On PBS NewsHour yesterday:
DAVID AXELROD: Judge Sotomayor has just a spectacular story. You know, I think no one in our memory has had the credentials that she brings to the court. ... [she] has a great personal story. Raised in the South Bronx, her father died when she was young. Her mother was a nurse, raised her.
No offense to Judge Sotomayor, but her personal story is no greater than mine or anyone else's. I know America has a long history of giving extra credit to people who were poor or "disadvantaged" in some way, but it's utter nonsense, and certainly no serious qualification for the Supreme Court of the United States. But Axelrod was just getting started with the crazy (I help him out with the words in brackets, because he apparently has trouble remembering what Sotomayor actually said):
JUDY WOODRUFF: Some conservatives ... are citing a statement she made in, I guess, 2005 where she said Federal Circuit Courts of Appeal are, quote, "where policy is made." How is that going to be explained?
DAVID AXELROD: Well, I think it doesn't need to be explained if anybody reads her broader comments from that event at Duke. ... she was explaining the difference between the District Court and the Appeals Court. And what she said was the Appeals Court is where [ed: policy is made] uh, where where [ed: policy is made] legal theory, essentially, where [ed: policy is made] these uh these [ed: policies are made] more um [ed: policy is made] involved constitutional issues go, whereas the trial court, where she also served, was [ed: not where policy is made] ...
And continuing:
JUDY WOODRUFF: There was another comment that I'm already reading conservatives pointing to. Quote, she said, I guess, in 2002, "A wise Latina woman with a richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life when each is acting as a judge."
DAVID AXELROD: Well, I think what she's saying is that you are [ed: more likely to reach a better conclusion if you're a wise Latina than a white male] -- that you bring to the court not just your legal experience, which in her case is vast, but your personal experience and your life experience.
Just as Obama's favorite Supreme Court justices, like Stephen Breyer, explicitly ignore the Constitution for some "broader" purpose, Axelrod ignores what Sotomayor actually said to look at her "broader" meaning.
Cross-posted on <pudge/*>.
Posted by pudge at May 27, 2009 01:17 PM | Email ThisThey will do the usual dog and pony show, but there's no way Republicans will be able to block her.
Posted by: Palouse on May 27, 2009 01:46 PMNot to mention that 5 of 6 of her lower court rulings were overturned by the Supreme Court.
I guess they didn't take her experience into account.
While they should not give Sotomayor a free ride, they should do as the GOP said should be done during the Bush years. Vet the nominee, and then give them an up or down vote.
This is the constitutional role of the Senate and to do otherwise makes the GOP look like hypocrites.
Posted by: deadwood on May 27, 2009 02:02 PMI might add 'nor worse'. Axelrod was just trying to do his job. IMO, she will breeze (relatively speaking) through this process.
Posted by: PIFan on May 27, 2009 02:28 PMTwo words:
ROBERT BORK
We have the power to destroy this nomination. Robert Bork was a superior judge with superior qualifications, perhaps better qualified than anyone who had approached the Supreme Court in history. Yet he was destroyed by lies and vicious smears.
We have the truth on our side. Sotomayor is incompetent. She is not judicial. She is the last thing this country needs on the bench. We can destroy her with her own words and her own philosophy, no lies or smears needed.
We simply need to tell the American people what Sotomayor's America is going to look like, and she will not be confirmed.
Posted by: Jonathan Gardner on May 27, 2009 02:34 PMPerhaps. I've always said, though, that while I oppose the routine filibustering of nominees, and while I generally despise the filibuster as a means to prevent Senate action, because it exists as a tool, I might make use of it.
So if -- big if, I am keeping an open mind here -- I became convinced she would follow Breyer and others who deny the primacy of law over "emanations" and "penumbras," then I might filibuster.
This is the constitutional role of the Senate and to do otherwise makes the GOP look like hypocrites.
That is the case the majority of the Senate GOP made, yes. And for those who did that, yes, it would make them look like hypocrites. However, I was against the "nuclear option" and in favor of the Gang of 14 and I agree with them that the filibuster should only be used for extreme nominees, and if I think she is one of those, I would consider a filibuster.
One must be careful to not accuse the entire GOP of hypocrisy if they filibuster ... only those who actually are.
Of course.
Axelrod was just trying to do his job.
Which says something bad about his skills, or the case he was handed to make.
IMO, she will breeze (relatively speaking) through this process.
I hope not. I am unconvinced she will be a decent justice, and she should get hard and serious testing.
Posted by: pudge on May 27, 2009 02:41 PMA reliable liberal has started: Jonathan Turley, professor of law at George Washington University and regular "expert" appearing on "all the major networks." He finds Sotomayer rather ordinary. He wants a liberal star who can go toe-to-toe with Scalia and Roberts; she doesn't look able to.
http://media.nationalreview.com/post/?q=ZGM5OTQzNGIzMzU2OTNjNjFkZmE4YTc0ODE1Y2RlYzg=
What about "should not give Sotomayor a free ride" implies rolling over?
Revenge anyone? Is that what the GOP stands for?
If we don't practice what we preach, conservatives are no better than liberals.
Posted by: deadwood on May 27, 2009 02:43 PMBtw what's the Latino component of the population in AZ and TX up to now?
Posted by: Visitor on May 27, 2009 02:43 PMThe real conservatives should have no issue voting against her though, mainly because she's liberal. The fact that Alito was conservative was enough for plenty of Democrats to vote against him.
Posted by: Palouse on May 27, 2009 02:47 PMThe bold part is a straw man.
Why is an interesting success story "utter nonsense"? Our justices and our leaders have stories that our worth hearing about.
--
What are you doing with Alexrod's quotes? "Helping"? All of these [ed's] are completely unacceptable ways of stating your opinion. If you have an opinion, pudge, state it outside of Alexrod's quotation. A quote is a direct quotation. You do not paraphrase, or edit, or editorialize within quotation marks. It's misleading.
This is what Alexrod said: And what she said was the Appeals Court is where legal theory, essentially, where these more involved constitutional issues go, whereas the trial court, where she also served, was mostly about evidence.
Axelrod was clarifying Sotomayor's statement. It's dishonest to re-insert her misstatement into Axelrod's quote. And of course, you happen to omit the next two sentences:
And she corrected herself right away. She was very clear about the context in which she offered that comment.
Where is that context in this blog post? It is not there -- surprising. I will provide it:
SOTOMAYOR: The saw is that if you're going into academia, you're going to teach, or as Judge Lucero just said, public interest law, all of the legal defense funds out there, they're looking for people with court of appeals experience, because it is -- court of appeals is where policy is made. And I know -- and I know this is on tape and I should never say that because we don't make law, I know. OK, I know. I'm not promoting it, and I'm not advocating it, I'm -- you know. OK. Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating -- its interpretation, its application. And Judge Lucero is right. I often explain to people, when you're on the district court, you're looking to do justice in the individual case. So you are looking much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control. On the court of appeals, you are looking to how the law is developing, so that it will then be applied to a broad class of cases. And so you're always thinking about the ramifications of this ruling on the next step in the development of the law. You can make a choice and say, "I don't care about the next step," and sometimes we do. Or sometimes we say, "We'll worry about that when we get to it" -- look at what the Supreme Court just did. But the point is that that's the differences -- the practical differences in the two experiences are the district court is controlled chaos and not so controlled most of the time. (src)
I think it is obvious from that quote that she is saying the court of appeals looks less at individual justice and more at the broad application of the law, compared to a district court. I find absolutely nothing controversial about that statement. When she said "policy," she should have said "case law." Case law is not developed in district court; would you disagree?
--
Your second quote of Axelrod also had gratuitous use of editorialization within quotes. This is the actual quote:
DAVID AXELROD: Well, I think what she's saying is that you are -- that you bring to the court not just your legal experience, which in her case is vast, but your personal experience and your life experience. And hers certainly is the great American story. And one hopes that she brings the wisdom accumulated through all of those experiences to the bench.
No one in that quote appears the assertion that she is "more likely to reach a better conclusion if you're a wise Latina than a white male."
In fact, that quote that Woodruff asked is given out of context. It is absurd to say that a Latina will always decide better than a white male. But on cases of race or gender discrimination -- which is what Sotomayor was discussing -- having a broad set of viewpoints is valuable for our society. That set should include racial, regional, and gender diversity so that ruling from the high court are considered as legitimate as possible. How would the reaction of Brown v. Board been if all the justices were from New England?
Here's her full quote:
In our private conversations, Judge [Miriam] Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice [Ruth Bader] Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.
Let us not forget that wise men like Oliver Wendell Holmes and Justice [Benjamin] Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. (src)
That full quote reads much different than a poorly-worded sentence given out of context. Whether you agree with her conclusions or not, she was not saying wise Latinas will always reach better decisions than white men.
Obama will not lose this battle -- it's probably not worth the GOP fighting. She is not hard-left and she will likely not assume a strong role like Scalia. If Sotomayor gets rejected, Obama will simply be able to nominate someone else. Is anyone on the right disappointed with Alito?
If the GOP is going to argue that she's racist or that her story is "utter nonsense," then please do so at full steam ahead. Though it is sad to witness intellectual dishonest among fellow Americans, it is a great way to ensure that Hispanics will revile the GOP for years. :)
Posted by: John Jensen on May 27, 2009 02:47 PMSo, do you think she is an extreme nominee?
It's a tough sell. None of your qualms with her or Alexrod presented in the OP have had anything to do with her judicial competence or interpretation of constitutional law. I am unconvinced we can determine judicial temperament by a few out-of-context quotes. I look forward to your analysis of her confirmation hearings, but hope they focus on analysis of constitutional philosophy and not race, stories, or slight misstatements. I hope that because I think you'd bring great insight to that discussion :)
Posted by: John Jensen on May 27, 2009 02:57 PMSecond, I would hope that a wise Caucasian male with the richness of his experiences would more often than not reach a better conclusion than an Hispanic female who hasn't lived that life.
.... the Left would be screaming racist at the top of their lungs. And they would be correct.
Posted by: jimg on May 27, 2009 02:57 PMThis is what she meant, given the context above: I would hope that a wise Latina with the richness of his experiences would more often than not reach a better conclusion on cases of race and gender discrimination than an white male who hasn't lived that life.
You can disagree with this conclusion, but it is hardly racist dogma. That sentence in isolation sounds bad, and it was poorly worded. But in context, she is not being racist nor sexist; she is articulating a viewpoint that one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. I agree with her.
Posted by: John Jensen on May 27, 2009 03:06 PMYou can disagree with Sotomayor's sentiment, but to think she's a racist is truly fooling yourself. Moreover, I am not convinced that having a few poorly worded sentences in public life reflects an ability to be a diligent, fair, and intelligent jurist.
Posted by: John Jensen on May 27, 2009 03:10 PMWhat does this even mean? Find in favor of minorities regardless of the law? No thanks. Clarence Thomas is a person of color who actually understands the role of judiciary is not to create policy.
Posted by: Palouse on May 27, 2009 03:16 PMI was not aware that white males talked in a certain way.
This is what she meant, given the context above: I would hope that a wise Latina with the richness of his experiences would more often than not reach a better conclusion on cases of race and gender discrimination than an white male who hasn't lived that life.
It doesn't read that way to me.
But even that is what she meant -- which seems unlikely -- it's still a load of crap.
she is articulating a viewpoint that one must accept the proposition that a difference there will be by the presence of women and people of color on the bench
Yes, and this viewpoint is based on the notion that women and men, and people of different races, approach THE LAW differently. Either that, or they ignore the law and rule based on their feelings. The former is crap, and the latter is, of course, judicial activism.
Further, I would like to say that I was not spinning anything. I provided full quotes of every person I quoted, completely unedited. This is a privilege that wasn't given to either Alexrod or Sotomayor in the OP.
Pull the other one. I linked to the full and complete Axelrod interview. You're not fooling anyone.
And I was not commenting on Sotomayor, so I didn't link to her words in question in the post, as I had no reason to.
Moreover, I am not convinced that having a few poorly worded sentences in public life reflects an ability to be a diligent, fair, and intelligent jurist.
Again, I was commenting only on Axelrod, not Sotomayor. However, in regards to her quotes: it is quite clear she was articulating the view that AT LEAST in certain types of cases -- though to me, in full context, I think she is saying it is in ALL cases -- she is more likely than not to come to a better conclusion because of her race and gender. And even if it is only certain cases, I say that's a load of crap. This was not poorly worded: you even assert this is her actual meaning.
"Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging."
ALITO: I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up.
And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.
But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.
And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.
And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.
But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."
When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.
And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.
So those are some of the experiences that have shaped me as a person.
--
So I guess that in the minds of you right-wingers, it's OK when your fellow right-winger Alito says something like that, but it's not OK for Sotomayor to say it.
I don't know who you lot think you are fooling.
And to Jonathan Gardner: You lot don't have the power to defeat this nomination, and if we can help it, you never will again. You are impotent. You are eunuchs.
Posted by: ivan on May 27, 2009 03:28 PM"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
-
What "physiological difference" would cause one to judge this amendment in a certain way, or read it any differently than what it says?
This thinking is ironic because Sotomayer uses this premise to create a new class of victims, namely the firefighters in CT who she ensured were denied promotions simply because their racial status and test scores didn't correctly match what the local government thought it should be.
That's why all this talk of empathy bothers me. In any court case, one side wins and the other side loses. Showing any special empathy toward one side inherently demands a callousness toward the other.
I think it's pretty clear that Sotomayer will, more often than not, side with people who are like her (women and minorities). Protecting the interests of your own kind is not empathy. It's tribalism. And it's exactly what the left claims to hate about white males.
Posted by: AD on May 27, 2009 03:34 PMUm. "Something like that"? Where they are obviously substantively DIFFERENT things?
Alito did not say he will reach a better conclusion because he is the son of immigrants, than justices who are not. Alito did not say "something like" Sotomayor did.
Weak effort, ivan.
But Alito says:
It's not my job to change the law or to bend the law to achieve any result.
while Sotomayor says:
A wise Latina woman with a richness of her experiences would more often than not reach a better conclusion than a white male
A better conclusion. Again, what does that mean? Achieve the desired result? I'm pretty interested in hearing some answers about that from her.
Posted by: Palouse on May 27, 2009 03:39 PMWhat does the link mean?
I provided the full quote and the clear context was a discussion on civil rights (sex/gender cases). All of the cases she mentioned were in that category, and the beginning of her statement made it clear that it was the genre of cases she was discussing.
Yes, and this viewpoint is based on the notion that women and men, and people of different races, approach THE LAW differently. Either that, or they ignore the law and rule based on their feelings. The former is crap, and the latter is, of course, judicial activism.
I believe she addressed this sentiment in her post. It also isn't about how the Court rules, but what it rules on. The larger process of deciding which cases to accept is hardly informed by strict diligence of constitutionality or rule of law -- it is typically what interests justices or what the Court feels it needs to clarify.
If she were to rule solely on her sex and race then she would be disqualified, but that is not the case.
Judiical activism means a lack of deference to the elected branches. Restraint means deference to the elected branches. As George F Will explained this week on This Week:
Now conservatives are saying we don't want activist judges, we want judges who will defer to the political branches of government. The problem is the worst case since Dred Scott arguably was deferring to Franklin Roosevelt as a wartime leader in interning 110,000 Japanese-American citizens. The case that offends most conservatives recently came out of New London, Connecticut, wherein the democratically elected City Council using its eminent domain power took property away from people, gave it to businesses because they would pay higher taxes and that was deference again. What the conservatives really wanted in both cases was more activism.I hope we can stop misusing the term.
I linked to the full and complete Axelrod interview. You're not fooling anyone.
You did not provide direct and unedited quotes.
It is quite clear she was articulating the view that AT LEAST in certain types of cases -- though to me, in full context, I think she is saying it is in ALL cases -- she is more likely than not to come to a better conclusion because of her race and gender. And even if it is only certain cases, I say that's a load of crap.
I disagree with you. I think in cases of gender or racial discrimination, a justice's history and experience is helpful to determine the facts of the case. You are implying that each justice is always provided and receptive to the same set of facts, or that the same argument will illicit the same response in every justice. That of course isn't true -- justices are human beings.
Affirmative action is not unconstitutional under the 14th amendment, according to the Court, within reasonable limits. Those limits are determined by case law and by the justices themselves -- they are not ingrained in clear text in the Constitution. In that sense, discrimination cases require judgment and not just deference. I see no ill with having that judgment be informed by the human experience; in fact, I find the opposite to be literally impossible as long as a human being is doing the judging.
Posted by: John Jensen on May 27, 2009 03:41 PMBambi does NOTHING without having plotted 3 steps in advance of his polling results. His polls say woo women, woo Latino's and that Roberts and Alito are effective and well thought of.
Unfortunately, in bringing Sotomayor he is not bringing a brilliant legal mind in the caliber of Robers or Alito OR Scalia or Thomas and certainly not Bork ...eh, (shrug) for Bambi's purposes 3 out of 4 ain't bad.
She'll be confirmed but for Bambi and the koolaids it's a zero sum game: a lightweight liberal judicial activist to replace a lightweight liberal judicial activist.
Posted by: Ragnar Danneskjold on May 27, 2009 03:53 PMSotomayor's comment is one of the things that must be raised in the confirmation hearings. If she rally meant what the words say she meant, it will be interesting to hear her response.
Will she say it was no differnt from Alito's comment? Or will we all get a 21st century version of a Sista Solja moment?
Posted by: deadwood on May 27, 2009 03:54 PMYou make an interesting point, but there is simply more to it than that. Sotomayor and the courts are ruling on two provisions of Title VII that could conflit, and not who's skin is what color.
By the way, one of the firefighters who is suing the city is Hispanic.
Posted by: John Jensen on May 27, 2009 03:59 PMThat's bullshit. She's had three rulings in which she was in the majority overturned by the SCOTUS. Three.
Posted by: John Jensen on May 27, 2009 04:03 PMTell it to the Washington Times, John.
http://washingtontimes.com/news/2009/may/27/60-reversal-of-sotomayor-rulings-gives-fodder-to-f/
Three of the five majority opinions written by Judge Sotomayor for the 2nd Circuit Court of Appeals and reviewed by the Supreme Court were reversed, providing a potent line of attack raised by opponents Tuesday after President Obama announced he will nominate the 54-year-old Hispanic woman to the high court... ~ Washington Times
3 out of 5 is 60% last time I checked.
No, it is not. It was, according to Axelrod a major reason why she was selected. He said so several times. Either you didn't read or hear the interview, or you don't know what a straw man is. Axelrod was asked why he picked Sotomayor, and Axelrod said, "he set out to fulfill the three principles that I laid out earlier. And Judge Sotomayor has just a spectacular story." This was a reason she was chosen. It is not a straw man for me to say it is a poor reason.
All of these [ed's] are completely unacceptable ways of stating your opinion.
Utterly false. Please stop just making things up. It is perfectly acceptable.
It's misleading.
Only if the reader is a moron. Not only did I use the universally accepted method for inserting the editor's words, but I also explicitly stated that I would be doing so. I will not respond further to your idiotic complaint.
Axelrod was clarifying Sotomayor's statement.
He was attempting to reframe her words such that it sounded like she was saying something she WAS NOT saying. In FACT, you disagree with his "clarification" on the Latina remark, where you say she was saying that a wise Latina would come to a better conclusion on certain issues, and Axelrod was saying she was just remarking that she brings her life experiences to the court.
her misstatement
It was not a misstatement. She did not "correct" herself at all. She clarified, but did not "correct." Not only did she give no implication what she said was incorrect, but she went on to explain that she did not endorse or promote it, implying that it WAS correct.
And of course, you happen to omit the next two sentences
Being irrelevant to my point, yes I did.
I think it is obvious from that quote that she is saying the court of appeals looks less at individual justice and more at the broad application of the law, compared to a district court.
I think it is obvious that she is ALSO saying that the Court of Appeals makes policy. And this is obviously controversial.
[Nowhere in Axelrod's] quote appears the assertion that she is "more likely to reach a better conclusion if you're a wise Latina than a white male."
Yes, exactly right. That's the point!
Obama will not lose this battle
We'll see.
it's probably not worth the GOP fighting
It's always worth fighting for what you believe in, if you can make a difference ... even if you'll lose.
She is not hard-left
I am reserving judgment, but I don't see how you can make that assertion with any confidence.
If Sotomayor gets rejected, Obama will simply be able to nominate someone else.
If she is rejected because she is an extremist or activist, then maybe Obama will learn his lesson and pick someone who is neither.
If the GOP is going to argue ... that her story is "utter nonsense"
No one did that. Please do not lie.
the clear context was a discussion on civil rights (sex/gender cases)
No, because the quote (which was presented as being presumptively from O'Connor) that she was directly referring to was NOT about sex/gender issues.
It also isn't about how the Court rules, but what it rules on.
Not in this specific context, no. She was talking about what "will make a difference in our judging." Not in their case selection.
Judiical activism means a lack of deference to the elected branches.
No, it doesn't. Judicial activism is the judge putting his own opinion ahead of the law. This often takes the form of not giving proper Constitutional deference to one of the other branches, but it can also be in not striking DOWN an unconstitutional act, if that refusal to strike down is done out of agreement with the act.
For example, consider Congress passes a law that says the President must not nominate anyone for any position without the Senate voting to pick the person to be nominated, first. This is clearly unconstitutional. If the Court upholds it, not because they view it as nonjusticable, but because they agree that this is how things should be ... that is clear judicial activism.
Kelo v. New London is a great example of judicial activism. Yes, they deferred to the local government, but they did so because they agreed with the city of New London that private use == public use if there is some remote public benefit, which is a completely wrongheaded interpretation of the Constitution. Saying, "no, the Constitution says you cannot do that" is not activism, it's their job.
It's inane to say that the Court doing its job is being "activist."
I don't say this often, but it's happened: George Will is wrong. And I could probably convince him of that, given the chance.
I hope we can stop misusing the term.
Me too.
You did not provide direct and unedited quotes.
Please do not lie. I provided the complete unedited interview.
I disagree with you. I think in cases of gender or racial discrimination, a justice's history and experience is helpful to determine the facts of the case.
That does not disagree with anything I said.
You are implying that each justice is always provided and receptive to the same set of facts
I am not.
or that the same argument will illicit the same response in every justice
I am not.
Sotomayor did not say her views would merely be DIFFERENT. She said they would produce BETTER RESULTS. Of course everyone's different. But asserting her differences make her better is idiotic.
Affirmative action is not unconstitutional under the 14th amendment, according to the Court, within reasonable limits.
Yes, the Court makes many mistakes, and this is an obvious one.
Those limits are determined by case law and by the justices themselves -- they are not ingrained in clear text in the Constitution.
Question-begging fallacy. See, I would assert that affirmative action explicitly does "deny to any person ... the equal protection of the laws."
I see no ill with having that judgment be informed by the human experience
And I never stated or implied otherwise. What I criticize is the fact that she said her experience will produce better results than mine. Which is a gigantic load of crap.
BTW, as to the firefighters thing, I think the most interesting part is that her panel's decision merely upheld an unpublished opinion ... the minority appeared to imply in their dissent that it was to try to prevent appeal of their ruling. It was very poor form by the panel, regardless of their reasons.
And as to her reversal rate, 538 gets it somewhat wrong. Yes, 60 percent is less than 75 percent. However, many judges never get any of their cases heard, and are never overturned. Getting overturned once is a big deal; getting overturned three times is a bigger deal. Not having read any of the cases in question, I cannot comment on it further, though.
Also in that article is this: Mr. Gibbs dismissed questions about Judge Sotomayor's reversal rate, saying she wrote 380 majority opinions during her 11 years on the appeals court. Of those 380 opinions, the Supreme Court heard five of the cases and overturned her on three.
Your statement is factually incorrect. You claimed that 60% of the cases in which she's written in the majority have been overturned. Obviously, that's wrong. The correct statistic: less than 1 percent. Or, 3 of 308 majority opinions.
As the post I linked to stated, the Court generally doesn't have an interest in ruling on cases when it agrees with the conclusion of the lower court unless there is a larger principle at work.
Posted by: John Jensen on May 27, 2009 04:21 PMSince she's being nominated for the SCOTUS and in her present position as 2nd cicruit court of appeals, I figured that you could make the leap that I was talking about the decisions she's written in her current position and not her entire body of work. Not to worry though, John. After the New Haven decision is also thrown out she'll then have a nearly 70% overturn rate (actually 66.6%, which could hold another meaning altogether) when reviewed before the SCOTUS.
A failure rate that high before the very court you hope to ascend to on merit cannot be ignored and as I said, she obviously lacks the legal discernment to be there given those shoddy numbers. But hey, who needs to be constitutionally sound in your legal reasoning when identity politics is the law of the land for some.
Posted by: Rick D. on May 27, 2009 04:34 PMHe never said her story was a "serious qualification for the Supreme Court of the United States." You're presenting a straw man.
I think it is obvious that she is ALSO saying that the Court of Appeals makes policy. And this is obviously controversial.
Appeals courts make case law unlike district courts. That is the distinction.
I don't say this often, but it's happened: George Will is wrong. And I could probably convince him of that, given the chance.
Well, hey, at least you're saying you disagree with him. I thought his words were interesting enough to bring up in your next Supreme Court thread. I agree with Will's definition of restraint and activism.
She said they would produce BETTER RESULTS. Of course everyone's different. But asserting her differences make her better is idiotic.
I agree, she shouldn't have phrased that sentence in that way. But in the context of her broader point that she was making, I understand what she meant. I think if anyone were to read the four paragraphs I quoted earlier, you'd get a different conclusion than just reading the sentence in isolation.
Getting overturned once is a big deal; getting overturned three times is a bigger deal.
Um, yeah, maybe for someone at a lower court, but for someone on a Court of Appeals? Give me a break. If you're on the Court of Appeals, you're going to get your cases overturned once in a while especially if the higher court changes its mind on something.
RE, affirmative action: Yes, the Court makes many mistakes, and this is an obvious one.
My comment was specifically about the application of Title VII which has withstood Court scrutiny. As a jurist on the Court of Appeals, Sotomayor has a responsibility to follow the case law set forth by the Supreme Court.
Which is why taking isolated cases like New Haven and trying to infer her judicial temperament is ridiculous if the expectation is that she ignores the higher court's previous rulings.
Posted by: John Jensen on May 27, 2009 04:36 PMWhat matters is the specifics of each case.
For example: a lower court, following precedent, has two serious options -- both acceptable -- when confronted with a case that asserts a State cannot violate the Second Amendment. It can agree, following the Constitution; or it can follow longstanding precedent and rule that a State can do this, because the Supreme Court's doctrine of "selective incorporation" means that only the Supreme Court itself can "incorporate" the Second Amendment into the Fourteenth.
So, let's say the lower court rules that selective incorporation still applies, and therefore no Second Amendment protection in the States. Now, it goes to the Supreme Court, where almost surely, the Court will rule either that the Second Amendment should be incorporated, OR that the doctrine of selective incorporation is dead and therefore the Second Amendment, like all the rest, are automatically incorporated by virtue of the Fourteenth Amendment's language itself.
So now the judges who ruled that the Second Amendment doesn't apply to the States ... were they wrong? No, because they were following precedent.
Getting overturned is not necessarily a bad thing.
Statistics do not tell us, really, anything at all about the quality of the decisions, no matter how many data points we have, because the function of the appeals court and the Supreme Court are different, and the Supreme Court has power to make decisions the lower courts don't, and a correct decision that disagrees with the lower court decision does not mean the lower court decision was wrong.
Similarly, the Court agreeing with (or, not disagreeing with) the lower court doesn't imply that the lower court was right.
Posted by: pudge on May 27, 2009 04:37 PMShe's written 150 opinions on the second circuit, not five.
@42 pudge, Similarly, the Court agreeing with (or, not disagreeing with) the lower court doesn't imply that the lower court was right.
Excellent comment pudge, I agree entirely. You expressed the sentiment much better than I did in the previous post.
Posted by: John Jensen on May 27, 2009 04:46 PMHe seriously offered it as a reason why she was chosen as a nominee for the SCOTUS. Do you deny this? If not, then how do you differentiate between "reason she was chosen" and "qualification"? They are synonymous to me.
Appeals courts make case law unlike district courts.
She said "policy" which is not the same thing, and she didn't take it back.
I agree with Will's definition of restraint and activism.
Then respond to my criticism that this means that a court doing its job -- overturning an unconstitutional act -- is "activist" by this definition. I submit this fact invalidates the definition's usefulness.
I agree, she shouldn't have phrased that sentence in that way.
She gave no indication that she agrees with you. She appears to believe she said precisely what she meant to say.
I think if anyone were to read the four paragraphs I quoted earlier, you'd get a different conclusion than just reading the sentence in isolation.
Except that I did, and I don't.
Um, yeah, maybe for someone at a lower court, but for someone on a Court of Appeals?
Yes.
Give me a break.
No.
Which is why taking isolated cases like New Haven and trying to infer her judicial temperament is ridiculous if the expectation is that she ignores the higher court's previous rulings.
That's not the real point of New Haven, right now ... the real point is that she didn't publish an actual opinion, so we have nothing to actually criticize. We have no idea if her joint ruling was activist or following the law, because we can't read the legal reasoning.
Snicker.
And it's your insufferable arrogance that will be your downfall. Again.
It always is.
Posted by: jimg on May 27, 2009 05:01 PMThe Supreme Court elects to hear cases that it would consider reversing. Assuming John is right that she's written 150 opinions, she's been reversed on 2% of them. I don't know whether 2% of all cases, or 60% of reviewed cases, is a typical percentage to have reversed, but neither figure sounds out of line to me.
Posted by: Bruce on May 27, 2009 05:59 PMUm, yeah, and of the five appealed to the SCOTUS, she was overruled on 3 of them. You're intentionally being dense here, John.
One of the cases in which her decision was upheld(Knight vs. Commissioner, 467 F.3d 149 (2006) , her reasoning was unanimously rejected by the Supreme court with them agreeing that her approach "flies in the face of the statutory language."
Another (Dabit vs. Merrill Lynch, 395 F.3d 25 (2005) - ) she was unanimously reversed by the SCOTUS 8-0
For someone wanting the position of one of nine jurists deciding what becomes the final say for our country, I'd say Obama could do a hell of alot better than Ms. Sotomayor if his real goal is to interpret the Constitution as the framer's intended it be and not as she and her bronx upbringing believe it should read.
A Scotusblog here with some of her summaried cases.
You have to consider the cases that didn't even go up to the supreme court. For Sotomayor, she had 380 cases total, and of those a handful went up to supreme court and of those 3 were reversed, a 99% success rate (377/830) in not being reversed.
Please stop "torturing" the facts. You don't like her, because Democrats do; it's that simple; why the need to distort things ?
Also judges make law, that's what they do, everyone pls. stop pretending they don't.
Most state constitutions recognize this by saying "we adopt the entire body of English common law," to give just one example.
Posted by: Torture lawyer on May 27, 2009 06:17 PMHowever, it would be a bad mistake to let her sail through without asking penetrating questions, just as the liberals did with Alito and Roberts.
If you think the Pres. is a lightweight due to his economic incompetency and his ignorance about science, wrong ! He was able to take out the Clinton machine in the primaries, which was no small task. It is imperative that the GOP stand up to his ideological blunders and expose them for what they are. Just last weekend, he proclaimed that we are broke and did not attempt to take any responsibility for it.
What a shame ! What a sham !
That is as misleading as anything else. There are many reasons why cases are not heard by the Supreme Court, and if they did review all of her cases, chances are at least some of the rest would have been reversed.
Please stop "torturing" the facts.
Oh I get what you did there! You're clever!!
You don't like her, because Democrats do
False. I don't like her because of the things she's said.
why the need to distort things ?
I don't know, why are you distorting things?
Also judges make law, that's what they do
If you mean the system of caselaw and precedent, of course. But that is not what she said: she said "policy." And she implicitly acknowledged that she was talking about more than mere caselaw when she quickly added, "I should never say that because we don't make law." Obviously she would never say judges don't make caselaw or precedents, so, obviously, she was referring to something else.
And yes, they do make policy, do make law beyond mere caselaw and precedent. They do legislate from the bench. Of course they do. But many of us believe they should not. That's the point. (And in Sotomayor's favor, she said explicitly she was not advocating the making of policy, and while I could not possibly take her word on that, of course, I also have no serious information to the contrary, and reserve judgment. The only thing I was commenting on in regard to her comment there was Axelrod's tortured explanation of what she actually said.)
everyone pls. stop pretending they don't
Straw man fallacy. No one has said they don't.
Most state constitutions recognize this by saying "we adopt the entire body of English common law," to give just one example.
First, the federal government did not do so. Neither did Washington state. Can you find 26 states that have? I'd be interested. But regardless, it doesn't matter because the context is federal courts.
Second, this is not giving the courts the power to "make law" anyway, it's giving them the power to interpret and apply a broader set of law.
If you are a lawyer as your nickname implies, you should be able to do better than this. Come on now.
Nevermind pudge's (a.k.a. Bob&Weave) inability to use quotation marks, the political story on this nomination was over when the Dems achieved the filibuster proof number 60 in their caucus.
All this hemming and hawing and assine accusations against her shall just anger the Hispanic voters.
If one wants to appoint conservative justices, one needs to win elections. Unless and until conservatives fix their party, we can expect to lose every nomination battle. Better to fix the root cause as fast as possible than to waste energy on a battle lost from the beginning.
Posted by: MikeBoyScout on May 27, 2009 08:05 PM"Accusations"? Nope. Pretty clear that had those terms been applied to any other group, it would be construed as racist or at the very least,a bigoted remark.
Funny how these same Democrats so vehemently opposed latino Miguel Estrada from the D.C. court of appeals when nominated by G.W. Bush (for fear he'd eventually ascend to the SCOTUS). Having a far more impressive legal resume than Ms. Sotomayor and unlike her, having no foot in the mouth moments, Democrats and their partisan attack-dog groups (internal memo's to Dick Durbin that surfaced) descended on a perfectly qualified candidate for political reasons.
Similar to Justice Thomas before him, Democrats don't celebrate the advancement of any race beyond their own strongly held Democrat/Identity politics mindset.
An excerpt from an article on Concerned Women of America website highlights this inconsistent message from the Democrat/Identity party.
Looking at Estrada's impressive record, it was puzzling why Democrats opposed him so viciously. The liberal American Bar Association unanimously found him "well qualified;" he clerked for Supreme Court Justice Anthony Kennedy and Judge Amalya Lyle Kearse of the Second Circuit; he graduated magna cum laude and Phi Beta Kappa with a bachelor's degree from Columbia, received a juris doctor (J.D.) degree magna cum laude from Harvard Law School and was an editor of the Harvard Law Review - just like President Obama. Estrada had extensive legal experience serving as an Assistant U.S. Attorney and Deputy Chief of the Appellate Section, and he also served at the Department of Justice as an Assistant to the Solicitor General for the Clinton Administration.
It will be the decision of 99 United States Senators, every one of which is infinitely more qualified than the collective resumes of all those folks listed in the first paragraph.
Stop and ponder for just a moment as to their respective public records and whether any one of them would be qualified to be in charge of selecting any manner of jurist.
The really good news is that Sotomayor will be confirmed rather quickly, despite the acrid complaints of a bitter few who would oppose a reincarnated Solomon if he had been nominated by a Democratic President.
Leave it to an intellectual heavyweight like Unkl Witz to confuse a sentence with a paragraph.
Posted by: Rick D. on May 27, 2009 11:07 PMRepublicans need to start acting like Rats.......cheat, lie, trump up charges on a Senator so he would lose by a sl margin his seat, never investigate their crooked fellow rats, actually steal classified documents and get off with a handslap...
yep...the new Republican party needs to be more like the Rats....forget the rule of law...forget the constitution...forget America...
just go for the juglular just to keep that stinking seat or attain a new one...
Mark Foley and Ted Stevens would agree with me...as would Craig....all hounded from office for no freaking reason ....
Posted by: lee on May 28, 2009 12:07 AMWe know you're in the habit of supporting racist bigots, thus your rabid support for that empty-suited moron running the show today.
But you don't mind awfully if we question yet another of his many moronic, idiotic appointments of people ill-equipped to deal with the demands of their position; of people who, while espousing the neo-communist positions you embody ARE cause for concern for the rest of us, do you?
That's a good chap, Wiz.
Posted by: hinton on May 28, 2009 04:46 AMIn Maloney v. Cuomo, Sotomayor signed an opinion of the U.S. Court of Appeals for the Second Circuit that said the Second Amendment does not protect individuals from having their right to keep and bear arms restricted by state governments.
+++++++++++++++++++++++++++
So much for following the law.
HAHAHAHA, yes you know it all don't ya.
Hey Pudge, stay out of cars when driving with woman in it. (Kennedy)
Posted by: Medic/Vet on May 28, 2009 07:06 AMMiguel Estrada wasn't Hispanic enought... remember that one.
______
The media has also quickly adopted the story line that Republicans will damage themselves with Hispanics if they oppose Ms. Sotomayor. But what damage did Democrats suffer when they viciously attacked Miguel Estrada's nomination by President George W. Bush to the D.C. Circuit Court of Appeals, the nation's second-highest court? New York Sen. Chuck Schumer was particularly ugly, labeling Mr. Estrada a right-wing "stealth missile" who was "way out of the mainstream" and openly questioning Mr. Estrada's truthfulness
When I said "judges make law, that's what they do,"
this is what I meant.
1. "the system of caselaw and precedent, of course."
In other words the reason a case is on appeal is often it has a legal issue; in this case the court explicity answers the question of "should the law be this or should the law be that."
2. The entire system of common law was made by judges.
3. Most US states back after the revolution didn't want to have a blank slate for all crimes, property, contracts, torts, etc. so they explicity said we adopt the common law; I am 99% sure Washington state and others that didn't say that in their constitution said it in their case law.
4. federal courts do the same thing both by applying state law and by in some cases applying what they call federal common law.
5. when there are statutes the legal issue arises often because there is no plain meaning or there is a disptue ove rwhat the plani meaning is, same with constitution questions.
IOW it is not specified in the constitution whether the fourth amendment applies to phones or e mail. or whether separate but equal is equal. or even whether the courts can strike down statutes that are unconstitutuional. it is not specified what due process means. so from little gaps and ambiguities to broader law making, court make tons of law.
6. when they do this the case law says they must consider policy. and even in cases where they do not say they are considering policy, they consider policy.
for example in the law of contracts they said an aceptance is effective the day it is put in the mail not the day it is received. the reason is having a policy of certainty for the one accepting the contract.
this is a policy that helps business.
for antitrust they said based on policy on the immediate victim can sue because it's too tangled up to let downstream victims sue; this is a policy of efficiency.
they often say that criminal statutes are very narrowly construed; this is a policy made up by judges.
now when conservatives say they oppose policy they almost never talk about any specific decision and its reasoning. but if you look at any supreme court decision you will see policy concerns all over the place.
for example, the policy of ensuring that individuals had arms in order to enable a militia to be effective was part of the reasonsing behind the recent decision on the second amendment.
there are better examples as in punitive damages cases or many areas of the law where the law says "public policy" has to be determined by the judge.
When someone says "I should never say that because we don't make law" then obviously that's wrong as you admit when you say "Obviously she would never say judges don't make caselaw or precedents, so, obviously, she was referring to something else."
If you reserve judgment on Sotomayor why dont' you read some of her decisions and tell us how she has or has not violated the role of a judge. In the Drexel case it seem she was unwilling to insert the words security holder where the statute only said purchaser and she was reversed on that, so it would seem that by your views the supreme court was the one making law, not her. in the new haven case it seems she was following second circuit precedent and inactively letting stand the decision of local officials -- not making new law. btw she referred to the trial court decision as fully explaining it all so the fact it was one paragraph isn't important. i've only skimmed her decisions and what i see so far is a pattenr of layered logical reasoning with no obvious biases.
"everyone pls. stop pretending they don't"
what I meant pudge was everyone, from you to Sotomayor, engages in the fiction that judges should not make law and do not use policy in their lawmaking.
"Most state constitutions recognize this by saying "we adopt the entire body of English common law," to give just one example.
First, the federal government did not do so."
Do you not realize that in diversity cases and in many other federal cases federal courts apply state law?
"Neither did Washington state."
See above.
"Can you find 26 states that have? I'd be interested."
I have definite knowledge that the early states did and a vague recollection that all states did but get this:
the day after statehood, they had full criminal, contracts and property law, etc. they did not have to spend 6 months debating and legislating everything.
"But regardless, it doesn't matter because the context is federal courts."
Wrong, the federal courts handle state law. You don't know that?
"Second, this is not giving the courts the power to "make law" anyway,"
what is not giving them that power? they always make law
" it's giving them the power to interpret and apply a broader set of law."
there is no meaningful distinction betweeen judging legal issues and making law or legislating from the bench, that's what they do.
Comeon. You don't have a clue what you are talking about. They say in their decisions over and over our goal in legislative construction is to give effec to the intent of the legislature then they have a big argument about what the words mean and decide what the intent of the legislature is --- if that's not legislating from the bench I don't know what is.
"If you are a lawyer as your nickname implies, you should be able to do better than this. Come on now."
If you are commenting about judicial functions and you don't even know that federal courts explicity discuss public policy all the time, and resolve issues of what the law should be, and handle state law issues all the time too, you really have no business getting involved in the issue. If you don't like her becasue she's basically of Democratic leanings and appointment etc. just oppose her becasue of that? Nothing dishonorable in being conservative per se. What's dishonorable is making up baloney like there is no public policy in appellate courts when any idiot can go to westlaw and search the words public policy or policy considerations or read almost ANY opinion and see that they use policy considerations in figuring out what the law is and that is the same as making law where it's not settled. That's what appellate courts are FOR. So this whole attack that "our conservative judges don't use policy ro make law these damn liberal judges do" is a LIE and a FALSEHOOD and is fundamentally SHAMEFUL.
I hope this explains it more.
Thanks for reading.
Posted by: Torture Lawyer on May 28, 2009 07:32 AMSo all these invocations of following the literal law as written seem to be made in bad faith. Some conservatives just come out and say it (we need torture and we don't care what the law says) so in that case they are for not even following the plain meaning of the law. Suddenly they say, they have a overriding justification. Look at that torture treaty real hard -- it specifically says you can't say that, that's not legal.
But not one conservative on this site is standing up for the plain meaning of the torture law.
So one suspects all these arguments are driven by ahem, policy considerations, not law.
Posted by: Torture Lawyer on May 28, 2009 07:37 AMIt's a terrible precedent, but it is there.
However, another court recently found that the Second Amendment DOES bind the states, using a test the Supreme Court had previously used for another amendment.
One way or another it doesn't matter, this is going to the Supreme Court to decide, because the issue has not been settled, and can only be settled by the Supreme Court, due to their mixed signals and poor precedents.
"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."
"I would hope that a wise white man with the richness of his experience would more often than not reach a better conclusion that a Latina woman who hasn't lived that life."
...they would find only one of them racist, *because* of the race of the person saying it (which is racist by itself) whereas a Republican would find both statements equally racist and would oppose both people making them.
It is that simple.
At first blush, Sotomayor's negatives like an insolent temperment (in contrast to the current modicum of decorum on the bench) and poor legal reasoning behind some of her decisions that have been reviewed and reversed on appeal may be reason enough to put her on the high court, especially since her confirmation is pretty much a given despite her racist statements and associations (member of the national Council of La Raza- i.e. "The Race". Can you imagine her attempting to argue "empathy" justice with intellectual legal scholars like a Scalia, Alito or Roberts?
Now that would be torture.
Posted by: Rick D. on May 28, 2009 08:43 AMMost of it is not what Sotomayor meant, and it is not what anyone here meant, so it's irrelevant.
I am 99% sure Washington state and others that didn't say that in their constitution said it in their case law.
Riiiiight. Because courts are empowered to unilaterally incorporate the whole new set of English common law into our legal system. No.
IOW it is not specified in the constitution whether the fourth amendment applies to phones or e mail.
Riiiiiight. Because your email is not your "papers" or "effects." And because listening in on your phone call is not a "search." What are you smoking there?
or even whether the courts can strike down statutes that are unconstitutuional
Riiiiiight. Because when the Constitution says "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority," that means "except for whether a statute is unconstitutional."
it is not specified what due process means
Yes, it is: mostly in statutes.
they often say that criminal statutes are very narrowly construed; this is a policy made up by judges.
Oh bollocks. That's akin to saying that "words in the law are taken to mean what they commonly mean in society when possible; this is a policy made up by judges." That is simply COMMON SENSE, and the only reasonable way it can work. It's not a "policy made up by judges."
now when conservatives say they oppose policy
No one ever said they oppose policy. You mean oppose the courts making policy?
they almost never talk about any specific decision and its reasoning
I do. All the time. I've talked about recent decisions and the attempts to make new law. The Lily Ledbetter case is a good example: the minority of the court attempted to rewrite the law so that Ledbetter could sue.
but if you look at any supreme court decision you will see policy concerns all over the place. for example, the policy of ensuring that individuals had arms in order to enable a militia to be effective was part of the reasonsing behind the recent decision on the second amendment.
Except that this was a red herring from beginning to end. The Second Amendment does not, in any way, imply that if "part of the reasoning" for the Second Amendment is no longer useful, the Second Amendment can be nullified. We have a right to keep and bear arms NO MATTER THE REASON WHY because the Constitution granted us that right and forbade the government from taking it away. The reason why we have it is interesting, but to the Court, completely irrelevant.
When someone says "I should never say that because we don't make law" then obviously that's wrong as you admit when you say "Obviously she would never say judges don't make caselaw or precedents, so, obviously, she was referring to something else."
Wow, that's just stupid. Let me say this very clearly: you are using the word "law" differently than she was using it. She was not wrong, she was using the word differently. How is this not obvious to you?
If you reserve judgment on Sotomayor why dont' you read some of her decisions
In time, I will. You realize she was just nominated two days ago, right?
btw she referred to the trial court decision as fully explaining it all so the fact it was one paragraph isn't important.
The six members of the 13-member panel who heard the case and dissented disagree with you, for the reason that the trial court decision was UNPUBLISHED, which means that the seven-member majority decision was also, in effect, unpublished.
Do you not realize that in diversity cases and in many other federal cases federal courts apply state law?
Do you not realize that's beside the point? I said the federal government did not incorporate common law into its law. This is true. Saying the courts sometimes apply state law, which sometimes incorporates English common law, is a non sequitur.
Wrong, the federal courts handle state law.
Nothing I said implied otherwise. But the difference is obvious (to me, and should be to any lawyer): the federal judge does not expand state law or create new precedents in state law, except where state law comes into conflict with federal law. The judge only applies the state law as it exists in statute and precedent. It is up to the state courts to make new state precedents. To do otherwise would be a serious and significant violation of state sovereignty.
I have definite knowledge that the early states did and a vague recollection that all states did
But you've been proven wrong in your "recollection," because Washington state didn't put it into its Constitution, so therefore, not all states did.
there is no meaningful distinction betweeen judging legal issues and making law or legislating from the bench
Obviously false. Even Sotomayor says there is. Even Obama says there is, and that judges shouldn't do the latter (though we know he doesn't mean it, since his favorite justices advocate it).
If you... don't even know that federal courts explicity discuss public policy all the time
Point to me where I expressed or implied that I don't know this. You have serious reading comprehension problems. What I said is that they should not MAKE policy in terms of writing NEW law, or modifiying EXISTING law, or refusing to APPLY existing law, and so on.
And I never even said there is a problem with discussing public policy, except in that it's usually irrelevant. I just listened the other day to Justice Breyer drone on, and on, and on, about how it's OK to restrict campaign speech because of the effects on public policy it can have to do, or not do, such restrictions. The problem is that it was, as with his looking at the "purpose" of the Second Amendment, irrelevant. It's political speech, so therefore it should not be restricted based on its political content. Period. His job is not to determine what is beneficial to society, unless he (correctly) believes that properly upholding the law and the Constitution is the most beneficial to society. Unfortunately, that is not his view.
and resolve issues of what the law should be
No. Absolutely not. You are completely wrong. No judge should EVER engage in resolving what the law SHOULD be, but only what it IS.
you really have no business getting involved in the issue
Don't be an ass. Please. My views on this are echoed by at least four of the current Supreme Court justices, as well as a huge number of other judges and justices, past and present. For you to assert that because I disagree with you that I have no business in this discussion is almost as arrogant as it is idiotic.
If you don't like her becasue she's basically of Democratic leanings and appointment etc. just oppose her becasue of that?
Please stop being so dishonest. I already told you this does not enter into it for me; and the fact that I am withholding judgment on her until I know more is strong evidence that I am being truthful.
What's dishonorable is making up baloney like there is no public policy in appellate courts
What's dishonorable is YOU making this argument as though ANYONE ever disagreed. No one ever said it. Ever. Once again -- because you appear to be too stupid to understand -- I'll state the distinction: it is one of whether courts SHOULD MAKE policy. But instead you are talking about whether policy IS made or discussed, neither of which has been questioned by anyone here.
when any idiot can go to westlaw and search the words public policy or policy considerations or read almost ANY opinion and see that they use policy considerations in figuring out what the law is
And any idiot reading this discussion would know that no one has questioned whether that happens.
So this whole attack that "our conservative judges don't use policy ro make law these damn liberal judges do" is a LIE and a FALSEHOOD and is fundamentally SHAMEFUL.
No one ever said conservative judges don't do that. What is "shameful" is your dishonest straw man fallacies.
Btw nobody had the fortitude to come forward and admit" "yes, that's right, we're for torture, we better denounce and withdraw from that torture treaty which clearly says no emergency circumstances or orders from above justify torture."
There's no treaty that applies. Perhaps you are thinking of the Geneva Conventions, but the prohibitions on torture contained therein do not apply to enemy combatants.
So all these invocations of following the literal law as written seem to be made in bad faith.
Yes, to someone -- like you -- who does not understand the law.
But not one conservative on this site is standing up for the plain meaning of the torture law.
I am. However, I actually understand that law, and you do not.
So one suspects all these arguments are driven by ahem, policy considerations, not law.
Not remotely. I am against legalization of torture. If policy considerations were driving my views, I would -- like you -- pretend that our treaties prohibited it of enemy combatants.
Torture, I say this to you seriously: your post may have had a point here and there, but it was an incoherent mess, and worse, it made a great many logical fallacies, including a huge number of straw men. Clean up your act. I have little patience for such nonsense.
"Torture: When I said "judges make law, that's what they do," this is what I meant.
Most of it is not what Sotomayor meant, and it is not what anyone here meant, so it's irrelevant."
In ohter words, you agree with me that judges make law. Thank you.
"I am 99% sure Washington state and others that didn't say that in their constitution said it in their case law.
Riiiiight. Because courts are empowered to unilaterally incorporate the whole new set of English common law into our legal system. No."
Wrong pudge, when the states were set up they pretty much all legislated or decided to adopt prior common law from England. You think they just had a blank slate and there were no crimes, for example?
Btw your saying "no" isn't argument.
"IOW it is not specified in the constitution whether the fourth amendment applies to phones or e mail.
Riiiiiight. Because your email is not your "papers" or "effects.""
E data is not paper and it is not specified what your effects are....so when the judges decide what that means they are making law. Didn't you already say this was irrelevant? So why are you arguing"
" And because listening in on your phone call is not a "search." What are you smoking there?"
You are implicitly accepting and making my point. When a court decides phone calls are private the court is making law. You accept and laud that form of judicial lawmaking and judicial activism. Judges make law because the written law doesn't answer all the questions. You already said this is irrelevant, why do you keep on arguing?
"or even whether the courts can strike down statutes that are unconstitutuional
Riiiiiight. Because when the Constitution says "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority," that means "except for whether a statute is unconstitutional.""
You have no knowledge of what you are talking about. Nothing in what you quoted gave the court the remedy to strike down the laws that are unconstitutional...this was perhaps the greatest supreme court decision of all time...do you even know the name of it? Do you know the arguments back and forth? No, to you you read those words and see no issue. But the supreme court saw a big issue and made the law.
Based um, on the policy consideration that if the court couldn't do that the words you quote make no sense.
Again, you said this was irrelvant. why do you keep arguing? Go look up that decision and tell me it does not have law making and policy considerations in it. You think it's a one paragraph decision where they say "wow these are the words in the constitution, this is simple, bang, we have the power of judicial review?"
"it is not specified what due process means
Yes, it is: mostly in statutes."
Wrong. It's mostly in case law. You don't know what you are talking about and you are arguing in knee jerk fashion.
"they often say that criminal statutes are very narrowly construed; this is a policy made up by judges.
Oh bollocks. That's akin to saying that "words in the law are taken to mean what they commonly mean in society when possible; this is a policy made up by judges." That is simply COMMON SENSE, and the only reasonable way it can work. It's not a "policy made up by judges.""
WRong again. They are very clear that the rule you quote is the plain meaning rule applied to most statutes and contracts and criminal statutes ARE EVEN MORE NARROWLY CONSTRUED. Again you have no idea what you are talking about and exlaiming things like "bollocks" adds no persuasive weight.
And again you make my point.
When you or I or a judge says "that's common sense" they are really applyiong policy considerations, including the one that says use common sense.
There's nothing in the constitution or the statutes of the USA that says "hey courts use common sense." That's made up by judges. You're wrong, and you prove my point.
"now when conservatives say they oppose policy
No one ever said they oppose policy. You mean oppose the courts making policy?"
YEs that's fairly obvious.
"they almost never talk about any specific decision and its reasoning
I do. All the time. I've talked about recent decisions and the attempts to make new law. The Lily Ledbetter case is a good example: the minority of the court attempted to rewrite the law so that Ledbetter could sue."
OK first mention of an actual case I read. But you just state the conclusion you having without showing your reasoning by quoting the statute and giving the reasoning of the majority and the minority on this case, proving my point that you gys almost never talk about a "specific case aand its reasoning."
"but if you look at any supreme court decision you will see policy concerns all over the place. for example, the policy of ensuring that individuals had arms in order to enable a militia to be effective was part of the reasonsing behind the recent decision on the second amendment.
Except that this was a red herring from beginning to end. The Second Amendment does not, in any way, imply that if "part of the reasoning" for the Second Amendment is no longer useful, the Second Amendment can be nullified. We have a right to keep and bear arms NO MATTER THE REASON WHY because the Constitution granted us that right and forbade the government from taking it away."
Interesting, you don't dispute the fact that the judges on both side use policy considerations.
"The reason why we have it is interesting, but to the Court, completely irrelevant."
Not so, that's why they discuss it. They discuss the reason of constitutional words all the time, they discuss their impact on cops, on people, on business all the time, and you didn't say anything about the reasoning of that second amendment case, just your conclusion.
"When someone says "I should never say that because we don't make law" then obviously that's wrong as you admit when you say "Obviously she would never say judges don't make caselaw or precedents, so, obviously, she was referring to something else."
Wow, that's just stupid."
No it's not. It's me saying you said judges make law, which was one of my points.
"Let me say this very clearly:
Thank you.
"you are using the word "law" differently than she was using it. She was not wrong, she was using the word differently. How is this not obvious to you?"
I am making two points. Judges make law. Read any appellate decision and it states the legal issues they will *decide* which is the same as making law. Two, in doing it they use policy considerations very frequently. Beyond that I am not taking up whether or not I disagree with some of what Sotomayor says, I believe I do, as I believe rightists have spread a myth that judges shouldn't make law and don't use policy considerations and I believe that that is a myth....no matter who says it.
"If you reserve judgment on Sotomayor why dont' you read some of her decisions
In time, I will."
Good. That would be a better basis on whicih to criticize her. Using evidence and actual decisions. Good decision, pudge.
"You realize she was just nominated two days ago, right?"
No pudge, I thought she was nominated two years ago.
come on. You accept the point I made which was to ask you to read her decisions then you launch an attack. The bottom line is you guys many of you are criticizing her without reading her decisions.
That means you don't have a "foundation" of knowledge and your testimony is not admissible. That's legalese. In plain English you love, you are talking out of your hat!
"btw she referred to the trial court decision as fully explaining it all so the fact it was one paragraph isn't important.
The six members of the 13-member panel who heard the case and dissented disagree with you, for the reason that the trial court decision was UNPUBLISHED, which means that the seven-member majority decision was also, in effect, unpublished."
All trial court decisions are public. Go look it up. Often appellate courts don't write long decisions.
But you may have a point, in which case I would be wrong in what I suggested as to this particular case. Maybe she was wrong to not write a longer opinion.
"Do you not realize that in diversity cases and in many other federal cases federal courts apply state law?
Do you not realize that's beside the point?"
Ducking questions again. It's on my point which is that judges make law and to do that they use policy considerations.
"I said the federal government did not incorporate common law into its law. This is true."
No it's not there is a whole body of law called federal common law. You do not know what you are talking about. And the federal courts often apply state law including common law of torts, contracts, etc.
"Saying the courts sometimes apply state law, which sometimes incorporates English common law, is a non sequitur."
When they apply state law they are making law just as much as any judge from the 12th century. In fact our whole system is very much more judge made than most systems. This is a well known feature.
The reason you don't admit this is the next question would be, HOW DO THEY MAKE UP THE LAW?
And the answer would be common sense, what seems rights, judgments about policy considerations (how markets work, how cops work, what it means to have welfare, what it means to a corporation to have punitive damages imposed in maritime cases like Exxon Valdez, etc.).
That's why the fact they make law including federal common law if very relevant.
"Wrong, the federal courts handle state law.
Nothing I said implied otherwise. But the difference is obvious (to me, and should be to any lawyer): the federal judge does not expand state law or create new precedents in state law, except where state law comes into conflict with federal law."
Wrong, you don't know what you are talking about. Federal courts dealing with state law legal issues decide them thus they make law. then their published decisions are quoted as precedents.
"The judge only applies the state law as it exists in statute and precedent."
WRong. They decide state law legal issues. You don't know what you are talking about. After declaring law making irrelevant you fight it at every turn becasue once you admit it you have to admit they make law based on SOMETHING which ineluctably has to include policy considerations.
"It is up to the state courts to make new state precedents."
Wrong, federal precedents on state law are used and quoted all the time. You don't know what you are talking about. Btw if you are in federal court you especially quote your own JUDGE'S PRIOR DECISIONS on the state law issue in question, duh.
" To do otherwise would be a serious and significant violation of state sovereignty."
No, it wouldn't, because where federal courts have jurisdiction to decide they override state sovereignty, you are just making stuff up and you don't know what you are talking about. Even state supreme courts will cite federal precedents on state law. Courts cite all kinds of precedents. They cite common sense, they cite the bible, they cite tradition, they cite free market theory, they cite natural law, they cite psychology studies, they cite federal precendents on state law they cite Canadian precedents they pretty much take it all in.
"I have definite knowledge that the early states did and a vague recollection that all states did
But you've been proven wrong in your "recollection," because Washington state didn't put it into its Constitution, so therefore, not all states did."
I am sure that on the dat Washington became a state their was already a body of law and the courts looked to prior common law. You may be right it's not in the constitution, it may be in the decisional law, the law judges made.
And in general my point remains and you're just quibbling around the edges. The point is our tradition has a huge body of common law (two values dear to conservatives, tradition and incremental change, right?) which was MADE BY JUDGES and in doing that they applied policy considerations. They also apply policy considerations to figuring out vague notions like due process, remedies, and what ambiguous statutes mean.
"there is no meaningful distinction betweeen judging legal issues and making law or legislating from the bench
Obviously false. Even Sotomayor says there is. Even Obama says there is, and that judges shouldn't do the latter (though we know he doesn't mean it, since his favorite justices advocate it)."
The courts have the rule to follow the words in teh constitution and the statutes and usually in contracts and what I meant is there is no clear line between legislating from the bench (contradicting clear words in constitution or statutes) versus filling in gaps and resolving ambiguities and deciding remedies and deciding things for which there is no clear written words and deciding federal common law and deciding state common law and otherwise MAKING LAW which involves POLICY CONSIDERATIONS.
"If you... don't even know that federal courts explicity discuss public policy all the time
Point to me where I expressed or implied that I don't know this. You have serious reading comprehension problems. What I said is that they should not MAKE policy in terms of writing NEW law, or modifiying EXISTING law, or refusing to APPLY existing law, and so on."
but they do. Look it up. go get a Westlaw account and go into the supreme court library of cases and search public policy and you willget tens of thousands of hits. You do not know what you are talking about.
"And I never even said there is a problem with discussing public policy, except in that it's usually irrelevant. I just listened the other day to Justice Breyer drone on, and on, and on, about how it's OK to restrict campaign speech because of the effects on public policy it can have to do, or not do, such restrictions."
This kind of reasoning is used by conservatives and liberals on the court.
"The problem is that it was, as with his looking at the "purpose" of the Second Amendment, irrelevant."
No where in the us constitution does it say that campaign dollars are speech. When the court decided they are, it made law, and it considered the policy implications of restricting dollars...ie that would limit speech, indirectly.
"It's political speech," so they deciding considering policy considerations when there were no clear words in the constitution
"so therefore it should not be restricted based on its political content. Period."
You know, go read the decision, I am sure it is many pages full of policy considerations.
"His job is not to determine what is beneficial to society,"
You are wrong, they cite benefit to society all the time in deciding legal issues
"unless he (correctly) believes that properly upholding the law and the Constitution is the most beneficial to society."
at bottom you are trivializing the kind of issues they deal with. You dont' know what you are talking about.
"Unfortunately, that is not his view."
However, the conservative judges also apply policy considerations all the time.
Have you ever read these cases you are talking about?
"and resolve issues of what the law should be
No. Absolutely not. You are completely wrong. No judge should EVER engage in resolving what the law SHOULD be, but only what it IS."
Ha, ha ha you dont' know what you are talking about. In your world, clerks could decide these cases or robots. Read some appellate cases. The briefs always state the "legal issues" and one side says the decision should be this, the other side says it should be that, the court says the decision and pretends that that was already what the law was, except obviously it wasn'T SO OBVIOUS, BECAUSE THAT'S WHY IT'S A CASE ON APPEAL.
"you really have no business getting involved in the issue
Don't be an ass. Please."
Since assholery is normal on this site, it's okay to be an ass.
You said judges don't make law. You say policy doesn't count. The fact is public policy is explicity part of many cases and policy considerations enter into almost every case at the appellate level.
"My views on this are echoed by at least four of the current Supreme Court justices, as well as a huge number of other judges and justices, past and present."
Wrong. go read their decisions, they apply policy considerations all the time.
"For you to assert that because I disagree with you"
no, I didn't, I pointed out the reasons, which you avoid, by conclusory statements, usually and not by invoking others
"that I have no business in this discussion is almost as arrogant as it is idiotic."
Perhaps it is. But when you start off by saying it's irrelevant that judges make law, you give away the game. Becasue once you admit that, as you do implicitly, the next issue is how do they do it which forces you to agree they use their policy notions....which opens the door to their using their policy notions in other areas, as when the written words are vague as they so often are. If I wrongly accused you of not knowing that federal courts apply state law, my regrets, but you seem to think that they don't, even now, as when you say for federal cases to decide state law issues is a violation of state sovereignty. They do it all the time! You do not know the basis of the legal system we have. You do not know that federal courts also have federal common law. You're plain wrong on many simple basic things, you don't know what you are talking about, you admit you haven't read Sotomayor's decisions, when I challenge you to provide or discuss the reasoning of at least one case, you cite the case and the conclusion but don't discuss the reasoning, so I am sticking with my position that you are asserting knee jerk arguments with no basis and you should go get a clue before you spout off.
Wouldn't it be easier to admit that conservative judges apply conservative policy and liberal judges apply liberal policy and when the GOP wins they get to nominate conservative judges and when Obama wins he gets to nominate liberal judges?
"If you don't like her becasue she's basically of Democratic leanings and appointment etc. just oppose her becasue of that?
Please stop being so dishonest."
"Dishonest?" It's a pretty fair assumption you're conservative. You are, right? And you know OBama's not, right? And you know a Latina from the Bronx is likely not conservative? And it's fair to oppose someone because you disagree with them....on policy grounds, right?
Since all that's right, there's no suggestion of error on my part much less dishonesty. Another knee jerk reaction.
"I already told you this does not enter into it for me;"
I disagree, it's what motivates you, you DIDN'T EVEN READ HER DECISIONS AND YOU DON'T KNOW THE BASICS OF THE LEGAL SYSTEM
"and the fact that I am withholding judgment on her until I know more is strong evidence that I am being truthful."
It's good, but you're not withholding judgment on law making and policy etc.
I see dishonesty in you because I really can't believe you guys actually believe the erroneous stuff you say. And being a very strong, committed conservative, I do think that will enter into your analysis....perhaps not consciously, okay...but that's a deeper problem.
"What's dishonorable is making up baloney like there is no public policy in appellate courts
What's dishonorable is YOU making this argument as though ANYONE ever disagreed."
Actually mr. pudge the conservatives say all the time there should be no policy in appellage decisions and that's false.
"No one ever said it. Ever. Once again -- because you appear to be too stupid to understand"
are we on the third grade play ground?
"I'll state the distinction: it is one of whether courts SHOULD MAKE policy."
It's so laborious to get through your meaningless attacks just to get to the issue. Obviously you are saying they shouldn't, I am saying they do and should and in fact conservative judges to it all the time so the notion they shouldn't is both erroneous and false, and to me it seems deeply dishonest.
" But instead you are talking about whether policy IS made or discussed, neither of which has been questioned by anyone here."
You are dodging artfully. I clearly am saying this is the job of courts and that even conservative judges do it.
"when any idiot can go to westlaw and search the words public policy or policy considerations or read almost ANY opinion and see that they use policy considerations in figuring out what the law is
And any idiot reading this discussion would know that no one has questioned whether that happens."
OK let me restate what I thought was obvoius: you can read actual cases and see that CONSERVATIVE JUDGES APPLY POLICY AND MAKE LAW ALL THE TIME.
"So this whole attack that "our conservative judges don't use policy ro make law these damn liberal judges do" is a LIE and a FALSEHOOD and is fundamentally SHAMEFUL.
No one ever said conservative judges don't do that."
Dodging again.
" What is "shameful" is your dishonest straw man fallacies."
Premise is not correct. Go read 50 decisions by Alito or Scalia and you will see policy consdierations all the time. You never talk about the actual reasoning of actual cases.
"Btw nobody had the fortitude to come forward and admit" "yes, that's right, we're for torture, we better denounce and withdraw from that torture treaty which clearly says no emergency circumstances or orders from above justify torture."
There's no treaty that applies."
It's the convention on torture which I quoted the other day. You don't know what you are talking about. I said it clearly says emergency circumstances are no justification, and it does, and it's the law of the land."
" Perhaps you are thinking of the Geneva Conventions, but the prohibitions on torture contained therein do not apply to enemy combatants."
It's the torture convention submitted by Reagan and approved by the senate with a 2/3 vote. Again, you just spout off without knowing what you are talking about. Very knee jerky.
"So all these invocations of following the literal law as written seem to be made in bad faith."
Yes, to someone -- like you -- who does not understand the law."
Go read the torture convention. It is the law. it says in plain words, emergencies do not justify torture...this was in a thread where the original post said liberals would be against torture no matter what the cost in lives or treasure...if you think torture is worth it in lives or treasure, you have the problem that that's no justification under our law, so you have to change that law to make it legal. The point is that conservatives saying torture is okay becasue it's a post 9-11 world have not confonted the fact that our law says otherwise, so you have to change the law to make it legal.
Come on pudge. It's called the torture convention. You didn't look for it did you? You just assumed away the issue by pretending there is no law on torture. The bottom line is all these conservatives who say we should only apply the law as written ABANDON THAT POSITION in case of torture (the ones who say it's okay under special emergency circumstanes) and this proves intellectual inconsistency which as we all know is a basis for inferring DISHONESTY.
You can fix it by admitting that the torture convention is our law, that it bans torture even in emergency situations and that means those who want us to torture in a ticking time bomb scenario should logically be advocating a change in that law, so that would be legal.
Go ahead, admit it.
"But not one conservative on this site is standing up for the plain meaning of the torture law.
I am. However, I actually understand that law, and you do not."
Are you joking? You missed the law that is called the Convention on Torture and you claim to know the law?
You really didn't even look, right? Go look. Google UN Convention on torture go read it and get back to us.
"So one suspects all these arguments are driven by ahem, policy considerations, not law.
Not remotely. I am against legalization of torture."
Ok then, thank you . I approve. So what I said doesn't apply to you, only to lots of other conservatives.
"If policy considerations were driving my views, I would -- like you -- pretend that our treaties prohibited it of enemy combatants."
Ouch. But your premise lacks foundation as our treaties do prohibit torture of anyone. You didn't look up the torture convention, it seems. It's not that hard to find, so I suspect your knee jerk reactions told you to only reach into what you know (Geneva) get the validation you seek and then stop looking.
"Torture, I say this to you seriously: your post may have had a point here and there, but it was an incoherent mess, and worse, it made a great many logical fallacies, including a huge number of straw men. Clean up your act. I have little patience for such nonsense."
Riiiight. You couldn't find the law that's called the torture convention, you thought states had a blank slate, you can't deal with common law law making, you are unaware there is federal common law too, and you never deal with the fundamental point which is conservative judges apply public policy explicity in some cases and in other cases they use policy considerations all the time. Because you think appellate decisions are simply robotic exercises of applying clear written words, and they aren't. You mainly just asserted consclusory counterstatements, you didn't discuss the reasoning of any particular case, you haven't read Sotomayor's cases.
You say due process is defined in statutes and it's mainly defined in judge made case law.
Do you not now agree that conservative judges make law, and use policy considerations in doing that, even though they say they don't? Please search the words public policy in actual cases, please read some supreme court cases where you agree, say 20, and get back to us with reality based information to support your positions.
And pudge, when you say you have little patience but right a point by point response, you're just hurling out words again. Obviously this subject interests you and is important, so I urge you to develop better arguments. Right now, I give you an "F" for making unsupported arguments and not doing your research. Due process is defined by statute? Are you joking? Go to a book called USCA and look up 42 USC 1983 and tell how many case law decisions there are defining what due process means. There's about 10,000. cops,prisons, schools, public employment, welfare, trials, probations, all kinds of contexts NOT COVERED BY STATUTE. Until you do some research just admit your positions are policy driven.
Thank you for being an interested and impassioned citizen.
Posted by: Torture lawyer on May 28, 2009 10:06 AMBe that as it may, the GOP can't block her and need to turn this into a positive for the upcoming elections. This is a perfect platform to contrast the present crop of leftists with conservative values as relates to the rule of law, judicial activism, racism and the role of "advise and consent". On the activism point alone the majority of American agree with the GOP and they need to be reminded of that.
Posted by: G Jiggy on May 28, 2009 10:18 AMI think you can be assured that not one person will read your post.
60 (20" monitor) column inches to prove a point. That's got to be a record here.
Torture indeed.
Posted by: G Jiggy on May 28, 2009 10:24 AMTorture is right.
Posted by: Palouse on May 28, 2009 10:28 AM@71 G Jiggy on May 28, 2009 10:18 AM,
You wrote:
"I don't think any past or present Supreme Court Justice can boast anything close to a 60% overturn rate before they were promoted."
It really pays to research and read before making such a comment.
First of all, the average SCOTUS reversal rate for all circuit courts of appeals decisions SCOTUS hears on appeal is ~75%.
Second, declaring Sotomayor to have a reversal rate of 60% clearly ignores the 200+ cases SCOTUS never bothered to hear.
Nate Silver has a decent breakdown over at FiveThirtyEight.com.
Your point about the GOP not being able to block this nomination is spot on, but it would be foolish to go hog wild in opposition to this candidate - as this is what the Dems want most.
Shooting from the hip with weakly supported claims of racism will produce a political backlash.
Posted by: MikeBoyScout on May 28, 2009 11:02 AMThis can be a huge positive, confirm her but only after totally using her up.
Posted by: JDH on May 28, 2009 11:02 AM"This can be a huge positive, confirm her but only after totally using her up."
The only way to get you like justices appointed is by winning elections.
IF it is even possible to 'use her up', then the Republican Senators who will vote for her will be used up by organizations like the Club For Growth (which has a wonderful record as an indicator of a lost Republican seat when it enters the fray)
IF Sotomayor cannot be 'used up', then the attacks shall likely produce a political backlash for Republicans from women and Hispanics - both are demographics that are growing, and where the GOP is exceptionally weak.
Additionally, exactly which Republican Senator is going to lead the attack on Sotomayor? Sessions??? Hatch? (he voted to confirm her in 98) Grassley???
Look, the right political move - the one that helps win elections - is to swallow the loss and move on. There are other issues and judicial appointments to come in the future where having credibility will be important. Fighting Sotomayor is a lost and pointless battle.
EXCERPT: "...the judges of inferior courts often "make law," since the precedent of the highest court does not cover every situation, and not every case is reviewed."
Posted by: MikeBoyScout on May 28, 2009 11:51 AMI was fishing to see if somebody knew if 60% was a reasonable figure or not. Off the top of my head I thought it was excessive. You didn't answer the question really.
Did Roberts have a 60% overturn rate before being seated? Did Souter? Ginsberg? Alito? Scalia? That's what I want to know. Where does she fit in?
Also, you didn't really read all of Torture's 60 inches of post did you? My god man, get a job.
Posted by: G Jiggy on May 28, 2009 11:54 AMOf course it goes without saying that Mikeboyscout felt the same way when Democrats were filibustering an exceptionally qualified nominee like Miguel Estrada.
Shooting from the hip with weakly supported claims of racism will produce a political backlash.
Her words were very clear, Mike. They aren't "claims", but fact and on the record.What is even more amusing is that over at the leftist hate site Huffpo, there's an article today by Abby L. Ferber, who in attempt to minimize Sotomayors ignorant and bigoted statement, she makes one of her own instead:
"And I am willing to take Sotomayor's comments one step further. I not only hope, but expect, that more often than not a wise woman of color will reach a better conclusion than a white man, or white woman for that matter (there are of course always exceptions, such as Justice Thomas, and you can bet the Republicans will always find them)."~ Huffpo contributor Abby Ferber
The gift that keeps on giving from the Democrat/Identity/Hypocrisy party. Apparently, the left has never stopped the "high tech lynching" it started against Clarence Thomas some 20 years ago.
Posted by: Rick D. on May 28, 2009 12:00 PMI am going to summarize the bulk of your post and respond to it, then hit a few minor points.
You are using "law" in a different sense than EVERYONE ELSE HERE. So when you say "applying the law makes law," yes, in the sense that it adds to the caselaw. But this is not what the topic is: it's about "legislating from the bench." You see those as the same, but your case to make is not that "judges make precedent," but that this is not distinguishable from legislating from the bench. And you utterly fail to make that case, you merely handwavingly assert it.
You are engaging -- incompetently or dishonestly -- in straw man fallacy. And your other point, that public policy is taken into consideration by courts, has never been denied by anyone, and is also a straw man fallacy.
I am not going to bother responding further to your nonsense on those issues, as they are at best -- by definition -- irrelevant to the discussion, and at worst, represent a dishonest attempt to obfuscate. That's the bulk of your post, which saves a lot of time.
Nothing in what you quoted gave the court the remedy to strike down the laws that are unconstitutional
False. And many judges and lawyers agree with me.
...this was perhaps the greatest supreme court decision of all time...do you even know the name of it?
If you actually knew what Marbury v. Madison SAID, you would know that John Marshall agreed with me too. He did not say that he was inventing a new law; he said that his view was that the Constitution granted the Court this authority. As did Alexander Hamilton, writing as Publius, long before Marbury. Marshall and Hamilton both disagree with you, and agree with me.
you just state the conclusion [in Ledbetter] you having without showing your reasoning
If you understand the case you don't need me to explain my reasoning, as it is obvious. Just read Scalia's majority opinion.
by quoting the statute and giving the reasoning of the majority and the minority on this case, proving my point that you gys almost never talk about a "specific case aand its reasoning."
You're an idiot. Since I don't go into detail in a particular comment, you think this "proves" that I "almost never" talk about the specific case and its reasoning!? I've actually discussed the Ledbetter case in detail on multiple occasions. I see no reason to go over it all here.
[Her written opinions] would be a better basis on whicih to criticize her.
Straw man fallacy; I did not criticize her except in her claim that she will reach better conclusions (in specific cases, or in general, either way) because she is a "wise Latina." And her speech is a perfectly reasonable basis on which to criticize her in that way. You several times assert that I generally criticized her views or her approach to the law: you're lying.
All trial court decisions are public.
Irrelevant. I didn't say the decision wasn't public, I said the opinion was not published. And it wasn't ME who said so, it was the six members in dissent of the appellate decision. To quote Judge Cabranes:
This per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit. It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at he core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination. ... This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.
You don't know what you are talking about.
"To do otherwise would be a serious and significant violation of state sovereignty."
No, it wouldn't, because where federal courts have jurisdiction to decide they override state sovereignty
You are making my point: at this point they are not deciding state law issues, they are deciding what federal law is, and whether it preempts the state law. Of course federal law preempts state law in many cases. The federal judge cannot make state precedents, it can only make federal precedents, some of which preempt state law.
Consider, for example, a state law that says discrimination (left undefined) in employment is legal. The State Supreme Court rules that this means that ALL discrimination in employment is legal, even based on race and gender, and upholds that meaning, and its application.
The SCOTUS then says those forms of discrimination are illegal, and remands it back to the state. This is not an example of the federal court deciding what state law says. The State Supreme Court still holds that ultimate power. It just means that federal law preempts, and that however the law is interpreted, this particular effect is unconstitutional. So the State Supreme Court's ruling that this is the proper interpretation of that law is still holding, but the State Supreme Court must then either throw out the law entirely as unconstitutional, or change its opinion of its proper interpretation, or somesuch.
there is no clear line between legislating from the bench (contradicting clear words in constitution or statutes) versus filling in gaps and resolving ambiguities and deciding remedies and deciding things for which there is no clear written words
Sometimes there is; sometimes, there isn't. For example, Roe v. Wade. That was a clear example of legislating from the bench. And no, I am not talking about the emanations and penumbras, I am talking about the Court's mostly arbitrary invention of the trimesters as bright lines for for deciding what states can regulate. This is the job of the legislature. The Court can say, "we do not recognize the right to abortion after viability," but then it is up to the legislature to determine what those lines should be.
This was clear legislation from the bench, and it was wrong. The Congress or the states should have been left to make those sorts of determinations, but the Court didn't want to allow that, as it might lead to more problems and chaos. That's no excuse, however.
No where in the us constitution does it say that campaign dollars are speech.
That's a red herring. The Court has consistently (and properly) ruled that when the intent and substantive effect of a regulation is FOR THE PURPOSE of restricting speech, that this is therefore to be held to similar scrutiny. It's not that "money == speech," it's that "regulation intended to restrict speech == regulation restricting speech." And Breyer's reasoning is that this is JUST FINE! Because restricting certain speech can have a positive effect on the public debate. So it's OK for me to shut you up in a certain way, if it helps some other purpose.
He doesn't realize how fundamentally anti-democratic it is to allow the government to determine what types of political speech can be restricted.
You know, go read the decision, I am sure it is many pages full of policy considerations.
I did. And that's the problem. Breyer is a consequentialist. He tries to predict what policies will have the best effects on society instead of simply upholding the plain meaning of the First Amendment.
"His job is not to determine what is beneficial to society,"
You are wrong, they cite benefit to society all the time in deciding legal issues
You make this logical fallacy a lot. You claim that because the court does it, that therefore it is a good or acceptable thing. That's obviously stupid.
"Dishonest?"
Very much so.
It's a pretty fair assumption you're conservative. You are, right? And you know OBama's not, right? And you know a Latina from the Bronx is likely not conservative? And it's fair to oppose someone because you disagree with them....on policy grounds, right?
All correct.
Since all that's right, there's no suggestion of error on my part much less dishonesty.
Now you compound your dishonesty because you don't get from those points to your endpoint: that these things lead to my (potential) opposition of her nomination. I can disagree with her and wish for a better pick, but I will not oppose her nomination for ANY of the reasons you listed above. I will only oppose her if I think she is incompetent, or of a poor disposition, or if I think her method of deciding cases is -- like Justice Breyer's -- incompatible with the purposes of our constitutional republic.
"I already told you this does not enter into it for me;"
I disagree, it's what motivates you
You're a liar.
you DIDN'T EVEN READ HER DECISIONS
And as I have not criticized her decisions or decision-making process, that is irrelevant.
AND YOU DON'T KNOW THE BASICS OF THE LEGAL SYSTEM
Yeah, you're not convincing anyone of that.
I see dishonesty in you because I really can't believe you guys actually believe the erroneous stuff you say
Shrug. You've failed to show anything I've said is erroneous. You've relied almost entirely on straw men. I've proved you were wrong on several matters, including your claim about the unpublished opinion and common law being in our state Constitution.
Actually mr. pudge the conservatives say all the time ...
I didn't, and no one here did. You're just admitting you're making a straw man fallacy.
It's the convention on torture which I quoted the other day.
I saw no quote or reference of any kind.
Go read the torture convention.
You seem to have skipped Article 1. Hint: there is no definition in it of "severe."
it says in plain words, emergencies do not justify torture...
And it does not define what we did as torture.
The bottom line is all these conservatives who ...
... are not here and are not relevant. I don't argue for other people who are not here.
You can fix it by admitting that the torture convention is our law
Yes.
that it bans torture even in emergency situations
Yes, though it does not define what methods are torture, and hence, does not define the methods WE used as torture.
and that means those who want us to torture in a ticking time bomb scenario should logically be advocating a change in that law
No. I advocate, as many in our history have going back to our nation's founding, that the President, while not granted permission to violate the law, has the POWER to violate the law, and in certain situations may choose to do so for a greater good, to save lives. And if a nuke were about to go off in L.A., and the President authorized torture to find out where it is, from someone whom we knew had the information ... it would be illegal, but not wrong.
While I love the rule of law, I recognize that sometimes the law should be violated, in extreme situations. I might break the speed limit to get a dying person to the hospital. I might discharge a weapon in violation of local law in order to kill an assailant. And I might torture someone to save thousands of lives from a nuke.
When this happens, we don't act like it was legal. We accept the consequences for that action, which means submitting to the law enforcement authorities, who would then decide whether or not to prosecute, and if they do, we would subject ourselves to the will of the jury and judge. (Or in the case of the President, to the Congress.)
You missed the law that is called the Convention on Torture
No. You forgot to say which treaty you were referring to. As the CAT does not define what methods are torture, it's a very vague document in regard to our current situation, where these methods used are not clearly torture. The Geneva Conventions (the portions we have ratified) are much more clear, but only apply to certain types of prisoners.
So what I said doesn't apply to you, only to lots of other conservatives.
Why would you assume it might apply to me? Because you're dishonest, frankly.
you thought states had a blank slate
You're lying. All I said is that you were wrong that all states incorporated common law via their Constitutions.
you can't deal with common law law making
You're lying. Nothing I said implied this in any way.
you are unaware there is federal common law
You're lying. I said the federal government did not incorporate English common law into our law. That's a very different thing than saying there is no federal common law, which I didn't say or imply.
you never deal with the fundamental point which is ...
... a straw man fallacy.
Obviously this subject interests you and is important, so I urge you to develop better arguments.
I'm not the one whose main points are all straw man fallacies.
Right now, I give you an "F" for making unsupported arguments and not doing your research.
Coming from you, that's practically a compliment, because almost everything you said was false or irrelevant or fallacious.
It's interesting to witness how easily a people gives up its liberty.
Really? How come Hispanics don't revile the Democrats for Estrada?
“I have absolutely no idea about the science of global warming ... But if the science is right, we have relegated ourselves to killing the world in the foreseeable future — not in centuries to come, but in the very near future. And at some point, someone is going to have to say 'stop.'”
Not that it IS killing the world, but that it is "if the science is right."
She's wrong about that too, since "the science" does not say that. But it's not as bad as what you said she said, which is that it IS killing the world.
One of the points of N. Silver's article (and others if you follow the links) is that reversal rates that are comparable are hard to create, and not too useful in any event.
For example, Earl Warren had a zero reversal rate as he never sat on an appellate bench. The statistic is meaningless in his case.
For example, Justice Thomas served on the D.C. Circuit Court of Appeals for less than one year (March 1990- October 1991)
For example, Justice Kennedy sat on the 9th circuit from 75 to 88.
Given the spurious "60%" reversal data is out there, it is probably likely that Silver will put his mind to normalizing this data,
but i think a better question to ask is if this statistic is so important, why haven't we heard it before?
"I was fishing to see if somebody knew if 60% was a reasonable figure or not. Off the top of my head I thought it was excessive. You didn't answer the question really."
Well, my answer is depending how one looks at the data, she is either above average compared to her appellate peers, or extremely above average on being upheld in comparison to her appellate peers.
I'd have to dig quite a bit for data on sitting members of SCOTUS, because the statistic hasn't been used much at all before - in my memory.
Posted by: MikeBoyScout on May 28, 2009 01:08 PM"How come Hispanics don't revile the Democrats for Estrada?"
Have you an hypothesis Gary?
Posted by: MikeBoyScout on May 28, 2009 01:14 PMSome judge.
No. I am saying she did not SAY what you said she did. She is responsible for what she says, but not for your misstatement about what she said. She did not say global warming is killing the world as you claimed; she said it is doing so "if the science is right." That conditional matters.
she only refers to the science that says we're killing the world, and not the science that says it's a bunch of hooey.
Right. It's still a pathetic statement, as you deftly point out here.
That's how I view what she said. She agrees with the science. Else why bring it up?
And she will rule based on her belief that we are killing the world.
I understand how you can disagree with me though.
Does anybody on this board think that is a good idea... that she should be forced to say she misspoke? Is she not independent enough to be responsible for what she says/believes?
"Does anybody on this board think that is a good idea... that she should be forced to say she misspoke?"
And how would one force her? I assume you think the Republicans should force her, but they are out voted on the Judicial Committee 11-7.
Even if a Republican had the courage, the wit and the ammo to back her into a corner, they don't have the power on the committee. Leahy can and will just gavel it down.
Posted by: MikeBoyScout on May 28, 2009 02:24 PMHe thinks what she said is damaging.
Posted by: Gary on May 28, 2009 02:27 PMMarvin Gaye had a song about the relationship this administration has with people who want in, it goes sumptn' like this.
Pull the string and I'll wink at you, I'm your puppet
I'll do funny things if you want me to, I'm your puppet
I'll be yours to have and to hold
Darling you've got full control of your puppet
Pull another string and I'll kiss your lips, I'm your puppet
Snap your finger and I'll turn you some flips, I'm your puppet
Your every wish is my command
All you gotta do is wiggle your little hand
I'm your puppet, I'm your puppet
I think it is important that she be confirmed and start leveling opinions right away. There is nothing that will kill Obama's second term and Democrat control of Congress quicker than this woman's views seeing the national light of day. A true racist, hard left radical.
Posted by: G Jiggy on May 28, 2009 03:41 PMI am going to lay it out for you, what she has argued on the record is that not only does she intend to let her race and gender influence her decisions. She and the President, who also really isn't that smart, have advanced the case that to allow yourself to decide a legal case based upon which side you identify with.
OK so you are a black man and a predominantly white jury either convicts you or decides a case in favor of a white individual based upon their stating that they did so based partially or wholly upon the fact that they were inclined to side with someone whose skin color is white.....guess what? In the legal world of Obama and what's her name, you have been convicted fairly and you have no grounds for appeal based upon that. Get it, if we are to start allowing juries and judges to decide that those of the same skin color as themselves have a compelling reason to be granted preference....guess what? There are far more whites in the population than blacks and there are far more white judges than black ones and the chances are that the person or persons deciding your case are white AND if you agree with Obama or what's her name you are saying that it would be justice if your case was decided on the basis of skin color or gender or race.
I am no lawyer, but this caser is self evident and I am surprised that it has not been made more of.
This line of reasoning is so immature it astonishes me that anyone would defend it, it just is antithetical to everything this Country has stood for.
Posted by: JDH on May 28, 2009 08:24 PMThe more this confirmation rolls along the more I believe that she may not be confirmed. I was reminded today of how Bush's first pick went (whatever her name was). This seems to be following that disaster. Sotomayor now has people on the right AND left pissed off, notably abortion rights groups are freaked: She's Catholic! (And you know what that means) AHHHHHHHHH!
Posted by: G Jiggy on May 28, 2009 11:06 PMAs I often say, Obama isn't that smart, the only reason he and his followers think he is is because the NYT and most of the majority of the rest of the sycophant press keep saying he is.
Posted by: JDH on May 29, 2009 05:40 AMYes Cjiggy, but you've forgotten to input the data in the formula in order to calculate the outcome when dealing with how the same comment(s) will be spun when dealing with the Democrat party and its lap dog enablers- MSM-.
Take a racist comment like Sotomayors is uttered by any group. This is only a detraction of about
-10 point deduction. Since we aren't working on the same level playing field, we need to apply :
Liberal identity math.
Minority Conservative male : -27
White Conservative male : -25
Minority Conservative female : -20
White Conservative female : -15
White Liberal male : +15
Minority Liberal male : +25
White Liberal female : +30
Minority Liberal female : +35
The ignorant, racist comment by sotomayor still has her at a +25 even with the point deduction applied. Now, think back to what "crime" Trent Lott committed by wishing an old white segregetionist a happy 100th birthday (Got Byrd?). Not one utterance of racism, yet he had the label slapped on him and was assigned his -10 deduction which brought him to a score of -35. Obviously, Lott then had to resign from his position as Majority leader and ultimately resigned from the U.S. Senate altogether to help his party escape further undeserved embarrassment.
Never assume we are playing on the same level playing field when dealing with the Liberal Identity party/Mainstream Media outlets. There is definately a sliding scale of "racist" comments and this theorem has proven out time and again.
Posted by: Rick D. on May 29, 2009 06:01 AMNow, use your imagination and envision three white, uniformed KKK members with clubs outside a polling station calling people racial names, and tell me if the situation would be different.
I eagerly await the Panther defenders.
Posted by: Gary on May 29, 2009 07:31 AMhttp://online.wsj.com/article/SB124354585930464037.html
I would only add that on the face of her actual record, Sotomayor is a pretty good pick for conservatives by a Democrat president. A potential bonus we should think about is her Roman Catholic affiliation, and what that does to the balance of the court for up coming Roe v. Wade / Abortion issues. I think it is reasonable to believe she will at least bring thought of Life to the issue.
Furthermore, to the extent she does not turn out to be a flaming 'socialist' on the bench, so-called conservatives should think about how she got to this position. Under Bush the first, there was a practice of actually utilizing the time tested approach of advice & consent of both party's of the Senate. Say what you will about the conservative cred of D'Amato, a Republican voice had a say in Sotomayor's advancement.
She may not be perfect, but we are far more likely to move the conservative ball forward in the judiciary with principled co-operation and winning elections than whacked out accusations of racism on the slightest and single comment of a judge who has spoken and ruled in volumes.
think about it.
Even a blind squirrel finds a nut now and then. :-)
Posted by: MikeBoyScout on May 29, 2009 10:57 AMActually, no. Bush Sr. had a deal with the N.Y. State senators that they would have a say in promoting every 1 in 4 federal judges to positions. Sotomayor was Moynihans choice if I have it correct. Of course, once the Democrats ascended to power, they are not nearly as reciprocol in keeping that pragmatic approach to bi-partisan politics.
...whacked out accusations of racism on the slightest and single comment of a judge who has spoken and ruled in volumes.
So what you'd prefer is two different standard applied to the same speech. One for Democrats and another for Republicans. Let's face it Mike, yourself and Colin Powell aren't Conservatives, you're merely wishy-wash, half-assed Democrats that can't decide which side of the fence your on. We have no such quandry in assigning you to your designated party affiliation.
I do agree on Sotomayor though. We could do alot worse as I said in comments above. I harken back to Clinton's Baird and Wood nominations before landing with an outright communist lawya' from the ACLU that we ended up with instead (Ginsburg). Ms. Sotomayor will quickly relegated to her inferior judicial place by scholars like Scalia, Alito and Roberts, so that is not a concern of mine. Until the ABA comes out with its rating of her as a judge, we'll keep playing "whack-a-mole" with her not by some "accusation" as you assert, but by her own verbal utterances that are racist and bigoted to the standard objective observer willing to admit the truth.
How did you say it?..."think about it"
Posted by: Rick D. on May 29, 2009 11:04 AMYou should provide consultation to President McCain, Governor Rossi, and Senators Nethercutt & McGavick.
snark.
Posted by: MikeBoyScout on May 29, 2009 11:19 AM
Losers? Yes.
Candidates Noonan likes? I'm not familiar enuf to comment.
No idea how McCain bent over backwards with Hispanics in his campaign against Obama. I do know he backed off a less than perfect but workable immigration reform bill that was playing well with Hispanics in order to 'secure the base', and that didn't win him nearly as many Hispanic votes as GWB.
Re Specter - hate him or not, his leaving is 'the nut' for Obama getting every one of his Judicial appointments through, and Republicans are powerless to stop it. I don't view that as better than a 'liberal' Republican.
People are free to take any path they choose for political victory, but a pragmatic approach more often brings success than a radical approach.
Denigrating Powell ain't going to ever win an election or sway a vote to Republicans. And a successful conservative politician once said the 11th commandment is to never speak ill of a fellow Republican. After all, what did Powell do? Voice his opinion/endorsement?
Lastly, how many posters on this board were old enough to vote for the last Republican Governor of this state? If you like the way things are going, there's no need to change and/or moderate.
What is it they say about the definition of insanity? :-D
Posted by: MikeBoyScout on May 29, 2009 11:37 AMIgnoring the rule of law (i.e. allowing 20 squatters to invade our sovereign borders and settle here without permission)is not a "pragmatic approach", but yes, it may bring some short term political success as the Democrats have found out. That's why you're not a conservative,Mike. You don't adhere to principles that conservatives have and you're entirely too willing to acquiesce to liberals in what you call a "bi-partisan" effort and they refer to as "that's a win for us". You just can't see the forest through the trees, Mike.
If you're as old as you say you are Mike, you'll also remember the demise of the Democrat party was being predicted not too long ago as well.
That's why short term thinking isn't the best approach as a principled party platform. Yourself and Michael Medved both disagree with me of course, but so what?
Thanks for your offer of help, but none is needed.
Just out of curiosity, if you are a WA resident, how many Republican Governors and Senators have you voted for? Name them?
Re Noonan, like i said, even a blind squirrel finds a nut now and then
Posted by: MikeBoyScout on May 29, 2009 12:07 PMThe prediction of a permanent Republican majority was a meme of Rove who was the 'genius' who brought us GWB (in part by libeling McCain in 2000 in S. Carolina) who in addition to his own unprincipled approach to governance,
(SOURCE: http://www.zimbio.com/George+Bush+Quotes/articles/24/Bush+ve+Abandoned+Free+Market+Principles+Save)
let idiots like DeLay tarnish Republican fiscal and ethical credibility without so much as blinking.
Sure Republicans did well in '02 and '04, but if you believe for a moment this was based upon a conservative approach to government and not short-sited political campaigns, how do you even begin to explain why Republicans went from a significant majority in the House to an insignificant minority in 4 years? Or better yet, how Republicans went from a weak majority in the Senate to a powerless minority?
With you RickD., this is simply rhetorical. But for others who are interested, watch the favorability polls on Satomayor as this 'racist' meme plays out. The knee-jerk reaction is what Axelrod & Obama expected and they will use it to push, promote and consolidate their political agenda.
Being 'against' is not a strategy, it is a tactic; a tactic which works much better if you have a veto power. The Republican party lost any veto power it had on Obama when it allowed Specter to be forced out. We'll see how that goes.
Posted by: MikeBoyScout on May 29, 2009 12:25 PMAsked on NPR Thursday what he thought of recent remarks by Limbaugh and Gingrich who are calling Supreme Court nominee Sotomayor "racist" and saying she should withdraw, Senate Judicial committee member and Chairman of the National Republican Senatorial Committee, John Cronyn (R-TX) answered:
"I think it's terrible. This is not the kind of tone that any of us want to set when it comes to performing our constitutional responsibilities of advice and consent....Neither one of these men are elected Republican officials [and] I just don't think it's appropriate and I certainly don't endorse it. I think it's wrong."
Maybe the Club for Growth should go after him?????
Posted by: MikeBoyScout on May 29, 2009 12:41 PMAs for Powell, he voted for Obama, Carter, LBJ. Why exactly should we listen to him? Do you want the GOP to be like Carter, Obama, and LBJ?
I Don't. I'd rather be right, and alone, then wrong with a bunch of wrong followers.
If the GOP will not stand up to racism any longer, than it's not a party for me.
Posted by: Gary on May 29, 2009 12:46 PMHaving accepted defeat in a majority rules system, why do you bother yourself with posting to a political discussion on an unusually sunny day in May?
No need to move out of the Republican party Gary, it appears that the party is moving ever more rapidly towards your position of 'alone' and out of power approach.
Now, let's go after Cronyn for daring to supporting that turn-coat Specter AND Limbaugh in the course of only a month. No doubt he must be a SOCIALIST! snark.
Posted by: MikeBoyScout on May 29, 2009 12:56 PMYou think this is the Democrat party that John Kennedy would recognize? Hardly. I come from a long line of "Democrats" that still think the party is what it was back in the 1940's-1960's. They're woefully mistaken...that party died long ago. I look at a party filled with reprobates the likes of Harry Reid, Nancy Pelosi, Rod Blagojovich, Roland Burris, Ted Kennedy, KKK grand Keagle Robert Byrd, Chuck Schumer, (I could probably fill the page but I won't)and think to myself, "how can someone claim to be the same party affiliation as these losers,liars, racists, murderers, frauds,etc and still look at themselves in the mirror"?
I don't have the answer to that question, but maybe one of the resident "democrats' can answer it for themselves.
Posted by: Rick D. on May 29, 2009 01:01 PMYes, by all means let's go after Cornyn for endorsing Democrats. Thanks.
What do you want? Do you know what Powell's positions are on the issues? His positions are those of Democrats. Why do you want to follow him?
Why must you? Do you not agree with Republican ideals? Do you agree that the state should seize the means of production, and energy, and your healthcare?
I don't. Powell does. What about you?
"I come from a long line of "Democrats"..."
Oh dear! Maybe you are genetically compromised?
@ 128 Gary on May 29, 2009 01:02 PM,
Re Powell - You know,I think it would be more useful to simply not be suckered in to a meaningless argument. Cheney SHOULD have answered the question by saying there is room for both Limbaugh and Powell and the market place of ideas will determine the path forward.
Instead, his knee-jerk self-serving response fires up folks like yourself into a cannibalistic jihad on the only viable conservative party you've got.
The Republican party's "ideals" mean nothing to me. How the Republican (or any other party) exercises my ideals in the process of meeting my needs for government does matter.
The Republican party BLEW IT when they had governing power.
Fighting a lost cause against Sotomayor on (at best) thinly supported claims of 'racism' and castigating Powell (a political non-entity unless he's attacked) won't prevent Democrats from 'seizing the means of production'.
And certainly ceding political power on principle won't either. but, to each his/her own.
The DCCC is using Cornyn's words today against House Republicans. So, you and Cornyn and the DCCC are in perfect alignment.
"Judge Sotomayor's judicial temperament was raised during her 1997 confirmation hearing to the appeals court. Sen. Jeff Sessions, the Alabama Republican who recently became the ranking member of the Senate Judiciary Committee, told Judge Sotomayor that she was out of bounds when she criticized mandatory minimum sentences from the bench during one sentencing proceeding.
'I do think that a judge, would you not agree, has to be careful in conducting themselves in a way that reflects respect for the law and the system.' Mr. Sessions said.
Judge Sotomayor said she probably should not have used the word "abomination" to describe the guidelines, but that her record showed she didn't let her personal opinions affect her rulings.
'I do what the law requires, and I think that is the greatest respect I could show for it.' she told Mr. Sessions."
Posted by: G Jiggy on May 29, 2009 01:42 PMWhich "words" she chose poorly they did not say.
For a judge, she sure has trouble (according the White House) getting her ideas across, doesn't she?
And it doesn't make any difference what the Dems think about his comments. Cronyn's comments are only political red meat because he dared to disagree with an entertainer.
Take away the need to be pure and in line with Limbaugh and approach the process on the facts, and the Dems don't have red meat.
As i said, Axelrod and Obama foresaw the knee-jerk (TILT!) reaction Sotomayor's appointment would bring and shall use it to promote, push and consolidate their political agenda at the expense of conservatives.
Maybe you and Rush are right, let's see how it plays out. Heck, that "Operation Chaos" went well, didn't it?
ps - i don't know who will win the Senate seat in PA in 2010, but (mark it down) Toomey will lose.
Posted by: MikeBoyScout on May 29, 2009 01:55 PMBecause she cannot separate her personal feelings from the rule of law.
Posted by: Gary on May 29, 2009 02:17 PMWhat she said was racist. Does anybody here wish to agree with what she said? If not, why not? If you cannot bring yourself to admit that what she said is racist, than what is?
Posted by: Gary on May 29, 2009 02:22 PMWho do you think it was that caused the White House and Obama to have to respond to this? Anybody? Bueller... Bueller?
It was people like Rush and Newt that forced this, the same way it was Cheney who forced Obama to have to defend his terrorism policies.
Fighting these people gets results. It sure as hell wasn't Cornyn who made them get defensive and realize there is a problem.
Posted by: Gary on May 29, 2009 02:28 PMUnfortunately for our president, life doesn't come with "do overs", and "do overs" is not something the Democrat Identity party tolerates, so what we have to ask Mr. Cornyn and Mr. Obama is "why do the Democrats get a different set of rules than us"? It's this kind of spineless leadership from the GOP that has me drifting from the party as I see the distinct differences between them and the Democrats fade with time.
Posted by: Rick D. on May 29, 2009 03:18 PM"Who do you think it was that caused the White House and Obama to have to respond to this? Anybody?"
hmmm. that's a tough one Gary.
I'm going to go W A Y out on a limb here and guess it was the question about the 'controversial' 2001 Sotomayor speech from Fox White House correspondent Major Garrett.
:-D
"Fighting these people gets results"
And what result has it got? Words from Gibbs?
Thanks be to Buddha! We'll all sleep better tonight now that we got "results"!
TOO FUNNY! :-D
Posted by: MikeBoyScout on May 29, 2009 03:25 PMAnd yes again, the GOP leadership is drawing *no* lines between the GOP and the Democrats, so why bother being a member at all? The GOP leadership has chosen the Democrats over their own base.
Steele said today he's worried about what MSNBC will say about us attacking Sotomayor. I'm not kidding, he really did.
Why the change? What's the difference between yesterday and today?
Do you want her to be confirmed? I'm now unclear.
Posted by: Gary on May 29, 2009 03:34 PM"Supreme Court nominee Sonia Sotomayor wants to give felons the right to vote. It's her opinion that the federal Voting Rights Act can be used to force states to allow voting by currently imprisoned felons. Ms. Sotomayor's dissenting opinion in a 2006 felon-voting case should make senators extremely wary of confirming her for the high court.
In Hayden v. Pataki, a number of inmates in New York state filed suit claiming that because blacks and Latinos make up a disproportionate share of the prison population, the state's refusal to allow them ballot access amounts to an unlawful, race-based denial of their right to vote. Eight of 13 judges on the liberal-leaning Second Circuit dismissed their arguments, and the 11th Circuit Court of Appeals ruled likewise in a similar case.
Yet, operating on a dubious and extremely broad reading of the Voting Rights Act, Ms. Sotomayor dissented from the decision. In a remarkably dismissive, four-paragraph opinion, she alleged that the "plain terms" of the Voting Rights Act would allow such race-based claims to go forward."
From what I've been reading, the "weak legal mind" side of the argument seems to be more correct and I am tending to agree.
Posted by: G Jiggy on May 29, 2009 03:47 PMSome people here don't want that pointed out.
Let me spell it out for you.
First, it is a foregone conclusion Sotomayor gets confirmed, and with Republican votes. (see ideological purity cost of 60 Senators in the Dem caucus)
Second, her foolish few statements that require wilder speculation to understand them to be anything but innocuously egotistical, where not only well known (she's been a SCOTUS shortlister forever on the Dem side - that's why Mohnihan got her on the Federal bench)
by Obama & Co., the propagandist points of 'racism', 'reverse racism' were being circulated before Obama reportedly made the decision.
{SOURCE: http://firstread.msnbc.msn.com/archive/2009/05/18/1936057.aspx}
Third, folks like you have been going off the deep end against Dems & Obama at the slightest provocation since his nomination.
The Noise Machine, Spinniest Zone, the wanna-be President former & ethically challenged Speaker, Michelle Malicious, et al - all stand to make big money for going ape s__t over this, bumping their PR, selling their advertisement and books....
THEY want this battle, because it won't be anything but a battle between Republicans!
There is already a good selection of a_inine quotes to use for the Republican held seats but up for election in Texas, North Carolina, New Hampshire, Ohio, Florida & Louisiana in 2010.
If having insufficient votes for a filibuster is good and pure, just think how great it'll be for pure ideological doctrine debate on 'speeches' to bring the Dems 66 members in their caucus in 2011! YIPEE!
So - OUT with Cronyn and anyone else who votes for Sotomayor and her 'racist' .. uh ... hmmm .. .
oh yeah! talks.
But then again, there's no way 95% of Hispanics could ever see anything but Latino pride in the statement
"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."
Nah, that couldn't happen.
Posted by: MikeBoyScout on May 29, 2009 04:10 PM95% of Hispanics read that with pride? What about you? Do you agree with it? If so, why? If not, why not? And why do you think you can speak for 95% of Hispanics? And if 95% of Hispanics are wrong, should we join them in their wrongness?
Thanks.
Posted by: Gary on May 29, 2009 04:16 PM"Do you want her to be confirmed?" Yes, as soon as possible. Her confirmation is inevitable.
"And why do you think you can speak for 95% of Hispanics?" I don't. I think I can look at the numbers on Thursday
"Hispanic voters favor confirmation by a 66% to 15% margin."
and project/predict forward.
66/76 = 86. 95 is 9 away.
SOURCE: http://www.rasmussenreports.com/public_content/politics/current_events/general_current_events/87_expect_sotomayor_will_be_confirmed_45_say_she_should_be
"And if 95% of Hispanics are wrong, should we join them in their wrongness?"
No. But if they're correct, why wouldn't we join them? You assume she's racist based on what? And it is totally unreasonable to believe it was poor word choice or over confidence and ethic pride?
"Do you agree with it?"
Sure! I agree a Latina woman from a housing project in the Bronx who got an academic scholarship and graduated Summa Cum Laude from Princeton, sits on the 2nd Circuit Court of Appeals thinks herself every bit as good and even better than any class of her competitors.
And if not white males, what other class might a Latina woman judge compare herself to?
tempest in a teapot. Dems are loving this. Newt and Hannity have already fallen down the slippery slope of Ricci v. DeStefano as justification of the 'racist' accusation. More to follow.
Posted by: MikeBoyScout on May 29, 2009 04:41 PMQuiz for Mike- Is that statement sexist or racist? or both?
Posted by: Rick D. on May 29, 2009 04:43 PMGlad we got that out of the way. The rest was all smoke and mirrors about how pointing it out hurts the GOP.
Thanks, Mike.
Posted by: Gary on May 29, 2009 04:48 PM"Quiz for Mike- Is that statement sexist or racist? or both?"
You're genetically compromised liberal lineage is showing Rick_D_Obtuse_One.
What kind of school gives a "quiz" with only one (poorly structured) question? :-o LOL
ANSWER: Neither.
Posted by: MikeBoyScout on May 29, 2009 04:50 PMADD much?
You @ 142: "Steele said today he's worried about what MSNBC will say about us attacking Sotomayor. I'm not kidding, he really did."
Granted Steele is an idiot, but why do you think he might be worried?????
Posted by: MikeBoyScout on May 29, 2009 04:58 PMFalse.
There are 2 correct answers in today's reality:
A- if said by a Republican, both
B- if said by a Democrat, neither
Once you devolve into the name-calling you've already conceded the argument, Mike. So, like other trolls of your low level of debate acumen, you'll be ignored by me herein.
Posted by: Rick D. on May 29, 2009 05:28 PM17. Name calling is juvenile and just plain silly - isn't it?
Posted by MikeBoyScout at May 29, 2009 01:09 PM
Wow. Thanks for that, I just looked up the dissents.
Unequivocal crap is what they are.
The argument of the dissenters is that because something has the RESULT of disenfranchising one race more than another, that constitutes disenfrancisement ON ACCOUNT OF race.
The Voting Rights Act of 1965 says you can't discriminate in voting on account of race. This law DOES NOT discriminate on account of race. It does not, by any look at the facts, take race into account AT ALL. Therefore the Voting Rights Act clearly does not apply. Period, the end.
Sotomayor even has the cajones to state in her dissent that "the duty of a judge is to follow the law, not to question its plain terms," as if the plain terms didn't plainly disagree with her.
Utter insanity.
Putting this idiot on the Supreme Court sends the message that your actions are not what count, what counts in is your gender/race/ethnicity, this woman is not only unfit for the Supreme Court she is a disgrace to the legal profession.
Posted by: JDH on May 30, 2009 08:50 AM"With respect to the underlying concerns and feelings about people being left out, about our society not addressing all the problems of people, I have those concerns,"
"I will take those to the grave with me. I am concerned about the kids on those buses I told you. I am concerned about the kids who didn't have the strong grandfather and strong grandparents to help them out of what I would consider a terrible, terrible fate. But you carry that feeling with you. You carry that strength with you. You carry those experiences with you"
Posted by: BLT on May 31, 2009 08:06 AM