I need help with this. Please help me. (rw co-worker & my pending reply)

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A co-worker forwarded to me and a couple of other people an email he recieved from Elizabeth Dole which, under a banner showing Hillary, Edward Kennedy, Reid and one other Dem Senartor with very unflattering, almost sinister expressions, went on about how Democrats were obstructing the good republicans' efforts re: bush's judges and Senate Rules.

I responded, sloppily at times, maybe inaccurately at times, and probably a little too harshly, and he responded back. We're now a few emails into this chain. There are two emails from him I need help responding to point by point asap (I promised I would). In one he takes on my views as well as Harry Reid's recent statement. In the second, he addresses Kennedey's "Rules that will be broken" statement.

I work 50+ hours a week and I can't do the research necessary to reply effectively on my own. And there are two other people watching this exchange.

Please help me respond to the following two emails from him. Just take one point if you want. Links would be great.

------------------------ Email One ----------------------------

He's in Red, I'm in Blue:

The major problem has come about because the courts have become a political issue. Justice Antonin Scalia spoke about this recently as being the major problem. Why have the courts become a political issue? Because the court puts sound law and constitutional principles aside and votes based on politics.

Consider this:

The Court has within the past 60 years...
1) Ruled that the states cannot permit prayer in public schools when the Constitution explicitly says that "Congress shall make no law respecting AN establishment of religion" which has always been interpreted as meaning the federal government cannot force the states to change their religious establishments. (Maine had a state religion until 1833)

2) Struck down a California initiative that banned racial quotas on the basis of the 14th amendment. Yes, the 14th amendment which guarantees equal protection of the laws, was used to force California to require and give advantages to minority applicants to state universities on the basis of race. Similarly you will recall forced bussing in the case on the Meclenburg Cty School district in North Carolina in the 1970's

3) Ruled that states cannot make abortion illegal. Before Roe, states could make it legal if they chose or make it illegal. Isn't that an issue best judged by the communities it affects? Further, I believe states rights in this respect should extend to drug laws, education, transportation, welfare, and other items that the consitution does not permit the Congress jurisdiction.

4) The court ruled (in favor of Pres Bush but against my personal belief however) that it is ok to ban free speech before an election if it opposes a government official who is running for office. It's called campaign finance reform. And it is very unconsititunal. At the same time the court will rule that the National Endowment for the Arts must give my tax payer money to some guy who puts a cross in a jar of urine because it's "free speech." Free speech must first be used to promote free political discussion!

I could keep going but....

I now address each of your points. I found your agrument very substantive and appreciate it.

-----Original Message-----
From:
To:
Cc:
Sent: Thu, 19 May 2005 14:44:30 -0700
Subject: RE: Fwd: 10 Reasons for $10

____, you poor lost soul. *** I am a born again believer. I am not a lost soul :-) *** You are being bamboozled by power-hungry fascists ***That's as productive as me calling liberals communists. It serves no purpose. I would hope we would have an open minded discussion here without labeling an alternative view extremist *** who want nothing less than complete control of every branch of the US government. *** It's called politics. Democrats want control of every branch too. However, personally, I want judges with a strict interpretation of the Constitution. For example, I personally support a lot of the Patriot Act however, I feel much of it is unconstitutional and I would vote to over turn it if I were a judge. (I know all of you oppose the Patriot Act - but do you see how I can oppose something on legal grounds that I support politically? Judges should do the same.) The constitution has a provision for changing the constitution... the amendment process not the courts! The concept of Judicial Review itself is not really constitutional! John Marshall, I think, may have overstepped his authority in Marbury v. Madison but I digress. I support judges in the mold of Antonin Scalia (I think one of the all time greats on the court)***

...

The filibuster has been used for 200+ years in the Senate, by Repblicans and Democrats alike. Its a Constitutional tool *** The filibuster is no where in the constitution nor mentioned in the rules. It is a loop hole *** provided by the founders of the country to see to it that the "majority" cannot simply run over the rights of the "minority." *** The House of Representatives had a similar provision in until the loop hole was discovered and time limits on debate was instituted in the early years of the chamber. The filibuster "rule" has been changed before such as in 1917 when cloture (rule 22) began. It is no different than the fact that there is no filibuster on budgets because that is a constitutional responsibility of the Senate. The Senate has a statutory (and constitutional) requirement to pass a budget so cloture (limiting debate) is automatically adopted. Judgeship nominations deserve the same. Buddy, this really isn't a constitutional issue -- it's a political issue. The Senate Republicans have the majority and have the right to do this. Sen Robert Byrd used this technique several times to end GOP filibusters when he was majority leader. ***There's nothing "unprecedented" about its use. 95% of commander cuckoo-banannas' nominees have been approved by the Senate. But that's not good enough for the radical right-wing who demand all or nothing, *** Not asking for approval just a vote. 100% of them deserve that much *** with zero tolerance for any dissent. ***Any Senator can dissent. They can vote "No" if 51 of them vote "No" then the nominee is rejected*** Republicans blocked far more of Clinton's nominees than Democrats have blocked bush's. *** The concept of blocking nominees is wrong; however, this is not true that MORE nominees were blocked. Many of the nominees that Clinton put forward did not have the votes to get of of Committee because a majority of senators opposed them. In many, not all of them, there were not the votes on the floor to confirm them majority vote or otherwise. However, they SHOULD have been allowed a vote.***

Facts don't support frist, delay *** What does Rep. Delay have to do with the Senate rules? ***, and the bushco rabid right *** am i part of the bushco rabid right? If so, can I get a bumper sticker?***, who just weeks ago were threatening judges for rulings they disagreed with. *** for overstepping their constitutional authority no less *** The hatred toward our third branch of government (among other thngs) from these extremists is really ironic, considering it was activist judges who placed awol into power in the first place. *** absolutely false. if the recount was permitted in Bush v. Gore, media (which has since done those recounds) have shown that Bush would have won ***

These are the same people who have turned Clinton's budget surpluses into the largest deficits in our history, *** The GOP was the one pushing for balanced budgets in the late 90's with Clinton always objecting. Why have we had a deficit lately? Because of a recession and war. I agree that Bush should push harder for limits on SPENDING. If you are proposing a tax increase then that is stupid because that inhibits natural economic growth incentives which will reduce the revenue coming into our treasury *** lied our soldiers into a sham of a war, *** He did not lie *** gave tax cuts to their rich friends *** The wealthy have a LARGER share of the tax burden now than before! The top 50% of wage earners pay 96.03% of the taxes and the top 20% of wage earners pay 80% of taxes. The larger reductions in the tax burden came on the lower brackets!! This argument is completely untrue. I would support a flat tax but Bush enhanced the progressive tax system so its just not right to accuse him of the opposite. Good thing I'm not making policy because in my world everyone would pay 20% of their earnings over 35,000 in taxes (notice there is still a slight progressive lean there but nothing that would punish people taking risks with capital) *** and now tell the poor who rely on Social Security for food and medicine that America just can't afford to keep that promise any longer. *** Bush is trying to change Social Security to improve it and also offering greater benefits to those who need it instead of a one-size fits all program. Above all, it would not change for those who are at or near retirement today. If you have a better idea to fix it, please offer it up because YOUR pary has offered NO PLAN! Just letting it run its course to disaster does nothing to help this "promise." ***

And now, since they can't get all they want with the rules as they are, they want to change the rules - toss the Constitution out the window because emporer bush must have his way. *** This is NOT changing anything in the constitution. The constitution says that the president will appoint with the Senate's Advice and Consent. There is no requirement for a super-majority. There IS a duty for the Senate to vote and the Senate SHOULD vote up or down.***

Here's what one of the few remaining patriots, Harry Reid, ****** had to say about the forced showdown

(REID in black)
--------------------------

Mr. President, I've addressed the Senate on several recent occasions to set the record straight about Senate history and the rules of this Chamber. I'd much rather address ways to cut health care costs or bring down gas prices. But the Majority Leader has decided that we will spend this week debating radical judges instead. I'm happy to engage in that debate, but I want it to be accurate.

For example, the Majority Leader issued a statement last Friday in which he called the filibuster a 'procedural gimmick." I took some time yesterday to correct that assertion. The filibuster is not a gimmick. It has been part of our nation's history for two centuries. It is one of the vital checks and balances established by our Founding Fathers. It is not a gimmick. *** The filibuster is not even in the senate rules! There just isn't a limit to debate in the Senate unless Cloture (rule 22) is adopted. So the Founding Fathers did not put a "Filibuster Rule" into existence the term wasn't even adopted until the 1850's*** Also, Republicans have not been accurate in describing the use of the filibuster. They say the defeat of a handful of President Bush's judicial nominees is unprecedented. In fact, hundreds of judicial nominees in American history have been rejected by the Senate, many by filibuster. Most notably, the nomination of Abe Fortas to be Chief Justice of the United States was successfully filibustered in 1968. And during the Clinton Administration, over 60 judicial nominees were bottled up in the Judiciary Committee and never received floor votes.

In addition, Republicans engaged in explicit filibusters on the floor against a number of Clinton judges, and defeated a number of President Clinton's executive branch nominees by filibuster. It's the same Advice and Consent Clause – why was a Republican filibuster of Surgeon General nominee Henry Foster constitutional, but a Democratic filibuster of Fifth Circuit nominee Priscilla Owen unconstitutional? The Republican argument doesn't add up. ***Cabinet members are not constitutionally constructed offices like judges are; however, I agree that filibusters on cabinet members should not be allowed either. I do not claim the Republicans are innocent here. I am claiming that the Constitution should be enforced as intended! ***

And now, the President of the United States has joined the fray and become the latest to rewrite the Constitution and reinvent reality. Speaking to fellow Republicans on Tuesday night, he said that the Senate 'has a duty to promptly consider each … nominee on the Senate floor, discuss and debate their qualifications, and then give them the up or down vote they deserve."

Duty to whom? ***Duty to the Republic! It's the Senate's Constitutional duty to vote on these nominees*** The radical right wing of the Republican Party who see within their reach the destruction of America's mainstream values? "

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--------------------------EMAIL TWO------------------------

(KENNEDY in black)

-----------------------------

Here are some of the rules and precedents the executive will have to ask its allies in the Senate to break or ignore in order to turn the Senate into a rubberstamp for the nominations:

First, they will have to see that the Vice President himself is presiding over the Senate so that no real Senator needs to endure the embarrassment of publicly violating Senate rules and precedent and overriding the Senate Parliamentarian the way our Presiding Officer will have to do. *** The Vice President is President of the Senate and has every right to do this and make rulings from the chair ***

Next, they will have to break paragraph 1 of rule V, which requires 1 day's specific written notice if a Senator intends to try to suspend or change any rule. *** This isn't a rules change but an interpretation of the rules (which yes will effectively change the rules but there is a difference) ***

Then they will have to break paragraph 2 of rule V, which provides that the Senate rules remain in force from Congress to Congress, unless they are changed in accordance with the existing rules. *** But the Senate does have the authority to change the rules if they wish; however, this technically isn't changing the rules it is reinterpreting the rules ***

Then they will have to break paragraph 2 of rule XXII, which requires a motion, signed by 16 Senators, a 2-day wait, and a three-fifths vote to close debate on the nomination itself. ***A cloture motion (in accordance with rule 22) was invoked on Friday and will allow a vote on Tuesday ***

They will also have to break rule XXII's requirement of a petition, a wait, and a two-thirds vote to stop debate on a rules change. ***Again, this isn't a rules change it's a reinterpretation of the rules ***


Then, since they pretend to be proceeding on a constitutional basis, they will have to break the invariable rule of practice that constitutional issues must not be decided by the Presiding Officer, but must be referred by the Presiding Officer to the entire Senate for full debate and decision. ***I assume one on your side will appeal the ruling of the chair, triggering a vote and the Senate will consider this***


Throughout the process, they will have to ignore or intentionally give incorrect answers to proper parliamentary inquiries which, if answered in good faith and in accordance with the expert advice of the Parliamentarian, would make clear that they are breaking the rules. ***The Parlimamentarian is not elected and has no power in the chamber other than recomending the chari rule a certain way. The chair is under no obligation to follow those recomendations.***


Eventually, when their repeated rule-breaking is called into question, they will blatantly, and in dire violation of the norms and mutuality of the Senate, try to ignore the minority leader and other Senators who are seeking recognition to make lawful motions or pose legitimate inquiries or make proper objections. ***The chair does not have to refuse the Minority Leader if cloture is adopted no motions that are not germaine can be made. There are strict time requirements for debate. Any motions that are put forward will count against the time. However, technically, if they follow the rules the Majority and Minority leaders have no more right to floor recognition than any other member. It is supposed to be based on who rises first.***

By this time, all pretense of comity, all sense of mutual respect and fairness, all of the normal courtesies that allow the Senate to proceed expeditiously on any business at all will have been destroyed by the preemptive Republican nuclear strike on the floor. ***Robert Byrd when Democratic leader, remember did the same thing 4 times ***

To accomplish their goal by using a bare majority vote to escape the rule requiring 60 votes to cut off debate, those participating in this charade will, even before the vote, already have terminated the normal functioning of the Senate. They will have broken the Senate compact of comity and will have launched a preemptive nuclear war. The battle begins when the perpetrators openly, intentionally, and repeatedly break clear rules and precedents of the Senate, refuse to follow the advice of the Parliamentarian, and commit the unpardonable sin of refusing to recognize the minority leader.

***The Democrats started it in 2003 when they made their new tradition of using a partisan filibuster against appelate court nominees who would otherwise have the votes necessary to confirm for the first time in US Senate History ***

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Please help out here. Links, anything.

Thanks!!!!!!

[undeterred]

1. kick!

:kick:

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2. Thanks undeterred

won't be back online 'till this evening - hoping for the best.


:hi:

[Coexist]

3. Here's one...

The Court has within the past 60 years...
1) Ruled that the states cannot permit prayer in public schools when the Constitution explicitly says that "Congress shall make no law respecting AN establishment of religion" which has always been interpreted as meaning the federal government cannot force the states to change their religious establishments.

(Maine had a state religion until 1833) - so all old laws should be kept on the books - like those that forbid oral sex and interracial marriage? Ownership of human beings? Those laws are struck down for a reason. Poor argument.

Also, "which has always been interpreted as" by whom? His friends? His Pastor? Too vague a reference - make him get you sources to support his claims that general. Don't do his work for him - throw all those back on him to prove.


Freedom of Religion
Many people have the mistaken belief that the federal Constitution requires a wall of separation between church and state, and are surprised to learn that the Constitution does not mandate a complete separation between church and state. Clergy persons may hold public office, religious colleges may receive public grants, and the government may require a church to install smoke detectors or other safety equipment.

Religion and government play important roles in the lives of many people and the two often overlap, yet the Constitution guarantees religious freedom. The Constitution's guarantee of religious freedom has two branches. The federal government is forbidden to establish a state church and individuals are guaranteed the right to exercise their religion freely. Like the other rights discussed in this chapter, these rights are not absolute.

Establishment Clause
The Establishment Clause forbids the establishment of a state church. Cases arising in this area frequently involve whether the state may give aid to a religiously affiliated institution, such as a Christian grade school or a Jewish hospital. Courts usually ask three questions when hearing challenges to government support of religiously affiliated institutions:


Does the aid have a secular purpose?

Does the aid have a primarily secular effect?

Does the aid require excessive government entanglement in the affairs of the religious body?
Using this test, courts have upheld programs that have only an incidental benefit to religious schools, such as free busing, but have struck down programs that directly benefit the schools, such as paying the salaries of private school teachers.

Free Exercise
Courts deciding whether there has been an infringement of the right to freely exercise one's religion use a three-part balancing test that considers:


Weight of the government interest

Degree of interference

Availability of alternate means to achieve the goal
Cases decided in this area have produced a few general principles. First, strong government interests may completely override a religious belief. For example, a strong government interest in encouraging monogamy was enough to allow the government to forbid polygamy in the 19th century, even though some Mormons believed in polygamy as part of their religion. Second, free exercise claims are stronger when they involve one's own actions than when they involve one's children. For example, freedom of religion allows an adult to refuse medical treatment, but a state may intervene on behalf of a child and force his or her parents to seek medical treatment for the child, even if medical treatment violates the parents' religious beliefs.
http://www.weblocator.com/attorney/ca/law/c04.html#cac042500

[mmonk]

4. I would use information used

in this thread.
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=104&topic_id=3703730&mesg_id=3703730&page=

[eallen]

5. Incorporation wasn't caused by judicial activism

<i>" ruled that the states cannot permit prayer in public schools when the Constitution explicitly says that 'Congress shall make no law respecting AN establishment of religion' which has always been interpreted as meaning the federal government cannot force the states to change their religious establishments. (Maine had a state religion until 1833)"</i>

This story, of which conservatives are so fond, overlooks the fact that the 14th amendment was ratified after the Civil War. Part of the purpose of this amendment, <i>as originally understood by its proponents</i>, was to incorporate the Bill of Rights to the states. The conservatives who point out that states once instituted religions should note that the states also once had laws against blasphemy, and other restrictions on speech, and that without incorporation, they also would be free to eliminate trial by jury. After the Civil War ended, there was considerable concern that the southern states would eventually return to a system of quasi-slavery, <i>de facto</i> if not <i>de jure</i>. During reconstruction, there was a civil rights movement intended to expland civil liberty guarantees against the states. The 13th, 14th, and 15th amendments were the Constitutional result. Conservatives try very hard to ignore this. Some even argue that the 14th amendment is invalid, or should be repealed.

In any case, incorporation was <i>not</i> the result of judicial activism, as your respondent alleges. Rather, it was the result of a political process that amended the Constitution. Wikipedia has a good brief on incorporation:

http://en.wikipedia.org/wiki/Incorporation_%28Bill_of_Rights%29

Anyone who thinks incorporation of the Bill of Rights is against American principles should imagine if some state could institute a religion, ban dissident speech, sieze private property without recompense, pass bills of attainder, and arbitrarily restrict the franchise. While some of the southern states approached this <i>ante bellum</i>, most Americans would aver that the end of such things was both good and essential to our national character.

[Coexist]

6. In re: the Supreme court and states rights,

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

re: abortion and states rights
<Roe v. Wade
The essence of the 1973 Roe v. Wade decision is that Constitutional rights apply only after birth; hence abortion does not breach a person’s right to life. States cannot regulate 1st trimester abortions; states can regulate but not ban 2nd trimester abortions; and states can ban 3rd trimester abortions (as many have).
The debate on abortion generally focuses on when human life begins. The courts often focus on ‘viability’, the point at which the fetus could survive outside the womb. Viability naturally begins at about 6 months of pregnancy, but with modern medical advances the age of viability is pushed back substantially. Strong pro-life advocates believe that the fetus should be protected from the moment of conception.

Abortion Legislation
The details of abortion legislation focus on what the states can regulate and what they can ban in later trimesters:
‘Partial-Birth Abortion’ refers to a late-term abortion method which induces a breech delivery and collapses the fetal skull before completing delivery. This procedure is banned in 24 states, but pro-choice advocates, including President Clinton, have sought to overturn state laws with a federal ruling. In April, the Supreme Court rejected a Nebraska law banning partial birth abortions. In June, the Court said that the Nebraska ban was unconstitutional because it had no exceptions and barred second trimester abortions.
Each state decides if ‘Parental Consent’ is required for teenagers seeking abortions. The Supreme Court ruled in 1992 that spousal consent cannot be required by the states.
Each state also determines rules about ‘informed consent’, about 24-hour waiting periods, and about when viability occurs after the 1st trimester. >
http://www.ontheissues.org/quizeng/VoteMatch/qn1.asp

[Coexist]

7. Re: filibuster and the Constitution

The Argument for the Filibuster's Constitutionality

Unfortunately for filibuster opponents, things are not that simple. Another hallowed interpretive principle suggests that a list - such as the Constitution's list of supermajority vote situations - can be illustrative, not exhaustive. It can suggest the kind of circumstances in which a supermajority rule might be appropriate, without providing an exhaustive list of all such rules that can ever be imposed.

Moreover, the Constitution, in Article I, section 5, anticipates that the House and Senate will make rules beyond those set forth in the Constitution, and specifically gives them authority to do so: "Each House may determine the rules of its proceedings." And, aren't the filibuster rule and companion cloture vote rule just these types of procedural rules? Remember, when a filibuster is ongoing, the cloture rule technically requires a supermajority to end debate - a procedural occurrence - not a supermajority to enact the legislation or approve the nomination in question.

Finally, most constitutional analysts are understandably reluctant to disturb practices that have a long historical pedigree - which the filibuster certainly does. In light of this reality, the constitutional case against the filibuster becomes even weaker.

http://www.yuricareport.com/Law%20&%20Legal/Senate%20Rules%20on%20Filibuster.html

[Coexist]

8. filibuster not in the Senate rules

*** The filibuster is not even in the senate rules! There just isn't a limit to debate in the Senate unless Cloture (rule 22) is adopted. So the Founding Fathers did not put a "Filibuster Rule" into existence the term wasn't even adopted until the 1850's***

see previous post re: filibusters, specifically

"Moreover, the Constitution, in Article I, section 5, anticipates that the House and Senate will make rules beyond those set forth in the Constitution, and specifically gives them authority to do so: "Each House may determine the rules of its proceedings." And, aren't the filibuster rule and companion cloture vote rule just these types of procedural rules?"

[PaulaFarrell]

9. don't know if this helps, but

This guy needs to recognise that courts are products of their times, and that constitutional law is constantly evolving. Does he really still want to be dictated to by 18th century laws? The fact that Maine had a state religion until ONLY 1833 shows thatt it was pretty quickly established that laws 'respecting an establishment of religion' was interpreted as a mandate for seprartion of church and state. It would be interesting to research court decisions around that time, but I suspect that is what happened.

The 14th amendment mentioned in point 2 is just an indication that courts recognised that there was no chance of equal protection wuithout some sort of standard (ie quotas) by which it could be judged. You might remind him of the Jim Crow laws all over the south at that time that in practice prevented most balcks from voting. The reason bussing happened all over was that it was demostrably proved that separte was NOT equal.

As for abortion - please show me how it affects 'communities'. It doesn't. It's a personal matter.

Campaign finance is not an attempt to stifle free speech, but to ensure that the speech of people other than corporations and th exceedingly wealthy has equal weight. Free speech, by the way, does not guarantee a platform for anybody's thoughts - it just means you can't get arrested for expressing them.

[Gormy Cuss]

10. Maine had a state religion until 1833?

Horse manure. So your co-worker claims that Maine, having become a state only in 1820, chose to ignore the constitution and declare a state religion, then changed its laws thirteen years later.

Sorry to disappoint your co-worker, but the Maine constitution
addresses the issue of religious freedoms in exactly one place (Article 1, Sec. 3) and it is not a definition of a state religion.

Perhaps your co-worker is confusing the colonial predisposition favoring certain faiths, which is true. Maine was part of Massachusetts and therfore was heavily Congregationalist.

Perhaps your co-worker just assumed Maine was an obscure enough reference that you wouldn't be able to check it.

[eallen]

13. Prior to the 14th amendment, states could establish religion.

The conservative respondent is correct that that was once allowed. He is <i>incorrect</i> that that was changed by judicial activism. It was changed by a political process that amended the Constitution.

[Gormy Cuss]

15. thanks for bringing up the 14th amendment

I responded too broadly and forgot that the Feds couldn't force the states to conform to U.S. law prior to reconstruction but I am certain that Maine was not a state that EVER had an established religion AS A STATE, which was the contention of the OP's co-worker.
They weren't too fond of anyone but Puritans and Anglicans prior to the 19th century but there was no law requiring membership in a specific faith.

[ray of light]

11. come to the democracy cell project to get help too

You can speak to people directly in the irc (particularly at 9 pm est there are numerous people there to help you.) This is too confusing to post point by point in here. but I suggest you at least copy your question and send it to [e-mail] and see if the blogmasters can help you get a more complete handle on this.

[Coexist]

12. Bush did NOT win

considering it was activist judges who placed awol into power in the first place. *** absolutely false. if the recount was permitted in Bush v. Gore, media (which has since done those recounds) have shown that Bush would have won ***


http://archive.democrats.com/view.cfm?id=2793

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14. Thanks everybody

I really, really appreciate it.

Thought I'd give this one nighttime kick too.

DU rocks!