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July 09, 2005

Exclusive: SCOTUS nominee questions

What with Harry Reid urging a nominee with a big heart and groups like NARAL, NOW and People for the American Way selflessly pounding the pavement for money to keep the jackbooted thugs from SCOTUS, we are proud to bring you a list of some of the questions, culled from the aforementioned groups, that Democrat Senators may ask the next nominee. These groups, long known for their commitment to sexual equality, a woman's right to choose, racial equality and general fairplay, tolerance, golden retrievers and fluffy pink clouds are dedicated to exposing the Dark Heart of Narrowmindedness, Meanspiritedness, Inappropriate Humor, and General Ickiness of Self-Responsibility.

An affirmative answer to any of the following questions should give pause that one is, indeed, dealing with an out-of-the-mainstream rightwinger extremist not suited for SCOTUS or dining with polite company.

Of course, this is only a partial list, and maybe updated as more questions from these organizations come to light. Let us pause and give thanks to such selfless people who are willing to protect us from such extremists that this list will undoubtedly reveal.

Posted by Darleen at July 9, 2005 03:19 PM


Have you ever used or witnessed the use of the phrase "a chink in the armor?"

Posted by: Jeff Harrell at July 9, 2005 04:24 PM

How about asking the future nominees this one:

"Do you believe that the Federal government should insinuate itself into guardianship disputes in cases where State courts rule against the wishes of parents who are embroiled in legal battle against a husband who, believing the doctors who told him his wife was in a persistent vegetative state, made the difficult decision to remove her feeding tube--even when politicians in Washington (and a state governor)go on a crusade and smear campaign against the husband in order to serve a powerful constituency critical to their re-election?"

Posted by: Brad at July 9, 2005 08:13 PM

Geez, Brad

Terri was put to death, doesn't that make you happy enough without having to lie about the facts of the case all over again?

Q: Does an individual facing euthanasia without any clear evidence of his/her final wishes, where a dispute of those wishes exist, have the right to appeal to federal courts for a de novo review in the same manner as convicted murderers do when the facts of the case may be in doubt?

I say "yes"

But then I think the law should have a "life" default, not a death one.

I have no more problem calling euthanasia for convenience sake, like abortion for convenience sake, immoral, even as it may be legal.

Posted by: Darleen at July 9, 2005 08:19 PM

Actually, Brad, speak not of what you know not. The federal courts get jurisdiction over cases involving "federal questions" under the Federal Rules of Civil Procedure s. 1331. Defined under 1331, a "federal question" has several qualifications, on of which is "just about anything Congress deems it to be." Congress can confer federal jurisdiction on any case that it wants to--and it does several times a year, mostly for immigration cases. Where there is a case where there was a possible mishandling of evidence, or a question of legality that could result in the death of an innocent person, there is little question that the government may confer juridiction to hear it, and so they did. Were a murderer on death row slated to die as Terri did, I highly doubt that manhy of those who objected to federal jurisdiction being offered to the Schiavo case would have objected to similar treatment.

No politicians overstepped their bounds, and the Supreme Court has held that under Article III, the power to grant jurisdiction can be reserved to the Congress (the Federal Rules of Civil Procedure are difinitvely held to be Constitutional, as well).


Posted by: E.M. at July 10, 2005 10:21 AM

doesn't that make you happy enough without having to lie about the facts of the case

Darleen, what makes you think liberals like me are so gleeful about a woman's death? You completely ignored the substance of my point-- which is that perhaps, under the circumstances of this remarkable case -- in which the separation of powers was violated (i.e., the constitutional principle that legislators may not reverse the decisions of the courts simply because they disagree with the verdict) --that future Supreme Court nominees should be asked their opinion of this matter.

And E.M., the "Federal Rules of Civil Procedure" are entirely beside the point. The legislation passed by Congress on Sunday March 20th and signed by Bush at 2 AM was unprecedented. Congress recognized this in their own way by having it apply exclusively to Terri Schiavo and her parents...Now, do you really, honestly believe that, just because Article III gives Congress the power of jurisdiction that they are also allowed to write laws that apply to individuals only? That, in this instance -- in which Tom Delay called withdrawing Terri's feeding tube an act of "murder" and Republican Congressmen and the President went out of their way (recall, for example, that Bush cut short his vacation) to respond to the demands of the Religious Right by intervening in a State matter (in which Florida courts had reached legal judgments and factual conclusions after many years of litigation and 21 separate, written, published rulings) to pass Federal legislation which essentially erased all previous rulings--
no politicians overstepped their bounds?

My God, what reality are you living in?

Posted by: Brad at July 10, 2005 12:12 PM

By the way, Darleen, I DO find it interesting that you continue to ignore recent events related to the Schiavo case-- like Governor Bush's pursuit of a criminal investigation of Michael Schiavo which was just ended, thanks to the Florida state attorney. I guess that, despite the passionate attention you gave this case back in March, if a news event doesn't suit your narrow minded agenda then you choose to gloss over it.

Posted by: Brad at July 10, 2005 12:17 PM

I answered yes to all except the Boy Scouts, although I have supported their fundraising. That either makes me perfectly qualified, or certifiably insane! :)

Posted by: Oddybobo at July 12, 2005 05:51 AM

Actually, they had all the power that they needed, and frankly, as a FIRST AMENDMENT LAWYER, I would support Congress right to exercise those powers which are accorded to them in the Constitution. In this case, the courts issuing the rulings were state courts only. What the Congress did was give the federal courts permission to hear de novo appeals from those state courts, a power that appellants from the state courts do not normally have. Typically, once a case is denied by the Supreme Court of a state, and then subsequently denied certriorari by the SCOTUS, that case is essentially closed unless there is a subsequent case that alters the substantive law relevant to that case. In the Schiavo case, Congress exercised the power given to them to allow the federal courts, under the country's legal rules of procedure (the FCRP which is all-controlling in determining which courts have subject-matter jurisidiction over particular cases) as bestowed upon them by both Article III and the FCRP. The Congress basically passes a resolution that states that this particular case requires further examination by a federal court--a court which a state claim would not normally see. They do this several times a year, mostly for death row appeals, and for various deportation cases (all of which are similarly important, but recieve significantly less press). The Federal courts can then determine whether they will hear the case (the same case heard by the federal courts, using the state law) or not. In the Schiavo case, the Congress merely passed a resolution that would allow the Schiendler family to appeal to the federal courts--the merits of the claim and the motivation of the legislature are singularly irrelevant. Simply the vote. If the Congress felt that it was important for this case to be heard in the federal courts, they followed the lead. It was the law of Florida that failed Terri. The courts were merely doing their job. I fail to see why it is important to take into consideration the motivation of the legislature in conferring jurisidiction--I would hestiate to place a limit on this kind of act by stating that motivation of legislators could deny a worthy candidate an appeal. For instance, to revoke this power from Congress could put many who would need amnesty at a disadvantage by denying Congress the power to allow them to appeal to the federal courts in teh same way Terri's family was allowed to.

Resorting to legislative intent is a deep hole in which to place yourself. What is, then the legislative intent of those who seek to filibuster judges, who seek to condemn Guantanamo Bay. Should the powers exercised by those Senators be subject to a heckler's veto simply because they are motivated by partisan politics or a desire to capitulate to the progressive left. I am certain that you would disagree.

Posted by: E.M. at July 12, 2005 07:34 PM

To add, there was no erasure of federal rulings. An appeal merely looks at issues in the case that could have been found differently with the evidence presented. In this case, the issue was the "hearsay" provision of the Florida "living will" law. According to Florida law, heresay is all that is needed to confirm the wishes of the disabled to end their life. From the evidence presented, the Florida courts determined that there was sufficient proof to authorize Michael Schiavo to exercise his duty under Florida law. The appeals merely looked at this issue and the presented evidence, and made a ruling. Upon appeal the courts can either affirm the lower court's ruling or remand it back to the lower court for further proceedings consistent with the higher courts finding. They do not simply re-try the case in every appeal.

Posted by: E.M. at July 12, 2005 07:39 PM