Replacing Souter: What's your advice to Senator Wyden?

By Zak Johnson of Portland, Oregon. Zak is the vice chair of the Multnomah Education Service District Board and the chair of the DPO's Gun Owners Caucus.

Supreme Court Justice David Souter has announced he is retiring. The president is currently searching for a suitable replacement. The Senate will need to approve any eventual nominee. Once Al Franken is seated, the Democratic majority of 60 votes is going to mean the Republicans have little-to-no real input in deciding who the nominee will be. This puts an awesome responsibility on the Senate Democrats.

Prior to going to the full senate for a vote, nominees for Supreme Court will go before the Senate Judiciary Committee, currently chaired by Vermont Democrat Patrick Leahy. Oregon's senior senator, Ron Wyden, is also a member of this committee.

Put briefly, here are two questions for BlueOregon readers:

1) What advice should Senator Wyden offer the president in picking a good nominee?

2) What public questions should Ron Wyden ask of any nominee during committee hearings to make sure that person is fit to serve on the Supreme Court?

Comments

  • whatsuporegon (unverified)
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    Advice - Pick a female justice from a state Supreme Court who has a good record. Oh and the younger (but do not be absurd) the better.

  • Bob Baldwin (unverified)
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    Well, gender and ethnicity aside, Ted Kulongoski seems to be a perfect fit (and Lord knows I'm no fan of Teddy K).

    If Obama wants someone from "other than" the federal bench, he gets a three-fer in Ted:

    Past experience as an attorney in private practice, as well as serving in a wide variety of elected positions, which seems to be a developing criteria;

    Experience as a Justice on Oregon's Supreme Court, so his "judicial temperament" can be measured and he's get a favorable rating from the ABA; and

    Enough business support that he isn't likely to be see as a "radical liberal" by the press.

    Beyond that, it helps the D's locally, as Ted would be past the session and Brown could step in as the incumbent.

  • dddave (unverified)
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    Yeah, our Constitution is about gender and race. Good one. How about appoint someone that could reverse Souter's decision that it was in the public good to take private property and give it to mall developers? So now "public good" means any freaking thing will do and now local govts can take your property for anything. Jees, the founding fathers are barfing in their graves again. But hey, I am sure the "living doc" definition would go over good with them too. Wyden will support whomever Obama picks, period. Yunno, the same guy that thinks the Bill of Rights is about negative amendments? How the hell can you even have a discussion with someone that is that detached from what really happened in the summer of 1789? Obviously, the pick will have to be of color, gay, female, with a disdain for personal responsibility and a love for large govt and it's role in shaping society.

  • dddave (unverified)
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    Oh Bob, Holy shit you have to be joking right? THIS IS WHY YOU DEMS CANT BE TAKEN SERIOUSLY. unbelievable.

  • rw (unverified)
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    Dear Dave-with-a-stutter: the constitution indeed has been heretofore enforced with an eye to gender, ethnicity, SES.

    You got it spot on, fella.

  • Simon (unverified)
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    I'd like to see Ward Churchill on the Supreme Court...put all the 9/11 "victims" in their place and see that the Native Americans get some of their land back. Also, reparations for Native Americans.

  • Bill Bodden (unverified)
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    Once Al Franken is seated, the Democratic majority of 60 votes is going to mean the Republicans have little-to-no real input in deciding who the nominee will be. This puts an awesome responsibility on the Senate Democrats.

    The Democrats may have an official team of 60 members, but that clearly doesn't mean they will all vote the same way. As for the awesome responsibility on the Senate Democrats, that has always been there and many, sometimes all, have failed miserably. Authorization to go to war on Iraq, Patriot Act when Russ Feingold was the only senator in the entire senate to vote against it, resolutions supporting Israel's right-wing in their slaughter of Palestinians, etc.

    As for a recommendation to Senator Wyden for Souter's replacement there are most likely many good candidates from a variety of groups, but I would endorse a two-fer with a Hispanic woman. But don't listen to La Raza. They pushed for Alberto Gonzo for Attorney General.

  • Jim H (unverified)
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    1) Don't let anyone in congress (especially republicans, but dems too) influence your decision in any way, shape or form.

    2) How's your health?

  • The Libertarian Guy (unverified)
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    Find someone who has broad experience in criminal court, especially death penalty cases and avoid the corporate legal types.

  • mp97303 (unverified)
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    I would like to see the most qualified candidate selected, no matter what they look like.

  • Bill R. (unverified)
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    The entire premise of this post is flawed. Wyden doesn't get to choose the SCOTUS nominee. He simply approves or disapproves Obama's nominee. Do I think Wyden has the ear of the president on this nominee? Not hardly. I think he should support whoever the nominee is from this Democratic president.

  • meg (unverified)
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    Mayor Sam Adams. Time for the first openly gay person serve on the Supreme Court.

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    "I think he should support whoever the nominee is from this Democratic president."

    You are kidding, right? Surely Democrats can do better than fall into line for anything. The senate isn't a rubber stamp; not supposed to be anyway.

  • whatsuporegon (unverified)
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    It is one thing to be openly gay and entirely another to be openly gay and show poor judgment. I vote NO!

  • truffula (unverified)
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    most qualified candidate

    Isn't the point of the question to find out what readers think constitutes "most qualified?" Seems to me this means different things to different people.

  • Perpugillium Brown (unverified)
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    I wondered when I read it how quickly the carefully worded language about qualifications would degenerate into a list of names. Then the 'for yuks' names. Same old.

    I say that none of the usual backgrounder variables really apply. Only one question is salient. "What do you think of xyz position, taken by the current court? Wonderful. Refreshing. Given that you will be outnumbered, what will be your 'strategy'"?

    Every thing else can be traced to "we got one" motivation, so maybe the Sam sug. was a cunningly subtly point. Naaah.

  • mp97303 (unverified)
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    Seems to me this means different things to different people.

    And therein lies the problem.

  • Bill R. (unverified)
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    @ Jamais Vu

    In the real world the president chooses the nominee and the senate gives an up or down vote. The senators of the presidents party never vote down a candidate, it's a mortal wound to the entire party. Worst case scenario, the senators would ask the president to ask the candidate to withdraw the nomination prior to any vote. But rarely happens. So,yes, the senators of the president's party are a rubber stamp if it comes to actually voting. Such an event would cause serious damage to both president and the senators of the same party.

  • BOHICA (unverified)
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    Used to be the President picked the nominee, the committee voted without questioning the nominee and then the Senate voted.

    If I had one question it would be; what is the nominee's position on "Corporate Personhood"?

  • Joe Hill (unverified)
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    Bohica . . . kudos to you for picking THE key question. There is no more important litmus test for a nominee than this: is the nominee willing to begin the reversal of the tsunami of corporate power.

    I don't see anything in Obama's temperament or current strategy that indicates that he is willing to take this on. Quite the contrary.

    Personally, I'd love to see Lani Guinier. It would have been easier if that noted progressive Bill Clinton wouldn't have bailed on her the first go-round. But . . . that's another story.

    I suppose we'll settle for a Democratic version of Stephen Breyer, more or less, when what we need is the reincarnation, in whatever gender and ethnicity, of William O. Douglas.

    It is hard to remain hopeful. Today . . . remember Kent State.

  • J Loewen (unverified)
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    Having 60 Democrats is very deceiving. Not a Ds think or act alike

  • Joe Hill (unverified)
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    Sorry, of course I realize Breyer was picked by the Demos, I meant a female version of a Breyer-type . . . someone who is not likely to offend banks, business, military, the C. Wright Mills power elite.

    I, for one, welcome our new Democratic addition to our corporate overlords!

  • Rob (unverified)
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    The opposite of Supreme Court Inc.

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    How about Ted Kulongoski?

  • Chung-Su (unverified)
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    1) Advise: Someone from a State Judicial System who has actually been in a courtroom and litigated cases, preferably a female. No idealogues or law professors who have only practiced for 5 years or less.

    2)Question to ask candidate: Is it important that the SCOTUS set clear guidance to lower courts by their decisions. My [least] favorite quote is Scalia's in the Crawford opinion where he says that the Court leaves for another day what testimonial evidence means...Wow that's helpful! thanks Anton.

  • BBax (unverified)
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    1) Do not waste time feigning bi-partisanship. Pick someone with clear liberal credentials.

    2) Any questions pertaining to the Consititution and the Bill of Rights should suffice.

  • backbeat (unverified)
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    The next four nominees should be women, period. We went 200 years without representation on the court. I'll be in the streets if the next two aren't women.

  • backbeat (unverified)
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    If I had one question it would be; what is the nominee's position on "Corporate Personhood"?

    Great one

    Bottom line though, I may get myself arrested if the next 2 aren't women.

  • Not a Little Farmer (unverified)
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    There's a quirk in the Senate rules that requires one member of the minority to carry the nomination forward. Specter was the ranking member of the commmittee and his departure weakens the minority position by one vote. The remaining members of the committee are unlikely to do anything to assist Obama to put anyone too far left on the Court.

    I think Hatch now becomes the ranking minority member with Lindsey Graham the most likely to be turned.

    Look to what's palatable to Graham and there's your selection.

  • (Show?)

    I would like to see the most qualified candidate selected, no matter what they look like.

    I have no idea what "most qualified" even means. There are probably a couple hundred people who, under any reasonable set of criteria, would be extremely highly qualified.

    Certainly those criteria should include judicial temperament and legal scholarship - but they should also include life experiences.

    But even more importantly, I actually don't think that the question is "Which individual is better than all the other individuals?" I think the real question is, "Which individual would most improve the quality of the court?"

    If your long or short list of "most qualified" people includes a bunch of white male Harvard/Yale federal appeals court judges born into wealth and educated in New England prep schools, and one person who attended public school, grew up outside the Boston/NY/DC corridor, attended college and law school somewhere other than Harvard or Yale, and did something in their lives outside the judicial monastery, and happens to be non-white and/or non-male, well, that sounds pretty good to me.

    Yes, the Supreme Court should judge cases based on the law and the constitution. But having a set of people on the court with a rich set of background and experiences can only help.

    (And please, my right-wing friends, don't assume that all this is code for "liberal." After all, the justice who meets the most of my criteria above is Clarence Thomas.)

  • backbeat (unverified)
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    Adding to Kari's comment....how about somebody from the West Coast?

  • Bill Bodden (unverified)
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    Yes, the Supreme Court should judge cases based on the law and the constitution.

    But they all too often judge according to how their personal biases cause them to interpret the Constitution. That helps to explain why unanimous decisions are rare and split decisions are more common.

  • Robert Harris (unverified)
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    Advice: An intelligent, hard working trial attorney or trial judge can, over time, learn and grasp constitutional concepts, even if s/he hasn't spent a lifetime teaching law students constitutional law. But a lawyer who's spent their life in acadamia or representing large entities (corporations or institutions) simply can't "learn" from the Supreme Court bench what its like to represent real people with problems who face unfair odds with inadequate resources in institutions that sometimes don't have time or the inclination to care.

    The one question: Name five cases where you represented a real live person who were not given justice in our courts, and what did you do about it.

  • mp97303 (unverified)
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    I have no idea what "most qualified" even means.

    I would say that reflects poorly on your USC education.

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    OK, mp, what does "most qualified" mean to you?

  • Jeff (unverified)
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    Little Farmer nailed it with the rules dilemma. Best that Wyden can do for this appointment is be pragmatic -- find out what he can do for Graham.

    The next appointment(s) will matter a lot more.

  • Jeff (unverified)
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    How about somebody from the West Coast?

    The only "west" the White House will consider for this pick is the west side of Chicago.

  • (Show?)

    THE central question is not "personhood," although that is an essential question to ask. THE central question -- and one that is ripe right now -- is whether the unitary theory of the presidency is valid: (1) Does the president have the power or authority to violate the law? (2) Are signing statements equivalent to law?

    The Supreme Court follows the election returns, although it is a lagging indicator of the popular will. The choice of a new justice is therefore an intensely political question. By the time the Souter vacancy actually comes about, the Senate will have 60 more or less Democrats and the ranking member of Judiciary will be Jeff Sessions -- one of the most ignorant, backward, racist morons in the Senate -- so there will be no votes from Republicans for an Obama choice.

    Thus, President Obama will have to satisfy at least 60 members of the Senate. The next nominee will have to be a woman. Ideally that woman will be either black or hispanic. In any case, the nominee must be smart and relatively young. And the nominee ought to be a constitutional scholar -- it's time for a professor of constitutional law!

  • Bill Bodden (unverified)
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    Advice: An intelligent, hard working trial attorney or trial judge can, over time, learn and grasp constitutional concepts, even if s/he hasn't spent a lifetime teaching law students constitutional law.

    and

    And the nominee ought to be a constitutional scholar -- it's time for a professor of constitutional law!

    I read recently about some guy who was a student of constitutional law and taught if for a while but got into politics and ignored the Constitution when it was politically expedient to do so.

  • Scott in Damascus (unverified)
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    "...with a disdain for personal responsibility and a love for large govt and it's role in shaping society."

    Why would anyone advocate for another right-wing corporatist like Roberts?

  • Bill Bodden (unverified)
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    I would recommend a committee be formed with Michael Rattner of the Center for Constitutional Rights and Bruce Fein, one of this nation's leading authorities on the Constitution with the courage to live up to it, as co-chairs of the committee, but that would be pointless. Obama has most likely already picked his nominee to pay off a marker he owed to some group

  • (Show?)

    Thanks for the great feedback. My personal advice, if anyone asked, would be to ask about the primacy of stare decisis and precedent in the nominee's thinking.

    The stability of government, and to some degree of society, is enhanced by stability in law, stability that makes law seem less than the arbitrary whims of nine individuals. Only in truly egregious rulings, e.g. Plessy vs. Ferguson, should later courts be willing to do a wholesale overthrown of existing precedent. Roe vs. Wade, Heller vs. D.C., Kyollo vs. United States and many other distant and recent cases where decided on narrow margins, but decided nonetheless.

    I would like a justice who will recognize the intelligence and judgment of his or her predecessors on the court, and in that sense be suitably restrained in drastic revisions of existing decisions.

  • Unrepentant Liberal (unverified)
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    Dear Senator Wyden It doesn't matter who President Obama will choose, the republicans have already described this yet undetermined person as "too radical, liberal and beyond the mainstream of society."

    So, whoever the President nominates, don't even worry for a second about trying to please the republicans; pick somebody qualified and just ram the nominee right down their throat. Just give them a glimpse of that iron fist you keep inside of that velvet glove and let them regain consciousness later.

    America is simply tired of those fools.

  • Admiral Naismith (unverified)
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    Advise Obama to pick the judge most calculated to make the Republicans scream. Preferably someone young enough to continue to make them scream for many, many decades.

    Because a long, slow death is all that the GOP deserves.

    I know, I know, they'll scream no matter what Obama does. But I want to hear genuine agony, not just automatic talking points, or even worse, the "Please don't throw me in the Breyer patch" crocodile tears. Unless at least three Fox "news" pundits are hospitalized with heart trouble, Obama will have sold out to the pragmatists!

  • andy (unverified)
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    Richard Posner is probably the most qualified candidate for a Supreme Court appointment. But his paper trail is huge. Obama likes Posner but I'm sure his name won't even be in the running due to the paper trail. Also, Posner is 70 years old so he might not be interested. It would be the proper finish to his career though as one of the most highly regarded judges in the country.

  • mp97303 (unverified)
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    "most qualified" = people whose progress is based on ability and talent rather than on class, privilege, wealth, race, or gender.

    It would be easiest to give a real world example of how I hire employees: My applications have 3 pages. Page 1 is the personal information and pages 2-3 are education, work experience and other related skills. Page 1 is removed from each app as it comes in. Pages 2-3 are placed in a folder for review.

    Each "blind" app is then reviewed and ranked on the basis of the qualifications of the job they are applying for. Then #1 gets matched up with page 1 and the applicant is contacted for an interview. Simple. Race, gender and other meaningless factors never play a part in the selection process.

  • (Show?)

    MP, you keep answering each question with the question itself.

    Each "blind" app is then reviewed and ranked on the basis of the qualifications of the job they are applying for.

    OK, so what are the qualifications for a Supreme Court Justice?

  • joel dan walls (unverified)
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    Left-handed anarcho-feminist Jewish Hispanic lesbian of color.

  • Bill Bodden (unverified)
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    Obama has most likely already picked his nominee to pay off a marker he owed to some group

    And he probably has people working on a replacement for Justice Ginsberg - if he hasn't already decided on that choice.

  • (Show?)

    Zak wrote: "My personal advice,... would be to ask about the primacy of stare decisis and precedent in the nominee's thinking.

    Stare decisis is just fine when the original decision was right and not when not. The Supreme Court can, should, and does second guess. But the question is not going to be asked of a replacement for Souter, nor should it, because it would be wholly pointless and possibly even dangerous, considering that we will be replacing a liberal with a more liberal.

  • Chuck Butcher (unverified)
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    I would be quite interested to know the person's views on the limitations placed on government and officials.

  • Chuck Butcher (unverified)
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    I addition but in the spirit of my previous, I'd like to know that person's view on "wiggle" words like "unreasonable."

  • Bob Tiernan (unverified)
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    Bohica:

    If I had one question it would be; what is the nominee's position on "Corporate Personhood"?

    Bob T:

    You mean like, call them persons so we can tax them, but non-persons on everything else?

    Bob Tiernan Portland

  • Bob Tiernan (unverified)
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    Zak Johnson:

    Only in truly egregious rulings, e.g. Plessy vs. Ferguson, should later courts be willing to do a wholesale overthrown of existing precedent.

    Bob T:

    Well, no. Egregious or not, if an existing interpretation was incorrect, it should be overturned.

    Zak Johnson:

    Roe vs. Wade, Heller vs. D.C., Kyollo vs. United States and many other distant and recent cases where decided on narrow margins, but decided nonetheless.

    Bob T:

    1) You left out Kelo v. New London in which we needed one more Thomas or Scalia. It was the culmination of decades of watering down private property rights by progressives until it backfired with this ruling (as Alec Guinness said in Bridge Over the River Kwai, "What have I done?"). It was Scalia, Thomas, Rehnquist and O'Connor who had a real problem with the idea that corporations and government could team up and boot old ladies out of their homes for a corporate HQ building under the guise of "public use". And their view was also based on the actual wording of the 5th.

    2) Re: Kyollo, I've yet to see praise for Scalia's reasoning. As opposed to that of Stevens, for example.

    Bob Tiernan Portland

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    Kelo v. New London is particularly relevant to Souter's departure since his neighbors tried to use the ruling to condemn his own house!

    I agree with the minority on this, however, the ruling did leave it open to states to pass their own laws restricting the practice, which should have pleased a lot of state's rights activists.

  • anon (unverified)
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    As a Dem activist in this state for years, I say you all have got to be kidding to recommend our Gov. He travels overseas to court industry that could be developed here in Oregon. He has been pretty weak. There are brilliant women and its time for the court to stop looking like a bunch of white men. You guys are great, but you don't know everything, and life experience counts.

  • Bob Tiernan (unverified)
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    Zak Johnson:

    Kelo v. New London is particularly relevant to Souter's departure since his neighbors tried to use the ruling to condemn his own house!

    Bob T:

    And that was a stupid idea because those who wanted it to happen to him were the people who supposedly were opposed to that abuse of power.

    Zak Johnson:

    I agree with the minority on this, however, the ruling did leave it open to states to pass their own laws restricting the practice, which should have pleased a lot of state's rights activists.

    Bob T:

    Oh, big deal. That could have been done long ago and wasn't prohibited. This was about national protections, such as that we all recognize in amendments such as the First. And the USSC drove the final nail in that coffin (that is, except the four big, bad "conservatives"). The USSC seemed to think that "due process" was the only part that states and local government could not be trusted to define, but sorry, the words "public use" weren't meant to be left to the states and localities, nor was the definition of what a taking is. But then, what else would anyone expect after decades of watering down private property rights. This has nothing at all to do with the Kelo decision "allowing" states to offer more protections. The basic protection we thought covered everyone in the 5th turned out to be zero (by those who can't read).

    Bob Tiernan Portland

  • (Show?)

    OK, Bob. Since you and I are apparently the only ones still reading this thread, what would you like Senator Wyden to ask about Kelo or other relevant topics concerning judicial philosophy?

  • Bob Tiernan (unverified)
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    Zak Johnson:

    OK, Bob. Since you and I are apparently the only ones still reading this thread, what would you like Senator Wyden to ask about Kelo or other relevant topics concerning judicial philosophy?

    Bob T:

    I don't know if it's worth asking anything at all. Sounds like shopping for rulings, and justices are too unpredictable anyway.

    Bob Tiernan Portland

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