Politics As Usual

[Gattigap]

Originally posted by sgtclub
I prefer to phrase it as "there is political support for it."

I'll agree that there seems to be political support among GOP congressmen (and perhaps the WH, we'll see).

If you're saying that Americans understand and care that Congress is about to rip out jurisdiction of most federal courts based on the chance that they might come to a decision that they might dislike, instead of on substantive expertise, then I don't. I think the GOP Congressional caucus is calculating that the American public doesn't understand what it means, or what its impacts are.

Do you see this as evil in some way?

Evil, no. Tactically shortsighted, monumentally stupid and disrespectful of many decades of tradition? Hell yeah.

Change the Rules of the Playground if you must, or the players on the playground if you can, but ripping away arguable constitutional claims and controversies from the view of the federal courts is no more than just pissing in the judicial sandbox. Not only does it prevent your rival playmate Jimmy from building his sandcastle, it ultimately fucks up the sandbox for everybody.

Do you REALLY want this to become one more political football for the parties to wrestle over? Do you REALLY want the federal courts to lose jurisdiction over issues that GOPers care about the next time Democrats control Congress?

If one believes that the judiciary has, in some areas (not the constitutionally required areas), thwarted the will of the people, what other choice is there?

[Sigh.] Pass a law. Failing that (or being told that your law is unconstitutional), amend the constitution. If you have the will of the people, you can accomplish that through these means. How many ways can I say this? What offends me is that their tactics are bush league.

I am supportive of the right of gays to marry. But there seems to be something unseemly of this being accomplished for the nation by 5 people sitting in Massachusetts.

And how will those liberal commie activist Mass. judges do so, exactly? As I've said before, DOMA has not been struck down, and it's not clear that it will be.

I cannot follow the logic of the posts on this board agonizing that somewhere hidden inside the labyrinth of liberal, sissified activist judges cleverly laid by mostly Republican administrations since 1969, there's one judge -- one apocalyptic hair trigger -- who will declare it unconstitutional. I have tremendous faith that it will be appealed to SCOTUS faster than ShapeShifter lost his virginity on the quad, and that they'll take the case. In the presumably short interim, the Republic will survive.

Gattigap

[sgtclub]

Originally posted by Gattigap
If you're saying that Americans understand and care that Congress is about to rip out jurisdiction of most federal courts based on the chance that they might come to a decision that they might dislike, instead of on substantive expertise, then I don't. I think the GOP Congressional caucus is calculating that the American public doesn't understand what it means, or what its impacts are.

Evil, no. Tactically shortsighted, monumentally stupid and disrespectful of many decades of tradition? Hell yeah.

Not what I'm saying, and I don't think the GOP caucus understands what it means or its impacts. Very short sided.

Do you REALLY want this to become one more political football for the parties to wrestle over? Do you REALLY want the federal courts to lose jurisdiction over issues that GOPers care about the next time Democrats control Congress?

No. What I really want are the courts to more reasonably interpret the words on the page. That is, IMO, the root cause of the problem.

[SlaveNoMore]

Tyrone Slothrop
Josh Marshall has a post today which contains responses to several of the points club and Slave have made this week:

I read that about 2 hours ago and immediately thought "my god, look at how much Josh is retreating on this"

Ty, do you still think his big scoop is on this topic or - hopefully for him - something else? I can't tell.

[SlaveNoMore]

Gattigap
If you're saying that Americans understand and care that Congress is about to rip out jurisdiction of most federal courts based on the chance that they might come to a decision that they might dislike, instead of on substantive expertise, then I don't. I think the GOP Congressional caucus is calculating that the American public doesn't understand what it means, or what its impacts are.

Someone somewhere today notably pointed out (in the context of a Bush/Kerry distinction being meaningless on a national policy level) - with the way the cloture rules are being applied these days requiring a 60 vote supermajority for anything to come up for a vote, it is impossible to think that anything this controversial will ever gain significant traction in the Senate.

So let Delay squeak.

[Gattigap]

Originally posted by sgtclub
No. What I really want are the courts to more reasonably interpret the words on the page. That is, IMO, the root cause of the problem.

And IMO, a "failure to reasonably interpret the words on the page" is more a political talking point, and a creature of political outlook, than anything else.

As such, it's not the "root cause" of anything, other than the GOP being pissed that they're not geting their way, and that they don't have public support sufficient to work through the system that the framers set up.

Being pissed at the result is, in itself, an insufficient reason for the GOP caucus to attempt an end run around the courts.

[sgtclub]

Originally posted by Gattigap
And IMO, a "failure to reasonably interpret the words on the page" is more a political talking point, and a creature of political outlook, than anything else.

As such, it's not the "root cause" of anything, other than the GOP being pissed that they're not geting their way, and that they don't have public support sufficient to work through the system that the framers set up.

Being pissed at the result is, in itself, an insufficient reason for the GOP caucus to attempt an end run around the courts.

I don't agree with this end run any more than I agree with the "new" rules for confirming judges, which are surely not what the framers invisioned. Point is, this is not a one sided problem.

Please tell me where their is a right to abortion in the Constitution. Now this may or may not be good policy, but the words are certainly not explicitly in there, so it is at least debatable whether the framers intended such right to exist. Wasn't the SC interpretation, then, away of the left "getting it's way. Why not require proponents to garner sufficient support to work the issue through the system instead of doing an end run?

[Atticus Grinch]

Originally posted by Mmmm, Burger (C.J.)
Is that entirely right? For example, diversity jurisdiction. The constitution puts no limits on it: "to controversies . . . between citizens of different states" yet no court has jurisdiction absent a claim above the jurisdictional threshold. Under your question as posited, wouldn't Congress's removal of the lower court's power place all such questions in the Court's original jurisdiction?

Yes, but diversity jurisdiction was a statutory grant of J from Congress; federal question jurisdiction (which DeLay is stripping here) isn't. I don't know that I can reconcile why diversity J is a statutory grant with the "citizens of diferrent states" language in the Constitution, but diversity J has always been a situation where Congress giveth and Congress taketh away (even from the Supreme Court), and federal question hasn't. There must be a case on that. Not Me?

Fed. Jur. was an awfully long time ago, and its usefulness was limited to one year long ago, but the constitution places certain types of cases in the Court's original jurisdiction. Other types in its appelate jurisdiction (unless Congress decides otherwise) and allows, but does not require, the federal judicial power to "extend to" a host of enumerated types of cases.

As to federal question cases, even the Supreme Court might not have original J --- that's conferred by the Constitution by express grants, I agree. I guess DeLay is saying you can file your cases in state courts asserting federal law as the supreme law of the land, and then the Supreme Court will have to reinstate appellate jurisdiction (which it presently doesn't have; just certorari) and take a hell of a lot more cases on appeal from state supreme courts and courts of appeal. Whatever statute eliminated appellate review of state courts and made Supreme Court review entirely discretionary might wind up being unconstitutional, as applied, in DeLay world. Just surmising here.

[Mmmm, Burger (C.J.)]

Originally posted by Atticus Grinch
Whatever statute eliminated appellate review and made Supreme Court review entirely discretionary might wind up be unconstitutional, as applied. Just surmising here.

Since I came late, what exactly does the statute bar?

Certiorari doesn't create jurisdiction; rather it makes hearing a case discretionary. Either they have jurisdiction or they don't in a given case; granting cert. doesn't do anything to alter that.

[Mmmm, Burger (C.J.)]

Originally posted by Atticus Grinch
Yes, but diversity jurisdiction was a statutory grant of J from Congress; federal question jurisdiction (which DeLay is stripping here) isn't. I don't know that I can reconcile why diversity J is a statutory grant with the "citizens of diferrent states" language in the Constitution, but diversity J has always been a situation where Congress giveth and Congress taketh away (even from the Supreme Court), and federal question hasn't. There must be a case on that. Not Me?

Aren't there certain categories of federal statute-based cases committed to state courts? I don't remember exactly, but I thought there were cases like railroad liability or something that provided a federally based right of action in state court.

That said, I think the distinction you would have to look for is something along the lines of bivens--that is, there's a right in need of a remedy. That said, why is raising a federal question is state court problematic? Wasn't that how the courts operated in the 1700s before there were lower appelate courts? And isn't it still? Plenty of people sue in state court for at least violations of hte constitution. I'm not saying it's good policy, just that' it's not unc.

[Atticus Grinch]

Originally posted by Mmmm, Burger (C.J.)
Certiorari doesn't create jurisdiction; rather it makes hearing a case discretionary. Either they have jurisdiction or they don't in a given case; granting cert. doesn't do anything to alter that.

What I mean is, the move from appellate review to discretionary cert review came about as a policy response to the growth of the docket. If Congress were to abolish all lower federal courts --- it has the power to do so --- a lot more federal question litigation would come up from state supreme courts and courts of appeal, because all federal question cases would be filed in state courts, where original J would then reside.

I'm just curious how the discretionary review process would work when the SCOTUS has trouble keeping up with split circuits, much less split states.

[Atticus Grinch]

Originally posted by Mmmm, Burger (C.J.)
That said, why is raising a federal question is state court problematic? Wasn't that how the courts operated in the 1700s before there were lower appelate courts? And isn't it still? Plenty of people sue in state court for at least violations of hte constitution. I'm not saying it's good policy, just that' it's not unc.

There were fewer state supreme courts then. As I said, Congress is free to abolish the lower courts. I was just musing that there might be some due process right to SCOTUS review of federal question cases decided in state courts. The more I think about it, the more I imagine it will be a morass --- look to your state supreme court to find the governing federal law in your jurisdiction? --- but probably not unconstitutional.

[Gattigap]

Originally posted by sgtclub
I don't agree with this end run any more than I agree with the "new" rules for confirming judges, which are surely not what the framers invisioned. Point is, this is not a one sided problem.

Please tell me where their is a right to abortion in the Constitution. Now this may or may not be good policy, but the words are certainly not explicitly in there, so it is at least debatable whether the framers intended such right to exist. Wasn't the SC interpretation, then, away of the left "getting it's way. Why not require proponents to garner sufficient support to work the issue through the system instead of doing an end run?

I'm getting the feeling that we're talking past each other.

You seem to be focusing on the fact that both sides of the political aisle have beefs about what they think should or should not be constitutional. I agree that in that respect, this is not a one-sided problem.

My problem is more with the tactics that the GOP is considering -- that if they're unsuccessful in legislating this prohibition, and if they can't pass an amendment enacting this prohibition, that somehow removing the question from the federal courts is somehow legitimate. Instead of getting the outcome they want with the game as it currently stands, or changing the rules (as they're permitted to do) so that they'll get the outcome the want on the substance, they're essentually deciding to take the ball home, so that the game never gets played.

I don't quite follow your abortion example. Are you saying, what if SCOTUS said there was no abortion right, what should its proponents do?

If so, then abortion proponents -- in the event that they made their case to SCOTUS that such a right existed in the constitution and failed -- then they should pass a law creating that right, and defend its constitutionality if needed. If they fail at THAT, then they should have to amend the constitution to create such a right.

At that point, I'm afraid your analogy breaks down. The GOP today wants to deny the potential observance of a right to a group of people, and therefore would prevent most federal courts from even considering the question.

Under your hypo, abortion proponents would be trying to encourage federal courts to observe what would then be a new right that they had earlier denied exists -- so Congressional restriction of Fed. Jur. based on the substance of the dispute makes little sense.

Gattigap

[Not Me]

Originally posted by Replaced_Texan
I assume that it will be challenged under the full faith and credit clause. I can marry my first cousin in North Carolina, but I can't in Texas. If I go ahead and marry him in North Carolina and then move to Texas, that marriage is going to be recognized in Texas under the full faith and credit clause.

Only the part of DOMA applying to the states could be challenged under the FFC clause. The part applying to the Federal government could not be so challenged as the FFC clause doesn't applying to the Feds. Hence the need for the FFC act, but that is not in the constitution.

[Atticus Grinch]

Originally posted by Gattigap
You seem to be focusing on the fact that both sides of the political aisle have beefs about what they think should or should not be constitutional. I agree that in that respect, this is not a one-sided problem.

Club's not a litigator, and is therefore having a little difficulty in imagining the potential drawbacks of allowing elected state court judges to rule on matters of federal constitutional law.

Living in S.F., you'd think he's be a strong proponent of having such matters heard exclusively by men and women appointed by the President and confirmed by the Senate.

Club --- if this passes, I'll meet you in Department 302. We have a lot of wealth redistribution to catch up on.

[Hank Chinaski]

Originally posted by Atticus Grinch
As I said, Congress is free to abolish the lower courts. .

Can we just rid of the ones we want to get rid of?