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Old January 13, 2013, 11:42 PM   #51
Willie Sutton
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Let's remember that Justices aren't appointed via rubber stamp. Article II states that they are appointed "by and with the Advice and Consent of the Senate." We do have a say, however indirectly, who gets on the Court.



Can you *imagine* popularly voted supreme court justices?

It's bad enough that "the people" get to vote on a President. At least *he* cannot destroy the constitution, at least not directly. But supreme court justices? Whoever promised more bacon (chocolate covered or plain) to the "masses" would win.... and where does anyone think *that* would get us?


And for you also, behold:

http://en.wikipedia.org/wiki/Chocolate-covered_bacon



Willie

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Old January 14, 2013, 12:36 AM   #52
mrbatchelor
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Well, I'm certainly no lawyer, so I'm not taking on Frank.

I would ask his opinion on this analysis from the Cato institute regarding a state's capacity to resist federal intervention.

Note that this link has a further link to a PDF at the bottom of the page for the whole article.

http://www.cato.org/publications/pol...eid=b8816b9b58


While the original premiss is about Marijuana the author makes reference to the fact that this line of reasoning may hold for other areas as well. This was written well before the current national non-discussion on gun control started.
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Old January 14, 2013, 01:28 PM   #53
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Quote:
Whoever promised more bacon (chocolate covered or plain) to the "masses" would win


Ermagherd...shut up and take my guns!

Quote:
Can you *imagine* popularly voted supreme court justices?
It would be a disaster. As it is, they're rightfully insulated from the electoral process, but not entirely immune to it.
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Old January 14, 2013, 01:41 PM   #54
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Only one tiny point to interject, then we can get back to flying chocolate covered bacon...

Quote:
Once SCOTUS rules, the hunt is over.
Not totally correct, for the Court can reverse itself in later decisions, I believe, similar to Dredd Scott? I might be wrong.
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Old January 14, 2013, 02:02 PM   #55
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I love bacon and I love chocolate, but I have to say chocolate bacon does not do much for me.
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Carpe Cerveza
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Old January 14, 2013, 02:04 PM   #56
Tom Servo
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Not totally correct, for the Court can reverse itself in later decisions, I believe, similar to Dredd Scott?.
The major provisions of Dred Scott v. Sanford were effectively nullified by the 13th and 14th Amendments (and the Taney Court was none too happy about that). While historians (and some later Justices) acknowledged the poor wisdom of the decision, it was not overturned.

The most famous reversal would be Brown v. Board of Education, but that took over five decades to happen. We don't want to be stuck with that sort of time scale with the 2nd Amendment.
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Old January 14, 2013, 02:20 PM   #57
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Quote:
Originally Posted by Willie Sutton
. . . .Can you *imagine* popularly voted supreme court justices? . . . .
I can do better than that. Our Arkansas Supreme Court Justices are elected.
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Old January 14, 2013, 02:26 PM   #58
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Texas too.
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Old January 14, 2013, 03:45 PM   #59
Frank Ettin
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Most state court judges are elected. Federal judges are not. It's a balancing act either way and a matter of tradeoffs.

Quote:
Originally Posted by mrbatchelor
Well, I'm certainly no lawyer, so I'm not taking on Frank.

I would ask his opinion on this analysis from the Cato institute regarding a state's capacity to resist federal intervention...
Only had a chance to glance at it so far. I'll read it when I get some time and post my thoughts.
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Old January 14, 2013, 04:48 PM   #60
zukiphile
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Quote:
Originally Posted by mrbatchelor
Note that this link has a further link to a PDF at the bottom of the page for the whole article.

http://www.cato.org/publications/pol...eid=b8816b9b58


While the original premiss is about Marijuana the author makes reference to the fact that this line of reasoning may hold for other areas as well. This was written well before the current national non-discussion on gun control started.
I would take very little comfort from that article. Cato is generally an excellent source and I do not personally agree with the majority in Gonzales v. Raich.

The author's thesis is largely uncontroversial; the scope of marijuana use means that federal resources for enforcement against users can not result in a meaningful ban of marijuana use. Further, Congress does not have the authority to treat a state as a mere administrative unit and compel state resources to enforce the federal marijuana ban.

So what? Neither of these observations would serve as a defense against federal prosecution. By analogy, you would not stand under a tree during a lightning storm just because the risk was slim though appreciable.

Others may take another meaning from this article, but because I see not even an argument that there is protection from federal prosecution in permissive state law, I would draw no sense of security from such law.
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Old January 14, 2013, 06:07 PM   #61
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Quote:
Most state court judges are elected.
Just under half. 23 States.
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Old January 14, 2013, 07:01 PM   #62
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So the people can't be trusted to elect federal judges, but they can elect the people who appoint the judges? I still don't see the logic. What is the purpose?
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Old January 14, 2013, 07:28 PM   #63
zukiphile
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The purpose is the isolation of the judiciary from popular whim. Courts are ideally correct, not popular.

In practice, all judges are elected, with some elected by fewer people than others.
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Old January 14, 2013, 07:30 PM   #64
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"We don't want to be stuck with that sort of time scale with the 2nd Amendment."

The most probable way we will have the Second Amendment eroded is when the SCOTUS Justices distinguish the "new" case from the old case. So they will not have to overturn "precedent" or "super-precedent", they merely have to find a fact or two or so and "distinguish" the new case from Heller and McDonald and so it will go.
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Old January 14, 2013, 10:28 PM   #65
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Popular whim? Is that what they call we the people these days? Isolating them from our whims seems to have also isolated them from logically interpreting the constitution.
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Old January 14, 2013, 10:41 PM   #66
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Quote:
The most famous reversal would be Brown v. Board of Education,
OK, so I'm right, then.
Got Dredd Scott mixed up, that's why I added the caveat.
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Old January 14, 2013, 10:45 PM   #67
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Klyph, if you take offense at that, I wonder how you would view what the Founders called it?

Our system of federal government was originally set up to protect both the interests of the whimsical populace, but also the interests of the States themselves.

Sadly, the people were conned into giving up any State representation with the passage of the 17th amendment which gave us Senators, elected by the whimsy of the rabble.
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Old January 14, 2013, 11:31 PM   #68
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I'm no political scholar, and perhaps my anger is misdirected, it just seems that power has been centralizing since the republic was founded and there's no end in sight. Corporate personhood really drove a nail in the coffin.
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Old January 14, 2013, 11:36 PM   #69
Frank Ettin
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Quote:
Originally Posted by klyph3
...Isolating them from our whims seems to have also isolated them from logically interpreting the constitution.
Yes indeed.

Of course, whenever a court makes a major decision that one disagrees with, the judicial system is broken and the judges corrupt. Whenever a court makes a major decision that one agrees with, the judges are great scholars (except any dissenters, who are corrupt), and our courts are the last bulwark against the machination of the political toadies bought and paid for by special interests.

There has been, and probably always will be, a huge negative reaction by a large number of people to every important to the pubic Supreme Court decision. There are plenty of folks who loved Roe v. Wade and hated Heller, and perhaps as many who hated Roe v. Wade and loved Heller.
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Old January 15, 2013, 12:09 AM   #70
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Ideally you want judges to decde cases based upon the law. Since judges are people that doesn't happen in practice.
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Old January 15, 2013, 02:57 AM   #71
pnac
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Here's what T. Jefferson had to say about Supreme Court justices. Seems to be the situation we're in today.


Quote:
You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.
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Old January 15, 2013, 08:25 AM   #72
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Quote:
Originally Posted by klyph3
Popular whim? Is that what they call we the people these days? Isolating them from our whims seems to have also isolated them from logically interpreting the constitution.
As others have suggested above, whether isolation from popular whim is a good idea depends largely on whether one's own positions coincide with that whim. For instance, we only need to rearrange a few recent dates to imagine a popularly driven catastrophe.

If the question in Heller had been presented to a court popularly elected within the weeks following Sandy Hook, do you think the case might have been decided differently?

You made reference to the Supreme Court decision in Citizens United. You frame the current political issue, as many others do, in terms of corporate personhood. Yet, that is not the basis of the decision. The First Amendment notes that "Congress shall make no law" abridging the freedom of speech. The identity of the speaker is not a component of competent First Amendment analysis. However, in Citizens United Congress made a law abridging the freedom of speech.

If the worst I could tell you about the history of Supreme Court decisions was that they correctly apply precedent and the language of the Constitution without regard to popular will, I would be far more sanguine about the state of the court.
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Old January 15, 2013, 08:30 AM   #73
zukiphile
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Quote:
Originally Posted by Jefferson
The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.
Quote:
Originally Posted by Art III, section 1
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
Judicial power is the power to decide cases and controversies.
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Old January 15, 2013, 11:06 AM   #74
Frank Ettin
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Some posts have disappeared. Let's stay on topic or this thread will be closed.
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Old January 15, 2013, 02:30 PM   #75
klyph3
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"Shall hold their offices during good behavior"
Who decides when they've crossed the threshold into "bad behavior"? Would a judgment clearly violating the constitution be considered bad behavior?
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