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July 08, 2005



eh, with rehnquist it's unlikely the court can get 5 votes to limit federal power. the senate is not a functional institution. this has led to the court having to take over legislative power. rehnquist is holding onto power - like the gov't generally.

Amy Allen

As you point out, O'Connor had hired, so that may not be the best acid test.

Eh Nonymous


thanks for volleying. Consistently? What about the so-called Federalist Revolution?

Okay, that doesn't pass the smile test. You're mostly right, of course.

Also: can you imagine a federal judiciary that intentionally minimizes federal legislative and executive power in all areas, by striking down Congressional regulation as violating the Commerce Clause, which would not also strike down state action as violating the Public Use part of the takings clause? Would such a court be able to follow the precept of judicial minimalism by limiting how far it reaches? I can't get my head around it.

Either a court will actively (and perhaps appropriately) strike down unconstitutional acts wherever it sees them, or it will limit itself procedurally so as to do as little harm as possible while still doing its job. Any other possibility would produce a useless court, as opposed to just a court open to criticism.


Eh, In these times voting for either party increases federal control. Rehnquist's court also consistently favored federal control.


i think garland is far less ideological thank luttig. i hope you're referring to his recent clerk placement track record.

Eh Nonymous

Dan: I can't prove it, but I suspect that elevated Justices may do one of three things:

1) bring with them current or former clerks
2) take on the clerks to the departing Justice, all but one of whom may be suddenly clerkshipless (don't retired Justices still get one clerk, if they choose to stay on? Or is that "senior" status or something?)
3) open the cattle calls, and draft A3G or thee or me to fill the spot.

YAZPJXKM: I'd agree with you, only it's Clinton's fault that we have such a large bureaucracy. Oh, and both Presidents Bush, and Reagan, and Carter. And Congress. Got a problem? De-elect them next time.


Rehnquist has stayed a few years too long. His legacy is helping create the largest federal bureaucracy in the history of man.


What generally happens to the people that were signed up to clerk for an elevated circuit court judge? If, say, Garza is the nominee, what will happen to his clerks?

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