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bito On June - 28 - 2010

Should I be more polite and ask “Was he Honest?  Is he Honest?

The confirmation hearings of Elena Kagan to the Supreme Court begin today and according to recent precedent it doesn’t  matter what she says about how she will judge when she is on the bench, and how she will actually act.  What she says will be what she and her handlers think needs to be said to get her confirmed.  If she actually says how she feels the Republican Senators end the infotainment sources will be busy making it into a major story, a giant conflict with the very constitution and it’s history.

Chief Justice Roberts made a big deal (during his hearings)  about him just being an umpire and not one of those nasty activist (read liberal) judges.  And the overturning of the sacred precedent of earlier rulings would be approached with the utmost of caution.  In his best “judgy” voice……..”to have the humility to recognize that [judges] operate within a system of precedent”……  Mr. Roberts hardly had gotten his powdered wig back form the hair dressers before he laughed at (spat upon) the Senators, precedent, being only the 17th chief justice and  we-the governed.

I don’t know what the exact count is on overturning previously decided laws, but I have seen counts of between 9-15 major cases, during the Roberts tenure, ranging from corporate /FEC (Citizens United) ,to gender (Ledbetter), to Age, civil rights, environmental laws (due a search on Slate Lake, AK.)  and just today, the 2nd amendment.  The precedent on some of these goes back to nearly a hundred years.  How did corporate price fixing laws change from law of 96 years ago, that and corporate citizenship?

Then we have Associate Justice Alito and his complete respect for prior rulings.  His testimony and his allegiance to precedence lasted about as long asan ice cream cone on a summer day. He, like    Roberts couldn’t care less about prior rulings.  I often wonder who writes their opinions
Does the Federalist Society write them or do they just give them an outline to follow.  Was his testimony, during his hearings, dishonest?  Or did he, like Roberts, come to some revelation that old decisions are bad decisions?  Did that “just a social gathering of like minded lawyers” (Federalist Society) have any influence?

And then we have Justice Scalia, channeling the framers.  Yes, those framers that were all so familiar with  grenade launchers, bank wire transfers, mountain top mining, civil rights and environmental laws.  I fully accept that Mr. Scalia has a vert good legal mind.  But where in the  constitution does it say anything about HOW the constitution and statuary law should be decided?  Original Intent or a living, changing document?   In his decision to decide by original intent, does that make him an activist?
Sorry, Mr. Scalia, I don’t follow your decisions and original intent at all.  I think you use that as shorthand for corporatism.  Where in the original writings did the framers give presonhood to corporations?  Did not the framers have their bad experiences withe the Crown and their favored corporations and price fixing?   But now you think that they were just all hunky-dory with them in their original intent?  His interpretation of the framers is no different than any other justices interpretation.  He just thinks his rulings are somehow superior.

Now I have no problem with elected people changing their position if the circumstances change, and I have no problem with the Supreme Court looking at previous decisions.  Lord knows that in the areas of civil rights they were and are desperately needed, as unwelcome some of them were and are at the time. But do we need to change governing law via the supreme court on statutorily created entities giving them equal weight with living things?  How does corporate price fixing now differ from price fixing now?  Does the harm to a company now equal the harm to you?

Having watched parts of a few SCOTUS confirmation hearings, I don’t expect to see much more than a political point making , reelection exercise as it has become to be (only worse this time).  There will be very few, if any, consequential questions or answers.  Just sound bites and some “breaking news” stories of some producer/editor created story of one the gravest conflicts in Senate history (for a 24 cycle at least).
I suppose what we will see are the differences of what the Democrats feel need to be protected versus the wishes of the Republicans.

In the end, will the Rs filibuster ( as threatened) and what will the vote be on the Senate floor?
What Rs will vote for her? Snowe , Collins, Brown (Brown is one of her co-sponsors, she being from Mass ? ) I would like to see Voinavich (R-OH) vote for her.  Or will she even be appointed?  How about the corporate loving Nelson of Nebraska?  Remember, she will not change the ideological make up of the court or is she even as liberal as Justice Souter or does the court slowly become more conservative with each appointment?  Will Justice Ginsberg be the next to retire?  How about a justice from a non Ivy League school from the Mid-West or Pacific North-West?  How about a real liberal/progressive?

Inspiration from:



And their many links

Categories: Featured, News & Politics

Written by bito

Was once a handsome frog until kissed by an ugly corporate princess.----- Like a well honed knife, the internet can be a wonderful and useful tool. It can be used to prepare and serve a delicious meal or it can be used to cause harm. peace

26 Responses so far.

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  1. bitohistory says:

    Where have all those activist judges come from and when? I don’t remember ever reading this Mamifesto, but it almost reads like it could have been written recently.
    “The Southern Manifesto”

    The unwarranted decision of the Supreme Court in the public school cases is now bearing the fruit always produced when men substitute naked power for established law.

    The Founding Fathers gave us a Constitution of checks and balances because they realized the inescapable lesson of history that no man or group of men can be safely entrusted with unlimited power. They framed this Constitution with its provisions for change by amendment in order to secure the fundamentals of government against the dangers of temporary popular passion or the personal predilections of public officeholders….
    The original Constitution does not mention education. Neither does the 14th Amendment nor any other amendment. The debates preceding the submission of the 14th Amendment clearly show that there was no intent that it should affect the system of education maintained by the States. …….

    In the case of Plessy v. Ferguson in 1896 the Supreme Court expressly declared that under the 14th Amendment no person was denied any of his rights if the States provided separate but equal facilities. This decision has been followed in many other cases. It is notable that the Supreme Court, speaking through Chief Justice Taft, a former President of the United States, unanimously declared in 1927 in Lum v. Rice that the “separate but equal” principle is “within the discretion of the State in regulating its public schools and does not conflict with the 14th Amendment.”

    This interpretation, restated time and again, became a part of the life of the people of many of the States and confirmed their habits, traditions, and way of life. It is founded on elemental humanity and commonsense, for parents should not be deprived by Government of the right to direct the lives and education of their own children.

    Worth a read:

    Pick your favorite section!

    Would Thurgood Marshall have been chosen for the SCOTUS with this Senate? Seems Senators Hatch and Corburn are not sure.

  2. AdLib says:

    Kagan wrote a while back that the confirmation process for SCOTUS nominees is bogus and was even reminded of that in a friendly way by Lindsey Graham.

    This process is all about deceit, everyone knows that. To be too open and honest, whatever your POV, will give your philosophical enemies in the Senate ammunition to shoot you down.

    So, because the politics of Repubs vs. Dems has become so all-encompassing, all nominees must hide their true POVs or be punished for being honest.

    There is so much wrong and getting “wronger” in our democracy as the corruption of politics continues to dominate. And having these BS, charades instead of legit hearings where honesty is not punished is a reflection of that.

    As to the Repubs on this, I think Kagan has charmed enough and has created such a positive public image of her self over the past few days that the Repubs will not have enough support to block her.

    Now if only aliens would abduct Scalia or Thomas and Obama could shift the 5-4 split to a pro-citizen balance.

  3. bitohistory says:

    Today, Arlen Spector Remarked to Ms Kagan on the same point I attempted to make in my post. Prospective Supreme Court Justices come before the committee and say one thing and then do another once on the bench. Perhaps it was just me, but it sounded like he was talking about Roberts.

    • bitohistory says:

      Today, Senator Spector did not just insinuate that C.J. Roberts completely misled the Senate during his confirmation hearings.
      He (Roberts) does not value, respect precedence and he left no doubt in the Citizens United case. Spector pulled no punches. But what to do? How do you take away the ice cream cone after the child is finished eating it? C.J. Roberts will be there for life.

  4. kesmarn says:

    Kyl complained. “Kagan wrote a tribute to Justice Marshall in which she said in his view it was the role of the courts and interpreting the Constitution to protect the people who went unprotected by every other organ of government. The court existed primarily to fulfill this mission. And later, when she was working in the Clinton administration, she encouraged a colleague working on a speech about Justice Marshall to emphasize his unshakable determination to protect the underdog.”

    Call me a commie-pinko, but what is so wrong with Marshall’s take on the role of the courts? Makes sense to me.

    • bitohistory says:

      k’es, if you get a chance to read/hear Sen. Durbin’s (D-IL) reply on the R’s Marshall statements. Here is part of it.

      Some may dismiss Justice Marshall

      • Kalima says:

        Are corporations people too?

      • kesmarn says:

        Wow. b’ito, that is just brilliant. I say “thank God” for Senator Durbin!

        I detest the way these awful people take words like “empathy” and “social justice” (even “liberal”!) and warp them to make them seem ugly. They have nothing to offer but fear, anger and obstruction.

        When will people start to see them for what they really are?

    • bitohistory says:

      Well, no big surprise, but it seems that the whole attack on Thuregood Marshall was pretty well planed by the R’s. Sure is lucky for Justice Marshall that isn’t being nominated now. His giving a voice to the voiceless, sure has The R’s in a hissy. The courts are there to protect the corporations.


      Edit: k’es, you commie -pinko. :-)

      • kesmarn says:

        Hahahahahaha! I love this quote from that article, b’ito!

        With Kagan’s confirmation hearings expected to last most of the week, Republicans may still have time to make cases against Nelson Mandela, Mother Teresa and Gandhi.


      • dildenusa says:

        When the republican party was founded in 1856, this was their slogan:

        “free labor, free land, free men”

        referring to their anti-slavery roots. It seems today that they would rather see everyone as a slave to the corporatocracy.

    • bitohistory says:

      What a informative link Khirad. From the NYT story it seems the R’s on the court, and their willingness to strike down existing law, are attempting to catch up with the Senate R’s and their filibusters.

      Declaring an act of Congress unconstitutional is the boldest thing a judge can do…..In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act “of great delicacy, and only to be performed where the repugnancy is clear.” Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred.

      since…..1994, by our count it has upheld or struck down 64 Congressional provisions. That legislation has concerned Social Security, church and state, and campaign finance, among many other issues. We examined the court’s decisions in these cases and looked at how each justice voted, regardless of whether he or she concurred with the majority or dissented.

      I guess one could say that congress has been writing a bunch of bad law. But when they begin striking down law the is 50-100 years old it makes one question if it is still such a delicate balance between two equal branches of government in the eyes of this court.

      (I can’t believe Justice Thomas and his 65.63%. not much balance there, is there?

  5. dildenusa says:

    The current crahp of conservative justices (Scalia, Alito, Thomas, Roberts) aren’t channeling the framers of the constitution, they are channeling Ayn Rand and her now discredited philosophy of Objectivism. Objectivism says, If you allow people and corporations unfettered freedom, they will act in their “rational self interest.” But we aren’t rational ceatures and never have been.

    • bitohistory says:

      dildenusa, Just ran across this article. Here is what appears to be some more Ayn channeling. This must be some more”rational self interest”

      “Narrowly Dodged Bullets: John Roberts

  6. dildenusa says:

    Just so you know, the law clerks write the opinions. The current system is for the justice to use a recording device to record his or her spoken opinion. Then the clerk writes the opinion with minimal editing. I’m sure this has probably been the system used since the 1940’s or 50’s. Only now they might use a mini recorder or a computer or smart phone. Doctors use a similar system for transcribing reports.

  7. PatsyT says:

    I liked her opening statement especially the part about- not deciding without understanding-
    was that a Stevens quote? (not sure of the exact quote)
    It would be interesting to compare the the opening statements of Alito , Scalia, Roberts, to Kagan.
    Nothing like a little summer theater…. huh?

    • bitohistory says:

      Yes, Patsy, I just heard the quote she gave and it was Justice Stevens. I want to listen to her statement again, i was trying to do some chores the first time.

      I’m sure c-span has Roberts Scalia and Rorberts speeches in their archives. May even have the transcripts. Summer beach reading? 😉

  8. Kalima says:

    bito, I love you! I always tell the truth, that is why I have so few friends. Yes, she should.

    • bitohistory says:

      Kalima, yes she should tell the truth and it won’t much matter to the R’s anyway. They will listen to her, ignore what she says, misquote her and continue with their falsehoods and talking points.

      I have to embarrassingly admit that I was taken in by Roberts performance during his conformation hearing. The parts I saw, I thought “this guy may not be as conservative/corporatist as I have heard. He just might a bit center right. Man, was I wrong!

    • boomer1949 says:


      I always tell the truth, that is why I have so few friends.

      You and me both my dear, you and me both! 😆


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