October 04, 2005

• I was trying to research some of the same info to add to the previous Miers thread, without much luck. Here's something on her attempt to get the ABA to take a poll on abortion rights. Of course, that was more than ten years ago, but it struck me as strange that she tried to turn it into a popularity contest instead of addressing it on constiutional grounds. I didn't find anything else that gave me much of a clue on what her stance is.
• (I rushed that comment because my wireless connection keeps seems to keep trying to connect to my neighbor's wireless connection, even though I've already connected to mine. I can be surfing quite happily, then get a message that the wireless network is connected, after which get time-outs or "that site doesn't exist" messages. What's really strange is that my daughter's computer is on the same network and doesn't have the same problem. If anyone has a solution, apart from ripping my neighbor's Linksis equipment out, you could email me at the addy in my profile. Thanks)
• The use of the word USAian just has to be one of the reasons the liberals are doing so poorly these days.
• I wonder if we can retire the unpronounceable "USAians" in favor of something people can actually say, like maybe "USicans". Or maybe we can go back to "Americans" and never mind that the rest of the hemisphere might feel slighted. This doesn't have anything to do with liberals, btw.
• I use USian ("you-ess-ee-enn").
• Rest assured that nobody in Canada, Mexico, Central America, South America, or the Caribbean Islands will feel slighted if you use the word 'American'. And even if a few pedantic whiners do feel slighted, you can safely ignore them.
• When I see USAians, my mind processes it as US Asians.
• I agree, USAian has got to be one of the most irritating things that I run across.
• I call 'em Unistaters.
• It seems to me the USawyers are dodging the issue.
• Rest assured that nobody in Canada, Mexico, Central America, South America, or the Caribbean Islands will feel slighted if you use the word 'American'. *whines pedantically* If only the silly buggers would choose a name for their dang country!
• The infuriating ability of the neocons to make their tactics stick in public discourse (e.g. "you're either with us or you are with the terrorists") is a process called framing. An analysis of what has gone so wrong with this discourse is available at http://www.commondreams.org/views05/0208-21.htm . The parent taxes the left opposition with exactly what the neocons are doing; the only differenct IMO is the subtlety with which the right's doing it. The whole tendency to dishonest discourse of this kind is disgusting because if you analyze the premises carefully they all reduce to "when did you stop beating your wife?" but voters don't necessarily analyze what they hear. The fact that the right is getting away with this should have been exposed long ago by a competent press. The tenor of public debate now is indistinguishable from advertising.
• mm, thanks jet for even vaguely touching on the topic at hand. next time i promise to say 'Murrikan, ok?
• > I use USian ("you-ess-ee-enn"). me too.
• *shrug* and so what? A lawyer whose principle claim to the job is that she has a law degree and is a friend of the shrub gets offered a job for life on the most important court in the US? A little curiosity about what else she has had a hand in might be worthwhile, don't you think? Say, her involvement in the run up to a certain historical event.
• Thanks, poly.
• How about "Unitard"?
• Has anyone else noticed that conservatives are very angry at Bush over Meiers' nomination, and that she has made several donations to democrat's campaigns, including Gore? Not that I'm saying that makes her a great judge, but just thought maybe it deserved to be dropped into the old echo chamber. Oh and: name of country = United States of America American = common sense abbreviation for citizens of above country
• name of continent = America American = common sense abbreviation for citizens of above continent (I don't really care, I'm just nitpicking.)
• (I can pick nits better 'n you. It's one of my only skills.) Names of 2 continents = North America and South America. American = common sense abbreviation for the citizens of pretty much all of the Western Hemisphere.
• Damn. That's why we're monkeys.
• In most ways, my self image is more tied to the city and state that I live in and less as an American, USAian or whatever. I feel far more emotion and attachment to being an Angeleno and a Californian than being an American. Especially since the last two elections.
• Ok, I know I followed the crowd by reacting to Bruise's derail, but I really am interested in the issues that I can only assume es el Queso meant to address - though his link led to an opinion survey rather than a diatribe. So, Bush has said he wants strict constructionists on the Supreme Court. He mentioned that those strict constructionists (which term was coined in the Nixon Administration) would have been for the plaintiff in the Dred Scott decision, but these folks disagree. Nothing I read in a Google search gave me a good grasp on the term, so maybe it just means what the speaker intends it to mean. So vague that it may be hard to determine whether either of Bush's nominees meet his expectations. Or, maybe vague enough that the liberals might hold out hope that they could veer away.
• Dred Scott is apparently code for anti-abortion.
• path, re wireless problems, most wireless cards will switch to the *fastest* available signal rather than the strongest. So let's say you have an 11mb/s access point (802.11b) and your neighbor's is 54mb/s (802.11g) but with a signal that is only occasionally strong enough to pick up. When it comes in, your computer says "ooh, a fast signal! I must switch to this superior wireless experience immediately!" So, you can do one of two things. 1) restrict your wireless card to 11mb/s. This will keep it from hunting for faster connections. Or, 2) give your access point a name (hint - something other than Linksys, and tell your card to connect only to that name. --Pat
• *pats* 3) If it's faster, steal it! (Kidding.)
• When did you stop beating your wife? That's a fallacious question, if I've ever heard one! The fact is, I've never stopped beating my wife! so sorry
• Can we retitle this "The Incredible Derail Thread?"
• Statesiders? I really think unitard has far broader application than merely limiting it to Americans. At least it does when I use it. But then, I incline to the Humpty Dumpty approach** to words. **For Benefit of Book-Challenged Monkeys (and I deem them to be very few): 'When I use a word,' Humpty Dumpty said in a rather sorrowful tone, 'it means just what I choose it to mean -- neither more nor less.' -- Lewis Carroll, Through the Looking-Glass
• Hi, I'm a newbie. *does the newbie dance* O, I don't think I'll talk about Chimpy's new SCOTUS tool. That's not why I'm here. Cause look: PUPPIES! *discusses minutiae of "USian" for, like, 5 more hours* I come in peace.
• Maybe it's time we had another of those threads where newbies introduce themselves?
• Didja ever get that booger that was stuck to a nose hair, and it was like really painful to pull out? Cause I got one of those and I wonder if there's a better way. Y'know short of hijacking my neighbor's superiour internets services! Theif! Liar! Crusher of disease-carrying insects! Helen Thomas! sorry . . *pant* *pant* . . had some antihistimiines and caffiene . . *pant*
• I have mixed feelings about Miers' nomination. Yes, she is Bush's puppy dog right now, but when he's gone she'll have no particular allegiance to any interest group. She could be a stealth judge, actually ruling on the merits of the cases before her. I work for a judge, and he once told me you can take any lawyer, slap a robe on her, and put her on the bench. Anyone, he said, can learn and apply the law. But it's the judicial demeanor and the ability to consider all the arguments with informed deliberation, and then issue a clearly articulated ruling that makes a judge. Cronyism aside, I like the fact so many people are pissed about her nomination, and that she has no discernable "track record." I think that's a good thing. Maybe we'll just have to wait and see. It will be fun to see extremists on both sides contorting themselves trying to discredit her. The funniest thing I've heard so far was a local talk show host insist that no withered old spinster should be on the high court, because she has no "perspective." Hah.
• path: Strict constructionism is a breed of legal positivism (distinct from logical positivism, another philosophical position, except this one crashed and burned, while legal positivism is a viable position today). Legal positivism is the thesis that law and morality are separate entities. Judges, in this view, should never decide cases on the basis of their moral opinions, and, more to the point, positivism holds that moral opinions have no place in the courts. H.L.A. Hart was the most important advocate of this view, and he is most certainly one of the two most important legal theorists of the last century. Anyway, strict constructionists are positivists, but not only that, they are literalists as well. Smith v. United States is a good example of a decision made on the basis of strict constructionism. The case was about whether or not using a gun as currency in a drug transaction was the same as using it to shoot or threaten people in that transaction. The law itself only prohibited "use" of a firearm in drug trafficking. The majority opinion decided "the exchange of a gun for narcotics constitutes 'use' of a firearm 'during and in relation to... [a] drug tracfficking crime.' So what does this mean? Well, in terms of civil rights cases, it means strict constructionists will interpret the constitution... well, strictly. That is, the constitution never mentions wiretapping, does it? Of course not, because wiretapping wasn't around when it was written. The strict constructionist, then, would likely allow the government to do it without a warrant. This is the root of the "right to privacy" stuff. Strict constructionists do not believe that the 4th Ammendment implies a right to privacy, while others, who do not share such literalist views, do. This is the theory, at least. In practice, I would argue that strict constructionists are deeply inconsistent in their application of their principles and that for this reason their decisions tend to line up with their ideology more than their philosophy. It is worth noting that not every conservative is a strict constructionist (although just about all of them, I would argue, are positivists). Scalia is not a strict constructionist; his judicial philosophy is usually called originalism. Very roughly, this means that the job of the courts is to interpret the original intent of the legislature that made the law. In Smith, Scalia argued that the strict constructionist interpretation was silly. On civil rights, he tends to take a more libertarian view than the strict constructionists for the same reasons. The more liberal judicial philosophies tend to derive not from positivism (although some do -- Hart was a liberal), but from the view Ronald Dworkin calls "law as integrity." This is a complex idea, but very roughly, it denies the positivist claim that law and morality are separate entities, claiming that as a matter of fact, they are tightly wrapped up into each other. Dworkin argues that judicial decisions are necessarily interpretive -- that law is not only about the application of rules, absent any morality. As such, law should be (and actually is) interpreted in accordace with two conditions: first, that decisions must conform with precendents and the law itself; and second, that the correct interpretation is the most morally preferable one that satisfies the first condition. This gets us to the "evolving standards" stuff. The theories are more complex than that, and people who are into this stuff will complain about the way I simplified them, but those are the basics, I think.
• Very roughly, this means that the job of the courts is to interpret the original intent of the legislature that made the law. I probably shouldn't have said it like that. This is one version of originalism, but Scalia's is a bit different. He is a textualist. But that's a long-ish distinction to make.
• is "textualist" the same as "complete bastard"? What? I wasn't finished at the buffet! Awww c'maaan! He! He started it! lousy stupid duck hunting quasi zealot bush rigging . . .
• Well, I would argue that Scalia's textualism is bogged down by some fairly deep-level philosophical inconsistencies. But, as a liberal, I'm not sure a Scalia is worse in practice than a Rhenquist. I'd probably prefer the former. At least with Scalia you get civil rights. For example, some strict constructionists will tell you that written speech isn't protected by the 1st Ammendment because, well, it's written.
• Smo, thank you! I feel so much smarter now that I'll slog off into the swamps of "a little bit of knowledge..." So, if Miers is a strict constructionist, she's probably a positivist and her religious views shouldn't influence her opinion on cases brought before the court? On the other hand, as a literalist, she could rely on one word to decide a case? In the latter event, I have to believe that it would be tough not to define that one word according to one's moral views - the "use" of a gun citation, for example, is a little chilling since it was used as currency and not in the normal terms of gun use. It kinda, sorta appears that it was used a a way to over-enforce a moral code. (On the other hand, I haven't read the full decision.) Of course, as a liberal, I'm not fond of the idea of assuming that the framers of the constitution could foresee modern developments, so something not mentioned there is voided from consideration. And, the distinction between written and oral seems a real reach to support a predisposition. What a morass!
• So, if Miers is a strict constructionist, she's probably a positivist and her religious views shouldn't influence her opinion on cases brought before the court? In theory, yes. In practice they will because, well, that's the way lawyers and judges think. Positivists might deny this, but they're wrong (in my opinion). I don't think strict constructionists are actually positivists, not in practice, but that's because I'm not convinced positivism is an accurate theory of law. Which isn't to say that I'm right. I don't know. Hart faced Dworkin's objections and he remained a positivist, and Hart was a brilliant philosopher and writer. And I haven't read near enough of his work to have a totally-confident opinion on it. But Dworkin, too, is brilliant and enormously influential. His arguments are very strong. Anyway, these aren't easy questions. I have to believe that it would be tough not to define that one word according to one's moral views Yes, although positivists are going to say that while it might be tough, it isn't impossible, and that this is a judge's job. And here's where you get a split in conservative circles over how you interpret it: the split between literalism, original intent, and original meaning. All of these tend to end up on the conservative side, but the differences help to explain the cases in which conservatives are split among themselves (like with Smith and many other cases). Hope this isn't too confusing.
• It kinda, sorta appears that it was used a a way to over-enforce a moral code. Yeah, I want to agree with you, but this isn't enough to indict (heh) positivism because it could be the case that the justices were simply following their principles for interpretation, come what may (but the important point for positivism is: they're interpreting and applying rules -- and this is what Dworkin would argue with). It isn't their place to worry about the consequences, they'd probably argue; that's up to the legislature. Trouble is, the strict constructionists in particular aren't always consistent in the application of their principles, so this isn't all that convincing. Not to mention, the consequences can get silly. Still, it's a case you could make, and it's one conservatives will make.
• Ah, Smo, no, it's lovely. But, let me take one more step into the bog. So, a strict constuctionist might not support Bush's agenda, but there's no way we can predict that since other factors indicate that he or she might? (And, just maybe, "strict constuctionist" means that we liberals can't hope for the best?) I keep harping on this because I sort of thought that Roberts might be independent enough to mirror earlier conservatives who surprised us with support of decisions we wouldn't have predicted when they were nominated. (I'm thinking of Earl Warren, for example.)
• Well, part of the problem with Miers is that we don't know the answers to any of these questions because she has rarely written about her legal views. Bush, on the other hand, knows her views well. I don't know what her philosophy is, although if I had to bet on one thing, I would guess that she will uphold Bush's War on Terror policies. I think Roberts will as well. I think that this was the key to both nominations. That means, roughly, that they will give the executive wide discretionary powers on how to treat prisoners, the prisoners' right to trial, etc. The kind of philosophy that swings this way tends to be strict constructionist, or at least it has in the past. This is why evangelical groups aren't going batshit crazy over Miers, I think. (And this is why I think the distinction between Scalia and the others is important; he is arguably the most liberal justice in these cases because he cares deeply about the original meaning of the constitution and especially the personal rights guarenteed therein. By contrast, constructionists tend not to focus so heavily on the principle of rights because they don't care about principles in this way -- they care about what the law says.) But let's say Bush selected both for their support of War on Terror policies. I'm not sure that says much about their other views. In the past, it has. It has tended to mean strict constructionist, which has tended to mean quite conservative. But that mght not be the case with these justices. Roberts, I think, will be more liberal than Rhenquist, but probably still one of the more conservative members of the court. But I have no idea about Miers. Bush will tell his base that she's a strict constructionist, but I have no idea whether that's true or not. Hardly anyone but Bush does, probably. So the confirmation hearings will be interesting.
• I know that conservatives worry that she doesn't have a coherent philosophy because she hasn't thought about these issues all that much; as a result she might float to the left once she gets onto the bench. I have no idea whether that's true either.
• "I was struck by the tremendous impact you have on the children whose lives you touch." bleah.