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October 10, 2005


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Niels Jackson

Stevens and Souter are "moderate conservatives"? You've got to be kidding. The fact that they aren't quite as knee-jerk liberal on a few issues as Brennan and Marshall does not establish that they are moderate conservatives, any more than the fact that Northern Canada is warmer than the North Pole proves that Northern Canada is moderately tropical.

Souter may not have "moved" to the left, but that is only because he was already a liberal when appointed (thus making the Republicans who had vouched for him sorely mistaken, which is rather the point).

Shorter Niels Jackson

Souter is to the left of me, and that makes him a liberal!


I have been saying this for years, but you have marshalled solid evidence to support the argument. It has always seemed so self-evident to me that I cannot understand how the "myth" has gained such traction to be accepted as fact.

Jeremy Pierce

O'Connor's opposition to affirmative action is a lot weaker than you make it sound. She does think it's ok within certain limits, but those limits are very slight. Most conservatives on affirmative action think it's always wrong. More moderate conservatives think it was ok at first but is no longer necessary and is in fact harmful to the groups it's trying to help. What I consider the middle-of-the-road position is the one that we should start limiting affirmative action significantly in its extent but keep it intact as a general structure. O'Connor is to the left of that. She thinks it shouldn't be limited in extent. It should just be done in a different way, according to her. That's what the Michigan opinions amount to. I thus consider her a moderate liberal on the issue.

Also, just because Souter and Stevens aren't as liberal as Brennan, Marshall, and Blackmun on abortion doesn't mean their position isn't well to the left of mainstream. It certainly is. They support abortion on demand, in fact, which Blackmun in writing Roe v. Wade never thought the opinion would justify. Kennedy is a moderate on abortion. O'Connor, Souter, and Stevens seem to be right with Ginsburg and Breyer on that issue, which is far to the left of mainstream as judged by the views of most of my students in ethics classes in a very blue territory, which are generally to the right of the current majority of five for abortion on demand.

Daniel Chapman

"Judge Roberts is an exceptionally able lawyer--as good as they come--and it is quite possible that the Senate should confirm him."

I think it's a little late to be debating that, wouldn't you say?

Jeremy Pierce

Daniel, I think you must have missed this part:

"Last summer, when some of the same things were being said in connection with John Roberts’s nomination, I published an op-ed in the Chicago Tribune on this question. I thought it might be useful to reproduce it below:"

Daniel Chapman

I'm sorry. You're right... I missed that part.

Clayton E. Cramer

Nice job of cherry picking cases to prove your point--but Kennedy wrote and Souter signed Romer v. Evans (1996)--ditto for Lawrence v. Texas (2003). Say what you want in defense of either argument, but there's nothing even moderately conservative about:

1. Ruling that the people of Colorado can't amend their state constitution to prohibit the government from including homosexuals in antidiscrimination statutes.

2. Ruling that state laws that discriminate against homosexuals are unconstitutional.

These are positions that as recently as 1970 (or even 1980) would have been recognized as very, very liberal positions--positions that only a very few liberals would have been willing to argue.

Mark Boehm

Clayton, is seems as if you are suggesting that the "conservative" position is (I paraphrase)"we can discriminate against any group we want". I guess it's a "State's Right's" issue to you... If I am correct in this - I commend you for your honesty!

A.C. Bloom

Dear Prof. Straus:

Just a word or two of disagreement: Justice Blackmun definitely did make a move to left (most notably on abortion and the death penalty). As did Justices Douglas and Black on civil rights. Justice Black is particularly worthy of note given his early disavowal of the KKK and later support for the rights of criminal defendants, etc.). Justice Powell also took a late turn to the left, having been an ardent segregationalist in his early political career.

I am not sure how this fits into today's appointees, but I thought it was worth pointing out.

Joan A. Conway

I am now reading Bill Minuteaglio's book, The President's Counselor, a biography of Alberto Gonzales, the current Attorney General, Copyright 2006.

I discovered that while George W. Bush was Governor of Texas, some legislation passed Al's desk that he found to be "unconstitutional" or "invalid" or "weak" laws.

'FREDO,' as "GW" likes to call "Al", refused to okay it and the matter passed before a political operative with some legislative director's title, who informed "GW".

His partial comment was that it wasn't for the Governor's Office, or the Governor, to rule that a piece of legistation was unconstitutional, invalid or weak as a statute, but for the Supreme Court!

With this blind guidance, "GW" signed off on that legislation, inspite of his legal advise where "AL" refused to do so, until 'Fredo' saw the political expediency of doing so as well.

As "GW's" caudillo, "AL" sits behind the power on the throne and is the "personalismo" for the Mexican-Americans to follow is lead in Norte Americano politics.

But politics in the Governorship overrides pre-screening of legislation deemed to be suspect for Article III Section 2 Standing, as having a potential for "Concrete Injury."

This persuasion reminds me of the subject that many refuse to talk about in Chinese Circles: "The Egg or Sex."

What came first?

Those that refuse to talk about the egg, cannot talk about what follows,the sex; and those that refuse to talk about what follows, the sex, cannot talk about what was first, the egg!

It is preposterious to think that local debate about Texas legislation was hardly thorough enough to shed some light on the concern that the pending law might be "unconstitutional" or "invalid" or "weak" and force its citizens into slavery or criminal activity to overcome its oppresive nature. Thus, making it a police state, or State of Death!

Woe from wit follows with the politicans, "lets leave it to beaver!"

Problem solved and legislation is passed by the ill-informed Governor, "GW", who was on his way to close the civil rights of prisoners of war, with the biased aid and abetting from his legislative director, and the imperialistic lessons given to "AL" to follow suit.

I strongly find this is a measure to protect the powers to be and to prevent exposure for their wrong-doings while in Texas and most likely in Washington, D. C., as President of the United States.

"GW" cannot be alone in the political Egg and Sex coverup.

Joan A. Conway

What is still alive and well today is Marbury Vs. Madison Supreme Court decision and Justice John Marshall's narrow decision.

The Federalist entrenched the judiciary with midnight judges that the Republicans wanted to negate with denying the commission, which was not delivered on the final day of President Adams' administration, with the incoming President Jefferson's administration.

The Circuit Court Act and the Federal Judiciary Act are material evidence of this conflict for the limitation of the executive office, the legislature, and the court and the court's provisional standing rules.

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