mschor at suffolk.edu
Fri Oct 28 09:08:25 PDT 2005
I think the interesting aspect of Miers's resignation is not who will be
named next (even if that undoubtedly will be the topic of this list serv
for quite some time) but what it says about the modern conservative
movement. Conservatives once stood for a smaller government, a balanced
budget, and a distrust of expensive foreign entanglements that involved
exporting democracy. George Bush has stood all these principles on
their head and no conservative has complained (unless taking money from
the poor to pay for Katrina relief efforts counts as principled
conservatism which I suspect it does). What really matters to
conservatives is quite obviously a litmus test for judicial appointments
because they are a minority that lacks the power to amend the
constitution or for that matter to convince the nation to adopt their
views on key social issues in a more reasoned fashion.
Assuming that Bush names a more ideologically pure nominee for the high
court, the interesting question will be whether the Court in the
"exercise of raw judicial power" will seek to do what the conservative
movement cannot do using the democratic processes. I rather doubt (and
certainly hope) that it does not. Miguel
Rick Duncan wrote:
> I think /Roe/ *is* on my list, Marci. /Roe/ is a SDP decision of the
> first order, an "exercise of raw judicial power."
> I don't think it is being a "true conservative" to refuse to enforce
> the Free Exercise Clause against laws (including generally applicable
> laws) which do indeed prohibit and restrict the free exercise of
> religion. But if this makes me and Mike (and ADF's Alan Sears and
> ACLJ's Jay Sekulow) liberals, than I am a proud liberal, a proud
> defender of the First Freedom. But please tell the MSM to stop calling
> us the "far right."
> By the way, if the 14th Amendment provided "nor shall any state
> prohibit abortion prior to fetal viability," I would be working for a
> Human Life Amendment to the Constitution, but I would not argue that
> the Court should refrain from protecting the explicit liberty of
> abortion. A judicial activist is a judge who substitutes his
> preferences for those of the written Constitution. Both the /Roe
> /Court and the /Smith/ Court practiced judicial activism.
> Rick Duncan
> */Hamilton02 at aol.com/* wrote:
> It's interesting McConnell is not being defended here on
> federalism principles, which is as it should be. His public
> stance against Roe v. Wade is also not in this list, which is
> "Most social conservatives," when they come to understand that is
> meant by the likes of RFRA and Brennan's approach to free exercise
> issues, do not think Smith is wrong. Conservatives, in general,
> have a strong regard for (1) the rule of law and (2) the capacity
> of the legislative process to set social policy, like exemptions.
> If you ask a conservative if he or she thinks that religious
> organizations or individuals should have to obey neutrally,
> generally applicable laws, the invariable answer is "yes."
> Scalia, Rehnquist, and Kennedy are the true conservatives on the
> Free Exercise Clause. On these issues, McConnell is joining
> Brennan, O'Connor, Breyer, and the liberal con law professors.
> That is why so many jumped at the opportunity to support him for
> the court of appeals. His instincts are liberal.
> How does one square RFRA with a view that judges should not set
> social policy from the bench? It's okay in the religion context,
> but it's not okay in the privacy context?
> In a message dated 10/28/2005 10:27:52 A.M. Eastern Standard Time,
> nebraskalawprof at yahoo.com writes:
> 1. He is no friend of Substantive Due Process, whether of the
> /Lochner/ or the /Lawrence/ strain. He will not impose his own
> list of "fundamental" liberties to strike down laws duly
> enacted by state legislatures. He knows that the Due Process
> Clause codifies neither Mr. Herbert Spencer's Social Statics
> nor the Kama Sutra.
> 2. Scalia's views about free exercise (he thinks it doesn't
> exist) are not the views of most social conservatives. /Smith/
> is wrong and Michael knows it is wrong.
> 3. Michael is also a strong supporter of the Free Speech
> Clause, including the right to equal funding (/Rosenberger and
> /Davey) and to expressive association (/Dale/).
> Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
> "When the Round Table is broken every man must follow either Galahad
> or Mordred: middle things are gone." C.S.Lewis, Grand Miracle
> "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or
> numbered." --The Prisoner
> Yahoo! FareChase - Search multiple travel sites in one click.
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