Monday, July 23, 2007

Judicial nominations and the Constitution

Correction: All references to Missouri in the quoted CNS article should say Mississippi

Here we go again...

From CNS News:
Twenty years after President Ronald Reagan's failed nomination of Judge Robert Bork to the Supreme Court, another fight is brewing in the U.S. Senate over a judicial nominee - this time, over Leslie Southwick, a nominee to the Fifth Circuit Court of Appeals.

Southwick's nomination is to a seat - previously held by Judge Charles Pickering - that has been declared an "emergency vacancy." Pickering faced opposition from Senate Democrats and was recess-appointed by Bush in 2004. He withheld his name for consideration for another attempt at confirmation and retired from the bench when his term expired.

The American Bar Association has unanimously ranked Southwick as "well-qualified" for the Court of Appeals.

But as Cybercast News Service reported earlier, a number of liberal groups oppose Southwick, accusing him of bringing conservative views into his court rulings.

The controversy stems from two cases Southwick became involved with, one regarding the use of a racial slur in a workplace and the other dealing with the parental rights of homosexuals.

Though Southwick did not write the opinions, in a May 30 letter to the members of the Senate Judiciary Committee, People for the American Way President Ralph Neas stated that "the opinions that a judge chooses to join, or elects not to, can be just as revealing of his judicial philosophy as those that he writes."

Neas added that Southwick "may lack the commitment to social justice progress to which Americans are entitled from those seeking a lifetime appointment to the federal bench."
One can only HOPE he lacks commitment to "social justice". A judge is supposed to apply the law as intended by the legislators, not apply "social justice". There it is one of my three deadly words for our country social justice, diversity and political correctness.
In Richmond vs. Missouri Department of Human Services, the Mississippi Appellate Court Southwick ruled that a white state employee should not be terminated for derogatorily referring to an African-American co-worker.

The racial slur was made outside of the recipient's presence, she later made an apology that was accepted, and the workplace was not significantly disrupted. The Mississippi Supreme Court concurred with the result of the decision of Southwick's courts but found that more detailed reasoning for its conclusions was required.
sounds perfectly reasonable to me, what ever happened to free speech under the First amendment?
Neas said that Southwick's decision "effectively ratified a hearing officer's opinion that the slur was only 'somewhat derogatory' and was in effect calling the individual a 'teacher's pet.'"
What? How did this idiot equate this ruling with saying it is like calling someone a teachers pet? But you know what, what difference does it make what derogatory word you call someone and why should some words and some people be treated differently? What ever happened to the concept of "sticks and stones will break my bones, but names will never hurt me"? Now all I here is words hurt! We have become such a weak, self centered society. Now we want judges to say if you call someone a name, or you hurt my
FEELINGS, you have to be punished! This is more Left wing lunacy that wants hate speech laws in this country. Learn the Constitution people PLEASE, the first Amendment is designed to protect against such nonsense.

So what did Southwick have to say?
In his hearing before the Senate Judiciary Committee, Southwick called the term "always offensive," "inherently and highly derogatory,' and that there was "no worse word."
Yup it is an offensive word, unless a black person uses it of course.
The second case, S.B. vs. L.W., Neas says that the Mississippi Court of Appeals repeatedly used "gratuitously anti-gay" terminology in describing lesbians. The court awarded custody of a child to its biological father rather than its mother, who was living with a woman in a homosexual relationship.
A gratuitously "anti-gay" phrase? I wonder what that could be?
The term in question, "homosexual lifestyle," has been used in previous decisions ruled by both the Missouri and U.S. Supreme Courts. The court also considered a variety of factors in awarding custody to the father, including the quality of the father's job and residence, his income and his roots in the community.
Now we cannot use the term "homosexual lifestyle"? Maybe we should just call it perverted or queer? Political correctness is going to destroy our society.
Last Tuesday, Sen. Arlen Specter (R-Pa.), ranking member of the Senate Judiciary Committee, took to the floor to urge senators to move forward with the nomination. Specter said Southwick had "an impeccable record" and called him "a mild-mannered professional who is a confident man" and "a solid lawyer" who "has been a solid judge."

But at the Judiciary Committee business meeting two days later, Chairman Patrick Leahy (D.-Vt.) lambasted his Republican colleagues for backing Southwick.

"This is not a partisan fight that needs to be waged," Leahy said. "We can work together to fill this Fifth Circuit vacancy. I hope the president and Senate Republicans will work with us."

No vote was held on Southwick at Thursday's meeting.
Here go the democrats again blocking judicial nominations. Leahy wishes to steal the power of judicial appointments from the executive branch. Congress seems to think they are the Roman Senate! Don't let that pesky Constitution get in your way Leahy, just tell the uninformed massses it means something different than the people who created says it means. "Advise and Consent" Does not mean the Senate gets to tell the President who to appoint! It means you can advise the President on people you would like to RECOMMEND, the President makes his choice and you CONSENT to ANY qualified judge. This is a real dangerous game they are playing, we have too many open judicial seats and if both parties go down this road it will only get worse. The Republicans nominated almost 400 of Clinton's judicial nominees and most of them they did not like for their political ideology. Frankly no "liberal judge" should be appointed anywhere. By definition of how liberal judges behave on the bench they are unqualified to be judges. They tend to legislate from the bench., not apply the law equally and in the way the legislators who wrote the law, or Constitution intended. Noah Webster (the founder responsible for article I, section 8, paragraph 8 of the Constitution wrote. In the lapse of two or three centuries, changes have taken place which...obscure the sense of original languages...The effect of these changes is that words are... now used in a sense different from that which they had... [and thus] present a wrong signification or false ideas. Whenever words are understood in a sense different from that which they had when introduced... mistakes may be very injurious. #1

As you can tell he is warning us that words change in meaning over time and we must understand people's words at the time they were written, not based on their meaning today. This was back in the 1800s and our language has changed much more dramatically over the centuries than back then.

But let us look at what other had to say:

James Wilson, an original justice on the Supreme Court: The first governing maxim in interpretation of a statute is to discover the meaning of those who made it. #2

Justice Joseph Story (appointed by President James Madison): The first and fundamental rule in interpretation of all is to construe them in according to the sense of the teerms aand intentions of the parties. #3

To avoid such "injurious mistakes" President Thomas Jefferson admonished Supreme Court Justice William Johnson:

On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented aginst it, conform to the probable one in which it was passed #4

James Madison agreed:
I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of it's powers... What metamorphosis would be produced in the code of law if all its ancient phraseology where to be taken in its modern sense. #5

I saved the two best for last, as you can see the "Liberal/Progressive" concept of a living breathing document that changes over time is completely false, as is interpreting the legislators laws anyway they chose to view and apply them.

You now have some tools to combat this cancerous way of thinking. We need true constructionist judges that we call Conservative.

Foot Notes:
1. Noah Webster, The Holy Bible...with Amendments of the Language(New Haven: Durrie & Peck 1883) p. iii
2. James Wilson, The Works of the Honorable James Wilson, Bird Wilson, editor (Philadelphia: Bronsoin and Chauncey, 1804) Vol. I, p.14, from "Lectures on Law Delivered in the College of Philadelphia; introductory lecture: Of the Study of the Law in the United States."
3. Joseph Story, Commentaries on the Constitution of the United States (Boston: Hilard, Gray, and Company, 1833) Vol I, p.383 & 400.
4. Thomas Jefferson, Memoir, Correspondence, and Miscellanies, Thomas Jefferson Randolph, editor (Boston: Gray and Bowen, 1830) Vol. IV, p. 373, to Judge William Johnson on June 12, 1823.
5. James Madison, Selections from the private correspondence of James Madison from 1813-1836, J.C. McGuire, editor (Washington, 1853), p. 52, to Henry Lee on June 25, 1824

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