So far I remain unconvinced that Sotomayor -- unlike some of her probably future colleagues on the Court, such as Stevens, Ginsburg, and Breyer -- is an "activist" judge. By "activist" I mean that the judge does what she thinks is good and right, rather than what the law says.
As I've mentioned several times before, Justice Breyer makes the case explicitly in his book Active Liberty that the Constitution's words are less important than its supposed "purpose" and whether the likely "consequences" of a law fit that intent. So, for example, Breyer can uphold a law restricting political speech -- clearly prohibited by the text and history of the First Amendment -- because the "purpose" of the First Amendment is to "promote public discussion," and a restriction on one person's speech might do so.
Literally, to these people, the words of the law don't matter, if some higher "purpose" of the law is met. Conservatives, on the other hand, tend to believe that the purpose of the law is in upholding the principle embodied by the language itself: we encourage public discussion by refusing to allow such restrictions on speech, not by relying on a judge to tell us what might and might not do so. And if that for some reason doesn't work, we collectively amend the law, rather than asking a judge to make that determination for us by ignoring the words of the law.
So I'd ask Sotomayor what she thought of Justice Breyer's short volume, and his words and their implications.
But I'd also ask what she thought of President Obama's judicial philosophy, as expressed in Audacity of Hope. In that book, then-Senator Obama criticized "strict constructionism" and its adherents. He wrote:
Some, like Justice Scalia, conclude that the Founding Fathers will tell us all that we need to know, and that if we strictly obey the rules they've laid out -- for example, that the only rights protected in the Constitution are those that are written in plain English as understood by those who wrote them -- then democracy is respected, and fairness is achieved.
Unfortunately, none of that is true. First, Justice Scalia is not a strict constructionist (few people are) but a textualist. This it not a minor semantic difference, because Obama emphasizes strict and complete adherence to the text, which is a feature of strict constructionism, but not of textualism.
Second, no one -- not even strict constructionists -- believes the Founding Fathers told us all that we need to know to preserve democracy and fairness, as even they believe it's merely a starting point, and that further amendments (such as, in particular, the 13th, 15th, and 19th amendments) may be necessary.
Finally, no strict constructionist, nor Scalia, believes that the only rights protected in the Constitution are those that are written out, because any strict constructionist will recognize the Ninth Amendment, which says that other rights may exist.
Now, President Obama's lack of understanding (hopefully his misrepresentations were not intentional) are beside the point, but they lead into something worse.
Far wose.
Obama notes correctly that Breyer is, in essence, a consequentialist ("take the practical outcomes of a decision into account", even if they violate the letter and intent of the law), but it gets worse than merely agreeing with Breyer (which is bad enough). He then writes:
The historical record supports such a theory. After all, if there was one impulse that was shared by all the Founders, it was rejection of all forms of absolute authority, whether the king, the theocrat, the general, the oligarch, the dictator, the majority, or anyone else who claims to make choices for us. But it's not just absolute power that the Founders sought to guard against. Implicit in its structure, in the very idea of ordered liberty, was a rejection of absolute truth, the infallibility of any idea or ideology, or theology, or ism ... any tyrannical consistency that might lock future generations into a single, unalterable course, or drive both majorities and minorities into the cruelties of the inquisition, the pogrom, the gulag, or the jihad.
There's so much wrong with this it's hard to know where to start. I'd love to spend hours picking over the utterly nonsensical notion that the Founders rejected absolute truth, when in fact the nation was founded on, and because of, the absolute truth that all men are created equal and are endowed with certain unalienable rights that government exists to secure.
It's true that some -- perhaps most -- ideologies can be dangerous, and we should not force future generations into them, let alone the current one. But the idea that man has unalienable rights that government exists to secure is not one such ideology. And it is this ideology from which conservative -- textualist, originalist, and strict constructionist -- judicial philosophy flows. It's the idea that in order to secure these rights, we must have rules, and follow those rules, until such point as they are changed, or we find they come into direct conflict with those rights.
It's not "tyrannical" to secure liberty for ourselves and our posterity, and to set up a system thatr people are "forced" into that secures those rights ... as long as they are, in fact, secured. Forcing future generartions into Social Security, or Medicare, or ObamaCare, or other such massive obligations ... that can be seen as tyrannical. Forcing them into a society where government respects their liberty isn't.
But to bring it back to Sotomayor and her hearings, I'd ask her if she agrees that some notion of a historical rejection of absolute truth or authority of any kind -- explicitly including that of the Constitution itself -- justifies a Justice ignoring what the Constitution actually says in favor of pushing for certain higher "purposes" or preferred "consequences."
I sincerely hope she would disagree with such a fundamentally irrational view as expressed by our President. She could go a long way to gaining my support by doing so.
I'd also ask her a (slightly) more practical question. She is not allowed to answer questions about cases that might come before her, so I'd pose a hypothetical similar to: if Congress passed a law saying that all women in private companies may be paid less on alternate Thursdays, would you find this law to be unconstitutional? The Constitution does not prohibit this, and this law was written later to specifically override all past laws that forbid such discrimination. So her answer would be telling: if she says she would find it unconstitutional, then that means she's putting herself above the law.
Cross-posted on <pudge/*>.
Posted by pudge at July 12, 2009 03:59 PM | Email ThisAlphabet Soup: I don't buy it. She can consider herself to be superior to six of her colleagues by virtue of being a wise Latina, but that doesn't mean it will adversely affect her actual rulings, just her opinion ABOUT her rulings, which I really don't care much about.
That is: it's not an encouraging sign from her to say such a thing, but it doesn't seriously inform us how she'll actually decide cases.
I also wanted to note, but did not, that I don't see much evidence that she is an activist who applies a "liberal coloration to the law," no moreso than any other leftwing judge (or rightwing judge who may apply a "conservative" coloration). That is, she appears (in my limited research) to mostly reasonably apply precedent, even in the Ricci case. I disagree with the precedent she applied, and I think she should have taken the opportunity to overturn that unreasonable precedent, but I don't think her refusal to do so is itself unreasonable for a judge in her position.
The fear is what she will do when she is in more of a position to "make law." Hence the importance of uncovering her specific judicial philosophies.
No one justified any injustice here.
But still, I am very interested in why you believe that the Fourteenth Amendment is not relevant here.
Because the Fourteenth Amendment doesn't apply to private businesses. It's about discrimination by government.
Perhaps you think that equal protection of the laws is denied when discrimination is allowed against certain people on every other Thursday. Fine, make it allowed against anyone. Now it's equal.
With regards to your revised example... I don't know what the point would be, but if it has been established that the federal government can set a national minimum wage through the Commerce Clause, what makes you think that the reverse wouldn't be true? It seems more a weird and unrealistic example than some kind of constructionist litmus test.
Posted by: demo kid on July 12, 2009 08:17 PMI never did argue that. I stated the fact that no one was justifying it. Ruling that it's constitutional isn't justifying it, you know. There are lots of constitutional things that I am against. I would fight against passage of such an idiotic law. But that's different from ruling it to be unconstitutional.
I don't know what the point would be
To better understand how she would interpret the Constitution.
... if it has been established that the federal government can set a national minimum wage through the Commerce Clause, what makes you think that the reverse wouldn't be true?
Let her say that, then. I have my doubts whether she would say in the Senate hearing that she would permit a law that allows discrimination, but if she would, then let her say it.
a weird and unrealistic example
Exactly. If it's realistic she won't answer it. And if it's not weird, chances are, it's not unrealistic.
Her statements about wisdom of a Latina over that of a White guy should not be taken lightly and her documentation should be thoroughly challenged by the opposition. The challenges of Roberts and Alito were tough interrogations by the opposition and there is no reason why these should not be similar if not more so. A majority of voters want to see her feet held to the fire about past actions and the GOP not roll over. If they do roll over and she breezes through, I place the blame squarely on the GOP for being too coelenterate-like without a backbone. Just as was the case for Roberts and Alito, I'd expect a plurality of the minority party to vote against her.
Posted by: KDS on July 12, 2009 09:25 PMShould this exclude someone from being on the SCOTUS ? Perhaps.
Posted by: KDS on July 12, 2009 09:33 PMHuh? You pretty much changed the hypothetical to be a weird rewrite of minimum wage laws that has no real, substantive purpose. (Talking about how pay "may" be changed would really only affect the lower end of the labor market.) Where's the discrimination there?
And if it's not weird, chances are, it's not unrealistic.
Call it "weird" AND "unrealistic". You haven't shown that it would prove anything about her judgements, unless she gave the senator that would ask a question like that a big ol' WTF? look.
@8: Her statements about wisdom of a Latina over that of a White guy should not be taken lightly and her documentation should be thoroughly challenged by the opposition.
Ugh. So that means that Alito shouldn't have been confirmed, since he admitted a bias for immigrants?
ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point. ... 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 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.
See? I mean, how can he be expected to rule impartially in cases dealing with immigrants or discrimination, when he said that he can't help but think of his relatives in situations like that?
Posted by: demo kid on July 12, 2009 10:14 PMNo, I didn't. You're missing the point: I rewrote anti-discrimination laws (as I stated up front). What this hypothetical law says is that you may discriminate against individuals and groups, in pay, on alternate Thursdays, not that you may lower everyone's pay equally.
A law specifically saying that women may be paid less might violate the 14th's equal protection clause; so I change it to being able to discriminate against anyone. A law saying that anyone may be discriminated against would not violate the constution, it would simply overturn our anti-discrimination laws to allow discrimination on alternate Thursdays.
Alito ... admitted a bias for immigrants
All he says is that he thinks about their circumstances, not that his opionions or decisions or anything else he does on a professional level are in any way biased toward them. On the other hand, Sotomayor directly tied her race and gender to her decisions (though as I've mentioned before, I don't really care if she thinks her decisions are better, as long as she does not decide based on her identity politics; but she'd have to be an exceptional person to simultaneously have a belief she's superior because of her race and gender, and not let her views of her race and gender bias her decisions).
Also, is it worth pointing out that you are misrepresenting KDS, implying that her quote means she should be voted against, when the quote says no such thing?
I mean, how can he be expected to rule impartially in cases dealing with immigrants or discrimination, when he said that he can't help but think of his relatives in situations like that?
Because that's what judges do every day.
What judges don't do every day is claim superiority based on their race and gender.
You're putting words in my mouth. I did not say that type of statement alone is grounds for her to be not confirmed, a similar nature to what Alito said. That is only a small piece of the puzzle, that would constitute IMO, perhaps she should/shouldn't be confirmed.
Posted by: KDS on July 12, 2009 10:31 PMRational basis test? Strict scrutiny? The information you've given would certainly, certainly, have the law thrown out by the Court. Read the document: To make all Laws which shall be necessary and proper
Yes, the constitution does prohibit a law like this, even ignoring the special considerations that laws governing race and gender rightfully receive under constitutional review. Once again, I find your analysis of the constitution leaving much depth to be desired.
Posted by: John Jensen on July 13, 2009 12:33 AMThe rational basis wouldn't apply: in this case, all this law would do would be to reduce the restrictions of current law. Certainly the government has a rational interest in reducing existing stautory restrictions. It could create these restrictions; it could completely remove those restrictions; why could it not reduce them in part, as long as it did so equally for all? Obviously, it can.
And by invoking strict scrutiny, you're committing the question-begging fallacy, since that test only applies when there's some reason to think the law is unconstitutional on its face, and you've not even attempted to demonstrate that it is.
The information you've given would certainly, certainly, have the law thrown out by the Court.
Not based on the Constitution.
Yes, the constitution [sic] does prohibit a law like this
Where?
Once again, I find your analysis of the constitution [sic] leaving much depth to be desired.
Coming from you, that means nothing at all.
(2) In the event there exists a mis perception, the Constitution is not law, but the constraints within which US Code (a.k.a. law) must fall within. The determination one way or another is based upon judgment which has always been and will forever be arbitrary to a degree.
I've made this comment before, but I'll make it again - any judicial philosophy claimed by a judge (i.e. strict construction, textualist....) is merely a a philosophy claimed by a judge to justify to his/her colleagues the basis upon the arbitrary judgment is made.
In the end, the Sotomayor nomination is the very best any Republican could hope to have from a Democratic president and a Senate composed of a filibuster proof 60 Democratic caucus.
Time to swallow and move on.
Translation, she's a racist POS, but we don't care and since we won you should just STFU.
Nice. Swallow your own, putz..
Posted by: Alphabet Soup on July 13, 2009 09:19 AMOh dear. You are quite upset. "racist"? really???
Perhaps you're not wearing your Aluminum Foil Deflector Beanie this morning?
:-D
Those are not grounds to not answer it, in fact. Hypotheticals are asked all the time. Please don't think she could really get away with saying "I won't answer that because it is realistic" and then say "I won't answer that because it is unrealistic." It doesn't work that way.
Furthermore, the issue would not be decided upon constitutionality per se, but case law.
False. That makes no sense. It's a NEW LAW, that overrides all existing statutes. The only thing that could cause the law to be overturned would be fundamental super-statutory law, like the Constitution. Not caselaw (except for constitutional caselaw, of course).
the Constitution is not law
False, of course. It's the highest written law of the land. The Constitution is not statute, but it is law.
I've made this comment before, but I'll make it again - any judicial philosophy claimed by a judge (i.e. strict construction, textualist....) is merely a a philosophy claimed by a judge to justify to his/her colleagues the basis upon the arbitrary judgment is made.
You've said that, and you are just as wrong now as you were then. It makes no sense whatsoever, ignoring that many opinions are written where judges rule one way which is obviously against their own personal opinion about what the law SHOULD be. For example, Justice Thomas is personally opposed to the Texas anti-sodomy law, but saw nothing unconstitutional in it. This happens often (though not as clearly, perhaps, as in Lawrence v. Texas).
In the end, the Sotomayor nomination is the very best any Republican could hope to have from a Democratic president ...
That has nothing to do with anything I am saying, or any point I am making. If I oppose Sotomayor's nomination, it will not be because I hope to get something better, or hope to avoid getting something worse. I will oppose her if, only if, and absolutely if, I believe she is unfit to serve. I make no political calculations on this. Some of us actually go by principle. Don't pretend that because you don't, no one else does.
I think your post was very good. It hit points that you are well-versed in and it raised interesting questions. Questions about judicial philosophy are important no matter if she is confirmed or not. If confirmed, I would think future attorneys could benefit from knowing where she is coming from and thus make sure to address questions she may raise based on her philosophy.
Thanks for the post.
Posted by: tc on July 13, 2009 10:21 AMIf you or I oppose the nomination (on principle or political calculation, or Aluminum Foil Deflector Beanie failure) it just doesn't matter, because the time to prevent her accession to the SCOTUS was last November. Like it or not, that ship has sailed. If one is interested in obtaining SCOTUS nominees more to your liking, then winning elections shall require some level of principled political calculation.
Postings from conservatives that routinely include 'racist' as part of her characterization are not going to be helpful in winning elections, and will, in fact, be detrimental unless and until there are more objective facts related to her judicial record. I'd recommend you use your role as moderator to moderate such discussion. Your call.
The other points of our disagreement won't be solved via debate or discussion. I get your point, but think the points I made are (at least) worthy of thought and consideration when addressing the issue.
Posted by: MikeBoyScout on July 13, 2009 10:24 AM
MikeBS: If you or I oppose the nomination ... it just doesn't matter
Then my post is uninteresting to you, and your thoughts on it are uninteresting to me. I think the opinions of citizens about such things matter. You don't. Shrug.
Postings from conservatives that routinely include 'racist' as part of her characterization are not going to be helpful in winning elections ...
What part of "I make no political calculations on this" did you not understand? I don't care. I really don't. If I think she is a racist, I will say so, regardless of the political cost or benefit. My goal here is to evaluate her as a potential Associate Justice of the Supreme Court. Nothing more or less.
I'd recommend you use your role as moderator to moderate such discussion. Your call.
I will not censor opinions about such public figures. Far worse things have been said about politicians I *like and support* than saying that Sotomayor -- who explicitly and intentionally and seriously expressed the belief that she, as a Latina woman, will reach better conclusions than white males -- is a "racist."
I am not convinced she is a racist. I am fairly convinced she subscribes to identity politics, which is in some ways worse. But even if I were convinced she is NOT a racist, I wouldn't censor opinions about it, just as I don't censor obviously false epithets about Bush, McCain, Ron Paul, and others on my side of the aisle.
(For example, WVH was allowed free reign to accuse Ron Paul of racism, with IMO far less evidence. It was only her incessant posting of it, even in off-topic discussions, and her attacks on supporters of Ron Paul [and others] as supporting of racism that caused me to remove all further comments from her in my posts.)
The government does not have a rational interest in reducing existing restrictions every other Thursday for one gender. The law would fail the rational basis test -- indeed, the very first measure of constitutionality during judiciary review.
And by invoking strict scrutiny, you're committing [sic] the question-begging fallacy, since that test only applies when there's some reason to think the law is unconstitutional [sic] on its face, and you've not [sic] even attempted to demonstrate that it is.
Strict scrutiny is used in suspect classification cases. Absolutely the courts would evaluate the quasi-suspect classification of women obviously contained within that law. (And while women have not been afforded suspect classification by the Court, if a law like that were to pass it would almost certainly merit elevating gender to this platitude.)
Where? [sic]
As I said, the Necessary and Proper clause. But it wouldn't get to this point because rational basis would fail. Case law would handle this law.
Many constitutional rights are not printed in plain text. There is no 11th Amendment saying congress can't establish a law dictating payment based on gender in an arbitrary biweekly fashion, but there is no way it would withstand constitutional muster for the variety of reasons outlined. The reason your constitutional analysis is wanting is because you seem to implicitly dispute the fact that constitutional case law is relevant for a jurist to consider. It is very difficult to have a strong grasp on case law without years of study, which is why your analysis in this case is very superficial. And why no one should trust you that this law is constitutional. Nor should we aspire for an America where legislative discrimination is constitutional.
The government does not have a rational interest in reducing existing restrictions every other Thursday for one gender.
Ahem. We're talking about the amended law: reducing restrictions on ALL discrimination for that day.
The law would fail the rational basis test -- indeed, the very first measure of constitutionality during judiciary review.
False. You misunderstand rational basis. Rational basis is in regards to "necessary and proper," as you said, but "necessary and proper" is in regards to "the foregoing powers." The question is not simply whether this law is "necessary and proper," because all it is doing is reducing existing statutory restrictions: if this law failed the rational basis test, so would the restrictions this law is reducing.
It is absolutely nonsensical to say there is a rational basis for CREATING restrictions, but NOT for REDUCING them. That is not how it works.
Strict scrutiny is used in suspect classification cases.
Which we've already eliminated. So, no.
Case law would handle this law.
Question-begging. As it is a new law overriding existing law, caselaw could only apply in regards to constitutional violations.
Many constitutional rights are not printed in plain text.
There has never been recognized a right to not be discriminated against by private businesses.
The reason your constitutional analysis is wanting is because you seem to implicitly dispute the fact that constitutional case law is relevant for a jurist to consider.
That's obviously false, since I've explicitly invited you to tell me what part of the Constitution has been violated by this law. You've mentioned two standards: one of them does not apply, and the other can only apply IF there is a constitutional issue touched on (which you've failed to identify).
Nor should we aspire for an America where legislative discrimination is constitutional.
Please don't be so dishonest. This law does not create discrimination. It ALLOWS it. And OF COURSE discrimination is constitutional. No serious person doubts that.
He writes, "Strict scrutiny is used in suspect classification cases. Absolutely the courts would evaluate the quasi-suspect classification of women obviously contained within that law. (And while women have not been afforded suspect classification by the Court, if a law like that were to pass it would almost certainly merit elevating gender to this platitude.)"
What part of Wiki-crap did you copy and slap this together from Rizzo?
"elevating gender to this platitude?
Wow.
Posted by: Amused by Liberals on July 13, 2009 11:28 AMOf course, many Court rulings -- including Sotomayor's -- apparently express the belief that white males should not be as protected from discrimination as other groups, which also violates equal protection.
Regardless, the revised law does not violate equal protection at all -- it's not possible for it to, since it applies equally to everyone -- so therefore equal protection does not come into play, and therefore "strict scrutiny" of its equal protection implications does not apply, since there are no such implications.
Judge Sotomayor's expression of hope that a wise Latina with certain experience would more often reach a better decision than a white male lacking that experience raises an obvious question about her ability to render objective decisions.
Any comparison of decision-makers based in part (however large or small) on their gender, or their ethnic or racial background is by direct inference -- racist.
It's pretty difficult to get beyond that without ignoring the obvious.
Posted by: Amused by Liberals on July 13, 2009 11:34 AMI believe that either Roberts or Alito stated in their confirmation hearings that yes they too have bias', but the bias needs to be checked at the door. I think it is in reference to Sandra Day O'Connor's statement to the same affect, which by the way the question Sotomayer was referencing.
To state that a person can be without bias, I would believe is unachievable. For example, your very comments demonstrate a bias against liberals. So by your second paragraph, does that make you also a racist? Are you not stereotyping a class of people and stating degrading things about them? Is it okay to degrade certain classes of people (e.g., liberals) but not others? This is why I don't understand you second paragraph. It appears overly broad and an overgeneralization. I am not sure if that is what you meant.
Posted by: tc on July 13, 2009 11:46 AMWhy don't you don't call it racist when one states unequivocally that a Latina is a better judge of facts than a white man?
Posted by: Amused by Liberals on July 13, 2009 11:49 AMIf the "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" remark made in 2001 needs to be addressed further, then why not take it on?
There is 7+ years of decisions she has written and participated in since then. Are there any decisions where she has used and/or supported that logic to reach a decision? I have seen none.
IMHO, it was poor word choice at its worst, and far more likely to reflect her own pride in herself and her experience. Do we need to subscribe to political correctness?
But if there is a case to be made, make it.
Posted by: MikeBoyScout on July 13, 2009 11:54 AM
Amused: I am unconvinced it was unequivocal: it could have been that she MEANT it to only apply to certain types of cases. I'm unsure. I'd ask her.
If she does believe in Latino superiority not just in certain Latino-related cases, but overall, then yes, I'd call that racist. I am not convinced she does believe that.
MikeBS: I have stated before that evn if she is racist, that doesn't mean she's ruled based on those racist views. I could believe that men are inherently smarter than women, and still uphold all laws and rights for women, consistently and appropriately.
That said, even if she doesn't let her alleged racism infect her decisions, that doesn't mean it's good to have a racist on the Court. So if she is a racist, that's still a big problem.
And no, it is irrational to say it is "poor word choice." It's clear from the context she intended explicitly to say what she did: that she would reach BETTER conclusions than white males. That was her POINT. She spent time building up to that point: she said she disagreed that wise men and women would reach the SAME conclusion, that, rather, a wise Latina would reach a BETTER conclusion. The only question is whether she meant that GENERALLY -- in regard to virtually all cases -- or whether she meant it in cases where a "wise Latina" would have specific experiences that would aid her in making decisions.
I do not see -- as I believe Jensen did -- the latter implication in her statements, but that doesn't mean she didn't intend it.
And she said it more than once, not just a lone remark in 2001.
And I am not making a case here: I am saying what problems exist, what questions I have. I am waiting for answers. When I get them, then I will make my case, whatever it is.
Although I question whether ANY white guy would have had his career ended over it. Certainly almost any RIGHT-WING white guy.
But this doesn't mean Sotomayor should be excluded for it; it could just mean that the left tends to overreacts (and it's terribly laughable, given this, that MikeBS talks about "political correctness," when any right-winger would not have even gotten to a hearing after such a statement).
Forgive the poke, but your logic that the MSM would do it reminds me of my father's 'if your friends were jumping off a bridge, would you follow them..' reaction to silly arguments I'd make as a boy.
If the MSM's standards are substandard, then how does imitating them help?
Frankly, I appreciate the comment she made and the self confidence it shows, and I think it would be far better if WE welcomed such comments from any accomplished person in any profession regardless of race and/or gender.
If WE did so now, and made such a positive example of it, WE would have a better leg to stand on when and if the MSM made a big deal of it in the future.
They did it, so I am going to do it too is just.... lame.
Posted by: MikeBoyScout on July 13, 2009 12:14 PMI have no idea what you're talking about. I am responding to the original hypothetical in the OP.
Posted by: John Jensen on July 13, 2009 12:23 PMShrug. Your loss.
If Congress passed a law saying that anyone working in private companies may be paid less on alternate Thursdays, would you find this law to be unconstitutional?
Um, yes, that would fundamentally change every argument I've made. I still believe congress may need to provide a rational basis for extending this freedom on every other Thursday only. It seems fairly arbitrary, and is without additional information, but I am not certain of the constitutionality surrounding that.
Posted by: John Jensen on July 13, 2009 12:30 PMActually it is your loss, since this is the first time on this blog that you've admitted a [possible] mistake: a law that singles out women for allowed discrimination could violate equal protection. Congratulations, pudge, you are joining the ranks of the normal, fallible human race.
Posted by: John Jensen on July 13, 2009 12:38 PMNot every one, for example:
I still believe congress may need to provide a rational basis for extending this freedom on every other Thursday only.
Nope. You have rational basis backward. The challenger of the law must show there is NOT a rational basis. Further, again, it is REMOVING a restriction in the law, so you don't need a rational basis for that.
We're interpreting the same speech in broadly different ways. The entire conversation was based around female discrimination issues, so I believe she meant her "wise latina" in those cases relating to discrimination.
However, it was obviously a very poor choice of words. Even if you disagree with her point, there is something bad about having a sentence of such obvious stupidity out there on the public record. Given the length of her statements, it's also difficult for full context to be given to the public -- or even for us to agree on that context.
Posted by: John Jensen on July 13, 2009 12:46 PMYes.
tc, this is about Sotomayor, not me, but . . . I'll bite.
I believe that either Roberts or Alito stated in their confirmation hearings that yes they too have bias', but the bias needs to be checked at the door. I think it is in reference to Sandra Day O'Connor's statement to the same affect, which by the way the question Sotomayer was referencing."
Sotomayer has made similar statements in numerous similar contexts which of course makes the statement even more noteworthy.
"To state that a person can be without bias, I would believe is unachievable."
Agreed.
"For example, your very comments demonstrate a bias against liberals. So by your second paragraph, does that make you also a racist? "
Bias in-itself is not an inherently bad thing, and an ideological bent is not a racial classification. Come on tc you are smarter than that (??). You aren't Rizzo under cover are you?
"Are you not stereotyping a class of people and stating degrading things about them? Is it okay to degrade certain classes of people (e.g., liberals) but not others?"
Yes, I follow the lead of liberals by stereotyping and degrading them for their foolish ideas. A class of people who professes a consistent unified system of beliefs invite such classification and one that argues for idiotic destructive ideals are fair game for ridicule.
To the extent that you may feel that my classification of liberals is amusing because I find their ideas ridiculous, you are only reinforcing the premise that my amusement is justified."
"This is why I don't understand you second paragraph. It appears overly broad and an overgeneralization. I am not sure if that is what you meant."
Make no mistake. Even as efficacious as my views are, if I was being considered to render judgments in defense of the rights of a whole nation under the U.S. Constitution, my nom de plume, "Amused by Liberals" would (and should) utterly disqualify me. That, of course is not the relevant question. I need not be a surgeon (let alone a good one) in order to observe that a blind one should not be appointed to perform surgery on people.
I am not a judge, but unfortunately for us, Sotomayor and many like her are. A jurist who has not resolved in their own mind the capacity to analyze the law without passion or prejudice is dangerous. The destructive acts of such judges happen every day where judges like Sotomayor make rulings based on policy preferences that have nothing to do with the law. A Supreme Court justice who openly makes racist comments, and stirs racial and gender enmity, sets a standard for other judges to follow that does immeasurable harm to all of us. Anyone regardless of partisanship who fails to recognize this important point does so at their own peril.
The fact that Sotomayor opened her mouth and made such obviously racist, sexist, and bigoted comments may do us all a favor by revealing her defective character, but it raises a larger question about her judgment as a potential justice of the Supreme Court. I don't happen to believe that her candor about being dishonest recommends her to act as an interpreter of our laws. To the contrary.
Bias, yes everyone has bias. I would hope that Sotomayor's partiality would be towards the strict interpretation of the law rather than her self-description as a superior judge of issues based on her ethnic or gender viewpoints.
I thought you learned your lesson, John. Why do you insist on lying about me?
We're interpreting the same speech in broadly different ways. The entire conversation was based around female discrimination issues, so I believe she meant her "wise latina" in those cases relating to discrimination.
Fine. But it was not explicit, and I am not convinced she meant it. In withholding judgment about her statement I invite her to so clarify.
However, it was obviously a very poor choice of words.
How do you mean? In that she didn't make it entirely clear she meant "in matters of female/Latina discrimination"? Is that how it was a poor choice of words, or some other way? Because if you mean she shouldn't have said it even if she WAS so explicit, then saying what you mean is not a "poor choice of words," in my book.
Given the length of her statements, it's also difficult for full context to be given to the public -- or even for us to agree on that context.
The question is not context, but how these words fit into that context. And she will have opportunity to explain that. If she does as many Democrats have done, and say that she was merely saying she brings her experiences with her into cases, then she's lying, because she explicitly intended to say -- whether generally, or in certain contexts -- that her decisions would normally be SUPERIOR TO those of white males. That is not a mere statement of bringing her experiences with her, but of superiority because of those experiences. It's not the same thing, and it was what she obviously intended to say.
Whatever she meant, I hope she doesn't lie about it. I'd rather have someone who admits they are generally superior by virtue of their identity, than someone who lies about it.
It is not removing a restriction in the law. It is removing it on an arbitrary schedule -- or, in other words: apply restrictions on an arbitrary schedule. I am unconvinced that the order in which bills passed reflects a great deal on its constitutionality.
Posted by: John Jensen on July 13, 2009 12:58 PMKeep embarrassing yourself.
It's entertaining.
Thanks
Sorry about belaboring that point, but proposing that IS in fact unconstitutional under the Fifth Amendment (or the Fourteenth, depending on what level of government is passing the law). Without context, there is no justifiable public purpose for discriminating against a single group, and pretty much doing this just for the hell of it isn't defensible.
While you can certainly interpret the Constitution to mean whatever YOU like, you're example is largely meaningless. Providing abstract examples may be good for mental wanking, but it provides no useful information for vetting a candidate.
@41: The challenger of the law must show there is NOT a rational basis. Further, again, it is REMOVING a restriction in the law, so you don't need a rational basis for that.
It's not removing a restriction, it's changing one, and it is a government action regardless of whether private entities benefit. But the simple fact is that it depends on who it covers, and why. If it covers everyone, it's a weird law that probably could be defeated by other means, but it isn't necessarily "unconstitutional". Passing a federal law that would revise current laws to allow employers to pay their black or female employees less, SPECIFICALLY BECAUSE THEY'RE BLACK OR FEMALE, violates the common interpretation due process and equal protection of the Fifth Amendment (not the Fourteenth, which doesn't cover the federal government), unless there is some overwhelming public purpose to such an act.
As proof, look at the disputes around Enterprise Zones in U.S. cities. The Equal Protection Clause can be applicable in many of these cases, even if it only amounts to relaxing tax and wage laws (i.e., "removing restrictions") in certain arbitrary areas.
---
@31: Why don't you don't call it racist when one states unequivocally that a Latina is a better judge of facts than a white man?
A dishonest, cowardly conservative lie. Read the ENTIRE speech, instead of relying on the sound bite fed to you. She's making the argument that experience, not race or gender, is the issue here, and that biases due to experience are unavoidable. While she's probably arrogant about her own abilities, there is no demonstrable hint of "racism" there.
The true racism is assuming that all justices need to act like old white men to be considered "unbiased".
@34-35: And no, it is irrational to say it is "poor word choice." It's clear from the context she intended explicitly to say what she did: that she would reach BETTER conclusions than white males.
It is clear from the context that she would reach better conclusions than white males that haven't quite experienced the things she has regarding certain key issues. Maybe it's arrogant, but it's not racist.
I mean, maybe you're seeing something I'm not. Does she state that she has a genetic predisposition for better rulings? That having her reproductive organs in a different place makes her smarter? Point out that part of the speech for me, will you?
Posted by: demo kid on July 13, 2009 01:03 PMSorry about belaboring that point, but proposing that IS in fact unconstitutional under the Fifth Amendment (or the Fourteenth, depending on what level of government is passing the law). Without context, there is no justifiable public purpose for discriminating against a single group, and pretty much doing this just for the hell of it isn't defensible.
While you can certainly interpret the Constitution to mean whatever YOU like, you're example is largely meaningless. Providing abstract examples may be good for mental wanking, but it provides no useful information for vetting a candidate.
@41: The challenger of the law must show there is NOT a rational basis. Further, again, it is REMOVING a restriction in the law, so you don't need a rational basis for that.
It's not removing a restriction, it's changing one, and it is a government action regardless of whether private entities benefit. But the simple fact is that it depends on who it covers, and why. If it covers everyone, it's a weird law that probably could be defeated by other means, but it isn't necessarily "unconstitutional". Passing a federal law that would revise current laws to allow employers to pay their black or female employees less, SPECIFICALLY BECAUSE THEY'RE BLACK OR FEMALE, violates the common interpretation due process and equal protection of the Fifth Amendment (not the Fourteenth, which doesn't cover the federal government), unless there is some overwhelming public purpose to such an act.
As proof, look at the disputes around Enterprise Zones in U.S. cities. The Equal Protection Clause can be applicable in many of these cases, even if it only amounts to relaxing tax and wage laws (i.e., "removing restrictions") in certain arbitrary areas.
---
@31: Why don't you don't call it racist when one states unequivocally that a Latina is a better judge of facts than a white man?
A dishonest, cowardly conservative lie. Read the ENTIRE speech, instead of relying on the sound bite fed to you. She's making the argument that experience, not race or gender, is the issue here, and that biases due to experience are unavoidable. While she's probably arrogant about her own abilities, there is no demonstrable hint of "racism" there.
The true racism is assuming that all justices need to act like old white men to be considered "unbiased".
@34-35: And no, it is irrational to say it is "poor word choice." It's clear from the context she intended explicitly to say what she did: that she would reach BETTER conclusions than white males.
It is clear from the context that she would reach better conclusions than white males that haven't quite experienced the things she has regarding certain key issues. Maybe it's arrogant, but it's not racist.
I mean, maybe you're seeing something I'm not. Does she state that she has a genetic predisposition for better rulings? That having her reproductive organs in a different place makes her smarter? Point out that part of the speech for me, will you?
Posted by: demo kid on July 13, 2009 01:04 PMLet's try and stay precise.
What she said was
"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,..."
She never said 'superior' or 'decisions', and there are condition statements in it as well; "would", "with", "more" "than...who hasn't lived".
If she meant a Latina woman would make superior decisions, she never said it. And certainly that question could be asked.
But the quote is readily available, how about we stick to it when discussing it??
This statement speaks for itself without having to read any other part of any of her numerous speeches that included this provocative observation. Made in a number of forums, Sonia Sotomayor stated unequivocally that: "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." -Olmos Lecture at Boalt Hall School of Law, October, 2001
Bragging about her experience in such an irresponsible way is bad enough. It belies a basic insecurity about her qualifications and her perceptions of white males as her decided superiors. A truly confident judge would never focus attention upon themselves in this way.
Further as you observe, Sotomayor may be making the argument that experience, not race or gender, is the issue here, and that biases due to experience are unavoidable. However, the fact that Sotomayor obviously feels that she must express her opinion in an inflammatory, elitist, racist, bigoted, way, raises legitimate questions about her judgment as it should about anyone who would make such statements.
Would Sotomayor be a better judge than Jesus? What could she have possibly meant to convey about herself by making such a statement, artificially elevating herself, and arbitrarily denigrating others? Her mere postulation screams for recognition.
"Better than a white male"
" no demonstrable hint of "racism" there
Right, you bet.
Yes it is. It is doing precisely that. In YOUR opinion it may be doing so arbitrarily, but that's irrelevant, as this test only applies to an exercise of federal power, not a REDUCTION in an exercise of federal power.
I am unconvinced that the order in which bills passed reflects a great deal on its constitutionality.
I never implied that it did.
MikeBS: She never said 'superior' or 'decisions'
Read the whole context: she is contrasting to Judge O'Connor's statement: "Do women judges decide cases differently by virtue of being women? I would echo the answer of my colleague, Justice Jeanne Coyne of the Supreme Court of Oklahoma, who responded that 'a wise old man and a wise old woman reach the same conclusion.'"
Sotomayor responded, no, a wise Latina would reach a BETTER conclusion than a white male, when they "decide cases."
And come on, "better" and "superior" are synonyms. There's no distinction here.
and there are condition statements in it as well; "would"
"Would" just means, in this context, "if given the chance." Which now she will likely have.
"with"
Fine, if she has that "richness of her experience," she will decide cases better. She obviously believes she does have that.
"more"
That is not a conditional, of course, but a statement of quantity: "more often than not" is exactly equivalent to "more than half the time."
"than...who hasn't lived".
Right, another statement like the "with": if those men have not lived that life she has lived, which they haven't, they will reach inferior conclusions.
If she meant a Latina woman would make superior decisions, she never said it
A wise Latina would; yes, in fact, she did say that.
demo kid: Sorry about belaboring that point, but proposing that IS in fact unconstitutional under the Fifth Amendment (or the Fourteenth, depending on what level of government is passing the law).
Nope.
Without context, there is no justifiable public purpose for discriminating against a single group
You're missing some key facts: first, this does not discriminate against anyone, it merely allows it; second, it allows it against EVERYONE, not merely a single group. (And the only reason the 14th would apply is equal protection, and the 5th does not have equal protection, only the 14th.)
Providing abstract examples may be good for mental wanking, but it provides no useful information for vetting a candidate.
Only if you don't believe in following principles, but instead believe that every case is a law unto itself ... which in itself provides useful information.
It's not removing a restriction
Of course it is. Please don't deny what is so obviously true. Right now the government says you cannot discriminate in certain ways at any time. This would reduce that restriction, allowing it in certain times.
it is a government action regardless of whether private entities benefit
Yes, a government action that reduces an existing restriction. Perfectly reasonable, unless the Constitution requires the federal government to HAVE that restriction (it doesn't) or disallows it from piecemeal reductions (it doesn't).
If it covers everyone ... it isn't necessarily "unconstitutional".
Then let her say so.
Passing a federal law that would revise current laws to allow employers to pay their black or female employees less, SPECIFICALLY BECAUSE THEY'RE BLACK OR FEMALE
Yes, that is what I said: discrimination against ANYONE would be allowed, including against blacks or females.
... violates the common interpretation due process and equal protection of the Fifth Amendment (not the Fourteenth, which doesn't cover the federal government), unless there is some overwhelming public purpose to such an act.
False. There is nothing in the Fifth Amendment about equal protection; this is not a due process case in any way; and as discrimination IS obviously allowed by the constitution, it does not need to meet any public purpose test.
As proof, look at the disputes around Enterprise Zones in U.S. cities. The Equal Protection Clause can be applicable in many of these cases, even if it only amounts to relaxing tax and wage laws (i.e., "removing restrictions") in certain arbitrary areas.
Right, which is why I said in reply to your very first comment that the law would not be specific to women. So that is what I have been talking about since then. Those cases you cite only apply because GOVERNMENT treated those different areas differently. In the hypothetical law in question, the government is not treating anyone differently than anyone else. Businesses may choose to treat people differently if they wish -- that's the point of the law -- but that is allowed under the Constitution.
Consider that we had no laws against discrimination, like we used to have none. Could the federal government be forced by the Supreme Court to make some? Of course not. Could the federal government be disallowed from making a new law that restricted all discrimination (that we restrict now), except on alternate Thursdays? Of course not.
So why would the constitutionality be different in reverse: starting from outlawing it on EVERY day, and then allowing it on SOME days? It wouldn't.
Wow, talk about your tortured contortions of verbal diahrrea, Mike BS. She said "better conclusions", which is the same as superior, and yes, she did say it, so quit defending what can't be defended.
Posted by: Rick D. on July 13, 2009 01:40 PMWow. "Better" and "superior" are different words, and so are "conclusions" and "decisions".
Well that clinches it for me.
What happens if we created new restrictions that only applied for 13 days of a two week period? There would have be rational basis for not just the restrictions but the arbitrary imposition of them.
To be true, I have no idea if there is case law for this because it is such an absurd scenario (yet nearly the same as yours) -- but this hard sounds like Necessary and Proper to me.
Posted by: John Jensen on July 13, 2009 01:52 PMUse all the synonyms you like. Nobody's mind will change here, and God forbid there be a reasoned discussion using the actual words when we can use our thesaurus.
:-D
Posted by: MikeBoyScout on July 13, 2009 02:34 PMAgain, you have it backward. No one has to provide rational basis. YOU have to show there IS none.
And you can't, because obviously, any restrictions, if they can exist, can also exist only partially. If government can restrict business, it can do so in part if it chooses to, as long as it does so in a way that respects equal protection (which this does).
Even if the Court decided to bother with a rational basis test, the only rational answer is what it almost always decides: deference to Congress in deciding whether this is a reasonable way to limit government involvement in an area where government has no obligation to be involved in the first place.
MikeBS: meaning is more important than words used, and I correctly represented her meaning -- including emphasizing that the context is not entirely clear as to the scope of her claim of superiority -- so I don't see what your problem is.
Please. I find Alito to be as "inflammatory" as you find Sotomayor. If he were up for nomination, though, I'd be honest at least about why I would object to him, instead of inventing pathetic reasons based on a tortured interpretation of a speech.
Would Sotomayor be a better judge than Jesus?
Damn... he could have been nominated? Really?
@52: In YOUR opinion it may be doing so arbitrarily, but that's irrelevant, as this test only applies to an exercise of federal power, not a REDUCTION in an exercise of federal power.
The existence of a law, and changes to that law, are still exercises of federal power. The relevant issue is whether that power is being applied in accordance with due process and equal protection.
demo kid: Sorry about belaboring that point, but proposing that IS in fact unconstitutional under the Fifth Amendment (or the Fourteenth, depending on what level of government is passing the law).
Nope.
Wonderful argument! And wrong.
You're missing some key facts: first, this does not discriminate against anyone, it merely allows it; second, it allows it against EVERYONE, not merely a single group. (And the only reason the 14th would apply is equal protection, and the 5th does not have equal protection, only the 14th.)
The Due Process clause of the Fifth Amendment applies to the federal government in much the same way as the Equal Protection clause in the Fourteenth. It's relevant here.
Likewise, saying that it "does not discriminate against anyone" is patently false. It changes the law to make it conditional on a distinction that is absolutely meaningless and irrelevant to any apparent public purpose. Simply stating that it wouldn't discriminate because private entities would actually be doing the discrimination is incorrect as well, as this change would directly affect whether people could seek redress under the law.
Only if you don't believe in following principles, but instead believe that every case is a law unto itself ... which in itself provides useful information.
No, the argument that you're making is so abstract and absurd, it's worthless. A legal scholar can (and should be able to) get up in front of a crowd and lecture about basic principles of law, outline major schools of thought, place their theories in context, and even come up with a few crazy paradoxes and inconsistencies. I would expect no less from Sotomayor. However, what you're proposing is better suited for a gotcha question from a law professor teaching first-year constitutional law than a confirmation hearing for a Supreme Court justice.
Of course it is. Please don't deny what is so obviously true. Right now the government says you cannot discriminate in certain ways at any time. This would reduce that restriction, allowing it in certain times.
The restriction and the law are still in place, meaning that the constitutionality of the changed law (and the relevant application of government power) would be relevant. Otherwise, you could neatly get around every constitutional provision for equal protection with that technique! Just make a draconian law apply to everyone, then remove the law from people that you like.
And no, that isn't legal.
False. There is nothing in the Fifth Amendment about equal protection; this is not a due process case in any way; and as discrimination IS obviously allowed by the constitution, it does not need to meet any public purpose test.
Due process is the federal version of equal protection in this case, and a public purpose would be required to make these provisions relevant. You can certainly point out that this is an area that is somewhat contentious amongst legal scholars, and that your particular legal philosophy would have a stricter reading... but it's disingenuous to ignore relevant case law here. Assuming that your reading of the Constitution is automatically the correct one because it's yours is... well... silly.
Businesses may choose to treat people differently if they wish -- that's the point of the law -- but that is allowed under the Constitution.
That's not the point of the law you mentioned, though. Proposing that minimum wage laws be specifically amended to discriminate against women and African-Americans essentially means that these groups are deprived of their rights under the law due to a meaningless classification that has nothing to do with the public interest. Due process, equal protection. Ilegal.
Again, though, you're spouting off about legal cases with little context.
Posted by: demo kid on July 13, 2009 04:12 PMWhat weird circular logic. However, if you cannot provide a rational basis for blatant discrimination such as this, what exactly makes you think that it would be difficult to show that there is no rational basis for this type of discrimination? Again, this example is not without some form of context... without it, it really is just nerdwanking.
Posted by: demo kid on July 13, 2009 04:20 PMAre the semantics this paramount?
There is NO rational basis for applying restrictions part-time. Just as important to the restrictions are when they are implemented. Arbitrary implementation periods have NO rational basis. There, I have shown it.
If government can restrict business, it can do so in part if it chooses to
But can it do so arbitrarily? Your hypothetical hinges on this arbitraryness.
deference to Congress in deciding whether this is a reasonable way to limit government involvement in an area where government has no obligation to be involved in the first place.
True enough, it would be fine to defer to the elected branches if there were questions as to if something were truly arbitrary (certainly there'd be a justification for every other Thursday, or part-time effects). But with no justification at all for that quirk, I don't think it's as clearly constitutional as you say. Just as much as the restriction needs to be Necessary and Proper, so should other elements of the law such as implementation periods. I don't think any case law contradicts this, though it may not strictly enforce my case simply because there has likely never been such a law before the court.
You can see the leap I'm making is not incredibly far, though. If the restriction must be judged as necessary and proper, then so shall the lack of restriction on an arbitrary schedule be judged as necessary and proper.
Posted by: John Jensen on July 13, 2009 04:44 PM-
Yes, she did. More than once.
"Literally, to these people, the words of the law don't matter, if some higher "purpose" of the law is met."
- Posted by pudge at July 12, 2009 03:59 PM
Contrast
"MikeBS: meaning is more important than words used, and I correctly represented her meaning -- "
- @57 Posted by pudge on July 13, 2009 03:58 PM
Irony?????
Posted by: MikeBoyScout on July 13, 2009 05:06 PMDue process is not an issue here, and it DOES ensure equal protection, obviously.
Wonderful argument!
Um. You realize that it was as much of an argument as YOUR argument I was responding to, right? You simply made an assertion without backing it up in any way. I need to say nothing other than a negative assertion in response, since you said nothing to argue against.
The Due Process clause of the Fifth Amendment ...
... is irrelevant here. There's no due process issue being presented by this law. None. You've not identified any, either. You just keep saying "due process" without actually saying what the issue is.
Likewise, saying that it "does not discriminate against anyone" is patently false.
False. It's clear and obvious and rationally undeniable fact. This law does not discriminate against anyone. Totally true statement. How can you deny it? What part of the law discriminates against anyone?
It changes the law to make it conditional on a distinction that is absolutely meaningless and irrelevant to any apparent public purpose.
None of that has anything to do with due process, nor does it in any way back up your claim that the law discriminates against anyone. You're just (much less cogently) going over the same ground about rational basis that Jensen did.
Simply stating that it wouldn't discriminate because private entities would actually be doing the discrimination is incorrect as well
Well, no. It's clear and obvious and rationally undeniable fact.
this change would directly affect whether people could seek redress under the law.
Well, sure. And? If something is not illegal, people cannot usually get redress for it. That's how it works.
Otherwise, you could neatly get around every constitutional provision for equal protection with that technique!
You're committing the question-begging fallacy. I am saying there IS no equal protection violation (and you've offered no reason for anyone to believe otherwise). Not because of how the law came about, but because everyone is treated equally by this law. This is obviously true.
Due process is the federal version of equal protection in this case ...
No, it's not. They are two different things (which is why the 14th mentions both due process AND equal protection). There's no due process issue here.
it's disingenuous to ignore relevant case law here
OK, I'll bite: what caselaw are you talking about? Go ahead, enlighten us. I won't hold my breath. The point is that since it overrides existing law, it is a new law and prior non-constitutional caselaw won't apply. The only caselaw that will apply is constitutional caselaw, so ... tell me how it violates the Constitution. If you can.
Assuming that your reading of the Constitution is automatically the correct one because it's yours is...
... not remotely what I did.
What weird circular logic.
Shrug. It's how the system works.
... what exactly makes you think that it would be difficult to show that there is no rational basis for this type of discrimination?
There is no discrimination in the law. Please understand what is so obviously true.
Jensen: Are the semantics this paramount?
Shrug. You keep saying something needs to be provided, that doesn't.
Just as important to the restrictions are when they are implemented. Arbitrary implementation periods have NO rational basis. There, I have shown it.
No, that is merely assertion.
certainly there'd be a justification for every other Thursday, or part-time effects
Exactly.
But with no justification at all for that quirk ...
You have to play along, Jensen. No such law would be passed -- striking at the heart of anti-discrimination law -- without justification. It's easy to invent one, too, I just haven't bothered because it's beside the point. You want one? Fine. It's right there in the opening paragraph: "WHEREAS, the Congress recognizes the need to secure liberty for business owners in addition to discouraging certain types of discrimination; WHEREAS, the Congress has the power to balance those two interests ..." The End.
Just as much as the restriction needs to be Necessary and Proper, so should other elements of the law such as implementation periods.
Except that the "implementation periods" have to logically be assumed to be necessary and proper, if the restrictions themselves are, unless those periods can be said to fall under some other constiutional prohibition.
For example, let's say that we allowed discrimination only on Sundays. Jews could say, well, since we uniquely hold the Sabbath on Saturday, this adversely affects Jews in particular, therefore running afoul of equal protection. (Atheists could make the same claim: they tend to work hours on Sunday many Christians don't.) But if the implementation period does not fall afoul of equal protection or some other constitutional prohibition, I cannot see how it could run afoul of the rational basis test. That simply makes no sense: if government can restrict, it can choose to limit those restrictions.
It would be utterly insane for a Court to say, "you can restrict discrimination in whole, but not in part;" or, "you can restrict discrimination in part, but only if you started out that way: if you restrict it in whole, and then only do it in part, then you're violating the Constitution."
I am not denying that rational basis applies to this or any other law; I am saying, it cannot be used to justify throwing out a reduction of a restriction on a law that has already been assumed to pass that test.
For example, I don't care if the First Amendment says "Congress shall make no law" or "Congress shall not legislate." Same meaning.
Right. I forgot to turn on the lib-speak disgronifier. "Just because she says, does, and endorses racist things shouldn't cause one to leap to the conclusion that she is, indeed, a racist herself. She may simply have no control over her mouth".
There, that's better.
Posted by: alphabet soup on July 13, 2009 05:30 PMSuperior is a synonym of better
http://thesaurus.reference.com/browse/better
and it is OK to interpret and use them interchangeably.
Purpose is a synonym of meaning
http://thesaurus.reference.com/browse/meaning
but it not OK to interpret and use them interchangeably.
Wrong.
Arbitrary is defined as,
1) determined by chance, whim, or impulse, and not by necessity, reason, or principle: (e.g., stopped at the first motel we passed, an arbitrary choice.)
Here the obvious rationale is that the first motel they passed was the most convenient.
2) Based on or subject to individual judgment or preference: The diet imposes overall calorie limits, but daily menus are arbitrary.
An individual judgment or preference is a rationale.
3) Established by a court or judge rather than by a specific law or statute: an arbitrary penalty.
Like it or not, specific limitation to one arbiter is a rationale.
4) Not limited by law; despotic: the arbitrary rule of a dictator.
The apprehension of choice by one person (dictator) against many others (as in Obama health Care) is a rationale for domination.
Just because an act is unreasonable or may seem to you to be random, does not mean it is not based on rationale. To the contrary, everything done is done for a reason.
Wise up Rizzo. Your Mommy is watching.
Careful or J. Jensen may change your name to Amusing Liberals.
Did you read what you wrote?
"everything done is done for a reason."
below the definition of arbitrary you posted
1) determined by chance, whim, or impulse, and not by necessity, reason, or principle
ciao
Posted by: MikeBoyScout on July 13, 2009 06:06 PMNo, it's not, at all. For example: the First Amendment does not say and its words do not mean that the government should "encourage a public discussion." But that is the "purpose" that Justice Breyer says it has.
Similarly, the 14th Amendment does not single out minorities for "equal protection," but that is what many liberals say its "purpose" is, that must be followed.
In this discussion, no, they are not the same thing at all.
Amused: in this context, Jensen was mostly right: arbitrary in the context of the rational basis test means it has SOME justification. That is: definition 1, rather than definition 2 (or 3, or 4).
... which happened at the beginning of the discussion ...
... and ending here with an explanation that Congress provides more with arbitrary justification ...
... which should have been assumed, but it's true I could have saved us a lot of time and energy by being more explicit. If I'd just said "of course there's some reason given by Congress" (which I hinted at later when referring to deference given by the Court) instead of assuming it'd be inferred from the fact that Congress passed it in the first place, we might have saved time ... but would have had less to explore!
Sorry. So anyway, what are we talking about? Oh, yeah... racist Supreme Court nominee. I say "no".
There's a difference between presenting an example with context, and presenting an example with absolutely no rationale whatsoever. Allowing women to be paid less one day a week amounts to discrimination on the basis of a completely suspect class. If you're talking about minimum wage, for example, or child labor laws, there is a demonstrable reason why labor regulations at the federal level should exist for reasonable classifications.
I will concede the point that it's incredibly hard to find case law with a brief search that would suggest that some completely bizarre scenario wouldn't be legal. (Yes, I'll say I can't disprove that one!) Case law has, in fact, suggested that you can make distinctions in federal labor law. The Fair Labor Standards Act has been deemed Constitutional, and it does impose a minimum-wage rate that, to some, violates the notion of the "liberty of contract". Likewise, West Coast Hotel Co. v. Parrish (1937) does establish that states can impose specific minimum wage rates for women, and that it is valid under the Fourteenth Amendment. There was a reason given for both, though, and you haven't done that here. I would suspect that without sufficient reason or public purpose for this discrimination, though, strict scrutiny could still overturn .
But my revised answer is simple: if you were to ask a wonkish question about a wild hypothetical at a confirmation hearing, you could probably expect a wonkish answer in return. But in the end, they're called "opinions" for a reason: a nominee with a good command of case law would be able to provide you with a long and detailed answer that outlined most of the major issues at play.
Anyway, in the end, it's a political choice. You dislike Souter for your reasons, I find Scalia to be inconsistent in his "textualism" when it strays from conservative ideals.
@all those other folks: It is disingenous and, quite frankly, somewhat amusing to see Republicans and conservatives try to take one limited statement that in context has absolutely no suggestion of racial bias, and squeeze as much as they can out of it.
In fact, her statement belies not only a need for to strive for impartiality, but an honest view that it is not always possible, whether by a "wise Latina" or otherwise:
I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others.
...
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. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.
So, unless you believe that white men are automatically impartial simply because they are white men, does this make Sotomayor a racist?
Posted by: demo kid on July 13, 2009 10:33 PMThere's no reason that legally obligates us to have those laws, no. And therefore they can be removed by Congress.
I would suspect that without sufficient reason or public purpose for this discrimination, though, strict scrutiny could still overturn .
Nope. Strict scrutiny only applies when the law adversely affects a constitutional provision, such as equal protection or free speech. That doesn't exist here.
It is disingenous ... to see Republicans and conservatives try to take one limited statement that in context has absolutely no suggestion of racial bias, and squeeze as much as they can out of it.
Except that it does have a clear suggestion of racial bias: she quite clearly says that a wise person of her race and gender will -- in at least SOME cases -- be more likely to reach a better conclusion than people of a different race and gender.
Unless you mean there's no suggestion of racial bias IN her rulings, rather than just a racial bias in how she views the relative quality of her rulings ... and in that I'd agree.
In fact, her statement belies not only a need for to strive for impartiality ...
I'm unconvinced. It reads to me like many statements from journalists who reject -- and do not strive for -- objectivity. She says it is an "aspiration [that] denies" that they each have unique experiences, which doesn't sound, to me, to be striving for impartiality, but rejecting it, and saying that impartiality is not the job of an individual judge, but is instead achieved by having judges of diverse backgrounds working together.
Maybe I am wrong, but that is how I read it.
And as an aside, I reject the notion that impartiality is mere aspiration. I believe it is an achievable goal. But it is not -- as she notes -- achievable through empathy, but only through adherence to the law. Through the law impartiality is not merely possible, it is (more often than not, but of course, not always) guaranteed.
This is one of many reasons why adherence to the law is so important. In order to have justice, we must have -- and Senator Coburn brought this up -- predictable law. If the law says I can burn in my yard, and I do, and then I am fined for it anyway ... that is injustice. But a liberal approach to the law says that we may evaluate both sides and come to some good outcome for society based on the higher purposes of the law. That is anti-liberty. Whenever possible, we must adhere to the law: this is the path to justice, in (overwhelmingly) most cases.
(I don't know what she meant when she said the law is unpredictable, in the quote Coburn referred to, so I do not intend this as a criticism of Sotomayor, but I do look forward to hearing her response to his questions on the subject.)
I'm not objecting to that idea. We weren't breaking any law before minimum wage laws were put in place.
Nope. Strict scrutiny only applies when the law adversely affects a constitutional provision, such as equal protection or free speech. That doesn't exist here.
Again, due process and equal protection applies here, regardless of whether you believe it or not. I can agree that it's contentious, but case law exists that would suggest that it would be applicable. I've reached the limits of my legal knowledge, though... I could spend another hour looking for proof, but better to spend time on other matters.
Except that it does have a clear suggestion of racial bias: she quite clearly says that a wise person of her race and gender will -- in at least SOME cases -- be more likely to reach a better conclusion than people of a different race and gender.
Unless you mean there's no suggestion of racial bias IN her rulings, rather than just a racial bias in how she views the relative quality of her rulings ... and in that I'd agree.
That's not borne out by her full speech. The statement is that all people will be influenced by experience and "bias", which is quite a rational and reasonable statement to make. At no point does she state that this is undue bias for or against a certain group, or that anyone is free of it... just that you can try to work against natural biases.
In terms of the quality of her rulings, I would expect that in some cases, her experiences WOULD improve them. I wouldn't feel as comfortable, for example, if I had a case involving digital rights that was to be heard by a judge without an email account. Again, though, there is NOTHING in her statement mentioning that her opinions would be biased in one direction or another.
I'm unconvinced. It reads to me like many statements from journalists who reject -- and do not strive for -- objectivity. She says it is an "aspiration [that] denies" that they each have unique experiences, which doesn't sound, to me, to be striving for impartiality, but rejecting it, and saying that impartiality is not the job of an individual judge, but is instead achieved by having judges of diverse backgrounds working together.
Regardless of what you think, assuming that any judge is completely free of bias and able to understand all of the facts of a case is not being realistic about human limitations. Likewise, assuming that white men automatically come up with the least biased answer, simply because they are white men, is also incorrect. (But is, apparently, the default thinking amongst some.)
The comment about journalism is... well... not quite relevant. As conservative opponents of the Fairness Doctrine would be quick to note, there is no government imperative that requires journalists to present both sides of the story, or even to try to work towards unbiased reporting. Many of the best journalistic pieces in history were, in fact, blatant opinions pieces as well. (I'm not thinking that colonial pamphleteers had a "Left, Right, and Center" column with British officials.) So trying to compare the two is completely apples and oranges.
And as an aside, I reject the notion that impartiality is mere aspiration. I believe it is an achievable goal. But it is not -- as she notes -- achievable through empathy, but only through adherence to the law. Through the law impartiality is not merely possible, it is (more often than not, but of course, not always) guaranteed.
It's not a matter of absolutes, but of degrees. I would expect, for example, that any Supreme Court judge would recuse themself from a case where there was a conflict of interest, and I'm guessing that when you get to the point where you're sitting on the bench and deciding these types of cases you are less likely to be swayed by irrelevant issues to the case. Still, to assume that ALL biases would be erased and that all of the justices would interpret and understand the information in the same way is also wrong. Call it "bias" or "differences in interpretation" or whatever, but it still exists.
This is one of many reasons why adherence to the law is so important. In order to have justice, we must have -- and Senator Coburn brought this up -- predictable law. If the law says I can burn in my yard, and I do, and then I am fined for it anyway ... that is injustice. But a liberal approach to the law says that we may evaluate both sides and come to some good outcome for society based on the higher purposes of the law. That is anti-liberty. Whenever possible, we must adhere to the law: this is the path to justice, in (overwhelmingly) most cases.
Coburn, as many of the other Republicans on the panel, hammered home some talking points that are simply not relevant, and a waste of time. Heck, no one on that panel is going to change their minds after hearing her explanation, and would vote against any moderate or liberal Democrat regardless of qualifications.
(I don't know what she meant when she said the law is unpredictable, in the quote Coburn referred to, so I do not intend this as a criticism of Sotomayor, but I do look forward to hearing her response to his questions on the subject.)
Hell, the law is unpredictable since it relies heavily on legal opinion. (Albeit not quite as unpredictable as under the Napoleonic Code.) Plenty of legal experts listen to the same testimony as the justices in Supreme Court cases, and they have a hard time determining the way the Court will rule. Again, this is a case where realistic thought runs up against unrealistic idealism.
And apparently regardless of whether you can say HOW they apply, or not. You've not presented a single due process issue here, and the only equal protection issue raised -- when the previous version of the law singled out women -- is no longer an issue, since it no longer singles out women.
If you want me to think there's any due process or equal protection issues, you have to do better than just saying they exist.
In terms of the quality of her rulings, I would expect that in some cases, her experiences WOULD improve them.
I absolutely would not.
I wouldn't feel as comfortable, for example, if I had a case involving digital rights that was to be heard by a judge without an email account.
For a good judge, that won't matter in the slightest. A good judge can research and figure out the issues without experiencing them himself. (Granted, many judges aren't good and won't do that, but I am presuming at the SCOTUS level, they will understand the issues whether they experience them or not.)
... assuming that any judge is completely free of bias ...
... is something no one did.
... and able to understand all of the facts of a case ...
.. is their job, and if they are not capable of it they should find another job.
... assuming that white men automatically come up with the least biased answer ...
... is also something no one did.
The comment about journalism is... well... not quite relevant.
Yes, it is. I was simply saying her rejection of the possibility of true impartiality is reminiscent of their rejection of the possibility of true objectivity. I was not saying she reached the same conclusion as they do, but only that it makes me wonder if she does.
Many of the best journalistic pieces in history were, in fact, blatant opinions pieces as well.
I was obviously talking about in the context of news reporting, where objectivity is expected by (by far) most people.
It's not a matter of absolutes
For an exceptionally qualified judge, it is.
I would expect, for example, that any Supreme Court judge would recuse themself from a case where there was a conflict of interest
Ideally, more for appearance than for lack of ability to be impartial.
Still, to assume that ALL biases would be erased ...
Again, no one's said that.
... and that all of the justices would interpret and understand the information in the same way is also wrong.
No one said that, either.
Coburn, as many of the other Republicans on the panel, hammered home some talking points that are simply not relevant, and a waste of time.
Such as?
Heck, no one on that panel is going to change their minds after hearing her explanation, and would vote against any moderate or liberal Democrat regardless of qualifications.
You keep saying things like that as though they matter. They do not. Like myself, many of the Senators -- including Coburn -- are not out to change anyone's mind. They are out to discover what and how she thinks, and then vote based on that. This is not about calculations or inevitabilities to me, or to them. You're the one wasting time by harping on this completely irrelevant notion.
Hell, the law is unpredictable since it relies heavily on legal opinion.
To the extent it is unpredictable, it denies the rule of law, and hence justice and liberty. It cannot always be predictable, not because "it relies on legal opinion" but because written law is written by men, and is therefore confusing and contradictory.
If we could have perfectly clearly written law, then there should be no differences in legal opinion on that law.
What is galling is when we do have entirely clear written law (like "the right of the people to keep and bear arms shall not be infringed," which is not clear in what arms are referred to, but is clear that SOME arms are included), and yet courts still reject the notion that there is any right of the people to keep and bear any arms.
Plenty of legal experts listen to the same testimony as the justices in Supreme Court cases, and they have a hard time determining the way the Court will rule.
And granted, the Supreme Court gets more difficult cases than any other court. Obviously. But sometimes it's clear and the Court gets it wrong because they are simply wrong. The minority in Heller, the majority in Kelo.
Again, this is a case where realistic thought runs up against unrealistic idealism.
Nope. Your argument is that because these people get it differently from each other, that means there is no right or wrong answer. That is an irrational argument.
@ #72 you wrote "Amused: in this context, Jensen was mostly right: arbitrary in the context of the rational basis test means it has SOME justification. That is: definition 1, rather than definition 2 (or 3, or 4)."
Wrong
Rizzo didn't write of "SOME justification," he wrote specifically that "By definition "arbitrary," has no rationale," and then qualified this statement with "the express purpose of being arbitrary." Compare the two.
The relevant point @#69 addresses the importance of semantic and logical accuracy in direct context with the legal/constitutional concept of a "rational basis test." In context, permutation #4 applies perfectly.
A "rational basis test" measures whether governmental action may be "rationally related" "to a "legitimate" government interest.
In that context, an "arbitrary" law is one whose purpose is not sufficiently related "to a "legitimate" government interest and is therefore "limited by [constitutional]law."
Basic existential import dictates that, if a law had no necessity, reason, or principle, it would quite simply not exist. We may not agree with the necessity, reason, or principle, used by its drafters, but just as the law exists, the seminal necessity, reason, or principle for that law still nevertheless exists.
Arbitrariness is not the absence of rationale, but the result of it. John Locke said, "Whatsoever the Mind perceives in it self, or is the immediate object of Perception has importance and therefore reason to exist" If you wish to believe that ideas exist (especially ideas that are used by people to create laws) without reason or rationale, fine. You and Rizzo can be brothers in the whimsical absurdity of belief that deliberate actions may utterly lack any existential import.
It works for him because, after-all, inventing meaning out of whole cloth (lying) is the liberal way.
Very Amusing
No.
Rizzo didn't write of "SOME justification," he wrote specifically that "By definition "arbitrary," has no rationale,"
They are two ways of saying the same thing, in fact. The opposite of "no rationale" or justification, is "some" rationale or justification.
Posted by: pudge on July 14, 2009 03:29 PMBTW, you have my permission to go around repeating that "By definition "arbitrary," has no rationale," if you like.
Maybe write a song about it?
Posted by: Amused by Liberals on July 14, 2009 04:04 PMShrug. You're wrong.
"It is very difficult to have a strong grasp on case law without years of study, which is why your analysis in this case is very superficial.
O.K. Rizzo, we'll all take your word for that.
Posted by: Amused by Liberals on July 16, 2009 09:34 AM