Checks and Balances?

**Don Corleone** · 09-23-2005, 17:40

In reading different stories about Roberts confirmation by the Senate panel, I came across some rather interesting (to me, disturbing) comments from Justice Ruth Bader-Ginsburg. She gave a speech where she said "And not just any woman will do. She must be committed to advancing human and women's rights. I have a list of qualified women that I find acceptable, but of course the president hasn't asked me my opinion yet." This was along the lines that according to conventional wisdom, the president should be impeached if he doesn't nominate a woman to replace O'Connor.

All politics aside I'm taking the Civics class side of this for a moment, because I'd be just as pissed if Scalia came out and said "If the President has any cojones, he'll nominate Estrada". In my mind, it is NOT the position of the Supreme Court to use the press to tell the President who to nominate (or the Senate who to ratify for that matter). Her job is to rule on cases and leave the nominations to those the Constitution empowers, no? Sure, she's entitled to her opinion, but this wasn't her chatting at a cocktail party. This was her giving a targeted speech. And it wasn't the first time she's done it. She's frequently publicly berated the Senate and the House for not putting forward bills she expects them to pass.

So, I'm a very poll-ish mood today... no political arguments, just the legal/constitutional aspects of it. Do Supreme Court justices, of any stripe have a right to use the bully pulpit to tell the rest of America how Congress and the President ought to do their job?

Darn! I forgot the poll. Okay, everyone yes or no... does SCOTUS have the right to go on the air to tell the other branches of government how to do their job?

**English assassin** · 09-23-2005, 17:49

I normally pick fights with you on the Supreme Court Don, but on this one you are right. A judge's job is to sit in court and make judgements. They should very rarely express any views outside the court room, and NEVER on who else they feel should be sitting on the bench with them. Not their role at all.

**Crazed Rabbit** · 09-23-2005, 17:51

No, and justices should not be trying to advance agendas while on the SCOTUS either. I'm sick of those activist justices who view the SCOTUS as their personal tool for advancing what they, not what they know the constitution to say, think is right. The problem is a lack of checks on the SCOTUS.

Argh, if I ever make a new republic, I'm going to write into the constitution great limits on courts, and make the 2A airtight.
Something like "The right of the individual to own, possess, make, and bear at all times in any manner in any area, the most advanced, deadly, state of the art firearms, conventional devices of war, and other arms, with no limitations on what they may purchase or make for their arms, shall not be overturned, limited, infringed upon, restricted, delayed, or otherwise altered by any court, legislating or executive body."
I'd probably have to add stuff to that too. Sheesh. Sorry for the rant.

Crazed Rabbit

**English assassin** · 09-23-2005, 17:53

No, and justices should not be trying to advance agendas while on the SCOTUS either.

Sigh. And THIS is what the fight is usually about...

**Don Corleone** · 09-23-2005, 17:58

Yeah, CR, no offense, but I'm trying to take a very limited scope on this debate. We can (and have) (and will!) debate judicial activism by SCOTUS till we're blue in the face. I'm trying to stay away from that in here. This is specifically about the appropriateness of a member of one of the three branches publicly announcing how a member of one of the other should act.

**Xiahou** · 09-23-2005, 17:58

Yeah, well I have a good female nominee in mind too. Probably wouldn't be one of the ones Ginsberg had in mind though.

As to your question, yeah I too think she was speaking out of turn. I particularly like the 'but of course the president hasn't asked me my opinion yet.' Nor should he. He's required to get advice and consent from the senate- not you m'am.

Edit:

Originally Posted by Don Corleone

This is specifically about the appropriateness of a member of one of the three branches publicly announcing how a member of one of the other should act.

Well, I would think it's entirely appropriate for Congress to try to tell the President what they'd like him to do or visa versa. The difference is with the judiciary- they are supposed to at least try to appear impartial.

**Seamus Fermanagh** · 09-23-2005, 17:59

Of course the justices have a right to do so. They do not lose their freedom of speech as a result of their robes. To the extent that taking such an active role diminishes the sense of impartiality that gives the justices such influence, I believe she is doing herself a dis-service. It even creates the potential (albeit unlikely) for impeachment if she fails to recuse herself on decisions upon which she has taken a position in advance of hearing argument -- this can be construed as an ethics violation. But the justices have a right to speak. Whether it is wise to do so......

Also, the President is only bound, constitutionally, to abide the advice and consent of the Senate. He can ignore the rest of the voices and chatter.

Seamus

**English assassin** · 09-23-2005, 18:03

SF, leaving all else aside, how is the court going to work if Justice Big Mouth and Justice New Boy are drawn on the same panel, and Justice Big Mouth is on record that Justice New Boy should not have been appointed and Justice Right-On would have been much better?

BTW I suppose she DID actually say these things, on re-reading they seem a bit OTT?

**Don Corleone** · 09-23-2005, 18:31

Seamus,
Of course, the person of Ruth Bader Ginsburg has a right to her opinions and voice them. I'm sure she's got plenty to say about Bush at cocktail parties.

My objection is when she is speaking in her role as a Supreme Court justice. She's getting the mircophone and attention because of the robe. She's using that robe to tell the other two branches how to do their jobs the way she wants them to. That's not separation of powers anymore.

EA,
You disappoint me... of course she said them. You think I'd make this crap up? Ginsburg is here to tell you how it is No offense taken man, you have a point. I can be a bit partisan at times. I'm not here. By the way, OTT?

**Crazed Rabbit** · 09-23-2005, 18:33

Sorry for the OTness, then.

I think it is totally inappropriate that a justice thinks they can tell the other bodies who they can nominate. That's the whole point of the checks and balance; so one group (SCOTUS) can't rule on all the laws and then demand the court composition is unchanged.

In fact, I'm sick of other branches, like the legislature always telling the President what to do, like who he should nominate for SCOTUS, etc. All those stupid pols use their positions as pulpits to stroke their ego. GAH!

Crazed Rabbit

**Phatose** · 09-24-2005, 06:47

RIGHT ON!

And while we're at it, lets do more to keep the seperation of powers airtight!

It's congress's job to come up with bills and pass them. Budgets included. So, no longer will any member of the executive branch be allowed to use his position to forward a certain bill-making agenda, and they sure as heck won't be allowed to propose budgets. And any president who so much as SUGGESTS a tax cut/change or a nationwide health care plan shall be immediately impeached!

It's the judiciary's job to decide on laws, and it's not the president or congresses job to do so. So no longer shall congressman, senators or presidents be allowed to say "We thought the decision was wrong." cause it's not their job to decide case law and they certainly shouldn't be making any comments on it.

And it's the president's job to execute the laws, and any commentary by congress or the judiciary about what a crummy job he's doing or even what a swell job he's doing, or even helpful hints like "The secret is to bang the rocks together Bill/George!" shall be disallowed. They should be making the laws, and then shutting up and letting the other branches get on with carrying them out.

.....er....or maybe not.
So, I'll have to say this is no violation of any seperation of powers any more then the 5 billion presidential/congressional dealmaking sessions that go on every year, or the running executive commentary on judicial decisions.

**English assassin** · 09-26-2005, 09:35

OTT= Over The Top.

Of course I wasn't suggesting you made the quotes up, DC, just wondered if maybe they had got garbled on their way to the newspapers (a shocking slur on journalists I know). Anyway, obviously not.

Any judge who did this in the UK would get a right bollocking.