Thursday, February 02, 2006
What Does the Alito Battle Tell Us?
John McIntyre, one of the founders of the site "RealClearPolitics", has written a rather insightful article about what is wrong with the Democratic Party.
It's worth a read, in general.
It has, on the other hand, a prime example of the one of the things that just really make me mad about some of the political/governmental discussions in our country.
Close to the beginning of the article, McIntyre states (the bold portion is my addition):
I'm not saying Senate Democrats should have beaten Alito; they were always going to be a considerable underdog in the confirmation fight just based on the simple 55-45 math and the 200 year precedent that Presidents pick the nominee.
IT IS NOT A 200 YEAR PRECEDENT!
You have understand the nature of Federal Law.
There is a definite precedence on which laws have more power than others. It is:
1. The Constitution and it's Amendments
2. Normal legislation by Congress
3. Judicial Precedence
4. Regulation enacted by the Executive branch
I will attempt to explain each briefly.
The Constitution is the highest law of the land. It establishes our government and the basic rights that our Founders and subsequent governments have found essential. It can only be altered by Amendment. Amending the Constitution requires one of two specific procedures. The last time that an Amendment was ratified, or put into effect, was in 1992.
Normal legislation by Congress is the procedure related in the old School House Rock segment entitled "I'm Just a Bill". This legislation, the work of the House of Representatives and the Senate, cannot override the Constitution, and can only be rescinded (once voted for and signed into law by the President) by act of Congress or Judicial Review. Basically, Judicial Review means that a case comes before a Federal judge that questions whether a law violates the Constitution, and the judge finds that to be the case. Therefore, the judge has the power to strike down the law.
Judicial precedence is law that is made by judges interpreting the written law based on previous court actions in regards to the same law. It was through judicial review that the reading of the "Miranda" rights to a person being arrested became the law of the land. Miranda was the last name of the plaintiff in the case that created the "law".
Executive branch regulations are the procedural rules that a Federal government department creates to enforce or "execute" the laws enacted by Congress. For instance, Congress legislated the Interstate Highway system into existence. It is Executive Branch regulation that standardizes the signs (color, shape, height) on those roads.
At this point, it becomes handy to ask: how did our current government come into existence?
In 1776, after the Revolutionary War had already started, the Colonies came to the conclusion that they needed some kind of central government. They created a Congress under what was called "The Articles of Confederation". They never worked very well, and after the war, the Founding Fathers, basically, decided that they had to find a better way to govern this new country.
So, what did they do?
They got together and wrote the Constitution. The Constitution, without Amendments, basically, lays out the framework of our current government. With the original Constitution, the framers included the Bill of Rights, or the first 10 amendments to the Constitution, that lay out what the framers considered to be the most fundamental rights of our citizens and our individual states.
To make a long story short, too late, the question becomes: how did we get our first Supreme Court (and thereby, our current one)?
The second paragraph of Article 2(Article 2 lines out the duties of the President. Duties, not privileges or perogatives. It is the President's job description, if you will), Section 2 of the Constitution reads:
He (The President) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
President Bush, by appointing, not nominating, Justice Alito, and Chief Justice Roberts to the Supreme Court of the United States was not acting on some vague "precedence", as John McIntyre, would have you believe. President Bush didn't just do something because that is the way George Washington did it.
Sidenote: That is a valid reason to do things. No President before FDR served more than two terms. There was no law or Constitutional amendment or regulation, against it, until FDR. George Washington, the Father of our Country, only served two terms, and no President before FDR wanted to violate George Washington's precedent.
Appointing those judges to those positions are an explicit part of the what the Constitution specifically mandates that the President is supposed to do.
This is not something we do the way we do it just because that is the way it has always been done. It's not some mindless thing or force of habit.
The President was doing his job.
If there was any abuse in the confirmation of Justice Alito, it was on the part of the Senate. I have very strong doubts that the Framers of the Constitution envisioned Senator Ted Kennedy making Mrs. Alito cry because he was calling her husband a racist, or Senator Joe Biden going on for 25 minutes "questioning" Justice Alito without ever allowing him to answer, or even, really, asking a question.
It's worth a read, in general.
It has, on the other hand, a prime example of the one of the things that just really make me mad about some of the political/governmental discussions in our country.
Close to the beginning of the article, McIntyre states (the bold portion is my addition):
I'm not saying Senate Democrats should have beaten Alito; they were always going to be a considerable underdog in the confirmation fight just based on the simple 55-45 math and the 200 year precedent that Presidents pick the nominee.
IT IS NOT A 200 YEAR PRECEDENT!
You have understand the nature of Federal Law.
There is a definite precedence on which laws have more power than others. It is:
1. The Constitution and it's Amendments
2. Normal legislation by Congress
3. Judicial Precedence
4. Regulation enacted by the Executive branch
I will attempt to explain each briefly.
The Constitution is the highest law of the land. It establishes our government and the basic rights that our Founders and subsequent governments have found essential. It can only be altered by Amendment. Amending the Constitution requires one of two specific procedures. The last time that an Amendment was ratified, or put into effect, was in 1992.
Normal legislation by Congress is the procedure related in the old School House Rock segment entitled "I'm Just a Bill". This legislation, the work of the House of Representatives and the Senate, cannot override the Constitution, and can only be rescinded (once voted for and signed into law by the President) by act of Congress or Judicial Review. Basically, Judicial Review means that a case comes before a Federal judge that questions whether a law violates the Constitution, and the judge finds that to be the case. Therefore, the judge has the power to strike down the law.
Judicial precedence is law that is made by judges interpreting the written law based on previous court actions in regards to the same law. It was through judicial review that the reading of the "Miranda" rights to a person being arrested became the law of the land. Miranda was the last name of the plaintiff in the case that created the "law".
Executive branch regulations are the procedural rules that a Federal government department creates to enforce or "execute" the laws enacted by Congress. For instance, Congress legislated the Interstate Highway system into existence. It is Executive Branch regulation that standardizes the signs (color, shape, height) on those roads.
At this point, it becomes handy to ask: how did our current government come into existence?
In 1776, after the Revolutionary War had already started, the Colonies came to the conclusion that they needed some kind of central government. They created a Congress under what was called "The Articles of Confederation". They never worked very well, and after the war, the Founding Fathers, basically, decided that they had to find a better way to govern this new country.
So, what did they do?
They got together and wrote the Constitution. The Constitution, without Amendments, basically, lays out the framework of our current government. With the original Constitution, the framers included the Bill of Rights, or the first 10 amendments to the Constitution, that lay out what the framers considered to be the most fundamental rights of our citizens and our individual states.
To make a long story short, too late, the question becomes: how did we get our first Supreme Court (and thereby, our current one)?
The second paragraph of Article 2(Article 2 lines out the duties of the President. Duties, not privileges or perogatives. It is the President's job description, if you will), Section 2 of the Constitution reads:
He (The President) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
President Bush, by appointing, not nominating, Justice Alito, and Chief Justice Roberts to the Supreme Court of the United States was not acting on some vague "precedence", as John McIntyre, would have you believe. President Bush didn't just do something because that is the way George Washington did it.
Sidenote: That is a valid reason to do things. No President before FDR served more than two terms. There was no law or Constitutional amendment or regulation, against it, until FDR. George Washington, the Father of our Country, only served two terms, and no President before FDR wanted to violate George Washington's precedent.
Appointing those judges to those positions are an explicit part of the what the Constitution specifically mandates that the President is supposed to do.
This is not something we do the way we do it just because that is the way it has always been done. It's not some mindless thing or force of habit.
The President was doing his job.
If there was any abuse in the confirmation of Justice Alito, it was on the part of the Senate. I have very strong doubts that the Framers of the Constitution envisioned Senator Ted Kennedy making Mrs. Alito cry because he was calling her husband a racist, or Senator Joe Biden going on for 25 minutes "questioning" Justice Alito without ever allowing him to answer, or even, really, asking a question.
