Abu el Banat

Thomas Donnelly wrote a very serious and thoughtul posting on the Iraq war at TPMCafe. Of course, it attracted a lot of anklebiters.

We are not at the decision point of whether to invade Iraq or not. Endless attacks on that decision help no one. Personally, I thought the President made a mistake in attacking Iraq. That is a moot question at this point. We need to focus on a going forward strategy.

Comparisons of Iraq to Vietnam indicate the ignorance of the speaker. The Viet Cong and North Vietnamese had massive logistical support from outside the country and a great deal of support within South Vietnam. While foreign terrorists continue to infiltrate into Iraq and it now appears that Iran may be supplying bombs, this does not compare to the experience in Vietnam.

If the terrorists were to mount a military attack as the North Vietnamese did regularly, they would be destroyed very quickly. A recent film of terrorists firing a few mortar rounds and fleeing to a "safe house" shows the rapid response of US arms. A drone plane followed the terrorists to the house and bombed it just as they walked in.

The Iraqis are rapidly building a government and military to rule and defend their own country. Reports clearly indicate that most of the country already is clear of terrorists. That is the basis for the proposed draw down of US troops. Undoubtedly, the Iraqi military will need some continued military support for some time. One does not develop an effective air force and other specialized arms overnight.

It would also be nice if Democrats got serious about the business of helping shape a strategy rather than simply bashing the president. To win in Iraq and the Greater Middle East, it's got to be more than a one-party war.

Whether we agree with the original decision or not, the West cannot afford lose the war in Iraq. To do so would turn a failed country over to Jihadists who would use it to train and export terrorists to the rest of the world.

There will be time enough for historians to debate the merits of the initial decision to invade Iraq after the war is won.

Armando at DailyKos attempt to discuss Griswold, Roe and Casey, but fails to understand their complexities. It is enough for him to announce that anyone who disagrees with his position is an extremist.

Armando: "Learn to read (none / 0) The Constitution is not what is described as neutral - Rehnquist, Scalia and Thomas are described as neutral on abortion rights."

In fact, Whelen argues that the Constitution does not speak to abortion and is, therefore, "neutral" with regard to it. In the same way, he regards Rehnquist, Scalia and Thomas as neutral on abortion since they would allow the political branches of State governments to determine abortion law.

Armando: "Rehnquist, Scalia and Thomas disagree with this consensus view, of over 100 year vintage. That is not "neutral." That is extremist."

In fact the "consensus view" is from the opinion of only three justices of the Court and represents a position carefully and specifically rejected by the Court in Griswold. The Griswold majority opinion tried mightily to avoid the substantive due process position presented in Casey.

The Griswold Court pointed to "penumbras, formed by emanations from [the Bill of Rights] that help give them life and substance." Griswold, p. 484. They rejected use of Lochner v. New York as the basis of the opinion, since its use of substantive due process had long been held in disrepute.

The Griswold majority contended that "We do not sit as a super-legislature to determine the wisdom, need, and proriety of laws that touch economic problems, business affairs, or social conditions." This, of course, was the criticism of Lochner, that substantive due process permitted the Court to reject New Deal legislation simply because the justices had different opinions as to economic policy.

The three justices in Casey seem to have gone where prior Courts feared to go by embracing substantive due process, "The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which, by tradition, courts always have exercise: reasoned judgment."

To attempt to describe that position as a "consensus" view with a 100 year history has no basis whatsoever in reality. As recognized by the Griswold Court, it returns to a concept long scorned when applied in the economic area. To suggest that Rehnquist, Scalia and Thomas are extremist for adopting the position of jurists of the standing of Justices Hugo Black and Potter Stewart shows either a lack of legal understanding or a mere application of political cant.

Armando: "Now Whelan has a right to believe that these views, which he attributes to Rehnquist, Scalia and Thomas (and Roberts), are correct. But he can not in good faith label them 'neutral.' That is egregious spin. These views are not neutral. They are extremist."

You obviously do not understand Whelen's point. Whether the Justices' opinion is mainstream or extreme is immaterial. Whelen merely indicates that their view and that of the Constitution is neutral as to the right of State legislatures to determine abortion policy by law.

Your point that a Supreme Court opinion found the Constitution to create a right of privacy carries as much weight as a commentator's argument that the Plessy Court found a "right of separate but equal" in the Constitution.

The extreme difficulty of the Court in Griswold, Roe and Casey to articulate a coherent basis for the opinions suggests the lack of clear Constitutional support for the opinions. Neither side of the Court in the debate in the cases was extreme. They merely disagreed in a very difficult area of the law.

The court in Griswold and Roe faced a very complex problem in finding a Constitutional basis for the creation of a Right of Privacy without running afoul of the Substantive Due Process analysis discredited after Lochner v. New York.

Griswold attempted to distinguish its holding from Lochner: "We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation."

Unable to point to a Constitutional provision to support their position, the majority argued that various cases "suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."

That is why many supporters of Griswold are finding great difficulty in finding a specific amendment on which to ground the Right of Privacy. Neither could the Griswold court.

Some supporters point to the 9th and 10th Amendments as a basis for a Right of Privacy. The problem with those amendments is that they assume the continued existence of the original doctrine of the Constitution - that the Federal government only those powers specifically granted to it.

This position was abandoned with the massive expansion of the regulatory authority under the Commerce Clause. I doubt that many posters to this site want to revisit that issue.
In dissent, Mr. Justice Black argued that the Supreme Court should overturn statutes only on the basis of a conflict with "particular standards enumerated in the Bill of Rights and other parts of the Constitution." In the "application of 'natural law' deemed to be above and undefined by the Constitution ... [judges] roam at will in the limitless area of their own beliefs as to reasonableness and actually select policies, a responsibility which the Constitution entrusts to the legislative representatives of the people." [from Federal Power Commission v Pipeline Co.]

While the majority in Griswold attempted to avoid the creation of a social substantive due process analysis, as argued by Mr. Justice Black, they failed to do so. Just as the Lochner court substituted its policy views for that of reform legislatures, the Griswold court did the same as to a social issue.

Mr. Justice Stewart captured the essence of the issue and the proper role of judges: "It is the essence of judicial duty to subordinate our own personal views, our own ideas of what legilation is wise and what is not. If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it."

The continued application of substantive due process in social issues has brought this country to the sorry state we now face. Both sides demand ideological purity on the part of potential judges rather than a proper judicial temperment and superior legal skills.

Jack Balkin in TPMCafee tries to justify Democratic obstructionism in voting against John Roberts:

The problem is that we are not in a period in which this sort of comity and reciprocity is much respected. The Republican Party is a social movement party that wants to move the Constitution in a strongly conservative direction and therefore is not very much intersted in compromise. Seeing this, the Democrats have become less interested in compromise themselves. Nor should they be.

The last Supreme Court justices appointed by President Clinton were approved by a vote of 96-3 (Ruth Bader Ginsburg) and 87-9 (Stephen Breyer). Justice Breyer had been General Counsel of the ACLU. The prior vote had been that of Clarence Thomas (52-48) in 1991 and the trashing of Robert Bork before that.

This would suggest that the reciprocity and commity lies on the side of the Republicans rather than the Democrats. If anyone needs to earn reciprocity and comity as suggested, it is the Democrats. The new verb created by lack of commity was "borked" not "breyered."

Things change, and someday, one hopes, the two parties will return to a less antagonistic relationship. But that happy day will not be hastened by Democratic acquiesence. The Democrats must earn reciprocity and respect through their resistance ....

Yes, the way to the happy return to a "less antagonistic relationship" is greater antagonism. Right. Does that mean that the Republicans should do the same if the Democrats win the presidency in 2008?

If Democratic Senators properly should vote against confirmation of Republican court nominees whom they believe will move constitutional law in an improper direction, Republican Senators should properly do the same. If Democrats have the right of filibuster, Republicans have the same right. The same duty and right of "advice and consent" applies to Senators of both parties.

This approach will lead to deadlock and suggests the need for reciprocity and comity last exemplified by Republicans in the Ginsburg and Breyer nominations. The way to earn such reciprocity and commity is for Democrats to practice it beginning with John Roberts, rather than once again practicing the politics of personal destruction used against Bork and Thomas.