Sunday, February 10, 2008

Note to John McCain: Read the Constitution

Article II, Section 1, of the United States Constitution prescribes the following oath or affirmation, required to be uttered by each and every president upon taking office:

I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.
So wouldn't it be a good idea for a presidential candidate to actually know what's in it?

I'm pretty sure that the Dems know, but at the Conservative Political Action Conference conference last week, frontrunner Grampa McCain made some lame attempts to try to shore up his support among the wingnut base of the party. Hidden among many other gems in his speech was this shiny one:
I intend to nominate judges who have proven themselves worthy of our trust that they take as their sole responsibility the enforcement of laws made by the people's elected representatives. Judges -- judges of the character and quality of Justices Roberts and Alito, justices who can be relied upon to respect the values of the people whose rights, laws and property they are sworn to defend.
Jeez, there is just so much wrong with that statement, but I'll just latch onto the inconvenient fact that the Judicial Branch does not have the duty or responsbility to enforce laws. That's the job of the Department of Justice, which is part of the Executive Branch.

No, the job of the Judicial Branch is to interpret the laws. Not enforce them. Interpret them.

Ever since the Marshall Court's famous Marbury v. Madison ruling, the Supreme Court has been the final arbiter on all constitutional issues. They interpret the laws that are passed by those "people's elected representatives" and decide whether or not they pass constitutional muster.

They are not, nor should they ever be, the kind of rubber-stamp body that McCain seems to envision.

John, I know you weren't the best student in school, but jesus, dude, this is basic Civics 101 crap here.

Oh, and as a footnote, the more observant readers will notice that the officially prescribed oath of office does not contain at the end of it the phrase "so help me god", even though I guess it's become customary over the years to just kind of tag it on. But it is not required.

27 Comments:

pepsiholic said...

Jeez Farns... I really hate to do this to you
but
:

An older, experienced judge was once talking with a younger judge who had just been sworn in for the first time. And the older judge asked the younger judge if he knew what his job was in making decisions; and the younger judge said, “Yes, I should make decisions which are just and fair.” And the older judge said, “No, you should make decisions which enforce the law.”

That distinction is important, because people may disagree about what is just and fair. We Americans decided long ago to be a nation of laws and not men. That is why I take my oath to enforce the law very seriously. That is why I try to enforce all the laws, even the ones I dislike, even the ones I disagree with.

Farns, you talk about how us rethugs wouldn't understand a day in the life of Joe Republican. Well guess what... I (and other rethugs)understood what McCain was saying even if you didn't.

pepsiholic said...

Farns, here's even a real world example:

McCain stated: I intend to nominate judges who have proven themselves worthy of our trust that they take as their sole responsibility the enforcement of laws made by the people's elected representatives.

Now, from a Colorado newspaper

Lafayette judge steps down: Frieling won't enforce new marijuana law

This is EXACTLY McCain's point. Liberal judges who refuse to follow laws made by the people's elected representatives.

Farnsworth68 said...

So what does that prove? A municipal judge uses a phrase incorrectly and suddenly that's all over the news?
And he stepped down!
Besides, we both know that it's not municipal judges that we have to worry about. McCain was talking about Supreme Court Justices.
There's a famous quote from President Andrew Jackson about the Supreme Court decision Worster v. Georgia (concerning Indian removal), "John Marshall has made his decision, now let him enforce it!"
In the end, of course, Marshall could not enforce it and the Cherokees (one of whom was my distant ancestor) were sent west on the Trail of Tears.
So much for judges enforcing the law.

Farnsworth68 said...

Note to PH: Maybe YOU should read the constitution as well. No where in Article 3 does it state -- or even hint -- that the Judicial branch enforces the law.
No, for that you have to go to Article 2, The Executive Branch, where you'll find this little phrase: "he [the president] shall take Care that the Laws be faithfully executed".
That, old buddy, is enforcement. Like I say, this is your basic Civics 101, and you wingnuts can argue these fine points all you want, but at the end of the day you'll still be wrong.

pepsiholic said...

Oh, one other thing Farns... What us rethugs hate is the liberal judges performing judicial activism. "the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent.

The 9th Circuit Court (from your neck of the woods) is a perfect example

The 9th Circuit also has a long-running streak as the most overturned, which went unbroken this year. The Supreme Court reviewed 22 cases from the 9th Circuit last term, and it reversed or vacated 19 times...

Of the 19 9th Circuit cases reversed by the Supreme Court last term, eight of them were unanimous — that is, the 9th Circuit's view in these cases did not win the support of a single justice, from the liberal John Paul Stevens to the conservative Clarence Thomas. All the other 12 circuit courts combined were unanimously reversed only nine times.

In other words, it is no coincidence that, when you hear about a bizarre ruling issued by a federal court of appeals, it very likely came from the 9th Circuit. That court was, after all, the one that held a few years ago that it was unconstitutional to voluntarily recite the Pledge of Allegiance in a public school. It also has ruled that tenants in public housing could not be evicted even though their apartments were being used as drug dens. Both of these decisions were, not surprisingly, unanimously reversed by the Supreme Court.

This is what McCain was talking about...

pepsiholic said...

Farns your flailing again. Click on the link on my first post. It takes you to the Amaerican Bar association. It is there where they talk about judges enforcing the law.

pepsiholic said...

Another major issue in the U.S. today is illegal immigration. Many illegals are picked up by law enforcement each day and processed through the legal system. However, due to several factors, many of these illegal immigrants are released back into the community, without any sort of deportation hearing. Many factors contribute to this lack of actually enforcing the law. Money is the primary one; there simply isn't enough money allocated to deport every illegal immigrant for every petty crime upon every offense. This is understandable, and we should prioritize by first dealing with repeat and violent offenders.

Another issue in the system is the fact that many judges disagree with the law, and decide that they are not going to enforce it. This is wholly unacceptable; if a judge feels a law is unconstitutional, that is one thing, but that is not the case here. Judges simply feel bad for the illegals, thinking that they harm no one by working menial labor jobs. This cannot be allowed to happen; judges are not in the position to say which laws they want to enforce.
http://media.www.dailycampus.com/media/storage/paper340/news/2007/04/16/Commentary/U.s-Must.Enforce.The.Laws.It.Makes-2843660-page2.shtml

Farnsworth68 said...

And that's why your Colorado judge stepped down.
We seem to be haggling over definitions here. The ABA can post whatever they want (from another municipal court judge, BTW), but the constitution is the constitution, and there are three separate but equal branches of government: Legislative (which passes laws), Executive (which enforces them) and Judicial (which interprets them).
I just kills me how you righties can piss and moan about "liberal" judges not "enforcing" the will of the people, but totally ignore your own judges from the right, who are also failing to "enforce the will of the people". Look at McCain-Feingold, to take just one example, where campaign spending limits were unquestionably "the will of the people" (having been passed by both houses of congress and signed by the president).
And yet those goddam activist judges on the Supreme Court declared parts of it unconstitutional.
Those bastards!

pepsiholic said...

"We seem to be haggling over definitions here."

Of course we are. You knew exactly what McCain meant when he said that the judges need to enforce the laws. You were the one who made a federal case about it.

But, don't you agree that if a judges has a case in front of him and he decides he doesn't like it (not because it's unconstitutional) and he refuses to follow the law, wouldn't you say he isn't enforcing the law?

Farnsworth68 said...

Yes, and by "haggling over definitions" I meant that I am right and you are wrong and McCain is wrong.
So just where is this mythical judge who refuses to "enforce" the law? Your guy in Colorado? Maybe so, but he resigned because of it.
Besides, we're not talking about municipal court judges. The president has no control over them. Only Federal-level judges are actually appointed by the president. So show me a federal judge who has decided not to "enforce" a law.
You seem to want a Supreme Court that is nothing more than a lapdog in service to a Republican administration. Why even have a Supreme Court, if you're going to hamstring them by requiring that they simply rubberstamp their approval on any law that comes before them?
That's really what you seem to be saying. Tell me if I'm wrong.

pepsiholic said...

What's the matter Farns, reached your quota of "owning up when you're wrong" for the year?

I already provided an example. The 9th Circuit court who's desisions are so bad, eight of the reversals by the supreme court were unanimous.

pepsiholic said...

(from another municipal court judge, BTW)

I love how liberals when they are losing an intellectual argument they will start attacking the messenger... well, he was just a municipal judge. It's not like he was a real judge or anything. Just ignore what he said.

Farnsworth68 said...

There you go again.
From the very article you link to:
"...it can be shown mathematically that, as a court grows larger, it is increasingly likely to issue extreme decisions. We know that all judges are not created equal. Some are more ideologically extreme, more willing to push the law in a liberal or conservative [emphasis added] direction, to find ways around precedents they do not like. Such extreme jurists are a minority on any federal court of appeals, but these courts don't typically decide cases by a majority vote of their entire memberships. Rather, cases are heard by panels of three judges selected at random. So, despite their small overall numbers, extreme judges will occasionally make up a 2-1 majority."
And occasionally (those cases that were overturned were a very small percentage of the total number heard by the 9th) judges will overreach and issue a decision which will be overturned by the Supreme Court.
But that's why we have a Supreme Court, and that's really what we are talking about here. McCain was talking to the CPAC, and all they care about in the Judicial branch is the Supreme Court. They really couldn't give a shit about anything except getting a ban on abortion, keeping the free flow and abundance of cheap firearms, and stopping the horrors of gay marriage, you knnow, the red meat issues of the Moron-American voting bloc.
And the Supreme Court, let me say it again, interprets the laws to see if they pass constitutional muster.
Oh, and let me also say again, that it's only the so-called "liberal" Supreme Court decisions that you people are against. When the conservative majority issues a decision overturning "the will of the people", then you don't have a problem with it. You said it yourself: "What us rethugs hate is the liberal judges performing judicial activism."
As I say, you don't have a problem with judicial activism if the judge isn't a "liberal".

Farnsworth68 said...

PH--Another interesting quote from the Wikipedia article you linked to on Judicial Activism, this one from Ronnie Raygun: "I intend to go right on appointing highly qualified individuals of the highest personal integrity to the bench, individuals who understand the danger of short-circuiting the electoral process and disenfranchising the people through judicial activism."
So presumably Saint Ronald would also have decried the biggest and most egregious example of judicial activism in the modern world, the usurpation of the 2000 Florida vote count by the activist Republican-appointed members of the Supreme Court who appointed Baby Doc Bush to the presidency, clearly "disenfranchisng the people through judicial activism".

pepsiholic said...

The 2000 election??? What, you wanted the liberal Florida supreme court to decide who are president was by allowing Gore to vote shop and just recount the precincts that he wanted to? The US Supreme court voted 7-2 that what Florida was doing was unconstitutional. Are you saying that there was only 2 liberals on the Supreme court? Last I knew, there was 4.

In the aftermath of the election, independent recounts were conducted by The Miami Herald and USA Today, concluding that Bush would have won in all legally requested recount scenarios, but that a statewide recount under the most generous standards would have given Gore a narrow victory.

pepsiholic said...

Farns, I guess you missed this part of the article.

Of course, mathematics cannot prove that one of the reasons the 9th Circuit is so frequently reversed by the Supreme Court is because it renders more extreme decisions.

Farns, I don't mind judges interpeting the law... If the law states that with all two wheel motorized vehicles (written with motorcycles in mind), the driver must wear a helmet. If a guy is arrested riding a scooter and is given a ticket, yes, let the judge "interpet" the law and decide the case.

Enforcing the law means just that. Activist judges, especially unelected judges have no right to tell us that we can't own guns. The constitution gives us the right to bear arms. If WE THE PEOPLE decide we no longer need to have guns in our homes, it's up to us to ammend the constitution. It's not up the liberal judges.

pepsiholic said...

Unelected judges MUST follow the law, not establish it. Here's a good explanation:

Reinhardt's conservative Ninth Circuit colleague, Judge Diarmuid O'Scannlain, holds a more literal view of the nation's premier legal document.

"If the text of the Constitution does not preclude the government's action, the judge must uphold it," O'Scannlain wrote in an essay about government property seizures, published on the website open-spaces.com. "He must do so even if the government's action is patently unfair or plainly inappropriate, for determining that something is 'unfair' or 'inappropriate' without an independent standard for fairness or appropriateness requires an exercise of sheer will. And the power to direct government action pursuant to one's own will is the power that a judge lacks."

http://www.cnsnews.com/ViewSpecialReports.asp?Page=%5CSpecialReports%5Carchive%5C200511%5CSPE20051117a.html

Farnsworth68 said...

The 2000 election? Wow, PH, you never cease to amaze me.
If you'll actually take the time to go back and look at Bush v. Gore, you'll see that the 7-2 decision was only on the constitutionality of the way Florida was counting the votes. If they had stopped there, all other things being equal, the statewide recount would have taken place and Gore would have won.
But I suspect the rightwingers on the court knew that, and that's why they had already, three days earlier, by a 5-4 vote, stopped all recounts. That second part of the decision, which was also (surprise!) 5-4, was the one that actually crowned Baby Doc the Chimperor.
If it hadn't turned to be so tragic for the nation, I'd have to laugh at the court's reasoning. First they stop the count, and then, when they are certain that enough time has elapsed, rule that there isn't enough time to complete it.
That's a lot like the guy who murdered both of his parents and then pleaded for leniency because he was an orphan.
Oh, and where's your proof (other than this case, of course...) that the Florida supreme court was "liberal"? Saying it's so doesn't make it so, you know.
However, I do thank you for admitting that Gore would have actually won a total recount of all of Florida's votes (and BTW I do blame Al Gore for HIS attempt to "vote-shop", instead of demanding right off a total statewide recount). So many on the right are in total denial, even today, about that inconvenient truth.

pepsiholic said...

Not so fast... Gore won using the most "generous standards"... standards that weren't in place at the time.There were already standards for what counted as a vote. Liberals were trying to change that standard. Also, didn't Florida LAW require that the vote be certified after a certain time frame?: by noting that, under Florida law as interpreted by no less than the Florida Supreme Court, the overriding intention of the Florida legislature was to choose a slate of electors before the December 12, 2000, datehttp://www.reason.com/news/show/27956.html

pepsiholic said...

Prove that the Florida Supreme court was liberal... OK, they were all democrats and they "interpeted" the law in such a way that the Supreme Court shot them down. That's liberal to me...

Democratic governors had appointed all seven justices sitting on the Florida Supreme Court during the 2000 Florida election controversy. Democratic governor (and later U.S. Senator) Bob Graham appointed Justice Leander J. Shaw. Democratic governor Lawton Chiles appointed Justices R. Fred Lewis, Barbara Pariente, Harry Lee Anstead, Charles T. Wells, and Major B. Harding.[6] Governor Chiles and Governor-elect Jeb Bush, a Republican, jointly appointed Justice Peggy Quince.http://en.wikipedia.org/wiki/United_States_presidential_election%2C_2000_Florida_results

pepsiholic said...

Oh... one other thing. I'm not positive but when they talked about the recount with "generous standards" that gave Gore the "win" they didn't include the disputed military votes:

he main battlegound was Duval County, home to more military families than any other county in Florida. Duval had more absentee ballots from overseas than any other county - 618 of 3,500 cast statewide. Five Gore lawyers showed up at the elections office at 9 a.m. Friday to disqualify as many of those ballots as possible.

Tom Bishop, one of the Republican lawyers, was incensed as he watched the Democrats, armed with the smoking-gun memo, blatantly go about disqualify large numbers of military ballots.

"They had their little cheat sheet they were using, and they objected on every single possible ground they could, no matter how spurious," Bishop told Sammon. "It was so bad that there was rolling of the eyes by even some of the Democrats there who were watching their lawyers work." Before Nov. 17, the Duval supervisor of elections compared signatures on ballot envelopes against signature cards on file. He could find only two absentee ballots that could not be included because the signatures did not match.

"But now the Democrats insisted that they be allowed to compare all signatures, one by one. For seven tedious hours, they bitterly argued that signatures on more than 100 envelopes did not precisely match the signature cards - although some envelopes had been signed by sailors on rolling seas in hostile situations,” Sammon wrote.

"You could clearly tell it was the same person´s signature, but they would object because it didn´t have a certain curlicue or didn´t have a certain twist or it was smaller," Bishop told him.

The Democrat lawyers sought to disqualify military ballots that had no overseas postmark on the grounds that some voters might have marked their ballots a day or two after the election and then mailed them in.

"But the Gore lawyers took this argument to absurd lengths by actually disqualifying ballots received before Nov. 7. One belonged to a sailor named John Russell, whose vote was unceremoniously thrown out.”

"I don´t know how somebody in the Sea of Japan or the Indian Ocean could have miraculously gotten it here on the sixth of November if it was supposedly mailed after the election," Bishop told Sammon. "The whole idea behind the foreign postmark is to make sure it´s timely." The Gore lawyers also protested ballots on which the return address of the attesting witness was incomplete. They challenged ballots on which foreign postmarks were smudged or partially illegible.

"Our goal was to challenge every vote that didn´t appear legitimate," says Mike Langton, Gore campaign chairman for northeast Florida.

By 7 p.m., the Democrats protested against 147 absentee ballots. The canvassing board agreed to hear formal arguments from the Gore and Bush camps.

A full 19 hours after it began, the nightmarish battle over Duval´s military ballots came to an end. When the canvassing board announced that the ballots of 149 soldiers, sailors and airmen had been disqualified, a pair of jubilant Gore lawyers actually exchanged high-fives for their victory against America’s service personnel.

"A Republican, visibly shaken by this sight, demanded to know how they could celebrate the disenfranchisement of U.S. military personnel risking their lives around the world. One of the Gore lawyers glibly replied: ‘A win´s a win.’" Statewide, Gore’s henchmen had been able to disqualify 1,420 ballots statewide - or more than 40 percent of the 3,500 cast.

Farnsworth68 said...

Yeah, I think I already agreed that there was enough blame to go around on everyone, but the picture of the
rampaging Rethug operatives trying to stop the vote count is really the telling image of that time, the one that sort of sums it all up: Brooks Brothers rioters physically stopping the vote count in Miami. The Republicans will always go to any length to insure victory, no matter what the cost, because in their Rovian world view, up is down, black is white, left is right, and the end always justifies the means.
And BTW, the identities of the guys in that picture was pretty much suppressed by the American MSM/SCLM. I had to go to New Zealand to get it.
Anyway, it's really up to future historians to finally settle the dust on this particular controversy. And as Baby Doc so famously said, "History? Who gives a shit. We'll all be dead."
(Okay I may have paraphrased it slightly, but who knows, maybe he really did say it and Halberstam cleaned it up...)

pepsiholic said...

"but the picture of the
rampaging Rethug operatives trying to stop the vote count is really the telling image of that time"

Really? Can you please tell me more about this "riot" since the MSM didn't think it was that big of a deal and it didn't make any headlines(other than wacko news sites. How many people were taken to the hospital? How many were arrested? How much damage was done by things being destroyed?

Farnsworth68 said...

Over on the Wikipedia article on the Florida election, you'll find "The 'preppy riot': the manual recount in Miami-Dade County was shut down shortly after screaming protestors arrived at Miami's recount center. It turned out that these protesters were Republican Party members flown in from other states, some at Republican Party expense."
You seem to be implying that you never even heard of this riot.
And if that's the case, you're proving my point: It went largely unreported in the MSM/SCLM, except for some "if it bleeds it leads" television coverage. But it was up to others to actually identify the Rethug operatives in the photo and reveal the truth, that the Republican Party was trying to stop the vote recount by using bullying tactics. And it worked in Miami.
Oh, and if you drop by Dictionary.com and look up the word "riot", you get this as the very first two definitions:
"1. a noisy, violent public disorder caused by a group or crowd of persons, as by a crowd protesting against another group, a government policy, etc., in the streets.
"2. Law. a disturbance of the public peace by three or more persons acting together in a disrupting and tumultuous manner in carrying out their private purposes."
So no, a riot does not have to result in injury or damage to still be a riot.
Nice try, though.

Farnsworth68 said...

Robert Parry over at Consortium News has a lengthy analysis of the Florida riot that's also worth reading.

pepsiholic said...

So Farns, by your own definition, it sounds like all the anti-war protests that occur are nothing but riots.

But getting back to the preppy riot... What the rethugs were protesting was the democrats attempt to manufacture votes for Gore. Just as democrats were using every trick in the book to prevent oversea military people from having their votes counted, they were using every trick to manufacture votes... yes, there's a fingerprint near Gore's name so that vote should go to him.

Lets go back and look at the Miami recount timeline and you'll see that it wasn't the rethugs that were preventing Miami from recounting the ballots... It was the democrats themselves in Miami-Dade county.

TUESDAY, NOV. 14 11:30 a.m. Miami election officials decide to hand count a sample of precincts, later deciding against a full recount.

SUNDAY, NOV. 19 Before 10 a.m. A court ruling kicks off the week. Republicans wanted to halt Miami-Dade's recount. They argue that sorting by machine to find questionable ballots would damage them (presumably in Al Gore's favor). A judge disagrees. Sorting begins.

MONDAY, NOV. 20 8 a.m. Miami-Dade County begins its (short-lived) manual recount. Broward and Palm Beach counties continue theirs.

TUESDAY, NOV. 21 8 a.m. Another day of counting in Miami-Dade, Palm Beach, and Broward (where Circuit Court Judge Robert Rosenberg replaces Jane Carroll on the canvassing board).

WEDNESDAY, NOV. 22 9 a.m. Sunday counting deadline looms. Miami-Dade election officials vote to recount only 10,750 "undervotes"–ballots missing a presidential choice.

1 p.m. Gore loses a 157-vote gain when Miami-Dade opts to quit counting.

6 p.m. Florida State Appeals Court denies Dem bid to force Miami to start counting again.

THURSDAY, NOV. 23 10:15 a.m. "Voters had their votes inexplicably erased," say Gore lawyers, who file emergency petition with the Florida Supreme Court to reverse Miami-Dade's decision to halt the recount.

7:45 p.m. A setback for Gore. The seven judges on Florida's Supreme Court, scattered for the holiday, confer via fax and conference call and unanimously agree: Miami-Dade need not resume the recount.

MONDAY, NOV. 27 12:15 p.m. Like so much about the election, the week begins with the unprecedented: The Gore campaign files the first formal contest in the history of a presidential election, seeking to reverse the certified outcome of the Florida vote for George W. Bush. Gore attorneys challenge vote totals in three counties and ask a state judge in Tallahassee to order a hand count of some 13,000 ballots in Palm Beach and Miami-Dade counties that showed no votes for president during prior machine recounts. Simultaneously, the Gore legal team files an emergency motion to accelerate the contest proceedings.

WEDNESDAY, NOV. 29 4:45 p.m. Judge Sauls hinders Gore's quest for a new tally by December 12; Sauls rules all 1.1 million Miami-Dade and Palm Beach ballots must reach Tallahassee before Saturday, not just the 14,000 undervotes.

FRIDAY, DEC. 1 6 a.m. The ballot brigade resumes, with two rental vans containing 654,000 Miami-Dade punch card ballots setting off from Miami for a Tallahassee courthouse.

4:40 p.m. In another setback for Gore, the Florida Supreme Court dismisses a petition to immediately start recounting more than 12,000 undervotes from Miami-Dade and Palm Beach counties. Less than an hour later, Gore receives another hit when the state Supreme Court rules that Palm Beach County's "butterfly" ballot was legal.

MONDAY, DEC. 4 4:43 p.m. Gore suffers a double judicial whammy. Leon County Circuit Court Judge N. Sanders Sauls rejects all of Gore's arguments in contesting the election results and his request for a count of more than 12,000 ballots in Palm Beach and Miami-Dade counties that registered no vote for president in machine recounts. Sauls declares from the bench that there is "no credible statistical evidence and no other competent substantial evidence" to establish a reasonable probability that Gore might win if granted a hand recount of the undervotes.

FRIDAY, DEC. 8 4:01 p.m. The Florida Supreme Court stuns observers, reversing Judge Sauls in a 4-3 decision. The justices go well beyond ordering recounts of 12,300 undervotes in Miami-Dade and Palm Beach counties sought by Gore, directing instead that a manual recount of undervotes begin immediately in all counties where a hand count has not already occurred. The court also directs the lower court to add to Gore's tally 168 votes in Miami-Dade and 215 in Palm Beach from earlier hand counts excluded from the certified count. The added votes narrow Bush's statewide lead from 537 votes to just 154. Perhaps 45,000 undervotes statewide will have to be counted.


And yet Farns, you seem to think tha it was the "riots" that prevented Miami from doing the recounts and giving Gore the win.

Sorry, I just don't see it.

pepsiholic said...

Whoops, forgot to include the source of my info. http://www.usnews.com/usnews/news/election/magtimeline.htm