates a mainstream judge, he won't have that problem."
* * *
Of course I enjoyed Sen. Schumer's reference to "the 1890s or the 1930s." He is referring, of course, to the era decried by Justice Oliver Wendel Holmes, Jr., in his famous dissent in Lochner (1905).
Lochner epitomized the era of Laissez-Faire capitalism, which was very heavy on the Social Darwinism, meaning the "survival of the fittest."
Holmes's reference in the dissent to Herbert Spencer's "Social Statics," was to this, as Spencer, a friend of Charles Darwin, coined the description of the theory of evolution as survival of the fittest.
Applied to human social behavior, this justified a dog-eat-dog world in which the rich ate the poor. The laboring man didn't stand a chance against rampant capitalism until laws and labor unions came to his rescue, but that would take half a century, measuring from the 1890s to the 1940s, during which the Supreme Court, in the greatest example of judicial activism, conservative judicial activism, be it noted, struck down measure after measure of social and economic reform legislation including minimum wage, labor union protection, worker safety and compensation, child labor (children had liberty of contract vis-a-vis management, their equal), maximum hours and the like.
The Court was killing FDR's New Deal during the Great Depression of the 1930s (that my parents and their parents lived through, survived would be a better term) followed the Stock Market Crash of 1929. FDR fought back with his ill-fated Court-Packing Plan of 1937.
The Court decided to go out of the legislation-killing business and judicial restraint, whose chief advocate was Professor, and later Justice Felix Frankfurter, at least as to ordinary economic and social legislation.
Holmes thought the constitutionalizing of an economic theory by the Court wrong and strongly said so.
The Constitution, Holmes said, does not include Spencer's "Social Statics," or dog-eat-dog economic theory. In fact the Constitution prescribes no particular economic theory.
This came as a big surprise to me when my Con-Law professor, Norman Redlich at NYULS, mentioned it in class one day. Steeped in anti-communist Cold War rhetoric as I was, I thought it heretical.
"You mean this country could really go Communist and it wouldn't be unconstitutional?" I thought. "Where's the protection when we need it?" I wondered.
I still remember it, four decades later.
Funny how that works.
I first studied Con-Law during the Cold War against Soviet and Red Chinese World Communism, shortly after the McCarthy Era supposedly ended.
It still lives, actually, but that's another story.
"The Past isn't Dead,...", but I don't want to bore you further, do I.
Today we tend to go with Holmes, not to the dogs.
By the way, have I ever mentioned to you the adage:
"No bad idea ever really goes away?"
I didn't?
Well, there ya go.
In reflecting on the above, the thought occurs that while Judicial Review, this great power to declare legislation and other government acts constitutional or unconstitutional, is a tool. Tools, like hammers and axes, have no intelligence. They're dumb, as in stupid.
Your attitude towards how this tool should be used, and whether it should be used, depends entirely on your political attitude, view, outlook, whatever you wish to call it.
Judicial Review is a bit like the A-bomb in the legal arsenal. We're all, or most of us, I assume, agreed that we are better off for having possessed the A-bomb, to use to end the Second World War, for example, but that we're happy not to have had to use it since.
Whether it will ever be justified to use nuclear weapons in the future will be a matter of interpretation, strict or loose. Use it only when absolutely necessary for survival, or any time we like, so long as it's "appropriate," God forbid.
Senator Schumer's reference to the 1890s and 1930s is brief. It took me all of the above writing to explain what he meant. It's taken me almost three years of constant study and review, since I agreed to teach this year-long course in Constitutional Law, to be able to pull that information together, into and out of my head.
I set it forth for the benefit of students and my son, Rick, 23, who has suddenly, it seems, taken an interest in his legal environment. Rick hasn't heard any of this. He'll be surprised to see that I'm conversant with it. Assuming he takes the trouble to read this far down the page. Perhaps if I relabeled the post, "Rick, 23..."
The truth is that the information is now at the forefront of my mind, for the time being at least, since I teach every week. I can work with it without doing a lot of looking up. Any looking up, in fact, which will account for any mistakes.
The blogging process is so immediate that it doesn't encourage looking up. So you take what you get, do your own fact checking, and let me know what you've come up with.
It seems to me that some serious scholar, or well-briefed political leader such as Sen. Schumer, ought to really go to town on the meaning of judicial review, in historical experience.
If we were to examine judicial review as a tool that has been used for good and bad, progress and stasis, then we could have a really good, informed political argument over whether strict vs. loose construction, use or non-use of judicial review in a particular direction is wise or not.
If we don't do that, then all we're doing is hurling epithets, the way Pres. Bush does when he says he wants to appoint only "strict constructionists" to the Supreme Court, as though that were an end in itself.
In itself, the term "strict construction" is meaningless. It only has meaning when you ask towards which, among competing, political goals is this tool being wielded.
See the post on Pres. Bush and "strict constructionism," on Nov. 14, 2004.
The Pittsburgh Post-Gazette has an article on Sen. Specter's troubles with the Republican Right today here, and reprinted below:
* * *
Specter trouble in GOP persists
Senate's Frist cites 'disheartening' remark on judges
Monday, November 15, 2004
By Michael McGough, Post-Gazette National Bureau
WASHINGTON -- The Republican leader of the U.S. Senate said yesterday that Sen. Arlen Specter of Pennsylvania still has to make a persuasive case to his colleagues that as chairman of the Judiciary Committee he could be "responsible to the feelings, the wishes, the beliefs, the values [and] the procedures that are held by the majority of that committee."
Majority Leader Bill Frist of Tennessee said he personally found "disheartening" Specter's post-election comment suggesting that the Senate was unlikely to confirm a Supreme Court nominee who "would change the right of a woman to choose [and] overturn Roe v. Wade."
In an appearance on "Fox News Sunday," Frist suggested that he wasn't the only Republican senator who wanted more of an explanation than Specter has given so far for his controversial remarks, which Specter later clarified by promising that he would not impose an abortion litmus test in considering President Bush's judicial nominees.
"What he will do over the course of this week is meet with Senate leadership," Frist explained. "He'll then meet with members of the existing Judiciary Committee to explain both what he meant and what he would do as chairman. And then ultimately the members of that committee will choose whether or not he serves as their chairman."
Specter, meanwhile, was continuing his counteroffensive against the campaign to block his chairmanship and sounding very much like Frist. In an appearance on ABC's "This Week," Specter echoed the majority leader's criticism of Democratic filibusters that have blocked confirmation of a handful of Bush's judicial nominees.
"For 200 years, you never had this mass, indiscriminate use of the filibuster," Specter said. "I think you have to have a major change in the way that the Democrats look at this issue."
Specter also said controversial proposal floated by Frist to eliminate filibusters for judicial nominees should be "on the table" when senators return to work tomorrow. Under the Frist proposal, known in Senate circles as the "nuclear option," Vice President Dick Cheney, as presiding officer of the Senate, would rule that filibusters on judicial nominations violate the Constitution's directive that judges be appointed with the "advice and consent" of that body.
Under normal procedure, 67 votes would be required to change Senate procedures to abolish the rule that it takes 60 votes to cut off debate on a particular item of business. Republicans outnumber Democrats in the new Senate by 55-44, with one senator listed as an Independent but voting with the Democrats on organizational issues.
"I think everything's on the table," Specter said in response to a question about the Frist proposal. "We have to confirm federal judges, and the fact that it's on the table may be a significant factor in pushing for compromise."
Sen. Charles Schumer of New York, a senior Democrat on the Judiciary Committee, countered that the Frist proposal reminded him of a "banana republic," and predicted that if the Republicans unilaterally tried to do away with filibusters, the ensuing partisan strife "would make the last Senate look like a very polite tea party."
Schumer, also a guest on "This Week," disputed Specter's contention that Senate Democrats had interfered with Bush's prerogative to appoint judges within "broad lines" of acceptability.
"Democrats have supported 201 of 211 [Bush] nominees," Schumer said, "Most of them have had much different views than we have had, and most of them are pro-life. The only ones we are knocking out are people of the extreme type. If the president nominates an extremist who wants to roll back the clock to the 1890s or the 1930s, of course he will have a problem. If he nominates a mainstream judge, he won't have that problem."
Schumer added that Bush likely would "evoke a fight" from Democrats if he chose to nominate Justice Clarence Thomas to succeed Chief Justice William Rehnquist if Rehnquist, who is being treated for thyroid cancer, resigned or died.
Asked if he could support Thomas for chief justice, Specter declined to give an answer, saying "I don't think our votes ought to be in sound bites on national television." But he immediately added: "I do believe that the president ought to have very substantial deference in his nominations" to the high court. Specter noted that he led the fight to confirm Thomas as an associate justice "and almost lost my Senate seat in the process."
Yesterday, Specter continued to deflect questions about whether he expected to be elected to the chairmanship by his Judiciary Committee colleagues.
"I have talked to many of them and have calls in to the rest, people who have been out of the country," Specter said," but I think it would be prudent to let my colleagues speak for themselves."
One who did, Sen. John McCain of Arizona, predicted yesterday that Specter would survive the onslaught.
"I believe that Arlen has done a good job," said McCain, also a guest on "This Week." "It's up to the members of the Judiciary Committee and the Republican caucus, but I think he'll be confirmed."