Quote :

"Now, if you actually took the time to read the reasonings behind their refusal to hear en banc, you would see the legal reasonings why they decided against Ricci, et. al."

Fantastic. You know where that doesn't show up, though? In the original summary order (the one later withdrawn).

Do you even know what a summary judgment is?

[Edited on May 27, 2009 at 7:52 PM. Reason : .]

5/27/2009 7:52:24 PM

Looking at one of the decisions, it seems that all the ground rules were agreed upon ahead of the test-giving. The Fire-fighter's union and the city had agreed on the top 3 rule.

The fire-fighters then put in the effort needed to pass the test.

The city should have told the fire-fighters, up front, that there was a racial quota component in the promotion procedure. Then the applicants could have decided if it was still worth the effort.

The applicants should have been informed that they needed to get a good score, AND enough Blacks had to pass the test before the results would be certified.

--Judge Earthdogg

5/27/2009 8:42:57 PM

Quote :

"well, snarky terpball, since Obama is all about some transparency how about he explain it, then? Or does he just like his tacos spicy?"

He thoroughly explained it yesterday morning.

5/27/2009 9:22:38 PM

lol at republicans

5/27/2009 9:57:16 PM

Quote :

"Fantastic. You know where that doesn't show up, though? In the original summary order (the one later withdrawn). Do you even know what a summary judgment is?"

Yes, I know what a summary judgement is, assfucker.

Despite your failed attempt at pedantry, my point still stands, the decisions weren't unpublished as it holds to the conversation I was having with EarthDogg and the people in this instance were not denied a fair trial.

Next time, try not to be so full of yourself.

[Edited on May 27, 2009 at 10:47 PM. Reason : .]

5/27/2009 10:46:02 PM

Quote :

"He thoroughly explained it yesterday morning."

if you'll buy that, then I've got a bridge in san francisco i'd like to sell you

5/27/2009 11:25:01 PM

Yeah yeah, it's the NYT, but
http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html?ex=1278302400&en=0e5fac7774080327&ei=5090&partner=rssuserland&emc=rss

Quote :

" We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below. Thomas 65.63% Kennedy 64.06% Scalia 56.25% Rehnquist 46.88% O’Connor 46.77% Souter 42.19% Stevens 39.34% Ginsburg 39.06% Breyer 28.13% One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist. "

http://washingtonindependent.com/350/judicial-partisanship-awards

Quote :

"Thomas shows the strongest partisan bias, but is he also an activist? Does he vote to strike down agency decisions at a high rate? To test for judicial activism and judicial restraint, we examined all the data to find which justices are most likely to strike down agency decisions. It turns out that Breyer wins the award for Judicial Restraint. Surprisingly, the award for Judicial Activism goes to . . . Justice Scalia. Here are the results: Breyer 82% Souter 77% Ginsburg 74% Stevens 71% O'Connor 68% Kennedy 67% Rehnquist 64% Thomas 54% Scalia 52%"

[Edited on May 28, 2009 at 2:17 AM. Reason : ,]

5/28/2009 2:15:39 AM

Quote :

"Partisan voting is pervasive on the lower federal courts. When the agency’s decision is conservative, Republican appointees are far more likely to vote to uphold it than are Democratic appointees. Democratic appointees show the same bias: When the agency’s decision is liberal, Democratic appointees are much more likely to vote to uphold it than are Republican appointees. Republican appointees vote to uphold liberal agency decisions at a significantly lower rate than conservative agency decisions. Democratic appointees vote to uphold liberal agency decisions at a significantly higher rate than conservative agency decisions. This evidence offers three important lessons. First, widespread conservative complaints about “liberal judicial activism” should be taken with many grains of salt. If we ask how often the justices vote to strike down agency decisions, Scalia and Thomas, the most conservative members of the Supreme Court, show the most activist voting patterns. By contrast, the justices commonly described as “liberal” are the least activist."

5/28/2009 2:18:40 AM

Quote :

"Yes, I know what a summary judgement is, assfucker."

Far from obvious. And hey, look, I don't even need to end my statements with an expletive to make my point. Amazing.

Quote :

"Despite your failed attempt at pedantry, my point still stands, the decisions weren't unpublished as it holds to the conversation I was having with EarthDogg and the people in this instance were not denied a fair trial."

No it doesn't. No legal opinion was put out in the first round - a summary dismissal was issued. You were dead wrong and still refuse to own up to that fact, even when confronted with your own sources. This isn't pedantry, this is a case of you not even reading your own sources, and then pretending to know what's going on.

Quote :

"Next time, try not to be so full of yourself."

Do please consider taking your own advice, as you are desperately in need of it.

Or to dumb it down to your level - just get out. Adults are talking here.

[Edited on May 28, 2009 at 2:34 AM. Reason : .]

5/28/2009 2:28:50 AM

Quote :

" Yeah yeah, it's the NYT, but "

A NYT Op-Ed to boot... yeah....

Through some numbers together to show that "conservative" judges are activists. When in actuality it just shows they are constructionists.

5/28/2009 6:51:10 AM

Remember folks, if they are liberal judges then they are "activists" while equally radical conservative judges are considered "principled".

5/28/2009 7:12:11 AM

I'm pretty sure that the legitimacy of the "liberal activist" blanket label has been torn to shreds and beaten to death many times over, in this thread and elsewhere.

But feel free to chime in a couple more times to shit on it some more.

5/28/2009 8:32:23 AM

Quote :

"One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist."

They have completely misunderstood the term “judicial activism” as most often used by its critics. Activism goes well beyond simply “…degrees to which justices would actually intervene in the democratic work of Congress.” You can practice judicial restraint and still invalidate congressional statutes if you are consistent in interpreting the constitution as it would be interpreted when ratified.

The wiktionary definition succinctly puts it as:

Quote :

"(law, pejorative) the act of replacing an impartial interpretation of existing law with the judge's personal feelings about what the law should be"

Also, as per Chief Justice John Roberts:

Quote :

"[C]ourts should not intrude into areas of policy making reserved by the Constitution to the political branches ... To the extent the term judicial activism is used to describe unjustified intrusions by the judiciary into the realm of policy making, the criticism is well-founded. At the same time, the Framers insulated the federal judiciary from popular pressure in order that the courts would be able to discharge their responsibility of interpreting the law and enforcing the limits the Constitution places on the political branches. Thoughtful critics of 'judicial activism' — such as Justices Holmes, Frankfurter, Jackson, and Harlan — always recognized that judicial vigilance in upholding constitutional rights was in no sense improper 'activism.' It is not 'judicial activism' when the courts carry out their constitutionally-assigned function and overturn a decision of the Executive or Legislature in the course of adjudicating a case or controversy properly before the courts. ... It is judicial self-restraint, however, that confines judges to their proper constitutional responsibilities."

Judicial activism, as defined above, should be something no liberal or conservative wishes for. While, arguably, most decisions that exhibited greater levels of judicial activism were of a liberal slant, the act itself can go both ways. If you are for judicial activism now, imagine if most of the Supreme Court judges are in favor of mixing church and state and decide to reinterpret the constitution so it is consistent with their own preferences? This is why we need a consistent reading of the constitution and leave changes to an elected congress who has to answer to voters. Judicial activism might seem reasonable now if the outcomes are consistent with your own beliefs, but it cannot be guaranteed that judicial activists will always see things the way you do.

[Edited on May 28, 2009 at 9:43 AM. Reason : .]

5/28/2009 9:33:38 AM

Quote :

"No it doesn't. No legal opinion was put out in the first round - a summary dismissal was issued. You were dead wrong and still refuse to own up to that fact, even when confronted with your own sources. This isn't pedantry, this is a case of you not even reading your own sources, and then pretending to know what's going on. "

It's good to see you can still type with your head shoved up your ass.

5/28/2009 10:32:14 AM

Quote :

"Supreme Disappointments: Conservatives and Liberals are Both Wrong About Rights by Thomas A. Bowden (May 19, 2009) Where do individual rights come from? You’d think that if anyone knows the answer, it would be America’s top judges. But you would be wrong. On this basic question conservative and liberal judges alike are locked into a crucial error about America’s bedrock constitutional principle: individual rights. The error consists in regarding rights as gifts from society that can be revoked at will, through the political process. In truth, rights are not social gifts but political principles based on facts of reality. These facts don’t bend to the so-called will of society. That’s why the most fundamental question a Supreme Court justice must answer is what in fact do the individual’s rights to life, liberty, property, and happiness include? Only then can he determine if a certain law or government action is securing or violating those rights. But judges don’t ask this question anymore, because they don’t think it’s objectively answerable. Instead, and broadly speaking, judicial conservatives only ask what privileges American society granted the individual at the time of constitutional ratification. To conservatives, it’s meaningless to ask whether the right to liberty in fact includes, say, the right to use contraception (a question 18th-century Americans may have answered incorrectly). Their only concern is whether society at that time meant to permit this action. So when modern legislators make criminal offenses out of abortion, contraception, homosexuality, and other acts said to be frowned upon centuries ago, conservative judges feel duty-bound to stand aside and do nothing, in obedience to the “social will.” Judicial liberals reject this conservative view of social values frozen in time, like a sepia-toned snapshot of bygone days. Instead, liberals see constitutional values evolving like a motion picture, constantly updating to reflect current social mores. To liberals, it’s meaningless to ask whether the right to liberty in fact includes freedom of trade and contract (a question that a majority of Americans may be answering incorrectly today). Their only concern is whether the “will” of today’s society favors permitting such actions. So when Congress declares federal dominion over every nut, bolt, and button of American industry, liberal judges feel duty-bound to stand aside and do nothing--not because earlier Americans intended to allow such controls, but because modern Americans want them. But conservatives and liberals are both wrong about rights. It is not true that rights are grants from society. The very concept of a right identifies the actions you can take without anyone’s permission. Rights are not social privileges but objective facts, identifying the freedoms we need to live our lives--whether a majority in society agree or not. This is why the Founding Fathers dedicated their new government to the protection of each individual’s already-existing rights to life, liberty, and the pursuit of happiness. Thus, the Fifth and Fourteenth amendments forbid the government to deprive you of “life, liberty, or property” (except when you have violated someone else’s rights, and even then the government must follow due process, such as holding a trial). The Ninth Amendment safeguards all “rights” not listed elsewhere. These principles encompass all the innumerable actions required for your survival and happiness over a lifetime--the right to make a contract, earn a profit, build a house, make a friend, speak your mind, and so on. Because the Constitution is the “supreme Law of the Land,” judges are duty-bound to strike down statutes that violate rights. This is not improper “judicial activism” but the robust, constitutional power of judicial review. Judges must never bow to social opinion, historical or current, when exercising judicial review. For example, laws that institutionalized government discrimination against blacks in military service and voting deserved to be struck down, even if political majorities in the Founders’ generation or modern times favor such rights violations. To their discredit, today’s judges--conservatives and liberals alike--have all but abandoned this judicial safeguard of our liberties. The arch-conservative Robert Bork once declared that Ninth Amendment “rights” carry no more meaning than an accidental inkblot on the constitutional parchment. And according to Justice Antonin Scalia, there’s nothing in the Constitution “authorizing judges to identify what [those rights] might be, and to enforce the judges’ list against laws duly enacted by the people.” As for life, liberty, and property, government can smash them at will, if society so wishes. “Does [the Constitution] guarantee life, liberty or property?” asks Justice Scalia rhetorically. “No, indeed! All three can be taken away. . . . It’s a procedural guarantee.” Judicial liberals don’t dispute that a judge must bow to the “social will”--they simply divine it differently. As one liberal Justice declared, the Constitution “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” While conservatives and liberals squabble about whether society permits you this action or that, they are defaulting on their sacred constitutional duty of judicial review. America desperately needs a new generation of judges who understand that their function is not to uphold social opinions but to protect our rights."

5/28/2009 10:47:05 AM

from jonathan turley (who is a legal scholar and writes a blog here: http://jonathanturley.org/):

Quote :

"The debate over Judge Sonia Sotomayor continues to rage this week. What is remarkable is how much is being said and how little substance can be found in the coverage. One would think that the law of averages alone would guarantee that some substantive points would be hit, if only by accident. It is becoming increasingly clear that, once again, we will not have a substantive and civil review of the qualifications of a Supreme Court nominee. Neither conservatives nor liberals seem to want (or are willing to tolerate) objective discussion of Sotomayor’s qualifications or opinions. For what it is worth, I would like to discard some of the most often heard arguments in the vain hope that we might still achieve some level of reasonable discourse in this debate. Let me first address some of the conservative attacks since I addressed some of the liberal attacks earlier. (I will be returning from court and add to this blog later this morning). CONSERVATIVE ATTACKS: Claim: Sotomayor is a judicial activist. As I have stated in my review of her cases, I cannot find any evidence to support the view that Sotomayor is an activist. Indeed, I cannot find much evidence to support the assumption by both ends of the spectrum that she is extremely liberal. She is clearly not as liberal as other short-list candidates like Diane Wood of the Seventh Circuit. She votes regularly with her conservative colleagues and does not have a blind voting record in areas like discrimination etc. If you compare her opinions to Justice Sam Alito when he was an appellate judge, she is the very personification of blind justice. Alito rarely voted against the government and was as predictable as a Swiss clock in terms of outcome in cases. Sotomayor, in contrast, has often voted against liberal values and interest groups. Her votes in Tigue v. DOJ and Wood v. FBI were viewed as contrary to principles of open government and more in line with the Bush Administration’s views. She supported the result in Doninger v. Niehoff, which was a highly controversial case and major blow to both the first amendment and student rights. I have now read all of her major opinions and dozens of less important cases. I see absolutely no evidence of bias, as I did with Sam Alito. Claim: Sotomayor is a bad judge due to her reversals by the Supreme Court. This claim is particularly bizarre, citing a 60 percent reversal rate. This is an example of how statistical analysis should be left to professionals and not attempted at home. Only five of Sotomayor’s opinions have been reviewed by the Supreme Court — not an unusual number given her 18 years on the bench. However, with such a small pool of cases, even a single decision going either way will have a huge impact on her “batting average.” The reversal rate for all appeals is around 75 percent. I expect that her percentage of losses will go up with the Ricci case which is likely to be overturned in my view. However, that does not mean that she is a poor judge. If you review these cases, both Republican and Democratic appointed judges supported her side. They were not glaring acts of judicial activism, but matters of reasonable disagreement between jurists. Claim: Sotomayor’s comments in speeches show that she is a racist. Much has been made of her statement in a speech 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.” I strongly disagree with this statement. Some of the greatest and most sympathetic justices in history came from privileged backgrounds and some of the least impressive and least sympathetic justices came from less privileged backgrounds. I doubt that Judge Sotomayor would view Justice Thomas or former Texas Supreme Court justice Alberto Gonzales as examples of diversity in background making for a better jurist. However, it does not make her a racist or radical. There is no question that experience counts. Marshall did play a transformative role on the Court in its consideration of cases in a variety of areas. The problem with her statement is the use of the words “better conclusion.” She can rightfully argue that her experience gives her a deeper understanding and a better perspective. However, she was wrong to suggest that, simply due to her upbringing and ethnic background, she will reach better conclusions. That, however, does not transform her into a racist by any reasonable (or logical) interpretation of that term. Claim: Her statement about policy making on the Court makes her a danger. In a speech at Duke, Sotomayor stated: “All of the legal defense funds out there, they are looking for people with court of appeals experience because the court of appeals is where policy is made. And I know this is on tape and I should never say that because we don’t make law. I know. Okay, I know. I’m not promoting it. I’m not advocating it. I know.” She was right, she should not have said it. Once again, this was an unwise and ill-considered statement. However, Justice Scalia and others have made such mistakes in speeches. Moreover, this one was understandable. Courts interpret laws that can have sweeping impacts on citizens. They also set principles of interpretation and rules of construction. The use of the word “policy” was a mistake. They do not make policy in the political sense. They do, however, shape judicial doctrines and rules. As I noted in my review of her cases, here, she has revealed no such activism in cases over an eighteen year period. Claim: The Lack of Intellectual Depth in Sotomayor’s Opinions Shows That She is Not Intellectual Enough for the Supreme Court. Like a number of other professors and commentators, I have expressed disappointment in the fact that Sotomayor’s opinions lack of deeper view of the law or any particularly profound observations on the law. Conservatives, however, take this lack of depth in these opinions as evidence that Sotomayor is not smart or competent. This is demonstrably absurd. These opinions are little different from those of Alito, Souter, or the limited writings of Thomas. Clearly, Sotomayor is quite intelligent. This record is little different from records of Republican nominees who enthralled these same critics. Ultimately the greatest difficulty for Republicans is to insist on a searching confirmation hearing with specific answers from Sotomayor after their treatment of Roberts and Alito. Those confirmation hearings were laughable photo ops for Senators (including Democrats) who thrilled in the chance to talk about baseball and movies. "

thought this was interesting and addressed the major conservative arguments against in a pretty brief but concise fashion. i'll add the liberal attacks when he posts them (should be later today)

5/28/2009 11:01:37 AM

Quote :

"It's good to see you can still type with your head shoved up your ass."

I'll take this as your concession that you were wrong, since you're simply incapable of actually ever admitting error and simply resort to a string of expletives when confronted.

(Really, you've hurt me so - perhaps there's some fresh new insult you could launch to convince everyone here of how smart you are?)

5/28/2009 11:29:16 AM

Quote :

"so someone was an asshole racist in 1994? what's your point?"

sarijoul

Um. . .this. . .



. . .is Julianne Malveaux. And I have several points: (1) This type of commentary was and still is considered acceptable in a public forum by too many on the left--just so long as it's directed at a conservative. And (2) unlike the way a conservative would have been treated concerning such a comment, Malveaux was rewarded with the president's position at Bennett College.

In any event, there's this:

Quote :

"In a 2009 Second Amendment case, Sotomayor sided against some gun-rights supporters, and conservative groups plan to highlight that ruling to put the pressure on Democrats in gun-friendly states such as Alaska."

http://www.nj.com/us-politics/index.ssf/2009/05/who_could_lose_in_sotomayor_vo.html

5/28/2009 11:31:48 AM

from the same source as above, here are the rebuttals to liberal "attacks" (more like talking points, but whatever):

Quote :

"LIBERAL ATTACKS: Claim: Sotomayor cannot be blamed for decisions where she is not the author. Many liberals and civil libertarians have criticized Sotomayor for her participation in panel or en banc decisions that are viewed as inimical or hostile to free speech, open government and other principles. The response from supporters has been that, if Sotomayor was not the author, she cannot be blamed for the opinion. I believe Judge Sotomayor would be the first to correct his misunderstanding of judicial rulings. Any judge has the ability to file a concurrence or a dissenting opinion when she has disagreements with the majority opinion. Judge Sotomayer did precisely that in the Gant v. Wallingford Board of Education case. Likewise, other judges filed concurring and dissenting opinions in the controversial decision in Ricci v. DeStefano. When Sotomayor voted with the majority in Doninger v. Niehoff, she bears the full blame for both the result and the language in that opinion. Every judge must sign off on a majority opinion and has a professional and ethical responsibility to agree with the opinion before affixing their signature. Claim: The Lack of Depth or Broad Legal Analysis of Sotomayor’s Opinions Only Shows That She Is a Good Judge Who Decides Cases on the Merits. There is an effort by liberals to turn lemons into lemonade with regard to Sotomayor’s opinions, which are pretty unremarkable. The New York Times and various neutral commentators have described these opinions as narrow, limited and generally lacking any deeper historical or theoretical treatment. Sotomayor’s most vocal supporters have yet to cite a single opinion in 18 years that is in any way notable in its insightful treatment of the law. That should be a concern. Most judges (including judges on the shortlist) have opinions that show a vision for the law, a broader view of where a given case fits within a broader area of jurisprudence. These cases are the reason that they have been routinely cited as possible justices. Many of Sotomayor’s colleagues like Guido Calabresi are praised for such brilliant analysis. This highlights the difference between a judge and a justice. A justice must attempt not only to resolve a case but to maintain a coherent and consistent approach in a given area. We have had too many justices who lack such a vision and produce endlessly conflicting and insular decisions. Cases become little more than a muscle vote on outcome. Once again, that could reflect a certain deference to her appellate status or a lack of broader vision. It is certainly true, as she stated in a prior interview, that “95 percent of the cases before most judges are fairly mundane.” She used this observation to explain why she does not write grand opinions: “I’m not going to be able to spend much time on lofty ideals.” However, after 18 years, such cases do come along and warrant a fuller treatment with a glimpse at a deeper judicial philosophy. In almost two decades of opinions and writings, we should have some notion of Sotomayor’s deeper intellectual view of the law. We do not. The fact is that these opinions are remarkably unremarkable. It is certainly true that this record is not unlike prior nominees like Sam Alito. I criticized Alito’s appointment on the same ground and (unlike Sotomayor) I opposed him because I believed that opinions were not just limited but also biased. When pressed on Sotomayor’s opinions, supporters either refer back to her inspiring life or try to argue that it is good not to offer a broader vision of the law. Neither response is a sufficient answer to this criticism. Claim: Questioning Sotomayor’s opinions must be an act of racism or sexism or both. Just as conservatives should be denounced for calling Sotomayor a racist, liberals should be ashamed for using the same attack on people who question the depth or vigor of her past writings. Criticizing Sotomayor’s opinions as lacking intellectual depth is not the same as saying that she lacks intellectual depth as a person and certainly nothing about her race or gender. Indeed, for those of us who criticized Alito on the very same shortcoming, it would be racist and sexist to treat Sotomayor differently. Over the course of a long judicial and professional career, Sotomayor has never exhibited particularly profound views of the law in opinions or law review articles. Other candidates like Diane Wood and Harold Koh have demonstrated such views. What is striking about these attacks on racism and sexism is how little liberals appear to tolerate even moderate criticism of an Obama nominee. This is precisely the blind rage and rhetoric that liberals denounced among Republicans for the last eight years with regard to Bush nominees and policies. Indeed, most liberals know very little about Sotomayor’s judicial history or ideology despite the fact that she will hold one of nine critical positions on the Court. In reality, Sotomayor is demonstrably less liberal than someone like Wood and has opposed core liberal values in past decisions. The vicious attacks reflect the low-grade discourse that we have on such issues today in our red state/blue state mindset. Obama had the ability to appoint anyone and he nominated someone with an unknown legal philosophy and mixed voting record. We should be able to discuss the lack of depth in these opinions objectively without calls of racism or sexism. Otherwise, these confirmations become personality driven events with little substance or scrutiny. Claim: Sotomayor will clearly be a great justice. I am currently working on a cover magazine piece that will identify the greatest justices and try to suggest some objective criteria for such a ranking (though I will also acknowledge considerable subjectivity in this exercise). Sotomayor supporters have insisted that she is clearly someone who will be one of the “greats.” This characterization depends on what you are seeking in a nominee and what you mean by a great justice. In my Supreme Court class, we often discuss such rankings. For example, supporters have understandably invoked Justice Thurgood Marshall repeatedly in describing Sotomayor. As I have stated on the air, Marshall was indeed a great justice (and happens to be one of my personal heros who I discuss every year in welcoming the class of new law students to George Washington). Marshall was a brilliant lawyer and a brilliant choice for the Court. He offered his colleagues wonderful insights into a number of areas and supported the protection and expansion of core liberties while on the Court. I believe that Sotomayor will bring such a perspective to the Court and challenge existing ideas of her colleagues. Before this nomination, many of us argued for the appointment of someone who would deepen the Court’s theoretical or intellectual debate — something that is increasingly absent in decisions of the Court. Frankly, Marshall was not viewed as being one of the most influential justices in the shaping of legal theory or fundamental views of the law. Marshall himself never claimed or suggested such a position on the Court. He was great in other respects. When justices are ranked by academics in terms of their contributions to the intellectual or theoretical development of the law, Marshall is rarely mentioned. Once again, it depends on what you want out of a nominee. The Republicans have been skilled in selecting judges and justices who would offer a strong theoretical foundation to shape doctrine and theory for generations. Scalia is unpopular with liberals but he has had such a long-term impact on the law. Being a justice is not simply the act of voting. A great justice on the issue of legal theory is someone who can shape not just the ruling in one case but such cases for a generation. Sotomayor could still prove to be such a jurist, but she has not demonstrated such a long-term or deeper view as a judge. Claim: Sotomayor’s academic background proves that she will be an intellectual force on the Court. I have taught a course on the Supreme Court and covered that Court as a columnist and commentator for roughly two decades. I have never seen an undergraduate or law school record relied upon so heavily to defend an appointment. The last time I checked placement in a Princeton class said a lot about your chances for acceptance in a graduate school but not the U.S. Supreme Court. Sotomayor was a brilliant student and is clearly an impressive person. However, being bright is not the measure of a great justice. All of these candidates are bright. Many have had inspiring personal stories. We often encounter the same issue in the appointment of faculty. Students who graduate at the top of their classes and serve prestigious clerkships are not necessarily gifted or insightful in their view of jurisprudence or the law. We look for people who can help shape their fields of the law and demonstrate a broader vision. The same standard should apply to Supreme Court justices. Sotomayor is by any estimation an unknown in how she views the law and whether she will contribute in a deeper way to the concepts and theories that shape the law. The best indicator of such views are found in opinions and articles, which are unavailing in Sotomayor’s case. Ironically, I am most drawn to her not because of her inspiring life or her performance as a student. As a litigator, I am delighted with her experience as a litigator and trial judge. In that sense, she brings a certain professional reality to the Court the way that Fortas, Marshall, and a few other justices did. While she is not my top choice, she is the nominee and I believe Obama has selected someone who meets any reasonable standard for confirmation."

5/28/2009 12:41:29 PM

Pop quiz! What current judge said the following at their confirmation hearings?

Quote :

"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."

http://www.salon.com/opinion/greenwald/2009/05/27/sotomayor/index.html

Impeach this activist judge who takes nationality and race into account! Impeach Justice...Sam Alito



Gee, you don't think that the right is rallying against this woman primarily b/c they need a flag to rally around desperately right now, do you?

Oh boy, more quotes. Who said this about a current justice:

Quote :

"I have followed this man's career for some time, and he has excelled in everything that he has attempted. He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor. He's also a fiercely independent thinker with an excellent legal mind, who believes passionately in equal opportunity for all Americans. He will approach the cases that come before the Court with a commitment to deciding them fairly, as the facts and the law require."

http://mediamatters.org/research/200905260034

Btw, I also read the American Conservative blog b/c sometimes I actually agree with them when they aren't going on about gold and immigrants. This is pretty good:

http://www.amconmag.com/larison/2009/05/26/thoughts-on-sotomayor/

Quote :

"What goes unsaid here is that this would be the wrong thing to do, which makes it unclear why Sotomayor should be punished for saying something that does not seem in itself all that objectionable. I agree that a double standard exists, which tells me that we should not apply an unreasonable standard equally, but instead should try to police and stigmatize expression less obsessively. Note also that the supposed “claim of ethnic and gender superiority,” as Taylor puts it, is exceedingly weak, if it is there at all. The first quote can just barely be read this way if you really want to read it that way, and the second does not refer to superiority, but only to difference. Since when have people on the right denied or complained about recognition of the importance of real physiological and cultural differences? Of course, the first quote expresses at most an aspiration or desire that her kind of experience would make her a better judge. Suppose for a moment that a conservative Catholic man in a similar position said that he hoped that the richness of his religious tradition would inform and shape his judgments that would more often than not help him to make better judgments than someone without that background. Such a person might reasonably and legitimately claim this. No doubt there would be a comparable freak-out in certain circles on the left that theocracy was on the march, while conservatives would declare it outrageous (indeed, the imposition of a religious test!) that anyone would object to a statement about the importance of the man’s faith to his formation and thinking. She is not asserting that Latinas are naturally superior judges, nor is she even saying that they are necessarily better on account of their experiences, but that she hopes that they would be. One might almost think that her recognition that impartiality is something to be pursued, but that it is never fully achievable, would be considered a refreshingly honest admission that judges have biases and are shaped by their past experiences. For a moment, imagine a pious Christian who expressed a similar hope that his faith would make him a better judge than an unbeliever. No doubt this would raise the hackles of all kinds of people, but it would no more make him a religious fanatic than Sotomayor’s rather mild comments make her a “racialist.” "

[Edited on May 28, 2009 at 1:40 PM. Reason : .]

5/28/2009 1:32:43 PM

Sotomayor Cases Reversed by the Supreme Court

Riverkeeper, Inc. vs. EPA, 475 F.3d 83 (2007) -- reversed 6-3 (Dissenting: Stevens, Souter, Ginsburg)

Dabit vs. Merrill Lynch, 395 F.3d 25 (2005) -- reversed 8-0

Malesko v. Correctional Services Corp., 299 F.3d 374 (2000) -- reversed 5-4 (Dissenting: Stevens, Souter, Ginsburg, Breyer)

Tasini vs. New York Times, et al, 972 F. Supp. 804 (1997) -- reversed 7-2 (Dissenting: Stevens, Breyer)

http://www.cnn.com/2009/POLITICS/05/26/sotomayor.resume/index.html

5/28/2009 3:57:41 PM

Quote :

"Claim: Sotomayor is a bad judge due to her reversals by the Supreme Court. This claim is particularly bizarre, citing a 60 percent reversal rate. This is an example of how statistical analysis should be left to professionals and not attempted at home. Only five of Sotomayor’s opinions have been reviewed by the Supreme Court — not an unusual number given her 18 years on the bench. However, with such a small pool of cases, even a single decision going either way will have a huge impact on her “batting average.” The reversal rate for all appeals is around 75 percent. I expect that her percentage of losses will go up with the Ricci case which is likely to be overturned in my view. However, that does not mean that she is a poor judge. If you review these cases, both Republican and Democratic appointed judges supported her side. They were not glaring acts of judicial activism, but matters of reasonable disagreement between jurists. "

5/28/2009 4:19:58 PM

^ Did I make such a claim?

5/28/2009 4:21:08 PM

i love how you post something and then when someone calls you out on it you act like you posted it without a motive. "hey guys, just postin here, just informing you, no motives here"

5/28/2009 4:25:35 PM

I simply posted information. I can't control what you et al infer from my post.

5/28/2009 4:29:04 PM

^^^^ and ^^^^^

the numbers in these posts don't jive with each other?

[Edited on May 28, 2009 at 4:32 PM. Reason : too slow]

5/28/2009 4:32:06 PM

Quote :

"I can't control what you et al infer from my post."

ok, so...you spend the thread criticizing this woman, then post more information on her, then get called out on it and suddenly act like you weren't posting it for any reason other than to inform and not to shore up your previous stance on the woman.

Care to criticize Alito for factoring in his family history in decisions?

5/28/2009 4:36:17 PM

Theres nothing wrong with a SC Judge downing a law that violates the constitution as long as they have a good argument for doing so.

iex. DC gun ban is illegal cause 2nd ammendment is for all citizens not just a militia.

There IS something wrong with a lower court judge making a ruling that goes against the law because they dont like it.

ex. Remember that case a while back where there was some 18 year old dude had sex with his 17yr old gf and got nailed by a mandatory minimum law. It would be wrong for the judge not to abide by the law in his sentancing (even if it is bullshit).

Has this nominee ever done that? IDK i haven't read anything. Would it be a problem if she has? Maybe, maybe not.

An activist judge on the supreme court would be one who twists the constitution to their own view or ignores the constitution in their decision.

es. anyone who thinks the 2nd ammendment applies to militias instead of individuals. Or who might think its an archaic idea. Thats fine if thats your opinion (even though its wrong), but the constitution and the original intent is very clear that its an individual right.

5/28/2009 4:39:12 PM

^^yeah i noticed that. i assume the blogger just miscounted something. or maybe there's some technicality in the opinions that sotomayor voted with. i don't really know.

5/28/2009 4:39:55 PM

Quote :

"Care to criticize Alito for factoring in his family history in decisions? "

theres a difference between "i have personal experience with discrimination" and "latinas make better decisions than white men"

The apparent racism in the statement is a problem.

However, I'm pretty sure the quote is out of context and she probably meant latinas know more about being latinas than white men and that its overblown political hacking.

I do think that while personal life experience might be useful, the law is the ultimate decision maker, not personal beliefs.

5/28/2009 4:45:52 PM

Quote :

"the numbers in these posts don't jive with each other?"

her supreme court reviewed cases percentage is really confusing when the part of the media that defends her only claims 5 reviews and 3 reversals and that its not really that big of a deal...

but cnn reported 7 reviews:
1 pending
5 reversed
1 upheld but her reasoning was determined to be completely wrong




it'd be nice to know what the real numbers are for a change...

5/29/2009 12:00:52 AM

^^ back on page 2:
http://www.thewolfweb.com/message_topic.aspx?topic=567235&page=2#12938623

5/29/2009 12:45:28 AM

I understand her point, but I think shes completely wrong. The law is the law. The fact that she thinks a white judge would rule differently if they haven't been a victim of the crime is stupid.

5/29/2009 9:30:36 AM

^ Experiences color how folks interpret any text.

5/29/2009 9:52:33 AM

Quote :

"Experiences color how folks interpret any text."

Fine. But her 'experiences' have apparantly turned her into a bigoted Quota Queen...and we're looking for a fair referee for the SC.

5/29/2009 10:10:18 AM

The law, for the most part, is black and white. Either a crime happened as discribed by the law or not. Personal belief does not factor into it.

5/29/2009 10:14:08 AM

^ Completely untrue. It's because laws are various shades of grays (and sometimes other colors) that we have such an elaborate legal system.

5/29/2009 10:31:19 AM

^ But the interpretation should not be based on personal preferences. As former U.S. Supreme Court Justice, Oliver Wendell Homes, put it, the Constitution should be read in a "sense most obvious to the common understanding at the time of its adoption." Race, ideology or any other personal characteristic should have negligible influence if interpretations were consistent this way.

5/29/2009 11:03:57 AM

Quote :

"the numbers in these posts don't jive with each other?"

BTW, it's "jibe," not "jive."

5/29/2009 11:07:54 AM

Quote :

" Race, ideology or any other personal characteristic should have negligible influence if interpretations were consistent this way. "

actually if you took that quote literally, race and gender (at the very least) would have an impact on a decision. it is only because jurists and lawmakers have been reinterpreting the constitution over the centuries, that this nation has been able to keep up with the times (admittedly in fits and starts).

also, the nature of many of the cases which reach the federal appeals courts (and especially the ussc) are somewhere right in the middle of the gray area, where there isn't a clear interpretation of the constitution. otherwise, the case probably wouldn't have gotten to that point in the first place.

5/29/2009 11:08:37 AM

Quote :

"The law, for the most part, is black and white. Either a crime happened as discribed by the law or not. Personal belief does not factor into it."

If it were that simple, we wouldn't need appellate courts of any kind. The verdict would be so obvious in every case that there would be no debating it.

5/29/2009 12:27:30 PM

Quote :

"actually if you took that quote literally, race and gender (at the very least) would have an impact on a decision. it is only because jurists and lawmakers have been reinterpreting the constitution over the centuries, that this nation has been able to keep up with the times (admittedly in fits and starts)."

Partly true* - the ends in those specific cases can be viewed beneficial; however, suppose the court ruled the other way or a future, predominantly-racist court reinterprets the constitution the other way around? There is a reason for Article V, so that there is a clear means of amending the constitution by elected officials who are at the mercy of voters. Doing so by unelected judges can be a good thing, but not in all cases, thus the reason for uniform restraint. Just as it is imprudent to give a current president dictatorial powers because we think he will do the right thing, so too is it imprudent to give legislative powers to a judiciary we think will do the right thing.

Quote :

"also, the nature of many of the cases which reach the federal appeals courts (and especially the ussc) are somewhere right in the middle of the gray area, where there isn't a clear interpretation of the constitution. otherwise, the case probably wouldn't have gotten to that point in the first place."

Also true, and in these cases, limited interpretation is justified - though not considered judicial activism as previously defined. What is not justified, however, is to reference one's own opinion of how the constitution ought to read rather than one's judgment on how it most likely was read when ratified. In the former case, the bounds with which the law can be changed are so wide as to almost nullify the very purpose of a constitution.



*Thomas Sowell addresses this question in his Judicial Activism Revisited:

Quote :

"Generalization from the history of racial minorities is often false as history as well. Historically, the ending of the enslavement of blacks in the United States was not the work of courts but of a democratically elected president (who was subsequently re-elected) and of majorities sufficient to pass a series of constitutional amendments in a few years, granting both freedom and equality before the law. The implementation of this legal equality was retarded for decades by the courts' restrictive reading of the Fourteenth Amendment in racial cases, while they read the Amendment ever more expansively in areas remote from the "original intent" of the enactment. Depiction of courts as the last bastion of morality against the immoralities of the democratic process requires highly selective samples of history. ... Racial residential integration, for example, was far greater in many American cities half a century before racially restrictive covenants were abolished by Shelley v. Kramer114 than at any time since.115 The increase of blacks in high-level occupations was greater in the decade preceding the Civil Rights Act of 1964 than in the decade following its enactment.116 Many groups have prospered far more when ignored by the authorities than when made the subject of their attention-- the Jews, the Chinese, the Indians, and the Japanese being classic examples in countries around the world. More than selective historical examples are involved. Economic analysis has demonstrated logical reasons why the systemic actions of the marketplace are often more favorable to disadvantaged minorities then are the actions of government, and a growing body of empirical evidence supports that theoretical analysis.117 Whether or not the economic theory or the factual evidence is accepted as conclusive, at the very least they seriously undermine the foregone conclusion that the decisions which matter most-- and most beneficially-- are the collective decisions, made through political or legal processes. If judicial activists wish to maintain this essential underlying premise, then it must be supported by evidence rather than by presumption and reiteration. "

[Edited on May 29, 2009 at 12:45 PM. Reason : .]

5/29/2009 12:44:05 PM

"It has long, however, been my opinion, and I have never shrunk from its expression... that the germ of dissolution of our federal government is in the constitution of the federal Judiciary;... working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped."


~ Thomas Jefferson

5/29/2009 1:21:19 PM

Lighthouses are more helpful than churches.

~Benjamin Franklin

5/29/2009 1:23:26 PM

that has absolutely nothing to do with the Judicial Branch

5/29/2009 1:27:34 PM

well thomas jefferson was a slave raper so i just wanted to put a decent founding father

5/29/2009 1:28:14 PM

You can't always get what you want, but if you try sometimes you might find you get what you need.

~Mick Jagger and Keith Richards

5/29/2009 1:31:43 PM

Quote :

"Do justice, sir, do justice."

--Judge Learned Hand to Justice Oliver Wendell Holmes

Justice Holmes ordered the carriage stopped.

Quote :

"That is not my job. It is my job to apply the law."

--Justice Oliver Wendell Holmes

The Quest for Cosmic Justice, p. 169

http://www.friesian.com/nullif.htm

5/29/2009 1:32:38 PM

^^^you do know that he had an illegitimate child and was never married to his "wife" Deborah Read don't you?

[Edited on May 29, 2009 at 1:37 PM. Reason : not that i care either way...but just saying]

5/29/2009 1:36:59 PM

^^^haha, most excellent post

5/29/2009 1:38:15 PM