Toobin on CNN says that Kagan will be a Justice in the role of Powell, White and Warren. Let me dream that we find some young woman that was sexually harassed by her. Unfortunately a debate on constitutional principles went out with the Bork and Thomas hearings.
The Club has been discussing the utility and pondering possible costs or problems as we should, with two possible measures to restore the intended constitutional order. These are;
1. the repeal of the 17th Amendment
2. a political appeal from judicial fiat.
The two issues are related and therefor the solutions can be related.
Under the current system Senators are not selected by the States but by the same electorate as are Members of the House of Representatives. As was noted above by Micha Elyi to the undoubted distress of bogie wheel the Court now holds that the 14th Amendment created a doctrine of "one man one vote" that bars any differentiation between the qualifications to exercise the franchise between different houses in states with bicameral legislatures. In doing so they exercised a breathtaking reach beyond anything intended by the authors of the Amendment that is redolent of Justice Brennan's discovery of a penumbra of privacy to justify his ruling in Roe v. Wade. The result of this is that both the states and both Houses of Congress as well as the federal Judiciary are all dominated by the same constituency and are subject to manipulation by the same factional interests and passions. This is exactly the situation that the American system was designed to avoid.
Above I referred to this as "urban party politics," not so much to draw a distinction from some theoretically nobler rural yeoman model in the Jeffersonian sense as Papa Ray may have hoped, but because of the scope this has afforded to money interests and machinery whether foreign or domestic, to gain control over America. I appreciate both the city and the country and while I acknowledge the social and political problems that thrive in the cities I also cherish the many cultural and social benefits the city provides. You can not spell urbane without urban.
Restoring the selection of Senators to the States will go some distance to restoring the Constitution as intended but given the singularity of the electorate and its exposure to manipulation by concentrated interests with access to money and mass media that alone will not prevent the deformation of the system either through legislation in response to an orchestrated panic or by judicial fiat supported by media manipulation. Therefore I propose two other corrective measures;
1. specifying that the most numerous house a State's legislature must be elected using the principle of "one man one vote" but that other bodies may be established, provided that the criteria for serving as electors for those bodies does not violate standards established under the 15th and 19th Articles of Amendment to the Constitution,
2. specifying that a judge or justice may be removed by means of impeachment or by a resolution of the Senate with three fourths concurring.
The reason for not including the 26th Amendment in the list of bars on the states in determining an electorate for a second body is that there might be an argument for at least some states to experiment with such a distinction. The 3/4s for removal would set the bar higher than for confirmation, which would seem reasonable, and it also exceeds that 2/3s number needed for conviction following an impeachment by the House of Representatives. An alternative that would be less time sensitive would be to empower the States to effect a removal by having 3/4s approve a petition submitted by either body of Congress. Congress already has the power to control the courts by the power to make regulations and restrict jurisdiction as well as the power to amend the Constitution. See Article III sect.2,
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.PR, I have no special knowledge of Kagan's conduct. Her preferences are not a secret and her arrogance is on public display. Draw your own conclusions as to what a diligent investigator, if there was such a creature, might discover.
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I yield to none in the Club my carefully burnished image as an elitist snob but I also think that there are some responsibilities that accrue to both individuals and institutions that expect to extract servility from the general herd. Harvard Law School has had to put it gently a bad millennium so far. Eliot Spitzer, Barack Obama, Representative William 'Cold Cash' Jefferson, Lloyd Blankfein of Goldman Sachs, and Mary Robinson the prominent Irish antisemite have all recently performed badly on the public stage they entered based on their association with HLS and each other. Perhaps it is time to give Harvard a rest. Surely Yale has not completely closed up shop and I understand that people do run some one room school houses in other parts of the country.