Thursday, September 29, 2005

The Roberts Court Debate

This really wasnt a debate about Roberts.... it was more of a debate about varies theories of Consitutitional law. All in all the debate was very entertaining and both Professors clearly knew their stuff, however, I have to tip my hat in favor of Professor Moss in terms of a "winner" but I'll concede that he won only by a small margin... McAdams's arguments were extremely well reasoned as well.

Below are some highlights:

Do we really want a principled conservative jurisprudence?—McAdams (rhetorical question)

McAdams makes a sports analogy and asserts that the “red team” submits referees that play fair and play by the rules and that the “blue team” submits referees that constantly cheat. Therefore, what I want is good old-fashioned conservative judicial activism so that the “red team” can win.--McAdams

“I disagree with McAdam’s assertion that the Democratic Party has and is always winning. I believe that the Democratic Party is currently weaker than the Whigs before the Civil War” --Moss

“McAdams would have you believe that Democrats are the only ones that want to achieve results that they were unable to achieve in the democratic process. This completely untrue, Republicans and conservatives are currently trying to achieve results that they have been unable to achieve through the Democratic process, they are trying to turn back civil rights legislation, gun [control] and environmental laws.”--Moss

“Activism” is only what you say about the other side when you don’t like what the other side is doing. -Moss

If you are an orginalist how do you defend Brown v. Board of Education?--Moss

Brown v. Board of Education is an example of failed judicial activism that engaged in a failed social experiment.—McAdams

Correction from the comments:

I never said Brown v. Board of Education was a failed social experiment. I said that busing for purposes of racial balance, which activist judges did in the late 60s and 70s, was such a failed experiment.

I made it clear that Brown was not about racial balance, but rather said that race can't be used as a basis for school assignment.

People who laud the court for promoting racial justice have to take into account the failed social experiment (busing) that judicial activism also produced.
Thank you to Dr. McAdams for pointing that out. One problem with trying to "live blog" a debate such as this one is it can be hard to keep up at times and you miss some of the details.

Since you are a defender of judicial activism how can you be opposed to conservative judicial activism?--McAdams

I think thatthere are some parts of the constitution that should be read and interpreted narrowly and some that should be read and interpreted more broadly. --Moss

The conservative position is that clauses such as the equal protection clause should be read narrowly and democrats and liberals believe that the equal protection clause should be read broadly.—Moss

You say you don’t believe in judicial activism, but you clearly advocate for a living constitution? If the constitution is a living constitution what is your objection to taking away some rights, such as the rights of terrorist suspects to fight the needs of the current tim?" ---McAdams.

The living constitution idea doesn’t say that you erase or erode rights in the constitution, but the Court must look at the facts and circumstances of the case before it and apply the constitution to those facts and circumstances, which may be different from facts and circumstances that may have come in a previous case.---Moss

McAdams asserts that 14th Amendment applies only to race. Clearly, that is not the view of the conservative court which applied the 14th Amendment to incorrectly decide Gore v. Bush in saying that the 14th Amendment applied to a republican candidate being discriminated against by having ballots counted in a certain manner.---Moss

Is a Senator violating is oath by voting against any nominee because they are unsure of or do not like the direction by which the nominee may take the court?--Moderator

The job of the Senate is to give advice and consent it is not just to examine the nominee’s record to see if they have committed sexual harassment, insider trading, or some other major legal or moral transgression. If that were the case we would not need a confirmation process. It is the job of the Senate to give advice and consent on the direction of the court.—Moss